{ "id": 12212093, "name": "STATE OF NORTH CAROLINA v. KEITH ANTONIO BARNETT", "name_abbreviation": "State v. Barnett", "decision_date": "2016-03-18", "docket_number": "No. 65PA15", "first_page": "710", "last_page": "716", "citations": [ { "type": "official", "cite": "368 N.C. 710" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "768 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2015, "opinion_index": -1 }, { "cite": "350 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "318 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737531 ], "year": 1986, "pin_cites": [ { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0624-01" ] }, { "cite": "677 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "451", "parenthetical": "concluding that \"a sex offender's address indicates his or her residence, meaning the actual place of abode where he or she lives, whether permanent or temporary\"" }, { "page": "449" } ], "opinion_index": 0 }, { "cite": "363 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151610 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "331", "parenthetical": "concluding that \"a sex offender's address indicates his or her residence, meaning the actual place of abode where he or she lives, whether permanent or temporary\"" }, { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0322-01" ] }, { "cite": "488 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "172", "parenthetical": "quoting Waddell, 279 N.C. at 445, 183 S.E.2d at 646" } ], "opinion_index": 0 }, { "cite": "346 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139473 ], "year": 1997, "pin_cites": [ { "page": "646", "parenthetical": "quoting Waddell, 279 N.C. at 445, 183 S.E.2d at 646" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0628-01" ] }, { "cite": "183 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1971, "pin_cites": [ { "page": "646" }, { "page": "646" }, { "page": "646" } ], "opinion_index": 0 }, { "cite": "279 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569495 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "445" }, { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0442-01" ] }, { "cite": "11 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "218 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619529 ], "year": 1940, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0373-01" ] }, { "cite": "356 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "355", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "319 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749161 ], "year": 1987, "pin_cites": [ { "page": "604", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0599-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "733 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "100" } ], "opinion_index": 0 }, { "cite": "223 N.C. App. 65", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4104301 ], "year": 2012, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/223/0065-01" ] }, { "cite": "768 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2015, "pin_cites": [ { "page": "329" }, { "page": "330" }, { "page": "331" }, { "page": "332" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 684, "char_count": 17171, "ocr_confidence": 0.718, "pagerank": { "raw": 1.125077676336984e-07, "percentile": 0.5744014419373484 }, "sha256": "33c8ec755efcee85da157cba222f6a72f65c42801789658332cfad623898cf81", "simhash": "1:2b7f7ae72565eef3", "word_count": 2825 }, "last_updated": "2023-07-14T20:54:29.404016+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice BEASLEY did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. KEITH ANTONIO BARNETT" ], "opinions": [ { "text": "ERVIN, Justice.\nDefendant Keith Antonio Barnett was convicted of violating the sex offender registration laws and resisting, delaying, and obstructing a public officer. A unanimous panel of the Court of Appeals vacated defendant\u2019s sex offender registration conviction. We now reverse that decision of the Court of Appeals.\nDefendant is required to register as a sex offender pursuant to the North Carolina Sex Offender and Public Protection Registration Program because of a 1997 felony conviction for taking indecent liberties with a child. On 6 January 2010, defendant pleaded guilty to and was convicted of failing to register as a sex offender in October 2009. On 15 February 2010, defendant completed the initial registration process with the Gaston County Sheriff\u2019s Office, at which point defendant was required to report his physical address and to review \u201cnotice of duty to register\u201d documentation. During the initial registration process, defendant reported that he resided at 554 South Boyd Street in Gastonia.\nOn 17 August 2011, a jury found defendant guilty of a second sex offender registration offense. Based upon that conviction, defendant was sentenced to an active term of twenty-eight to thirty-four months imprisonment. On 2 October 2012, the Court of Appeals filed an opinion vacating defendant\u2019s 17 August 2011 conviction based upon a determination that the indictment that had been returned against him in that case was fatally defective. State v. Barnett, 223 N.C. App. 65, 72, 733 S.E.2d 95, 100 (2012). On 14 November 2012, the North Carolina Division of Adult Correction released defendant from its custody in accordance with the Court of Appeals\u2019 decision.\nIn early February 2013, Deputy Luther Hester of the Gaston County Sheriff\u2019s Office received a telephone call concerning defendant. Upon receiving the information provided by the caller, Deputy Hester researched defendant\u2019s records and determined that, even though defendant was no longer incarcerated, he had not reported his current residence in the aftermath of his release from the custody of the Division of Adult Correction. According to Deputy Hester, the address of a registered sex offender is changed to the location of any facility or institution at which the offender in question is incarcerated, with the offender being required to update his address information upon release.\nOn 6 February 2013, Deputy Hester, accompanied by two other deputies, went to 332 North Mountain Street in Gastonia, which was the address at which defendant was suspected of residing. As the deputies arrived, they observed defendant, who had been standing in the front yard, run into the house. After presenting himself at the front door of the residence and speaking with a woman who identified herself as defendant\u2019s mother, Deputy Hester was allowed to enter the house in order to look for defendant.\nWhen Deputy Hester located defendant on the back porch of the residence and informed defendant that he was being placed under arrest for failing to provide notice that he had changed his address, defendant stated that he was not going back to jail and stood \u201cin a competitive manner with his fists up in the air.\u201d After defendant refused to submit himself to arrest after repeated demands had been made that he lower his hands, Deputy Hester used a Taser to subdue defendant, handcuffed him, and placed him under arrest.\nOn 6 February 2013, warrants for arrest charging defendant with failing to notify the Gaston County Sheriffs Office of his address within three business days after having changed his address and with resisting, delaying, and obstructing a public officer were issued. On 18 February 2013, a Gaston County grand jury returned bills of indictment charging defendant with failing to notify the Gaston County Sheriffs Office of his address within three business days after having changed his address and resisting, delaying, and obstructing a public officer. The charges against defendant came on for trial before the trial court and a jury at the 9 December 2013 criminal session of the Superior Court, Gaston County. At the appropriate time, defendant unsuccessfully moved to dismiss the sex offender registration charge for insufficiency of the evidence. After hearing the evidence, the arguments of counsel, and the trial court\u2019s instructions, the jury found defendant guilty as charged. In light of the jury\u2019s verdict, the trial court consolidated defendant\u2019s convictions for judgment and entered a judgment sentencing defendant to a term of twenty-five to thirty-nine months imprisonment. Defendant noted an appeal to the Court of Appeals from the trial court\u2019s judgment.\nIn seeking relief from the trial court\u2019s judgment before the Court of Appeals, defendant argued that the trial court had erred by denying his motion to dismiss the sex offender registration charge for insufficiency of the evidence on the grounds that the record evidence did not tend to show defendant\u2019s guilt of the offense charged in the indictment and that there was a fatal variance between the charge alleged in the indictment and the evidence adduced at trial. State v. Barnett, _ N.C. App. _, _, 768 S.E.2d 327, 329 (2015). A unanimous panel of the Court of Appeals agreed with defendant\u2019s contention. After noting that the indictment returned against defendant alleged that he had violated N.C.G.S. \u00a7 14-208.11 by \u201cfail[ing] to register as a sexual offender, in that the defendant did fail to notify the Gaston County Sheriff\u2019s Office, within three business days of his change of address,\u201d id. at _, 768 S.E.2d at 330, the court determined that the State had proceeded against defendant at trial on the theory that he had failed to register within three business days of release from a penal institution or arrival in a county to live outside a penal institution\u201d as required by N.C.G.S. \u00a7 14-208.7(a), id. at _, 768 S.E.2d at 331. In view of the fact that \u201cdefendant [had been] indicted on an allegation that he failed to register as a sex offender in that he failed to notify the Gaston County Sheriffs Office within three business days of his change of address in accordance with the requirements of N.C. Gen. Stat. \u00a7 14-208.9,\u201d the Court of Appeals held that \u201cthe trial court [had] erred in denying defendant\u2019s motion to dismiss.\u201d Id. at _, 768 S.E.2d at 332.\nThe extent to which the evidence presented at trial suffices to support the denial of a motion to dismiss for insufficiency of the evidence is a question of law reviewed de novo by the appellate court. See, e.g., State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982). As this Court has previously stated:\nWhen considering a motion to dismiss for insufficiency of evidence, the court is concerned only with the legal sufficiency of the evidence to support a verdict, not its weight, which is a matter for the jury. The evidence must be considered in the light most favorable to the state; all contradictions and discrepancies therein must be resolved in the state\u2019s favor; and the state must be given the benefit of every reasonable inference to be drawn in.its favor from the evidence. There must be substantial evidence of all elements of the crime charged, and that the defendant was the perpetrator of the crime.\nState v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (citations omitted). \u201cIt is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment.\u201d State v. Jackson, 218 N.C. 373, 376, 11 S.E.2d 149, 151 (1940). \u201cA variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged.\u201d State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971). \u201cA motion to dismiss is in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged.\u201d Id. at 445, 183 S.E.2d at 646. However, \u201c[i]n order to prevail on such a motion, the defendantmustshowafatal variance between theoffense charged and the proof as to \u2018[t]he gist of the offense.\u2019 \u201d State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (quoting Waddell, 279 N.C. at 445, 183 S.E.2d at 646).\nN.C.G.S. \u00a7 14-208.11(a)(2) provides that a person required to register as a sex offender in accordance with Article 27A of Chapter 14 of the General Statutes is guilty of a Class F felony if he willfully \u201c[f]ails to notify the last registering sheriff of a change of address as required by this Article.\u201d N.C.G.S. \u00a7 14-208.11(a)(2) (2015). According to N.C.G.S. \u00a7 14-208.9(a), \u201c[i]f a person required to register changes address, the person shall report in person and provide written notice of the new address not later than the third business day after the change to the sheriff of the county with whom the person had last registered.\u201d Id. \u00a7 14-208.9(a) (2015). \u201cIf [a] person [required to register] is a current resident of North Carolina, the person shall register . . . [wjithin three business days of release from a penal institution or arrival in a county to live outside a penal institution.\u201d Id. \u00a7 14-208.7(a)(l) (2015).\nIn the opinion that we filed today in State v. Crockett, _ N.C. _, _, _ S.E.2d _, _ (Mar. 18, 2016) (No. 29PA15), this Court clarified that N.C.G.S. \u00a7 14-208.7(a) applies solely to a sex offender\u2019s initial registration. N.C.G.S. \u00a7 14-208.9(a), on the other hand, applies to instances in which an individual previously required to register following his release from a penal institution or upon his conviction in the event that no active term of imprisonment was imposed as required by N.C.G.S. \u00a7 14-208.7(a) changes his address from the address on file with the sheriff of the county in which the sex offender last registered to a new address. In other words, contrary to the result reached in the Court of Appeals, we hold that there was no variance between the offense with which defendant was charged and the offense that defendant was convicted of committing. As a result, once defendant had initially registered as a sex offender on 15 February 2010 in accordance with N.C.G.S. \u00a7 14-208.7(a), any subsequent failure to notify the appropriate law enforcement agency that he had changed his address would constitute a violation of N.C.G.S. \u00a7 14-208.9(a) and subject him to prosecution under section N.C.G.S. \u00a7 14-208.11(a)(2) even if his change of address resulted from a release from incarceration.\nAt trial, Deputy Hester testified that, when a registered sex offender is incarcerated after the date upon which he initially registers, his address for sex offender registration purposes changes to the facility or institution in which he is housed. As long as the registrant remains incarcerated, his address is that of the facility or institution in which he is confined. See State v. Abshire, 363 N.C. 322, 331, 677 S.E.2d 444, 451 (2009) (concluding that \u201ca sex offender\u2019s address indicates his or her residence, meaning the actual place of abode where he or she lives, whether permanent or temporary\u201d), superseded on other grounds by statute, An Act to Protect North Carolina\u2019s Children/Sex Offender Law Changes, ch. 247, sec. 8(a), 2005 N.C. Sess. Laws (Reg. Sess. 2006) 1065, 1070-71. Although the State did not elicit any evidence tending to show the location at which defendant had been incarcerated prior to his release from the custody of the Division of Adult Correction on 14 November 2012, his address necessarily changed when he was released from incarceration. As a result, in accordance with N.C.G.S. \u00a7 14-208.9(a), defendant was required to \u201creport in person and provide written notice of the new address not later than the third business day after the change to the sheriff of the county with whom the person had last registered.\u201d Although defendant had last registered with the Gaston County Sheriff\u2019s Office, he failed to report in person or provide written notice of the fact that his address had changed from the facility or institution in which he had been incarcerated to his new residence following his release from the custody of the Division of Adult Correction on 14 November 2012. In other words, given that the evidence adduced at trial tended to show that defendant was a \u201cperson required ... to register\u201d as a result of his 1997 conviction for taking indecent liberties with a child, N.C.G.S. \u00a7 14-208.11(a), that he had changed his address at the time that he was released from the custody of the Division of Adult Correction on 14 November 2012, and that defendant \u201c[flailed to notify the last registering sheriff of a change of address,\u201d id. \u00a7 14-208.11(a)(2), \u201cnot later than the third business day after the change,\u201d id. \u00a7 14-208.9(a), the State presented evidence tending to show the existence of each element of the offense with which defendant had been charged. See Abshire, 363 N.C. at 328, 677 S.E.2d at 449 (delineating the elements of the crime of failing to notify the appropriate sheriff of a sex offender\u2019s change of address under N.C.G.S. \u00a7 14-208.11(a)). Because the trial court properly denied defendant\u2019s dismissal motion, the Court of Appeals erred by determining that the record did not contain sufficient evidence to permit a determination that defendant committed the offense of failure to register. As a result, for all of these reasons, the Court of Appeals\u2019 decision vacating defendant\u2019s conviction for failure to register is reversed.\nREVERSED.\nJustice BEASLEY did not participate in the consideration or decision of this case.\n. In Ms brief before the Court of Appeals, defendant also argued that, in the event that his trial counsel had failed to advance a variance-based argument at trial, Ms failure to do so constituted ineffective assistance of counsel. However, given that the Court of Appeals vacated defendant\u2019s failure to register conviction for insufficiency of the evidence, the Court of Appeals never reached Ms ineffective assistance claim.\n. As an aside, defendant asserts in his new brief that the record was devoid of any evidence tending to show that he remained a North Carolina resident. However, the fact that defendant had been a resident of Gaston County for some time, had reported having an address.in Gaston County, and was apprehended in Gaston County, coupled with the absence of any evidence to the effect that he had moved out of state, sufficed to permit a jury determination that he had not established a place of abode out of state following his release from the custody of the Division of Adult Correction on 14 November 2012.\n. In his new brief, defendant also argues that, as previously stated by this Court in State v. Williams, \u201c[t]he failure of the trial court to submit the case to the jury pursuant to the crime charged in the indictment amounted to a dismissal of that charge and all lesser included offenses.\u201d Williams, 318 N.C. 624, 628, 350 S.E.2d 353, 356 (1986). We do not, however, believe that the principle upon which defendant relies has any application to this case given that, in light of the facts revealed by the present record, the trial court\u2019s instructions accurately stated the determinations that the jury would need to make in order to convict defendant of the offense that he had been charged with committing.\n. As an alternative to his substantive challenge to the denial of his dismissal motion, defendant argued before the Court of Appeals that, in the event that defendant\u2019s trial counsel had not properly preserved his fatal variance claim, any such failure on the part of defendant\u2019s trial counsel deprived defendant of his right to the effective assistance of counsel. However, our decision to address and reject defendant\u2019s fatal variance claim on the merits renders his ineffective assistance of counsel claim moot.", "type": "majority", "author": "ERVIN, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by J. Joy Strickland and William P. Hart, Jr., Assistant Attorneys General, for the State-appellant.", "Guy J. Loranger for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEITH ANTONIO BARNETT\nNo. 65PA15\nFiled 18 March 2016\nSexual Offenders \u2014 registration\u2014failure to notify of new address after release from incarceration\nThe Court of Appeals erred by vacating defendant\u2019s sex offender registration conviction arising from a 1997 felony conviction for taking indecent liberties with a child. Although defendant had last registered with the Gaston County Sheriffs Office, he failed to report in person or provide written notice of the fact that his address had changed from the facility or institution in which he had been incarcerated to his new residence following his release from custody no later than the third business day after the change as required by N.C.G.S. \u00a7 14-208.9(a).\nJustice BEASLEY did not participate in the consideration or decision of this case.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals,__ N.C. App._, 768 S.E.2d 327 (2015), vacating, in part, a judgment entered on 10 December 2013 by Judge F. Donald Bridges in Superior Court, Gaston County. Heard in the Supreme Court on 16 November 2015.\nRoy Cooper, Attorney General, by J. Joy Strickland and William P. Hart, Jr., Assistant Attorneys General, for the State-appellant.\nGuy J. Loranger for defendant-appellee." }, "file_name": "0710-01", "first_page_order": 860, "last_page_order": 866 }