Opinion
No. COA12–101.
2012-07-3
STATE of North Carolina v. Lawrence Bernard CRANK.
Attorney General Roy Cooper, by Assistant Attorney General Matthew L. Boyatt, for the State. Daniel F. Read, for Defendant–Appellant.
Appeal by defendant from judgment entered 28 September 2011 by Judge H. William Constangy in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 June 2012. Attorney General Roy Cooper, by Assistant Attorney General Matthew L. Boyatt, for the State. Daniel F. Read, for Defendant–Appellant.
ERVIN, Judge.
Defendant Lawrence Bernard Crank appeals from a judgment sentencing him to twenty to twenty-four months imprisonment based upon his conviction for failing to provide proper notice that he had changed his address as required by the sex offender registration program. On appeal, Defendant contends that (1) the trial court committed plain error by allowing the admission of evidence that he had been previously incarcerated; (2) his trial counsel provided him with ineffective assistance of counsel by failing to object to the admission of evidence of Defendant's previous incarceration; (3) the trial court erred by overruling Defendant's objection to the admission of evidence concerning certain details relating to his previous convictions; and (4) the trial court erred by denying his motion to dismiss the charge that had been lodged against him for insufficiency of the evidence. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant is not entitled to relief from the trial court's judgment.
I. Factual Background
A. Substantive Facts
On 19 August 1994 and 17 September 2007, Defendant pled guilty to separate charges of taking indecent liberties with a child in violation of N.C. Gen.Stat. § 14–202. As a result of those convictions, Defendant was required to register as a sex offender, and to provide the sheriff with written notice of any change of address within three days of moving. N.C. Gen.Stat. §§ 14–208.7 and 14–208.9. After Defendant completed serving the sentence imposed upon him in connection with his second conviction for taking indecent liberties with a child, Laura Stutts, an administrative assistant in the Sex Offender Unit of the Mecklenburg County Sheriff's Department, explained the change of address requirements to Defendant, who acknowledged his understanding of these requirements by completing a sex offender registration form.
On at least five occasions after his release, Defendant complied with the requirement that he notify the Mecklenburg County Sheriff's Department that he had changed his address by providing personal and written notice that he had done so. In addition, Defendant completed at least two separate forms addressing his obligations as a registered sex offender in which he acknowledged that he understood the requirement that he report any change of address in writing and in person to the Mecklenburg County Sheriff's Department.
On 20 August 2009, Defendant completed a Sex Offender Address Change Form in which he listed his new address as an apartment located at 1035–H Mayfield Terrace Drive in Charlotte. Defendant did not complete another Sex Offender Address Change Form until 25 January 2010, when he notified the Mecklenburg County Sheriff's Department that he lived at 4533 Wildwood Avenue in Charlotte.
According to the statutory provisions concerning the sex offender registration program, the sheriff is required to conduct an in-person verification of a registered sex offender's address when he or she moves. As a result, on three separate occasions between 28 August and 21 September 2009, Deputy Linda Lopez of the Mecklenburg County Sheriff's Department went to the Mayfield Terrace address for the purpose of confirming that Defendant lived there and failed to locate Defendant at that location on any of those three occasions. Even so, Defendant told Ms. Stutts that the Mayfield Terrace address was correct during a 25 September 2009 telephone conversation.
After unsuccessfully attempting to locate Defendant at the Mayfield Terrace address, Deputy Lopez contacted Shantea Jenkins, the leasing agent for the Mayfield Terrace apartment complex, who told Deputy Lopez that Defendant did not reside at the Mayfield Terrace address. In addition, Dorothy Reid, who lived at the Mayfield Terrace address, testified that, although she had known Defendant since he was a small child, he had never resided at or received mail at the Mayfield Terrace address. On the other hand, Defendant's girlfriend, Tierra Wilkes, testified that, although Defendant had attempted to move into the Mayfield Terrace apartment on or about 20 August 2009, Ms. Reid only allowed him to stay one night. Ms. Wilkes claimed that Defendant had called Deputy Lopez within three days of leaving the Mayfield Terrace address for the purpose of advising her that he no longer lived there.
B. Procedural History
On 19 January 2010, the Mecklenburg County grand jury returned a bill of indictment charging Defendant with willfully failing to provide the Mecklenburg County Sheriff's Department with timely notice that he had changed his address in violation of N.C. Gen Stat. § 14–208.11(a)(2). The charge against Defendant came on for trial before the trial court and a jury at the 27 September 2011 criminal session of the Mecklenburg County Superior Court. On 28 September 2011, the jury returned a verdict convicting Defendant as charged. After conducting a sentencing hearing, the trial court entered judgment sentencing Defendant to twenty to twenty-four months imprisonment. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
A. Defendant's Prior Incarceration
In his initial challenge to the trial court's judgment, Defendant contends that the trial court committed plain error by allowing Ms. Stutts to testify that Defendant had previously been incarcerated and, in the alternative, that the failure of Defendant's trial counsel to object to the admission of this testimony deprived him of the effective assistance of counsel. We do not believe that Defendant's arguments have merit.
At trial, Ms. Stutts testified that, after Defendant's release from prison, she told him about his responsibilities as a convicted sex offender. More particularly, Ms. Stutts testified that the document admitted into evidence as State's Exhibit No. 3 was “the rules and regulations that [she] went over with him after he got out of prison on his second conviction.” As a result of Defendant's candid concession that he failed to object to Ms. Stutts' reference to the fact that her conversation with Defendant occurred “after he got out of prison on his second conviction,” we must review Defendant's challenge to the admission of this evidence utilizing a plain error standard of review.
1. Standard of Review
An issue not preserved by an objection lodged at trial may be raised on appeal “when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C. R.App. P. 10(a)(4). According to the Supreme Court, “[f]or error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial.” State v. Lawrence, ––– N .C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). As a result, in order to establish the existence of plain error, a defendant must show that the alleged error “ ‘had a probable impact on the jury's finding that the defendant was guilty,’ “ Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied,459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982)), or, in other words, that, “absent the error[,] the jury probably would have reached a different verdict.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (citing Odom, 307 N.C. at 661, 300 S.E.2d at 378–79). Thus, “[i]n order to prevail under a plain error analysis, a defendant must show: (1) there was error; and (2) without this error, the jury would probably have reached a different verdict.” State v. Smith, 152 N.C.App. 29, 37–38, 566 S.E.2d 793, 799,cert. denied, 356 N.C. 311, 571 S.E.2d 208 (2002) (citation omitted).
2. Plain Error Analysis
In challenging the admission of Ms. Stutts' testimony that Defendant had been previously incarcerated, Defendant contends that the admission of the challenged evidence violated the prohibition against attacking a person's character through the admission of evidence concerning prior bad acts set out in N.C. Gen.Stat. § 8C–1, Rule 404(b). On the other hand, the State contends that the same information recited by Ms. Stutts was contained in the judgments that were admitted into evidence with Defendant's consent for the purpose of showing that Defendant was required to participate in the sex offender registration program as a recidivist. However, we need not decide whether Defendant or the State has the better of this dispute given that a thorough review of the record demonstrates that the evidence of Defendant's guilt was overwhelming, so that Defendant would not be entitled to relief even if the trial court erred by allowing the admission of the challenged evidence.
The record developed at trial demonstrated that Defendant had twice completed notice forms which explicitly reminded him of his obligation to notify the Mecklenburg County Sheriff's Department in person and in writing in the event that he changed his address. The most recent of these forms informed Defendant that he was required to notify the Mecklenburg County Sheriff's Department of a change in his address within three days after moving. On both occasions, Defendant expressed his recognition of the fact that he was required to comply with the terms of the notice. In addition, Defendant completed sex offender change of address forms at least five times, including the occasion on which Defendant informed the Mecklenburg County Sheriff's Department that he resided at the Mayfield Terrace address, before being charged in this case. As a result, Defendant clearly knew of his obligation to notify the Mecklenburg County Sheriff's Department within three days in the event that he changed his address.
In addition, the State's evidence convincingly established that Defendant did not live at the Mayfield Terrace address and had not notified the Mecklenburg County Sheriff's Department that he did not live at that location in a timely manner. Although Deputy Lopez attempted to confirm that Defendant lived at the Mayfield Terrace address on three separate occasions in August and September 2009, she never found Defendant at that location. After failing to confirm Defendant's residence in this manner, Deputy Lopez contacted Ms. Jenkins, who testified that she did not recognize Defendant and that he had never lived at the Mayfield Terrace address. Similarly, Ms. Reid testified that Defendant did not live at that location and had only visited her apartment on one previous occasion. Although Ms. Wilkes claimed that Defendant had stayed at the Mayfield Terrace address on or about 20 August 2009 and that Defendant had informed Deputy Lopez by telephone that he no longer lived there within three days of his departure, the record contains no indication that Defendant provided this information in person and in writing or that Defendant provided a new address to the Mecklenburg County Sheriff's Department until 25 January 2010. All of this evidence provides strong support for the State's contention that Defendant failed to provide the Mecklenburg County Sheriff's Department with timely information concerning his place of residence.
As a result, we conclude that the overwhelming record evidence shows that Defendant willfully changed his address without providing proper notice to the Mecklenburg County Sheriff's Department in violation of N.C. Gen.Stat. § 14–208.11(a)(2). Moreover, we further conclude that there is no realistic likelihood that the outcome at trial would have been different had Ms. Stutts' reference to Defendant's prior incarceration not been admitted. As a result, Defendant has not shown that he is entitled to relief from the trial court's judgment based upon the admission of the challenged portion of Ms. Stutts' testimony on plain error grounds.
3. Ineffective Assistance of Counsel
Alternatively, Defendant contends that, even if the admission of the challenged portion of Ms. Stutts' testimony did not constitute plain error, the failure of his trial counsel to object to the admission of that evidence constituted ineffective assistance of counsel. Once again, we conclude that Defendant's argument lacks merit.
According to well-established law, a defendant seeking relief from a conviction on ineffective assistance of counsel grounds “must show that his ‘counsel's performance fell below an objective standard of reasonableness' and that ‘counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable.’ “ State v. Jones, 137 N.C.App. 221, 233, 527 S.E.2d 700, 707 (quoting State v. Moorman, 320 N.C. 387, 399, 358 S.E.2d 502, 510 (1987)), disc. review denied, 352 N.C. 153, 544 S.E.2d 235 (2000). In other words, a successful ineffective assistance of counsel claim requires a showing that “a reasonable probability [exists] that, but for counsel's [ineffective performance], the result of the proceeding would have been different,” with the necessary “reasonable probability” being “a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). Assuming, without in any way deciding, that Defendant's trial counsel acted unreasonably by failing to object to the challenged portion of Ms. Stutts' testimony, the overwhelming evidence of Defendant's guilt precludes us from finding that there is a reasonable probability that the outcome of Defendant's trial would have been different if the jury had not heard Ms. Stutts' reference to Defendant's previous incarceration. Thus, Defendant is not entitled to relief from the trial court's judgment on ineffective assistance of counsel grounds.
B. Admissibility of Prior Judgments
Secondly, Defendant contends that the trial court erred by overruling his objection to certain testimony delivered by Assistant Clerk of Superior Court Crystal Taylor on the grounds that the testimony in question impermissibly informed the jury that he had two previous convictions of taking indecent liberties with a child. In the event that we conclude that Defendant failed to adequately object to the challenged testimony in question at trial, Defendant further contends that the admission of that evidence constituted plain error. We are not persuaded by Defendant's argument.
Prior to trial, Defendant and the State stipulated that Defendant had been convicted of committing a reportable offense and that he was required to register as a sex offender. At trial, the State obtained the admission into evidence of the indictments and judgments relating to Defendant's two prior convictions for taking indecent liberties with a child. After the documents in question had been identified and the documents relating to Defendant's 1994 conviction had been published to the jury, Ms. Taylor testified that:
Q. Ma‘am, can you explain for the Court what exactly is an indictment?
A. It is the charging document for a felony charge.
Q. In State's Exhibit 1, referring to which has been published to the jurors, whose name is on this indictment?
A. Lawrence Bernard Crank.
Q. And what was Lawrence Bernard Crank indicted for?
A. Feloniously taking indecent liberties with children.
[Defense Counsel]: Well, your Honor, we stipulated to the admission of those and they speak for themselves.
[Prosecutor]: I guess, your Honor, the State believes at least it should be able to have a witness be able to explain what the judgment is.
THE COURT: I'm going to overrule on that.
At that point, Ms. Taylor testified, without further objection, that the 1994 judgment indicated that Defendant was convicted of taking indecent liberties with a child and that the 2007 documents indicated that Defendant was charged with and convicted of taking indecent liberties with a child. Finally, toward the end of Ms. Taylor's testimony, the documents relating to Defendant's 2007 conviction were published to the jury.
After acknowledging that the procedures outlined in N.C. Gen.Stat. § 15A–928(c)(1) (providing that, in a case in which the fact that the defendant has been previously convicted of a particular offense is an element of a crime charged, “no evidence [that the defendant has been convicted of such an offense] may be adduced by the State” in the event that the defendant stipulates to the underlying conviction) do not apply in the present case, Defendant contends that “[t]he statutory purpose of N.C. Gen.Stat. § 15A–928 applies equally to this situation” and that the present case did not involve “a situation where the facts of the underlying conviction bore a relevant purpose beyond the mere fact of conviction.” On the other hand, the State contends that Defendant did not object to this testimony and, instead, stipulated to the admissibility of the judgments and commitments in question. Once again, however, we need not resolve whether Defendant adequately preserved his challenge to the admissibility of this evidence for appellate review.
Assuming, without in any way deciding, that the trial court erroneously admitted the challenged testimony over an adequate objection on the part of Defendant's trial counsel, we conclude that Defendant has failed to establish “that ‘there [was] a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial [.]’ “ State v. Hyman, 153 N.C.App. 396, 402, 570 S.E.2d 745, 749 (quoting N.C. Gen.Stat. § 15A–1443(a)), cert. denied,357 N.C. 253, 583 S.E.2d 41 (2003). As we have already noted, the record contains overwhelming evidence tending to establish Defendant's guilt. After carefully reviewing the record, we simply do not believe that the admission of evidence to the effect that Defendant had been charged with and convicted of two counts of taking indecent liberties with a child had any appreciable effect on the jury's decision to return a verdict of guilty given the strength of the evidence tending to show Defendant's guilt and given that the jury already knew that Defendant was a registered sex offender. Thus, Defendant is not entitled to relief from his conviction on the basis of this argument.
C. Sufficiency of the Evidence
Finally, Defendant contends that the trial court erred by denying his motion to dismiss for insufficiency of the evidence. Once again, we do not find Defendant's argument persuasive.
In reviewing a trial court's decision to deny a motion to dismiss a criminal charge on the grounds that the evidence is insufficient to support a conviction, this Court examines the evidence in the light most favorable to the State, giving the State all reasonable inferences that can be drawn from the evidence, State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652–53 (1982) (citation omitted), and determines whether the State presented “ ‘substantial evidence’ in support of each element of the charged offense,” State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005), and that the defendant perpetrated the offense. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). “Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citation omitted).
N.C. Gen.Stat. § 14–208.11(a)(2) provides, in pertinent part, that “[a] person required ... to register [as a sex offender] who willfully ... [f]ails to notify the last registering sheriff of a change in address as required by this Article,” shall be guilty of a Class F felony. “ ‘Wilful’ as used in criminal statutes means ... the commission of an act purposely and deliberately in violation of law.” State v. Arnold, 264 N.C. 348, 349, 141 S.E.2d 473, 474 (1965) (citation omitted). Willfulness must often be inferred from the surrounding circumstances rather than proven through the use of direct evidence. Id.
As we have already noted, the State presented extensive evidence tending to show that Defendant willfully failed to notify the Mecklenburg County Sheriff's Department that he had changed his address. The record contains ample evidence tending to show that Defendant did not live at the Mayfield Terrace address at the time that he claimed to have done so and that he failed to provide adequate and timely notice of his new address to the Mecklenburg County Sheriff's Department. A jury could readily infer from the documents that Defendant had signed at various points after his release from incarceration that he knew about his obligation to report address changes to the Mecklenburg County Sheriff's Department in a timely manner, effectively establishing that he acted willfully when he failed to comply with this address change notification requirement in the latter part of 2009. As a result, viewing the evidence in the light most favorable to the State, a reasonable person could readily conclude that Defendant willfully failed to notify the Mecklenburg County Sheriff's Department that he had changed his address. The fact that Defendant might have had difficulty finding a place to live does not obviate the necessity for him to keep the Mecklenburg County Sheriff's Department apprised of his whereabouts. State v. Abshire, 363 N.C. 322, 331, 677 S.E.2d 444, 451 (2009) (holding 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”). As a result, the trial court did not err by denying Defendant's dismissal motion.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Defendant has not established that he is entitled to relief from the trial court's judgment. As a result, the trial court's judgment should, and hereby does, remain undisturbed.
NO PREJUDICIAL ERROR. Judges McGEE and STEELMAN, concur.
Report per Rule 30(e).