Criminal Practice — Sex Offender – Failure to Register – Actual Receipt – Sheriff’s Attempt – Willfulness

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State v. Calvin Moore (Lawyers Weekly No. 15-07-0342, 24 pp.) (Robert Hunter Jr., J.) Appealed from Cleveland County Superior Court (Hugh Lewis, J.) N.C. App. April 7, 2015

Holding: The state presented no evidence from which a reasonable inference could be drawn (1) that defendant actually received the sex offender registry verification form as required for a conviction of failure to return the verification form under G.S. § 14-208.9A(a)(4), (2) that the sheriff’s office made a reasonable attempt to verify that defendant still resided at his last reported address, or (3) that defendant acted willfully in failing to return the verification form.

We vacate defendant’s conviction for failure to return the verification form.

The state’s only evidence that defendant had received the address verification sex offender (AVSO) letter was that someone named Smith (defendant’s sister) had signed for the letter. The state’s only evidence that the sheriff’s office made a reasonable attempt to verify that defendant still resided at his last reported address was one deputy’s telephone call to find out whether defendant was in jail. The state failed to present any evidence of willfulness.

Defendant’s evidence may be used to explain or clarify that offered by the state. Defendant’s sister testified that she did not remember signing for the AVSO letter in July 2013; that she first learned of its misplacement when defendant called her from jail; that she located the misplaced AVSO letter in between the sofa cushions in an unfrequented room when she gained a new vantage point by standing on a chair to change the curtains in October; and that she immediately gave the AVSO letter to defendant. Defendant’s evidence explains and clarifies the state’s evidence that he returned the July 2013 verification form to the sheriff’s office on Oct. 23, 2013.

The judgment of 10.5 to 13.75 years’ imprisonment is vacated.