North Carolina Lawyers Weekly
State v. James (Lawyers Weekly No. 15-07-0677, 22 pp.) (Mark Davis, J.) (Robert Hunter Jr., J., dissenting) Appealed from Johnston County Superior Court (Claire Hill, J.) N.C. App.
Holding: Since defendant had never lived at the address he gave the sheriff in July 2013, the December 2013 indictment for failing to report an address change was not fatally flawed when it alleged that defendant had failed to notify the sheriff of a change of address within three days, rather than three business days.
We find no error in defendant’s convictions of failure to report a change of address as a sex offender and attaining the status of a habitual felon.
All of the elements of the offense are referenced on the face of the indictment. We cannot conclude that the omission of the word “business” from the language addressing the third element of the offense is analogous to the omission of an entire element.
While this court has previously concluded in an unpublished opinion that the word “business” must be included in an indictment charging a violation of G.S. § 14-208.9(a), see State v. Osborne, 763 S.E.2d 16 (N.C. App. 2014) (unpublished), an unpublished opinion establishes no precedent and is not binding authority. Moreover, our court expressly declined to follow Osborne in State v. Leaks, 771 S.E.2d 795 (N.C. App. 2015).
Defendant failed to preserve for appeal the issue of whether the trial court erred in denying his motions to dismiss based on the insufficiency of the evidence.
Even if defendant’s trial counsel had specifically moved to dismiss based on the insufficiency of the evidence, the state presented sufficient evidence to raise a jury question as to whether defendant was guilty. As such, defendant cannot prove ineffective assistance of counsel.
No error.
Dissent
(Hunter, J.) The indictment charged defendant with language that is substantially different than the words of the statute—“three days” as opposed to three business days. I am persuaded by the reasoning of State v. Osborne.
Furthermore, the Leaks court declined to follow Osborne only with regard to the “written notice” requirement. The “three business days” element of the indictment was not at issue in Leaks. Thus, Leaks is inapposite.
The indictment contained a fatal variance; thus, jurisdiction was never conferred on the trial court. I would vacate the judgment.
