The Court of Appeals Finds Another Fatal Defect in a Sex Offender Indictment

A couple of months ago, I blogged about State v. Herman, __ N.C. App. __ (2012), a case in which the court of appeals found a fatal defect in an indictment charging the defendant with  being a sex offender unlawfully on a premises in violation of G.S. 14-208.18(a)(2). In a nutshell, the indictment in that case failed to allege that the defendant belonged to the specific subclass of registrants to whom the unlawfully on premises statute applies. Yesterday, the court of appeals issued another opinion reversing a sex offender case based on a similar indictment error.

The defendant in State v. Barnett was a sex offender. He was convicted of failing to notify the sheriff’s office of a change of address, in violation of G.S. 14-208.9. On appeal, he argued that the indictment was defective. It alleged that he “unlawfully, willfully and feloniously did fail to provide written notice or notify the Gaston County Sheriff’s Department within three business days after a change of address as required by the North Carolina General Statute 14-208.9.” The court of appeals concluded that “[t]he indictment in this case failed to specify that Defendant was ‘a person required to register,’ an essential element of the charged offense.” The court ruled that the reference to G.S. 14-208.9 in the indictment did not save the document, relying on a line of cases providing that a correct statutory citation cannot cure inadequate charging language.

The court vacated the defendant’s conviction, though of course he is not home free: double jeopardy generally doesn’t bar a new prosecution under a valid indictment when an initial indictment is deemed defective. But the need for further proceedings could have been avoided through careful drafting. So far, the court’s rulings haven’t cast any doubt on the validity of the charging language for sex offender registration offenses contained in Arrest Warrant and Indictment Forms. At least for now, that language appears to be a safe haven for prosecutors and their assistants who are trying to navigate the minefield of sex offender indictments.