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2010-UP-077 - The State v. Zeb Binnarr

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Zeb Eron Binnarr, Appellant.


Appeal From Charleston County
Thomas W. Cooper, Jr., Circuit Court Judge


Unpublished Opinion No. 2010-UP-077
Submitted February 1, 2010 – Filed February 2, 2010   


AFFIRMED


H. Stanley Feldman, of Charleston, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., all of Columbia; Solicitor Scarlett Wilson, of Charleston, for Respondent.

PER CURIAM:  Zeb Eron Binnarr appeals his conviction for failing to register as a sex offender.  On appeal, he argues the trial court erred in: (1) holding the applicable sex offender registration statutes did not have a notice requirement; (2) holding the lack of a notification requirement in section 23-3-460 of the South Carolina Code (Supp. 2009) did not violate his procedural due process rights; and (3) denying his motion for directed verdict.  We affirm. 

1. A review of the statutory language in section 23-3-460 indicates the Legislature did not include language requiring the State to notify sex offenders about the change in registration requirements when it amended the statute in 2006 to require registration on a biannual basis.  A clear reading of section 23-3-440 reveals the statute only requires the State to give notice of the registration requirement to a sex offender within one day of the sex offender's release from prison.  See S.C. Code Ann. § 23-3-440(1) (2007) (emphasis added) (stating "the Department of Probation, Parole, and Pardon Services shall provide verbal and written notification to the offender that he must register with the sheriff of the county in which he intends to reside within one business day of his release.").  Any attempt to insert the notification requirement of section 23-3-440 into section 23-3-460 would run contrary to the plain and ordinary meaning of both statutes.  See TNS Mills, Inc. v. S.C. Dep't of Revenue, 331 S.C. 611, 624, 503 S.E.2d 471, 478 (1998) ("Subtle or forced construction of statutory words for the purpose of expanding a statute's operation is prohibited.").  Accordingly, the trial court correctly held the applicable sex offender statutes did not require the State to notify Binnar of the change in registration requirements.              

2. We hold the trial court correctly held section 23-3-460 did not violate Binnarr's procedural due process rights.  The amendment to section 23-3-460 changing the registration requirements for sex offenders to a biannual basis became effective on July 1, 2006, one month before Binnarr was required to register with the sheriff's office.  See S.C. Code Ann. § 23-3-460 (Supp. 2009).  Thus, Binnarr had fair notice that the failure to register on a biannual basis could result in a crime because the amendment became effective one month before he was required to begin registering on a biannual basis starting in August 2006.  See State v. Edwards, 302 S.C. 492, 494, 397 S.E.2d 88, 89-90 (1990) (stating if a criminal offense takes place after the effective date of a statutory amendment, a defendant has fair notice that the conduct referenced in the amendment is criminal); S.C. Code Ann. § 23-3-470 (Supp. 2009) (stating the failure to register is a criminal offense).  Additionally, the sheriff's office provided fair notice to Binnarr of the new registration requirements when it mailed a blanket notice and a certified letter to Binnarr's residence. 

3. Since Binnarr did not renew his motion for directed verdict at the close of all evidence, this issue is not preserved for our review.  See State v. Bailey, 368 S.C. 39, 43 n.4, 626 S.E.2d 898, 900 n.4 (Ct. App. 2006) ("If a defendant presents evidence after the denial of his directed verdict motion at the close of the State's case, he must make another directed verdict motion at the close of all evidence in order to appeal the sufficiency of the evidence."). 

AFFIRMED.[1]

HUFF, A.C.J., THOMAS, and KONDUROS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.