Opinion
No. 15–P–1306.
06-02-2016
COMMONWEALTH v. Roland E. RATTA, Second.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, a level two sex offender, was convicted of failing to provide notice of a change of his address, in violation of G.L. c. 6, § 178H(a ), following a jury trial in the Superior Court. On appeal, the defendant claims there was insufficient evidence to support his conviction. We agree, and for the reasons below, we reverse.
Discussion. The Commonwealth's complaint charged the defendant with knowingly failing to provide notice of a change of his address “on or about May 31, 2012.” See G.L. c. 6, § 178H(a )(iii). The Commonwealth's theory at trial, as set out in the prosecutor's opening statement, reflected that the defendant failed to report his change of address “no later than May 4 of 2012.” Based on the defendant's status as a level two sex offender, the Commonwealth was required to prove that, on or about the specified date, he knowingly failed to provide notice of a change of his address in-person at his local police department at least ten days prior to leaving the Commonwealth. See G.L. c. 6, §§ 178H(a ), 178E(i ), and 178F½. See also Commonwealth v. Ramirez, 69 Mass.App.Ct. 9, 14–15 (2007) (requiring proof that defendant was in violation on date listed in Commonwealth's complaint). We assess the defendant's claim under the familiar Latimore standard, viewing the evidence in the light most favorable to the Commonwealth to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979).
General Laws c. 6, § 178H(a ), as appearing in St.1999, c. 74, § 2, states in relevant part: “A sex offender required to register pursuant to this chapter who knowingly ... (iii) fails to provide notice of a change of address ... shall be punished in accordance with this section.”
The joint final pretrial memorandum recited the Commonwealth's allegation that “sometime after January 6, 2012, but no later than May 1, 2012, the defendant changed his place of residence but never notified the Easthampton Police Department or the Sex Offender Registry Board of the change of address.”
General Laws c. 6, § 178E(i ), as appearing in St.1999, c. 74, § 2, states in pertinent part: “A sex offender required to register pursuant to sections 178C to 178P, inclusive, who intends to move out of the commonwealth shall notify the [Sex Offender Registry Board] not later than ten days before leaving the commonwealth.”
General Laws c. 6, § 178F½, inserted by St.1999, c. 74, § 2, states in pertinent part: “A sex offender finally classified as a level 2 ... offender shall give the required notice in person at the police department in the city or town where such sex offender resides....”
The parties stipulated that at all relevant times, the defendant was a level two sex offender who was required to complete his annual registration requirements in-person at his local police department. Additionally, under G.L. c. 6, §§ 178E(i ) and 178F½, he was required to provide in-person notification of any change of his address to his local police department at least ten days prior to changing his address. Between 2006 and 2012, the defendant lived in Easthampton and fulfilled his annual reporting requirements. During that time he also reported two changes of address within Easthampton, and as of January, 2012, the defendant and his wife lived together in their home on 165 Pleasant Street, Easthampton (165 Pleasant).
In January, 2012, the defendant's wife discovered that he had impregnated another woman. The defendant's wife testified that she told him that she wanted him to leave her alone for a while. The defendant packed some clothing and departed the home, leaving behind his personal belongings including important paperwork, furniture, and automobile racing memorabilia. The defendant's wife testified that she believed the defendant left 165 Pleasant on a long-haul trucking trip and that he would return to the home.
The following exchange occurred on redirect examination:
Prosecutor: “Now you testified on cross-examination that the idea was that he was going to come back to 165 Pleasant Street, correct?”
Defendant's wife: “Yes.”
Prosecutor: “The idea was that he was, you were, he was going to live there again?”
Defendant's wife: “Yes.”
The defendant and his wife did not communicate in the months following his departure from 165 Pleasant. She testified that it was not uncommon for the defendant's trucking trips to span several months, but they had never gone an entire month without speaking. After receiving notice that 165 Pleasant had been foreclosed on, in April, 2012, the defendant's wife vacated the home by May 4, 2012, in exchange for $2,000. The defendant's wife testified that she did not tell the defendant about the foreclosure or her decision to leave the home.
In May, 2012, the Sex Offender Registry Board (SORB) notified Sergeant Bruce Nicol, the police officer in charge of handling sex offender registration in Easthampton, that it had sent a letter to 165 Pleasant, but that letter was returned as undeliverable. Sergeant Nicol visited the home, saw it was vacant, and attempted to contact the defendant by telephone. He called and left three voice messages at a telephone number he found in the Easthampton police department computer system linked to the defendant's name and address. This number, however, was not the number the defendant had provided in his annual sex offender registration form. Following his unsuccessful attempts to contact the defendant, on May 31, 2012, Sergeant Nicol placed the defendant “in violation” of his registration requirements and applied for a warrant. The defendant was subsequently indicted for failing to give notice of his change of his address on or about May 31, 2012.
The defendant had previously met with Sergeant Nicol when he verified his sex offender registration on December 30, 2010, and January 6, 2012.
In August, 2012, the defendant contacted Sergeant Nicol and informed him that he had moved to Connecticut. Sergeant Nicol told the defendant that he needed to provide his new address to the police department in writing. Sergeant Nicol received a letter listing the defendant's Connecticut address in September, 2012. There was also testimony from the defendant's girl friend that he only discovered that 165 Pleasant was vacant when he returned to the home in August, after completing his trucking job.
Based on the foregoing, viewing the record in the light most favorable to the Commonwealth, we conclude that there was insufficient evidence to establish that the defendant knowingly violated his reporting requirements on or about May 31, 2012. We recognize that the jury were not required to credit the defendant's wife's testimony that he left 165 Pleasant on a long-haul trucking trip, and that she expected him to return. Nevertheless, the Commonwealth failed to introduce evidence to controvert that testimony or introduce any evidence concerning the defendant's whereabouts, whether he knowingly changed his address during the relevant time period, or whether he knew that his wife left 165 Pleasant. The defendant's undisputed absence from the home, without more, is insufficient to establish that he knowingly changed his address at the relevant time. See Commonwealth v. Rosado, 450 Mass. 657, 661–662 (2008) (“[T]he defendant's absence from the Inn might have been due to his inability to secure a bed rather than a deliberate choice”).
Because there was insufficient evidence to convict the defendant, we need not reach the issue whether the defendant was given proper notice of his reporting requirements.
Most importantly, the defendant's later change of address in August, 2012, does not establish that he failed to fulfil his reporting requirements “on or about May 31, 2012.” See Ramirez, 69 Mass.App.Ct. at 14–15 (rejecting Commonwealth's continuing offense theory where Commonwealth did not pursue this theory at trial and a specific offense date was provided in complaint). See also Commonwealth v. Grasso, 375 Mass. 138, 139 (1978) (“[A] crime must be proved as charged and must be charged as proved”). Accordingly, we conclude that the evidence presented at trial was insufficient to establish the defendant's knowing violation of G.L. c. 6, § 178H(a ), on or about May 31, 2012.
Judgment reversed.
Verdict set aside.
Judgment for defendant.