Opinion
No. 11–P–547.
2012-07-16
COMMONWEALTH v. Christopher SMITH.
By the Court (MILLS, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bifurcated jury-waived trial, the defendant was convicted of failure to register as a sex offender, second offense, G.L. c. 6, § 178H( a ). He argues that (1) he was not subject to an annual registration requirement in the month of his birth, (2) the judge explicitly failed to consider relevant evidence, and (3) the judge applied an erroneous legal standard for a “knowing” failure to register. We find the first argument unavailing but agree with the second and third.
The Sex Offender Registry Board (board) classified the defendant as a level two sex offender in 2002.
A level two offender is required to annually appear in person at the police department where he lives to verify his registration data. G.L. c. 6, § 178F1/2. By statute, the board is required annually, during the offender's month of birth, to mail a verification form to the offender's last reported address. Ibid. Within five days of receipt, the offender is to sign the form and register in person at the police department where he lives. Ibid. An offender who fails to register is subject to prosecution under G.L. c. 6, § 178H(a), as amended by St.1999, c. 74, § 2, for “knowingly: fail[ing] to register.” The following facts are undisputed. The defendant's date of birth is May 21, 1979. Each May since his classification, the board has mailed him a letter informing of his duty to register in person. The defendant has registered in the past, although he was previously convicted of failure to register on one unspecified occasion. Since 2006, the letter has been sent to his address at 169 Bucknam Street in Everett.
The judge accepted defense counsel's representations that the defendant is required to register due to an adjudication of juvenile delinquency for indecent assault and battery stemming from an incident between the defendant, then twelve years old, and an eleven year old girl.
He registered in Everett in 2006 and 2007, but not in May of 2008. On June 2, 2008, the Everett police department sought a warrant for the defendant's arrest for his failure to register.
The defendant notified the board that he moved to 169 Bucknam Street in November, 2005.
From January 14, 2008, through May 19, 2008, the defendant was held in jail on an unrelated matter. Upon release, a condition of his bail was that he stay away from 169 Bucknam Street. As a result, the defendant did not receive the board's notification letter in May, 2008.
According to the defendant, he became homeless after his May 19, 2008, release and spent his nights outside or in a Dunkin' Donuts. Because he did not receive the board's letter, he forgot to register in May, 2008. He only became aware of his failure to register on June 3, 2008, when his fiancée checked the mail at 169 Bucknam Street and gave him the warrant. He then went directly to Malden District Court.
As a threshold matter, we are not persuaded by the defendant's argument that he was not obligated to register during the month of his birth and instead had until June 5, 2008, to register. See G.L. c. 6, § 178F1/2. Nor do we agree with his contention that because he became homeless upon his release from jail, he was exempt from the annual registration requirement and was instead required to register within forty-five days of his release from jail. To the contrary, in 2008, § 178F1/2 required an offender “who lists a homeless shelter as his residence” to register in person with the local police department every forty-five days. G.L. c. 6, § 178F1/2, as amended by St.2006, c. 303, § 3.
As an individual who was homeless but did not reside at a homeless shelter, “[a]t the very least, the defendant was required to register annually.” Commonwealth v. Scipione, 69 Mass.App.Ct. 906, 907 (2007) (interpreting earlier version of statute prescribing a ninety-day registration period but which was identical in all other respects to the version at issue here). See Commonwealth v. Bolling, 72 Mass.App.Ct. 618, 622–623 (2008).
The statute has since been amended and now provides: “A homeless sex offender shall appear in person at such local police department every 30 days.” G.L. c. 6, § 178F1/2, as amended by St.2010, c. 256, § 41.
Next, the defendant argues that it was error for the judge to find that his lack of receipt of the board's notice was “irrelevant” to whether he acted “knowingly.” In reviewing a judge's decision after a jury-waived trial, we review his evidentiary determinations for an abuse of discretion. Commonwealth v. Doyle, 67 Mass.App.Ct. 846, 861, 863 (2006). The defendant claims that he forgot to register because he did not receive the board's May, 2008, letter and therefore did not act “knowingly.” To convict the defendant of violating G.L. c. 6, § 178H( a ), “the Commonwealth was required to prove that the defendant knew of the requirement that he register but did not do so despite this knowledge.” Commonwealth v. Ramirez, 69 Mass.App.Ct. 9, 12 (2007). Put another way, the Commonwealth must show the defendant's “conscious disregard” of his knowledge of the registration requirement. Ibid. See Commonwealth v. Becker, 71 Mass.App.Ct. 81, 89 (2008), quoting from Commonwealth v. Kirkpatrick, 44 Mass.App.Ct. 355, 356 (1998) (“An act is done ‘knowingly’ if it is the ‘product of conscious design, intent or plan that it be done, and is done with awareness of probable consequences' ”). In his decision, the judge stated, “[t]he statute does not require the [board] to remind an individual of his obligation. That reminder is something that the [board] undertakes entirely on its own. Thus, the fact that the defendant did not receive the letter reminding him ... I regard as irrelevant.” As mentioned above, the board is statutorily mandated to send an annual verification form to offenders in the month of their birth. G.L. c. 6, § 178F1/2. Regardless, even if the board provided annual reminders solely of its own accord, evidence of whether the defendant had received such notification is, while not dispositive, certainly relevant to determining the defendant's state of knowledge.
Finally, the defendant contests the judge's statement of the applicable law. On review, “we scrutinize without deference the legal standard which the judge applied to the facts.” Kendall v. Selvaggio, 413 Mass. 619, 621 (1992). However, in a jury-waived case, we presume that “the judge as trier of fact applies correct legal principles.” Commonwealth v. Colon, 33 Mass.App.Ct. 304, 308 (1992). As the judge in this case conscientiously explained his findings and application of law, we need not apply the familiar presumption.
The judge's decision gives approximately equal time to determinations that the defendant “knew” of his obligation to register and that a “reasonable person” in the defendant's position would have been aware of the obligation to register. Under § 178H( a ), “the Commonwealth cannot meet its burden merely by establishing that the knowledge was available to the defendant.” Ramirez, 69 Mass.App.Ct. at 12. “While the defendant's knowledge may be proven by circumstantial evidence, the proof must be specific to this defendant, rather than to the general population or some subset thereof.” Ibid. We cannot fairly conclude that the judge's stated reliance on evidence showing that a reasonable person would have had knowledge of his obligation to register was nonprejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). We therefore reverse the defendant's conviction.
So ordered.