Opinion
No. 1 CA-CR 13-0460
06-17-2014
STATE OF ARIZONA, Appellee, v. EARL DEWAYNE CHRISTIAN, Appellant.
Arizona Attorney General's Office, Phoenix By Andrew Reilly Counsel for Appellee Mohave County Legal Defender's Office, Kingman By Diane S. McCoy Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Trial Court in Mohave County
No. S8015CR201200449
The Honorable Steven F. Conn, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Andrew Reilly
Counsel for Appellee
Mohave County Legal Defender's Office, Kingman
By Diane S. McCoy
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Donn Kessler joined. JONES, Judge:
¶1 Earl Dewayne Christian appeals convictions and sentences on two counts of failing to comply with sex-offender registration requirements by failing to provide online identifiers and by failing to give notice of a change of residence, both class 4 felonies. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Christian was convicted in 2009 of attempted molestation of a child, a class 3 felony and dangerous crime against children. He was placed on lifetime probation, ordered to register as a sex offender, and required to wear a GPS monitor. Christian confirmed in writing that he understood he would be required to register as a sex offender and update his registration, including his residence and any online identifiers, for the remainder of his life. Christian filed periodic updates with the Mohave County Sheriff's Office as required by statute. Christian provided the last update in January 2012.
¶3 In March 2012, Christian told his probation officer he lived at Gold Canyon Court in Kingman, an address that did not correspond to the residential address on the January 2012, sex-offender registration form filed with the sheriff's office. Evidence at trial indicated Christian had been living with his ex-wife at the Gold Canyon Court residence since January 2012. When arrested for failing to update his residence information, it was also discovered that Christian was using online identifiers and profiles on social networking sites on two cell phones, which he had not registered with the sheriff's office as required.
¶4 Christian admitted at trial he was a convicted felon, was on probation, and had not updated his residential address on his sex-offender registration form. He testified his probation officer had told him he could move and did not have to register the new residence. The probation officer denied, however, telling him he did not have to register when he moved; testifying instead that she had told him he did not need to update his registration when he spent a couple of nights at another residence. Christian acknowledged, moreover, that he was required to inform the sex-offender registration specialist at the sheriff's office of any new residences, but explained it "didn't really cross [his] mind" to do so, because his probation officer was the person supervising him. He testified he was unaware he was required to disclose any social network sites he accessed, but acknowledged he had accessed Facebook and other sites.
¶5 The jury convicted Christian of the charged offenses and he was sentenced to four and one-half years in prison on each conviction; those sentences to be served concurrently with each other and consecutive to a five-year term for violating his probation on the attempted molestation conviction. Christian filed a timely notice of appeal, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(2), 13-4031, and 13-4033(A).
Absent material revisions after the relevant dates, we cite the current version of the statutes and rules unless otherwise indicated.
DISCUSSION
I. Violation of Confrontation Rights by Admission of GPS Records
¶6 Christian argues the trial court erred in overruling his confrontation objection to admission of an exhibit which detailed Christian's location and corresponding address for the month prior to his arrest by using minute-by-minute global positioning system ("GPS") data. Christian objected to the absence of testimony from a representative of the private monitoring company providing the downloaded data. The trial court overruled the confrontation objection reasoning the document was not "necessarily prepared for possible use in court."
¶7 We review the trial court's decision to admit evidence over a Confrontation Clause objection de novo. See State v. Smith, 215 Ariz. 221, 228 ¶ 20, 159 P.3d 531, 538 (2007). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held the Confrontation Clause of the Sixth Amendment prohibits admission of an out-of-court testimonial statement made by a declarant who does not testify at trial, unless the proponent can show that the author of the statement is unavailable to testify, and that the defendant had a prior opportunity to cross-examine her. Id. at 59, 68.
¶8 On the extremely limited record before us, this Court concludes the 288-page exhibit comprising the minute-by-minute record of GPS data generated from Christian's ankle monitor and downloaded by the probation officer was not testimonial hearsay, and accordingly its admission did not violate Christian's confrontation rights. Records created for the purpose of administering the entity's affairs "and not for the purpose of establishing or proving some fact at trial" are not considered "testimonial." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009); see also State v. Medina, 232 Ariz. 391, 406, ¶¶ 59, 61, 306 P.3d 48, 63 (2013) (holding that an autopsy report was not testimonial "because its purpose was not primarily to accuse a specified individual," it did not have the "solemnity of an affidavit," and it was not the product of "any sort of formalized dialogue resembling custodial interrogation"); State v. Shivers, 230 Ariz. 91, 94, 96, ¶ 11, ¶ 15, 280 P.3d 635, 638 (2012) (holding a declaration of service of an order of protection was non-testimonial because "it was created primarily for an administrative purpose rather than for a prosecutorial purpose"); State v. King, 213 Ariz. 632, 638, ¶ 26, 146 P.3d 1274, 1280 (App. 2007) (holding MVD records and evidence of prior convictions were not testimonial under Crawford "[b]ecause the public records at issue here are akin to business records, and are prepared and maintained regardless of their possible use in a criminal prosecution").
¶9 Moreover, even if the GPS printout could be construed as testimonial hearsay that implicated Christian's confrontation rights, any error in admitting the exhibit was harmless. To demonstrate that an objected-to error is harmless, the State must "prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence." State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005). In that, Christian, a girlfriend, his ex-wife, and his former probation officer all testified Christian resided at the Gold Canyon Court residence of his ex-wife since January 2012. The 288-page exhibit showing the times Christian spent at the Gold Canyon Court residence and other residences or addresses was simply cumulative of the undisputed testimony. On this record, any error in admitting the exhibit was harmless. See id.
II. Failure to Instruct Jury on Knowledge as Element of Offenses
¶10 Christian next argues the trial court erred, violating his due process rights, by failing to instruct the jury that the state was required to prove, as an element of the charged offenses, that he, as a sex offender, knew or should have known he was required to update his residential address and online identifiers. Christian had acknowledged in settling the jury instructions that "there doesn't have to be a mental state" for failing to register updates under the applicable statutory provision, A.R.S. § 13-3822, but relied upon State v. Garcia, 156 Ariz. 381, 752 P.2d 34 (App. 1987), for the proposition that lack of knowledge "always" constitutes a defense.
¶11 The trial court concluded that the offense of failing to update sex-offender registration information was a strict liability offense under the plain language of the governing statute, A.R.S. § 13-3822. The trial court further found inapplicable this Court's holding in Garcia that in order to be convicted of the offense of failing to register as a sex offender under A.R.S. § 13-3821, a defendant has to have "actual knowledge of the need to register" or "proof of the probability that he had knowledge of the requirement." See Garcia, 156 Ariz. at 384, 752 P.2d at 37. The trial court noted Christian was not claiming he did not know of the requirement to update his registration with a change of residence, but was, instead, claiming his probation officer told him he did not have to. Over defense counsel's objection, the trial court also instructed the jury pursuant to A.R.S. § 13-204 that neither mistake of law nor mistake of fact relieved Christian of criminal responsibility.
¶12 We review the adequacy of jury instructions in their entirety to determine if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000). The instructions must not mislead the jury. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). In construing a statute, the court first considers the statute's language because it is the best and most reliable evidence of the legislative intent. State v. Jenkins, 193 Ariz. 115, 119, ¶ 11, 970 P.2d 947, 951 (App. 1998). "We will refrain from construing a statute to require something not within the plain intent of the legislature as expressed by the language of the statute." State v. Affordable Bail Bonds, 198 Ariz. 34, 37, ¶ 13, 6 P.3d 339, 342 (App. 2000).
¶13 We conclude that the court did not err in declining to include a mens rea requirement in its instruction on the elements of the charged offenses. Count 1 charged Christian with changing online identifiers without properly notifying the sheriff, a violation of A.R.S. § 13-3822(C), which provides that "[a] person who is required to register pursuant to this article shall notify the sheriff either in person or electronically within seventy-two hours, excluding weekends and legal holidays, after a person makes any change to any required online identifier, and before any use of a changed or new required online identifier to communicate on the internet." A.R.S. § 13-3822(C). Count 2 charged Christian with changing his residence without notifying the sheriff in violation of A.R.S. § 13-3822(A), which provides, in pertinent part, that "[w]ithin seventy-two hours, excluding weekends and legal holidays, after moving from the person's residence within a county . . . a person who is required to register under this article shall inform the sheriff in person and in writing of the person's new residence . . . ." Because the legislature did not expressly prescribe a culpable mental state for commission of either of these offenses, no culpable mental state is required, and each offense is a strict liability offense. See A.R.S. § 13-3822(A), (C); A.R.S. § 13-202(b) ("If a statute defining an offense does not expressly prescribe a culpable mental state that is sufficient for commission of the offense, no culpable mental state is required for the commission of such offense, and the offense is one of strict liability unless the proscribed conduct necessarily involves a culpable mental state."). The trial court, accordingly, did not err in giving the jury the standard instruction on this offense.
¶14 We decline to extend the holding in Garcia, that knowledge is an element of the offense of failing to register under A.R.S. § 13-3821, to apply to the offense of failing to update sex-offender registration information under A.R.S. § 13-3822. In Garcia, this Court reasoned that the duty to register as a sex offender under A.R.S. § 13-3821 arises only from statute, and as the statutory provision could result in punishment of persons unaware of their obligation, due process requires that the state establish the defendant knew of the duty before he can be convicted. See Garcia, 156 Ariz. at 382, 383, 752 P.2d at 35-36 (citing Lambert v. California, 355 U.S. 225, 229 (1957) (holding that the Due Process Clause of the Fourteenth Amendment requires "actual knowledge of the duty to register or proof of the probability of such knowledge" before an ex-felon can be convicted of failure to register presence in municipality)).
¶15 A.R.S. § 13-3822 does not implicate the situation addressed in Garcia, as in order to violate the statute, the registrant must have already completed his initial registration form pursuant to A.R.S. § 13-3821, at which time the registrant is informed in writing of the requirement to notify the sheriff's office of any changes in residence and online identifiers. At the time of initial registration and at every update thereafter, Christian, in fact, signed a form acknowledging he understood these requirements, and initialed each provision requiring prompt notification of changes. In short, a defendant's failure to update his sex-offender registration form pursuant to A.R.S. § 13-3822 arises under circumstances by which the sex-offender has already been made aware of the statutory requirement to amend his registration upon changing residences and, accordingly, due process does not require that the statute be construed as including, or the jury instructed they must find, a mens rea of knowledge. Cf. State v. Morgan, 167 Ariz. 463, 465, 808 P.2d 348, 350 (App. 1991) (holding that the state was not required to prove that defendant knew his failure to return rental property was a crime, because the duty did not arise solely from statute).
¶16 For the foregoing reasons, we conclude the trial court did not err in failing to instruct the jury that to convict Christian of the charged offenses, the state must prove he knew or should have known of the statutory requirements.
III. Sufficiency of Evidence on Failure to Update Online Identifiers
¶17 Christian argues insufficient evidence supported his conviction for failure to comply with the requirement of his updating his sex-offender registration within seventy-two hours of making changes to online identifiers, and before using new online identifiers. We review de novo the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶15, 250 P.3d 1188, 1191 (2011). We view the facts in the light most favorable to upholding the jury's verdict, and resolve all conflicts in the evidence against defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). We do not distinguish between direct and circumstantial evidence. See State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993).
¶18 We conclude the evidence was sufficient to support the conviction. A.R.S. § 13-3822(C) provides that a person required to register as a sex offender shall notify the sheriff within seventy-two hours "after a person makes any change to any required online identifier, and before any use of a changed or new required online identifier to communicate on the internet." "Required online identifier" is defined as "any electronic e-mail address information or instant message, chat, social networking or other similar internet communication name, but does not include a social security number, date of birth or pin number." A.R.S. § 13-3822(D)(2). The sex-offender registration specialist for the Mohave County Sheriff's Office testified that in examining Christian's smart phone, he discovered several online identifiers and profiles on social network sites that Christian had not disclosed. Christian said at the time that "he had a reason for having" these unregistered online identifiers, and admitted using the social network sites a few times. The circumstantial evidence also demonstrated Christian had personally created the online identifiers and social network profiles found on the cell phones he used. The sex-offender registration specialist also testified the numerous online identifiers and social network profiles were associated with a password derivative of Christian's name. On this record, the evidence was sufficient to convict Christian of failing to notify the sheriff's office of changes to online identifiers, and of not providing the necessary notification before using the online identifiers.
IV. Failure to Submit Probation Finding to Jury
¶19 Christian argues the trial court erred in sentencing him under A.R.S. § 13-708(C), in the absence of a jury finding that he was on probation for a felony offense at the time he committed this offense, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), as interpreted by Alleyne v. United States, 133 S. Ct. 2151 (2013). Over defense counsel's general objection, the sentencing judge took judicial notice that Christian was on probation at the time of the instant offenses, noting he was the judge who placed defendant on probation and presided over his sentencing. As a result, pursuant to A.R.S. § 13-708(C), the judge imposed a presumptive sentence. We review sentencing issues involving constitutional law de novo. State v. Urquidez, 213 Ariz. 50, 53, ¶ 11, 138 P.3d 1177, 1180 (App. 2006).
¶20 In Alleyne, the United States Supreme Court held that any fact that increases the mandatory minimum sentence is an element that must be submitted to a jury and found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2158, 2163. Because a finding of probation status increases a minimum sentence pursuant to A.R.S. § 13-708(C), the determination of probation status must be submitted to the jury and found beyond a reasonable doubt. See State v. Large, 234 Ariz. 274, ¶ 1, 321 P.3d 439, 441 (App. 2014) (holding the defendant was entitled to have a jury determine whether he was on parole for purposes of increasing the statutory minimum sentence under A.R.S. § 13-708(A), but that the error was harmless).
¶21 Even if we construe defense counsel's generalized objection as sufficient to preserve the claim of error he raises on appeal, any such error was harmless. To demonstrate that an objected-to error was harmless, the State must "prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence." Henderson, 210 Ariz. at 567, ¶ 18, 115 P.3d at 607. It was not disputed that Christian was on probation at the time of these offenses. Christian conceded as much in his own testimony by acknowledging he had been placed on probation in 2009, and was supervised by a probation officer until the date of his arrest on March 2, 2012. Nor did Christian contest the substantive finding at sentencing. Finally, he does not argue otherwise on appeal. Given these facts, no reasonable jury could conclude Christian was not on parole at the time he failed to provide online identifiers or give notice of a change of residence. Under harmless error review, we conclude any error in failing to obtain a jury finding on this issue did not contribute to or affect the sentence, and accordingly was harmless. See Large, 234 Ariz. at ¶ 19, 321 P.3d at 445.
CONCLUSION
¶22 For the foregoing reasons, we affirm Christian's convictions and sentences.