Summary
holding a single exhibit and the minutes of testimony failed to establish substantial evidence of the requirement to register as a sex offender
Summary of this case from State v. MixonOpinion
No. 4-497 / 03-1449.
September 9, 2004.
Appeal from the Iowa District Court for Buchanan County, James C. Bauch (motion to dismiss), Stephen C. Clarke (trial), and Todd A. Geer (sentencing), Judges.
Douglas McMurrin appeals his conviction and sentence for failure to register as a sex offender. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, and Allan Vander Hart, County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
The State charged Douglas McMurrin with failure to register as a sex offender. Iowa Code §§ 692A.3(2), 692A.7(1) (2001). McMurrin agreed to a bench trial on the minutes of testimony. The record also included a single exhibit proffered by the State. After considering this evidence, the district court found McMurrin guilty of the offense and imposed sentence.
On appeal, McMurrin challenges the sufficiency of the evidence supporting the court's verdict. He also raises an ineffective assistance of counsel claim.
I. Sufficiency of the Evidence
Iowa Code section 692A.3(2) provides in part that "[a] person required to register under this chapter shall, within five days of changing residence within a county in this state . . . notify the sheriff of the county in which the person is registered of the change of address, name, and any changes in the person's telephone number in writing on a form provided by the sheriff." McMurrin contends that the minutes of testimony fail to show he was "required to register" as a sex offender. The State counters that "this element was satisfied through legitimate inferences and assumptions from the stipulated facts."
In reviewing a challenge to the sufficiency of the evidence, we are obliged to examine the record in the light most favorable to the State. State v. Adams, 554 N.W.2d 686, 691 (Iowa 1996). The court's verdict is binding on us if it is supported by substantial evidence. Id. Although we are required to consider inferences arising from the evidence to support the verdict, the evidence must at least raise a fair inference of guilt as to each essential element of the offense. State v. Lamb, 573 N.W.2d 267, 268 (Iowa 1998). "Inferencesthat do no more `than create speculation, suspicion, or conjecture' do not create a fair inference of guilt." State v. Truesdell, 679 N.W.2d 611, 618 (Iowa 2004) (citation omitted).
We agree with McMurrin that the record does not contain substantial evidence showing he was "required" to register as a sex offender. Specifically, as McMurrin points out, neither the minutes of testimony nor the single exhibit introduced by the State makes any reference to "when and where his conviction occurred, whether he was still required to register, and what crime he committed to have compelled the requirement in the first place."
What the minutes do establish is that McMurrin registered as a sex offender with the Buchanan County Sheriff on July 21, 1995, November 21, 1996, and April 1, 1999. His last reported address was 151 Mill Street, Independence, Iowa. In the fall of 2001, an officer assigned the task of overseeing compliance with the sex offender registry law in Buchanan County, learned that McMurrin was living at 705 2nd Street NE, Independence, Iowa and had not registered a change of address with the sheriff. The officer went to 705 2nd Street NE and explained to McMurrin that he "had five days in which to register a change of address." He "directed McMurrin to file a change of address form with the sheriff." Several days later, the officer determined that McMurrin had failed to register a change of address. A day later, another officer went to 705 2nd Street NE to pick up McMurrin on the charge of failure to register. He located McMurrin in his bathrobe at 705 2nd Street NE. This was the address of McMurrin's ex-wife. She had allowed McMurrin to move into her home after he was kicked out of his girlfriend's home in Waterloo. She told him he needed to register at her address-705 2nd Street NE in Independence. McMurrin advised her he would.
The State introduced the April 1, 1999 registration record as an exhibit.
From this record, we know that 1) McMurrin registered as a sex offender in the past, 2) he changed addresses, and 3) he and his ex-wife concurred in the Buchanan County Sheriff's belief that he was required to register. We do not know whether McMurrin was in fact required to register. See Iowa Code § 692A.2 (1) (stating registration requirement is triggered by conviction for certain offenses); see also id. § 692A.1(1), (4), (6), (8), (9), (10) (defining offenses described in section 692A.2(1)); id. § 692A.1(2) (defining "convicted" or "conviction"). Specifically, the State did not introduce any evidence of the conviction that it believed triggered the registration requirement or when, if at all, the requirement ended. See id. § 692A.2 (requiring person to register either for ten years or for life).
The State contends a reasonable fact finder could "assume" from McMurrin's previous registrations that he was required to register, and "infer" from the fact his first registration in Buchanan County was in 1995 that the registration requirement was ongoing. These prior registrations tell us only that McMurrin registered with the Buchanan County Sheriff. They do not tell us what kind of registration obligation McMurrin was under and whether that obligation still existed. See Iowa Code § 692A.3(1) (requiring registration within five days of establishing residence in this state), 692A.3(3) (requiring registration within five days of establishing residence in new county). To infer what the State asks us to infer from these prior registrations would amount to speculation concerning an essential element of the offense. See Truesdell, 679 N.W.2d at 618.
The Iowa Supreme Court's opinion in State v. Tippett, 624 N.W.2d 176, 179 (Iowa 2001), is instructive. There, as here, the Court was faced with a challenge to the sufficiency of the evidence supporting a conviction for failure to register as a sex offender. The State argued that a reasonable fact finder could infer from the fact the defendant moved from place to place that he had knowledge he was required to register as a sex offender. Id. The Court rejected this argument, stating, "The State cannot circumstantially prove the existence of a fact by relying on a circumstance that is itself dependent upon the fact's existence." Id.
The same is true here. The State would like to prove that McMurrin was required to register as a sex offender by establishing that he did in fact register. This would permit a conviction based on the defendant's belief of the law rather than the actual requirements of the law. The actual requirements are 1) a conviction for a specified sexual offense, 2) the date of the conviction, and 3) the number of convictions for this type of offense. Iowa Code § 692A.2. The record is silent on these requirements. We therefore conclude that the State did not present substantial evidence to support McMurrin's conviction for failure to register as a sex offender.
II. Disposition
We reverse and remand for entry of judgment of acquittal. In light of our disposition, we need not address McMurrin's ineffective-assistance-of-counsel claim.