Supreme Judicial Court February 24, 2012
Facts: In 1998, the defendant plead guilty to sex offenses in Oregon. In 2006, he had been held in custody at the Norfolk County Correctional Center. Upon his release, he signed a form acknowledging that he had been informed of his duty to register and to provide ten-day notice to the board if he planned to move. That day, the defendant filled out his initial sex offender registration form at the Brockton police department. At the time, he check the box indicating that he was a level two sex offender, listed an apartment at 167 Newbury street as his address, and provided a telephone number. He also listed his daughter as his closest living relative and provided that she also lived at 167 Newbury Street.
A detective made several unsuccessful attempts to verify the defendant's contact information by visiting the apartment and call him. When he asked the defendant to provide accurate telephone number and address, the defendant provided him with a new phone number and stated that he resided at the 167 Newbury address. He also said that he stayed somewhere else but refused to provide that address.
Again the detective unsuccessfully tried to telephone the defendant. He also visited the apartment where he met the defendant's daughter and granddaughter. The defendant was not there and the detective testified that it appeared to him the defendant did not live there. When the detective asked the defendant for his other address, the defendant refused again.
The defendant then sent a letter to the board stating, “due to a family situation I have to immediately return to Oregon.” It provided that future correspondence from the board could be sent to him in care of what appeared to be a family member in Oregon. The detective, upon returning to the Newbury Street apartment and finding a tenant who did not know the defendant or his family, applied for an arrest warrant. The defendant was then arrested in Brockton for failure to register.
Procedural History: At trial, the Commonwealth arguing that the defendant had admitted to living elsewhere, and therefore he had the obligation to report his secondary address. The Commonwealth also argued that the defendant also did not list his secondary, out-of-sate address in Oregon. The defendant provided several witnesses, including his daughter who testified that the defendant slept on the couch and that she had showed the detective the duffel bags belonging to the defendant.
The judge found that the defendant knowingly failed to verify registration information. Specifically, that he failed to verify any other residence, or places that he frequented. Although the judge stated that when the defendant sent the letter regarding his move to Oregon, he knew that he had an obligation to provide ten-day notice to the board of his intention to do so. Nevertheless, she did not find him guilty on that ground, only failing to register. The defendant appealed, arguing that there was insufficient evidence to convict him of failing to verify his registration information.
Issue #1: Whether the Commonwealth lacked sufficient evidence to convict the defendant of failing to verify his sex offender registration information?
Yes. Under the statute, in order for the Commonwealth to prove beyond a reasonable doubt that the defendant failed to provide a secondary address, it had to show that the defendant stayed at an address other than the apartment for either fourteen days in a calendar year or for four or more days in a month. The court concluded that no investigation was executed that would have established a second address or the number of days that he stayed there. The defendant's statement that he stayed elsewhere was the only existing evidence that he may have had a secondary address. Furthermore, the court did not believe that the detective's assertion that the defendant provided him with false telephone numbers was evidence of how often the defendant stayed elsewhere.
The court also concluded that although G.L. c. 6, s 178F 1/2 states that a level two sex offender must inform the local police department in person of an intention to move out of state, no form admitted into evidence, including forms signed by the defendant, indicated that only local police department must be informed.
Issue #2: Whether the defendant should face community parole supervision for life (CPCL)?
No. The defendant had argued that the complaint was deficient under art. 12 of the Massachusetts Declaration of Rights because it failed to allege that the defendant was a level two sex offender, and that he had been convicted of one of the requisite offenses that could result in CPSL. The court found that the complaint against the defendant charged a violation of the duty to register, an offense that is not the same as the alleged predicate offense or condition (i.e. the defendant's prior conviction of certain sex offenses or sex offender classification) that could result in CPSL. Therefore, the complaint did not meet the requirements of art. 12.
Judgment: Judgment reversed. (MW)
