Opinion
14-P-1822
02-25-2016
COMMONWEALTH v. STEVEN MILLER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Central Division of the Boston Municipal Court Department, the defendant was convicted of failing to register as a sex offender, a violation of G. L. c. 6, § 178H. On appeal, he argues that the judge erred when she declined to instruct the jury as the defendant requested. He also claims the evidence was insufficient to prove beyond a reasonable doubt that he knowingly failed to register as a sex offender. We affirm.
Factual background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant, Steven Miller, was convicted of a sex offense in Superior Court in 1997. As a result of that conviction, he was required to register every thirty days in person at the Boston police department (BPD).
The defendant stipulated to the conviction and resulting registration requirement.
BPD's sex offender registry information (SORI) unit maintains a computerized database which contains a profile for each sex offender. The profile includes the registrant's name, photograph, physical description, date of birth, sex offender number, demographic information, and a list of past registrations and violations. A redacted printout of the defendant's profile was admitted as an exhibit at trial. Also in evidence are two of the defendant's previous registration forms and two registration receipts. Based in large part on these documents, an officer of the BPD SORI unit, who did not know the defendant, testified that the defendant registered in person on October 24, 2012, and received a registration receipt directing him to return on December 4, 2012. The defendant failed to register on December 4, 2012. He was "placed in violation" status on December 5, 2012.
Among other things, references to the defendant's underlying conviction of aggravated rape and his classification as a level three sex offender were redacted.
Defense counsel stated in his opening that the defendant was homeless and that he simply forgot to register as a sex offender. When the judge declined to instruct the jury as the defendant requested, the defendant decided not to present evidence. In closing, defense counsel argued that the evidence of identification of the defendant was insufficient.
Discussion. 1. Jury instructions. The defendant contends (1) that the judge incorrectly instructed the jury on the element of knowledge, and (2) failed to instruct the jury on the defense of justification. Because the defendant timely objected at trial, "we review to determine if there were error and, if so, whether it was reversible error." Commonwealth v. Simpson, 434 Mass. 570, 587 (2001). "The failure to give a requested jury instruction is reversible error only if the requested instruction is (1) substantially correct, (2) was not substantially covered in the charge given to the jury, and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense." Commonwealth v. Adams, 34 Mass. App. Ct. 516, 519 (1993) (citation omitted).
In order to prove that a defendant knowingly failed to register, the Commonwealth must "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). The Commonwealth's "proof [of the defendant's knowledge] must be specific to [the] defendant . . . [and not] the general population or some subset thereof." Ibid.
Relying on Commonwealth v. Becker, 71 Mass. App. Ct. 81, 89 (2008), the defendant argues that the judge erred by not instructing the jury that the defendant's "knowing failure to register must be the product of a conscious design, intent or plan to not register, with awareness of the probable consequences." The defendant contends that Becker expanded the knowledge element to require the Commonwealth to prove that the defendant's "failure to register must have been a deliberate choice to constitute a violation of G. L. c. 6, § 178H." We disagree.
The defendant proposed that the judge instruct the jury that "[a] knowing failure to register must be the product of a conscious design, intent or plan to not register, with awareness of the probable consequences. Put another way, failure to register must have been a deliberate choice to constitute a violation of G. L. c. 6, § 178H."
In Becker, we determined that written and oral notice of the duty to register is sufficient to establish the element of knowledge. Id. at 88-89. We rejected the defendant's argument that his failure to register was not knowing because he believed he was exempt from the registration requirement. Id. at 89. Our decision confirmed that the knowledge element only requires proof that the defendant had actual notice of his duty to register. Here, using model jury instructions, the judge accurately instructed the jury on this actual notice requirement. Nothing more was required.
The judge charged the jury that the Commonwealth must prove that "the defendant knew that he was required to register with the sex offender registry . . . [and] that the defendant failed to register as required." The judge further instructed the jury that "the Commonwealth must prove beyond a reasonable doubt that the defendant had actual notice of his obligation to register. The Commonwealth is not required to prove that notice of that obligation was provided in any particular way. But it must prove that the defendant knew of his obligation to register."
The defendant further contends that the judge erred by refusing to instruct the jury that his homelessness could justify his failure to register or rebut evidence that he knowingly failed to register. In support of his argument, he relies on Commonwealth v. Rosado, 450 Mass. 657, 661-663 (2008), in which the Supreme Judicial Court recognized the practical constraints homelessness poses on a sex offender's ability to comply with registration requirements. The court held that when a homeless defendant's lodging is dependent upon a lottery system at a local homeless shelter, "it would be almost impossible to provide ten days' notice" of a change of address. Id. at 663. Therefore, since a statute should not be interpreted to "produce an illogical result," ibid., quoting from ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 603 (2000), the court concluded that there was insufficient evidence that the defendant knowingly failed to timely report a change of address. However, the court made clear that it was "not asserting that all homeless sex offenders are automatically exempt from complying" with their statutory registration requirements. Rosado, supra.
The defendant proposed several jury instructions regarding his homelessness and his ability to present evidence to justify his failure to register: "5. Where a defendant's inability to comply with a condition of his release is 'no fault of his own,' he may not be held liable for deliberately violating such conditions. . . . 8. Moreover, it is recognized that homeless persons face different constraints than non-homeless persons. . . . 9. Accordingly, a defendant may present a trial defense that he simply forgot to attend his registration appointment, misunderstood his registration obligations, or that his alleged failure to register was not otherwise the product of deliberate choice, a conscious design, intent or plan to not register, with awareness of the probable consequences."
This case is distinguishable from Rosado. The defendant here was not charged with failing to report a change of address. Rather, he was charged with failing to register after having received actual notice of the time and place of the required registration. In these circumstances, particularly where the defendant offered no evidentiary link between his homelessness and his failure to register, the judge's rejection of the defendant's proposed instructions was not error.
2. Sufficiency of the evidence. Finally, the defendant argues that the evidence was insufficient to prove that he was the "Steven Miller," who knowingly failed to register on December 4, 2012. We find the argument unpersuasive. First, the jury had the SORI profile of Steven Miller which, among other things, contained his photograph, date of birth, and physical description. The jury could have compared that evidence to the defendant and reasonably inferred beyond a reasonable doubt that they were one and the same. Second, the jury heard evidence that the defendant complied with his statutory registration requirements on two occasions prior to the date of offense. Specifically, the Commonwealth introduced a registration confirmation form that showed that the defendant registered in person on September 14, 2012. His next registration date of October 24, 2012, was handwritten at the top of the confirmation form. The defendant appeared as directed at the BPD on October 24, 2012. At that time he was provided with another registration confirmation form which, again by handwritten notation, directed him to appear for his next registration on December 4, 2012, at 8:30 A.M. This was direct evidence of notice. See Commonwealth v. Scipione, 69 Mass. App. Ct. 906, 907 (2007) (fair to infer that defendant was aware of registration process and his duty to register as sex offender when he voluntarily registered twice before). Bearing this principle in mind, and viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. at 676-677, the jury could reasonably have inferred beyond a reasonable doubt that the defendant knew of his obligation to register as a sex offender on December 4, 2012, and failed to do so.
Judgment affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 25, 2016.