State v. Kinney

• Decision Date: 03 April 2018
• Docket Number: Docket No. 44752
• Citation: 417 P.3d 989,163 Idaho 663
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert Johnson KINNEY, Defendant-Appellant.

163 Idaho 663

417 P.3d 989

STATE of Idaho, Plaintiff-Respondent,

v.Robert Johnson KINNEY, Defendant-Appellant.

Docket No. 44752

Court of Appeals of Idaho.

Filed: April 3, 2018

Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney General, Boise, for respondent.

HUSKEY, Judge

Robert Johnson Kinney appeals from his judgment of conviction after a jury found him guilty of sexual battery of a minor. Kinney argues the district court erred when it failed to dismiss the sexual battery charge on proportionality grounds. We affirm the district court's finding that the Idaho's Sex Offender Registration Act does not constitute cruel and unusual punishment, and therefore affirm the district court's order denying Kinney's motion to dismiss and judgment of conviction.

I.FACTUAL AND PROCEDURAL BACKGROUND

Kinney was arrested and charged with felony sexual battery of a minor, Idaho Code § 18-1508A. Kinney filed three motions to dismiss: (1) a motion to dismiss on equal protection grounds; (2) a motion to dismiss on substantive due process grounds; and (3) a motion to dismiss on proportionality grounds. The district court held a hearing on Kinney's three motions. After hearing arguments from both parties, the district court entered a memorandum decision and order which denied all three motions. On appeal, Kinney does not challenge the district court's denial of his motion to dismiss on equal protection grounds or his motion to dismiss on substantive due process grounds. With regard to Kinney's motion to dismiss on proportionality grounds, the district court relied on two sources: (1) the legislative intent within Idaho's Sex Offender Registration Act; and (2) Idaho case law, particularly the Idaho Supreme Court decision in State v. Joslin , 145 Idaho 75, 175 P.3d 764 (2007). The district court concluded: "The doctrine of stare decisis leads this Court to hold that Idaho's Sex Offender Registry is remedial rather than punitive. Therefore, Defendant's argument that the State's Sex Offender Registry requirement violates the Eighth Amendment's prohibition on cruel and unusual punishment must fail."

The case proceeded to trial where the jury found Kinney guilty of sexual battery of a minor. Prior to sentencing, Kinney filed a motion to reconsider the motion to dismiss on proportionality grounds. Kinney argued there was a possibility that a motion to dismiss on constitutional grounds is not ripe for adjudication until there is a conviction. Kinney also argued Idaho should adopt the reasoning of Does #1-5 v. Snyder , 834 F.3d 696 (6th Cir. 2016), an opinion which determined the Michigan sex-offender registry law was unconstitutional.

Before ruling on the motion to reconsider, the district court imposed a unified sentence of seven years, with two years determinate, and retained jurisdiction. After sentencing, the district court conducted a hearing and denied Kinney's motion to reconsider. Kinney timely appeals.

II.STANDARD OF REVIEW

Where the constitutionality of a statute is challenged, we review the district court's decision de novo. State v. Cobb , 132 Idaho 195, 197, 969 P.2d 244, 246 (1998) ; State v. Martin , 148 Idaho 31, 34, 218 P.3d 10, 13 (Ct. App. 2009). The party attacking a statute on constitutional grounds bears the burden of proof and must overcome a strong presumption of validity. State v. Korsen , 138 Idaho 706, 711, 69 P.3d 126, 131 (2003), abrogated on other grounds by Evans v. Michigan , 568 U.S. 313, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013) ; State v. Cook , 146 Idaho 261, 262, 192 P.3d 1085, 1086 (Ct. App. 2008). Appellate courts are obligated to seek an interpretation of a statute that upholds its constitutionality. State v. Manzanares , 152 Idaho 410, 418, 272 P.3d 382, 390 (2012) ; Martin , 148 Idaho at 34, 218 P.3d at 13.

III.ANALYSIS

Kinney argues the district court erred when it failed to dismiss the sexual battery charge on proportionality grounds. Kinney argues that while registering pursuant to the original version of Idaho's Sex Offender Registration Act may not have been punishment, changes to the statute have created more onerous and more punitive registration requirements, thus resulting in punishment. Therefore, Kinney asserts that requiring him to register as a sex offender pursuant to Idaho's Sex Offender Registration Act is cruel and unusual punishment in violation of the Idaho Constitution and the United States Constitution.¹ The State asserts that Idaho's Sex Offender Registration Act is not a punishment and is constitutional according to the controlling Idaho case law.

A. Idaho's Sex Offender Registration Notification and Community Right-to-Know Act

The Idaho legislature enacted the Sex Offender Registration Notification and Community Right-to-Know Act ("Sexual Offender Registration Act" or "SORA") in 1993. The legislation's Statement of Purpose explained:

The proposed legislation will require convicted sex offenders to register with local law enforcement in the county of their residence during probation and parole and for a period of ten years after discharge from probation and parole. Registration information would be sent by local law enforcement agencies to the Department of Law Enforcement to create a central statewide sex offender registry. This information will be available to law enforcement agencies. Name of the offender and the criminal conviction information is available to the public upon written request provided they supply the person's name, date of birth and social security number.

S.B. 1002, 52nd Leg., 1st Sess., Statement of Purpose (Idaho 1993). The enacted legislation also contained the following explanation of the legislature's findings, which Idaho courts have relied on in interpreting the purpose of SORA:

The legislature finds that sex offenders present a high risk of reoffense and that efforts of law enforcement agencies to protect their communities, conduct investigations and quickly apprehend offenders who commit sex offenses are impaired by the lack of information available about individuals who have pled guilty to or have been found guilty of sex offenses who live within their jurisdiction. Therefore, this state's policy is to assist efforts of local law enforcement agencies to protect their communities by requiring sex offenders to register with local law enforcement agencies as provided in this chapter.

I.C. § 18-8302 (1993).

In 1998, as a result of new federal legislation, Idaho repealed its 1993 version of SORA and passed a new Sex Offender Registration Act that conformed to the federal requirements of the 1994 Jacob Wetterling Act² and the Megan's Law³ amendment.⁴ I.C. §§ 18-8301 through 18-8326 (1998). The 1998 statement of purpose explained: "This legislation overhauls the sexual offender registry to comply with federal guidelines and to provide easier access by the public to registry information." S.B. 1297, 54th Leg., 2nd Sess., Statement of Purpose (Idaho 1998). The findings, found at I.C. § 18-8302, were also updated in 1998:

The legislature finds that sexual offenders present a significant risk of reoffense and that efforts of law enforcement agencies to protect their communities, conduct investigations and quickly apprehend offenders who commit sexual offenses are impaired by the lack of current information available about individuals who have been convicted of sexual offenses who live within their jurisdiction. The legislature further finds that providing public access to certain information about convicted sexual offenders assists parents in the protection of their children. Such access further provides a means for organizations that work with youth or other vulnerable populations to prevent sexual offenders from threatening those served by the organizations. Finally, public access assists the community in being observant of convicted sexual offenders in order to prevent them from recommitting sexual crimes. Therefore, this state's policy is to assist efforts of local law enforcement agencies to protect communities by requiring sexual offenders to register with local law enforcement agencies and to make certain information about sexual offenders available to the public as provided in this chapter.

I.C. § 18-8302 (1998).⁵

Idaho's SORA applies to any person who committed one of the statutorily designated crimes in Idaho, as well as any person who entered Idaho after having been convicted of a substantially similar crime in another state. I.C. § 18-8304. Sexual battery of a minor, the crime Kinney is convicted of, is one of the statutorily designated crimes. See I.C. § 18-8304.

Idaho's SORA has been amended several times since 1998. Four code sections and their respective amendments are relevant to Kinney's appeal.

1. Idaho Code § 18-8309

The 1998 version of I.C. § 18-8309 required an offender to provide written notice if his address or name changed. According to the 1998 version, the offender must provide written notice within five days of the change. In 1999, the time limit to provide notice changed from five days to five working days. The time period of five working days was reduced to two working days in 2006. In 2011, I.C. § 18-8309 was repealed and a new version was added.

The 2011 version of I.C. § 18-8309 imposed four requirements: (1) if an offender changes his name, address, or employment or student status, the offender must appear in person within two working days at the office of the sheriff and notify the sheriff of all changes;⁶ (2) an offender must notify Idaho State Police (ISP) of any lodging lasting seven or more days; (3) an offender must notify ISP if there are changes to vehicle information; and (4) an offender must notify ISP of any changes in "designations used for self-identification or routing in Internet communications or postings or telephonic communications."

2. Idaho Code § 18-8323

Idaho Code §...