Com. v. Becker

• Decision Date: 25 January 2008
• Docket Number: No. 06-P-1425.,06-P-1425.
• Citation: 879 N.E.2d 691,71 Mass. App. Ct. 81
• Parties: COMMONWEALTH v. Alan A. BECKER.
• Court: Appeals Court of Massachusetts

879 N.E.2d 691

71 Mass. App. Ct. 81

COMMONWEALTH v. Alan A. BECKER.

No. 06-P-1425.

Appeals Court of Massachusetts, Berkshire

Argued September 12, 2007.

Decided January 25, 2008.

Janet H. Pumphrey for the defendant.

Marianne Shelvey, Assistant District Attorney, for the Commonwealth.

William C. Newman, Northampton, & Larni Levy, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief.

Andrew S. Crouch, Boston, for John Doe, Sex Offender Registry Board No. 7468 & others, amici curiae, submitted a brief.

Present: CYPHER, KANTROWITZ, & COHEN, JJ.

CYPHER, J.

The defendant, Alan Becker, appeals from his conviction by a District Court jury of failing to register as a sex offender. See G.L. c. 6, § 178H, as amended by St.1999, c. 74, § 2. The underlying offense was a 1995 conviction in New York for sexual abuse in the third degree. The defendant argues that as he does not come within the definition of "sex offender" in the sex offender registration statute,¹ he is not required to register, and more specifically, that (1) the trial judge erred in denying the defendant's motion for a required finding of not guilty because (a) his conviction in New York was a misdemeanor and is not "like" the Massachusetts felony of indecent assault and battery, (b) he did not reside in Massachusetts because he was only temporarily recuperating at a friend's house, and (c) the Commonwealth failed to prove that the defendant's failure to register was "knowing"; (2) the trial judge improperly instructed the jury regarding the New York conviction and the definition of "residence"; and (3) the sex offender registration statute is unconstitutional as applied because it violated his right to travel freely and his right to be free from cruel and unusual punishment. We affirm.²

Background. The Massachusetts Sex Offender Registry Board ("SORB" or "board") determined that the defendant was required to comply with its prehearing registration procedure as a sex offender in Massachusetts based on his conviction in New York for sexual abuse in the third degree. The parties stipulated that the act the defendant was convicted of in New York was "the touching of a woman's buttocks without her permission or consent and that she was over the age of fourteen at the time, in fact she was nineteen."

On August 26, 2003, SORB mailed a letter and registration form addressed to the defendant at 4 Manville Street, Great Barrington, informing him that he was required to register as a sex offender in Massachusetts; that failure to complete the enclosed form and return it to the board within ten days would "result in prosecution"; and that if he had any questions, he could call the board at the toll-free number specified, or look at the board's Web site, at the Web address provided. At this prehearing, "preclassification" stage, registration consists of providing name, address, place of employment, and date of birth. See G.L. c. 6, § 178E(g). The defendant claimed that he did not receive the letter; he did not return the form or respond to the letter.

The defendant was not placed in violation until January, 2005, due to an administrative error. The complaint for failing to register issued on February 4, 2005.

On January 3, 2005, State police Troopers George Hamilton and James Somerville went to Alum Hill Road in Sheffield to arrest the defendant for failing to register as a sex offender. The defendant told Hamilton that he had broken his back in an automobile accident. As it was apparent to Hamilton that the defendant was injured, he did not arrest him. Hamilton explained why he was there and advised the defendant that he had to register as a sex offender. Hamilton suggested to the defendant that he contact the police department and ask them to bring the registration forms to his residence. The defendant told Hamilton that he did not feel it was right that he was being classified as a sex offender and that he did not feel as though he should have to register, but that he would register.

On January 28, 2005, Troopers Shaun Cole and Steven Lord went to 471 Alum Hill Road to serve a warrant on a third person. The defendant was there, and Trooper Cole told him that he needed to register as a sex offender. The defendant told the trooper that he did not think he should have to register and that he was not going to register. Trooper Lord also told the defendant that he had to register. The defendant said that he refused to be treated as a sex offender. Trooper Lord told him that if he did not register, he would be arrested.

On February 4, 2005, Troopers Cole and Lord returned to Alum Hill Road and arrested the defendant for failing to register as a sex offender.

The defendant testified that in the year 2004, he spent most of his time in Florida and that he traveled to Massachusetts on business approximately ten or twelve times each year, spending more time in the Berkshires during the summer months. He has driver's licenses in both Massachusetts and New York, and an expired Florida driver's license. He has three cars registered in Massachusetts.

In December, 2004, the defendant broke his back in an automobile accident. He recuperated at his friend's home at 471 Alum Hill Road, Sheffield, where there were a minimal number of stairs.

The defendant visited the SORB Web site on the Internet and concluded that he would not be required to register as a sex offender because he felt he did not meet the requirement of attending an institution of higher learning in Massachusetts, having a job in Massachusetts, or being a resident of Massachusetts. He also testified that the Web site "had a section that said if a conviction is more than ten years old that there's an opt-out, if [it] was originally a non-violent offense." The record indicates that the date of his New York conviction was May 8, 1995, and the actual date of the incident was August 16, 1994.

The defendant testified that he had been registering his vehicles in Massachusetts since his college days in the early 1980's and that the registry of motor vehicles listed his address as 4 Manville Street, Great Barrington, which is his mother's address. When he was arrested, he told the police that his address was 4 Manville Street, Great Barrington. The defendant admitted that he was told three times that he needed to register as a sex offender and that the paperwork was available to him.

The defendant conducted Internet research of the legal definitions of the crimes listed on the SORB Web site. Friends and relatives, who were attorneys, visited the Web site and told him that unlike the crimes listed on the Web site, the crime he was convicted of was not a felony. The defendant did not call or write SORB to tell them that he did not believe he had to register as a sex offender.

1. The motion for required finding of not guilty. In assessing whether a motion for a required finding of not guilty has been properly denied, we consider "whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). "Additionally, the evidence and the inferences permitted to be drawn therefrom must be `of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.'" Commonwealth v. Latimore, supra at 677, 393 N.E.2d 370 (1979), quoting from Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729 (1928).

a. "Like violation." The jury could have rationally concluded that the defendant's conviction in New York for sexual abuse in the third degree constituted a sex offense under G.L. c. 6, § 178C.³ Section 178C lists Massachusetts offenses that constitute a "sex offense" for purposes of the statute and specifies that an offender must register for "a like violation of the laws of another state, the United States or a military, territorial or Indian tribal authority."

At trial, the defendant stipulated that he had been convicted in New York of sexual abuse in the third degree for touching a nineteen year old woman's buttocks without her permission or consent. Sexual abuse in the third degree is defined by New York statutes as a "class B misdemeanor," punishable by not more than three months' incarceration, a fine not exceeding $500, or both. N.Y. Penal Law §§ 70.15, 80.05 (McKinney 2004). The record indicates that the defendant was sentenced to "conditional discharge" of one year, a "final order of protection" of one year, and a fine of $250.

The defendant argues that there is no "like offense" in Massachusetts because there is no such low-level misdemeanor for a sex offense. In denying the defendant's motion for a required finding of not guilty, the judge determined that a rational trier of fact could conclude beyond a reasonable doubt that the New York statute was sufficiently like Massachusetts's prohibition on indecent assault and battery on a person over fourteen.⁴ See G.L. c. 265, § 13H, the punishment for which is "imprisonment in the state prison for not more than five years, or . . . imprisonment for not more than two and one-half years in a jail or house of correction."

First, whether a statute treats certain conduct as a misdemeanor or a felony is not necessarily determinative of what constitutes a "like offense" or "like violation." Cf. Commonwealth v. Corbett, 422 Mass. 391, 395-396, 663 N.E.2d 259 (1996) (rejecting argument that misdemeanor convictions cannot be considered "like offenses" to felony charge).

Second, indecent assault and battery on a person over fourteen may, in fact, be sentenced in certain circumstances in similar fashion to a low-level misdemeanor. See G.L. c....