Com. v. Ramirez

• Decision Date: 10 May 2007
• Docket Number: No. 06-P-497.,06-P-497.
• Parties: COMMONWEALTH v. Ulises RAMIREZ.
• Court: Appeals Court of Massachusetts

865 N.E.2d 1158

69 Mass. App. Ct. 9

COMMONWEALTH v. Ulises RAMIREZ.

No. 06-P-497.

Appeals Court of Massachusetts, Hampden.

Argued January 17, 2007.

Decided May 10, 2007.

Elaine Fronhofer for the defendant.

Sidney E. Reavey, Assistant District Attorney, for the Commonwealth.

Present: GRASSO, SMITH, & MILLS, JJ.

MILLS, J.

After a jury-waived trial, the defendant was found guilty on a complaint that he knowingly failed to register as a sex offender, G.L. c. 6, § 178H, and accosted or annoyed a person of the opposite sex, G.L. c. 272, § 53. We conclude that there was insufficient evidence to support the defendant's convictions, and we reverse.

Background. The Commonwealth presented evidence that on July 2, 2005, the complainant¹ went to a public swimming pool in Springfield, accompanied by a friend. While in the pool, she noticed the defendant, a stranger, staring at her. When the complainant began to leave, the defendant asked her why she was leaving. The complainant ignored the defendant and left the pool.

The following day, while walking to a store near her home, the complainant encountered the defendant a second time. As she passed by a house, he leaned out a window, removed his hat, and said he would buy her candy. The complainant had not previously seen the defendant in the neighborhood. The defendant did not follow her to the store, but when she returned, he was standing outside the same house and "singing that he fell in love with a little girl." He asked the complainant if she had bought what he told her to buy. She crossed the street to her home, and as she proceeded up the stairs, the defendant watched her. Both encounters made the complainant feel "uncomfortable."

Subsequent investigation revealed that in 1984, the defendant had been convicted of a sex offense² for which registration later came to be required pursuant to the sex offender registration statute, G.L. c. 6, §§ 178C-178Q, and that the defendant had not registered as a sex offender. The relevant statute was enacted in 1999, but applies retroactively to all persons convicted of sex offenses after August 1, 1981. G.L. c. 6, § 178C. See Roe v. Attorney Gen., 434 Mass. 418, 423-424, 750 N.E.2d 897 (2001). Steven Cartney, a keeper of the records for the Sex Offender Registry Board (SORB), testified that sex offenders convicted prior to the statute's enactment, and for whom the SORB had addresses, were informed by mail of their obligation to register. Because the SORB did not have an address for the defendant, it did not mail him a notification. However, notices of sex offender registration requirements were published in Massachusetts newspapers in 2001 or 2002.³ On August 2, 2002, the defendant was "placed in violation" for failure to register with the SORB.⁴ He was arrested on July 6, 2005, and a two-count complaint charging him with failure to register as a sex offender and accosting or annoying a person of the opposite sex was issued the following day. As of the date of trial on October 14, 2005, the defendant had not yet registered.

Defense counsel moved for required findings as to both charges. Those motions were denied. On appeal the defendant argues that the evidence was insufficient to show that (1) his failure to register with the SORB was knowing, as required by G.L. c. 6, § 178H, and (2) his language or acts were disorderly, as required by G.L. c. 272, § 53.⁵

Defendant's failure to register. According to G.L. c. 6, § 178H(a), as appearing in St.1999, c. 74, § 2, "[a] sex offender required to register pursuant to this chapter who knowingly: (i) fails to register ... shall be punished in accordance with this section." The defendant does not dispute that his 1984 conviction subjects him to the registration mandates of the statute, but argues that the Commonwealth failed to introduce evidence sufficient to prove beyond a reasonable doubt that his failure to register with the SORB was knowing. We agree.

It is a settled rule of statutory construction that all words in a statute must be given meaning. Commonwealth v. Burgess, 426 Mass. 206, 224-225, 688 N.E.2d 439 (1997). Therefore, "[t]he insertion of [the word `knowingly' into the statute] cannot be treated as immaterial." Commonwealth v. Horsfall, 213 Mass. 232, 237, 100 N.E. 362 (1913). "When the word `knowingly' is used in a criminal statute, it `commonly imports a perception of the facts requisite to make up the crime.'" Commonwealth v. Fondakowski, 62 Mass. App.Ct. 939, 940, 821 N.E.2d 481 (2005), quoting from Commonwealth v. Altenhaus, 317 Mass. 270, 273, 57 N.E.2d 921 (1944). Thus, where the statute under which the defendant was charged defines the offense as "knowingly ... fail[ing] to register," G.L. c. 6, § 178H, the Commonwealth was required to prove that the defendant knew of the requirement that he register but did not do so despite this knowledge.

While the defendant's knowledge may be proven by circumstantial evidence, the proof must be specific to this defendant, rather than to the general population or some subset thereof. See, e.g., Commonwealth v. Dellamano, 393 Mass. 132, 136, 469 N.E.2d 1254 (1984) ("We have held that where `knowledge ... is an essential element of the offence charged, proof of that knowledge is a prerequisite to conviction. The knowledge of the defendant is personal to him and the statute recognizes no substitute'"), quoting from Commonwealth v. Holiday, 349 Mass. 126, 128, 206 N.E.2d 691 (1965); Commonwealth v. Rosenberg, 379 Mass. 334, 338, 398 N.E.2d 451 (1979). Absent a defendant's conscious disregard of the information necessary to provide him with the requisite knowledge, the Commonwealth cannot meet its burden merely by establishing that the knowledge was available to the defendant. See, e.g., Commonwealth v. Altenhaus, supra; Commonwealth v. Boris, 317 Mass. 309, 315, 58 N.E.2d 8 (1944); Commonwealth v. Thureson, 371 Mass. 387, 390, 357 N.E.2d 750 (1976).

It warrants noting that, like the Massachusetts statute, the sex offender registration laws of at least five other States impose liability specifically when a sex offender knowingly fails to register. Alaska Stat. § 11.56.840 (2006); Del.Code Ann. tit. 11, § 4120 (2001 & Supp.2006); Utah Code Ann. § 77-27-21.5(14) (Supp.2006); Va.Code Ann. § 18.2-472.1 (Supp.2006); Wash. Rev.Code § 9A.44.130(11) (Supp. 2007). Of these States, those that have addressed the statutes' respective knowledge requirements have made clear that the State must prove that the defendant knew of his duty to register but failed to do so. See Dailey v. State, 65 P.3d 891, 895 (Alaska Ct.App.2003) ("to convict [the defendant], the State had to prove both that [he] was aware of the circumstances giving rise to his duty to file sworn quarterly written verifications and that he knowingly refrained from performing that duty"); Kitze v. Commonwealth, 23 Va. App. 213, 217, 475 S.E.2d 830 (1996) ("A knowing and intentional failure to register is punishable ..."); State v. Clark, 75 Wash.App. 827, 832, 880 P.2d 562 (1994) ("Lack of notice of the duty to register constitutes a defense to the crime of knowingly failing to register as a sex offender—but only for the first such offense" because thereafter the arrest for failure to register serves as notice). Similarly, California's sex offender registration statute prescribes punishment for wilful violations thereof, and proof of guilt thereunder "requires actual knowledge of the duty to register." People v. Sorden, 36 Cal.4th 65, 69, 29 Cal.Rptr.3d 777, 113 P.3d 565 (2005), citing People v. Garcia, 25 Cal.4th 744, 107 Cal.Rptr.2d 355, 23 P.3d 590 (2001). See Cal.Penal Code § 290(g) (Deering 1985 & Supp.2006).

While G.L. c. 6, § 178H, and the other sex offender registration statutes discussed above plainly require proof of the defendant's knowledge of the registration mandate, constitutional due process requirements provide additional support for our construction of the knowledge requirement. See Commonwealth v. Nieves, 446 Mass. 583, 597-598, 846 N.E.2d 379 (2006) (statutes are to be interpreted to avoid unconstitutionality). In Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), the United States Supreme Court addressed the constitutionality of a Los Angeles ordinance making it illegal for convicted felons to remain in the city for more than five days without registering with the chief of police. The Supreme Court reversed the appellant's conviction under the ordinance, holding that "actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand."⁶ Id. at 229, 78 S.Ct. 240.

With these principles in mind, we review the evidence in this case, doing so in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). The Commonwealth first argues that the defendant's receipt of actual notice of his duty to register at the time of his arrest is sufficient to satisfy the statute's knowledge requirement because his failure to register was a "continuing offense."⁷ However, the Commonwealth did not pursue this theory at trial,⁸ instead focusing on the defendant's alleged knowledge of his duty to register prior to his arrest. Even had the Commonwealth adequately presented its theory, we point out that July 6, 2005, is listed on the complaint as the sole offense date, and no range of dates is provided. "When [a continuing] offense is charged, the time period specified in the indictment is an integral part of the crime, and evidence of acts committed outside this period is generally not admissible to prove the crime." Commonwealth v. Megna, 59 Mass.App.Ct. 511, 513, 797 N.E.2d 1 (2003). On this record there is no evidence that on the day of his arrest the defendant received notice of the registration requirement. The mere fact of his arrest, without evidence that he was...