Commonwealth v. Bell

• Decision Date: 11 January 2013
• Docket Number: No. 11–P–1139.,11–P–1139.
• Citation: 83 Mass.App.Ct. 82,981 N.E.2d 220
• Parties: COMMONWEALTH v. Kerry Vann BELL.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 82

981 N.E.2d 220

COMMONWEALTH

v.Kerry Vann BELL.¹

No. 11–P–1139.

Appeals Court of Massachusetts, Worcester.

Argued June 6, 2012.

Decided Jan. 11, 2013.

Brandon L. Campbell for the defendant.

Susan M. Oftring, Assistant District Attorney, for the Commonwealth.

Present: TRAINOR, GRAINGER, & MEADE, JJ.

MEADE, J.

After a jury-waived trial, the defendant was convicted of failing to register as a sex offender in violation of G.L. c. 6, § 178H( a ). On appeal, he claims that there was insufficient evidence to support his conviction, and that the admission in evidence of a Texas sex offender registry document violated his right to confrontation under the Sixth Amendment to the United States Constitution. We affirm.

1. Background. The defendant stipulated that in 1988 he had been convicted of a 1985 attempted child sexual assault in Nevada,² and a certified record of that Nevada conviction was admitted in evidence without objection. The defendant also stipulated that at the time of his 2004 arrest in Massachusetts, he had not registered as a sex offender in the Commonwealth. ³

At trial, the defendant's former wife identified him and testified that she met him through the Internet. At the time, she was residing in Texas and he was in Nevada. The two were married in Texas in 2000 and resided there. In 2002, they moved to Massachusetts.

The defendant's former wife was familiar with his signature, and she identified it on two Nevada sex offender registration forms. She also identified the defendant's signature on six separate Texas sex offender registration forms.⁴ These forms were admitted in evidence over the defendant's objections based on relevance and the confrontation clause.

2. Discussion. a. Sufficiency of the evidence. The defendant claims that the evidence was insufficient to support his conviction. “When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Velasquez, 48 Mass.App.Ct. 147, 152, 718 N.E.2d 398 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Commonwealth v. Hartnett, 72 Mass.App.Ct. 467, 475, 892 N.E.2d 805 (2008). Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, supra.” Commonwealth v. Romero, 80 Mass.App.Ct. 791, 794, 956 N.E.2d 1250 (2011), quoting from Commonwealth v. Pixley, 77 Mass.App.Ct. 624, 630, 933 N.E.2d 645 (2010).

When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson v. Virginia, supra at 324 n. 16, 99 S.Ct. 2781, 61 L.Ed.2d 560;Commonwealth v. Latimore, supra at 677–678, 393 N.E.2d 370. In the circumstances of this case, to establish the defendant's guilt of failure to register as a sex offender in violation of G.L. c. 6, § 178H( a ), the Commonwealth was required to prove that the defendant (1) had been convicted of a listed Massachusetts “sex offense” or a “like violation” in another jurisdiction, in accordance with G.L. c. 6, § 178C; (2) was a resident of Massachusetts; (3) failed to register in Massachusetts; and (4) failed to do so knowingly. See Commonwealth v. Becker, 71 Mass.App.Ct. 81, 85–89, 879 N.E.2d 691, cert. denied, 555 U.S. 933, 129 S.Ct. 320, 172 L.Ed.2d 231 (2008).

(i) “ Like violation.” In this Commonwealth, a “sex offender” includes any resident who has been convicted of a “sex offense,” which is defined as either a violation of a Massachusetts statute enumerated in the sex offender registry law, or “a like violation of the laws of another state.” G.L. c. 6, § 178C, as appearing in St.1999, c. 74, § 2. Any sex offender moving into the Commonwealth from another State must, within two days of his arrival, register with the Sex Offender Registry Board (board). See G.L. c. 6, § 178E( g ). The defendant claims that he is not a “sex offender” because his Nevada conviction of attempted child sexual assault was not a “sex offense,” as it did not constitute a “like violation” of one of the enumerated Massachusetts offenses.

The defendant does not contest that the Massachusetts crime of rape of a child in violation of G.L. c. 265, § 22A, an offense listed in § 178C, is sufficiently similar to the Nevada crime of sexual assault against a child in violation of Nev. Rev. Stat. § 200.366 (2011),⁵ for purposes of G.L. c. 6, § 178E( g ). Moreover, an attempt pursuant to G.L. c. 274, § 6, to commit a Massachusetts offense listed in § 178C is itself a listed offense. Here, however, the defendant claims that the inchoate crimes of attempt in each jurisdiction are not sufficiently similar to meet the “like violation” standard for registration purposes. We disagree.

The sex offender registration statute does not define the term “like violation,” but the Supreme Judicial Court has endorsed this court's view of the matter. “A ‘like violation’ is a conviction in another jurisdiction of an offense of which the elements are the same or nearly the same as an offense requiring registration in Massachusetts. The elements of the offense in another jurisdiction need not be precisely the same as the elements of a Massachusetts sex offense in order for it to constitute a ‘like violation.’ ” Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615–616, 925 N.E.2d 533 (2010)( Doe No. 151564 ), citing Commonwealth v. Becker, supra at 87, 879 N.E.2d 691. This definition was chosen because the Legislature did not intend that the crimes be identical, but only that they be “like” one another. Doe No. 151564, supra at 616, 925 N.E.2d 533.

Under Nevada law, an “attempt” is an “act done with the intent to commit a crime, and tending but failing to accomplish it.” Nev. Rev. Stat. § 193.330 (2011). The elements of an attempt in Nevada are “(1) an intent to commit a crime, (2) performance of some overt act towards its commission, and (3) failure to consummate its commission.” Larsen v. State, 86 Nev. 451, 453, 470 P.2d 417 (1970). See Bell v. State, 105 Nev. 352, 354, 775 P.2d 1273 (1989). Under Massachusetts law, “[w]hoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration, or is intercepted or prevented in its perpetration,” is guilty of attempting to commit a crime. G.L. c. 274, § 6. “The elements required for a finding of attempt are (1) specific intent, (2) an overt act, and (3) nonachievement of the substantive crime.” Commonwealth v. Bell, 455 Mass. 408, 412, 917 N.E.2d 740 (2009), citing Commonwealth v. Ortiz, 408 Mass. 463, 470, 560 N.E.2d 698 (1990). See Commonwealth v. Buswell, 83 Mass.App.Ct. 1, 5, 979 N.E.2d 768 (2012). As can be seen, the elements for an attempt are the same in both jurisdictions. Both require a specific intent to commit the underlying offense, an overt act towards that commission, and a failure to complete the crime.

An additional common denominator of an attempt is the use of a proximity approach in both jurisdictions. In the defendant's Nevada case, the Nevada Supreme Court noted that “most cases upholding attempt convictions do involve situations in which there was a physical or dangerous proximity to successfully committing the crime.” Bell v. State, 105 Nev. at 354, 775 P.2d 1273. Moreover, under Nevada law, “mere preparation to commit a crime is insufficient to constitute an attempt.” Ibid. In Massachusetts, the same is true. “[W]e look to the actions left to be taken, or the ‘distance or gap between the defendant's actions and the (unachieved) goal of the consummated crime—the distance must be relatively short, the gap narrow, if the defendant is to be held guilty of a criminal attempt.’ ” Commonwealth v. Bell, supra at 415, 917 N.E.2d 740, quoting from Commonwealth v. Hamel, 52 Mass.App.Ct. 250, 258, 752 N.E.2d 808 (2001). “That an overt act although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree.” Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55 (1901) (Holmes, C.J.). To determine what conduct constitutes a sufficient overt act, a court is required to “determine if the evidence of preparations taken by the defendant proceeded sufficiently close to the substantive crime to amount to an attempt. Factors to take into account in determining how proximate the overt act must be to the commission of the substantive offense are the gravity of the crime, the uncertainty of the result, and the seriousness of any threatened danger.” Commonwealth v. Bell, supra at 414, 917 N.E.2d 740.⁶

Focusing on one aspect of his Nevada case, the defendant (as does the dissent) points out that under Nevada law, “when the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that crime will constitute an attempt.” Bell v. State, 105 Nev. at 354, 775 P.2d 1273. In Nevada, as the evidence of intent is more clear, less evidence of an overt act in furtherance of that intent is required to constitute an attempt. Id. at 355, 775 P.2d 1273. From this, the defendant argues that because our law is more stringent than Nevada law, a person could be convicted in Nevada of an attempt based on conduct that could lead to an acquittal in the Commonwealth. In support, the defendant relies on a sentence in Doe No. 151564, 456 Mass. at 616, 925 N.E.2d 533, where the court stated that “we consider the ...