State v. Azure
| Decision Date | 17 June 2008 |
| Docket Number | No. DA 06-0555.,DA 06-0555. |
| Citation | 344 Mont. 188,186 P.3d 1269,2008 MT 211 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Brian James AZURE, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Jim Wheelis, Chief Public Defender, Helena, Montana.
For Appellee: Hon. Mike McGrath, Montana Attorney General, Mark Mattioli, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Jennifer Clark, Deputy County Attorney, Missoula, Montana.
¶ 1 Brian James Azure was convicted following a jury trial in the District Court for the Fourth Judicial District, Missoula County, of failure to register as a violent offender. On appeal, he claims that the jury was bound to acquit him in light of the jury instructions given by the District Court and the evidence adduced at trial. We disagree and, thus, affirm the District Court's judgment.
¶ 2 In 1997, Azure was convicted of robbery in Cascade County and sentenced to the Montana State Prison for 20 years, with 5 years suspended. Following his completion of Boot Camp, the Eighth Judicial District Court modified the sentence to 20 years, with 8 years suspended. Azure was discharged to his suspended sentence in October 2002; however, in May 2004, the court revoked the sentence and sentenced him to the Department of Corrections ("DOC") for 8 years, with 2 years suspended.
¶ 3 In December 2004, Azure was released from confinement and placed in the DOC's Intensive Supervision Program ("ISP") under the supervision of Dave Sonju. According to Sonju (who testified at Azure's trial on the instant offense), ISP is a sort of "conditional release." The offender lives in the community but still has the status of "inmate." ISP officers generally have small caseloads (less than 25 offenders each) involving high-risk offenders. The offenders are monitored with electronic monitoring and daily schedules, so that the ISP officers know where each offender is 24 hours a day. The ISP officers also conduct random home visits, weekly office checks, and urine tests. According to Sonju, "We do more supervision than what a standard supervision officer can do with a caseload of 100." As a result, ISP is much more restrictive than standard probation.
¶ 4 The Sexual or Violent Offender Registration Act (Title 46, Chapter 23, Part 5, MCA) sets forth the registration requirements for persons convicted of a sexual or violent offense. Azure's robbery conviction is considered a "violent" offense under the Act, see § 46-23-502(9)(a), MCA (2003), and Azure does not dispute that the Act applied to him during the time period at issue here, see § 46-23-506(2), MCA. Of relevance to the instant appeal, a violent offender who has been sentenced to the DOC and placed in confinement must be registered under the Act at least 10 days prior to his release from confinement. Section 46-23-504(1)(b), MCA. The official in charge of the place of confinement must inform the offender of the duty to register and provide the registration information to the Department of Justice and to either the sheriff of the county or the chief of police of the municipality in which the offender intends to reside. Section 46-23-503(1), (2), MCA. In addition, within 10 days of entering a county for the purpose of residing or setting up a temporary domicile there, the offender is required to register with the county sheriff (or the chief of police, if the offender resides in a municipality). Section 46-23-504(1)(c), (2), MCA. Whenever the offender changes residence, he is required within 10 days of the change to give written notification of the new address to the agency with whom he last registered. Section 46-23-505, MCA. Knowingly failing to register, verify registration, or keep registration current is a felony offense punishable by up to 5 years imprisonment. Section 46-23-507, MCA.
¶ 5 In early December 2004, in conjunction with his release from confinement and placement in ISP, Azure registered an address on Cozy Court in Lolo, Montana. In mid December, he moved to Mormon Creek Road (also in Lolo) and thereafter registered this change of residence with the Missoula County Sheriff's Department. In early May 2005, Azure moved to an address on South 8th Street. He promptly informed Sonju of this move; however, although Sonju advised Azure on more than one occasion that he needed to register the change of residence with the Sheriff's Department as well, Azure failed to do so.
¶ 6 The State charged Azure on July 22, 2005, with failure to register as a violent offender. The State alleged that Azure had a prior conviction of robbery and that he knowingly had failed, on or about June 7, to keep his registration current with the Missoula County Sheriff's Department.
¶ 7 The case proceeded to trial on April 4, 2006. The State called two witnesses—Sonju and Jan Dietz (the support services administrator for the Missoula County Sheriff's Department)—to establish that Azure had been convicted of an offense which required registration as a violent offender, that he had changed his residence in Missoula County in May 2005, and that he had not updated his registration with the Missoula County Sheriff's Department when he moved to the address on South 8th Street. Sonju testified in this regard concerning his conversations with Azure. According to Sonju, Azure initially claimed that he did not have identification and that he could not register without I.D., but Azure later stated that he was afraid if he registered the new address, he and his wife would be evicted again. Sonju noted that "quite often" the participants in the ISP program are evicted from their residences after they register.
¶ 8 Azure questioned Sonju concerning the DOC's Intensive Supervision Program and, in particular, Azure's status while in this program. Sonju agreed that during the entire time Azure was in ISP, he was under the DOC's (more specifically, Sonju's) "supervision." Sonju also indicated that Azure had checked in with Sonju "regularly and on a weekly basis" during his time in ISP. Azure then questioned Sonju at length concerning the Probation and Parole Bureau's Standard Operating Procedures. In particular, Azure elicited testimony from Sonju that under P & P 60-12, when an offender changes his or her address, the probation and parole officer is responsible for contacting local law enforcement to verify that the offender has registered the change and also for notifying the Department of Justice of the address change. Sonju admitted that he did not notify the Department of Justice of Azure's change. Finally, Azure introduced into evidence a Notice for Address Verification, addressed by the Montana Department of Justice to Azure and dated October 20, 2005, which stated: "You are reminded of your obligation as a registrant to inform your local law enforcement or probation office of any address changes or other pertinent information within 10 days of the change [MCA 46-23-505]" (emphasis added, brackets in original).
¶ 9 At the close of the evidence, the court read the jury a number of instructions, including the following:
A person commits the offense of Failure to Register as an Offender if the person is required to register under Montana law and fails to give written notice to the agency with whom he was last registered within ten (10) days, if the person changes his residence.
Brian Azure is a person required to register as a violent offender.
To convict the Defendant of the offense of Failure to Register as a Violent Offender, the State must prove the following propositions:
1. The Defendant was a person required to register under Montana Law; 2. The Defendant changed his residence;
3. The Defendant failed to notify the Missoula County Sheriff's Department of the change in address within ten (10) days of the move;
4. The Defendant acted knowingly.
If you find from your consideration of all of the evidence that all of these elements have been proved beyond a reasonable doubt, then you should find the Defendant guilty.
If, on the other hand, you find from your consideration of the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.
Release of violent offender from place of confinement — duties of official in charge
A violent offender who is released from the custody of the Department of Corrections, must be informed in writing not less than 10 days prior to release from the place of confinement, of the duty to register under this part by the official in charge of the place of confinement.
Prior to the offender's release from custody, the official shall obtain and give to the department of justice and to the sheriff of the county in which the offender intends to reside or, if the offender intends to reside in a municipality, to the chief of police of the municipality:
(a) the address at which the offender intends to reside upon release from the department's custody;
(b) the offender's fingerprints and photo, unless they are already in the possession of the department of justice, sheriff, or chief of police; and
(c) a form signed by and read to or by the offender stating that the offender's duty to register under this part has been explained to the offender. [Italics in printed instruction.]
Upon their release from confinement and supervision, ... violent offenders must register in writing with the Montana Department of Justice and the sheriff of the county or chief of police of the city in which the offender intends to reside; the offender also must provide fingerprints to—and be photographed by—law enforcement entities ... [Ellipses in printed instruction.]
¶ 10 During...
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