State v. Dasilva

• Decision Date: 02 August 2011
• Docket Number: No. DA 10–0323.,DA 10–0323.
• Citation: 2011 MT 183,361 Mont. 288,258 P.3d 419
• Parties: STATE of Montana, Plaintiff and Appellee,v.Robert DaSILVA, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

361 Mont. 288

258 P.3d 419

2011 MT 183

STATE of Montana, Plaintiff and Appellee,

v.Robert DaSILVA, Jr., Defendant and Appellant.

No. DA 10–0323.

Supreme Court of Montana.

Submitted on Briefs April 20, 2011.Decided Aug. 2, 2011.

OPINION TEXT STARTS HEREWest CodenotesPrior Version Recognized as UnconstitutionalWest's RCWA 9A.44.130(1); MCA 46–23–505

For Appellant: Joslyn Hunt, Chief Appellate Defender; Garrett R. Norcott, Assistant Appellate Defender; Helena, Montana.For Appellee: Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana, John Parker, Cascade County Attorney; Great Falls, Montana.

Justice JIM RICE delivered the Opinion of the Court.

[361 Mont. 289] ¶ 1 A jury in the Eighth Judicial District Court, Cascade County, found Robert DaSilva, Jr., guilty of failure to provide notice of address change as a sex offender, a felony, in violation of §§ 46–23–505, –504(5), –507, and –502(9)(b), MCA (2007), and resisting arrest, a misdemeanor. DaSilva appeals, raising two issues. We affirm and restate the issues as follows:

¶ 2 1. Did the District Court violate DaSilva's due process right by instructing the jury as a matter of law that DaSilva's previous Washington conviction was a “sexual offense”?

¶ 3 2. Did the District Court err in granting a continuance of trial that was requested by the State to permit an amendment to the Information?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 In 1998, DaSilva was convicted in Washington of second degree assault with sexual motivation. On November 6, 2008, DaSilva notified the Great Falls Police Department (GFPD) of a change of his address to the Great Falls Rescue Mission (Mission), a homeless shelter. After moving to a residence, DaSilva provided notice that he had moved back to the Mission on January 14, 2009. In January and February a police officer attempted to verify DaSilva's location at the Mission, but was unsuccessful. During this time DaSilva made no further reports to the GFPD. On February 23, 2009, the officer received a tip regarding DaSilva's whereabouts. After locating DaSilva, the officer attempted to talk with him, but DaSilva ran and was arrested after pursuit.

¶ 5 DaSilva was charged with failure of sex offender to provide notice of address change, a felony, and resisting arrest, a misdemeanor. He moved to dismiss the notice charge, contesting that he had an obligation to register in Montana pursuant to his Washington conviction. The District Court denied the motion, and DaSilva again raised the issue during settlement of jury instructions, arguing the issue was one of fact for the jury. The District Court disagreed and instructed the jury that “[u]nder Montana law, a person who has been convicted of committing a sexual offense is required to register as a sex offender” and, as a matter of law, DaSilva's Washington conviction of second degree assault with sexual motivation was a “sexual offense.” The District Court granted a continuance of trial in conjunction with an amendment to the Information sought by the State to add a reference to § 46–23–504(5), MCA, to the notice charge.

¶ 6 The jury returned a guilty verdict on both charges, and the court sentenced DaSilva as a persistent felony offender to five years in the Montana State Prison, designating him a Tier 2 sex offender.¹

DISCUSSION

¶ 7 Section 46–23–507, MCA (2007), of Montana's Sexual or Violent Offender Registration Act (SVORA), provides “[a] sexual or violent offender who knowingly fails to register, verify registration, or keep registration current under this part may be sentenced to a term of imprisonment of not more than 5 years or may be fined not more than $10,000, or both.” We have explained this provision provides the “actual offense” under SVORA. State v. Bahr, 2009 MT 378, ¶ 10, 353 Mont. 294, 224 P.3d 610. In turn, § 46–23–502(10), MCA, defines a “sexual or violent offender” as “a person who has been convicted of or, in youth court, found to have committed or been adjudicated for a sexual or violent offense.” A “sexual offense” is defined as including certain Montana offenses as listed in § 46–23–502(9)(a), MCA, as well as “any violation of a law of another state, a tribal government, or the federal government that is reasonably equivalent to a violation listed in subsection (9)(a) or for which the offender was required to register as a sexual offender after an adjudication or conviction.” Section 46–23–502(9)(b), MCA; see also United States v. Juvenile Male, 2011 MT 104, ¶¶ 4–5, 360 Mont. 317, 255 P.3d 110.

¶ 8 1. Did the District Court violate DaSilva's due process right by instructing the jury as a matter of law that DaSilva's previous Washington conviction was a “sexual offense”?

¶ 9 DaSilva argues broadly that the District Court's instruction to the jury that his Washington conviction was a “sexual offense” usurped the role of the jury, lowered the State's burden of proof, and violated his right to due process guaranteed by the Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution. He argues that whether he was required to register in Washington for purposes of § 46–23–502(9)(b), MCA, presents “a question of historical fact.” Thus, he reasons the State should have been required to call Washington authorities to testify as to that state's registration requirements.

¶ 10 The Judgment and Sentence from DaSilva's 1998 Washington conviction was submitted as an exhibit to DaSilva's motion to dismiss, and the first page of the document was offered by the State and admitted at trial by judicial notice over DaSilva's objection. The first page states DaSilva was found guilty by plea of Assault in the Second Degree with Sexual Motivation, with a date of crime of March 30, 1997. The Judgment references Wash. Rev.Code § 9.94A.030, wherein “sex offense” is defined to include “[a] felony with a finding of sexual motivation under RCW 9.94A.127 or 13.40.135,” and “sexual motivation” to mean “that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.” Wash. Rev.Code § 9.94A.030(33)(b), (34) (1997). The Judgment also references Wash. Rev.Code § 9A.36.021(1)(a), which defines the offense of assault in the second degree. There is stated at the bottom of the first page, with a place for notation, “[a] special verdict/finding of sexual motivation was returned on Count(s).” The place for notation is not marked. On the last page there is stated in all capital letters: “Any defendant convicted of a sex offense must register with the county sheriff for the county of the defendant's residence within 24 hours of defendant's release from custody,” citing Wash. Rev.Code § 9A.44.130. DaSilva's initials are entered next to this statement.

¶ 11 DaSilva's motion to dismiss contended that his Washington conviction triggered no duty to register in Montana and, thus, no duty to notify police of his address change because: his Washington Judgment did not specifically order him to register; the Washington conviction was not a “sex offense” under Washington law requiring registration there because no “check” was made next to the Judgment provision regarding a finding of sexual motivation, indicating the court did not make the requisite finding; and his Washington offense was not “reasonably equivalent” to a Montana sexual offense.

¶ 12 The State provided and incorporated the response it had filed to an identical motion DaSilva had filed in a 2008 Cascade County criminal proceeding alleging failure of sex offender to provide notice of address change, presided over by Judge Julie Macek. The State argued DaSilva's Washington conviction was a “sex offense” as defined under the Washington statutes referenced in the Judgment, and that the Judgment required DaSilva to register as a sex offender because he initialed next to the notice given of the registration requirement. Judge Macek had denied DaSilva's motion in the earlier proceeding, and the District Court took notice of the ruling and likewise found “persuasive the State's reasoning as set forth in its response.... And I similarly, and on those reasons, adopt and follow the reasoning and decision made by Judge Macek on this matter,” and denied DaSilva's motion.

¶ 13 Before trial, the State proposed a jury instruction that DaSilva was required to register as a sex offender in Montana, as a matter of law. ² DaSilva's counsel responded:

It's my position that the State needs to prove, as an element of the offense, that Mr. Dasilva is a person required to register; thus, the State would have to prove that he's a sex offender. I did previously challenge that in a motion to dismiss, which the Court is aware and that motion was denied. However, I don't think that changes the fact that it's still an issue of fact that the jury has to make on it's own.DaSilva's proposed instructions provided the definition of “sexual offense” under § 46–23–502(9), MCA, and separate instructions on each of the eleven Montana offenses enumerated in subsection (9)(a). He also proposed instructions under Washington law, including the definition of assault in the second degree, the definition of “sex offense” as including a felony with a finding of sexual motivation, procedures on finding sexual motivation, and the requirement that an offender convicted of a sex offense must register. DaSilva argued:

[A]lthough it's convoluted, that's the state we're in because of the Legislature—the legislation that we're dealing with here. I think the jury is capable of making that determination. It's unusual, I will grant you, but we' [re] dealing with an unusual statute. I think with the instructions I've provided, the jury can determine those issues as a matter of fact.

(Emphasis added.) This dialogue then followed:

[THE COURT:] I just don't see how I can allow the jury to attempt to conduct legal analysis and make a conclusion of law that...