State v. Glaser

• Decision Date: 12 February 2015
• Docket Number: No. 20140174.,20140174.
• Citation: 858 N.W.2d 920
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Gary Michael GLASER, Defendant and Appellant.
• Court: North Dakota Supreme Court

858 N.W.2d 920

STATE of North Dakota, Plaintiff and Appellee

v.Gary Michael GLASER, Defendant and Appellant.

No. 20140174.

Supreme Court of North Dakota.

Feb. 12, 2015.

M. Jason McCarthy (argued), Assistant State's Attorney, and Megan J. Kvasager (on brief), under the Rule on Limited Practice of Law by Law Students, Grand Forks, ND, for plaintiff and appellee.

Lee M. Grossman, Valley City, ND, for defendant and appellant.

Opinion

KAPSNER, Justice.

[¶ 1] Gary Glaser appeals from a criminal judgment entered after he pled guilty to indecent exposure. We conclude the district court did not abuse its discretion in ordering Glaser to register as a sex offender. We affirm.

I

[¶ 2] Glaser was charged with indecent exposure, a class A misdemeanor. He allegedly pulled up to a stranger walking on a sidewalk, stopped his vehicle, and exposed his penis to the victim. Glaser initially pled not guilty. After being provided a court-appointed attorney, he entered a guilty plea.

[¶ 3] At the sentencing hearing, Glaser argued he should not have to register as a sex offender because he had no prior criminal history as a sex offender, he did not exhibit any mental abnormality or predatory conduct, and the victim was not a minor. The State argued his conduct met the statutory definition of predatory conduct because it was directed at a stranger. The district court agreed with the State and determined Glaser was required to register. Glaser also received a sentence of one year, with nine months suspended, and he was placed on probation for two years.

II

[¶ 4] On appeal, Glaser argues the district court abused its discretion by ordering him to register as a sex offender. He also argues the district court committed obvious error by violating N.D.R.Crim.P. 11(b)(3) because it failed to determine a factual basis for his guilty plea.

[¶ 5] A district court is afforded the widest range of discretion regarding sentencing, and this Court's review of an imposed sentence focuses only on whether the lower court acted within the statute's limits or if it substantially relied on an impermissible factor. State v. Wardner, 2006 ND 256, ¶ 27, 725 N.W.2d 215.

[¶ 6] Glaser argues on appeal the definition for “sexually predatory conduct” found in N.D.C.C. § 25–03.3–01(9), the state's civil commitment law, is controlling over the definition of “predatory” in N.D.C.C. § 12.1–32–15(1)(d), the state's sex offender registration law. We disagree.

[¶ 7] Glaser was charged with indecent exposure in violation of N.D.C.C. § 12.1–20–12.1(1)(b) which states, “A person, with intent to arouse, appeal to, or gratify that person's lust, passions, or sexual desires, is guilty of a class A misdemeanor if that person ... [e]xposes one's penis ... in a public place.”

[¶ 8] A “sexual offender” is defined as a person who has pled guilty to indecent exposure. See N.D.C.C. § 12.1–32–15(1)(e). State law requires individuals who plead guilty to misdemeanor sexual offense crimes to register as sex offenders. See N.D.C.C. § 12.1–32–15(2)(b). However, the court “may deviate” from this requirement if it finds the individual did not exhibit “predatory conduct in the commission of the offense.” Id. As used in that section of the Code, “predatory” is defined as “an act directed at a stranger or at an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” N.D.C.C. § 12.1–32–15(1)(d).

[¶ 9] Glaser argues the applicable definition of “predatory conduct” is found in N.D.C.C. § 25–03.3–01(9), the state's law on the civil commitment of sexually dangerous individuals. He argues it is controlling because it is more specific and was more recently enacted. He contends that because that particular definition of “sexually predatory conduct” does not include acts directed at a stranger, the district court erred in determining he was required to register as a sex offender.

[¶ 10] In contrast, the State asserts the definition of “predatory” in N.D.C.C. § 12.1–32–15(1)(d) is controlling and contends it would be illogical for the court to use a definition of “predatory” found in a different title of the Code. The State points to State v. Corman, 2009 ND 85, 765 N.W.2d 530, in which this Court used the N.D.C.C. § 12.1–32–15(1)(d) definition of “predatory” regarding sex offender registration.

[¶ 11] In Corman, the defendant argued the district court erred by requiring him to register as a sex offender under N.D.C.C. § 12.1–32–15(2)(d) and (e) and erred in determining he demonstrated “sexual predatory conduct.” 2009 ND 85, ¶¶ 14, 19, 765 N.W.2d 530. Although this Court focused on the “victimization” portion of the predatory definition in Corman, it referred to the N.D.C.C. § 12.1–32–15(2)(d) definition of “predatory” in determining the district court did not err in requiring Corman to register as a sex offender. Id. at ¶¶ 18–22.

[¶ 12] Glaser does not cite to any authority supporting his claim that the “sexually predatory conduct” definition in the state's civil commitment law, N.D.C.C. § 25–03.3–01, is controlling over the definition in N.D.C.C. § 12.1–32–15 when determining whether an individual is required to register as a sex offender.

[¶ 13] “Statutory interpretation is a question of law, fully reviewable on appeal.” State v. Holbach, 2014 ND 14, ¶ 16, 842 N.W.2d 328. “When the meaning of a word or phrase is defined in a section of [the North Dakota Century] Code, that definition applies to any use of the word or phrase in other sections of the Code, except when a contrary intent plainly appears. ” Northern X–Ray Co., Inc. v. State, 542 N.W.2d 733, 735–36 (N.D.1996) (emphasis added); see also N.D.C.C. § 1–01–09. “When a statutory definition ... is limited by prefatory language such as ‘in this title’ or ‘for the purposes of this title,’ the legislature has expressly evidenced its intent that the definition have no application beyond that act.” Edinger v. Governing Auth. of Stutsman Cnty. Corr. Ctr. and Law Enforcement Ctr., 2005 ND 79, ¶ 16, 695 N.W.2d 447.

[¶ 14] Because N.D.C.C. § 12.1–32–15(1)(d) plainly defines “predatory” and states the definition applies “[a]s used in this section” of the North Dakota Century Code, we conclude the district court was correct in applying the N.D.C.C. § 12.1–32–15(1)(d) definition of “predatory.”

III

[¶ 15] Glaser also argues the district court erred because it ignored the clinical assessment of his predatory risk.

[¶ 16] Prior to sentencing, Dr. R. P. Ascano submitted a psychosexual risk assessment report on Glaser. In the report, Dr. Ascano determined Glaser fell at the zero percentile on the sexual assault scale, and his scores “contraindicat[ed] traits and features of ... being at risk for sexual violence.”

[¶ 17] N.D.C.C. § 12.1–32–15(2)(b) states, in pertinent part:

The court may deviate from requiring an individual to register [as a sex offender] if the court first finds the individual is no more than three years older than the victim if the victim is a minor, the individual has not previously been convicted as a sexual offender or of a crime against a child, and the individual did not exhibit mental abnormality or predatory conduct in the commission of the offense.

(Emphasis added). Section 12.1–32–15(4), N.D.C.C., goes on to state that, in consideration of predatory conduct, “the court shall consider the age of the offender, the age of the victim, the difference in ages of the victim and offender, the circumstances and motive of the crime, the relationship of the victim and offender, and the mental state of the offender.”

[¶ 18] In a statute, the word “shall” ordinarily creates a mandatory duty; however, the word “may” does not create such a duty. City of Devils Lake v. Corrigan, 1999 ND 16, ¶ 12, 589 N.W.2d 579. The word “may” is usually used “to imply permissive, optional or discretional, and not mandatory action or conduct.” Id. This Court has held the word “may” in a statute is merely permissive, it does not require action, and it operates simply to confer discretion. See id. at ¶ 13; Matter of Adoption of K.S.H., 442 N.W.2d 417, 420 (N.D.1989).

[¶ 19] Because the sex offender registration statute states, “[t]he court may deviate from requiring an individual to register,” it does not require the district court to exercise such discretion. See N.D.C.C. § 12.1–32–15(2)(b) (emphasis added). By using the word “may,” rather than “shall,” the statute does not require the court to act; it simply confers discretion on the court.

[¶ 20] Although not ambiguous, legislative history behind N.D.C.C. § 12.1–32–15 confirms this construction of the statute; testimony emphasized that the purpose of including discretionary language in the sex offender registration law was to provide judges with some discretion in determining whether the circumstances surrounding the offense warrant registration. See Hearing on S.B. 2299 Before the Senate Judiciary Committee, 56th N.D. Legis. Sess. (Jan. 25, 1999) (written testimony of Joan Halvorson, Victim/Witness Coordinator for Stutsman County State's Attorney).

[¶ 21] Assistant Attorney General Jonathan Byers testified regarding the policy implications of the discretionary language, stating:

As a policy matter, this ... will potentially exempt some sex offenders and offenders against children from having to register. At first glance, that may be troubling to you and to the public. However, if the goal of registration is to protect the public from criminals who may constitute a risk to them, we better serve the public by identifying for them which offenders have committed risky crimes.

Hearing on S.B. 2299 Before the House Judiciary Comm., 56th N.D. Legis. Sess. (March 15, 1999) (testimony of Jonathan Byers, Assistant Attorney General).

[¶ 22] “Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted in context to give meaning and effect to every word, phrase, and sentence.” State v. Kuruc, 2014 ND 95, ¶ 32, 846 N.W.2d 314. In statutory...