State v. Griffin

• Decision Date: 02 March 2021
• Docket Number: No. 2 CA-CR 2019-0264,2 CA-CR 2019-0264
• Citation: 250 Ariz. 651,483 P.3d 273
• Parties: The STATE of Arizona, Appellee/Cross-Appellant, v. Otis L. GRIFFIN, Appellant/Cross-Appellee.
• Court: Arizona Court of Appeals

250 Ariz. 651

483 P.3d 273

The STATE of Arizona, Appellee/Cross-Appellant,

v.Otis L. GRIFFIN, Appellant/Cross-Appellee.

No. 2 CA-CR 2019-0264

Court of Appeals of Arizona, Division 2.

Filed March 2, 2021

Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, By Tanja K. Kelly, Assistant Attorney General, Tucson, Counsel for Appellee/Cross-Appellant

Emily Danies, Tucson, Counsel for Appellant/Cross-Appellee

Judge Brearcliffe authored the opinion of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred.

BREARCLIFFE, Judge:

¶1 Otis Griffin appeals from his conviction following a jury trial for fraudulent scheme and artifice. The trial court imposed a six-year term of imprisonment. On appeal, Griffin contends the court erred in denying his motion to dismiss because the offense of fraudulent scheme and artifice was not intended to apply to sex offender registration. The state cross appeals as to the court's determination that one of Griffin's prior felony convictions was not an historical prior felony conviction for sentencing purposes. We affirm in part, vacate in part, and remand.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the conviction. State v. Tucker , 231 Ariz. 125, ¶ 2, 290 P.3d 1248 (App. 2012). Otis Griffin is a convicted sex offender who is required to register as such wherever he resides. In Pima County, convicted sex offenders register by, in part, providing their address or, if homeless or transient, identifying where they reside, and a "sex offender registration and tracking" detective then does a compliance check to verify that the registrant is living at the registered address. After the compliance check, the detective sends out a public notification to the nearest two hundred residences or businesses that surround the registered address. The public notification consists of a flyer containing a photo, the registrant's name, address, phone number, and a brief description of his conviction.

¶3 Griffin was first required to register in 2011 and has since done so a number of times. Each time Griffin registered, he had to sign a page of the registration form acknowledging a number of obligations, including to inform the sheriff's department within seventy-two hours of moving and if he becomes homeless or transient, he must register every ninety days.¹ The acknowledgment states that "if I do not have an address or permanent place of residence (homeless), I must register my physical location (i.e., crossroads) every 90 days with the Sheriff in whose jurisdiction I am physically present." Several of Griffin's past registered addresses were residences as to which sex offender notices were sent to his neighbors. On November 16, 2017, Griffin registered as homeless and identified his "physical location" as the Tucson cross-streets of Grant Road and Alvernon Way.

¶4 On April 16, 2018, a number of deputies with the Pima County Sheriff's Department responded to an apartment complex on West Ina Road ("the Ina Complex") about an unwanted person, Griffin, residing at K.M.’s apartment. Griffin told the deputies that he had been living in the apartment "off and on for a while," including for the immediately preceding two weeks, and he had provided money and food, and had done household chores in exchange for lodging. He said that he kept his belongings in the apartment and slept there. Griffin told the deputies that he had gone for a walk earlier and, when he came back, he was locked out of the apartment. The deputies eventually told K.M. that, given his arrangement with Griffin, they could not make Griffin leave the apartment and that K.M. would have to evict him.

¶5 After the deputies left the apartment, one of them ran a "wants-and-warrants check" on Griffin, which came back showing him to be a registered sex offender. The deputies returned to speak to Griffin, and Griffin said he had lived at K.M.’s apartment for about two weeks and he had not yet updated his sex offender registration information. The deputy reminded him that he needed to update his address. On April 26, 2018, more than five months after he had last registered, Griffin registered as homeless at the Tucson cross-streets of La Cañada Drive and Orange Grove Road, and again acknowledged his obligation to register with his physical location.

¶6 On May 9, 2018, S.R., a resident of the Ina Complex called the police about a disagreement with Griffin. S.R. reported that during the first week of May she had seen Griffin around when he was at K.M.’s apartment. Deputy Gill responded to S.R.’s call and, before talking with Griffin, did a warrants check on him, which still showed Griffin to be a registered sex offender. Gill talked with Griffin in K.M.’s apartment. Griffin was the only person in the apartment, and Gill asked if he lived there. Griffin responded that the living room was his "room" and he had been sleeping and showering in the apartment for about a month. Griffin later told Gill that he had been to La Cañada and Orange Grove—his registered "address"—but that he spent most of his time at the apartment, including sleeping there. The Ina Complex is more than two and a half miles from the La Cañada and Orange Grove intersection and, as a result, is beyond the reach of any flyers sent to area residents based on Griffin's registration.

¶7 Griffin was charged with fraudulent scheme and artifice pursuant to A.R.S. § 13-2310(A) and failure to register as a sex offender. Before trial, Griffin moved to dismiss the fraudulent scheme and artifice charge, claiming that § 13-2310(A) is unconstitutionally vague and it was not the legislature's intent for it to apply to sex offender registration. Specifically, Griffin claimed that the terms "scheme," "artifice," and "benefit" are not sufficiently definite. The state opposed the motion, and the trial court ruled that "the statute is not unconstitutionally vague, nor is it overly broad." It further found that "the benefit that Mr. Griffin received, if, in fact, this occurred, was the fact that he didn't have to notify folks in the apartment complex of his conviction."

¶8 A jury found Griffin guilty of fraudulent scheme and artifice and not guilty of failure to register as a sex offender. Griffin then filed a motion for new trial, again claiming that § 13-2310 was "improperly applied," and the state presented insufficient evidence to sustain the conviction. Griffin claimed that he received no statutory "benefit" from the false registration. The trial court denied the motion.

¶9 At sentencing, the state offered evidence of Griffin's felony conviction in 2008 for an offense committed in 2007 as an historical prior felony conviction for sentencing enhancement purposes. Griffin objected to the use of that conviction as an enhancement because the resulting sentence had been served more than five years before his conviction here, and was thus ineligible for enhancement consideration. The state argued that, in light of his incarceration for other offenses thereafter, and the exclusion of such periods of incarceration from the time calculation, the 2008 conviction could serve as an historical prior felony conviction enhancement. The trial court, however, determined that, because a 2016 conviction, for which Griffin had been imprisoned following the 2008 conviction, had been since vacated, the period of imprisonment would not be excluded, and thus the 2008 conviction was ineligible for enhancement consideration.

¶10 Griffin timely appealed his conviction and sentence, and the state cross-appealed the trial court's sentencing determination. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4032, and 13-4033(A).

Analysis

Fraudulent Scheme or Artifice

¶11 Griffin argues on appeal, as he did below, that the application of § 13-2310 to sex offender registration offenses is contrary to legislative intent.² He further argues that, even were we to hold that § 13-2310 applies to sex offender registration offenses, he never received a "benefit" as a result of his failure to update his registration and did not "use[ ] false or fraudulent pretenses" and thus there was insufficient evidence to convict him under § 13-2310.

Application of § 13-2310

¶12 We review questions of statutory interpretation de novo . State v. Henry , 205 Ariz. 229, ¶ 13, 68 P.3d 455 (App. 2003). In construing a statute, our goal is to give effect to the legislature's intent. Id. ¶ 14. A legislature expresses its intent through the words used in the statute; consequently, we look to the statutory words used and give them their plain and ordinary meaning. State v. Bon , 236 Ariz. 249, ¶ 6, 338 P.3d 989 (App. 2014). We do not engage in other methods of statutory interpretation, such as examining legislative history or statutory context, unless we find the statutory language vague. Id. ; Meyer v. State , 246 Ariz. 188, ¶ 6, 436 P.3d 511 (App. 2019).

¶13 Section 13-2310(A) provides that "[a]ny person who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions is guilty of a class 2 felony." Notably, the text of § 13-2310 does not limit its application to specific circumstances, and we have, accordingly, adopted a broad view of the statute.

State v. Haas , 138 Ariz. 413, 423, 675 P.2d 673, 683 (1983). Our supreme court, in interpreting § 13-2310, explained that the "statute proscribes conduct lacking in ‘fundamental honesty [and] fair play ... in the general and business life of members of society’ " and thus the "definition of ‘fraud’ must be broad enough to cover all of the varieties made possible by boundless human ingenuity." Id. at 424, 675 P.2d at 684 (alterations in Haas ) (quoting Blachly v. United States , 380 F.2d 665, 671 (5th Cir. 1967) ). And, further, that the terms "a scheme or artifice," cover "some ‘plan,...