State v. Rubey
| Decision Date | 08 June 2000 |
| Docket Number | No. 990189.,990189. |
| Citation | 2000 ND 119,611 N.W.2d 888 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Larry Gene RUBEY, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Merle Ann Torkelson, State's Attorney, Washburn, ND, for plaintiff and appellee.
Gregory Ian Runge, Bismarck, ND, for defendant and appellant.
[¶ 1] A jury convicted Larry Gene Rubey of violating the sex offender registration requirement. He appealed from the conviction and from an order denying his motion to dismiss. We affirm.
[¶ 2] On May 17, 1988, Rubey pled guilty to two counts of Gross Sexual Imposition, a Class B Felony, for offenses committed in 1985 and 1986 against a child under the age of 15. Imposition of the sentence was deferred and Rubey was placed on supervised probation. In October 1990, Rubey's probation was revoked and he was sentenced to five years imprisonment. Rubey was released in April 1994.
[¶ 3] In June 1996, Rubey moved to McLean County, specifically 321 Main Avenue in Washburn, N.D. The McLean County Sheriff's Office advised Rubey to register as a sex offender. Rubey registered on August 3, 1996. At that time, Rubey signed a form acknowledging, among other things, he understood: "if I should make any change at all in my address, I must notify this same law enforcement agency of my intended new address within ten days of moving to that new address."
[¶ 4] In March 1997, Rubey was ordered to remove himself from the Washburn residence at the Washburn address under a permanent protection order. He left Washburn and did not return. He lived for a few days at the Ruth Meiers Hospitality House in Bismarck and then helped with volunteer flood relief in Fargo for a few days. Thereafter, Rubey began work as a trucker for Piper John Express Trucking Company of Mandan, N.D. Rubey asserts he lived out of his truck thereafter and did not stay at any one place for more than three or four days. In May or June of 1997 Rubey obtained a new address, P.O. Box 356, Mandan, N.D. Rubey did not notify the McLean County Sheriff's Office of any change in his address after he left Washburn.
[¶ 5] Rubey was charged with violating the sex offender registration requirement in McLean County. Rubey moved to dismiss the charge against him because the allegation against him failed to state a claim for which he could be convicted. A jury found Rubey guilty of violating the sex offender registration requirement.
[¶ 6] Rubey argues the district court should have dismissed the charges against him because the district court in which Rubey was convicted in 1988 failed to provide Rubey with notice of his duty to register.1 The issues on this appeal require us to interpret section 12.1-32-15, N.D.C.C., and determine its proper application. The interpretation of a statute is a question of law, which we fully review on appeal. Anderson v. Hensrud, 548 N.W.2d 410, 412 (N.D.1996).
(emphasis added).
[¶ 8] The registration requirement did not exist when Rubey pled guilty in 1988 or when his probation was revoked and he was sentenced in 1990. Consequently, the Wells County District Court did not notify Rubey or require him to register. The sex offender registration law was enacted in 1991, but has significantly evolved since then. See 1991 N.D. Sess. Laws ch. 136. Originally, registration was only required if a court ordered it. Id. Amendments in 1993 required courts to impose the registration requirement if a person was convicted as a sex offender. 1993 N.D. Sess. Laws ch. 129, § 3. The legislature amended the law in 1995 and 1997; the 1997 law applies here. Under that law, persons were required to register not only if they had been required to by a court, but if that person:
a. Is incarcerated or is on probation or parole on August 1, 1995, for a crime against a child or as a sexual offender;
b. Has pled guilty or nolo contendere to, or been found guilty of, an offense in a court of another state or the federal government equivalent to those offenses set forth in subdivisions a and c of subsection 1; or
c. Has pled guilty to or been found guilty of a crime against a child or as a sexual offender within ten years prior to August 1, 1995.
N.D.C.C. § 12.1-32-15(3) (1997).
[¶ 9] Rubey was required to register under subsection c above because he pled guilty to a crime against a child and as a sex offender within ten years prior to August 1, 1995. Thus, the statute applicable to Rubey's conviction in 1988 did not require him to register only if required to do so by a court. The statute specifically required him to register.
A nonregistered offender within any of the three categories added in 1995 would not have been advised by any North Dakota judge of the duty to register. Those offenders on probation or parole would have already been sentenced. Offenders convicted in other states would not have been advised by judges in those states about North Dakota's registration requirements. An offender like Burr could not have been told of the duty to register, because he had no duty until August 1, 1995....
[Burr's] conviction stands, and the criminal conduct he is charged with in this case is failing to comply with registration provisions in light of the earlier conviction.
[¶ 11] Under the statute, the fact the Wells County District Court did not inform Rubey he was required to register does not relieve him of the obligation to register.
[¶ 12] Rubey argues the conviction fails because the State did not prove Rubey changed his residence. That is, Rubey lived out of his truck and only stayed in one place for three or four days. He never had a "home," a place where he was habitually present, and which he intended to return to after being away for business or pleasure. See Dietz v. City of Medora, 333 N.W.2d 702, 705 (N.D.1983) ().
[¶ 13] Rubey was convicted under N.D.C.C. § 12.1-32-15(6), which says, in relevant part: "If a person required to register pursuant to this section has a change in name or address, that person shall inform in writing, within ten days, the law enforcement agency with whom that person last registered of the person's new name or address." Section 12.1-32-15, N.D.C.C., uses several terms relating to address and residence, including: "address where the person expects to reside," the "county in which the person resides or is temporarily domiciled," and merely "address." In subsection six, the legislature uses "address," but does not define the term.
[¶ 14] Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. The dictionary defines "address" as "[t]he written directions on mail indicating destination" and "[t]he location at which a person or organization may be found or reached." American Heritage College Dictionary p. 15 (1997). The legislature's use of "address" rather than "residence" indicates an intent to include both mailing addresses and residential addresses.
[¶ 15] Moreover, the following analysis counsels the legislature's use of the broad term "address" was conscious, not an act without thought. North Dakota's registration statute was patterned after California's sex offender registration legislation. Hearing on S.B. 2574 Before the House Human Services and Veterans Affairs Comm., 52nd N.D. Legis. Sess. (March 21, 1991) (testimony of Sen. Robinson). However, California's provision regarding change of address reads, "If any person who is required to register pursuant to this section changes his or her residence address or location ... the person shall inform ... the law enforcement agency or agencies with which he or she last registered of the new address or location." Cal.Penal Code § 290(f)(1). Significantly, N.D.C.C. §...
To continue reading
Request your trial
-
Olsen v. State
...order him to do so based on the language currently appearing in N.D.C.C. § 12.1–32–15(3)(b) and (8) and this Court's decision in State v. Rubey, 2000 ND 119, ¶¶ 6–11, 611 N.W.2d 888. The State contends Olsen did not raise in the district court the issue about a court's discretion to impose ......
-
Denault v. State
...when a judge is not involved, and a majority of this Court has previously held the sexual offender registration statute valid. See State v. Rubey , 2000 ND 119, ¶¶ 10–11, 611 N.W.2d 888 ; State v. Burr , 1999 ND 143, ¶¶ 26–27, 598 N.W.2d 147. The State asserts Rubey and Burr establish that ......
-
Santos v. State
...through the cracks," disappear from law enforcement view and thus thwart the purpose for which this law was enacted. State v. Rubey, 611 N.W.2d 888, 892(II) (N.D.2000). If Santos lost his temporary address when he was asked to leave the shelter, he was required to report that fact to the sh......
-
Erickson v. Rubey (In re Rubey)
...counts of corruption or solicitation of a minor. Rubey received a twelve-year prison sentence, which this Court affirmed. State v. Rubey, 2000 ND 119, 611 N.W.2d 888. The State petitioned to commit Rubey as a sexually dangerous individual prior to Rubey's release. Rubey was committed as a s......