State v. Zichko

• Citation: 923 P.2d 966,129 Idaho 259
• Decision Date: 29 July 1996
• Docket Number: No. 21815,21815
• Parties: STATE of Idaho, Plaintiff-Respondent, v. John J. ZICHKO, Defendant-Appellant. Coeur d'Alene, May 1996 Term
• Court: United States State Supreme Court of Idaho

Page 966

923 P.2d 966

129 Idaho 259

STATE of Idaho, Plaintiff-Respondent, v. John J. ZICHKO, Defendant-Appellant.

No. 21815.

Supreme Court of Idaho,

Coeur d'Alene, May 1996 Term.

July 29, 1996.

Bennett & Ireland, P.A., Coeur d'Alene, for appellant. Kerwin C. Bennett, argued.

Alan G. Lance, Attorney General; Lamont L. Anderson, Deputy Attorney General (argued), Boise, for respondent.

SCHROEDER, Justice

John Zichko appeals from a district court judgment of conviction and sentence entered upon a jury verdict finding him guilty of failing to register with the Kootenai County Sheriff's Office pursuant to section 18-8304 of the Idaho Code, the Sex Offender Registration Act.

I. BACKGROUND AND PRIOR PROCEEDINGS

Zichko was released from the custody of the Idaho Board of Correction on March 28, 1994. Prior to his release a department of correction official gave Zichko a written notice of his duty to register which Zichko signed. Zichko traveled to Kootenai County and stayed at the St. Vincent de Paul men's shelter in Coeur d'Alene from March 31 through April 5, 1994. He was served with an arrest warrant on April 7, 1994, for failure to register with the Kootenai County Sheriff's Office as a sex offender within five days of entering the county.

Zichko moved to dismiss the charge on the basis that: (1) section 18-8304 is void for vagueness; (2) he was arrested prematurely because the five-day statutory registration period does not include Saturday and Sunday; (3) in the alternative, if the five-day period includes Saturdays and Sundays, he was denied equal protection under the law; and (4) he was prevented from complying with the act because the place of registration was within a three-mile radius of his former Sandra Brillon was the manager of the St. Vincent de Paul shelter in March and April of 1994. She testified that when Zichko arrived at the shelter on March 31, 1994, he told her that he had been in the Coeur d'Alene area since the previous day.

wife's place of employment, and thus was within an area he was prohibited from entering pursuant to a civil protection order. The district court denied Zichko's motion, and the case proceeded to trial.

Glen Sommerfield, a Department of Health and Welfare eligibility examiner, testified that on March 31, 1994, Zichko applied for food stamps, Medicaid, and a state grant, listing the shelter as his address on the application form. Sommerfield also testified that he advises applicants that they must be a resident of Kootenai County to apply for benefits, and that they must verify their claim of residency by signing the back of the application's first page. Sommerfield advised Zichko accordingly, and Zichko filled out the residency verification and signed the application.

The jury found Zichko guilty of failing to register pursuant to section 18-8304(1) of the Sex Offender Registration Act. Following a presentence investigation, the district court entered a judgment of conviction and sentence committing Zichko to the Idaho State Board of Correction for an indeterminate term of five years with no fixed minimum. Zichko was given credit for 219 days previously served.

Zichko appeals his conviction and sentence, raising those grounds asserted in his motion to dismiss before the district court and asserting error at trial in the admission of evidence and failure to give requested jury instructions.

II.

SECTION 18-8304(1) OF THE IDAHO CODE IS NOT UNCONSTITUTIONALLY VAGUE.

Idaho Code section 18-8304(1) provides as follows:

Any person who becomes subject to the provisions of this chapter on or after July 1, 1993, shall register, within five (5) days of coming into any county, with the sheriff of the county in which that person resides or is temporarily domiciled.

I.C. § 18-8304(1).

The legislative findings in Idaho Code section 18-8302 indicate that the purpose of the Sex Offender Registration Act is to aid law enforcement in the protection of their communities by requiring sex offenders to register with local law enforcement agencies. Section 18-8302 identifies those targeted to be "individuals who have pled guilty to or have been found guilty of sex offenses who live within their [local law enforcement] jurisdiction." I.C. § 18-8302 (emphasis added).

Zichko maintains that I.C. § 18-8304(1) is unconstitutionally vague and must be declared void for vagueness, because it fails to define the terms "resides" or "temporarily domiciled."

The reasons underlying the void for vagueness doctrine are set forth in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972):

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

408 U.S. at 108-09, 92 S.Ct. at 2298-99 (footnotes omitted).

Grayned has been cited with approval by this Court in Voyles v. City of Nampa, 97 Idaho 597, 599, 548 P.2d 1217, 1219 (1976), and State v. Bitt, 118 Idaho 584, 585-86, 798 Idaho Code section 18-8304(1) does not regulate constitutionally protected conduct or preclude a significant amount of constitutionally protected conduct. Further, the statute gives notice to those who are subject to it of its requirements and establishes sufficient guidelines for those charged with enforcement to distinguish between what is lawful and what is not. The language in I.C. § 18-8302 encompassing those who live "within their [local law enforcement] jurisdiction," read together with the terms "resides" or "temporarily domiciled" in I.C. § 18-8304(1), is sufficient for those of ordinary intelligence to understand the conduct that is required. Persons subject to the law and those charged with enforcement have a reasonable opportunity to understand the conduct that is encompassed within the words "live within," "resides," or "temporarily domiciled." Those terms clearly connote more than a passing through or presence for a limited visit. "What ifs" can be posed to question isolated cases, but the concept enunciated in Bitt that a statute must have a "core of circumstances" to which the statute "could be unquestionably constitutionally applied" is present in section 18-8304(1) and can be understood by those of ordinary intelligence. 118 Idaho at 588, 798 P.2d at 47.

                P.2d 43, 44-45 (1990).  In Bitt this Court reviewed the prior cases interpreting the void for vagueness doctrine and developed a test for its application.  118 Idaho at 587, 798 P.2d at 46.   First, the Court must determine if the law regulates constitutionally protected conduct.  Id. at 587-88, 798 P.2d at 46-47.   If so, the Court must determine whether the ordinance precludes a significant amount of the constitutionally protected conduct.  Id. at 588, 798 P.2d at 47.   If that be the case, the law is likely overbroad.  If the law passes these threshold tests, the final step is to determine if the law gives notice to those who are subject to the law of its requirements or limitations and sets forth adequate guidelines for those who must enforce the law so they may distinguish between what is prohibited and what is allowed.  Id
                

In this case Zichko filled out a welfare benefits application stating that he resided in Kootenai County. This indicates a clear understanding that he was more than a visitor or tourist who was passing through. ¹ The statute gave him adequate notice of the obligation it imposed, and he violated it.

III.

ZICHKO'S ARREST WAS NOT PREMATURE AND DID NOT VIOLATE STANDARDS OF EQUAL PROTECTION.

Zichko maintains that he was arrested prior to the expiration of the five day period for registration. According to Zichko's argument, he arrived in Kootenai County on Thursday, March 31, 1994, and was arrested for failure to register on Thursday, April 7th. He maintains that this cannot be counted as a full five-day calendar period, because the driver's license bureau where sex offenders are required to register in Kootenai County was not open Saturdays and Sundays. Therefore, he maintains that he did not have five actual days to accomplish the registration. He argues, further, that if this constitutes five days within the meaning of the statute he was denied equal protection under the Idaho and United States Constitutions, because a person entering the county on a Sunday would have five actual days to comply with the statute.

There are several flaws with Zichko's position.

Zichko advised the manager of the St. Vincent De Paul shelter on March 31, 1994, that he had been in the county for a day prior to coming to the shelter. Therefore, the jury had evidence that he had entered Kootenai County on Wednesday, March 30th. He was arrested on Thursday, April 7th. This evidence is uncontradicted. Therefore, he had five full working days even if Saturday and Sunday were excluded.

Even if Zichko's time computation were accepted, he would not prevail. A reading of the Sex Offender Registration Act indicates that the legislature specifically intended Zichko's argument that counting Saturday and Sunday in the computation of the five days denies him equal protection likewise fails in this case. While the practice in Kootenai County was to have sex offenders register at the driver's license bureau, deputy Kent Johnston testified that special arrangements can be made to register...