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Dailey v. State (3/14/2003) ap-1861
Dailey v. State (3/14/2003) ap-1861
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GARY W. DAILEY, )
) Court of Appeals No. A-
7969
Appellant, ) Trial Court
No. 3KN-00-503 CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No.
1861 March 14, 2003]
)
Appeal from the District Court, Third Judi
cial District, Fairbanks, David S. Landry,
Magistrate.
Appearances: Darin B. Goff, Assistant Public
Defender, Kenai, and Barbara Brink, Public
Defender, Anchorage, for Appellant. Scot H.
Leaders, Assistant District Attorney, Kenai,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
A jury convicted Gary W. Dailey of three counts of
failing to comply with the Alaska Sex Offender Registration Act
(ASORA).1 On appeal, Dailey contends that Magistrate David S.
Landry erred when he refused to dismiss the three charges, when
he instructed the jury on the definition of knowingly, when he
refused to allow Dailey to introduce evidence that he had
subsequently complied with ASORA, and when he denied Daileys
motion for a judgment of acquittal. For the reasons below, we
affirm Daileys convictions.
Facts and proceedings
Dailey was required to register as a sex offender under
ASORA beginning in 1996 and to file sworn quarterly verification
reports beginning in 1999.2 In September 1999, December 1999,
and April 2000, Dailey prepared quarterly verifications, but
refused to sign and attest that the information in those
verifications was accurate. For each of these three unsworn
verifications, he was charged under AS 11.56.840(a)(4) for not
complying with AS 12.63.010(e), the subsection that requires sex
offenders to file sworn quarterly verifications.
Before trial, Dailey moved to dismiss the charges on
the ground that his refusals to swear to the contents of each
quarterly verification report he filed did not constitute
criminal offenses under AS 11.56.840. Dailey also argued that
the statute was unconstitutionally vague. The State opposed and
Magistrate Landry denied the motion.
Before trial, the State sought a protective order to
bar Dailey from introducing evidence that, after he was charged
with the instant offenses, he properly filed sworn quarterly
verifications. Over Daileys objection, this motion was granted.
The case proceeded to a jury trial, with Magistrate
Landry presiding. During trial, Alaska State Trooper Karl J.
Erickson testified that Dailey had said he would continue to
refuse to sign his forms. Dailey asked Magistrate Landry to
reconsider the protective order. He argued that the State had
opened the door, and that the evidence that he was now complying
with ASORA was admissible to rebut the States evidence that he
had said that he would never properly register. Magistrate
Landry reaffirmed his decision to grant the protective order.
However, he also determined that the States evidence that Dailey
had said he would continue to refuse to sign the forms was not
relevant to whether Dailey did or did not comply with the
registration requirements. He instructed the jury not to
consider the testimony for this purpose; he also refused to allow
Dailey to introduce evidence of his recent compliance. At the
close of the States case-in-chief, Dailey moved for a judgment of
acquittal. Magistrate Landry ultimately denied this motion.
When the parties discussed jury instructions, Dailey
offered an instruction defining knowingly in a way that he argued
would have required the State to prove that Dailey knew he had a
duty to file sworn verification forms. He generally argued that
because he was charged with a failure to act, the State had to
prove that he was aware that he had a duty to act. He argued
that without this additional element, the crime became one of
strict liability. Magistrate Landry rejected Daileys instruction
and gave a pattern jury instruction that used the statutory
definition of knowingly.3
The jury found Dailey guilty on all three counts.
Discussion
Should the trial court have dismissed the
charges on the grounds that refusing to file
sworn quarterly verification forms is not a
criminal offense under AS 11.56.84 or because
the statutory scheme involved is
unconstitutionally vague?
Dailey asserts that his failure to swear to the
accuracy of the information in the verification forms was not an
element of the offense of failing to register as a sex offender.
He argues that AS 11.56.840 does not criminalize the failure to
file a sworn verification. He points out that while AS
11.56.840(a)(4) requires him to provide the information required
in AS 12.63.010(b), a sworn signature is not listed as part of
the required information, nor, he argues, is a signature itself
information. He also claims that this statutory scheme is
unconstitutionally vague because he lacked notice that it was a
criminal offense to knowingly fail to file sworn verification
forms.
To resolve Daileys claim, we must interpret the last
clause of AS 11.56.840(a). This statute provides that a person
commits the crime of failure to register as a sex offender in the
second degree if the person knowingly fails to (1) register, (2)
file the written notice of change of address, (3) file the annual
or quarterly written verification, or (4) supply all of the
information required to be submitted under (1)-(3) of this
subsection, as required in AS 12.63.010.4 The question is
whether the clause as required in AS 12.63.010 refers solely to
subsection (4) of AS 11.56.840(a), or whether it refers to all
four subsections. Based on the legislatures clear intent in AS
12.63.010- AS 12.63.100 to require convicted sex offenders to
register and to periodically provide certain information to the
State, we conclude that the legislature intended this clause to
refer to all four subsections of AS 11.56.840. Hence, Dailey was
required to file ... quarterly written verification[s] ... as
required in AS 12.63.010.5
Under AS 12.63.010(b), (d), and (e), sex offenders
required to register under AS 12.63.010(a) are required to
provide certain information to the state. Convicted sex
offenders who, like Dailey, are required to register for life ...
shall, not less than quarterly, on a date set by the department,
provide written verification to the department, in the manner
required by the department, of the sex offenders ... address and
any changes to the information previously provided under (b)(1)
of this section.6 Furthermore, subsection (e) requires that the
required ... quarterly verifications must be sworn to by the
offender ... and contain an admonition that a false statement
shall subject the offender ... to prosecution for perjury.7
Thus, AS 12.63.010 requires sworn quarterly
verifications. By refusing to swear to the accuracy of the
information in his verification forms, Dailey failed to file ...
quarterly written verification[s] ... as required in AS
12.63.010.8 Hence, each time Dailey knowingly failed to provide
a sworn quarterly verification form, he committed the offense
defined in AS 11.56.840(a)(3).
Although Dailey separately argues that this scheme is
unconstitutionally vague because it did not provide him with
adequate notice that his conduct was a criminal offense, we
conclude that the statutes provided him with adequate notice that
it was a crime to knowingly fail to file sworn written quarterly
verification forms.
We conclude that Magistrate Landry did not err when he
denied Daileys motion to dismiss.
Did Magistrate Landry err when he instructed the
jury on the elements of failing to file sworn
quarterly verifications?
Under AS 11.56.840(a), it is an offense for a person to
knowingly fail[] to ... file ... the quarterly written
verification, or ... supply all of the information required to be
submitted under (1)-(3) of this subsection, as required in AS
12.63.010. Here, Dailey was charged with knowingly failing to
file sworn quarterly written verifications of his sex offender
registration. The actus reus of this offense was his failure to
file sworn verifications. The culpable mental state that applies
to this element of the offense is knowingly. But, because Dailey
was prosecuted for a failure to act, the State also had to prove
a second culpable mental state: that Dailey was aware of the
circumstances that triggered his duty to act.9 In other words,
to convict Dailey of failure to file sworn written quarterly
verifications, the State had to prove both that Dailey was aware
of the circumstances giving rise to his duty to file sworn
quarterly written verifications and that he knowingly refrained
from performing that duty.
Daileys jury was instructed that, among other things,
the State had to prove for each count that Dailey had knowingly
failed to file a sworn quarterly written verification. Daileys
attorney did not expressly object to this instruction on the
ground that the State, in addition to proving that he had
knowingly failed to file, had to prove that he was aware of the
duty to file. He did, however, generally object below to any
instruction that directs the jury to convict if he doesnt sign
the form, because I think thats oversimplified; I think ... it
creates problems with the mens rea. He argued that the courts
proposed pattern instruction for knowingly made the offense a
strict liability crime, where if an individual simply fails to
register, and ... knows he didnt register, well, thats the end of
the story. He went on to say that [w]hat weve got here is a
crime of omission. ... [I]f you dont know that you have a duty to
register, you cant knowingly fail to register.
After making this objection, Dailey offered the
following instruction to define the culpable mental state he
thought was required:
A person has the required mental state
for the crime of failure to register as a sex
offender if one of the following is true:
1. The person knew that the person had a
duty to file a sworn quarterly written
verification;
2. The person was aware of and consciously
disregarded a substantial and unjustifiable
risk that he had a duty to file a sworn
quarterly written verification; or
3. The person failed to perceive a
substantial and unjustifiable risk that the
person had a duty to file a sworn quarterly
written verification.
Disregard of, or failure to perceive the
risk must, under the circumstances, amount to
a gross deviation from the standard of care
that a reasonable person would observe in
this situation.
He noted that he had derived this instruction from one used for
driving while license suspended and argued that it more
accurately defined the culpable mental state required for a malum
prohibitum crime. Magistrate Landry refused to give this
instruction. He said that theres no way Im going to, in a
knowingly jury instruction, provide language that both tracks ...
reckless and ... criminal negligence. Daileys attorney then
asked if Magistrate Landry wanted him to provide some other
instruction, or if the court was going to proceed with another
version of the instruction. Magistrate Landry ruled that he was
going to stick with the knowingly instruction that has been the
pattern instruction that Ive always used in the past. He later
gave the following jury instruction:
A person acts knowingly with respect to
conduct or to a circumstance described by a
provision of law defining an offense when the
person is aware that the conduct is of that
nature or that the circumstance exists. When
knowledge of the existence of a particular
fact is an element of an offense, that
knowledge is established if a person is aware
of a substantial probability of its
existence, unless the person actually
believes it does not exist.
We find that the instruction Magistrate Landry gave
defining knowingly was proper. However, while we agree with
Magistrate Landrys decision to reject Daileys requested
instruction, we also find that the jury was not clearly
instructed that the State had to prove that Dailey was aware of
the circumstances giving rise to his duty to file signed and
attested verifications. Below, Dailey should have objected to
the instructions that defined the elements of the charged
offenses, rather than the definition of knowingly. But, despite
the fact that both his objections and his proposed instruction
served to confuse this issue more than to provide guidance, we
find that Dailey adequately alerted the district court that the
jury instructions were incomplete.10 Because this omission was
an error that lies in the courts definition of the elements of
the offense, we must reverse Daileys conviction unless we are
convinced that the error was harmless beyond a reasonable
doubt.11 In determining whether errors are harmless beyond a
reasonable doubt, the question is whether there is a reasonable
possibility that the error affected the result.12
The jury heard overwhelming evidence that Dailey knew
he was obliged to sign and attest to the verification forms.
First and foremost, Dailey in his testimony never actually said
he was unaware of his duty to sign and attest to the information
on the forms. Additionally, the evidence showed that in August
1999, the Department of Public Safety had mailed to all sex
offenders from a list that included Dailey notice that they
were required to file complete verification forms. This notice,
which included a blank verification form, explained that the
verification form must be complete, that it had to be signed, and
that it had to be signed in front of a notary or an agency
representative, if available. The notice also indicated in bold
font that [f]ailure to return your completed registration form
... may cause you to be out of compliance with Alaskas
registration law.
The verification forms themselves instructed sex
offenders to provide a signature and a date. The evidence also
included copies of Daileys previous annual verification forms,
which he had signed. Daileys own testimony at trial illustrates
that he read the forms, that he was aware that he had to sign and
attest to the information on the verification forms, but that he
chose not to because he was afraid of committing perjury.
Additionally, the September 1999 form showed that
Dailey consciously refused to provide a sworn signature writing I
do not swear or attest and I will not pay to do this (that is,
pay for a notary) in the signature section of the verification
form. There was similar evidence that Dailey was told his
December 1999 form was incomplete without his sworn signature,
but that he nevertheless refused to sign and complete [the] form;
when told the form was not completed properly, he said he wasnt
going to do it and walked out. Dailey conceded in his testimony
that he had been told that he had to sign the December form, but
that he wouldnt sign it. Furthermore, Dailey told Trooper
Erickson that he had not signed his verification forms in part
because he felt he should no longer have to register.
Additionally, on the April 2000 form, Dailey dated the signature
block, but submitted it unsigned.
Based on the evidence in this case, no reasonable juror
could have found that Dailey was unaware of the duty to sign and
attest to the information he provided in the quarterly
verifications. We therefore conclude that the error in the jury
instructions was harmless beyond a reasonable doubt.
Should the trial court have allowed Dailey to
rebut a witnesss testimony that indicated
that he had claimed that he would never
register?
As we mentioned above, the court granted the States
request for a protective order precluding Dailey from introducing
evidence that, after he was charged with the instant cases, he
began to comply with ASORA by submitting sworn verifications.
On appeal, Dailey argues that he should have been
allowed to rebut the testimony that he would never register. He
claims that once Trooper Erickson presented evidence that Dailey
had no intention of complying with the registration statute,
Dailey should have been afforded the opportunity to rebut that
assertion with evidence that he did, in fact, sign the form after
learning of the statutory requirement to do so.
At trial, immediately following Ericksons testimony,
Daileys attorney made this same point: Your honor, I think [the
State] has opened the door to the issue of whether or not Mr.
Dailey did continue to refuse. ... [The States] positing [as its]
theory [in] this case that my client is defiant, and that hes
never going to [register]. Dailey asked to introduce evidence
that after he was charged, he had complied with ASORAs
registration requirements. The magistrate, however, refused to
change his earlier ruling that evidence of Daileys subsequent
compliance was inadmissible.
Dailey then asked for an instruction that the troopers
comment that [Dailey] would never register [was] irrelevant,
because I have no way of rebutting it. The State countered that
the evidence of Daileys statement was relevant to Daileys state
of mind at the times he failed to register, while evidence of his
subsequent compliance was not. After this discussion, Magistrate
Landry cautioned the jury to not consider the troopers testimony
that Dailey said he would refuse to file sworn verification forms
in the future as evidence that Mr. Dailey did or did not comply
with the registration requirements. Dailey did not object to
this instruction, nor did he ask for any additional language.
Ordinarily we presume that a jury follows the courts limiting
instructions.13 Here, we conclude that Magistrate Landrys
instruction was adequate to address Daileys concern about
rebutting the troopers testimony.
Dailey also appears to argue that evidence of his
subsequent compliance should have been admitted as evidence that
he had not understood he had a duty to sign his verification
forms. He claims that this evidence may have led the jury to
entertain reasonable doubt as to [his] guilt[,] ... especially
[concerning] the knowing element of the offense. But evidence
that Dailey began to file verified registration forms after he
was charged with the instant offenses was at best only marginally
relevant to show his mental state before he was charged.
Moreover, the magistrate had, prior to the start of trial,
already ruled that this marginal evidence was outweighed by the
risk of confusing or misleading the jury.14
We will not overturn an evidentiary ruling in
the absence of a clear abuse of discretion.15
Here, we conclude the magistrate did not
abuse his discretion when he excluded
evidence of Daileys subsequent compliance
with ASORA.16
Should the trial court have granted Daileys
motion for a judgment of acquittal?
At the close of the States case-in-chief, Dailey moved
for a judgment of acquittal. Magistrate Landry denied his
motion. On appeal, Dailey argues that this was error.
When a defendant attacks a conviction for insufficiency
of the evidence, this court must view the evidence presented, and
reasonable inferences from the evidence, in the light most
favorable to upholding the jurys verdict.17 Viewing the evidence
from this perspective, this court must decide whether a
fair-minded juror exercising reasonable judgment could conclude
that the State had met its burden of proving guilt beyond a
reasonable doubt.18
Considering only those facts in the record most
favorable to the prosecution and such reasonable inferences as a
jury may have drawn from them,19 the evidence showed that Dailey
knew that he had a duty to register, that he was required both by
statute and by the administering agency, the Department of Public
Safety, to file sworn written quarterly verification forms, and
that he knowingly failed to file them. The State put on three
witnesses: Trooper Erickson, and two Department of Public Safety
employees, Barbara Lynn Roper and Leda Evans. Erickson testified
that he stopped Dailey for a vehicle equipment violation. During
the stop, he discovered that Dailey was considered non-compliant
with ASORA. The information Erickson received indicated that
Dailey had refused to sign his verification forms. When asked,
Dailey admitted that he had not signed the verification forms.
Erickson testified that Dailey said that he was not going to be
signing anything, ... and that if it meant jail, that was fine
with him. According to Erickson, Dailey also said that he had
served his time and that he did not believe that he had to be
involved with the registration requirements. Dailey did not say
that he did not understand the form or that he had been concerned
about committing perjury.
Roper, a clerk who worked in the Soldotna trooper post,
testified that Dailey brought the December 1999 form to her
office to file; she told him that it had to be signed and
completed. According to Roper, Dailey refused to do so and
walked out. Again, Dailey did not ask any questions about the
form or about the need to sign it. He did not indicate that he
did not understand what he was supposed to do or ask for any
assistance. Instead, when told the form was not completed
properly, he said he wasnt going to do it and walked out. Roper
then wrote on Daileys unsworn verification form that Dailey had
refused to sign.
Evans, the supervisor for the sex offender central
registration program, testified that beginning in 1999, Dailey
was required to register quarterly. She testified that all sex
offenders, including Dailey, were notified of this requirement by
letter in August 1999. This letter, which included a blank
verification form, explained that the verification form had to be
completed and signed, and that it had to be signed in front of a
notary or an agency representative, if available. The letter
also indicated in bold font that [f]ailure to return your
completed registration form in the time specified may cause you
to be out of compliance with Alaskas registration law.
Evans also said that quarterly reminders were mailed,
along with a blank verification form. She testified that Dailey
had submitted his September 1999 form to the central registry by
mail but had not signed it. She said that on that form he had
scratched out the language stating I certify under penalty of
perjury that the above information and attachments are true and
had written I do not swear or attest. Evans testified that the
verification form was not valid because Daily had refused to
attest to the information he was providing. Evans testified that
the December 1999 form that had been given to Roper in Soldotna
was also invalid because he had refused to sign and complete the
form.
Evans then testified that the State had sent notice in
April 2000 to Dailey that his last valid verification was from
December 1998; she said that the other verifications were invalid
because they all were unsigned. She testified that Dailey mailed
his April 2000 verification form to central registry but that it
too was not signed. Evans said that generally when a
verification form is mailed to the central registry unsigned, the
department does not immediately treat it as an intentional
violation because there is a chance the offender forgot to sign
the form. The department conducts a follow-up investigation to
see if there was an ASORA violation.
Evans testified that despite the fact that central
registry accepted Daileys verification forms and considered him
compliant pending follow-up investigations, Dailey had in fact
not complied in September 1999, December 1999, or April 2000.
She testified that based on her review of the forms, Dailey had
intentionally refused to sign the September and December forms
and was not in compliance with ASORA with any of the three forms.
Dailey admitted in his testimony that he knew he had to
register. He said that he refused to sign the forms because he
was concerned with the perjury warning. He also admitted that
Roper informed him his December 1999 form was incomplete because
it was not signed but acknowledged that he told her to file it
anyway.
Looking at the evidence in the light most favorable to
the State and at all reasonable inferences that the jury may have
drawn from that evidence, there was sufficient evidence to
support Daileys convictions for knowingly failing to file sworn
written quarterly verification forms in September 1999, December
1999, and April 2000.
Conclusion
Daileys convictions are AFFIRMED.
_______________________________
1 AS 11.56.840(a)(4); AS 12.63.010.
2 See AS 12.63.010.
3 See AS 11.81.900(a)(2).
4 Emphasis added.
5 See AS 11.56.840(a)(3).
6 See AS 12.63.010(d)(2) (emphasis added).
7 AS 12.63.010(e) (emphasis added).
8 See AS 11.56.840(a)(3).
9 See, e.g., Lambert v. California, 355 U.S. 225, 229-30,
78 S.Ct. 240, 243-44, 2 L.Ed.2d 228 (1957) (holding that a person
could not be convicted consistently with due process for failure
to register as a felon if the person did not know of the duty to
register and there was no proof of the probability of such
knowledge); Hentzner v. State, 613 P.2d 821, 826 (Alaska 1980)
(holding that consciousness of wrongdoing was an element of the
offense of willfully failing to register securities); Speidel v.
State, 460 P.2d 77, 80 (Alaska 1969) (holding that the statute
punishing failure to return a rented motor vehicle was invalid to
the extent that it punished a person who had no awareness of
wrongdoing); Steve v. State, 875 P.2d 110, 122 (Alaska App. 1994)
(quoting 1 W. LaFave and A. Scott, Substantive Criminal Law
3.3(b), at 289-90 (1986)) (the prevailing view is that [one] may
not be held liable [for failing to perform an act] if [one] does
not know the facts indicating a duty to act).
10 See Ervin v. State, 761 P.2d 124, 126 (Alaska App. 1988)
(even though record was not clear, and despite the fact that the
proposed instruction misstated the law, defendants proposed
instruction preserved his objection because it was sufficient to
focus the courts attention on the issue of the culpable mental
state.)
11 See McKillop v. State, 857 P.2d 358, 366 (Alaska App.
1993); see also Raphael v. State, 994 P.2d 1004, 1010 (Alaska
2000) (constitutional error is a ground for reversal of
conviction unless the error is harmless beyond a reasonable
doubt).
12 See Smithart v. State, 988 P.2d 583, 589 (Alaska 1999).
13 See State v. McDonald, 872 P.2d 627, 654-55 (Alaska App.
1994) (citing Whiteaker v. State, 808 P.2d 270, 277 (Alaska App.
1991).
14 Alaska Evidence Rule 403 provides in part that relevant
evidence may be excluded if its probative value is outweighed by
the danger of ... confusion of the issues, or misleading the
jury[.]
15 See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980)
(the admissibility of evidence is largely within the trial courts
discretion and its rulings will not be overturned on appeal in
the absence of an abuse of discretion.).
16 Cf. Stumpf v. State, 749 P.2d 880, 900 (Alaska App. 1988)
(trial judge did not abuse discretion when excluding evidence of
defendants cooperation with the police and the fact that he made
a statement even though this evidence was marginally relevant to
establish a lack of consciousness of guilt).
17 See Simpson v. State, 877 P.2d 1319, 1320 (Alaska App.
1994).
18 See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
19 Martin v. Fairbanks, 456 P.2d 462, 464 (Alaska 1969),
partially overruled on other grounds in Whitton v. State, 479
P.2d 302 (Alaska 1970).
