On August 3, 2006, the defendant pleaded guilty to charges of assault and battery, indecent assault and battery on a child under fourteen years of age, and accosting a person of the opposite sex, and was required to register as a level three sex offender. On July 20, 2010, he was arrested and subsequently charged with violating G. L. c. 6, § 178H (a) (1) (failing to register, failing to verify registration information, failing to provide notice of change of address, or providing false information). At the defendant’s jury-waived trial, the Commonwealth alleged that the defendant, who registered on July 12, 2010, as homeless, failed to notify police that he had begun
On appeal, the defendant argues that the Commonwealth did not meet its burden of proving either that he provided false information as to his homeless status on July 12, 2010, or that his aunt’s apartment had become either his home or secondary residence, such that he had an obligation to notify the police of a change of address. He further argues that the imposition of CPSL violates his constitutional right to be free from cruel and unusual punishments under the Eighth Amendment to the United States Constitution and art. 26 of the Declaration of Rights of the Massachusetts Constitution.
Because we conclude that the evidence was insufficient, we vacate his conviction and order entry of a judgment of not guilty.
1. Background. On being classified as a level three sex offender, the defendant was required to register annually with the Lowell police department and the Sex Offender Registry Board (board). At the time the defendant initially registered, G. L. c. 6, § 178F ½, required any homeless sex offender to verify his registration information with the local police department every forty-five days.
In July, 2008, the defendant properly filled out and filed a registration form indicating that his current address was 87 Westford Street in Lowell. He also indicated that his aunt, Alma, lived at 26 Caddell Avenue, Lowell, and was his closest living relative. On July 12, 2010, the defendant appeared at the Lowell police department and registered as homeless, indicating that his mailing address was Alma’s new address at 270 Wilder Street, Lowell.
On July 20, 2010, eight days after the defendant had registered as homeless, Lowell police Detective Carlos Mercado went to Alma’s address in an attempt to locate the defendant. After a brief search, Mercado saw the defendant walking up the driveway to the apartment complex with a bicycle.
Mercado testified that he informed the defendant that he was in violation of his sex offender registration obligations, and that the defendant disagreed, telling Mercado, “I’m doing everything I’m supposed to. I’m coming in every forty-five days. I’m doing everything right. I didn’t do anything wrong.” Mercado explained to the defendant that he was in violation and that he was obliged to notify the board if he had “a secondary address or a permanent address.”
According to Mercado, the defendant “admitted the fact that he was staying there, and he was waiting to get an apartment.” He told Mercado that “as soon as he got an apartment, he was going to leave that location and report the new address.”
After placing the defendant in custody, Mercado spoke with George Flaris, the manager of a real estate office that owned a number of rental properties in Lowell, including the fourteen-unit apartment complex at 270 Wilder Street.
The judge found that the defendant had failed to register as a sex offender, but did not make specific findings regarding whether she reached her decision based on one or both of the theories presented by the Commonwealth. She sentenced him to one year in the house of correction, with community parole supervision for life.
2. Discussion, a. Legal framework. A defendant who is required to register as a sex offender fails to do so if he knowingly fails to provide notice of a change of address, or knowingly provides false information. G. L. c. 6, § 178H (a). “Level two and level three sex offenders must verify their registration information with the board annually in person at the local police department in the city or town where they live . . . .” Commonwealth v. Rosado,
A defendant’s “home address” is his primary place of residence. Commonwealth v. Bolling,
The Legislature did not define what constitutes “living,” “abiding,” lodging,” or “residing,” so we consider the statute using the plain and ordinary meaning of the words. Olmstead v. Department of Telecomm. & Cable,
b. Sufficiency of the evidence. In determining whether the evidence was sufficient to survive a motion for a required finding, we determine whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore,
It is uncontested that the defendant did not notify the police
With respect to the first question, there was scant evidence that on July 12, 2010, he was actually residing at 270 Wilder Street and not homeless. Mercado testified that on July 20, the defendant told him that he “was staying” at his aunt’s apartment until he could find another apartment. But there was no evidence of how long he had been staying there and, specifically, whether he had begun staying there before July 12, 2010. Flaris, the manager of the real estate office, testified that he had seen the defendant on the apartment complex property “almost every day” (during the day) during the month of July, but that is perfectly consistent with the defendant’s July 12 registration listing of 270 Wilder Street as his mailing address (and his receipt of Social Security disability checks there) and of Alma as his closest relative.
In order for the Commonwealth to prove beyond a reasonable doubt that 270 Wilder Street was the defendant’s “secondary address,” it had to show that the defendant “lodged” there for either fourteen days in a calendar year or for four or more days in a month. Again, the only evidence that the defendant had a secondary address was his admission that he was “staying” at the apartment, and Flaris’s testimony that he saw the defendant on the apartment complex property during the day, “almost every day” in July, 2010. The fact that the defendant was, by
So ordered.
Notes
The events in this case occurred before the enactment of St. 2010, c. 256, § 41, which now requires those who register as homeless to verify their registration every thirty days.
The defendant testified that, at the time of the offense, he was receiving Social Security disability checks at 270 Wilder Street.
General Laws c. 6, § 178C, defines “[secondary addressf]” as “all places
The complex consisted of eight townhouses and a six-unit apartment building.
By the time of the trial, the Lowell Transitional Living Center had changed its name to the Middlesex Shelter in Lowell.
There was no testimony regarding how often the checks arrived at Alma’s apartment.
It is unclear whether the judge found that the defendant was using Alma’s apartment as his “home” (or “primary”) address or as his “secondary address,” and indeed the Commonwealth argues both. However, “[i]t is apparent that, within the statutory scheme, an offender’s ‘home address’ denotes some greater degree of permanence, and a greater frequency of residence, than the transitory (albeit ‘routine’) level of occupancy at a location for four or fewer nights in a month.” Commonwealth v. Bolling, 72 Mass. App Ct. 618, 624 (2008). Thus, where we determine that the evidence was insufficient to show that 270 Wilder Street was the defendant’s secondary address, it was insufficient to show that he was staying there with the permanence necessary to render it his primary address.
Because we conclude that the evidence was insufficient to support the underlying conviction, we do not reach the defendant’s constitutional challenge to his sentence of community parole supervision for life.