*1
STATE ZICHKO, Defendant-Appellant.
John J.
No. 21815.
Supreme Court of d’Alene, May
Coeur 1996 Term.
July *2 Ireland, P.A., d’Alene,
Bennett & Coeur Bennett, appellant. argued. for Kerwin C. Lance, Attorney General; Alan Lamont G. (ar- Anderson, Deputy Attorney L. General Boise, gued), respondent. SCHROEDER, Justice appeals John from court a district judgment of conviction sentence entered upon finding guilty him verdict failing County with the Kootenai pursuant Sheriffs Office section 18-8304 Code, Regis- of the Sex Offender tration Act.
I. AND PRIOR BACKGROUND PROCEEDINGS custody released from the Zichko was the Idaho Board of Correction on March department of 1994. Prior to his release a gave no- correction official Zichko a written duty tice of his signed. County Zichko traveled to Kootenai stayed men’s at the St. Vincent de Paul shelter in Coeur d’Alene from March through April He was served 7,1994, April an for failure arrest warrant on with the Kootenai Sher- iff’s Office as a sex offender within county. entering charge on the Zichko moved to dismiss the (1) basis is void that: (2) prematurely vagueness; he was arrested five-day statutory registration because the Saturday Sun- does not include (3) alternative, five-day day; in the if the Saturdays Sundays, he includes law; equal protection under the was denied (4) complying prevented he place registration with the act of his former was within a three-mile radius (5) place employment, wife’s and thus was shall within five prohibited any county, within an coming area he was from enter- into with the sheriff ing pursuant person to a civil in which that resides order. The motion, temporarily district court denied Zichko’s and the or is domiciled. proceeded case to trial. 18-8304(1). I.C. *3 manager
Sandra Brillon was the
of the St.
legislative findings
The
in Idaho Code sec-
April
Vincent de Paul
shelter March and
purpose
tion 18-8302 indicate that the
of the
of 1994. She testified that when Zichko ar-
Registration
Sex Offender
Act is to aid law
31, 1994,
rived at the shelter on March
he
enforcement
of their com-
told her that he had
been
the Coeur
by requiring
regis-
munities
sex offenders to
previous day.
d’Alene area since the
agencies.
ter with local
law enforcement
targeted
Section 18-8302
identifies those
Sommerfield, Department
Glen
a
of Health
pled guilty
be “individuals who have
to or
examiner,
eligibility
and Welfare
testified
guilty
have been found
of sex offenses who
31, 1994,
that on
applied
March
Zichko
for
jur-
live within their
law
[local
enforcement]
Medicaid,
stamps,
grant,
food
a
state
added).
§
(emphasis
isdiction.” I.C.
listing the shelter as his address on the
application form. Sommerfield also testified
Zichko maintains that
I.C.
18-
applicants
they
that he advises
must be
8304(1) unconstitutionally vague
and must
a
resident of Kootenai
apply
vagueness,
be declared void for
because it
benefits,
verify
and that
must
their
fails to define
“tempo
the terms “resides” or
residency by
claim of
signing the back of the
rarily domiciled.”
application’s
page.
first
Sommerfield ad-
underlying
vague-
reasons
the void for
accordingly,
vised Zichko
and Zichko filled
Grayned
ness doctrine are set forth in
v.
residency
out
signed
verification and
104,
City Rockford,
2294,
408 U.S.
92 S.Ct.
application.
(1972):
ters to
subjective
resolution on an ad hoc and
II.
basis,
dangers
with the attendant
of arbi-
SECTION
THE
OF
IDAHO
trary
discriminatory application.
CODE IS NOT UNCONSTITU-
(foot
108-09,
408
at
U.S.
IV. subject- Zichko would not have been perils appearing ed to the of within the for- ZICHKO WAS NOT LEGALLY PRE- Further, during bidden zone. VENTED FROM COMPLYING registration protection the domestic violence 18-8304(1). WITH SECTION During order was modified. argues that he could not com Zichko registered could have at the driver’s 18-8304(1) ply with section because a domes license bureau had he elected to do so. tic violence prohibited order him being from within a three-mile radius of his V. place employment. former wife’s of The driver’s license was within bureau that radi THE DID DISTRICT COURT NOT ERR us. proposition supported This has been by IN ADMITTING TESTIMONY CON- argument by authority. proposi but not The CERNING ZICHKO’S WELFARE (1) tion fails for two reasons: the claim has APPLICATION. (2) waived; been the facts established at trial refute the claim. The district court allowed Glen Som appeal
When sup testify issues are not merfield to that Zichko made a wel law, ported by propositions authority, application residency of fare or and listed his as argument, they County. will be not considered. Ida Kootenai Zichko maintains that this (I.A.R.); error, Appellate ho Langley jury Rule 35 v. since it allowed to consid Fund, Special residency State Indus. Indem. 126 Idaho er one definition of without receiv 781, (1995). 784, 732, ing po- 890 P.2d 735 Earlier instructions from the court on other 264 by defining contemplated by ployed legislature a crime
tential definitions section purpose, is deemed to be best suited for that 18-8304(1). predicated and error cannot be on its use trial has broad The court discretion Aragon, jury instructions. State v. 107 Ida- evidence, judg in the admission and its 362, (1984); 358, 293, P.2d v. ho 690 297 State only ment will be reversed when there has Herr, 783, 787-88, 961, 97 554 P.2d Idaho v. an of that discretion. State been abuse (1976). properly court 965-66 district Zimmerman, 971, 973-74, Idaho requested rejected Zichko’s instructions de- (1992). Nevertheless, ques P.2d 863-64 fining residence and domicile because relevancy tions of reviewed de novo. understanding, are terms of common proposed Raudebaugh, 864 because the instructions did 124 Idaho State in the define the actual terms used statute. P.2d language was instructed in the having Relevant evidence means evidence statute, case. and that sufficient fact of tendency to make the existence of a proposed an instruction to Ziehko consequence ac- to the determination of the effect that the Sex Offender probable or than it probable tion more less (1) requires: Department Act be Rule would without evidence. provide written notification of Correction (I.R.E.). All evi- of Evidence 401 relevant any duty act under the except pro- dence admissible otherwise custody of person committed its an by appli- rules of vided evidence other (l)(a) fense identified subsection I.R.E. The district court cable rules. (2) Code; correctly ruled that testi- Glen Sommerfield’s (3) signed person; notice be such mony issue was relevant on the of where department copy signed retain one Ziehko resided. provide notice for its files one to custody. person prior to their release VI. (Supp.1995). The trial I.C. *6 on court refused this instruction the basis ERR THE DID NOT DISTRICT COURT compliance not an with this statute was IN RE- FAILING TO GIVE ZICHKO’S against of Ziehko. element the State’s ease QUESTED JURY INSTRUCTIONS. Penick, day David shift control center Ziehko district maintains In- corporal the Idaho State Correctional give refusing jury court in to instruc erred incarcerated, tes- where Ziehko was stitution requested. of tions which he issue gave The written notifica- tified he Ziehko a register jury duty nec his to under the Sex particular whether a instruction is tion of Act, by required Registration as jury Offender essary prop has and whether the been 18-8307(2). testified that section Penick erly law instructed is a matter of over which appeared study to the form before Ziehko v. this Court exercises review. State free copy it. offered a of the signing The State Gleason, 691, 62, 65, 694 123 Idaho 844 P.2d in- signed that Ziehko did form as evidence (1992). This Court reviews instructions duty regis- his to deed receive notification of whether, aas to ascertain when considered required by 18-8307. Penick ter as section whole, fairly adequately present positive” also testified that he was “almost applicable Man issues and state law. copy unsigned that he attached an Hosp., ning v. Falls Clinic & 122 Twin discharge papers. In addi- form to Zichko’s (1992). 50, 1185, 1188 47, P.2d 830 tion, indi- testified that Ziehko two witnesses duty he he had a to Ziehko the district court cated to them that knew claims Libby, acquaintance of register. Linda an refusing give to he re erred instructions Zichko’s, he did that Ziehko told her testified quested defining “residence” “domicile.” he he believed not intend to usage which are of common Terms charges of would soon be exonerated sufficiently generally understood need not be filing. appeals on some he was based jury. instructing when further defined Gonzales, 152, 156, clearly 92 438 P.2d envisions that v. State Section (1968). 897, as Ziehko must receive written Ordinarily language persons em- such 901
265 register primary four duty notice of their section trict identified ob- under court 18-8304(1). (1) does dispute not he jectives punishment: in criminal duty received 'written notice of his (2) society; of deterrence of the 18-8307(2). Rather, required by section particular, public individual and the the focus of Ziehko’s claim appeal, (3) rehabilitation; general; of possibility requested the trial in refusing court erred his (4) punishment wrong or retribution for instruction, is State must establish 382, 384, Wolfe, doing. State v. 99 beyond a reasonable doubt that re- (1978). 728, 582 P.2d 730 district court copy ceived of the written notice. presentence investiga- had the benefit of a 18-8307(2) great purpose report
The clear of is tion which contained deal of section persons required background ensure that about information Zichko’s pursuant as sex offenders 18- character. He refused to be interviewed 8304(1) of the Sex Offenders Act presentence investigator or otherwise duty made aware their cooperate complete with efforts to the re- being discharged custody. before port. prior history His criminal included There is no dispute that Zichko was notified 15-year-old daughter. rape his Thus, obligation writing. compli- his no There was abuse of discretion. ance with section an was not is- case, sue. Under the facts of this failure VIII. requirements § to instruct on the 18- of I.C. 8307(2)was harmless. CONCLUSION
“Where the evidence the defen guilt dant’s proven and is such as ordinari judgment of conviction and the sen- ly produces certainly moral or conviction of the district tence court are affirmed. mind, an unprejudiced and the result would not have been different had an error McDEVITT, C.J., committed,
trial not been and TROUT and judgment JJ., SILAK, conviction will not be concur. reversed.” State Pizzuto, 742, 778, 680, 119 Idaho 810 P.2d JOHNSON, Justice, denied, (1991), dissenting. 716 cert. U.S. 1268, 117 (1992), S.Ct. L.Ed.2d 495 overruled portion I respectfully dissent from the Card, grounds, other State v. 121 Idaho opinion holding the Court’s that I.C. 18- 825 P.2d When 8304(1) unconstitutionally vague. I am *7 whole, jury viewed as a the instruction fundamentally perplexed to how an as intelli- gave fairly adequately district court gent person can when and determine where presented the issues in this case and stated register. my perplexity The reason for is applicable law. trial court’s refusal by following colloquy I revealed had with to instruct on was attorney during for the state oral not a reversible error. argument in this case: requested an instruction re you JUSTICE JOHNSON If travel garding Saturday the exclusion of and Sun you register north to south day better prescribed registration period. from the eveiy county? properly This was refused court. A requested instruction need given not be No, Johnson, I COUNSEL Justice don’t be- Eastman, contrary to the law. State v. goes that it extent lieve to that under 831 P.2d understanding common what residen- cy.
VII. just spinning I JUSTICE JOHNSON am off THE SENTENCE IMPOSED me, you trying have so I am what told WAS NOT EXCESSIVE. meaning you to understand the see it. five-year maintains inde-
terminate I sentence excessive. The dis- COUNSEL understand. nap if I take a And If I travel from south JUSTICE JOHNSON
JUSTICE JOHNSON bench, register? had I park better counties do I need to north Idaho which register? If I am a convicted sex No, Justice Johnson. COUNSEL offender? night, stay I I JUSTICE JOHNSON Well, register though? I there is some inter- had think better COUNSEL ... play between the time prudent. It would be COUNSEL there, I sleep do JOHNSON Which counties So if I JUSTICE JUSTICE JOHNSON I am register stay twenty-four period, need to in? full hour temporarily in Nez residing or domiciled register You have to would COUNSEL County? Perce you reside tem- those counties where so, John- I would believe Justice COUNSEL porarily domicile. son. only puts That me JOHNSON JUSTICE at least requires So it JUSTICE JOHNSON merry-go-round. What does that stay? Is it? night’s one Ido have to mean? Which counties Well, you can very I think your in? un- COUNSEL also clear Under But, look at the intent the individual. derstanding of the statute means? what upon relying I I know that am don’t Johnson, say I Justice would COUNSEL ... does individual And what that. register in you all of need to Well, just work- I am JUSTICE JOHNSON counties. ing your statement off pass through as I JOHNSON So JUSTICE mean, I these so very clear what terms County short I Perce or the time Nez their clear trying am to understand go I sheriffs am there had better meaning. register? office and understand, Johnson. COUNSEL I Justice I is a be- think there difference COUNSEL so, stay if I And JUSTICE JOHNSON passing through being it and tem- tween I night Lewiston had better porarily domiciled. But, County. if I then Perce Nez traveling I I was JOHNSON said JUSTICE on the pass through the other counties you told from north to south just way County, then I am to Kootenai every I me that had better passing through and I don’t need through you? I pass didn’t register? get if I Kootenai Coun- But though, that is a I think there COUNSEL I ty stay night, had again I driving through it difference between register? better passing through it. Yes, Johnson. COUNSEL Justice Well, just spin- I am JUSTICE JOHNSON next if I leave the And JUSTICE JOHNSON told ning you have me off what in Idaho day go my home back very understanding is of these clear registered Perce in Nez City, I have will terms. clear I County and Kootenai that, And I understand Justice COUNSEL night? stayed there the *8 Johnson. Yes, And I Justice Johnson. COUNSEL very And that clear JOHNSON JUSTICE track that is to policy think behind the understanding stop if I lunch means sex offenders. Lewiston, register? I had better any Is notifica- there JUSTICE JOHNSON just going you I are think that COUNSEL required given the tion to those who I don’t think through, Justice Johnson. the that is what statutory notice that kept you that ... they time That each statute means? they stay night if I the af- that And for one stay JOHNSON in a JUSTICE city park go and eat register? and to the ternoon had better sandwich, register? my had I better notice the confines Within COUNSEL not, John- Justice you requirement there would I that don’t believe COUNSEL son, ... as I under need to. your days. days Is it to the JUSTICE JOHNSON statement back five five prosecuting period you of all which to that the state Idaho is the within have stay you a night individuals who one in coun- not the time must be there. ty register? correct, and don’t That is Justice Johnson. COUNSEL are, they I don’t know that Jus- COUNSEL days really the five JUSTICE JOHNSON So tice Johnson. nothing to do residence or has tem- you they porary But think it? JUSTICE JOHNSON domicile does should? really No. No. It doesn’t. But COUNSEL necessarily. getting COUNSEL Not I think that I was at is that that time what
five-day period you that time have very is a short time when Why they, if JUSTICE JOHNSON shouldn’t you compare it to statutes across other that is residence? give you nation. Most the statutes thir- I think that great COUNSEL there is a deal days, ty although is one there statute prosecutorial of and for that matter law recall, state, I I don’t it recall go enforcement discretion that can into forty-two coming within of in. hours any charging decision. And I think that Now, simply policy part it is call a on the prosecutors should ... and can take that legislature of type of to have this you into consideration. But look when encompassing statute and rather sex of- extremes, example, as an a back- bringing them fenders within the packer who is area of wilderness defining specifically confines resi- mountains, individual, the Sawtooth dency temporary they domicile. If prosecuted. I believe could be Would a concrete, something wanted had more prosecutor prosecute that individual? I wouldn’t “tempo- we have had word would seriously doubt it. But I would rary” there. possible submit that it is under the defi- So, if JUSTICE JOHNSON I understand nitions that have ... we correctly, if I from south travel you backpack- JUSTICE JOHNSON stay night I north ing in the area Bull Trout Lake where night I stay Lewiston and in Coeur you cross from Boise to Custer Boise, flyI d’Alene and back to I’d still County three or four times the course regis- have within three which to trail, particular you run better in both ter Lewiston and Coeur d’Alene. City you and then run better Is that correct? I could And come back register? Challis and do it? going COUNSEL That’s to be a difficult written, way statute is area, COUNSEL Justice Johnson. And there are Johnson, yes, you Justice would have going to be some areas that will have register. which to those within particular Ah, be looked at in that area. Absolutely. Yes. again, but upon policy if we focus right which is you a crafted within stat- JUSTICE JOHNSON And think that ute —that of accomplish policy legisla- the communi- would ty assisting statutory law enforcement— ture had scheme? —that implicitly tracking sex offenders so go beyond I think COUNSEL it would they are, that we know where that is the policy looking were at. Be- five-day reason for I period. time part policy cause I do believe know that Idaho’s statute ... five-day period. They includes you say JUSTICE JOHNSON And that is want don’t sex offenders be out in five-day period. particular very long reason for the time area for a with, originally That’s what I gets started out time. And I realize *9 implication you gave require because the me into —Does domicile the five was, you had better if I days? there would that it submit doesn’t. your days. you they give you are five now there And But five within which days, may register. tell me it doesn’t take five to I don’t believe that it is an only So, night. you arbitrary take one are requires now extreme statute that “Residing” isn’t modified they are where COUNSEL someone to domiciled, they temporary. temporarily re- where you And look at the context side. when I that. understand JUSTICE JOHNSON that defined of the other statutes have “residing”? But how it different than is “residency,” particularly Fish and Game me, “Residing” that to indicates COUNSEL statutes, are motor vehicle laws—those stay to you have intent within some requesting you are some- statutes where county, period for a of time. to be thing. you required are And “tempo- your JUSTICE JOHNSON period to a of time somewhere within rarily you it means don’t domiciled” that residency qualify requirement. for the stay in have an to intent not have do That is what we here. We I have to that would that’s reason County to here in not have be Kootenai County and register in both Nez Perce subject to we are before County, have Kootenai because I didn’t is, It the Sex Act. Offender there, tempo- stay I an intent to but was Johnson, a as we have discussed Justice rarily domiciled there? to you of time in which have you tempo- It that were COUNSEL means totally register. They are different. you for a rarily That were there there. jury gets right to instruc- Which us time, very short whatever tions the issue “domiciled” is. duration off, “residency.” I First would submit you that I But said JOHNSON JUSTICE not address that this Court should even stay night? had to least one in- that issue because issue is—the very provided were Johnson, structions that were know, I don’t Justice COUNSEL ambiguous they applica- not ah specifically for it. calls statute here. to the situation we have ble arbitrary my part, is That rather regarding Fish & Game statutes frankly, say you have quite “residency,” Dictio- Black’s Law even stay. naries, Law, Black’s definition working But I off am JUSTICE JOHNSON residency. I submit it is as coun- would understanding these your clear of what to, confusing, it has it is sel alluded clear terms mean. confusing very would be that, I John- understand Justice COUNSEL placed in those front have definitions son, average individu- ah but I think definitions, particular- them. And those al, visiting if I am even submitted, ly the instructions were temporarily I day, then am “temporary,” word did not include the present there. “domiciled,” so which modifies you Then had better JUSTICE JOHNSON of law. were correct statements register, you if are a sex offender. ... They gone should have Absolutely. Absolutely. COUNSEL “temporary What is JUSTICE JOHNSON mat- truth JUSTICE JOHNSON you it? understand domiciled” any place very careful ter is that to be sorry, I am Justice Johnson. COUNSEL just you you so you go, better “temporary What is JUSTICE JOHNSON slip up? don’t you understand it? domiciled” as true, I Justice believe COUNSEL very ... It is a Johnson. Johnson, “temporary Justice COUNSEL it, particular- I understand do, domiciled” as thing The best JOHNSON JUSTICE statute, con- to this ly regards the rest you intend live is that to, is trary has to what counsel alluded thing you your life in first fact, being in a coun- presence forty-four register in all do is the better ty- counties? prudent thing to abe That would How is that different COUNSEL JOHNSON
JUSTICE as a sex offender. do “residing”? *10 They residing you But if were or tem- JUSTICE JOHNSON won’t know COUNSEL during five-day porarily domiciled that you you are be where because would County, you in Kootenai would registered throughout Be- state. have to. you you cause state told that is what Well, I had but JUSTICE JOHNSON attorney do. [The state] should and the end of the five podium said that at the in case. you say City am I I back in Idaho Johnson, COUNSEL Justice it would be a tell in Nez Coun- can’t the sheriff Perce do, thing prudent but not a City, I am in I ty residing because practical thing you because can’t do residing County. be in had Nez Perce give sheriff you notice where are said, If I that what Justice COUNSEL at at that time. Johnson, misspoke. say- I IWhat was ing you in is that would tell the sheriff Well, JUSTICE JOHNSON but that’s that’s County Kootenai that on such and such my point question. If I come day residing temporarily I City spent to Idaho having back after County. in domiciled Kootenai night in d’Al- Lewiston Coeur Why give can’t I that JUSTICE JOHNSON ene, I within the next three forty-four same kind of notice for all days, I living tell them I am in Idaho passed through I counties? That all for- City, that I spent night but in Lewi- ty-four and took a tour of and I the state ston, spent d’Alene, night I Coeur City back in am and I want to registered? so I am forty-four in all counties? Then context, yes, In COUNSEL that Justice I will fulfilled the have law? Johnson, you given have five-day COUNSEL it were within the you sheriff the notification of where example, you period. For could make particular were at or are at that forty-four time. counties ... all without you But I don’t that go, believe can I’ve JUSTICE JOHNSON done it. discussed, forty-four we have Okay, yes, COUNSEL then work. would say, going living counties and I’m to be here in you down Pocatello unless can
tell the sheriff in
County,
Kootenai
you’re
particular
at a
going
time
be
where at the time. you residing, are your
Where where are temporarily domiciled. MANWEILER, Howard Defendant- Respondent. you JUSTICE JOHNSON Is where No. 22549. you at at the time register? That seems meaning you give to be the it. Supreme Court you if I City, Because to Idaho returned Boise, January 1996 Term. say that when I register that I should Aug. 1996. tell sheriff in County Nez Perce Rehearing Denied Oct. County residing I Kootenai am County? Boise No, Johnson,
COUNSEL Justice the statute
requires you give the sheriff notifi-
cation that sheriff is the sheriff you residing temporari- or are
ly domiciled.
JUSTICE
then I
JOHNSON So
don’t have
Perce or
Nez
City?
once I am
back
notes
18-8304(1) provides
Idaho Code section
Grayned
approval by
has been cited with
follows:
Voyles City Nampa,
this
Court
97
Any person
subject
1217,
(1976),
who becomes
to the
548 P.2d
1219
Bitt,
provisions
584, 585-86,
chapter
July
this
on or after
and State v.
118 Idaho
In this case Zichko filled out a welfare
P.2d
44 — 45
In Bitt
Court
prior
interpreting
application stating
that he resided
reviewed
cases
benefits
vagueness
developed
County.
a
This
a clear un
void for
indicates
doctrine
application.
derstanding
at
that he
more than
visitor
test for its
118 Idaho
First,
passing through.1 The
must determine
or tourist who was
P.2d at
Court
gave
adequate
him
the obli
regulates constitutionally protected
statute
notice of
if the law
587-88,
imposed,
it.
gation
Id. at
at 46-47.
he violated
conduct.
798 P.2d
so,
must
whether the
Court
determine
III.
precludes
significant
ordinance
amount
constitutionally protected
conduct. Id.
PREMA-
ARREST
NOT
ZICHKO’S
WAS
case,
588,