STATE OF IOWA, Plaintiff-Appellee, vs. CRAIG STUART McCULLOUGH, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-436 / 08-1380
Filed July 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CRAIG STUART McCULLOUGH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Jane F. Spande,
District Associate Judge.
Craig McCullough appeals from his conviction for failure to comply with
the registration requirements for sex offenders. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, Harold Denton, County Attorney, and Jason Besler, Assistant County
Attorney, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
2
MANSFIELD, J.
Craig McCullough appeals his conviction pursuant to Iowa Code section
692A.7 (2007) for failure to comply with Iowa‟s sex offender registration
requirements. We affirm.
I. Factual Background
On December 20, 2007, McCullough was convicted of indecent exposure
in violation of Iowa Code section 709.9. As a consequence, he was instructed to
register as a sex offender within five days, pursuant to section 692A.3.
McCullough was residing at a shelter at the time, but registered sex offenders
were not allowed to stay there because women and children also were housed at
the shelter. In order to remain at the shelter as long as he could, McCullough
waited until the fifth day before attempting to register. The sheriff‟s office was
closed on December 25, because of the Christmas holiday, and McCullough was
unable to register that day. A man at the sheriff‟s office told him to “come back
again,” and “business hours are from eight to five and you can get registered
then on the second floor with the detectives.” McCullough said he would be
back, but never returned.
Despite some attempts to find lodging, McCullough was unable to find a
place to stay. He lived homeless on the street until he was picked up by police
approximately a month and a half later. During that time he never registered. As
he told the court,
I figured instead of going up to the second floor and the detective
bureau and blatantly lying to them and saying, “Yeah, this is my
address” when I knew that would be a lie and then I would have
them all mad at me because I lied to them, I figured I‟d take the
lesser of two evils in my mind. . . . And that‟s the reason why I
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didn‟t register, to put it bluntly, because I just didn‟t want to lie to the
detective bureau.
Despite this explanation, McCullough was convicted of failing to register in
violation of Iowa Code section 692A.7 and ordered to pay a fine of $625.
McCullough now appeals his conviction.
II. Analysis
There is a dispute as to the correct standard of review to be applied in this
case. McCullough characterizes his argument as one of statutory interpretation
or “impossibility.” That is, in his view, sex offender registration is not statutorily
required—or is excused because it is impossible—for homeless persons.
Statutory interpretation is reviewed for errors at law, and we are not bound by the
trial court‟s interpretation of law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa
2000); see also State v. Booth, 670 N.W.2d 209, 211 (Iowa 2003).
The State, on the other hand, contends McCullough is really arguing that
the evidence was insufficient to convict him. The State maintains that any issues
of statutory interpretation were not preserved for appeal.
We feel it is unnecessary to resolve this dispute. Regardless of how the
arguments are characterized, we conclude that McCullough was required to
register, his compliance with the statute was not excused, and the evidence
sufficed to convict him.
The version of chapter 692A that was in effect during the relevant time
period contains a broad definition of the term “residence.”1 A residence “means
1
During the 2009 legislative session, the General Assembly enacted a comprehensive
revision of the sex offender registration law. See S.F. 340, 83rd G.A., 1st Sess. (Iowa
2009). This case predates that revision.
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the place where a person sleeps, which may include more than one location, and
may be mobile or transitory, including a shelter or group home.” Iowa Code §
692A.1(8). By its terms, this definition encompasses persons who are homeless,
since they have a “place where [they] sleep,” even if that place is “transitory.”
See id.
Iowa Code section 692A.3(1) in turn provides that a convicted sex
offender “shall register with the sheriff of the county of the person‟s residence
within five days . . . .”
Accordingly, pursuant to sections 692A.1(8) and
692A.3(1), McCullough had a residence in Linn County and was required to
register.
McCullough argues that it was “impossible” for him to comply with the
statute because, while he may have had a “residence,” he did not have an
“address.” See, e.g., Iowa Code § 692A.9 (providing that registration forms shall
include the registrant‟s “address”).
Lacking an actual mailing address,
McCullough maintains that he could not complete the entire registration form.
However, we believe there are two flaws in this argument. First, as we read the
version of chapter 692A that was then in effect, address and residence seem to
be used virtually interchangeably. See, e.g., Iowa Code §§ 692A.3(2) (stating a
person required to register shall “within five days of changing residence” notify
the sheriff of the “change of address”), 692A.3(3) (stating a person “within five
days of changing residence to a location outside the county” shall register in the
new county and include the “change of address”). Because residence is defined,
and address is not, we conclude the legislature likely intended address to have
the same meaning as residence.
Accordingly, McCullough could have
completed a registration form, disclosing his “address” as the place where he
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slept. We note that offenders on the sex offender registry have given various
such addresses in the past, such as a rest area, car, bridge, or tent. Department
of Pub. Safety—Iowa Sex Offender Registry, http://www.iowasexoffender.com/
search.php (updated daily).
Moreover, even if address did not mean the same thing as residence, that
would not obviate McCullough‟s duty to register. It would simply excuse him from
providing some of the information required. True “impossibility” as a defense to a
criminal prosecution is a rare thing. For example, in State v. White, 545 N.W.2d
552, 556 (Iowa 1996), the court rejected a proposed construction of the drug tax
stamp law that would allow a dealer to affix the stamps a reasonable time after
receiving the taxable substance. The court noted that it is not “impossible” to buy
the stamps beforehand. White, 545 N.W.2d at 556. Similarly, we believe it is
possible for someone who has no mailing address to register. Iowa Code section
692A.9 provides that the registration form shall include the sex offender‟s social
security number. Does this mean that a convicted sex offender who lacks a
social security number does not have to register? We think not.
McCullough argues that “address” connotes a place where mail can be
received, because the Iowa Department of Public Safety is required annually to
mail a verification of information form to the “last reported address,” and the
offender is required to fill out the form, sign it, and return it by mail. See Iowa
Code § 692A.4(1). We recognize that there may be circumstances where it
would be difficult for state officials to make a successful mailing, but this should
not excuse the sex offender‟s duty to register in light of the clear statutory
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definition of “residence.”2 To succeed on his impossibility argument, McCullough
would have to show that his compliance with the law was impossible.
In his appeal, McCullough relies heavily on two out-of-state cases, State v.
Iverson, 664 N.W.2d 346 (Minn. 2003), and Twine v. State, 910 A.2d 1132 (Md.
2006). Both the Supreme Court of Minnesota and the Maryland Court of Appeals
held that their state‟s sex offender registration requirements could not be applied
to certain homeless persons.
Those cases are distinguishable, however,
because the applicable state laws did not define “residence.” Therefore, when
those courts found that “residence” and
“address” were
being
used
interchangeably, they equated “residence” to “address” rather than the other way
around. Iverson, 664 N.W.2d at 351-53; Twine, 910 A.2d at 1138-39. Here, by
contrast, we have an express legislative directive that the sex offender registry is
to include even persons whose status is “transitory.” Iowa Code § 692A.1(8).
2
As part of its comprehensive revision of the sex offender registry, the legislature has
rewritten the periodic verification requirements. The new provision, now Iowa Code
section 692A.108 (2009), states:
The department shall mail notification of the required appearance to each
reported residence of the sex offender. The department shall not be
required to mail notification to any sex offender if the residence described
or listed . . . is insufficient for the delivery of mail.
(Emphasis added.) While this clarifies the State‟s duties, it does not affect our view that
even under the prior law, persons who had a “residence” where mail could not be
delivered were required to register.
The new law also in our view clarifies, but does not change, the meaning of
residence:
“Residence” means each dwelling or other place where a sex offender
resides, sleeps, or habitually lives, or will reside, sleep, or habitually live,
including a shelter or group home. If a sex offender does not reside,
sleep, or habitually live in a fixed place, “residence” means a description
of the locations where the offender is stationed regularly, including any
mobile or transitory living quarters. “Residence” shall be construed to
refer to the places where a sex offender resides, sleeps, habitually lives,
or is stationed with regularity, regardless of whether the offender declares
or characterizes such place as the residence of the offender.
Iowa Code § 692A.101(24).
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Our conclusion is consistent with that of several other jurisdictions. In a
similar case from North Carolina, a sex offender was convicted of violation of the
registration requirements after he was evicted from his apartment, and failed to
provide a new address to the authorities. State v. Worley, ___ S.E.2d ___, ___
(N.C. Ct. App. 2009). Notably, the North Carolina statute requires the offender to
notify the authorities when he or she “changes address,” unlike Iowa Code
chapter 692A, which requires notification when the offender has a “change of
residence.” Compare N.C. Gen. Stat. § 14-208.9, with Iowa Code § 692A.3(2).
The defendant argued he had not obtained a new “address” because he was a
“drifter” and had no permanent home.
The North Carolina Court of Appeals
disagreed and noted:
[W]e believe that the sex offender registration statutes operate on
the basis of an assumption that everyone does, at all times, have
an „address‟ of some sort, even if it is a homeless shelter, a location
under a bridge or some similar place.
Worley, ___ S.E.2d at ___.
Accordingly, the court upheld the defendant‟s
conviction. Id.; see also State v. Winer, 963 A.2d 89, 93 (Conn. Ct. App. 2009)
(rejecting a homeless sex offender‟s argument that it was impossible to register
and holding that “residence address” meant the offender‟s dwelling place, no
matter how temporary); Tobar v. Commonwealth, ___ S.W.3d ___, ___ (Ky.
2009) (holding that sex offender who became homeless was statutorily required
to re-register, despite his claim that he lacked an address).
Finally, requiring both sex offenders who are homeless and those who
have mailing addresses to register serves the purposes of the statute—to
facilitate monitoring of those offenders by law enforcement and the public. We
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seriously doubt the legislature intended to exempt a group of those offenders
from the registration requirements.
McCullough also raises claims that his trial counsel was constitutionally
ineffective. Specifically, he contends his trial counsel should have argued that
the initial registration information had to be procured by the court, and that any
failure by McCullough to provide that information should have been punished as
a contempt, rather than a criminal law violation. See Iowa Code §§ 692A.3(5),
692A.5(2). Generally, when claims of ineffective assistance are made on direct
appeal, they will be preserved for possible postconviction relief proceedings.
State v. Cromer, 765 N.W.2d 1, 7 (Iowa 2009). We believe preservation is the
better course of action here. We, therefore, affirm McCullough‟s conviction and
preserve the ineffective assistance of counsel claim for possible postconviction
proceedings.
III. Conclusion.
For the foregoing reasons, we affirm the judgment below.
AFFIRMED.
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