Twine v. State
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In the Circu it Court for M ontgom ery County Case No. 101708 IN THE COURT OF APPEALS OF MARYLAND No. 138 September Term, 2005 RAYMOND TWINE v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: November 15, 2006 Raymond Twine, appellant, was convicted of failing to register as a sexually violent offender by failing to pro vide notice of chang e of addre ss to the Department of Public Sa fety and Correctional Services in violation of Md. Code (2001, 2005 Cum. Supp.), § 11-721 of the Criminal Procedu re Article.1 We must decide whether Maryland s statutory sex-offender registration scheme, § 11-701 et seq., permits con viction of a homeless person w ho falls within the statutory definition of those persons who are obligated to register under the statute for failure to notify the appropriate State agency of the person s change in residence. We shall hold that the sex offen der registration statute does not impose such a notice obligation on appella nt and sha ll reverse the ju dgment o f the Circu it Court. Appellant was convicted on July 12, 2002 of a third degree sex offense which, under the Maryland Sex Offender Statute, required him to register w ith the Dep artment of Public Safety and Co rrectional Services ( the Department ), his supervising authority, and if he changed residences, to send written notice of the c hange to the D epar tmen t within s even days after the change occurred. A registration statement include s, inter alia, the registrant s full name and address, a description of the crime for which the registrant was convicted, and anticipated future residence, if known at the time of registration. § 11-706. A registrant who 1 All subsequent statutory references herein shall be to the Criminal Procedure Article, Md. Code (2001, 2005 Cum . Supp.), unless otherwise indicated. After briefing and oral argument in the instant case, the General Assembly enacted changes to the sex offender registration schem e. See 2006 Maryland Laws 1st Sp. Sess., Chap. 4 (here inafter Chap. 4"). Although Chap. 4 changed some of the sections of the statute implicated by the issue sub judice, none of these changes altered any portion of the statu te essential to our h olding to day. changes residences must send written notice of the change to the Department within seven days after the change occu rs. § 11-705(d). Appellant was charged in a one count criminal information filed in the C ircuit Court for Montgomery County for knowingly failing to provide written notice of a change of residence as required by § 11-705(d), in violation of § 11-721(a). Appellant entered a not guilty plea, waiv ed his right to a trial by jury, and proceeded before the court on an agreed statement of facts. The State proffered the following facts: Your Honor, we would have, and we a re showing that, the defendant was convicted back on July 12, 2002 for a thirddegree sex offense in Montgomery County, Maryland. Pursuant to that, he is required to register on the Sex Offenders R egistry which is marked as State s Exhibit 2 as a sexually violent offender. The requ irements are, as you will see on State s Exhibit No. 2 which the defendant did sign, that he is required to register pursu ant to the rules under the Re gistry. Your Honor, the defendant, the registration process he was told would take place and would be conducted at the Mon tgomery Co unty Headquarters, located at 2350 Research Boulevard in Rockville, Montgomery County, Maryland. The defendant, on J uly 14 of 20 04, respon ded to Headquarters and changed his current address which at the time was Eagles Roost in G ermanto wn, Mo ntgo mery Cou nty, Maryland, which was the last time he had registered, to a new address of 20013 Sweetgum Circle, Germantow n, Montgom ery Cou nty, Maryland. Y our Hon or, the State is p resenting into evidence State s Exhibit numb er 1 which is M r. Twine s registration and notice card of his address on Sweetg um in Germantown, Montgomery County, Maryland. At the time of this registrati on, Your Honor, the State would have Bob Landfa ir tell the Court that the defendant was advised of his duties and responsibilities under the Maryland State Sex Offender Regist ry Law. One of those duties and responsibilities -2- is that he must report any changes of residence to the Department of Public Safety and Corrections Services within 7 days of the residence change. Landfair would tell the Court that the defendant acknowledged his duty and responsibility and signed that n otice of reg istrant which the Court h as before it. On December 14th of 2004, Ms. Gallagher, the property manager from Canterbury Apartments, informed Detective Parker that the defendant had moved out of the apartment several months p rior. Detective Parker checked with the Department of Public Safety and Correctional Service database and [it] showed the defendant had not changed his residence of record. The database still shows Twine s residence at 20013 Sweetgum Circle, Apartment 23, Germ antown, M ontgomery Cou nty, Maryland. Detective P arker, as a result, filed the charges on the violations of the defendant failing to submit any chang e of ad dress w ithin the 7-day pe riod. Appellan t proffered the follow ing addition al facts, to w hich the Sta te did not ob ject: Your Honor, I would include, actu ally I m just going to reintroduce the Notice to Registrant that was signed on November 13, 2003 as Defendant s Exhibit No. 1. It does in fact indicate that a registered sexually violent offender must register annually for the next ten years. ****** Then Defendant s number 2, which is the initial registration that Mr. Twine completed, or a copy of that which includes the fingerp rints and the information that he was at that time on October 29th of 2002 living at 18517 Eagles Roost Drive in Mon tgomery Co unty. Mr. Tw ine did comply with the requirements of the registration statute in filling out that information and submitting fingerprinting and giving his address of residence at that time. In November of 2003 he again submitted to fingerprintin g as require d by Mon tgomery Co unty and produced a change of residence for 11651 Nebel Street which was the p re-release ce nter, this is Def endant s E xhibit No. 3, pursuant to a sentence that was imposed for a violation of -3- probation. Then Defendant s No. 4, which I think is a duplicate of what [the Assistan t State s A ttorn ey] introduced as a State s exhibit, is the change of address that Mr. Twine submitted for the 20013 Sweetgum Circle on July 14th of 2004, again as required by the statute. He did provide the change of address form. And finally, Your Honor, Defendant s Exhibit No. 5, which is the neighborhood fliers distributed. This is a form the Montgom ery Coun ty police k eep. T his is for the offender, Raymond Twine, in dicates that on October 31st of 2002, 25 fliers were distributed into the Eagles Roost Drive address and then on July 28th of 2004, 48 fliers were distributed regarding the 20013 Sweetgum Circle address indicating that there was a registered sex offender living in that neighborhood. The additional ev idence that w ould be introduced, Your Honor, and [the A ssistant State s A ttorney] has stipulated to without the calling of witnesses although there is a witness present in court, was that as a result of these fliers being distributed in the address, Mr. Twine was evicted from the residence at Sweetgum Circle. This occurred during the month of August of 2004. As a result, he became homeless, he had no permanent residence, he was staying wherever he could. Mr. Twine called Detective Don Inman, who was one of the detectives who monitors the Sexual Offender Registry, called him and spoke to him on the phone on at least two occasions, and informed [him] of his homeless status and the fact that he had no place to live. That between the time he became homeless in August of 2004 and the filing of the charges against him on December 14th of 2004, he had no address or residence as is required for purposes of providing a change of residence but that he did in fact orally indicate that he did not have a residen ce. Before the Circuit Court, appellant argued that he was not guilty because he had complied with the statu tory requireme nts by orally advising a Montgomery County detective -4- that he had been evicted, and that he was homeless. He argued also that he had not violated the statute because the statute only required him to provide notification in the event that he moved from one address to another address. Finally, he argued in the alternative that the statute was unconstitutionally vague as applied to homeless defendants because it does not adequ ately defin e resid ence. 2 The court rejected his arguments and found him guilty of violating § 11-721(a). He was sentenced to a term of incarceration of ten days, co ncurrent w ith the sentence he was then serving as a result of a parole violation on the 2002 sex offense conviction. Appellant noted a timely appeal to the Court of Special Appeals. We granted certiorari on our own in itiative pr ior to de cision b y that Cou rt. Twine v. S tate, 392 Md. 724, 898 A.2d 10 04 (2006). Before this Court, appellant argues th at the eviden ce at trial was insufficien t to support his con viction, a s he co uld not register a chang e of res idence . . . because he had no residence to registe r. 3 The State responds that the evidence was sufficient to support 2 This was so, he maintained, because as a homeless person, he could not c omply with the statute thro ugh no f ault of his ow n and he w as given ab solutely no guidance as to what to do if he did not have a residence or a mailing address. 3 Appell ant also argues before th is Court that § 11-705(d ) and § 11-721(a) a re unconstitutio nally vague as applied to homeless persons because in the absence of a statutory definition of residence, the sex offender registration statute does not provide clear notice to a person who becomes homeless on how to comply with § 11-7 05(d). Given tha t we shall hold that the evidence was insufficient to support appellant s conviction , we do n ot reach this issue. See Automo bile Trade Ass n v. Ins. C omm r, 292 M d. 15, 21, 437 A.2d 199, 202 (1981) (observing that [i]t is elementary that appellate courts do not decide issues of (contin ued...) -5- appellant s conviction because one s residence, as the term is used in § 11-705(d), is simply the location that a person occupies at a given time. Consequently, the State contends, appellant s residence chang ed whe n he beca me hom eless, and he could hav e reported th is change by notifying the appropriate authority of the location or locations he was occupying once h e beca me ho meless . Twine does not d ispute the Sta te s contentio n that he ha d been co nvicted of a sex offense which required him to register with the Department of Corrections and that he had complied with the statutory requirements in the past. Instead, he contends that because he was homeless, he could not comply with the statute, and that the registration requirement of the statute does not apply to homeless persons because the statute imposes no registration duties u pon pe ople w ho hav e no a ddress or res idence . Every state has enacted a sex offender registration law, although the various statutes differ as to the offenses covered, registration and no tification proced ures. See Cain v. State, 386 Md. 320, 330 n.9, 872 A.2d 681, 687 n.9 (2005) (collecting statutes). The tragic deaths of two young children, Megan Kanka of New Jersey, and Jacob Wetterling of Minnesota, were the impetus for the states and federal government to enact sexual offender registration and community notification statutes. Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent O ffender Registration Program ( Wetterling Act ), which was 3 (...continued) constitutionality except as a last resort ). -6- enacted as part of the Violent Crime Control and Law Enforcement Act of 1994. See Pub. L. No. 103-322, 108 Stat. 1796 (1994), codified at 42 U.S.C. § 14071 (2006). The Wetterling Act addressed crimes of violence and molestation committed against children in the United States and required the states to adopt sex offender registration laws within three years of the Act s passa ge in or der to re ceive f ederal la w enf orcem ent fun ding. Id. § 14071(g). The Wetterling Act was amended in 1996, renamed as Megan s Law, and directed the states to require the release o f certain sex offende r registrant info rmation ne cessary to protect the pub lic. See Cain , 386 Md. at 329, 872 A.2d a t 686 (citing H .R. 2137, 1 04th Cong. (1996), reprinted in 110 Stat. 1345 (199 6)). Maryland first enacted sex offend er registration legislation in 1995, se tting forth registration requirements for certain sexual offenders, notice of registrant s change of address and prohibited acts, see 1995 Md. Laws, Chap. 142, and has amended the statute on several occasions. See Cain , 386 Md. at 331-34, 872 A.2d at 687-89 (discussing subsequent changes to sex offender registration statute). In light of appellant s arguments, we must interpret the registrati on statu te. Appellant was convicted of a violation of § 11-721(a), which provides as follows: (a) Prohib ited act. A registrant may not know ingly fail to register, knowingly fail to provide the written notice required under § 11-705(d), (e), or (f) of this subtitle, or kno wingly provide false inform ation of a m aterial fact as required by this subtitle. -7- He was convicted under this subsection for failure to provide the written notice required under § 11-705 (d),4 which provides as follows: (d) Change of registrant s residence. A registrant who changes residences shall send written notice of th e change to the Depa rtment w ithin 7 d ays after th e chan ge occ urs. It is undisputed that appellant is a registrant within the meaning of that statute. The sex offender registration statute uses the words residence and address interchangeably. This is evident in several sections of the statute. For example, § 11-710, Notice of Registrant s Change of Address, provides in relevant part as follows: (a) In general. As soon as possible but not later than 5 working days after receipt of notice of a registrant s change of address, the Department shall give notice of the change: (1) if the registration is premised on a conviction under fede ral, m ilitar y, or Native American tribal law, to the designated federal unit; and (2)(i) to the local law enforcem ent unit in whose county the new residence is located; or (ii) if the new residence is in a different state that has a registration requireme nt, to the designated law enforcement unit in that state. (Empha sis added.) In th is subsection, res idence is used in the sa me sen se as a ddress . This is evident from the fact that subsections (a)(2)(i) and (a )(2)(ii) use the new residence to refer to the change of address discussed in subsection (a). The interchangable use of residence and address is apparent in other section s as we ll. See § 11-706(a)(1) (requiring 4 Chapter 4 altered § 11-705(d) to require the written notice to be sent to the State Reg istry created by C hap. 4, and to require the notice to be sent within five days rather than seven. -8- registration statement to include the registrant s . . . address ); § 11-708(a) (requiring the supervising authority of a re gistrant to inform the registrant of the duties of a registrant when the registrant changes residence address in this State ); § 11-711 (requiring the Department to m ail verification forms to the last reported a ddress of an off ender). 5 The sex offender registration statute does not define residence or address. The question is one of sta tutory construction, and the sole question of statutory construction before us is whether appellant changed residences when he was evicted from the Sweetgum Circle reside nce in Au gust of 20 04 and b ecame h omeless a s a result. We reiterate the familiar rule of statutory construction: our goal when interpreting a statute is to give effect to the intent of the le gislature . See Oa kland v. M ountain Lake, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006). In ascertaining legislative intent, we first examine the plain language of the statute, and if the plain la nguage o f the statute is unambiguous and consistent with the statute s apparent purpose, we give e ffect to the s tatute as it is writte n. See Mackey v. Comp ass, 391 Md. 117, 141, 892 A.2d 479, 493 (2006). If a statute has more than one rea sonab le interp retation , it is amb iguous . See Mo ore v. State, 388 Md. 446, 453, 879 A.2d 11 11, 1114 (2005). If th e languag e of the statu te is ambiguous, 5 Although not effective at the time relevant to this case, the changes to § 11-709(c) effected by Chap . 4 furth er supp orts this in terpreta tion. Chap. 4 altered § 11-709(c) to add § 11-709(c )(3), which requires a local law enforcement unit that receives a notice from a supervising authority to send a copy of that notice to the police department, if any, of a municipal corporation if the registrant . . . is to change address to another place of residence within the mu nicipal c orpora tion. As in the other sections discussed infra, residence is used here in a such a w ay that it is pr esupp osed th at one w ith a resid ence h as an a ddress . Section 11-71 1, how ever, w as repe aled by C hap. 4. -9- we resolve the a mbiguity in light of the le gisla tive i nten t, con sidering the le gisla tive h istor y, case law, and statutory p urpose . See Comptroller v. Phillips, 384 Md. 583, 591, 865 A.2d 590, 594 (2005). We consider both the ordinary meaning of the language of the statute and how that language relates to the overall m eaning , setting, a nd pur pose o f the ac t. See Dev ille v. State, 383 Md. 217, 223, 858 A.2d 484, 487 (2004). We avoid a construction of the statute that is unreas onable , illogical, o r incon sistent w ith com mon se nse. See Gwin v. MVA, 385 Md. 440, 462, 869 A .2d 822, 835 (200 5). We also construe a s tatute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory. Moore, 388 Md. at 453, 879 A.2d at 1115. We hold that appellant did not change residences within the meaning of § 11-705(d) when he became homeless, because he did not acquire a new residence within the meaning of the statute. Residence, as noted above, is used interch angeably w ith address in this statutory scheme. B ecause the ordinary mea nings of residence and add ress conn ote some degree of permanence or intent to return to a place, and appellant was homeless, he had not acquired a residence within the contemplation of the statute. The statute does not address how compliance can be achieved by a person in appellant s circumstances. The state of Washington considered a similar issue and reached the same conclusion as we rea ch toda y. State v. Pick ett, 975 P.2d 584 (Wash. App. 1999), is instructive. The Washington Court of Ap peals held that Wash ington s sex offend er registration statute did -10- not impose an obligation on hom eless person s to report a ch ange in residence.6 Id. at 586-87. The Washington statute stated, in relevant part, as follows: If any person re quired to reg ister pursuan t to this section changes his or her residence address within the same county, the person must send written notice of the change of address to the county sheriff at least fourteen days before moving. If any person required to register pursuant to this section moves to a new county, the person must send written notice of the change of address at least fourteen days before moving to the county sheriff in the new c ounty of resid ence and must registe r with that county sheriff within twenty-four hours of moving. The person must also send written notice within ten days of the change of addres s in the new co unty to the cou nty sheriff w ith whom the person last registered. If any person re quired to register pursuant to this section moves out of Washington state, the person m ust also send written notic e within ten days of moving to the new sta te or a foreig n country to the county sheriff with whom the person last registered in Washington state. Id. at 586 (quoting Wash. Rev. Code § 9A.44.130 (1999)) (emphasis added). The Pickett court, rejecting the State s contention that a ho meless person cou ld report a residence address as required under the statute by notifying the appropriate authority of his or her location by means of descriptions like under the bridge, concluded as follows: The evidence is undisputed that Pickett was living on the streets, sometimes staying in parks in Everett and Seattle, sometimes on the sidewalks o f downtow n Seattle. Pickett s 6 The Washington Legislature responded to State v. P ickett, 975 P.2d 584 (Wash. C t. App. 1999) and ame nded the Wa shington sex offen der registration statute to require sex offenders, specifically inclu ding those who lack a fix ed residence, to register and repo rt changes in living situation . See 1999 1st Sp. Sess. Wash. Sess. Laws Chap. 6, §§ 1-2; Wash. Code Rev. § 9A.44 .130(3)(b) (1999); W ash. Code Re v. § 9A.44.130(4 )(a)(vii) (1999); Wash. Code Rev . § 9A.44.130(6)(a)-(b) (19 99). -11- situation is not co ntemp lated by th e statute . Becau se . . . residence address conn ote[s] som e perman ence or inte nt to return to a place, it is im possible for Pickett to comply with the statute a s written . Id. at 586-87. In State v. Iverson, 664 N .W.2d 346 (M inn. 2003), the Minnesota S upreme Co urt reached a similar conclusion, holding tha t the Minn esota sex o ffender re gistration statute did not impose an obligation o n all homeless registrants to notify the authorities of a change of residence. The Court began its analysis by reviewing the Minnesota statutory scheme, noting that the statute used r esiden ce, ad dress, and liv ing add ress int erchan geably. Id. at 351-52. As a result, the Court saw its task as providing a common definition for these terms a s used in the statu te. Id. at 352. Applying this analytical approach, the Iverson court rejected the intermediate appellate court s construction, under w hich these terms we re interpreted to mean a pe rson s livin g location , i.e., whereve r a person h appens to be staying at th e mom ent. Id. at 352-353. The Iverson court rejected this interpretation as inconsiste nt with two po rtions of the statu te. Id. at 352. The first of these required a registrant to provide five days advance notice of an intended change in living address, and the second required a registrant to return a verification form m ail[ed] . . . to [his] last reported address[.] Id. (alteration in original). Relying on these features of the statute, the Iverson court rejected the living location construction, reasoning that if someone does not live somewhere wh ere mail can be received and they can provide five days notice that they will be going there, the person -12- cannot comply with these provisions of the statute, but nonetheless would be obligated to under the statu te if the living lo cation constru ction w ere ado pted. Id. at 352-53. T he court, however, cautioned that a bald a ssertion that o ne is homeless would not necessarily place an offender outside the statute, indicating that one who m ay in som e sense be ho meless , but who co uld comply with these requirements, would have a reporting obligation under the statute. Id. at 353. The Minne sota court p ointed out th at not all homeless people suffer from the same degree of instability in their living situation. The court set forth the following examples: [A]n offender who sleeps one night on a park bench, the next under a bridge, the next at a bus stop, and so on, is in a significantly different position from an offender who lives in a shelter for three weeks or on a couch in a friend's apartment for six months. The first of these homeless offenders does not enjoy a living location to which the statute could apply because he never has five days notice of where he will be and he cannot receive mail at any of those locations. The second of these homeless offenders, however, can comply with the statute because each of his living locations is such that he can provide sufficient notice of his intent to move there and he can receive mail there. For the foregoing reason, we conclude that a bald assertion that one is homeless may not preclude application of the residence requirements of the statute. A factual inquiry into the offender s living situation is required to determine whether compliance is possible. Compliance is required, even for homeless offenders, if they live somewhere where mail can be received and they can provide five days notice that they will be going there. If the location fits both of these criteria, then the offender must register the location. Id. at 352. -13- Although the Ma ryland sex offender statute is in some respects different than the Washington and Minnesota statutes, we reach a conclusion similar to that of the Pickett and Iverson courts. W e conc lude, on the bas is of the plain m eaning of res idence and addres s, that the General Assembly did not intend the notification requirement in § 11-705(d) to apply to homeless persons. Similar to the task before the Iverson court, we interpret residence as used in § 1 1-705(d) in such a w ay that it is synonymous with address and residence addres s. Given the plain mea nings of residence and add ress, we c onclude that a registrant has a resid ence w ithin the mea ning of § 11-705(d ) only if that person has a fixed location at which the registrant is living, or one to which the registrant intends to return upon leaving it. See Picke tt, 975 P.2d at 586-87 (plain meaning of residence address a s used in Washington sex offender registration statute connote[s] som e permanence or intent to return to a place ); W EBSTER S T HIRD N EW INTERNATIONAL D ICTIONARY 24-25, 1931 (1963) (defining address as the designation of a place . . . where a person or organization may be found or communicated with, and defining residence as a temporary or permanent dwelling place, abode, or habitation to which one intends to return as distinguished from a place of tempo rary sojourn or tra nsient visit ); W EBSTER S N EW INTERNATIONAL D ICTIONARY 2119 (2d ed. 1950) (defining residence as the act or fact of abiding or dwelling in a place fo r some time ). Applying this interpretation of § 11-705(d), we hold that the evidence was insufficient to support ap pellant s con viction. Wh en an app ellate court reviews the sufficiency of the evidence, the court views the evidence, and all inferences fairly deducible from the evidence, -14- in a light most favorable to the State. See Rivers v. State, ___ Md. ___, ___ A.2d ___, 2006 WL 209578 4, at *5 (200 6). The du ty of the appe llate court is to determine whether, after reviewing the evidence in the lig ht mos t favora ble to the State, a rational trier of f act could have found each e lemen t of the c rime be yond a re asonab le doub t. See State v. Albrecht, 336 Md. 475, 478-79, 649 A.2d 336, 337-38 (1994). As stipulated by the State and defense counsel, after appe llant was ev icted he w as hom eless, and was staying wherever he could. Given that appellant was staying wherever he could, no rational trier of fact co uld conclude that appellant had a fixed living location to which he intended to return. Acc ordingly, no rational trier of fact could conclude that appellant moved to a new residence after he was evicted from the Sweetgum C ircle residence and became homeless. Consequently, the evidence was insufficient to support appellant s conviction. The Iverson court s admonition that more than a mere assertion that one is homeless is necessary to preclude the application of the residence requireme nts of the Minnesota sex offender registration statu te is true unde r the Mar yland statute. A n individua l may be, in some sense, homeless, but nonetheless have a residence within the meaning of § 11705(d). For example, a person staying in a homeless shelter for a period of time may, in some sense, be homeless, but would not lack a residence within the meaning of § 11705(d). See also Iverson, 664 N.W.2d at 352-53 (offering similar examples). Our holding today rests not merely on the stipulation that appellant was homeless, but also on the -15- stipulated fact that he was staying w hereve r he cou ld. 7 This latter stipulation implies that appellant had not acquired a fixed loc ation where he intended to return on a regular basis, and consequently, he did not have a residence within the meaning of the statute. JUDGMENT OF THE CIRCU IT COURT FOR MONTGOMER Y COUNTY REVERSED. COSTS TO BE PAI D BY MONTGOMER Y COUNTY. 7 A defendant who is charged with violating § 11-721(a) by knowin gly failing to provide the written notice required by § 11-705(d) and wishes to defend against the charge by arguing that he or she was homeless and thus did not acquire a new residence within the meaning of § 11-705(d) must generate this issue by prese nting som e evidenc e tending to show that the defendant w as homeless, and theref ore did not acquire a new residence. Once the issue is generated, the State0 carries the burden of proving beyond a reasonable doubt that appellant acquired a new residence. -16-
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