I Saw a Man Get Arrested For a Sex Crime Because He Made a Scheduling Error

7-17-2014 Texas:

When I agreed to keynote the Reform Sex Offender Laws conference this week in Dallas, Texas, I didn't expect it to hit quite so close to home.

But before I arrived, I got a phone call from a soft-spoken, super-articulate young man, Joshua Gravens, who is a Soros Justice Scholar based in Dallas. His specialty is the injustice of the sex offender registry and the fact that it isn't making kids any safer (see this study and this article). He was also on the public sex offender list until recently and still has restrictions on his movement.* He invited me to come with him to the police department to give notice he had moved. Who could resist?

Josh became a sex offender at age 12. That's when he touched his sister's vagina, twice. His sister told their mom, Josh said it was true (he was too embarrassed at the time to mention that he himself had been raped as a young boy by three local high school kids), and their mom called a counseling service for advice. The counsellor said Josh's mother was required to report his crime to the authorities and the next day, he was arrested.

People v Kayer

UPDATE 2-16-2014: State legislature is now trying to amend law (SB 2912) because of this case (See article below)

5-6-2013 Illinois:

People v Kayer

In July 2011, the State charged defendant, Brian M. Kayer, with unlawful failure to register employment change as a sex offender (730 ILCS 150/6 (West 2010)). In September 2011, defendant pleaded guilty to that offense. In October 2011, the trial court sentenced him to three years' imprisonment.

Defendant appeals, arguing his conviction is void because the loss of his job did not constitute a "change" in his "place of employment" such that he was required to report under section 6 of the Sex Offender Registration Act (Registration Act) (730 ILCS 150/6 (West 2010)).

We agree and vacate defendant's conviction.

... ... ...

17 III. CONCLUSION

¶ 18 We conclude section 6 of the Registration Act did not require defendant to report his loss of employment as a change in his place of employment. Defendant's guilty plea and conviction were based upon actions not constituting a criminal offense.

We vacate defendant's conviction as void.

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Lawmakers consider tweaking sex offender laws

2-5-2014:

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

The twin pieces of legislation were introduced after lawmakers said they encountered holes in the current statutes, the Springfield bureau of Lee Enterprises newspapers reported.

"Attending the county fair is geared more toward families," said state Rep. Mike Smiddy, a Democrat from Port Byron who sponsored one of the bills. "A lot of children are there. They have a lot of children's events, like tractor pulls and stuff, attached to these things. I just don't believe that a registered sex offender should be allowed to go to those areas where children are present."

Smiddy said he introduced the measure at the request of officials in Whiteside County. Sex offenders would still be allowed to attend the state fair if the bill passes. They're already banned from working at county fairs.

The second bill would require convicted sex offenders who lose their jobs to update their registration with state police. The current law only requires sex offenders to notify authorities if they change jobs.

Sen. Jason Barickman, a Bloomington Republican who co-sponsored the bill (SB 2912), said he thinks those who drafted the original law meant to require registered sex offenders to also report the loss of a job.

He said charges against a sex offender were dismissed in McLean County because of ambiguity over when people had to report a change in employment. ..Source.. by

Appeals court reinstates indictment against McKeesport man who failed to register as sex offender

1-15-2014 Pennsylvania:

USA V Blake Brown Jr

When it comes to an exemption in the federal sex offender registration law, “not more than four years” means no more than 1,461 days, a federal appeals court ruled Wednesday in a precedential ruling.

A three-judge panel of the U.S. District Court of Appeals ordered U.S. District Judge Joy Flowers Conti to reinstate the indictment of Blake Brown, 28, of McKeesport, who is charged with failing to register after he moved to Pennsylvania from New York. He was arrested in 2011 during a regional sweep by law enforcement of unregistered sex offenders.

Brown was convicted in 2003 in Florida for lewd molestation of a 13 year old when he was 17 years old, the ruling says. The registration law exempts people convicted of consensual acts when the victim was at least 13 and they were “not more than four years older.”

Brown was four years and four months older than his victim. Conti ruled that the federal law was ambiguous about whether the calculation should include only whole years or include months or days. The appeals court said anything past 1,461 days is more than four years. ..Source.. by Tribune-Review

Sex offender disputes claim he moved

We wonder, as to the vehicle address, under Pennsylvania DMV code, is anyone who fails to change addresses -on vehicle registrations- likewise prosecuted? Or whether vehicles towed or otherwise impounded are checked and prosecuted likewise if addresses are different between licensed owners and registered vehicle addresses. In addition, does MV code charge a felony for incorrect motor vehicle addresses?

1-8-2014 Pennsylvania:

WILKES-BARRE — Police say convicted sex offender Cyrus Spencer moved without informing authorities, as required under Megan’s Law, and that he admitted as much to officers.

Spencer’s response? Prove it.

Defense attorney Allyson Kacmarski has filed a motion on Spencer’s behalf in Luzerne County Court, seeking a hearing in connection with the allegations against her client, arguing the prosecution does not have enough evidence to prove its case.

Luzerne County Judge Michael T. Vough on Monday scheduled the hearing to take place at 2 p.m. Feb. 7.

According to an affidavit filed by state police, Newport Township Police Chief Jeremy Blank told Trooper Martin Connors that on Jan. 4, 2013, he went to a home on Miner Avenue, Wanamie, in connection with an unrelated incident.

While there, Blank told Connors, he encountered Spencer, who told the chief he was living at the address, according to the affidavit. A records check revealed that Spencer was a Megan’s Law offender listed as living on Essex Lane in Wilkes-Barre.

In March 2000, a Luzerne County jury Wednesday found Spencer, then of Hunlock Township, guilty of sexually assaulting a 15-year-old girl. The following month, county Judge Mark Ciavarella sentenced Spencer to a state prison term of six to 12 years.

State records show that Spencer, 48, is a Tier 3 offender and must register for life. State police must be notified of any change of address within three days.

Newport police said they returned to the Miner Avenue residence the following week and took statements from Spencer and his girlfriend indicating that they had moved into the apartment on Jan. 1, 2013. Police said they also obtained a written statement from the landlord — the girlfriend’s father — who said the couple moved in on Jan. 1.

On Jan. 18, 2013, Spencer’s girlfriend was cited with a traffic violation while driving his car, which was then towed, police said. Spencer called Blank a short time later to ask where the vehicle was, and the chief told him “he could be towed for numerous violations including failure to change his address and his motor vehicle registration,” the affidavit says.

Later that day, according to police, Spencer arrived at the police station to drop off a change of address form for his license and vehicle registration, which indicated he had moved on Jan. 1.

Spencer is facing two counts of failure to address/be photographed, a felony.

According to the motion filed by Kacmarski, the defense does not believe the prosecution can establish a case. ..Source.. by Roger DuPuis

Megan's Law offender granted new trial

1-8-2014 Pennsylvania:

A man awaiting trial on homicide charges can have a new trial on his alleged failure to register as a sex offender, the state Superior Court ruled Tuesday.

Joseph Walter Derhammer, 43, is entitled to a new trial because he was apparently not informed he could waive the right to a jury trial, the panel of three state judges determined.

Derhammer is also awaiting trial on criminal homicide charges related to the April 13, 2009 arson fire that caused the death of his ex-girlfriend Nancy Kostelnick, 48, and her daughter Carolyn "C.J." Kostelnick, 23.

Police said the porch of the Kostelnicks' house at 46 Chester St., Wilkes-Barre, was set alight using combustible materials, which created a fast-moving fire. The Kostelnicks died from carbon monoxide poisoning.

While investigating the fire, law enforcement officials discovered Derhammer's alleged failure to register as a sex offender. He committed involuntary deviate sexual intercourse in 1995, records show.

Derhammer had moved out of the Kostelnicks' house on April 1, 2009, but did not register until five days later. Megan's Law requires sex offenders to register within two days of changing addresses.

After a 90-minute trial on March 3, 2011, former Luzerne County judge Lewis Wetzel found Derhammer guilty of the Megan's Law violation. Derhammer appealed, and the commonwealth and superior courts reversed the sentence on the grounds that the record is "devoid of any indication that anyone informed Derhammer of his waiver rights." ..Source.. by CitizensVoice.com

25 to life for failing to reregister as sex offender

12-18-2013 California:

Vance Rider was a 41-year-old man with a long criminal record and a low IQ when he left Oakland in late 1999 and bedded down at a homeless shelter in San Mateo. Police found him there in March 2000 and discovered he had failed to reregister as a sex offender as required by law — once a year, within five days of his birthday, and within five days of a change of address.

After a San Mateo County judge barred a psychologist from testifying about Rider’s low mental capacity, a jury convicted him of violating the registration law. With multiple felony convictions on his record — three robberies in 1978, and forcible oral copulation of a minor and attempted manslaughter in 1983 –he was sentenced to 25 years to life in prison under California’s three-strikes law.

Rider has remained in prison during lengthy and unsuccessful appeals in the state courts, and on Wednesday he lost again, this time in the Ninth U.S. Circuit Court of Appeals.

One defense argument was that the trial judge should have allowed the jury to hear a psychologist who said Rider had an IQ of 69 and that such people have difficulty with their memory and ability to make plans. The judge said the defense could offer evidence that Rider was unaware of his duty to register, or lacked the ability to comply, but that state law barred testimony that he suffered from a mental defect that affected his capacity to follow the law.

State Police wrongly arrested man, court says

3-24-2012 West Virginia:

The State Police did not have the right to arrest a Tyler County man for failure to re-register as a sex offender upon his release from jail in 2010, the West Virginia Court of Appeals said Thursday.

Sex offenders are only required to re-register their information following a conviction -- not after an arrest, the Appeals Court ruled.

On Dec. 27, 2010, the Tyler County Circuit Court dismissed a failure to register as a sex offender charge against Timothy John Judge, 30. Tyler County Prosecuting Attorney D. Luke Furbee then appealed the dismissal.

On Sept. 19, 2002, Judge was convicted of a third-degree sexual abuse charge and severed 18 months of probation, according to the opinion.

Judge was in compliance with the sex offender registry and updated his information just weeks before he was arrested on May 7, 2010 for a charge of accessory after the fact to breaking and entering. After a one-night stay in the North Central Regional Jail, Judge returned to his previously registered home, according to the opinion.

Police arrested Judge because he did not complete a new sex offender registration form.

According to the State Police's form, an offender must re-register with three days "of release from an institution."

Furbee said the sex offender law wasn't clear on what is required of an offender after an arrest.

"The interpretation that the State Police was using ... were being advised if they had been committed to jail during a period of registration or any other institution involuntarily, they were to essentially renew their registration within three business day of their release," he said.

The Appeals Court ruled, "the duty to register as a sex offender arises upon a conviction of an offense.

"In this case, it was alleged the defense did not follow those directions and the problem simply was 'did that amount to a criminal violation or not?'" Furbee said.

The state acknowledged "there is an apparent gap or disconnect in the statutory language of [the sex offender law] and the State Police's rule and forms," according to the opinion.

The Appeals Court said all State Police forms that "include language instructing sex offenders of their obligation to re-register upon each release from incarceration should be rewritten to remove such language."

"It was an arguable issue and the court apparently agreed that it was by accepting this appeal for full argument. The court answered that question in the negative," Furbee said. "Now we know the right answer, and we have to have certainty if we're going to be asked to prosecute these cases."

State Police Spokesman Sgt. Michael Baylous declined to comment. ..Source.. by Travis Crum

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Judge Gets 1-5 Years For Registration Violation

10-17-2012

Timothy John Judge, 31, of Box 132, Friendly, was sentenced Tuesday in Wetzel County Circuit Court to one to five years in the West Virginia State Penitentiary for Men.

He had pleaded guilty on Aug. 13 to failing to register as a sex offender or provide a change in information to the West Virginia State Police in Wetzel County by knowingly failing or refusing to report his move to a new address.

Both sides of counsel had their chance to give last words to the Judge Mark A. Karl before he went through with sentencing. Jeremiah Gardner, Judge's defense, reminded Karl of a letter written by Judge's employer in his favor. Gardner also reported that Judge is gainfully employed and is paying child support. Gardner stated that the error made by Judge was a technical one, in that he bought a cell phone and forgot to report his new cell phone number.

Prosecuting Attorney Timothy Haught reminded the court of Judge's history in both Tyler and Pleasants counties, that this was not his first offense of a similar nature.

Judge Karl agreed and thus, sentenced Judge to one to five years. He admonished Judge, telling him, "You've had opportunities; this shouldn't come as a shock to you."

Judge can file a Rule 35 motion for a reduction in sentence after four months in prison. Also, the state previously agreed to drop count two, knowingly failing or refusing to report a new vehicle or change in vehicle, per the terms of Judge's plea agreement. ..Source.. by LAUREN RIGGS

State v. Tippett

3-21-2001 Iowa:

State v. Tippett

Defendant, James Clay Tippett, who was convicted of failure to register as a sex offender in violation of Iowa Code section 692A.7(1) (1997), challenges his conviction on the basis that it was not supported by substantial evidence when the record is considered as a whole.1 After reviewing the record and considering the arguments presented, we agree with defendant's contention and reverse the judgment of the district court.

In 1991 defendant was convicted in Illinois of aggravated sexual abuse involving a minor and sentenced to prison. He was released in 1993. In 1997, while still under parole supervision by Illinois authorities, he attended the University of Iowa in Iowa City. Sometime in 1998 he was brought to the attention of Iowa authorities when a mother complained that defendant was frequenting an area near her home where her young son played and was interacting with her son and other neighborhood children.

After local police asked defendant for identification, a criminal history check revealed his Illinois conviction. The State contends that, as a result of defendant's moving from Illinois to Iowa, he was required to register as a sex offender in Johnson County no later than September 4, 1997.

There are two issues for our decision as a result of the argument defendant presents. These are: (1) must a defendant know of the duty to register as a sex offender in order to be convicted of failure to register; and (2) if the first inquiry is answered in the affirmative, was there sufficient evidence presented at defendant's trial to show that he was aware of a duty to register.

... ... ...

Ill. Pub. Act 89-8 art. 20, § 20-20 (effective January 1, 1996). It appears that, at the time defendant was released from prison in 1993, Illinois correctional officials were not expressly tasked to advise him concerning the duty to register in another state to which he might move.

Irrespective of the requirements of Illinois law, the State's argument based on the probability that defendant would have been advised by Illinois correction authorities of a duty to register in a new state of residence is based on an unsupported presumption. If such advice had been given to defendant, there should have been a source of evidence for the State to produce at trial. The failure to produce such evidence does as much or more to suggest that defendant was not advised of a duty to register in another state than any presumption the State might rely upon does to suggest that he was so advised.

The State's only other contention concerning defendant's awareness of a legal duty to register is a reliance on the fact that he has moved from place to place since his discharge from prison. The State suggests that this was an effort to avoid registration. The State cannot circumstantially prove the existence of a fact by relying on a circumstance that is itself dependent upon the fact's existence. In order to tie defendant's nomadic tendencies to an attempt to avoid registration, the State would have to independently establish that he knew of the registration requirement. Standing alone, defendant's frequent moves from place to place are not indicative of that knowledge. When the record is viewed as a whole, the State's evidence is insufficient to establish that defendant was aware of a duty to register. The verdict should have been directed in his favor.

We have considered all issues presented and conclude that the judgment of the district court must be reversed. The case is returned to that court for entry of judgment of acquittal.

REVERSED.

State v Smith

1-20-2000 Iowa:

State v Smith

Defendant, Antoine D. Smith, who was convicted following a bench trial of failing to register as a sex offender, punishable pursuant to Iowa Code section 692A.7(1) (1997), appeals from the judgment of conviction. Because we find the acts alleged do not constitute a crime, we reverse.

The trial information in the present case alleged as follows:
COMES NOW John Lammers as prosecuting attorney ... and accuses ANTOINE SMITH of FAILING TO REGISTER AS A SEX OFFENDER in violation of Section 692A.3(3)—aggravated misdemeanor ... committed as follows: The said ANTOINE SMITH on or about the [second day of August], 1997, in Black Hawk County, Iowa, did: failed to register any change of address with the sheriff of the county in which he was residing, or had failed to return a verification of address form after being required to do so as a convicted sex offender. Contrary to and in violation of section 692A.3(3) of the Iowa Criminal Code.

(Emphasis added.)

The evidence presented at trial revealed that following a conviction of assault with intent to commit sexual abuse in April 1992, defendant was incarcerated until July 1995. At the time of his release from prison, he registered as a sex offender with the sheriff of Black Hawk County. The registration form listed his address as follows: Community Support Center, 907 Independence Avenue, Waterloo, Iowa. Written on the form was a notation that defendant would be working with persons at a mental health program at that address who would assist him in establishing a permanent residence.

Later, defendant served a one-year jail sentence in the Black Hawk County jail from August 2, 1996, until August 2, 1997. During part of that time, he was committed to the mental health institute at Independence. While in jail on August 8, 1996, defendant completed an annual verification-of-address form for registered sex offenders as provided in Iowa Code section 692A.4.

Following his release from jail on August 2, 1997, defendant resided at a residence in Black Hawk County different from that shown on his most current sex-offender registration as verified by the August 8, 1996 verification-of-address form. He did not advise the Black Hawk County sheriff of this change of address. As a result, a warrant was issued for his arrest. Following his arrest on October 18, 1997, he did file a change-of-address form with the Black Hawk County sheriff on October 24, 1997. The present criminal charge is for his failure to have done so between August 2 and October 24.

The district court found that defendant's failure to advise the sheriff of his latest change of address following his release from jail on August 2, 1997, was a violation of the registration requirements of Iowa Code section 692A.3(2), punishable pursuant to Iowa Code section 692A.7(1).

At the time the district court ruled on defendant's guilt, this court had not issued its decision in State v. Reiter, 601 N.W.2d 372 (Iowa 1999). Nor had the Reiter case been decided when the initial appellant's brief was filed on this appeal. Defendant urged at oral argument and in a supplemental brief filed following oral argument, to which the State has had an opportunity to respond, that, based on the holding in Reiter, a failure to notify the sheriff of a change of address is not punishable under Iowa Code section 692A.7(1), the statutory provision punishing sex offenders who fail to register as required by law.

We agree with that contention. Although Reiter involved that portion of section 692A.3 dealing with registrants who move outside the state and the present case involves a registrant's change of address within a county, the basic premise of Reiter, i.e., that a failure to notify of a change of address is not punishable as a failure to register, is equally applicable to the present situation.

We have considered all issues presented and conclude that the judgment of the district court should be reversed.

REVERSED.

State v Reiter

10-13-1999 Iowa:

State v Reiter

Defendant, Earl John Reiter, appeals from the judgment and sentence entered upon his conviction for failure to comply with the sex offender registry in violation of Iowa Code sections 692A.3 and 692A.7(1) (Supp.1995). He was convicted following a stipulated trial to the court.

He contends the district court erred in interpreting the penalty clause for "willful failure to register" under section 692A.7(1) as including failure to notify the sheriff of a change of address.

We hold the penalty clause in section 692A.7 for "willful failure to register" does not prescribe a penalty for a failure to notify the sheriff of a "change of residence."

We reverse the district court judgment and sentence.

... ... ...

We must reject the State's position and the district court's reasoning. The legislature did not say the duty to notify of a change of address was a part of or was in fact a registration. In enacting section 692A.7, the legislature only gave warning of a penalty for violation of the duty "to register as required." It gave no warning that the failure to give notice of an address change carried a criminal penalty. If the legislature intends to punish a sex offender for a failure to notify of a change of address, it must say so.

For all the reasons stated, we believe section 692A.7(1) does not provide a penalty for defendant's failure to notify the sheriff of Osceola County of his change of address. Therefore, we reverse the defendant's judgment and sentence.

REVERSED.

Sex offender registration rules don't apply on tribal lands.

9-24-2012 Arizona:


Tribal members living on tribal land cannot be prosecuted by the state for failing to register as sex offenders, the Arizona Court of Appeals ruled Monday.

In a unanimous decision, the judges said state registration requirements cannot supersede what is required by federal law. And absent some very specific conditions, the state has no legal authority.

Judge Philip Espinosa, writing for the court, also said it is irrelevant that the defendant was found off the reservation.

Attorney General Tom Horne said he had not had a chance to review the ruling.

Court records show Raymond John was convicted in the late 1980s in federal court of two counts of sexual assault on the reservation.

In 2010 he was arrested by Coconino County sheriff’s deputies outside the reservation and charged with failure to register as a sex offender as required by Arizona law. He pleaded guilty and was placed on probation.

John immediately asked the verdict be set aside, arguing the state had no authority. He said he was a member of the Navajo Nation living on tribal land and had not worked, resided or attended school outside reservation boundaries.

The trial judge refused, leading to the appeal.

Espinosa said under federal law, a sex offender must register. It also requires tribes to implement their own registration system or delegate that authority to other jurisdictions.

Federal law does say a tribe loses its authority if it does not come up with a suitable program. But Espinosa said the power is delegated to someone else only if the U.S. attorney general first determines the tribe has not complied and is likely incapable of doing so in a reasonable time.

That, he said, did not occur here. And that means Arizona cannot impose registration requirements on tribal members living on tribal lands.

The appellate judges also rejected arguments by prosecutors that the state acquired jurisdiction over John “the moment he stepped off the reservation.’’ They said John’s conviction is based entirely on his conduct within Navajo Nation territory, where he lives.

Beyond the issues related specifically to the Navajo Nation, Espinosa said even if tribal members living on the reservation were required by federal law to register with the state, failing to do so would violate only federal law. That still leaves the state powerless to prosecute John in state court under state laws. ..Source.. by Howard Fischer