Richard P. Wallace 1-9 Chief Baker
(Judge Lisa Borges, Marion Superior Criminal Division 15 affd)
- Evidence that defendant failed to register January 5, 2004 sufficient despite the calendar year being a mere five (5) days old, because initial obligation to register arose July 1, 2001 upon statutory change. It was a failure to initially register analysis, not a failure to renew annual registration.
- Conviction for Failing to Register as a Sex Offender (Fd) not a violation of ex post facto law.
FACTS: Wallace pled guilty February 15, 1989, to child molest as a Class C felony. In return for the plea, a Class B felony molest was dismissed. He received a suspended sentence with probation. His probation expired around March of 1992.
In 1994 Zachary’s law established the sex offender registry in Indiana. IC 5-2-12-9 [now IC 11-8-8-7].
Various amendments were (and continue to be) passed, but it was not until July 1, 2001 (twelve years after sentencing) that the registration requirement reached back to this defendant. Because the defendant had been convicted of child molest, he was deemed a sex offender, and was required to register. The age of the prior conviction matters not under the new registry scheme.
In 2003 the Indianapolis Police Department (IPD) sent Wallace two letters advising him of the need to register. On December 31, 2003 in response to the letters, Wallace appeared at IPD. He told the registration coordinator he would not register as a sex offender because the plea executed in 1989 did not require him to do so. His suspended sentence and probation time had long since expired.
On January 5, 2004, the state charged Wallace with failing to register as a sex offender (fd). After denial of a motion to dismiss he was convicted by a jury and sentenced to 545 days suspended with probation.
DISCUSSION: SUFFICIENT EVIDENCE: Defense argument that it was impossible for the defendant to fail to register on January 5, 2004, because the calendar year was a mere five days old (statute allows seven days to register) fails where defendant’s obligation to register arose July 1, 2001 (date of statutory change) and continued until the day he was charged for failing to register, which was January 5, 2004. In other words, it’s a failure to make an initial registration analysis as opposed to a failure to update an annual registration. Thus, the important time frame runs from the date the obligation arose, to the charging date.
The defense argument that the lack of a triggering mechanism creates insufficient evidence failed. In other words, the defense argued the normal triggering events of release from imprisonment or placement on probation or parole could not happen in 2001, as the defendant had been released from all sentencing obligation in 1992. Therefore, no obligation to register could exist in 2001. The appellate court just reiterated that the obligation to register came to fruition on July 1, 2001. The lack of a triggering mechanism did not deter the sufficiency finding. The court didn’t want to get tangled up in the exact time frame of the statutory obligation and basically said, the proof at trial was close enough.
NOT EX POST FACTO: Citing Spencer v O’Connor 707 N.E.2d 1039 (Ind. App. 1999) the court held the registry is not a punishment and is a civil mechanism to monitor the sex offender. As such, there is no ex post facto violation. Also cited was Smith v Doe 538 U.S. 84 (2003) with an analysis and comparison of Indiana to Alaska’s offender registration scheme as constitutional using an “intent-effects” test.
However, see Todd L. Jensen v State, December 26, 2007, WL 4482622 finding a violation of ex post facto law upon classification as a sexually violent predator requiring lifetime registration.