COMMONWEALTH v. Isaac E. MCCLAMY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged with failing to register as a sex offender, in violation of G. L. c. 6, § 178H (a), under theories of both the failure to provide notice of a change of address and providing false information. At trial, the Commonwealth argued that the defendant was no longer homeless, but had moved into an apartment in Newton without notifying local police. The Commonwealth also asserted that the defendant falsely registered as a homeless resident of Cambridge the day prior to the offense. At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty. The motion was denied, and the jury convicted him under both theories presented by the Commonwealth. On appeal, the defendant argues that there was insufficient evidence that he established a new residence at the Newton apartment and was no longer homeless. We affirm.
Background. We summarize the facts, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On August 7, 2018, Officer Chris Boudreau of the Newton police department was working an overnight shift from 11:30 p.m. to 7:30 a.m. At some point during his shift, the officer received a call regarding a disturbance at an apartment located at 99 Needham Street in Newton. The officer responded to the apartment, where he was met by the defendant, who opened the front door for him. The defendant was angry and wanted to know why the officer was there. In an attempt to quell the disturbance,2 Officer Boudreau suggested that the defendant leave the apartment for the night. The defendant responded by repeatedly stating that he lived there. Indeed, the defendant told the officer “more than five times” that he lived at the apartment, while pointing out some of his belongings within the residence.
The defendant pointed out a television in the living room, stating that it was his, and brought the officer to a walk-in closet in the master bedroom 3 where the defendant's clothes -- including his jackets, pants, shirts, and sneakers -- were located. The officer testified that the defendant's clothing was both “hanging up” in the closet and “strewn about on the floor.” Before eventually leaving the apartment, the defendant also retrieved some of his clothes from the laundry dryer.
The following day, Officer Eric Rosenbaum of the Newton police department reviewed Officer Boudreau's police report from the prior evening and conducted a search for the defendant in the police database. He learned that the defendant was a level three sex offender, who had not registered his address at 99 Needham Street in Newton with the Sex Offender Registry Board (board) or the police, as required by G. L. c. 6, §§ 178E (h), 178H (a). Instead, just the day prior, on August 6, 2018, the defendant appeared in person at the Cambridge police department and registered his current address as “homeless.”
Discussion. “In determining whether the evidence was sufficient to survive a motion for a required finding, we determine whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Arce, 467 Mass. 329, 333 (2014), citing Latimore, 378 Mass. at 677. The inferences drawn from the evidence “need only be reasonable and possible; [they] need not be necessary or inescapable” (citation omitted). Commonwealth v. Merola, 405 Mass. 529, 533 (1989).
To prove that the defendant, a level three sex offender who was required to register, violated G. L. c. 6, § 178H (a), the Commonwealth was required to show that he knowingly failed to provide notice of a change of address or knowingly provided false information. Arce, 467 Mass. at 332. It is undisputed that level three sex offenders are required to appear annually in person at the local police department in the city or town in which they live to verify their registration information. G. L. c. 6, § 178F 1/2. Homeless level three sex offenders must do so every thirty days. Id. A sex offender's registration information includes “the offender's home address and any ‘secondary addresses.’ ” Commonwealth v. Kateley, 461 Mass. 575, 576 (2012), quoting G. L. c. 6, § 178F. If an offender intends to move to a new city or town within the Commonwealth, the offender must notify the board of his intended home or secondary address no later than ten days prior to the move. G. L. c. 6, § 178E (h). The board will then transmit notice to the local police department within that city or town. Id.
The defendant claims that the Commonwealth failed to prove by sufficient evidence that the Newton address was either his home or secondary address, such that he was required to provide notice of that address or that he knowingly provided false information by registering as a homeless resident of Cambridge.4 The Commonwealth does not allege here, and did not argue at trial, that the Newton apartment was the defendant's secondary address.5 Rather, the Commonwealth argues that there was sufficient evidence adduced at trial that the Newton apartment was the defendant's home address. We agree.
An offender's “home address” is his “primary place of residence.” Commonwealth v. Bolling, 72 Mass. App. Ct. 618, 624-625 (2008). “Residence” is defined as “the place where one actually lives ․ as distinguished from one's ․ domicile [or] a place of temporary sojourn.” Id. at 623, quoting Webster's Third New International Dictionary 1931 (2002). The term “home address” “implies some degree of permanence.” Id. at 624.
Here, the evidence was sufficient to prove that the Newton apartment was the primary place where the defendant “actually live[d].” Bolling, 72 Mass. App. Ct. at 623. To begin, more than five times, the defendant told Officer Boudreau that he lived at the Newton apartment. Then, to prove it, he pointed out his clothing and property inside the apartment. The defendant told Officer Boudreau that the television in the living room was his, and further showed the officer that he kept his clothing in the closet in the master bedroom and washed his clothes in the apartment's laundry. In light of this evidence, there was no reason to disbelieve the defendant. The jury were further entitled to draw inferences from the fact that the defendant answered the front door of the apartment when the officer arrived, inquiring why the officer was there. Additionally, given the circumstances and the officer's testimony regarding the timing of his shift -- which occurred from the late evening to the early morning -- one could reasonably infer the defendant spent his nights at the apartment.
The facts here are easily distinguishable from those in Arce, 467 Mass. at 331-335. In that case, the court concluded that there was insufficient evidence that the defendant, who had registered as homeless, had changed his home address or acquired a secondary address. Id. at 334-335. Notably, the defendant there, unlike the defendant here, admitted only to “staying” at his aunt's apartment while he searched for a place to live. Id. at 334. Moreover, he was observed at his aunt's apartment only during the daytime, which was consistent with the fact that he used the address as his mailing address -- a fact that he had informed police of. Id. There was otherwise nothing to suggest that the defendant lived at his aunt's apartment. Indeed, there was no evidence the defendant was staying there with any kind of permanence or that he even spent a single night in the apartment. Id. at 335. Conversely, the defendant here expressly admitted to living in the Newton apartment, and otherwise treated the apartment as his own by keeping his clothing and property there and answering the front door to visitors. This evidence, taken together with all the reasonable inferences drawn therefrom, was sufficient to prove that the Newton apartment was the defendant's home address, and that he violated G. L. c. 6, § 178H (a), by failing to register that address and instead registering as homeless the day prior.
2. The nature of the disturbance was not admitted at trial, but it involved a domestic dispute between the defendant and his girlfriend, who resided at the Newton apartment.
3. The officer testified that there was one bed in the bedroom, and that the bed was bigger than a twin.
4. The defendant does not argue that the Commonwealth failed to prove that he knew of his requirement to register as a sex offender. See Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 12 (2007) (to prove defendant “ ‘knowingly fail[ed] to register,’ ․ Commonwealth was required to prove that the defendant knew of the requirement that he register but did not do so despite this knowledge” [citation omitted]).
5. The term “secondary address” is defined in the statute as “all places where a sex offender lives, abides, lodges, or resides for a period of 14 or more days in the aggregate during any calendar year and which is not a sex offender's primary address; or a place where a sex offender routinely lives, abides, lodges, or resides for a period of 4 or more consecutive or nonconsecutive days in any month and which is not a sex offender's permanent address, including any out-of-state address.” G. L. c. 6, § 178C.
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