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State v. McAvoy

July 9, 2009

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
ROGER PATRICK MCAVOY, DEFENDANT AND APPELLANT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

AFFIRMED AS AMENDED.

[¶1] Roger Patrick McAvoy appealed from a criminal judgment entered following a jury trial and verdict finding him guilty of failure to register as a sex offender under N.D.C.C. § 12.1-32-15(2). The criminal judgment indicates McAvoy was convicted by a plea of guilty. This is an error. We affirm the conviction, holding there was sufficient evidence to convict McAvoy of the offense but we direct that on remand the criminal judgment be amended to reflect that McAvoy was convicted after a jury trial and verdict finding him guilty of the offense of failure to register as a sex offender.

I.

[¶2] In April of 1997, Roger Patrick McAvoy pled guilty to a charge of sexual assault on a child, and was subsequently required to register as a sex offender. On December 12, 2007, McAvoy registered a Bismarck address of "521 Wind Ave." with the North Dakota Bureau of Criminal Investigation. Officer Kevin Huber of the Bismarck Police Department realized this must be an error, as there was no "Wind Avenue" in Bismarck, and on December 21 found McAvoy at 521 West Indiana Avenue, informing him that he had filled out his registration form incorrectly and needed to fill out new forms immediately. McAvoy visited the Bismarck Police Department later that day, and amended his registration to indicate 521 West Indiana Avenue as his residence. McAvoy would later testify that he spent every night in the West Indiana apartment from December 12 until he moved out approximately ten days later.

[¶3] At the time McAvoy listed his residence as 521 West Indiana Avenue the only person appearing on the lease for that residence was Star Silk. In December of 2007, McAvoy dated Silk's mother, Jacqueline Dogskin. Silk testified at trial that, aside from her two children, she was the only person who had resided at that address. However, Dogskin performed baby-sitting duties for Silk's children at the residence during the weekdays, and Silk noted at trial that Dogskin stayed overnight "a few times." While McAvoy stated that Silk knew he was spending nights at the West Indiana apartment, Silk testified that McAvoy was not allowed to stay there overnight or use the residence as his mailing address. Silk also contended she had not known that McAvoy used the West Indiana residence for his sex offender registration. Rather, Silk testified that McAvoy slept in a van parked down the street from her apartment, and that Silk only allowed him into the home during the evenings while she was present.

[¶4] Silk testified that on the morning of December 22 she told Dogskin and McAvoy they were no longer allowed in her apartment. McAvoy placed his date of departure from the West Indiana apartment at December 23, and stated he intended to return to the residence after a brief stay away. By either time line, after leaving the West Indiana address, McAvoy and Dogskin went to Fort Yates where they stayed with Dogskin's mother. McAvoy stated their intention was to spend the holiday season in Fort Yates, and return to Silk's apartment afterward until he found his own residence. At no point after December 21 did McAvoy provide law enforcement with an updated registration address, and was arrested in Sioux County on January 3 for failure to register.

[¶5] While McAvoy waited for trial, his probation officer filed a petition for revocation of McAvoy's probation due to his most recent charges. After the petition was granted, McAvoy appealed to this Court, which found the district court did not abuse its discretion and was not clearly erroneous in finding that McAvoy violated the terms of his probation. See State v. McAvoy, 2008 ND 204, ¶ 1, 757 N.W.2d 394. McAvoy's criminal trial for failure to register as a sex offender was held on October 17, 2008. Pre-trial, McAvoy moved to include a jury instruction explaining when a sex offender would be required to register after being temporarily domiciled. The proposed instruction read:

When a person has been at a location for ten days, that new address is his temporary domicile, and after that ten days has expired, he has three days to register with the chief of police of the city or the sheriff of the county of his temporary domicile.

In its order ruling on McAvoy's motion, the court noted that this interpretation of the statute would allow a sex offender thirteen days to register after coming into a county. The court stated that, "if supported by the evidence at trial, the instruction requested by the Defendant, or one substantially similar thereto, will be given by the Court at trial." At the trial's commencement, the district court included in its opening jury instructions a definition of the term "temporarily domiciled" explaining the statutory provision that sex offenders must register an address while impermanently displaced in a location after being present there for longer than ten consecutive days. The court further instructed the jury that the term "resides" means "to live in a place, to be physically present and actually stay there." At the close of the trial and before the case was submitted to the jury, the court discussed with the attorneys McAvoy's requested instruction regulating the registration of sex offenders when temporarily domiciled. The court stated that it would give its own version of the instruction, which read:

A sexual offender who fails to register, or who changes his name, school, or address and fails to give written notification within three days of coming into a county in which the individual resides or is temporarily domiciled is guilty of a criminal offense.

[¶6] The court noted to the attorneys that, in drafting the language in this instruction, it agreed with McAvoy's counsel that the statute allowed offenders thirteen days to register, first addressing McAvoy's counsel:

I think that the instructions that are included accurately state what the statute says. You can make the argument that that's what the statute says and that that's how you understand what the statute to mean, because I think you're correct in how you're reading the statute. I think there are some problems with that statute after it was amended that creates some confusion how those sections may be read together.

Certainly, the-I agree with the State that the intent of the Legislature and the Courts in interpreting the statute in the past has made it pretty clear that the intent is to tighten up the time for registration and not ...


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