Commonwealth v. Bell

981 N.E.2d 220, 83 Mass. App. Ct. 82, 2013 WL 119782, 2013 Mass. App. LEXIS 3
Massachusetts Appeals Court·Decided January 11, 2013·No. No. 11-P-1139·Published·Cited by 35 cases

Opinions

Meade, J.

After a jury-waived trial, the defendant was convicted of failing to register as a sex offender in violation of [83] G. L. c. 6, § 178H(a). On appeal, he claims that there was insufficient evidence to support his conviction, and that the admission in evidence of a Texas sex offender registry document violated his right to confrontation under the Sixth Amendment to the United States Constitution. We affirm.

1. Background. The defendant stipulated that in 1988 he had been convicted of a 1985 attempted child sexual assault in Nevada,2 and a certified record of that Nevada conviction was admitted in evidence without objection. The defendant also stipulated that at the time of his 2004 arrest in Massachusetts, he had not registered as a sex offender in the Commonwealth.3

At trial, the defendant’s former wife identified him and testified that she met him through the Internet. At the time, she was residing in Texas and he was in Nevada. The two were married in Texas in 2000 and resided there. In 2002, they moved to Massachusetts.

The defendant’s former wife was familiar with his signature, and she identified it on two Nevada sex offender registration forms. She also identified the defendant’s signature on six separate Texas sex offender registration forms.4 These forms were admitted in evidence over the defendant’s objections based on relevance and the confrontation clause.

2. Discussion, a. Sufficiency of the evidence. The defendant claims that the evidence was insufficient to support his conviction. “When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475 (2008). Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ [84] (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, supra.” Commonwealth v. Romero, 80 Mass. App. Ct. 791, 794 (2011), quoting from Commonwealth v. Pixley, 77 Mass. App. Ct. 624, 630 (2010).

When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson v. Virginia, supra at 324 n.16; Commonwealth v. Latimore, supra at 677-678. In the circumstances of this case, to establish the defendant’s guilt of failure to register as a sex offender in violation of G. L. c. 6, § 178H(a), the Commonwealth was required to prove that the defendant (1) had been convicted of a listed Massachusetts “sex offense” or a “like violation” in another jurisdiction, in accordance with G. L. c. 6, § 178C; (2) was a resident of Massachusetts; (3) failed to register in Massachusetts; and (4) failed to do so knowingly. See Commonwealth v. Becker, 71 Mass. App. Ct. 81, 85-89, cert. denied, 555 U.S. 933 (2008).

(i) “Like violation.” In this Commonwealth, a “sex offender” includes any resident who has been convicted of a “sex offense,” which is defined as either a violation of a Massachusetts statute enumerated in the sex offender registry law, or “a like violation of the laws of another state.” G. L. c. 6, § 178C, as appearing in St. 1999, c. 74, § 2. Any sex offender moving into the Commonwealth from another State must, within two days of his arrival, register with the Sex Offender Registry Board (board). See G. L. c. 6, § 178E(g). The defendant claims that he is not a “sex offender” because his Nevada conviction of attempted child sexual assault was not a “sex offense,” as it did not constitute a “like violation” of one of the enumerated Massachusetts offenses.

The defendant does not contest that the Massachusetts crime of rape of a child in violation of G. L. c. 265, § 22A, an offense listed in § 178C, is sufficiently similar to the Nevada crime of sexual assault against a child in violation of Nev. Rev. Stat. § 200.366 (2011),5 for purposes of G. L. c. 6, § 178E(g). [85] Moreover, an attempt pursuant to G. L. c. 274, § 6, to commit a Massachusetts offense listed in § 178C is itself a listed offense. Here, however, the defendant claims that the inchoate crimes of attempt in each jurisdiction are not sufficiently similar to meet the “like violation” standard for registration purposes. We disagree.

The sex offender registration statute does not define the term “like violation,” but the Supreme Judicial Court has endorsed this court’s view of the matter. “A Tike violation’ is a conviction in another jurisdiction of an offense of which the elements are the same or nearly the same as an offense requiring registration in Massachusetts. The elements of the offense in another jurisdiction need not be precisely the same as the elements of a Massachusetts sex offense in order for it to constitute a Tike violation.’ ” Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615-616 (2010) (Doe No. 151564), citing Commonwealth v. Becker, supra at 87. This definition was chosen because the Legislature did not intend that the crimes be identical, but only that they be “like” one another. Doe No. 151564, supra at 616.

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Commonwealth v. Bell, 981 N.E.2d 220, 83 Mass. App. Ct. 82, 2013 WL 119782, 2013 Mass. App. LEXIS 3 (Mass. Ct. App. 2013).

981 N.E.2d 220 (Commonwealth v. Bell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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