State v. Zichko

923 P.2d 966, 129 Idaho 259, 1996 Ida. LEXIS 98

• Court: Idaho Supreme Court
• Decided: July 29, 1996
• Docket: 21815
• Status: Published

Opinions

SCHROEDER, Justice

John Zichko appeals from a district court judgment of conviction and sentence entered upon a jury verdict finding him guilty of failing to register with the Kootenai County Sheriffs Office pursuant to section 18-8304 of the Idaho Code, the Sex Offender Registration Act.

I.

BACKGROUND AND PRIOR PROCEEDINGS

Zichko was released from the custody of the Idaho Board of Correction on March 28, 1994. Prior to his release a department of correction official gave Zichko a written notice of his duty to register which Zichko signed. Zichko traveled to Kootenai County and stayed at the St. Vincent de Paul men’s shelter in Coeur d’Alene from March 31 through April 5, 1994. He was served with an arrest warrant on April 7,1994, for failure to register with the Kootenai County Sheriff’s Office as a sex offender within five days of entering the county.

Zichko moved to dismiss the charge on the basis that: (1) section 18-8304 is void for vagueness; (2) he was arrested prematurely because the five-day statutory registration period does not include Saturday and Sunday; (3) in the alternative, if the five-day period includes Saturdays and Sundays, he was denied equal protection under the law; and (4) he was prevented from complying with the act because the place of registration was within a three-mile radius of his former wife’s place of employment, and thus was within an area he was prohibited from entering pursuant to a civil protection order. The district court denied Zichko’s motion, and the case proceeded to trial.

Sandra Brillon was the manager of the St. Vincent de Paul shelter in March and April of 1994. She testified that when Zichko arrived at the shelter on March 31, 1994, he told her that he had been in the Coeur d’Alene area since the previous day.

Glen Sommerfield, a Department of Health and Welfare eligibility examiner, testified that on March 31, 1994, Zichko applied for food stamps, Medicaid, and a state grant, listing the shelter as his address on the application form. Sommerfield also testified that he advises applicants that they must be a resident of Kootenai County to apply for benefits, and that they must verify their claim of residency by signing the back of the application’s first page. Sommerfield advised Zichko accordingly, and Zichko filled out the residency verification and signed the application.

The jury found Zichko guilty of failing to register pursuant to section 18-8304(1) of the Sex Offender Registration Act. Following a presentence investigation, the district court entered a judgment of conviction and sentence committing Zichko to the Idaho State Board of Correction for an indeterminate term of five years with no fixed minimum. Zichko was given credit for 219 days previously served.

Zichko appeals his conviction and sentence, raising those grounds asserted in his motion to dismiss before the district court and asserting error at trial in the admission of evidence and failure to give requested jury instructions.

II.

SECTION 18-8304(1) OF THE IDAHO CODE IS NOT UNCONSTITUTIONALLY VAGUE.

Idaho Code section 18-8304(1) provides as follows:

Any person who becomes subject to the provisions of this chapter on or after July 1, 1993, shall register, within five (5) days of coming into any county, with the sheriff of the county in which that person resides or is temporarily domiciled.

I.C. § 18-8304(1).

The legislative findings in Idaho Code section 18-8302 indicate that the purpose of the Sex Offender Registration Act is to aid law enforcement in the protection of their communities by requiring sex offenders to register with local law enforcement agencies. Section 18-8302 identifies those targeted to be “individuals who have pled guilty to or have been found guilty of sex offenses who live within their [local law enforcement] jurisdiction.” I.C. § 18-8302 (emphasis added).

Zichko maintains that I.C. § 18-8304(1) is unconstitutionally vague and must be declared void for vagueness, because it fails to define the terms “resides” or “temporarily domiciled.”

The reasons underlying the void for vagueness doctrine are set forth in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972):

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

408 U.S. at 108-09, 92 S.Ct. at 2298-99 (footnotes omitted).

Grayned has been cited with approval by this Court in Voyles v. City of Nampa, 97 Idaho 597, 599, 548 P.2d 1217, 1219 (1976), and State v. Bitt, 118 Idaho 584, 585-86, 798 , 44—45 (1990). In Bitt this Court reviewed the prior cases interpreting the void for vagueness doctrine and developed a test for its application. 118 Idaho at 587, 798 P.2d at 46. First, the Court must determine if the law regulates constitutionally protected conduct. Id. at 587-88, 798 P.2d at 46-47. If so, the Court must determine whether the ordinance precludes a significant amount of the constitutionally protected conduct. Id. at 588, 798 P.2d at 47. If that be the case, the law is likely overbroad. If the law passes these threshold tests, the final step is to determine if the law gives notice to those who are subject to the law of its requirements or limitations and sets forth adequate guidelines for those who must enforce the law so they may distinguish between what is prohibited and what is allowed. Id.

Idaho Code section 18-8304(1) does not regulate constitutionally protected conduct or preclude a significant amount of constitutionally protected conduct. Further, the statute gives notice to those who are subject to it of its requirements and establishes sufficient guidelines for those charged with enforcement to distinguish between what is lawful and what is not. The language in I.C. § 18-8302 encompassing those who live “within their [local law enforcement] jurisdiction,” read together with the terms “resides” or “temporarily domiciled” in I.C. § 18-8304(1), is sufficient for those of ordinary intelligence to understand the conduct that is required. Persons subject to the law and those charged with enforcement have a reasonable opportunity to understand the conduct that is encompassed within the words “live within,” “resides,” or “temporarily domiciled.” Those terms clearly connote more than a passing through or presence for a limited visit. “What ifs” can be posed to question isolated cases, but the concept enunciated in Bitt that a statute must have a “core of circumstances” to which the statute “could be unquestionably constitutionally applied” is present in section 18-8304(1) and can be understood by those of ordinary intelligence. 118 Idaho at 588, 798 P.2d at 47.

In this case Zichko filled out a welfare benefits application stating that he resided in Kootenai County. This indicates a clear understanding that he was more than a visitor or tourist who was passing through.¹ The statute gave him adequate notice of the obligation it imposed, and he violated it.

III.

ZICHKO’S ARREST WAS NOT PREMATURE AND DID NOT VIOLATE STANDARDS OF EQUAL PROTECTION.

Zichko maintains that he was arrested prior to the expiration of the five day period for registration. According to Zichko’s argument, he arrived in Kootenai County on Thursday, March 31, 1994, and was arrested for failure to register on Thursday, April 7th. He maintains that this cannot be counted as a full five-day calendar period, because the driver’s license bureau where sex offenders are required to register in Kootenai County was not open Saturdays and Sundays. Therefore, he maintains that he did not have five actual days to accomplish the registration. He argues, further, that if this constitutes five days within the meaning of the statute he was denied equal protection under the Idaho and United States Constitutions, because a person entering the county on a Sunday would have five actual days to comply with the statute.

There are several flaws with Zichko’s position.

Zichko advised the manager of the St. Vincent De Paul shelter on March 31, 1994, that he had been in the county for a day prior to coming to the shelter. Therefore, the jury had evidence that he had entered Kootenai County on Wednesday, March 30th. He was arrested on Thursday, April 7th. This evidence is uncontradicted. Therefore, he had five full working days even if Saturday and Sunday were excluded.

Even if Zichko’s time computation were accepted, he would not prevail. A reading of the Sex Offender Registration Act indicates that the legislature specifically intended to include Saturdays, Sundays, and holidays within the registration period. Section 18-8304(1) requires sex offenders to register “within five (5) days.” Idaho Code section 18-8304(4), which governs the time period in which law enforcement agencies must forward the registration information to the Idaho Department of Law Enforcement, specifically excludes Saturdays, Sundays, and holidays by stating that the information must be forwarded “within five (5) working days.” The difference between section 18-8304(1) and (4) indicates the legislature intended the five-day period in section 18-8304(1) to be five calendar days, including Saturday, Sunday and holidays.

Ziehko’s argument that counting Saturday and Sunday in the computation of the five days denies him equal protection likewise fails in this case. While the practice in Kootenai County was to have sex offenders register at the driver’s license bureau, deputy Kent Johnston testified that special arrangements can be made to register convicted sex offenders on Saturdays or Sundays, including the officer going to the person who desires to register. Zichko made no effort to register and cannot claim that any policy of the county precluded him from registering.

IV.

ZICHKO WAS NOT LEGALLY PREVENTED FROM COMPLYING WITH SECTION 18-8304(1).

Zichko argues that he could not comply with section 18-8304(1) because a domestic violence protection order prohibited him from being within a three-mile radius of his former wife’s place of employment. The driver’s license bureau was within that radius. This proposition has been supported by argument but not by authority. The proposition fails for two reasons: (1) the claim has been waived; and (2) the facts established at trial refute the claim.

When issues on appeal are not supported by propositions of law, authority, or argument, they will not be considered. Idaho Appellate Rule 35 (I.A.R.); Langley v. State Indus. Special Indem. Fund, 126 Idaho 781, 784, 890 P.2d 732, 735 (1995). Earlier formulations of this rule stated that an issue was waived if it was not supported with argument and authority. See Simmons v. Ewing, 96 Idaho 380, 529 P.2d 776 (1974) (appellant’s failure to offer authority for position taken precluded Supreme Court from considering assignment of error); Knudson v. Bank of Idaho, 91 Idaho 923, 435 P.2d 348 (1967) (assignment of error would not be reviewed by Supreme Court where assignment was not supported in brief or argument); Ore-Ida Potato Prods., Inc. v. United Pac. Ins. Co., 87 Idaho 185, 392 P.2d 191 (1964) (surety’s discussion on appeal was mere argument and could not be considered on appeal); Jewett v. Williams, 84 Idaho 93, 369 P.2d 590 (1962). A party waives an issue cited on appeal if either authority or argument is lacking, not just if both are lacking. Zichko supported this assignment of error with argument but no authority. Consequently, he waived this issue on appeal.

Lest there be future litigation based on a claim that Zichko was deprived of a claim that he otherwise would have had, it is best to establish the record that his claim is not supported factually. Deputy Johnston testified that if necessary he would go to the location of the person seeking registration on any day of the week. Had he sought to register, Zichko would not have been subjected to the perils of appearing within the forbidden zone. Further, during the period for registration the domestic violence protection order was modified. During that period Zichko could have registered at the driver’s license bureau had he elected to do so.

V.

THE DISTRICT COURT DID NOT ERR IN ADMITTING TESTIMONY CONCERNING ZICHKO’S WELFARE APPLICATION.

The district court allowed Glen Sommerfield to testify that Zichko made a welfare application and listed his residency as Kootenai County. Zichko maintains that this was error, since it allowed the jury to consider one definition of residency without receiving instructions from the court on other potential definitions contemplated by section 18-8304(1).

The trial court has broad discretion in the admission of evidence, and its judgment will only be reversed when there has been an abuse of that discretion. State v. Zimmerman, 121 Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). Nevertheless, questions of relevancy are reviewed de novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993).

Relevant evidence means evidence having a tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Idaho Rule of Evidence 401 (I.R.E.). All relevant evidence is admissible except as otherwise provided by the rules of evidence or other applicable rules. I.R.E. 402. The district court correctly ruled that Glen Sommerfield’s testimony was relevant on the issue of where Ziehko resided.

VI.

THE DISTRICT COURT DID NOT ERR IN FAILING TO GIVE ZICHKO’S REQUESTED JURY INSTRUCTIONS.

Ziehko maintains that the district court erred in refusing to give jury instructions which he requested. The issue of whether a particular jury instruction is necessary and whether the jury has been properly instructed is a matter of law over which this Court exercises free review. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992). This Court reviews jury instructions to ascertain whether, when considered as a whole, they fairly and adequately present the issues and state the applicable law. Manning v. Twin Falls Clinic & Hosp., 122 Idaho 47, 50, 830 P.2d 1185, 1188 (1992).

Ziehko claims the district court erred in refusing to give instructions he requested defining “residence” and “domicile.” Terms which are of common usage and are sufficiently generally understood need not be further defined when instructing the jury. State v. Gonzales, 92 Idaho 152, 156, 438 P.2d 897, 901 (1968). Ordinarily the language employed by the legislature in defining a crime is deemed to be best suited for that purpose, and error cannot be predicated on its use in jury instructions. State v. Aragon, 107 Idaho 358, 362, 690 P.2d 293, 297 (1984); State v. Herr, 97 Idaho 783, 787-88, 554 P.2d 961, 965-66 (1976). The district court properly rejected Zichko’s requested instructions defining residence and domicile because they are terms of common understanding, and because the proposed instructions did not define the actual terms used in the statute. The jury was instructed in the language of the statute, and that is sufficient in this case.

Ziehko proposed an instruction to the effect that the Sex Offender Registration Act requires: (1) the Idaho Department of Correction to provide written notification of the duty to register under the act to any person committed to its custody for an offense identified in subsection (l)(a) of section 18-8303 of the Idaho Code; (2) that the notice be signed by such person; and (3) that the department retain one copy of the signed notice for its files and provide one to the person prior to their release from custody. I.C. § 18-8307(2) (Supp.1995). The trial court refused this instruction on the basis that compliance with this statute was not an element of the State’s ease against Ziehko.

David Penick, the day shift control center corporal at the Idaho State Correctional Institution where Ziehko was incarcerated, testified that he gave Ziehko a written notification of his duty to register under the Sex Offender Registration Act, as required by section 18-8307(2). Penick testified that Ziehko appeared to study the form before signing it. The State offered a copy of the signed form as evidence that Ziehko did indeed receive notification of his duty to register as required by section 18-8307. Penick also testified that he was “almost positive” that he attached an unsigned copy of the form to Zichko’s discharge papers. In addition, two witnesses testified that Ziehko indicated to them that he knew he had a duty to register. Linda Libby, an acquaintance of Zichko’s, testified that Ziehko told her he did not intend to register, because he believed he would soon be exonerated of the charges based on some appeals he was filing.

Section 18-8307 clearly envisions that persons such as Ziehko must receive written notice of their duty to register under section 18-8304(1). Zichko does not dispute that he received 'written notice of his duty to register as required by section 18-8307(2). Rather, the focus of Ziehko’s claim on appeal, that the trial court erred in refusing his requested instruction, is that the State must establish beyond a reasonable doubt that Zichko received a copy of the written notice.

The clear purpose of section 18-8307(2) is to ensure that persons required to register as sex offenders pursuant to section 18-8304(1) of the Sex Offenders Registration Act are made aware of their duty to register before being discharged from custody. There is no dispute that Zichko was notified of his obligation in writing. Thus, compliance with section 18-8307(2) was not an issue. Under the facts of this case, the failure to instruct on the requirements of I.C. § 18-8307(2) was harmless.

“Where the evidence of the defendant’s guilt is proven and is such as ordinarily produces moral certainly or conviction in an unprejudiced mind, and the result would not have been different had an error in the trial not been committed, the judgment of conviction will not be reversed.” State v. Pizzuto, 119 Idaho 742, 778, 810 P.2d 680, 716 (1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 495 (1992), overruled on other grounds, State v. Card, 121 Idaho 425, 432, 825 P.2d 1081, 1088 (1991). When viewed as a whole, the jury instruction which the district court gave fairly and adequately presented the issues in this case and stated the applicable law. The trial court’s refusal to instruct the jury on section 18-8307(2) was not a reversible error.

Zichko requested an instruction regarding the exclusion of Saturday and Sunday from the prescribed registration period. This was properly refused by the court. A requested instruction need not be given if it is contrary to the law. State v. Eastman, 122 Idaho 87, 89, 831 P.2d 555, 557 (1992).

VII.

THE SENTENCE IMPOSED WAS NOT EXCESSIVE.

Zichko maintains that the five-year indeterminate sentence was excessive. The district court identified the four primary objectives in criminal punishment: (1) the protection of society; (2) deterrence of the individual in particular, and the public in general; (3) the possibility of rehabilitation; and (4) punishment or retribution for wrong doing. State v. Wolfe, 99 Idaho 382, 384, 582 P.2d 728, 730 (1978). The district court had the benefit of a presentence investigation report which contained a great deal of information about Zichko’s background and character. He refused to be interviewed by the presentence investigator or otherwise cooperate with efforts to complete the report. His prior criminal history included the rape of his 15-year-old daughter. There was no abuse of discretion.

VIII.

CONCLUSION

The judgment of conviction and the sentence of the district court are affirmed.

McDEVITT, C.J., and TROUT and SILAK, JJ., concur.

1 . There may appear to be an inconsistency with the concept of "temporarily” and "domiciled” together. However, the term "resides" clearly applied to Zichko, and the term “temporarily domiciled” connotes more than visiting or passing through.