2013 Unpublished Opinion No. 581
Appeal from the District Court of the Third Judicial District, State of Idaho, Gem County. Hon. Juneal C. Kerrick, District Judge.
Judgment of conviction for one count of failure to register as a sexual offender, vacated; judgment of conviction for two counts of lewd conduct with a minor under the age of sixteen, affirmed.
Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
Jered Josiah Wilson appeals from his judgment of conviction for one count of failure to register as a sexual offender his judgment of conviction for two counts of lewd conduct with a minor under the age of sixteen. For the reasons set forth below, we vacate the judgment of conviction for one count of failure to register as a sexual offender and affirm the judgment of conviction for two counts of lewd conduct with a minor under the age of sixteen.
FACTS AND PROCEDURE
Wilson first registered in Idaho as a sexual offender in 2003. In 2008, an officer received information alleging manual-genital contact between Wilson and his daughter. The officer located Wilson and conducted an interview. Wilson denied the allegations. Shortly after the interview, Wilson completed an Idaho sexual offender registry notification and registration form to report a change of address because he moved from Adams County to Gem County. In March 2009, the Idaho State Police (ISP) received a signed address verification form dated February 5 indicating Wilson still resided in Gem County. In March, Wilson moved and established a residence in Oregon without providing notice as required by I.C. § 18-8309(2). The ISP sent an address verification form to Wilson's Gem County address in June and an annual registration form in October. Both were returned with a forwarding address to a post office box in Nampa. In May 2010, Wilson was stopped while driving in Oregon and arrested for an outstanding Idaho warrant which had been issued when Wilson was charged with failure to provide notice of his move to Oregon. Wilson was then charged with failure to register as a sexual offender. I.C. § 18-8307. In a separate case, Wilson was charged with two counts of lewd conduct with a minor under the age of sixteen as a result of the allegations involving his daughter. I.C. § 18-1508. The cases were consolidated for trial. At trial, after the state rested its case, Wilson moved for judgment of acquittal pursuant to I.C.R. 29. The district court reserved ruling on the motion and submitted the case to the jury. Wilson was found guilty of all three charges. Thereafter, the district court denied Wilson's Rule 29 motion and sentenced Wilson to a determinate term of ten years for failure to register and to concurrent unified terms of life imprisonment, with minimum periods of confinement of ten years, for the two counts of lewd conduct. Wilson appeals.
A. Judgment of Acquittal
Wilson argues the district court erred by denying his motion for judgment of acquittal. Specifically, Wilson asserts the evidence presented to the jury was insufficient to sustain the jury's guilty verdict for failure to register as a sexual offender because the state proved Wilson moved to Oregon and, therefore, pursuant to the plain language of I.C. § 18-8307, he was relieved of the duty to register annually in Idaho.
Idaho Criminal Rule 29 provides that when a verdict of guilty is returned, the court, on motion of the defendant, shall order the entry of a judgment of acquittal if the evidence is insufficient to sustain a conviction of the offense. The test applied when reviewing the district court's ruling on a motion for judgment of acquittal is to determine whether the evidence was sufficient to sustain a conviction of the crime charged. State v. Fields, 127 Idaho 904, 912-13, 908 P.2d 1211, 1219-20 (1995). When reviewing the sufficiency of the evidence where a judgment of conviction has been entered upon a jury verdict, the evidence is sufficient to support the jury's guilty verdict if there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). We do not substitute our view for that of the jury as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we consider the evidence in the light most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001.
This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The words must be given their plain, usual, and ordinary meaning, and the statute must be construed as a whole. State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001). If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). To ascertain such intent, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute and its legislative history. Id. It is incumbent upon a court to give an ambiguous statute an interpretation which will not render it a nullity. Id. Constructions of an ambiguous statute that would lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004). Statutes that are in pari materia, i.e., relating to the same subject, should be construed harmoniously, if possible, so as to further the legislative intent. State v. Gamino, 148 Idaho 827, 828, 230 P.3d 437, 438 (Ct. App. 2010).
In our analysis, we apply the statutes as they existed in 2009. Idaho Code Section 18-8307(4)(a) provided:
Within two (2) working days of coming into any county to establish permanent or temporary residence, an offender shall register with the sheriff of the county. The offender thereafter shall register annually. . . . If the offender intends to reside in another state, the offender shall register in the other state within ten (10) days of moving to that state.
In order to complete the annual registration, the ISP must mail a nonforwardable notice of registration to the offender's last reported address. I.C. § 18-8307(5)(b). Idaho Code Section 18-8307(5)(c) required that, "within five (5) days of the mailing date of the notice, the offender shall appear in person at the office of the sheriff with jurisdiction for the purpose of completing the registration process." Idaho Code Section 18-8309(2) provided that, if an offender changed address to another state, the offender was required to provide written notice of the new address within five working days after the change to the ISP.
The language of I.C. § 18-8307(4)(a) and I.C. § 18-8309(2) unambiguously relieved an offender of the duty to register annually in Idaho once the offender moved to another state. Even if the statute could be considered ambiguous, a construction of the statute that would require an offender that moved to another state to continue to register in Idaho for life by appearing annually in person in Idaho would lead to an absurd result. Additionally, the rule of lenity requires that ambiguous criminal statutes should be read narrowly and be construed in favor of the defendant. State v. Anderson, 145 Idaho 99, 103, 175 P.3d 788, 792 (2008). Thus, once Wilson moved to Oregon, he was relieved of the duty to register annually in Idaho. Accordingly, there was insufficient evidence to support the jury's guilty verdict for failure to register as a sexual offender.
B. Sufficiency of the Evidence
Wilson argues the state failed to present substantial evidence to support Wilson's conviction for lewd conduct with a minor under the age of sixteen because it failed to provide evidence of manual-genital contact. As noted above, appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001. We will not substitute our view for that of the trier of fact as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; Decker, 108 Idaho at 684, 701 P.2d at 304. Moreover, we will consider the evidence in the light most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001.
At trial, Wilson's daughter testified as follows:
[DAUGHTER] He--he touched me in an inappropriate place.
[COUNSEL] You're talking about your dad?
[DAUGHTER] Um-hmm. Yes.
[COUNSEL] And tell me what happened when you drove--when your dad drove you from your home in Twin Falls to Emmett and back. Tell me what happened in the car.
[DAUGHTER] He touched me and stuff.
[COUNSEL] When you say he touched you, can you show me where on your body he touched you?
[DAUGHTER] Right here (indicating).
[COUNSEL] Okay. Can you show me a little closer to your body?
[DAUGHTER] Right here (indicating).
[COUNSEL] Okay. And tell me about how he touched you on your clothes.
[COUNSEL] Was it under your clothes or over your clothes?
[DAUGHTER] Both sometimes.
[COUNSEL] Okay. Tell me about the times he touched you under your clothes. What did he touch you with?
[DAUGHTER] His hands.
[COUNSEL] And how did he get under your clothes?
[DAUGHTER] He--I don't know. He made me unzip my ...