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Patterson v. State (4/11/2014) ap-2414

Patterson v. State (4/11/2014) ap-2414

                                                    NOTICE  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readersare encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts.   



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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



KEVIN S. PATTERSON,                                   )  

                                                      )            Court of Appeals No. A-11501 

                                      Appellant,      )            Trial Court No. 3KN-09-1183 CR  

                                                      ) 

                  v.                                  )                      O P I N I O N  

STATE OF ALASKA,                                      )  

                                                      )  

                                      Appellee.       )              No. 2414 - April 11, 2014       

                                                      )  



                  Appeal from the District Court, Third Judicial District, Kenai,  

                  Sharon Illsley, Judge.  



                  Appearances:  Doug  Miller,  The  Law  Office  of  Douglas  S.  

                  Miller, Anchorage, for the Appellant.  Marika Athens, Assistant  

                                                

                  Attorney  General,  (briefing)  and  Adam  Alexander,  Assistant  

                  Attorney      General,      (oral    argument),       Office     of    Special  

                  Prosecutions       and    Appeals,      Anchorage,       and    Michael      C.  

                                                                           

                  Geraghty, Attorney General, Juneau, for the Appellee.  



                  Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                  District Court Judge.*  



                  Judge ALLARD.  



     *   Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                            Kevin S. Patterson is required to register as a sex offender for life and to file   



  quarterly written verifications with the Department of Public Safety.  After he failed to                               



  disclose all the email addresses he used in his April 2009 quarterly verification, he was                                                                   



  convicted of second-degree failure to register as a sex offender for "knowingly fail[ing]  

  to supply accurate and complete information" in his quarterly verification.1  

                                                                                                                                                       



                            Patterson  appeals  his  conviction,  arguing  that  he  was  not  required  to  



                                                                                                                                  

  disclose all of his email addresses because the legal requirement to do so did not arise  



                                                                                                                           

  until after he had filed his initial registration.  Patterson asserts that he complied with his  



  statutory duty to disclose the email addresses that he had "established" or "changed"  



  since his last quarterly verification and that he was under no statutory  obligation to  

                                                                                                                                                 



  disclose  the  email  address  he  created  in  2006,  prior  to  the  enactment  of  the  email  

                            



  disclosure requirements.  



                            For the reasons discussed below, we reject Patterson's interpretation of the  



  sex offender registration statute and affirm Patterson's conviction.  



               Facts and proceedings  



                          Patterson  was  convicted  in  Minnesota  of  felony  possession  of  child  

                                                         



pornography  and  child  endangerment.    Since  2007,  he  has  been  required  under  an  

                                                 



interstate compact to register as a sex offender in Alaska.  Because Patterson has been  

                                           



convicted of two or more sex offenses, his duty to register continues for life, and he must  

                                                                                                                                                    



        1      AS 11.56.840(a)(3)(C)-(D).  We note that at the time Patterson committed his offense,   



  the numbering of this subsection was different, though the substance was the same.  For  

  purposes of clarity we use the current statutory numbering scheme in this decision.                                                                        See ch.  

  42  1, SLA 2008.  



                                                                                    2                                                                                  2414  


----------------------- Page 3-----------------------

file quarterly verifications with the Department of Public Safety.                             2  Since January 1, 2009,  



this duty to file quarterly verifications has included the duty to disclose email addresses.3  



                    On April 14, 2009, Patterson's probation officer reported to the Alaska State  

                                                                                                                             



Troopers that she suspected Patterson was using his computer in a manner that violated  

                                                                                              



the conditions of his probation.  In the course of the troopers' investigation, they learned  

                                                 



that Patterson had email addresses he had not disclosed in his January 30, 2009 and April  

                            



29, 2009 quarterly verifications.  In those verifications, Patterson had disclosed only his  



school  email  address,  which  his  probation  officer  had  given  him  permission  to  use.  



Patterson was consequently charged under AS 11.56.840 with one count of second-degree  

failure to register as a sex offender for failing to disclose all of his email addresses.4  



                    Patterson moved to suppress the evidence and to dismiss the charge, arguing  



                                                                                              

that AS 11.56.840 did not require him to report all of his email addresses in each written  



                                                                                       

verification,  only  the  email  addresses  he  had  recently  "established"  or  "changed."  



                                                                    

Patterson asserted that he had established the email addresses he was charged with failing  



to  disclose  before  the  email  disclosure  requirement  went  into  effect.    Patterson  



additionally argued that, to the extent the statute did require him to disclose all of his  



                                                

email addresses, it violated his due process rights, because the statute did not give him  



sufficient notice of this requirement.  



                    District Court Judge Sharon Illsley denied the motion to dismiss.  The court  

                                                                                                                     



read AS 11.56.840 to require individuals like Patterson (i.e., people who had initially  

                                                                                              



registered as sex offenders before the email disclosure requirement went into effect on  



      2    AS 12.63.020(a)(1)(B); AS 12.63.010(d)(2).  



      3    AS 12.63.010(b)(1)(I), (c), (d) (enacted by ch. 42,  1, 7, SLA 2008) (effective Jan.  



  1, 2009).  



      4    AS 11.56.840(a)(3)(B).  



                                                                3                                                           2414
  


----------------------- Page 4-----------------------

January  1,  2009)  to  disclose  all  of  their  email  addresses  in  their   annual   or  quarterly  



verifications filed after January 1, 2009.  With respect to Patterson's due process claim,  



the court ruled that the verification forms issued to sex offenders by the Department of     



Public Safety gave Patterson adequate notice that he was required to disclose all of his   



active email addresses.  Judge Illsley also noted that Patterson was "obviously aware" of  



this duty because, in his April 2009 verification, he disclosed a school email address he  

                                                                                                                             



had established in 2008, prior to the enactment of the email disclosure requirement.  



                        At the jury trial that followed, Patterson's defense was that he was not aware  



that he had to disclose email addresses that had been "established for some time."  The  

                                                                                     



jury rejected that defense and convicted Patterson.  He appeals.  



            Why we conclude Patterson was required to disclose all the email addresses  

                                                                                                             

            he used regardless of when they were first established  



                        On appeal, Patterson abandons his claim that he had inadequate notice that  

                                                                                                       



he was required to disclose all of his email addresses.  He raises only one claim:  that his  

                                                                                                                                



conduct was not criminal because AS 11.56.840 only required him to disclose newly  

                         



established email addresses or changes to existing addresses.  



                        The  email  registration  requirements  for  sex  offenders  are  laid  out  in  

                                                                  



AS 12.63.010.  Under AS 12.63.010(b), sex offenders who file their initial registration  



(a one-time duty), must provide "each electronic mail address, instant messaging address,  

                                                                   

and other Internet communication identifier used by the ... offender."5  

                                                                                                                             The statute also  



requires sex offenders to notify the Department of Public Safety within one working day  



                                   

if the offender later "establishes or changes an electronic mail address, instant messaging  



        5    AS 12.63.010(b)(1)(I).  



                                                                            4                                                                        2414  


----------------------- Page 5-----------------------

                                                                              6  

address, or other Internet communication identifier."   Finally, the statute requires sex  



offenders who are required to file annual or quarterly written verifications to report, "in  

                                                                                



the manner required by  the department ... any changes to the information previously  

                                     

provided [in the sex offender's initial registration]."7  



                                                                                                                   

                    A companion statute, AS 11.56.840, makes the failure to comply with these  



registration,  notification,  and  verification  requirements  a  criminal  offense.    Under  



AS 11.56.840(a), a person is guilty of second-degree failure to register as a sex offender  

                                                                                                             



if the person is required to register under AS 12.63.010, knows of that requirement, and  



fails to:  



                    (A) register;  

                    (B) file written notice of  

                             (i) change of residence;  

                             (ii) change of mailing address;  

                             (iii) establishment of an electronic or messaging  

                                                                                 

                             address   or   any   change   to   an   electronic   or  

                             messaging address; or  

                             (iv) establishment of an Internet communication  

                                                             

                             identifier       or    any      change        to    an    Internet  

                             communication identifier;  

                    (C) file the annual or quarterly written verification; or  

                    (D) supply accurate and complete information required [to be  

                                                  

                    in compliance with these registration requirements].8  

                                                                                                   



                    Patterson acknowledges that these provisions of law apply to him, but he  

                                                                                                            



argues  that  none  of  these  provisions  requires  sex  offenders  in  his  situation  (i.e.,  sex  

            



offenders whose initial registration occurred prior to January 1, 2009, the effective date  

                                                                                           



      6    AS 12.63.010(c).  



      7    AS 12.63.010(d)(1)-(2).   



      8    AS 11.56.840(a)(3)(A)-(D).  



                                                               5                                                            2414  


----------------------- Page 6-----------------------

of the email disclosure requirements) to make an initial disclosure of  "each electronic       



mail address, instant messaging address, and other Internet communication identifier used  

by  the  ...  offender."9  

                                         Patterson  argues  that  the  only  duty  faced  by  offenders  in  his  

                                                                                                                                              



situation is the continuing duty to "update" the Department with newly established email  

                                                                            

addresses or changes to existing addresses.10  

                                                                                   



                                                                                                                                           

                       This argument ignores the uncodified portion of the 2008 session law that  



                                                                                                                 

created the email disclosure requirements.  In that session law, the Alaska Legislature  



specifically addressed how these requirements applied to offenders like Patterson who  



                                                   

filed their initial registration prior to the January 1, 2009 change in law.  This uncodified  



portion of the session law provides in pertinent part:  



                       APPLICABILITY.
  

                                   . . . . 
 

                       (c) ... a sex offender or child kidnapper whose duty to register as a  

                       sex offender or child kidnapper arose:  

                                   (1) on or before December 31, 2008, does not have to  

                                   initially  report  electronic  or  messaging  addresses  or  

                                                                               

                                   Internet communication identifiers to the Department  

                                        

                                   of Public Safety until the date that the sex offender or  

                                                                                 

                                   child       kidnapper's              next       annual,         or      quarterly          if  



                                                                                                     11  

                                   applicable, written verification is due.                              



                                                                                                                             

As this section makes clear, convicted sex offenders like Patterson who filed their initial  



registration on or before December 31, 2008, still must comply with the requirement to  



report all of their email addresses.  But for these offenders, this duty did not go into effect  

                      



       9     AS 12.63.010(b)(1)(I).  



        10   AS 11.56.840(a)(3)(B), (D).  



        11   Ch. 42,  6, SLA 2008.  The text of this uncodified session law is also found in the  



  "Editor's Notes" following AS 12.63.010 in the annotated statutes published by the Alaska   

  Legislative Council.  



                                                                           6                                                                    2414
  


----------------------- Page 7-----------------------

until their first annual or quarterly verification came due after the effective date of the                                           



January 1, 2009 email disclosure requirement.    



                      The uncodified portion of the session law also made clear that once these  

                              



offenders complied with their initial disclosure requirement and reported all the email  



addresses they used (regardless of when those email addresses were established), these  



offenders  had  a  continuing  duty  to  report  any  newly  established  email  addresses  or  



changes to existing email addresses:  



                      after the initial report of addresses and identifiers is due, the  

                      sex offender or child kidnapper shall report the establishment  

                                                                           

                      of an electronic or messaging address, or any changes to those  

                                

                      addresses,  or  the  establishment  of  an  Internet  messaging  

                      address,         or    any      changes          to    those       addresses,          or     the  

                                                                                                            

                      establishment of an Internet communication identifier, or any  

                                                                                                                

                      change  to  an  identifier,  as  required  by  AS  11.56.840  and  

                      AS  12.63.010.12  

                                                  



Thus, contrary to Patterson's argument, sex offenders who registered prior to January 1,  

                                                                                                                           



2009, were not entitled to keep the email addresses they created before that date secret.  

                                                     



Instead, like all other sex offenders, they were required to provide an initial disclosure of  

                                                                            



all the email addresses they used, and then to keep that list current and up-to-date.   



                      At oral argument, Patterson argued that he could not be convicted of a crime  

                                                                                           



for violating an uncodified provision of a session law.  Because this argument was raised  



for the first time at oral argument, the parties have not briefed this question.    



                      We note that AS 11.81.220 declares that "[n]o conduct constitutes an offense  



unless it is made an offense (1) by [a provision of] this title; [or] (2) by a statute outside  



this title; or (3) by a regulation authorized by and lawfully adopted under a statute."  It is  

                                                                                                              



       12   Id.  



                                                                       7                                                                   2414  


----------------------- Page 8-----------------------

unclear whether uncodified provisions of a session law qualify as "statutes" for purposes  



of AS 11.81.220.  But even assuming they do not, the fact remains that Patterson was not  

                                                                                                          



prosecuted  for  violating  an  uncodified  portion  of  the  session  law.    Rather,  he  was  

                                                                           



prosecuted for violating AS 11.56.840(a)(3)(C) and (D) - the statutory provisions that  

                                                                                           



make it a crime for sex offenders to fail to "supply accurate and complete information  



required to be submitted" in their annual or quarterly written verification.  The uncodified  

                                                             



portion of the session law is relevant to Patterson's case only because it clarifies when and  



how he was required to provide his initial disclosures.  



                    We agree that the uncodified nature of this portion of the session law could  

                                                



potentially create due process concerns. But we note that Patterson is no longer claiming  

                                                                                      



that he did not have proper notice of these reporting requirements. Nor do we believe that  

                                                                                                    



he would prevail on such a claim, given that his quarterly verification form, on its face,  



required him to disclose all of his email addresses.  Indeed, Patterson demonstrated that  

                                                                              



he  understood  the  form  was  not  just  asking  for  "newly  established"  email  addresses  



because he did disclose a different pre-existing email address (one that he established in  

                                        



2008) in his 2009 quarterly verification. We therefore conclude that any notice concerns  

                                                                    



raised by the lack of codification do not exist here.  



                    For these reasons, we reject Patterson's argument that he had no legal duty  

                                                                                 



to disclose his pre-existing email addresses, and we uphold the district court's decision  

                                                                                



to deny Patterson's motion to dismiss.  



          Conclusion  



                    The district court's judgment is AFFIRMED.   



                                                                 8                                                           2414
  

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