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Shayen v. State (9/4/2015) ap-2474

Shayen v. State (9/4/2015) ap-2474


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

            Pacific Reporter             .   Readers are encouraged to bring typographical or other formal                          

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

                                                303 K Street, Anchorage, Alaska  99501  

                                                                Fax:  (907) 264-0878  

                                                     E-mail:  corrections@  

                    IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                             


                                                                                               Court  of  Appeals N                 o.  A-11137  

                                                   Appellant,                               Trial  Court N            o.  3AN-10-7789  CR  



                                                                                                               O P I N I O N  



                                                   Appellee.                                  No. 2474 - September 4, 2015  


                         Appeal  from  the  Superior  Court,  Third  Judicial  District,  


                         Anchorage, Gregory A. Miller, Judge.  


                         Appearances:  Josie Garton, Assistant Public Defender, and  


                         Quinlan   Steiner,   Public   Defender,   Anchorage,   for   the  


                         Appellant.  Diane L. Wendlandt, Assistant Attorney General,  


                         Office of Special Prosecutions and Appeals, Anchorage, and  


                         Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  




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



                         Hanley, District Court Judge. 


                         Judge MANNHEIMER, writing for the Court.  


                         Judge ALLARD, concurring.  

      *      Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                         

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


               George Shayen III appeals his conviction for first-degree failure to register as  


a sex offender.   To clarify, Shayen did in fact register as required.  He was convicted  


under AS 11.56.840(a)(3)(B)(i) and AS 11.56.835(a)(1) for failing to provide written  


notice to the Department of Public Safety when he moved from the Brother  Francis  


Shelter (an Anchorage shelter for the homeless) to an outdoor camping area near Ship  


Creek.  See AS 12.63.010(c).  


               In this appeal,  Shayen contends   that AS 12.63.010(c) - the statute that  


requires sex offenders to notify the Department whenever they change their residence -  


is unconstitutionally vague as applied to homeless  sex offenders.   Shayen argues that  


because homeless people, by definition, have no fixed abode, the statute necessarily fails  


to give them adequate notice of when they must report a change of location.  


               It is true that the relevant chapter of the Alaska Statutes, AS 12.63, does not  


contain a definition of "residence".  Nor is there any definition of "residence" in 13 AAC  


09, the chapter of related regulations promulgated by the Department.  (See, in particular,  


13 AAC 09.900 - the section of definitions.)  


               We agree with Shayen that, without an explanation or clarification of how the  


term "residence" applies to homeless people, the provisions of AS 12.63 that require sex  


offenders to report any change of residence raise significant legal problems when they  


are applied to homeless sex offenders.                        But  though this problem is real, the facts of  


Shayen's case do not require us to resolve it.  


               The testimony at  Shayen's trial showed that Department of Public Safety  


employees - or, at least, the employees who dealt with Shayen - have adopted an  


ad hoc definition of "residence" that is tailored to the situation of homeless offenders.  


According to this testimony, the Department did not require homeless sex offenders to  


provide a residence address, but only to identify the place they were  staying with as  


much detail as  reasonably possible.   For instance, if a sex offender was staying in a  

                                                              - 2 -                                                          2474

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homeless camp, the Department employee would require  the offender to provide the  


location of the camp.   And if a homeless sex offender did not know the exact physical  


location where they would be staying, the offender would be required to simply identify  


the zip code or area of town where they would likely be staying.  


               Turning to the specific facts of Shayen's case, the testimony reveals that, at  


various times in the past, the Department allowed Shayen to file change-of-residence  


forms that identified his residence as:  


          *    "Brother Francis Shelter",  


          *    "camping in trees by the Valley of the Moon [Park]", and  


          *    "Bean's Café".  


And when Shayen was living in rural villages  -  places where there were no formal  


street addresses - the Department accepted such descriptions as "three houses south  


from [the Post Office]" and "Paul Beebe's old house, 2nd from [the] road facing north".  


                    We acknowledge that the Department of Public Safety has no regulation,  


nor even a formal written policy, that acknowledges and codifies this ad hoc approach  


that  its  employees  have  adopted  toward  the  question  of  a  homeless  sex offender's  


"residence".   And even if the Department did formalize this approach by regulation or  


written policy, we are not sure that this approach would resolve every difficulty involved  


in applying the "change-of-residence" reporting requirement to homeless sex offenders.  


                    But  Shayen  was  a  beneficiary  of  this  flexible  approach:                              Department  


employees  repeatedly  demonstrated  a  willingness  to  accept  a  varying  amount  of  


specificity (or lack of specificity) when Shayen filed his residence reporting forms.  And  


in the trial court, Shayen never asserted that he was confused or uncertain about what the  


Department employees required of him, or the kinds of descriptions they were willing  


to accept when he submitted his change-of-residence forms.  Instead, Shayen's attorney  

                                                              - 3 -                                                          2474

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argued that Shayen should be acquitted because, as a general matter, it was impossible  


for any homeless person to have a "residence".  


                    Thus,  Shayen  has  failed  to  show  that  he  personally  was  affected,  or  


prejudiced in any manner, by the potential difficulties in defining the term "residence"  


as it applies to homeless sex offenders.  


                     Shayen raises two other claims that are related to his argument that the term  


"residence" is unconstitutionally vague as applied to homeless sex offenders.  


                    First, Shayen argues that the State presented insufficient evidence to prove  


the mens rea element of failure to report a change of address - i.e., evidence sufficient  


to support a finding that Shayen was subjectively aware that he was required to report  


his move from the Brother Francis Shelter to the camping area near Ship Creek.  


                    When we review a claim that the evidence presented at a criminal trial is  


insufficient  to  support  the  defendant's  conviction,  we  view  the  evidence  (and  all  


reasonable inferences to be drawn from that evidence)  in  the light most favorable to  


upholding the verdict.   The question is whether the evidence is "adequate to support a  


conclusion  by  a  reasonable  mind  that  there  was  no  reasonable  doubt  as  to  [the  


defendant's] guilt."  Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).  


                     (Shayen was convicted at a bench trial, and the Alaska Supreme Court has  


adopted a different terminology to describe an  appellate  court's "sufficiency of the  


evidence" review in the context of bench trials.  See Helmer v. State, 608 P.2d 38, 39  


(Alaska 1980), which describes the test as whether the court's verdict is supported by  


"substantial  evidence".                But  the  language  of  the  Helmer  opinion  reveals  that  this  


"substantial evidence" test is the same test that an appellate court applies to jury verdicts.  


According to Helmer, the question is whether the verdict is supported by "such relevant  


evidence [as] is adequate to support a conclusion by a reasonable mind that there was no  

                                                               - 4 -                                                          2474

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

reasonable doubt as to appellant's guilt", when all inferences are resolved in favor of the                                                                 

court's verdict.              Ibid.)   

                         To   convict   Shayen   of   failing to                         report   his   change   of   residence   to   the  

Department of Public Safety,                              the State had to prove that Shayen was                                        aware of the        

circumstances   that   triggered   his   duty   to   report   a   change   of   residence,   and   that   he  

                                                                                        1   Shayen argues that the evidence at his  

knowingly refrained from performing that duty.                                                                                                               

trial was not sufficient to support a finding that he was aware that his move from the  


Brother Francis Shelter to the camping area near Ship Creek was an event that triggered  


his duty to report a change of residence.  


                         But the State presented evidence that, one year previous, Shayen had signed  


a Department of Public Safety form ("Acknowledgment of Requirement and Duties")  


which explained that he was under a duty to report any change in "the physical location  


of [his] home or other place where [he was] living."  The State also presented evidence  


that the Department had sent Shayen "courtesy reminder" letters, explaining that if he  


did  not have a street address, he could provide the Department with a description of  


where he was living.  


                         The State also presented evidence tending to prove that Shayen understood  


these  requirements.                       On  many  occasions,  Shayen  submitted  forms  notifying  the  


Department of a "change of residence" when he moved to a different location.  Shayen  


submitted these forms even when his new location was not a traditional "address".  For  


example, on one of these "change of residence" forms, Shayen reported that his residence  


was "camping in trees by the Valley of the Moon [Park]".  


                         Based on this evidence,  a reasonable mind could conclude that Shayen  


knew that his move from the Brother Francis Shelter to the camp at Ship Creek was a  


"change of residence" that he had to report.  


       1    See Dailey v. State                , 65 P.3d 891, 895-96 (Alaska App. 2003).                       

                                                                             - 5 -                                                                        2474

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                                                                         Shayen alternatively argues that even if the State offered sufficient evidence                                                                                                                                                                                                                                                                              

to support this finding of                                                                                                              mens rea                                             , the superior court's written findings in this case do                                                                                                                                                                                                                

not include an explicit finding on this element of the offense -                                                                                                                                                                                                                                                                                       i.e., an express finding                                                              

that Shayen was aware that his move from the Brother Francis Shelter to the camping                                                                                                                                                                                                                                                                                                                                                 

 area at Ship Creek constituted a "change of residence" that triggered his duty to report.                                                                                                                                                                                                                                                                                                                                                                                            

                                                                         But   when   this   case   was   litigated   in   the   superior   court,   Shayen   never  

 asserted that he was unaware that he was required to report his move from the shelter to                                                                                                                                                                                                                                                                                                                                                                               

the   camping area.                                                                                     Instead,   as   we   noted   earlier,   Shayen   argued   that   he   should   be  

 acquitted because homeless people, by definition, never have an identifiable "residence"                                                                                                                                                                                                                                                                                                                           

-  and thus                                                      no homeless person                                                                                            could reasonably be on notice that they were required                                                                                                                                                                                                 

to report a change in their physical location.                                                                                                                                                                                                 

                                                                         Shayen   never   asserted   -   either   in   his   testimony,   or   in   his   attorney's  

 argument to the court - that he continued to view the Brother Francis Shelter as his                                                                                                                                                                                                                                                                                                                                                                            

 "residence" even though he had moved to the camping area near Ship Creek, or that he                                                                                                                                                                                                                                                                                                                                                                                

 failed to understand that moving from the shelter to the camping area was a change of                                                                                                                                                                                                                                                                                                                                                                                

 location that had to be reported to the Department.                                                                                                                                                                                                                          And as we have explained, the State                                                                                                                                      

 offered testimony that Shayen had previously submitted "change of residence" forms that                                                                                                                                                                                                                                                                                                                                                                       

 documented   similar   changes   of   location   (and   these   forms   were   accepted   by   the  


                                                                         Because Shayen never                                                                                                           put   this   element of the offense in dispute, and                                                                                                                                                                                                    

because (as we have just explained) the State presented ample evidence to prove this                                                                                                                                                                                                                                                                                                                                                                          

 element, Shayen can not show that he was prejudiced by the superior court's failure to                                                                                                                                                                                                                                                                                                                                                                                

make an explicit finding on this element.                                                                                                                                                                                   Shayen has thus failed to prove plain error.                                                                                                                                                                                                        2  

                  2                 See Dodds v. State                                                                                 , 997 P.2d 536, 543 (Alaska App. 2000) (finding no plain error in                                                                                                                                                                                                                                                                 

 a robbery prosecution where the judge failed to instruct the jury on the requirement of                                                                                                                                                                                                                                                                                                                                                       corpus  

delicti,   when "the                                                                           fact   that   the   robbery occurred was                                                                                                                                                     not   seriously disputed");                                                                                                            see   also  


                                                                                                                                                                                                                               - 6 -                                                                                                                                                                                                                          2474

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

                             There is one final matter that we must address: The judgement in this case                                                                             

declares that Shayen was convicted of a "crime of domestic violence" as defined in                                                                                                       

                                                                                                                                                           3    We therefore  

AS 18.66.990.                     The State concedes that this is incorrect, and we agree.                                                                               

direct the superior court to amend the judgement to correct this error.  


                             In all other respects, the judgement of the superior court is AFFIRMED.  


       2       (...continued)  


Charles v. State, 287 P.3d 779, 783 (Alaska App. 2012) (noting that this Court has repeatedly  


held that a Blakely violation (i.e., a failure to give the defendant a jury trial on a factor that  


would increase the defendant's potential maximum sentence) does not constitute plain error  


"when the evidence concerning the existence of the [aggravating factor] was not subject to  


reasonable dispute - in other words, when there was no reasonable possibility that a jury  


would have found in the defendant's favor even if the issue had been submitted to a jury").  



               See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  


independently assess any concession of error by the State in a criminal case).  

                                                                                          - 7 -                                                                                     2474

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Judge ALLARD, concurring.  


                    I agree with the Court's decision in this  case.   I write separately only to  


further address the due process concerns raised by the briefing in this case.  


                    As the majority decision explains,  the Department of Public Safety has  


informally adopted a flexible  interpretation of the term "residence" when applied to  


homeless sex offenders.  The record in this case also demonstrates that the Department  


often  works  informally  with  individual  homeless  sex  offenders  to  assist  them  in  


understanding how to comply with their sex offender registration requirements.  


                    For the most part, Shayen's case demonstrates the overall effectiveness of  


this practical, common-sense approach.  Prior to the current prosecution, Shayen had a  


long history of compliance with his sex offender registration requirements, despite his  


almost continuous homeless status.  


                    But Shayen's case also demonstrates some of the potential shortfalls of the  


Department's approach.   Although the record indicates that many of Shayen's change  


of residence forms were filled out with the assistance of state employees, there is no  


documentation of what the employees told Shayen about what constituted a  "residence"  


or a "change of  residence" for a person in his circumstances.   And (as the majority  


notes), the Department has, in the past, accepted a wide range of descriptions of Shayen's  


"residence."  These range from "Brother Francis" to "Beans Café" to "camping in the  


Valley of the Moon"  - and, in one instance, simply the word "homeless."  


                    On appeal, Shayen's attorney argues that all of these descriptions probably  


meant the same thing to Shayen:  they showed that he was  homeless  in Anchorage.  


Shayen's attorney further argues that, given that  Shayen was still homeless when he  


moved from the Brother Francis Shelter to the camping area at Ship Creek, Shayen may  


have been genuinely and reasonably confused about whether his move  constituted a  

                                                              - 8 -                                                          2474

----------------------- Page 9-----------------------

 "change in residence" requiring him to update his registration form - particularly since                                                                                                                                                                                                                                                                

 the camp was less than a mile away from the shelter, and Shayen likely intended to return                                                                                                                                                                                                                                                           

 to the shelter when the weather turned bad.                                                                                                                                              

                                                          I agree with the majority that this is not how Shayen's case was litigated in                                                                                                                                                                                                                                

 the trial court.                                             Moreover, Shayen's testimony at trial suggested that he                                                                                                                                                                                         was  aware that   

 his move to the Ship Creek camping area required him to update                                                                                                                                                                                                                                    his   sex offender   

 registration information - because he testified that he believed he had complied with                                                                                                                                                                                                                                                                      

 this requirement by telling a police officer about the move.                                                                                                                                                                                         (I acknowledge that the trial                                                                           

judge expressly found that Shayen's testimony on this point was not credible.                                                                                                                                                                                                                                                             But the   

 fact that Shayen                                                           thought he needed to make this kind of assertion in his testimony                                                                                                                                                                                       

 indicates that he knew he should have reported his move                                                                                                                                                                                                 to the Ship Creek camping                                                        


                                                         Nevertheless,   I find that the due process concerns raised                                                                                                                                                                                                  by   Shayen's  

 attorney in this case are valid.                                                                                                 

                                                          By regulation, a sex offender "is considered to have changed residence on                                                                                                                                                                                                                                  

 the date the offender leaves the residence without intending to return to continue living                                                                                                                                                                                                                                                              

 there, or the date that the offender has been away from the residence for 30 consecutive                                                                                                                                                                                                                                    

                                                                                                                                   1         The meaning of this regulation is unambiguous when  

 days, whichever occurs first."                                                                                                                                                                                                                                                                                                                        

 applied to sex offenders with a traditional residence, but its meaning is less clear for  


 homeless sex offenders.  


                                                          The  written  materials  that  the  Department  provides  to  sex  offenders  


 likewise fail to address the circumstances of a person who lacks a traditional "residence."  


 The majority points out that sex offenders receive "courtesy reminder" letters that inform  


 them that if they do not have a street address, they may substitute a "descriptive address."  


 But the example provided in those letters - "4th house on Main Street, across from the  


                1             13 AAC 09.040(b).                 

                                                                                                                                                                               - 9 -                                                                                                                                                                          2474

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post office" - is aimed at rural residents,                                                                                                                                                                                         i.e., individuals who live in houses with no                                                                                                                                                                              

 street address, not individuals without a home.                                                                                                                                                                                                          

                                                                       I   therefore   encourage   the   Department   of   Public   Safety   to   continue   its  

 common-sense approach toward the reporting requirements for homeless sex offenders,                                                                                                                                                                                                                                                                                                                                   

but to also consider how best to ensure that homeless sex offenders receive adequate                                                                                                                                                                                                                                                                                                                                        

notice of how these requirements apply to them.                                                                                                                                                                                                                         

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