Thomas Sydney Turner v. Commonwealth of Virginia ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Chafin, Decker and AtLee
Argued at Richmond, Virginia
UNPUBLISHED
THOMAS SYDNEY TURNER
MEMORANDUM OPINION* BY
v. Record No. 0826-17-2 JUDGE TERESA M. CHAFIN
APRIL 17, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Gregory L. Rupe, Judge
Lauren Whitley, Deputy Public Defender, for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Thomas Sydney Turner was convicted of failing to re-register as a person convicted of a
sexually violent offense in violation of Code §§ 9.01-902 and 18.2-472.1(B). On appeal, he
contends the evidence failed to establish that he was previously convicted of a sexually violent
offense, and therefore in violation of Code § 18.2-472.1(B). For the reasons that follow, we affirm
the decision of the trial court.
Background
On January 18, 2004 in Idaho, Turner, then twenty-one years of age, was convicted of
“sexual abuse of a child under the age of 16,” pursuant to Idaho Code § 18-1506. As a result of
this conviction, he was ordered to “register as a sex offender with the State of Idaho.” Turner
moved to Virginia from Idaho in 2016. On March 3, 2016, Turner registered as a sex offender at
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Virginia State Police (“VSP”) headquarters. At that time, he acknowledged in writing that when
VSP classified his Idaho conviction as non-violent or violent, he would be notified.
A March 15, 2016 letter from VSP informed Turner that his Idaho offense had been
classified as “sexually violent.” The letter was returned unclaimed. On March 25, 2016, Turner
appeared at VSP headquarters to register a change of address. During that visit, Turner
acknowledged in writing that he had been classified by VSP as a sexually violent offender and
that he would be required to re-register every ninety days pursuant to Code § 9.1-904(A).
Turner returned to VSP headquarters on March 29, 2016 to register another change of
address. He once more signed an acknowledgement that he was classified as a sexually violent
offender required to re-register every ninety days.
On May 25, 2016, Turner visited VSP headquarters to re-register in advance of his June
1, 2016 re-registration date. He also reported a change of employment that day. Again, Turner
acknowledged in writing his classification as a sexually violent offender.
Turner was notified by certified letter of his next re-registration date deadline, which was
August 30, 2016. He signed the form letter with his re-registration information on August 23,
2016, but it was not received by the Sex Offender & Crimes Against Minors Registry (“the
Registry”) until September 7, 2016. VSP Trooper Tim Hall began his investigation at that time.
On October 27, 2016, Trooper Hall met with Turner. Turner stated that he was unsure of
the re-registration deadline, but indicated that he had re-registered. Hall indicated to Turner that
the Registry records revealed that Turner called the registry on August 11, 2016 to ask about the
re-registration deadline, and he was told that his re-registration date was August 30. Turner
replied that he believed he only had to re-register “once or twice a year” and that he had been
classified as a “non-violent offender” in Idaho. Turner was arrested for failing to re-register as a
violent sex offender.
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At trial, Turner’s counsel objected to the sufficiency of the evidence, contending that the
Commonwealth failed to prove that Turner’s Idaho conviction was “similar” to a Virginia crime
constituting a sexually violent offense. Counsel argued that the Idaho statute was broad and
covered several offenses that would not be considered sexually violent in Virginia. Counsel
further contended that the Commonwealth failed to state on which section of the Virginia Code
Turner’s classification was founded. In response, the Commonwealth argued that the Idaho
sexual assault of a child statute was similar to Virginia’s aggravated sexual battery statute, and
that aggravated sexual battery was listed as a sexually violent offense pursuant to Code
§ 9.1-902(E).
The trial court agreed with the Commonwealth and concluded that the Idaho statute was
substantially similar to a violent sexual offense in Virginia. The trial court convicted Turner of
the charged offense, and this appeal followed.
Analysis
On appeal, Turner asserts that the evidence at trial was insufficient because the
Commonwealth did not prove beyond a reasonable doubt that he was convicted of a sexually
violent offense as required by Code § 18.2-472.1(B). Turner further argues that without proof of
a sexually violent offense, he was in compliance with the Registry because he had registered
annually as a non-violent offender. See Code § 9.1-904(A). For the following reasons, we
affirm the decision of the trial court.
The sole issue presented on appeal is whether Turner was required to re-register as a
violent sex offender every ninety days pursuant to Code § 9.1-904(A). This is a question of law
that involves the interpretation and application of Code § 9.1-902 and Code § 18.2-472.1.
Therefore, we review the trial court’s judgment de novo. Colbert v. Commonwealth, 47
Va. App. 390, 394, 624 S.E.2d 108, 110 (2006).
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While we endeavor to discern the “true intent of the legislature, and to adopt that sense of
the words which harmonizes best with the context, and promotes in the fullest manner the
apparent policy and objects of the legislature,” Tyszcenko v. Donatelli, 53 Va. App. 209, 216,
670 S.E.2d 49, 53 (2008) (quoting Colbert, 47 Va. App. at 394, 624 S.E.2d at 110), we typically
rely solely on the words used in the statute to evidence that intent, Va. Cellular LLC v. Va. Dep’t
of Taxation, 276 Va. 486, 490, 666 S.E.2d 374, 376 (2008).
The General Assembly enacted the Sex Offender and Crimes Against Minors Registry
Act (“the Act”) expressly to “assist the efforts of law-enforcement agencies and others to protect
their communities and families from repeat sex offenders and to protect children from becoming
victims of criminal offenders by helping to prevent such individuals from being allowed to work
directly with children.” Code § 9.1-900. See also Colbert, 47 Va. App. at 395-96, 624 S.E.2d at
111. In order to further the objective of protecting the citizens of Virginia from sexual predators,
the General Assembly decreed that the provisions in the Act are to be “liberally construed to
effect the purposes hereof.” Code § 9.1-920. Depending on whether the offense is classified as
sexually violent, failure to register as required is a Class 1 misdemeanor or a Class 6 felony. See
Code § 18.2-472.1(A)-(B).
Turner relies heavily on Johnson v. Commonwealth, 53 Va. App. 608, 674 S.E.2d 541
(2009), to support his argument. We find that Johnson is not applicable in this case. The
defendant in Johnson was not required to register as a sex offender where he was convicted in
North Carolina. Therefore, the court had to determine whether the statute under which the
defendant was convicted was similar to a Virginia offense listed in Code § 9.1-902(E). In this
case, however, Turner was required to register as a sex offender in Idaho, and thus, Code
§ 9.1-902(F) applies.
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Per Code § 9.1-902(F), a “‘sexually violent offense’ as defined in this section . . .
includes . . . any offense for which registration in a sex offender and crimes against minors
registry is required under the laws of the jurisdiction where the offender was convicted.”
(Emphasis added). “When the language in a statute is clear and unambiguous, [this Court]
appl[ies] the statute according to its plain language.” Va. Polytechnic Inst. & State Univ. v.
Interactive Return Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006) (citing HCA Health
Servs. v. Levin, 260 Va. 215, 220, 530 S.E.2d 417, 419-20 (2000)). Likewise, “[w]hen the
language of a statute is plain and unambiguous, we are bound by the plain meaning of that
statutory language.” Lee Cty. v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682
(2002) (citing Indus. Dev. Auth. v. Bd. of Supervisors, 263 Va. 349, 353, 559 S.E.2d 621, 623
(2002)). The language of Code § 9.1-902(F) is clear that if a person is convicted in another
jurisdiction of an offense requiring them to register on a sex offender and crimes against minors
registry, Virginia classifies them as a sexually violent offender. Therefore, they are required to
re-register every ninety days pursuant to Code § 9.1-904(A).
Turner’s Idaho conviction order was entered into evidence at trial without objection. The
order proved that Turner was convicted of sexual battery of a child age sixteen or under. He
was, therefore, required to “register as a sex offender with the state of Idaho.” Turner
acknowledged that he was, in fact, a registered sex offender in Idaho. Upon his first registration
with VSP, Turner again acknowledged in writing that he had been convicted of an offense that
required him “to be placed on the Sex Offender and Crimes Against Minors Registry in the
jurisdiction of [his] conviction.”
Turner was advised by letter on March 15, 2016 that his Idaho conviction had been
classified by VSP as a sexually violent offense. He was therefore required to re-register every
ninety days. Turner did not receive the letter, but he was advised of his classification as a
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sexually violent offender in person when he appeared at VSP on March 25, 2016. He also
acknowledged his classification in writing on that date. After March 25, 2016, all VSP
documents signed by Turner have the words “VIOLENT SEX OFFENDER” in all capital letters
at the top of the page.
On March 29, 2016, Turner appeared in person at VSP headquarters and acknowledged
in writing that he had been classified as a violent sex offender and was required to re-register
every ninety days. On May 25, 2016, Turner visited VSP headquarters for his June 1, 2016
re-registration and again, signed an acknowledgement that he had been classified as a violent sex
offender.
Turner’s next re-registration deadline was August 30, 2016, a date of which he was
notified by certified letter. He signed the re-registration form letter on August 23, 2016.
However, the Registry did not receive the form letter until September 7, 2016. Turner
knowingly failed to re-register as a violent sex offender on or before August 30, 2016.
Therefore, Turner was properly convicted under Code § 18.2-472.1(B), which provides
Any person convicted of a sexually violent offense or murder, as
defined in [Code] § 9.1-902, who knowingly fails to register or
reregister, or who knowingly provides materially false information
to the Sex Offender and Crimes Against Minors Registry is guilty
of a Class 6 felony.
The trial court’s ruling mirrored Turner’s arguments at trial in finding that the Idaho
statute “is a substantially similar statute as to what [Virginia has] for violent sexual offense.”
We find that the trial court erred in relying on the substantial similarity of the Virginia and Idaho
statutes in making its decision. Pursuant to the plain language of Code § 9.1-902(F), since
Turner was convicted of an offense in another jurisdiction – in this case, Idaho – that required
registry on the Sex Offender and Crimes Against Minors Registry, he was classified as a violent
sexual offender in Virginia. A substantial similarity analysis is not necessary. However, the
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right result was ultimately reached in this case. “In instances where a trial court’s decision is
correct, but its reasoning is incorrect, and the record supports the correct reason, [the court will]
uphold the judgment pursuant to the right result for the wrong reason doctrine.” Haynes v.
Haggerty, 291 Va. 301, 305, 784 S.E.2d 293, 294 (2016). See also Rives v. Commonwealth, 284
Va. 1, 3, 726 S.E.2d 248, 250 (2012) (applying “right result for the wrong reason” doctrine
where the only issue was one of statutory interpretation). The record in this case supports a
finding that Turner knowingly failed to re-register as a violent sex offender within the ninety
days required. Therefore, the trial court properly found Turner guilty of violating Code
§ 18.2-472.1.
Conclusion
For the foregoing reasons, the decision of the trial court is affirmed.
Affirmed.
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