State of Arizona v. Kwame Roy Lowery , 230 Ariz. 536 ( 2012 )

FILED BY CLERK
OCT 31 2012
IN THE COURT OF APPEALS COURT OF APPEALS
DIVISION TWO
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2012-0059
) DEPARTMENT B
Appellee, )
) OPINION
v. )
)
KWAME ROY LOWERY, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20103550001
Honorable John S. Leonardo, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Nicholas Klingerman Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller Tucson
Attorneys for Appellant
K E L L Y, Judge.
¶1 After a jury trial, appellant Kwame Lowery was convicted of failure to
register as a sex offender. On appeal, he argues the state did not present sufficient
evidence to support the jury’s verdict; the trial court committed fundamental error by
allowing a detective’s testimony interpreting Arizona’s sex offender registration statute,
A.R.S. § 13-3821; and the registration statute is facially unconstitutional and violates his
right to equal protection. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the conviction.
See State v. Abdi, 226 Ariz. 361, ¶ 2, 248 P.3d 209, 211 (App. 2011). In 2009, Lowery
was convicted of criminal sexual conduct in Michigan pursuant to Mich. Comp. Laws
§ 750.520e(1)(b) and required to register as a sex offender in that state.
¶3 On September 21 and October 5, 2010, law enforcement officers had
contact with Lowery in and around downtown Tucson. On one occasion, a detective
discovered paperwork in Lowery’s pocket indicating he had been in Tucson City Court
on August 31, 2010. On October 6, Detective Cravatzo discovered Lowery was a
convicted sex offender required to register in Michigan. That day, he located Lowery in
downtown Tucson and interviewed him. Lowery told Cravatzo he had not registered in
Pima County because he “ha[d]n’t been here ten days yet,” as required by § 13-3821. He
stated he had been in Michigan “off and on” for the past year, and over the past five days
had been in Phoenix, Albuquerque, and Sierra Vista before returning to Tucson on
October 5. Lowery also told Cravatzo he did not remember being in Tucson on
September 21—fourteen days earlier—when he had a contact with law enforcement.
¶4 Lowery was charged with failure to register as a sex offender. At the close
of evidence in his trial, Lowery made a motion for a judgment of acquittal pursuant to
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Rule 20, Ariz. R. Crim. P., arguing the state had provided insufficient evidence to support
a guilty verdict. The trial court denied the motion. Lowery was convicted as charged and
sentenced to a mitigated one-year term of imprisonment. This appeal followed.
Discussion
Sufficiency of the Evidence
¶5 Lowery argues the trial court erred by denying his Rule 20 motion because
there was insufficient evidence he had “enter[ed] and remain[ed]” in Pima County for ten
days as required to support a conviction under § 13-3821(A). To determine whether
sufficient evidence supports a conviction, we evaluate whether “substantial evidence
supports the jury’s verdict[].” State v. Lopez, 230 Ariz. 15, ¶ 3, 279 P.3d 640, 642 (App.
2012). “‘Substantial evidence is proof that reasonable persons could accept as sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable doubt.’” Id., quoting
State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996); see also State v.
Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) (“To set aside a jury verdict for
insufficient evidence it must clearly appear that upon no hypothesis whatever is there
sufficient evidence to support the conclusion reached by the jury.”). The evidence may
be either direct or circumstantial. Lopez, 230 Ariz. 15, ¶ 3, 279 P.3d at 642.
¶6 As Lowery concedes, the state presented evidence he had been in Pima
County on August 31, September 21, October 5, and October 6, 2010—a period of time
spanning more than a month. This constituted substantial evidence from which
reasonable jurors could conclude Lowery had remained in Pima County for at least ten
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days without registering as a sex offender. See id. And although Lowery testified he had
not remained in Pima County between those dates, the jury was free to discredit his
testimony. Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, ¶ 12, 273
P.3d 645, 649 (2012) (jury may discredit defendant testimony for various reasons,
including personal interest); see also State v. Anaya, 165 Ariz. 535, 543, 799 P.2d 876,
884 (App. 1990) (circumstantial evidence can support differing reasonable inferences).
Therefore, sufficient evidence supports Lowery’s conviction.
Detective Testimony
¶7 Lowery argues the trial court erred by permitting testimony from Cravatzo
interpreting § 13-3821 because (1) pursuant to Rule 702, Ariz. R. Evid., a witness may
not instruct the jury as to the proper interpretation of the law and (2) Cravatzo’s
interpretation of § 13-3821 was incorrect because he testified a person must register once
he has remained for ten days in the state, rather than in a particular county. Because he
failed to object to Cravatzo’s testimony in the trial court, we review solely for
fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115
P.3d 601, 607 (2005). Fundamental error is “‘error going to the foundation of the case,
error that takes from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair trial.’” Id. ¶ 19,
quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). Lowery must prove
fundamental error occurred and “that the error in his case caused him prejudice.” Id.
¶ 20.
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¶8 Section 13-3821(A) states that persons required to register in Arizona must
do so “within ten days after entering and remaining in any county of this state . . . with
the sheriff of that county.” During trial, the state solicited the following testimony from
Cravatzo:
Q: According to your training and experience, . . .
once you are here for ten days you have to register?
A: Yes, if you are traveling from another state, you
have a ten day limit. . . .
Q: Now is that within a particular county or is that
within the entire State of Arizona?
A: That’s within the State of Arizona.
The state followed up by presenting hypothetical examples of a defendant moving
between counties in the state, and Cravatzo explained he would determine whether the
person was required to register based on his continuous presence in the state. Lowery did
not object. However, in his closing argument, Lowery argued:
[T]he law further says that you have to [register]
within ten days after entering and remaining in Pima County.
Well, Sierra Vista is not Pima County. Phoenix is not Pima
County. Albuquerque is not Pima County.
So although yes, Phoenix and Sierra Vista are within
the State of Arizona, they are all different counties and a
person could easily travel between them in a period of ten
days’ time.
The trial court instructed the jury the state was required to prove beyond a reasonable
doubt that Lowery had “failed to register with the sheriff within ten days after entering
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and remaining in Pima County.” It also instructed the jury that “it is the Court’s
instructions on the law that control.”
¶9 Even if the trial court erred by allowing Cravatzo’s testimony, we do not
reach that issue today because Lowery has failed to establish he was prejudiced by any
error. Lowery argues we cannot conclude “beyond a reasonable doubt” that Cravatzo’s
testimony did not “contribute to the verdict.” That would describe accurately the state’s
burden had Lowery objected in the trial court. See Henderson, 210 Ariz. 561, ¶ 18, 115
P.3d at 607. However, because he failed to do so, he bears an affirmative burden to
prove prejudice. See id. ¶ 19. This is “to encourage defendants to present their
objections in a timely fashion at trial, when the alleged error may still be corrected, and to
discourage defendants from reserving a curable trial error as a ‘hole card’” to be played
on appeal. State v. Davis, 226 Ariz. 97, ¶ 12, 244 P.3d 101, 104 (App. 2010), quoting
Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607.
¶10 We presume the jury followed the trial court’s instruction and determined
the state had proven “the defendant failed to register with the sheriff within ten days after
entering and remaining in Pima County.” See State v. Newell, 212 Ariz. 389, ¶ 68, 132
P.3d 833, 847 (2006). Lowery has offered no evidence rebutting this presumption. See
State v. Munninger, 213 Ariz. 393, ¶ 14, 142 P.3d 701, 705 (App. 2006) (mere
speculation insufficient to show prejudice under fundamental error review). As discussed
above, the state provided evidence Lowery had been in Pima County on occasions
spanning more than ten days. And during closing argument, Lowery maintained the state
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was required to prove his presence in Pima County specifically, as stated in the
indictment and the jury instructions. Therefore, Lowery has failed to show any error was
so prejudicial that he “could not possibly have received a fair trial.” See Henderson, 210
Ariz. 561, ¶ 19, 115 P.3d at 607; see also Newell, 212 Ariz. 389, ¶¶ 68, 70, 132 P.3d at
847, 848 (improper testimony not prejudicial in part because jury properly instructed).
Equal Protection
¶11 Finally, Lowery argues § 13-3821 is facially unconstitutional because it
requires those who must register as sex offenders in other states to register in Arizona
“even when people who commit the same offense in Arizona are not required to register.”
He contends this violates his state and federal constitutional right to equal protection
because it treats disparately two similarly situated groups: those who commit an offense
outside Arizona and are required to register, and those who commit the same act inside
Arizona but are not required to register. We review the constitutionality of a statute de
novo, and we presume statutes are constitutional unless established otherwise beyond a
reasonable doubt. State v. Navarro, 201 Ariz. 292, ¶ 24, 34 P.3d 971, 977 (App. 2001).
Lowery did not raise this issue in the trial court, and so we review for fundamental error.
See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. “To obtain relief under the
fundamental error standard of review, [Lowery] must first prove error.” Id. ¶ 23.
¶12 Section 13-3821(A) provides in relevant part:
A person . . . who has been convicted of . . . an offense
committed in another jurisdiction that if committed in this
state would be a violation or attempted violation of any of the
following offenses . . . or who is required to register by the
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convicting or adjudicating jurisdiction, . . . within ten days
after entering and remaining in any county of this state, shall
register with the sheriff of that county . . . .
Lowery contends his Michigan conviction does not establish a violation of any of the
offenses listed in § 13-3821 and therefore he is required to register in Arizona only
because he was required to register in Michigan. We agree. To prove his prior offense
“if committed in this state would [have been] a violation” of an Arizona offense, the
elements of the Michigan statute necessarily would have to prove the Arizona offense.
See State v. Kuntz, 209 Ariz. 276, ¶ 9, 100 P.3d 26, 29 (App. 2004). However,
§ 750.520e(1)(b) prohibits conduct that would not require registration in Arizona—such
as sexual abuse against an adult. See § 13-3821 (requiring registration for sexual abuse
only when victim is minor); compare Mich. Comp. Laws § 750.520e(1)(b) (criminal
sexual conduct includes any “sexual contact” through force or coercion), with A.R.S.
§ 13-1406(A) (sexual assault requires “sexual intercourse or oral sexual contact” without
consent).1
¶13 “The state and federal equal protection guarantees are designed to secure
equal opportunity for those who are similarly situated.” Martin v. Reinstein, 195 Ariz.
293, ¶ 49, 987 P.2d 779, 795 (App. 1999); see also U.S. Const. amend. XIV, § 1; Ariz.
Const. art. II, § 13. The effects of the state and federal provisions “are essentially the
same.” State v. Bonnewell, 196 Ariz. 592, ¶ 15, 2 P.3d 682, 686 (App. 1999). However,
1
The relevant portions of these statutes have not changed since the date of
Lowery’s prior offense. See 2007 Mich. Sess. Laws, no. 163, § 520e; 1999 Ariz. Sess.
Laws, ch. 92, § 1.
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the right to equal protection does not prohibit all classifications, only those that are
unreasonable. Schecter v. Killingsworth, 93 Ariz. 273, 281, 380 P.2d 136, 141 (1963).
Unless it implicates a suspect classification or a fundamental right, we will uphold
legislation that is “‘rationally related to a legitimate government purpose.’” Navarro, 201
Ariz. 292, ¶ 25, 34 P.3d at 977, quoting Wigglesworth v. Mauldin, 195 Ariz. 432, ¶ 19,
990 P.2d 26, 32 (App. 1999); see also Governale v. Lieberman, 226 Ariz. 443, ¶ 13, 250
P.3d 220, 225 (App. 2011) (same standard applies to state constitutional provision).
¶14 Lowery urges us to examine the statute utilizing strict scrutiny review,
rather than rational basis review, because it implicates his fundamental right to travel by
“penaliz[ing] [him] for traveling to Arizona.” But nothing in § 13-3821 impedes an
offender’s right “to enter and to leave another State, . . . to be treated as a welcome visitor
rather than an unfriendly alien when temporarily present . . . [or] to be treated like other
citizens of that State” as a new permanent resident. See Saenz v. Roe, 526 U.S. 489, 500
(1999); cf. United States v. Shenandoah, 595 F.3d 151, 162-63 (3d Cir. 2010) (federal
Sex Offender Registration and Notification Act registration requirements do not implicate
right to travel), abrogated on other grounds by Reynolds v. United States, 132 S. Ct. 975(2012). The statute does not prevent any person from entering the state, does not place
any requirements on short-term visitors, and applies to Arizona residents equally.
According to its plain language, any person in Arizona who must register in another state
is subject to the same requirements irrespective of how long they have resided in this
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state. See § 13-3821. Therefore, we evaluate the statute’s provision applying rational
basis review. See Navarro, 201 Ariz. 292, ¶ 25, 34 P.3d at 977.
¶15 In examining the purpose of the statute, we may consider either the
legislature’s stated goal or any hypothetical basis for its action. Governale, 226 Ariz.
443, ¶ 16, 250 P.3d at 225-26. Prior to 2005, a person was not required to register based
solely on another state’s requirement to do so. Instead, § 13-3821 only required
registration based on a conviction in another jurisdiction when the offense “if committed
in this state would [have been] a violation or attempted violation” of an Arizona offense
requiring registration. 2004 Ariz. Sess. Laws, ch. 142, § 2. As mentioned above, to
make this determination, the trial court is limited to comparing the elements of the
respective statutes and prohibited from considering the factual basis underlying the
conviction. Kuntz, 209 Ariz. 276, ¶ 9, 100 P.3d at 29. As a result, even if the prior
conduct generally would have required registration under Arizona law, one could evade
registration if the elements of the respective statutes did not match. See id. ¶¶ 10-11
(defendant not required to register because some portions of Minnesota criminal sexual
conduct statute broader than Arizona sexual assault statute).
¶16 The legislative history of § 13-3821 suggests the legislature was attempting
to close this gap in the registration system when it amended the statute in 2005 to also
require registration of those “required to register by the convicting jurisdiction.” 2005
Ariz. Sess. Laws, ch. 176, § 1. The bill’s sponsor noted the change “close[d] a technical
loophole” in the law. H. Judiciary Comm. Minutes, 47th Leg., 1st reg. sess., (Ariz. Mar.
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31, 2005). As one supporter noted during a committee meeting, cases such as Kuntz
established that “[i]f the person had committed a heinous criminal sexual offense and the
elements did not match exactly with one of Arizona’s crimes, the person would not have
to register when they moved to Arizona.” Id.
¶17 As a practical matter, because statutes vary from state to state, registration
requirements based on other states’ convictions will be either over-inclusive or under-
inclusive unless an Arizona court re-examines the facts underlying each prior conviction
in the context of Arizona law. However, to do so would essentially require an
impermissible “second trial concerning that crime.” Kuntz, 209 Ariz. 276, ¶ 9, 100 P.3d
at 29. And rational basis review does not require a perfect match between the treatment
of in-state and out-of-state acts. See Washburn v. Pima Cnty., 206 Ariz. 571, ¶ 28, 81
P.3d 1030, 1039 (App. 2003) (statute with rational basis not unconstitutional merely
because not made with “‘mathematical nicety, or because in practice it results in some
inequality’”), quoting Big D Constr. Corp. v. Court of Appeals, 163 Ariz. 560, 566, 789
P.2d 1061, 1067 (1990). Requiring those who must register in another jurisdiction to
register in Arizona is rationally related to the state’s legitimate interest in protecting its
communities by ensuring its registration scheme is not under-inclusive. See Martin, 195
Ariz. 293, ¶ 61, 987 P.2d at 798 (state has “significant interest” in protecting citizens
from dangerous individuals); see also State v. Henry, 224 Ariz. 164, ¶¶ 16-17, 228 P.3d
900, 905 (App. 2010) (intent of registration scheme to assist law enforcement and protect
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communities). Therefore, Lowery has not established that § 13-3821 is unconstitutional.
See Navarro, 201 Ariz. 292, ¶ 24, 34 P.3d at 977.
Disposition
¶18 For the foregoing reasons, we affirm.
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
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