State v. Norton , 930 N.W.2d 190 ( 2019 )

Filed 6/27/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 174State of North Dakota, Plaintiff and Appellee
v.
Spencer Brent Norton, Defendant and Appellant
No. 20180378
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Julie A. Lawyer, Burleigh County State’s Attorney, Bismarck, North Dakota,
for plaintiff and appellee; submitted on brief.
Russell J. Myhre, Enderlin, North Dakota, for defendant and appellant;
submitted on brief.
State v. Norton
No. 20180378
Tufte, Justice.
[¶1] Spencer Norton appeals from a judgment entered after the district court denied
his motion to dismiss and accepted his conditional guilty plea to the charge of failure
to register as an offender against children. We conclude N.D.C.C. § 12.1-32-15(3)
imposed a statutory duty on Norton to register, and we affirm.
I
[¶2] In May 2018, while Norton was in custody on unrelated charges, the State
charged him with willfully failing to register as an offender against children from
June 28, 2017, through May 21, 2018. The charge against Norton was based on his
February 1997 convictions in North Carolina for abduction of a child and second
degree kidnapping. Norton moved to dismiss the charge, arguing the State could not
prove he was required to register and the complaint was premature. Norton contended
he was fifteen years old at the time of the North Carolina convictions, he was never
ordered to register by a North Carolina court, and the North Carolina judge never
stated a registration requirement on the record. He claimed the State must prove his
sentence complied with due process by personally advising him of the registration
requirement. He also contended the complaint was premature, because he had been
continually incarcerated since November 7, 2017, and could not go to the Bismarck
Police Department to register in person.
[¶3] The State responded that Norton was required to register under N.D.C.C.
§§ 12.1-32-15(1)(a) and 12.1-32-15(3), that inmates are afforded the opportunity to
register during their incarceration, and that impossibility is not a valid defense
because he never tried to register and he told officers he refused to register.
1
[¶4] The district court denied Norton’s motion to dismiss, citing N.D.C.C. § 12.1-
32-15(3) for registration requirements when a court has not previously ordered an
individual to register in this state. The court explained:
At the hearing, the State laid out for the Court and for Norton the
evidence the State anticipates it would present at trial, including three
exhibits. The State contends that Norton was required to register due to
his North Carolina convictions (as cited in the Complaint) being
equivalent to Kidnapping, in violation of Section 12.1-18-01 of the
North Dakota Century Code.
Norton does not dispute his North Carolina convictions for
Abduction of a Child and Second Degree Kidnapping . . . . Defendant
Norton argued, however, that he was never ordered to register by the
court in North Carolina which means he could not be required
to register in North Dakota. Norton’s argument was riddled almost
entirely with hearsay statements which he argued came from his out-of-
state attorneys, his federal probation officer and officials in North
Carolina who purportedly told him he did not have to register.
The Court finds there is no legal basis warranting dismissal of
this complaint. The Court adopts the State’s arguments as outlined in
its [written response to the motion to dismiss] and those made at the
hearing.
The Court was not persuaded by Norton’s arguments in favor of
dismissal. Norton’s arguments, in particular his argument that he did
not have an opportunity to register due to being incarcerated. The Court
concluded that they are more properly brought before a jury for a
factual determination.
Norton entered a conditional guilty plea to the charge, reserving his right to appeal the
denial of his motion to dismiss.
II
[¶5] Norton argues the district court erred in denying his motion to dismiss the
charge of failure to register as an offender against children because the State cannot
prove he was required to register. He contends the North Dakota registration
requirements arising out of the 1997 North Carolina convictions when he was fifteen
years old are a violation of his due process rights. He argues:
2
that by being subjected to North Dakota registration requirements out
of conviction(s) which occurred when he was 15 years of age in North
Carolina, for which he was incarcerated, without being afforded a
hearing in North Dakota to determine whether his due process rights,
including a right to a jury trial in the underlying predicate conviction(s),
and without being ordered by the North Carolina sentencing judge to
register as an offender against children, is a violation of his due process
rights, and that he is entitled to a reversal and remand to determine
these matters by the trial court.
[¶6] The State responds the district court properly denied Norton’s motion to
dismiss. The State claims Norton was residing in Bismarck as early as June 28, 2017,
and was notified on May 4, 2018, that he was required to register in Bismarck as an
offender against children. The State claims Norton had not registered with any law
enforcement agency as an offender against children as of May 17, 2018, and was
subject to prosecution under N.D.C.C. § 12.1-32-15(1)(a) and (3)(c).
[¶7] In State v. Jones, 2002 ND 193, ¶ 19, 653 N.W.2d 668 (quoting State v.
Berger, 2001 ND 44, ¶ 11, 623 N.W.2d 25), we described our standard of review of
preliminary criminal proceedings such as a motion to dismiss:
We will not reverse a trial court’s findings of fact in preliminary
criminal proceedings if, after the conflicts in the testimony are resolved
in favor of affirmance, there is sufficient competent evidence fairly
capable of supporting the findings and if the trial court’s decision is not
contrary to the manifest weight of the evidence.
Statutory interpretation is a question of law, fully reviewable on appeal. State v.
Bearrunner, 2019 ND 29, ¶ 5, 921 N.W.2d 894.
[¶8] Section 12.1-32-15, N.D.C.C., describes registration requirements for
offenders against children and for sexual offenders and provides, in part:
1. As used in this section:
a. “A crime against a child” means a violation of chapter 12.1-16,
section 12.1-17-01.1 if the victim is under the age of twelve,
12.1-17-02, 12.1-17-04, subdivision a of subsection 6 of section
12.1-17-07.1, section 12.1-18-01, 12.1-18-02, 12.1-18-05,
chapter 12.1-29, or section 14-09-22, subsection 3 of section
12.1-41-02, subsection 3 of section 12.1-41-03, or an equivalent
offense from another court in the United States, a tribal court, or
3
court of another country, in which the victim is a minor or is
otherwise of the age required for the act to be a crime or an
attempt or conspiracy to commit these offenses.
....
3. If a court has not ordered an individual to register in this state, an
individual who resides, is homeless, or is temporarily domiciled in
this state shall register if the individual:
a. Is incarcerated or is on probation or parole after July 31, 1995,
for a crime against a child described in section 12.1-29-02, or
section 12.1-18-01 or 12.1-18-02 if the individual was not the
parent of the victim, or as a sexual offender;
b. Has pled guilty or nolo contendere to, or been adjudicated for or
found guilty of, an offense in a court of this state for which
registration is mandatory under this section or an offense from
another court in the United States, a tribal court, or court of
another country equivalent to those offenses set forth in this
section; or
c. Has pled guilty or nolo contendere to, or has been found guilty
of, a crime against a child or as a sexual offender for which
registration is mandatory under this section if the conviction
occurred after July 31, 1985.
....
9. An individual required to register under this section who violates
this section is guilty of a class C felony. The failure of a homeless
individual to register as required in subsections 2 and 3 is prima
facie evidence of a violation of this section. The clerk of court shall
forward all warrants issued for a violation of this section to the
county sheriff, who shall enter all such warrants into the national
crime information center wanted person file. A court may not
relieve an individual, other than a juvenile, who violates this section
from serving a term of at least ninety days in jail and completing
probation of one year.
[¶9] In Denault v. State, 2017 ND 167, ¶ 15, 898 N.W.2d 452, we concluded the
plain language of N.D.C.C. § 12.1-32-15(3) applied to individuals who have been
convicted of equivalent sexual offenses in another state and who have not been
ordered to register as a sexual offender by a court. We held N.D.C.C. § 12.1-32-15(3)
imposed a statutory duty to register as a sexual offender regardless of a court order to
register. Denault, at ¶ 15. The plain language of N.D.C.C. § 12.1-32-15(3) applies
both to sexual offenders and to offenders against children.
4
[¶10] This record includes documentation that Norton pled guilty in 1997 in North
Carolina General Court of Justice Superior Court Division to three criminal charges
after being indicted by a grand jury. One of those charges was felonious abduction
of a two-year-old child. Although Norton may have been a fifteen-year-old juvenile
at the time of those offenses, the guilty pleas were in the North Carolina General
Court of Justice Superior Court Division after a grand jury indictment and not in
North Carolina’s juvenile court. Norton does not dispute that the North Carolina
convictions are “congruent” with North Dakota statutes for kidnapping and felonious
restraint. See N.D.C.C. §§ 12.1-18-01 and 12.1-18-02. See also N.D.C.C. § 12.1-32-
15(1)(a) (defining crime against a child for purposes of N.D.C.C. § 12.1-32-15 to
include violations of N.D.C.C. §§ 12.1-18-01 and 12.1-18-02). For purposes of the
registration requirements in N.D.C.C. § 12.1-32-15, Norton’s North Carolina
convictions are equivalent to the crimes of kidnapping and felonious restraint in
N.D.C.C. §§ 12.1-18-01 and 12.1-18-02.
[¶11] Although the North Carolina Superior Court may not have required Norton to
register or told him about registration requirements on the record, the plain language
of N.D.C.C. § 12.1-32-15(3) applies to individuals who have not been ordered by a
court to register as an offender against children and imposes a statutory duty to
register. We conclude Denault, 2017 ND 167, ¶ 15, 898 N.W.2d 452, and the plain
language of N.D.C.C. § 12.1-32-15(3) impose a statutory registration requirement on
Norton regardless of a prior court order or instructions by a court to register as an
offender against children.
[¶12] To the extent Norton argues his due process rights were violated, this Court has
rejected a similar procedural due process claim to the mandatory registration
requirements for sexual offenders. State v. Backlund, 2003 ND 184, ¶ 36, 672
N.W.2d 431 (stating the defendant’s criminal conviction effectively provided him
with procedural due process). Our decision in Backlund is dispositive of Norton’s due
process claim in this case.
5
[¶13] Here, there was evidence that Norton was told about the statutory registration
requirements by law enforcement officers in early May 2018 and that he refused to
register. We conclude Norton’s prior conviction of an equivalent offense coupled
with being informed of the statutory obligation to register is evidence of a willful
violation of the statutory registration requirements. We conclude the district court did
not err in denying Norton’s motion to dismiss.
III
[¶14] We affirm the judgment.
[¶15] Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Gerald W. VandeWalle, C.J.
6