State of Arizona v. Lynn Lavern Burbey

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
LYNN LAVERN BURBEY,
Appellant.
No. 2 CA-CR 2015-0300
Filed August 31, 2016
Appeal from the Superior Court in Pima County
No. CR20144529001
The Honorable Scott Rash, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Colby Mills, Assistant Attorney General, Phoenix
Counsel for Appellee
Dean Brault, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
STATE v. BURBEY
Opinion of the Court
OPINION
Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Howard and Judge Staring concurred.
E S P I N O S A, Judge:
Introduction
¶1 After a jury trial, convicted sex offender Lynn Lavern
Burbey was found guilty of failing to report his change of address in
violation of A.R.S. § 13-3822(A). On appeal, he argues the trial court
erroneously instructed the jury both on his obligation to report his
whereabouts and his intent to commit the offense, violating his due
process rights and requiring that his conviction be vacated. Because
we conclude the jury instructions accurately stated the law as to the
reporting obligation § 13-3822(A) imposes on sex offenders who
become homeless, and because no fundamental error resulted from
the lack of a mens rea instruction, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to
sustaining the jury’s verdict. State v. Dann, 205 Ariz. 557, n.1, 74
P.3d 231, 236 n.1 (2003). Upon his release from prison in an
unrelated matter, Burbey registered as a sex offender with the Pima
County Sheriff’s Office pursuant to the requirements of A.R.S. § 13-
3821. Burbey listed as his address the halfway house in Tucson
where he resided while he completed his term of community
supervision. After his discharge from the halfway house five
months later, Burbey became homeless. He did not notify the
sheriff’s department after leaving the halfway house, nor did he
update his residential status as a transient, within seventy-two hours
as provided by § 13-3822(A).
¶3 In October 2014 a Tucson Police Department officer
questioned Burbey outside a convenience store. Burbey informed
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STATE v. BURBEY
Opinion of the Court
the officer he was homeless and living in the area, and admitted he
had not yet reported his change of residence as required. Several
days later Burbey was again contacted by a Tucson police detective,
at which time he again acknowledged knowing that he needed to
report his change in residential status and that he still had not done
so. Burbey was arrested and subsequently indicted for failing to
give notice of a change of address, a class four felony in violation of
§ 13-3822(A).
¶4 At trial, the jury heard evidence from the Pima County
Sheriff’s Department employee who had registered Burbey upon his
release from prison, the officer who had spoken with him outside
the convenience store in October 2014, and the detective who had
arrested him several days later. Burbey did not introduce any
evidence, but argued in closing that despite his admissions about
failing to notify the sheriff’s department after he left the halfway
house, he had complied with the requirements of the statute by
informing the officers he came in contact with that he was homeless
and living in the area. Burbey was convicted as noted above and
sentenced to a mitigated seven-year prison term. We have
jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A)(1).
Sex Offender Registration
¶5 Section 13-3822(A) requires registered sex offenders,
within seventy-two hours of “moving from the person’s residence,”
to “inform the sheriff in person and in writing of the person’s new
residence [or] address.” The statute also imposes on individuals
without permanent residences a duty to register with the sheriff “as
a transient not less than every ninety days.” Id.1 Because Burbey
1The relevant portion of § 13-3822(A) provides:
Within seventy-two hours, excluding
weekends and legal holidays, after moving
from the person’s residence within a
county or after changing the person’s
name, a person who is required to register
under this article shall inform the sheriff in
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STATE v. BURBEY
Opinion of the Court
became homeless when he left the halfway house and had no
residence or “new mailing address to register with the sheriff,” he
argues he was only obliged to register as a transient every ninety
days. The trial court, however, instructed the jury that registered
sex offenders must report a change of residence within seventy-two
hours, which Burbey argues was a misstatement of the law
constituting fundamental error.
¶6 The state initially argues that, because Burbey requested
the instruction he now contests, he invited the error and may not
challenge the instruction on appeal. See, e.g., State v. Logan, 200 Ariz.
564, ¶ 9, 30 P.3d 631, 632-33 (2001) (noting appellate courts will not
find reversible error where complaining party invited the error).
Both Burbey and the state submitted alternative jury instructions
regarding the elements of the offense, and the trial court
incorporated elements of each into the instruction it read to the jury.2
person and in writing of the person’s new
residence, address or new name. If the
person moves to a location that is not a
residence and the person receives mail
anywhere, including a post office box, the
person shall notify the sheriff of the
person’s address. If the person has more
than one residence or does not have an
address or a permanent place of residence,
the person shall register as a transient not
less than every ninety days with the sheriff
in whose jurisdiction the transient is
physically present.
Section 13-3822(D) defines “residence” as “the person’s
dwelling place, whether permanent or temporary.”
2The final jury instruction read as follows:
The crime of failure to notify change
of address requires proof that the
defendant: 1. is required to register; and
2. moved; and 3. failed to notify in writing
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STATE v. BURBEY
Opinion of the Court
Because the portion of the instruction Burbey challenges was
requested by the state, we conclude Burbey did not invite the error.
See id. ¶ 11 (noting purpose of invited error doctrine is to prevent a
party from injecting error in the record and profiting from it on
appeal); State v. Thues, 203 Ariz. 339, n.2, 54 P.3d 368, 369 n.2
(App. 2002) (refusing to apply invited error doctrine where record
did not reflect which party proposed stipulation which was source
of error); cf. Gaston v. Hunter, 121 Ariz. 33, 41, 588 P.2d 326, 334
(App. 1978) (finding acceptance of ruling with “uncharacteristic
acquiescence and meekness” did not rise to the level of invited
error). Burbey’s acquiescence to the jury instruction, however,
requires that we review only for fundamental error. See State v.
Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 617 (2009) (jury instructions
not objected to at trial reviewed for fundamental error).
Fundamental error is that which goes to the foundation of the case,
error that takes away a right essential to the defense, or error of such
magnitude that the defendant could not have possibly received a
fair trial. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607
(2005).
¶7 The state alternatively argues that the language of § 13-
3822(A) “plainly manifests the legislative intent to require all
changes to a permanent address—including going from a house to
being homeless—be reported within [seventy-two] hours,” and
imposes on homeless sex offenders an additional, rather than
superseding, obligation “to inform the sheriff’s department of his or
and in person the Sheriff of Pima County
within seventy-two hours of moving. If a
person who is required to register has more
than one residence or does not have a
permanent place of residence, the person
shall provide a description and physical
location of any temporary residence and
shall register as a transient not less than
every ninety days with the sheriff in whose
jurisdiction the transient person is
physically present.
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STATE v. BURBEY
Opinion of the Court
her continued presence in the county every ninety days.” Burbey
argues to the contrary, asserting such an interpretation makes “little
sense” because the residential status of homeless offenders remains
“uncertain” and “subject to change,” and “[u]nder the plain
language of the statute” Burbey was required only to “register his
homeless status every [ninety] days.”
¶8 In addressing competing interpretations of a statute, we
first look to its text and intent. See State v. Simmons, 225 Ariz. 454,
¶ 7, 240 P.3d 279, 280 (App. 2010). When the plain text of the statute
is clear and unambiguous, there is no need to resort to other
methods of statutory interpretation to determine the legislature’s
intent. State v. Christian, 205 Ariz. 64, ¶ 6, 66 P.3d 1241, 1243 (2003).
Burbey argues that § 13-3822(A), as applicable to sex offenders,
“plainly” covers two classes of individuals—those with residences
who change their residence, and those who are homeless—and he
points out the statute imposes a different time requirement on each
of these classes: seventy-two hours for persons who change
residences, and ninety days for homeless persons. But there is no
basis for assuming these provisions are mutually exclusive, nor does
Burbey offer any, and his interpretation is at odds with common
sense. Under the statute, the action of “moving” from a registered
residence triggers the seventy-two hour notification requirement,
whether the destination is permanent or temporary. And the
separate requirement that a homeless person “register as a transient
not less than every ninety days” does not, by its plain terms, apply
to, contradict or modify the requirement of informing the sheriff of
the initial “move” within seventy-two hours.
¶9 But even if we were to assume, arguendo, that the
statute’s language is susceptible to confusion, the standard tools of
statutory interpretation would refute Burbey’s claims. If a statute is
subject to more than one reasonable interpretation, courts will
consider “the context of the statute, the language used, the subject
matter, its historical background, its effect and consequences, and its
spirit and purpose.” State ex rel. Polk v. Campbell, 239 Ariz. 405, ¶ 5,
372 P.3d 929, 930 (2016), quoting Ariz. Citizens Clean Elections Comm’n,
234 Ariz. 322, ¶ 11, 322 P.3d 139, 142 (2014). A review of the
statutory history here reveals no previous exceptions to the
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STATE v. BURBEY
Opinion of the Court
change-of-residence reporting obligation. Since the first sex offender
registration duty was codified in 1951, all persons required to
register under the statute have been compelled to “promptly inform
the sheriff” of a change in address. See 1951 Ariz. Sess. Laws,
ch. 105, § 1. In 1995, an explicit ten-day grace period was provided,
1995 Ariz. Sess. Laws, ch. 257, § 4, which was replaced in 2001 with
the current seventy-two hour requirement, 2001 Ariz. Sess. Laws,
ch. 109, § 3.3 A 2005 amendment clarified that formal notification
was required for anyone who changes their “residence,” not just
their address, and defined residence broadly as “the person’s
dwelling place, whether permanent or temporary.” 2005 Ariz. Sess.
Laws, ch. 282, § 4. A 2006 amendment added the requirement that
homeless individuals report their transient status not less than every
ninety days, but left in place the requirement that “moving” from a
registered address be reported within seventy-two hours. 2006 Ariz.
Sess. Laws, ch. 184, § 2. Finding no exceptions to the longstanding
requirement that the sheriff be promptly notified of address
changes, there is no basis for imputing one not explicitly adopted by
the legislature. See Greenlee County v. Laine, 20 Ariz. 296, 299, 180 P.
151, 152 (1919) (generally, where no exception articulated in statute,
“none will be made by mere implication or construction”).
¶10 Second, statements of legislative intent support the
conclusion that § 13-3822 requires prompt notification of all changes
in residence. See, e.g., Estate of Braden ex rel. Gabaldon v. State, 228
Ariz. 323, ¶ 8, 266 P.3d 349, 351 (2011) (goal in interpreting statutes
is to give effect to the intent of the legislature). Indeed, the 2001
amendment, replacing the previous ten-day reporting period with
the current seventy-two hours, was made “because of the difficulty
in tracking transients for registration purposes.” S. Judiciary Comm.
Minutes, 45th Leg., 1st Reg. Sess. (Ariz. Mar. 30, 2001). As our
supreme court has observed, the legislature’s “overriding purpose”
in enacting Arizona’s sex offender registration statutes is to
“facilitat[e] the location of child sex offenders by law enforcement
personnel.” State v. Noble, 171 Ariz. 171, 178, 829 P.2d 1217, 1224
3The seventy-two hour grace period excludes weekends and
legal holidays. § 13-3822.
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STATE v. BURBEY
Opinion of the Court
(1992); see also Ariz. Dep’t of Pub. Safety v. Superior Court, 190 Ariz.
490, 495, 949 P.2d 983, 988 (App. 1997) (finding “ample indication”
state legislature “intended to protect communities” through sex
offender registration and community notification statutes). 4
Requiring that all changes to registered addresses be communicated
within seventy-two hours best comports with the stated goal of the
statutory scheme.
¶11 Burbey points out that a purpose of the 2006
amendment adopting the ninety-day reporting period was to ease
compliance for homeless persons. Indeed, while the amendment
was being debated, the House sponsor recognized the burdensome
obligation on individuals without a permanent residence, explaining
that the amendment “arose because of the challenge of homeless sex
offenders complying with the registration laws,” and that “[i]t
creates a way for them to stay in compliance.” H. Judiciary Comm.
Minutes, 47th Leg., 2d Reg. Sess. (Ariz. Mar. 3, 2006).
¶12 Emphasizing that policy, Burbey argues “the
registration of every particular location at which an offender is
regularly present is not feasible, and would lead to multiple and
often meaningless registrations.” He further asserts, “[a] transient
offender may occupy many locations on a more or less regular basis
during the course of a day, week, or month,” and “a good faith
effort to comply with the literal terms of the statute would clog the
registration system.” But that argument is unfounded because
nothing in the statute requires that a homeless person re-register
“every particular location,” but only a change from a previously
registered address. See § 13-3822. For the same reason, we reject
Burbey’s contention, based on the same premise, that the statute is
4 A similar sentiment was echoed by Governor Janet
Napolitano following her approval of the 2006 amendment,
explaining that the purpose of requiring “[s]ex offenders without a
physical address . . . to register every 90 days, rather than annually”
was because “frequent registration requirements will give law
enforcement a better idea of where they can be found on a regular
basis.” Governor’s Message, 47th Leg., 2d Reg. Sess. (Ariz. Sept. 21,
2006).
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STATE v. BURBEY
Opinion of the Court
unconstitutionally vague. And he points to no evidence, nor makes
any persuasive argument, that requiring individuals who leave a
registered address to notify the sheriff that they have become
homeless would “clog” the registration system.
¶13 Most importantly, Burbey’s interpretation would
contravene the legislative intent that communities be protected by
tracking the whereabouts of sex offenders as closely as reasonably
practicable. See Noble, 171 Ariz. at 178, 829 P.2d at 1224 (purpose of
registration statute to facilitate location of sex offenders); Ariz. Dep’t
of Pub. Safety, 190 Ariz. at 495, 949 P.2d at 988 (sex offender
registration is a means of protecting communities); State v. Lammie,
164 Ariz. 377, 382-83, 793 P.2d 134, 139-40 (App. 1990) (sex offender
registration is investigative tool for law enforcement), disagreed with
on other grounds by State v. Peek, 219 Ariz. 182, 195 P.3d 641 (2008).
Notwithstanding any policy of facilitating compliance by homeless
individuals, interpreting the 2006 amendment as Burbey suggests
would allow an individual who becomes homeless after residing at a
registered address to essentially “slip through the cracks” and
disappear from law enforcement surveillance until that person
registers as a transient, up to ninety days later. Such a reading
clearly contravenes the fundamental purpose of the statutory
scheme. See A.R.S. § 1-211(B) (“Statutes shall be liberally construed
to effect their objects and to promote justice.”); cf. State v. Pinto,
179 Ariz. 593, 596, 880 P.2d 1139, 1142 (App. 1994) (“When statutory
language gives rise to different interpretations . . . we will adopt the
interpretation that is most harmonious with the statutory scheme
and legislative purpose.”).
¶14 Accordingly, we conclude that § 13-3822(A), while
imposing on homeless registrants a reporting obligation not less
than every ninety days so long as the person remains homeless, also
plainly requires that all registrants, including those who become
homeless, notify the sheriff, in person and in writing, within
seventy-two hours of moving from a previously registered address.
Because the trial court’s jury instruction accurately stated the law’s
reporting requirement, there was no error.
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STATE v. BURBEY
Opinion of the Court
Knowledge as Element of Offense
¶15 Burbey next argues that the lack of a mens rea
requirement in the jury instruction “omitted an essential element of
the offense resulting in fundamental error” depriving him of his due
process rights. He specifically contends that “U.S. Supreme Court
and Arizona case law requires a culpable mental state for status
offenses such as failure to register,” and argues that omitting that
element from the offense of failure to notify a change of address
renders it a “strict liability crime,” which “goes to the foundation of
the case,” requiring reversal. Burbey concedes, however, that
because he did not object at trial, we review for fundamental error.
See State v. Fimbres, 222 Ariz. 293, ¶ 36, 213 P.3d 1020, 1030
(App. 2009).
¶16 As previously noted, fundamental error is that which
“goes to the foundation of [the] case, takes away a right that is
essential to [the] defense, and is of such magnitude that [defendant]
could not have received a fair trial.” Henderson, 210 Ariz. 561, ¶ 24,
115 P.3d at 608. Under fundamental error review, an appellant must
also establish prejudice. Id. ¶ 20. We review issues of law
underlying jury instructions, however, de novo. State v. Hausner,
230 Ariz. 60, ¶ 107, 280 P.3d 604, 627 (2012).
¶17 Section 13-3822(A) lists no mental state for a violation of
its provisions. Under such circumstances, the Arizona Legislature
has provided that “no culpable mental state is required for the
commission of such offense . . . unless the proscribed conduct
necessarily involves a culpable mental state.” A.R.S. § 13-202(B).
Statutory registration requirements, however, are one context where
reviewing courts have under certain circumstances required proof of
a mens rea to sustain a conviction. See, e.g., Lambert v. California, 355
U.S. 225, 229-230 (1957) (reversing conviction for failing to register as
a felon where actual knowledge of duty to register was not shown);
State v. Garcia, 156 Ariz. 381, 384, 752 P.2d 34, 37 (App. 1987)
(overturning failure to register as sex offender conviction where
record devoid of evidence of actual knowledge of duty to re-
register).
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STATE v. BURBEY
Opinion of the Court
¶18 Citing Garcia and Lambert, Burbey asserts “there is no
meaningful distinction” between the offense of failing to register as
a sex offender and the offense of failing to update registration
information for which he was convicted. He argues that “while he
knew registration was required, he did not know exactly what was
required of him to comply with the statute.” He thus contends the
holding of Garcia, which applied an actual knowledge requirement
for a violation of the initial registration requirement under § 13-3821,
should be extended to require the same mens rea element for § 13-
3822 violations. See Garcia, 156 Ariz. at 383, 752 P.2d at 36. The state
responds that “the Legislature purposefully created strict liability”
for § 13-3822 offenses, and asserts that Burbey’s “neglect and
inaction in this case is precisely the type of conduct deemed
appropriate for strict liability,” citing cases from several other
jurisdictions.5
¶19 We note that the reporting obligation imposed by § 13-
3822 implicates a much different situation than those addressed in
Garcia and Lambert. To violate § 13-3822, one must have already
completed the initial registration pursuant to § 13-3821. And that
procedure typically conveys notice of the requirements of § 13-3822.
Indeed, evidence introduced at Burbey’s trial showed that at the
time he registered, he was informed both in writing and verbally of
the ongoing obligations of a registered sex offender, including the
reporting duties codified in § 13-3822. Thus, the lack of notice and
knowledge dispositive to the holdings in Garcia and Lambert is
absent here.
¶20 That being the case, we need not resolve whether the
absence of a mens rea requirement in § 13-3822 or corresponding
5 See, e.g., State v. T.R.D., 942 A.2d 1000, 1020 (Conn. 2008)
(concluding “the crime of failing to comply with the sex offender
registry requirements is a strict liability offense”); State v. Abshire,
677 S.E.2d 444, 449 (N.C. 2009) (failure to notify sheriff of sex
offender’s change of address constitutes strict liability offense);
see also People v. Patterson, 708 N.Y.S.2d 815, 818 (N.Y. Crim. Ct. 2000)
(applying strict liability to failure-to-register offenses provided sex
offender has been given notice of his obligation to register).
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STATE v. BURBEY
Opinion of the Court
instructions to the jury may be violative of due process. See State v.
Rios, 225 Ariz. 292, ¶ 12, 237 P.3d 1052, 1056 (App. 2010) (we avoid
deciding constitutional issues when appeal can be resolved on
narrower grounds). Even if the jury here was not instructed on an
element of the offense, Burbey has not shown any prejudice.
See Neder v. United States, 527 U.S. 1, 8-9 (1999) (instructional error on
element of offense subject to harmless error review); Henderson,
210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607 (where no objection at trial,
defendant must establish prejudice); State v. Hunter, 142 Ariz. 88, 90,
688 P.2d 980, 982 (1984) (appellant must demonstrate how faulty
jury instruction prejudiced him, even where constitutional violations
alleged).
¶21 The record contains overwhelming evidence of
Burbey’s awareness of his obligations as a registered sex-offender
and how to comply with them. See State v. Gallegos, 178 Ariz. 1, 11,
870 P.2d 1097, 1107 (1994) (no prejudice given “[o]verwhelming
evidence in the record” of defendant’s knowledge and intent). In
particular, Burbey initialed provisions on his original registration
document that stated “I understand upon changing my residence
and/or my name within the county, I am required to inform the
Sheriff of the county in person within seventy-two (72) hours,” and
“I understand that if I do not have an address or permanent place of
residence (homeless), I must register my physical location (i.e.
crossroads) every 90 days with the Sheriff in whose jurisdiction I am
physically present.” The sheriff’s department employee who had
registered Burbey testified that he “specifically” tells registrants that
“the only reason why they have to come into us is if they change
their address.” He further clarified the obligation “to come to us”
includes “going from an actual address to a homeless situation”
which is made “clear” to the registrants.
¶22 Further, when Burbey was contacted by law
enforcement officers, he admitted, on two separate occasions, that he
had failed to notify the sheriff’s department as required, and
expressly acknowledged to the first officer his duty to report his
change of residence within 72 hours. Contrary to his argument on
appeal, Burbey presented no evidence, and there is none in the
record, to support his claim that he was unaware of the statute’s
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STATE v. BURBEY
Opinion of the Court
specific requirements, how to comply with them, or that he had
believed acknowledging those requirements to law enforcement
officers fulfilled his reporting duty. Thus, neither the lack of, nor the
giving of, a mens rea instruction would have influenced the verdict
or caused Burbey any prejudice, and cannot constitute fundamental
error in this case.
Conclusion
¶23 For the foregoing reasons, we conclude that § 13-3822
requires registered sex-offenders who become homeless to notify the
sheriff within seventy-two hours of moving from their registered
address. And, when a registrant has notice and is aware of this
obligation, any due process concern based on whether the statute
creates a strict liability offense cannot form the basis for
fundamental error. Accordingly, Burbey’s conviction and sentence
are affirmed.
13