CAV: No “similar” offense needed for “sexually violent” label

Because the defendant had been required by the State of Idaho to register with the state’s sex-offender and crimes-against-minors registry, Virginia law classifies him as a sexually violent offender who must re-register every 90 days.

Background

In 2004, Appellant Thomas Turner, then 21 years old, was convicted in Idaho of “sexual abuse of a child under the age of 16,” pursuant to Idaho Code § 18-1506, and was required to register there as a sex offender. Turner moved to Virginia in 2016 and registered as a sex offender at Virginia State Police headquarters. In March 2016, the State Police sent Turner a letter stating that his Idaho offense had been classified as “sexually violent,” but the letter was returned unclaimed. However, at a change-of-address visit to State Police headquarters on March 25, 2016, Turner acknowledged in writing that he had been classified a a sexually violent offender. As such, he acknowledged being required to re-register every 90 days pursuant to Code § 9.1-904(A).

Turner returned to State Police 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 90 days.

On May 25, 2016, Turner visited State Police headquarters to re-register in advance of his June 1, 2016 re-registration date and to report a change of employment, again acknowledging his classification.

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 until September 7, 2016. On October 27, 2016, upon questioning from a state trooper, Turner stated that he had re-registered, but 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.

At trial, Turner objected to the sufficiency of the evidence, contending that the Commonwealth failed to prove that his Idaho conviction was “similar” to a Virginia crime constituting a sexually violent offense. Finding that the Idaho statute was in fact substantially similar to a violent sexual offense in Virginia, the trial court convicted Turner of the charged offense, and this appeal followed.

Sexually violent offense

The sole issue presented on appeal is whether Turner was required to re-register as a violent sex offender every 90 days pursuant to Code § 9.1-904(A). In arguing that he was not, Turner relies heavily on Johnson v. Commonwealth, 53 Va. App. 608 (2009). But the defendant in Johnson was not required to register as a sex offender where he was convicted in North Carolina, so 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. The trial court erred in relying on the substantial similarity of the Virginia and Idaho statutes in making its decision.

Per § 9.1-902(F), a “sexually violent offense” 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. This language is clear that if a person is convicted in another jurisdiction of an offense requiring him to register, Virginia classifies him as a sexually violent offender, and he is required to re-register every 90 days pursuant to § 9.1-904(A).

Turner’s Idaho conviction order, entered into evidence at trial without objection, proved that he was convicted of sexual battery of a child age 16 or under and was 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 and that he was required to re-register every 90 days, including multiple times in writing at the State Police headquarters. After March 25, 2016, all State Police documents signed by Turner have the phrase “VIOLENT SEX OFFENDER” at the top of the page.

Despite relying on the wrong subsection of the statute, the trial court reached the right result in finding Turner guilty. He knowingly failed to re-register as a violent sex offender on or before August 30, 2016. Therefore, he was properly convicted under Code § 18.2-472.1(B).

Affirmed.

Turner v. Commonwealth, Record No. 0826-17-2, Apr. 17, 2018. CAV (Chafin), from Richmond City Cir. Ct. (Rupe). Lauren Whitley for Appellant; Leah A. Darron for Appellee. VLW No. 018-7-096, 7 pp.