Harris v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Frank and McClanahan
Argued at Richmond, Virginia

IVAN LEANDER HARRIS
OPINION BY
v. Record No. 3046-07-2 JUDGE ROBERT P. FRANK
MARCH 4, 2009
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge

Jessica M. Bulos, Assistant Appellate Defender (Office of the
Appellate Defender, on briefs), for appellant.

Alice T. Armstrong, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.

Ivan Leander Harris, appellant, was convicted, in a bench trial, of failing to re-register as

a sex offender, in violation of Code § 18.2-472.1(B). On appeal, he contends the trial court erred

(1) in admitting into evidence an affidavit pursuant to Code § 18.2-472.1(D), arguing his Sixth

Amendment right to confrontation was violated, and (2) in finding the evidence sufficient to

convict. For the reasons stated, we affirm his conviction.

BACKGROUND

Appellant was convicted of attempted sexual assault in the Superior Court for Fairbanks,

Alaska in 1993. On May 26, 2006, appellant was convicted in the City of Petersburg General

District Court of a misdemeanor failure to register as a violent sex offender. That conviction

order provided, inter alia, “[Defendant] shall register on or before June 2, 2006 and re-register

every 90 days.”
 Over appellant’s objection, the trial court accepted into evidence an affidavit from

Virginia State Police Lieutenant William J. Reed, custodian of the records for the Virginia State

Police Sex Offender Registry. The affidavit averred, “The records of the Virginia Department of

State Police, show that no Sex Offender Registration (Re-registration) form (SP-236A) have [sic]

been filed for [Ivan L. Harris] between March 27, 2007 to June 19, 2007.” Appended to the

affidavit were a number of other documents including certified copies of appellant’s registration

history with the Department.

Attached to the affidavit was a Department of State Police re-registration and address

registration form dated May 4, 2007, sent to appellant by certified mail, return receipt requested

and accepted by appellant on May 5, 2007. The re-registration form advised appellant that he

was required to “verify the information on this form, with your signature, thumbprints and date.

This form must be received at the Department of State Police on or before May 28, 2007 to be in

compliance with your duty to re-register.” The form further advised: “Failure to comply with

the registration required is punishable as a Class 1 misdemeanor or a Class 5 or 6 felony.”

Appellant did not re-register until June 20, 2007, when State Trooper Jeff Bradford

contacted him as part of his investigation into appellant’s failure to re-register. Trooper Bradford

personally registered appellant on that date.

At trial, appellant objected to the admission of the affidavit as a violation of his Sixth

Amendment right of confrontation.1

1
While the Attorney General indicates in his brief that it is not clear whether appellant
objected only to the actual affidavit or to the affidavit and the documents attached thereto, it is
clear from the record that appellant’s objection was to the affidavit and attachments. The
affidavit and attachments were offered into evidence as one exhibit.

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 The trial court rejected appellant’s right of confrontation argument, comparing the

introduction of this affidavit with the admissibility of “DNA evidence and forensic evidence

from the lab.” The trial court further found the evidence sufficient to convict.

This appeal follows.

ANALYSIS

State Police Affidavit

Appellant first contends the affidavit violated his Sixth Amendment right of

confrontation as articulated in Crawford v. Washington, 541 U.S. 36 (2004). He argues that:

(1) the affidavit is testimonial; (2) no evidence indicates the affiant was unavailable to testify;

and (3) he had no opportunity to cross-examine the affiant. 2 We conclude an affidavit prepared

by the Virginia Department of State Police (Department) reflecting the records kept by the

Department as mandated by statute is not “testimonial” in nature. For the following reasons,

introduction of such an affidavit at trial does not violate appellant’s right to confrontation under

the Sixth Amendment.

First, we must review the statutory basis for the Department’s maintenance of a sex

offender registry. Code § 9.1-900 establishes the legislative purpose of Chapter 9, The Sex

Offender & Crimes Against Minors Registry Act §§ 9.1-900 through 9.1-922. The stated

purpose is “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.

2
Contentions (2) and (3) are not controverted.

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 Code § 9.1-904(B) requires any person who has previously been convicted of a sexually

violent offense 3 and has been convicted of a violation of Code § 18.2-472.1 (failure to register or

re-register) shall re-register with the Department every thirty days from the date of conviction. 4

Reregistration means the person has notified the State Police,
confirmed his current physical and mailing address and electronic
mail address information, any instant message, chat or other
Internet communication name or identity information that he uses
or intends to use, and provided such other information, including
identifying information, which the State Police may require.

Code § 9.1-904.

Code § 19.2-390.1 requires the Department to keep and maintain a Sex Offender &

Crimes Against Minors Registry, separate and apart from all other records maintained by it.

The Department is charged with the duty to investigate a failure to register or re-register.

As part of its statutory duty, if a warrant for failure to register or re-register has been issued:

The State Police shall forward to the jurisdiction an affidavit
signed by the custodian of the records that such person failed to
comply with the duty to register or re-register. Such affidavit shall
be admitted into evidence as prima facie evidence of the failure to
comply with the duty to register or re-register in any trial for the
violation of Code § 18.2-472.1.

Code § 9.1-907(A).

Finally, Code § 18.2-472.1 creates a Class 6 felony for a sexually violent offender who

fails to register or re-register as required by Article 9. The same statute addresses the

introduction of an affidavit:

At any trial pursuant to this section, an affidavit from the State
Police issued as required in § 9.1-907 shall be admitted into

3
Appellant does not contest that he was convicted of a sexually violent offense as
defined in Code § 9.1-902(E).
4
Despite the thirty-day registration interval as required by statute, the Department
required appellant to re-register every ninety days. The record does not disclose the reason for
this discrepancy.

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 evidence as prima facie evidence of the failure to comply with the
duty to register or re-register and a copy of such affidavit shall be
provided to the registrant or his counsel seven days prior to hearing
or trial by the attorney for the Commonwealth.

Code § 18.2-472.1(D). 5

In arguing that the affidavit was testimonial, appellant maintains that the statement

contained in the affidavit, namely, that appellant failed to re-register with the sex offender

registry, is clearly the type of statement that the declarant would reasonably expect to be used

prosecutorially. Appellant reasons that pursuant to Crawford, the statement was “made under

circumstances which would lead an objective witness reasonably to believe that the statement

would be available for use at a later trial.” 541 U.S. at 52. Moreover, contends appellant,

because the underlying Department records are created in anticipation of litigation, the

Department is not a “neutral repository.” The Commonwealth responds that while the affidavit

may have been prepared with an eye towards litigation, the underlying records are not prepared

in anticipation of litigation. We agree with the Commonwealth.

For the reasons discussed herein, we conclude that the dispositive issue is not whether the

affiant might reasonably expect that the document will be used in litigation, rather the issue is

whether the affiant generated the document in the regular course of business and reported facts

already in existence. Such is clearly the case here.

5
Code § 18.2-472.1(E) now provides:

The accused in any hearing or trial in which an affidavit from the
State Police issued as required in § 9.1-907 is admitted into
evidence pursuant to this section shall have the right to call the
custodian of records issuing the affidavit and examine him in the
same manner as if he had been called as an adverse witness. Such
witness shall be summoned and appear at the cost of the
Commonwealth.

This provision was not in effect when appellant was tried. It became effective July 1, 2008. See
2008 Va. Acts, c. 218.

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 The admissibility of evidence lies within the discretion of the trial court, and we review

its decisions only for abuse of discretion. Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988). However, whether appellant’s due process right of confrontation was

violated is a question of law and is reviewed de novo. Michels v. Commonwealth, 47 Va. App.

461, 465, 624 S.E.2d 675, 678 (2006).

This Court recently held that an affidavit prepared by the Virginia State Police in

compliance with Code § 9.1-907(A) is non-testimonial. Dickens v. Commonwealth, 52 Va. App.

412, 663 S.E.2d 548 (2008), petition for appeal refused, Record No. 081702 (Va. Dec. 29, 2008).

Although the ultimate challenge in Dickens was an alleged violation of a Fourteenth Amendment

due process right to confrontation, this Court used a Sixth Amendment right to confrontation

analysis in applying the Fourteenth Amendment right to confrontation. Dickens’ reasoning is

sound, and we therefore adopt the analysis of Dickens in holding that the state police affidavit in

question here is not testimonial in nature. 6

In deciding Dickens, this Court considered our previous decisions in Jasper v.

Commonwealth, 49 Va. App. 749, 754, 644 S.E.2d 406, 409 (2007) (holding the Sixth

Amendment right of confrontation does not apply to business records), and Michels v.

Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006) (holding that a certificate

from the Secretary of the State of Delaware concerning the absence of corporate registration was

not testimonial).

In Michels, 47 Va. App. 461, 624 S.E.2d 675, we held the certificate was not testimonial

for two reasons. First:

the certificates are not by their nature accusatory and do not
describe any criminal wrongdoing of appellant. Rather they are a

6
Appellant argues that the Sixth Amendment right to confrontation analysis in Dickens,
52 Va. App. 412, 663 S.E.2d 548, is dicta. We need not address this argument because we adopt
and incorporate that same analysis here.
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 neutral repository of information that reflects the objective results
of a search of public records . . . . [They] certif[y] that a search has
been conducted and particular records do not exist.

Id. at 469-70, 624 S.E.2d at 680. Second, the documents do not resemble ex parte

communications. Id. at 470, 624 S.E.2d at 680. While the certificates were requested by a law

enforcement officer, the reports were prepared in a non-adversarial setting. Id. The Court also

noted:

The Ninth Circuit considered the admissibility of a certificate of
nonexistence of record and noted that while the certificate was
prepared in anticipation of litigation, an issue addressed by
Crawford, “the document [the] certification addresses is part of a
class of documents that were not prepared for litigation.” United
States v. Cervantes-Flores, 421 F.3d 825, 833 (9th Cir. 2005).

Id. (alteration in original).

In Jasper, 49 Va. App. 749, 644 S.E.2d 406, we concluded that a Division of Motor

Vehicles driving transcript “was generated as a result of a request by law enforcement personnel

for a search of certain public records.” Id. at 757, 644 S.E.2d at 411. “[T]he person completing

the certification was the custodian of the records searched, and the underlying records were not

created in anticipation of the litigation in which a summary of their contents was offered into

evidence.” Id. We found no violation of the defendant’s right of confrontation.

As in Dickens, Jasper, and Michels, “the affidavit in question here is a document

‘establishing the existence or absence of some objective fact, rather than detailing the criminal

wrongdoing of the defendant.”’ Dickens, 52 Va. App. at 419, 663 S.E.2d at 551 (quoting Jasper,

49 Va. App. at 755, 644 S.E.2d at 410). It was prepared in a non-adversarial setting, and is not

“accusatory.” The affiant simply generated the document from objective facts already in

existence. The sex offender registry is a “neutral repository of information that reflects the

objective results of a search of public records.” Michels, 47 Va. App. at 469, 624 S.E.2d at 680.

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The information contained in the affidavit simply summarizes the official registry of the

Department of State Police, such registry being mandated by Code § 19.2-390.1.

Appellant attempts to distinguish Jasper and Michels by suggesting that the affidavit in

this case was created for use in a prosecution. Appellant argues the main purpose behind the

creation of the sex offender registry is to ensure compliance and to hold individuals criminally

accountable for their non-compliance. We reject this argument. The stated purpose of the

registry is to protect the community from repeat offenders and to safeguard children by

preventing sexual offenders from working directly with children. Code § 9.1-900. Nothing in

the statute suggests that the registry itself is penal in nature. Indeed, if appellant had complied

with the statute there would be no criminal implication.

Appellant again attempts to distinguish Jasper and Michels because the records in those

cases were not maintained by law enforcement agencies, whereas the records here are maintained

by the Department of State Police. We reject appellant’s argument because, as noted, the

analysis is not who maintains the records, rather, the emphasis is on the underlying purpose for

the preparation of the records.

Finally, appellant claims that in comparing Code § 18.2-472.1 to Code § 19.2-187.1, the

trial court overlooked a “significant distinction” between the two statutes, namely, that

Code § 18.2-472.1, as it existed at the time of trial, provided no statutory right to confrontation

whereas Code § 19.2-187.1 provides that the accused “shall have the right to call the person

performing such analysis or examination or involved in the chain of custody as a witness therein,

and examine him in the same manner as if he had been called as an adverse witness.” While the

legislature in 2008 added the provision to the statute that the defendant may subpoena the

custodian of the records as an adverse witness, this later amendment does not alter the trial

court’s Crawford analysis. The trial court correctly found that the affidavit in question here is

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not testimonial, thus, the appellant was not entitled to a Sixth Amendment right to confrontation

under these circumstances. The fact that the legislature statutorily created a vehicle to confront a

witness does not mean that an accused has a heightened constitutional right of confrontation

under the Sixth Amendment. A state can apply stricter standards by interpretations of its own

Constitution or by statute, Penn v. Commonwealth, 13 Va. App. 399, 407, 412 S.E.2d 189, 193

(1991), but states are bound by the United States Supreme Court’s interpretation of the United

States Constitution. Indeed, “state courts will not be the final arbiters of the important issues

under the federal Constitution.” Minnesota v. National Tea Co., 309 U.S. 551, 557 (1940). We

find no merit to appellant’s argument.

Sufficiency of the Evidence

Appellant contends the evidence was insufficient to support the conviction for failure to

re-register as a sex offender. More precisely, appellant argues that without evidence of

appellant’s initial registration date, the trial court was unable to conclude that appellant was

required to re-register by May 28, 2007. 7

When faced with a challenge to the sufficiency of the evidence, we “presume the

judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly

wrong or without evidence” to support it. Kelly v. Commonwealth, 41 Va. App. 250, 257, 584

S.E.2d 444, 447 (2003) (en banc) (citations omitted). A reviewing court does not “‘ask itself

whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’”

Stevens v. Commonwealth, 46 Va. App. 234, 249, 616 S.E.2d 754, 761 (2005) (en banc)

(quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)) (emphasis in original), aff’d, 272 Va.

481, 634 S.E.2d 305 (2006). We ask only whether “‘any rational trier of fact could have found

7
The first affidavit the Commonwealth attempted to introduce into evidence proved an
initial registration date of June 2, 2006. This document was ruled inadmissible by the trial court
due to a violation Brady v. Maryland, 373 U.S. 63 (1963).
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the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Kelly, 41 Va. App.

at 257, 584 S.E.2d at 447). ‘“This familiar standard gives full play to the responsibility of the

trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” Kelly, 41 Va. App. at 257-58, 584

S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). Thus, we do not “substitute our judgment for

that of the trier of fact” even if our opinion were to differ. Wactor v. Commonwealth, 38 Va.

App. 375, 380, 564 S.E.2d 160, 162 (2002).

It is undisputed that the Petersburg General District Court convicted appellant of

misdemeanor failing to register and ordered appellant to register as a sex offender by June 2,

2006. We underscore that Code § 9.1-904(A) requires that appellant re-register every ninety

days from the date of registration; it does not require appellant to re-register every ninety days

from his last re-registration. Thus, appellant’s initial registration date firmly established the

subsequent dates upon which he was responsible for re-registering. The undisputed evidence

proved that appellant was required to re-register by May 28, 2007. Logic dictates that if

appellant was required to re-register, he would have necessarily registered at some previous point

in time. Beginning with May 28, 2007 and counting backwards in intervals of ninety days, we

compute the following dates: February 27, 2007, November 29, 2006, August 31, 2006, and

June 2, 2006. Thus, it is a logical inference that appellant registered, as directed, on June 2,

2006.

Based upon our calculation, the evidence proved that appellant initially registered on

June 2, 2006 and that he was required to re-register on May 28, 2007, yet neglected to do so until

June 20, 2007. Therefore, the evidence was sufficient to find him guilty of failing to re-register.

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 CONCLUSION

For the foregoing reasons, we find that admission of the state police affidavit did not

violate appellant’s Sixth Amendment right to confrontation. Additionally, the evidence was

sufficient to find appellant guilty of failing to re-register as a sex offender. Accordingly,

appellant’s conviction is affirmed.

Affirmed.

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