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State v. Burbey

Court of Appeals of Arizona, Second Division

August 31, 2016

The State of Arizona, Appellee,
v.
Lynn Lavern Burbey, Appellant.

         Appeal from the Superior Court in Pima County No. CR20144529001 The Honorable Scott Rash, Judge.

          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.

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Howard and Judge Staring concurred.

          OPINION

          ESPINOSA, 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 Sheriffs 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 sheriffs 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 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 Sheriffs 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 sheriffs 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 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.

         ¶6The 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] 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 ...


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