Sex Offender Registration: TOBAR V. COM. (COA 10/12/2007)

TOBAR V. COM.
CRIMINAL: SEX OFFENDER REGISTRATION

2006-CA-001314
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; DIXON CONCURS & TAYLOR CONCURS IN RESULT ONLY
COUNTY: FAYETTE
DATE RENDERED: 10/12/2007

CA held that KRS 17.510(10), the statute requiring sex offenders to provide notification of an address change, is not unconstitutionally vague. CA rejected Tobar’s argument that whenever a registered sex offender becomes homeless and is without a physical address, that sex offender has automatically violated KRS 17.510(10) because said offender cannot comply with the statute’s registration requirement. In the 1990s, many states enacted sex offender registration statutes in response to the public outrage over children that had been abducted and sexually molested by convicted sex offenders. In 1994, the General Assembly enacted KRS 17.500 et seq., the Sexual Offender Registration Act. Over the years, the General Assembly has amended this statute several times to clarify it and strengthen its penalties. In Hyatt v. Commonwealth, 72 S.W.3d 566, 569 (Ky. 2002), the SC upheld the constitutionality of the statute.

To comport with the void for vagueness doctrine, a statute must 1) provide fair notice to those targeted by the statute, “by containing sufficient definiteness so that ordinary people can understand what conduct is prohibited,” and 2) it must have been drafted in such a way to discourage arbitrary and discriminatory enforcement. Here, the statute clearly states on its face that a registered sex offender must give notice, on or before the day, he or she has a change in residence. Thus, if a registered sex offender will have a change in residence and if he is contemplating not registering that change with the appropriate probation and parole officer, then the statute gives more than sufficient notice that such contemplated conduct is illegal. The record supports this conclusion. During the hearing and subsequent guilty plea, Tobar testified that he knew he was about to become homeless, and he admitted that he knew he should have contacted his probation and parole officer regarding the situation. Thus, there is no dispute that he knew he should have contacted his probation and parole officer. However, he conceded that he chose not to out of fear that he would be charged with violating KRS 17.510(10). This, in fact, happened, not because he was homeless but because he failed to give notice. Thus, his argument that the statute is void for vagueness is belied by his own inherent understanding of its requirement. If we were to adopt Tobar’s reasoning and declare KRS 17.510(10) unconstitutional, then homeless registered sex offenders would be exempt from the registration requirement found in KRS 17.500, et seq. This would encourage homelessness among registered sex offenders and ultimately defeat the statute’s purpose: the Commonwealth’s overwhelming interest in protecting the public from sex offenders. The General Assembly has decided that, as a matter of public policy, registered sex offenders must notify the appropriate legal authority when they experience a change in residence. Such public policy decisions fall within the legislature’s bailiwick, and we will not disturb such decisions lightly.

Digested by Scott C. Byrd
Olgin and Byrd

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