MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2015 ME 55
Docket:   Was-14-145
Argued:   February 10, 2015
Decided:  May 7, 2015

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
Majority:    SAUFLEY, C.J., and MEAD, GORMAN, and HJELM, JJ.
Concurrence/
  Dissent: ALEXANDER and JABAR, JJ.



                               STATE OF MAINE

                                        v.

                            RONNIE L. REYNOLDS

SAUFLEY, C.J.

      [¶1] Ronnie L. Reynolds appeals from a judgment of conviction entered by

the Superior Court (Washington County, R. Murray, J.) after a jury found

Reynolds guilty of his second offense of failing to comply with the Sex Offender

Registration and Notification Act of 1999 (Class C), 34-A M.R.S. § 11227(2)

(2014). Reynolds is, by law, a lifetime registrant; however, he asserts that he was

led to believe that a 2004 amendment to SORNA changed his classification from a

lifetime registrant to a ten-year registrant. He contends that the court erred in

excluding relevant evidence of a letter from the Department of Public Safety, State

Bureau of Identification that caused him to believe that he was no longer required
2

to register. See 34-A M.R.S. § 11227(6) (2014). We agree that the court erred in

excluding the letter. We vacate the judgment and remand for further proceedings.

                                   I. BACKGROUND

        [¶2] Because multiple changes in Maine’s sex offender registration laws

affect individual offenders differently depending on the crimes for which they were

convicted and the date of sentencing, we briefly review the history as it affects

Reynolds. The original Sex Offender Registration Act (SORA) was enacted in

1991 and only applied to persons convicted of gross sexual assault of a victim who

was under sixteen years old at the time of the crime. See P.L. 1991, ch. 809, § 1

(effective June 30, 1992) (codified at 34-A M.R.S.A. §§ 11001-11004 (Supp.

1992)).

        [¶3] On June 28, 1993, approximately one year after SORA first took effect,

Reynolds was convicted of three counts of unlawful sexual contact (Class C),

17-A M.R.S.A. § 255(1)(C) (Supp. 1992), upon the entry of a nolo contendere

plea.     He was sentenced to five years’ imprisonment, with all but two years

suspended, and four years of probation to commence after the unsuspended term of

imprisonment. At the time, the crimes for which Reynolds was convicted did not

fall within the parameters of SORA, and thus he was not required to register as a

sex offender.
                                                                                 3

        [¶4] In 1995, the Legislature enacted the Sex Offender Registration and

Notification Act of 1995 (SORNA of 1995).           See P.L. 1995, ch. 680, § 13

(effective July 4, 1996) (codified at 34-A M.R.S.A. §§ 11101-11144 (Supp.

1996)). SORNA of 1995 slightly broadened the definition of “sex offender,” but

the new definition still did not include persons convicted of unlawful sexual

contact. See 34-A M.R.S.A. § 11103(5) (Supp. 1996). Moreover, SORNA of

1995 only applied to persons sentenced or placed in institutional confinement on or

after September 1, 1996. See 34-A M.R.S.A. § 11102 (Supp. 1996). Again,

Reynolds’s conviction did not trigger the registration requirements of SORNA of

1995, and thus he was not yet required to register as a sex offender.

        [¶5] In 1999, the Legislature enacted the Sex Offender Registration and

Notification Act of 1999 (SORNA of 1999), which took effect on September 18,

1999.    See P.L. 1999, ch. 437, § 2 (effective Sept. 18, 1999) (codified at

34-A M.R.S.A. §§ 11201-11227 (Pamph. 1999)).            SORNA of 1999 required

registration by offenders convicted of a much wider variety of offenses, which

were then defined as either “sex offenses” or “sexually violent offenses.” See

34-A M.R.S.A. § 11203(6), (7) (Pamph. 1999). A person who committed a “sex

offense” was categorized as a “sex offender” and was required to register for ten

years. See 34-A M.R.S.A. §§ 11203(5), (6), 11225(1) (Pamph. 1999). A person

who committed a “sexually violent offense” was categorized as a “sexually violent
4

predator” and was required to register for life. See 34-A M.R.S.A. §§ 11203(7),

(8), 11225(2) (Pamph. 1999). The crimes for which Reynolds had been convicted

in 1993 fell within the definition of “sexually violent offenses.”              See

34-A M.R.S.A. § 11203(7). SORNA of 1999’s reach was limited at that time,

however, to sex offenders or sexually violent predators sentenced on or after

September 18, 1999. See 34-A M.R.S.A. § 11202 (Pamph. 1999). Thus, the law

still had no effect on Reynolds.

      [¶6] It was not until eight years after his conviction that Reynolds became

subject to the requirements of SORNA of 1999 as a result of a 2001 legislative

amendment that applied the law retroactively to all persons sentenced for sex

offenses or sexually violent offenses on or after June 30, 1992, but before

September 18, 1999. See P.L. 2001, ch. 439, § OOO-11 (effective Sept. 21, 2001)

(codified at 34-A M.R.S.A. § 11222(2-A) (Pamph. 2001)). The 2001 amendment

required Reynolds to register with the Department of Public Safety, State Bureau

of Identification (SBI) as a sexually violent predator by September 1, 2002, unless

he was notified sooner of his duty to register by the SBI, the Department of

Corrections, or a law enforcement officer, in which case he was required to register

within ten days after he was provided notice. See 34-A M.R.S.A. § 11222(2-A).
                                                                                              5

Thus, as a result of the 2001 amendment, Reynolds became statutorily required to

register for the rest of his life. See id.; 34-A M.R.S. § 11203(7)(A), (8) (2014).1

       [¶7] In 2003, the Legislature again amended SORNA of 1999, effective in

2004. Among other things, it changed the names of the registration categories

from “sexually violent predators” and “sex offenders” to “lifetime registrants” and

“ten-year registrants.” See P.L. 2003, ch. 711, §§ C-12, C-15 (effective July 30,

2004) (codified at 34-A M.R.S.A. § 11203(5), (8) (Pamph. 2004)).                      Because

Reynolds had been previously classified as a “sexually violent predator,” see 34-A

M.R.S.A. § 11203(7)(A), (8)(A) (Pamph. 2003), the 2004 amendment changed his

classification to a “lifetime registrant.” The 2004 amendment affected only the

name of Reynolds’s classification; the scope of his duty to register—for the rest of

his life—remained the same.

       [¶8] In November 2005, Reynolds was charged by criminal complaint with

his first offense of failing to comply with SORNA of 1999 (Class D), 34-A M.R.S.

§ 11227(1) (2014). The complaint did not refer to Reynolds as a lifetime registrant

or a ten-year registrant—it simply referred to him as “a registrant.” In January

2006, Reynolds pleaded guilty to the charge and was sentenced to ten days in the

Washington County Jail.


  1
      In 2001, the Legislature repealed SORA and SORNA of 1995 in their entirety. See P.L. 2001,
ch. 439, § OOO-5 (effective Sept. 21, 2001).
6

          [¶9]     Over seven and a half years later, and more than ten years after

SORNA of 1999’s amendment in 2001 had triggered Reynolds’s duty to register,

in September 2013, Reynolds was charged by criminal complaint with his second

offense of failing to comply with SORNA of 1999 (Class C), 34-A M.R.S.

§ 11227(2). After a grand jury issued an indictment, Reynolds entered a not guilty

plea and proceeded to trial.

          [¶10] Before the trial began, Reynolds proffered for admission a letter that

he had received from the SBI in support of his affirmative defense of “just cause”

for failing to comply with his duty to register. See 34-A M.R.S. § 11227(6). For

purposes of the court’s preliminary evidentiary ruling, the parties stipulated that

Reynolds received the letter on or before July 30, 2004, the date when SORNA of

1999’s 2004 amendments took effect. See P.L. 2003, ch. 711, §§ C-13, C-14

(effective July 30, 2004) (codified at 34-A M.R.S.A. § 11203(6)(B), (7)(A)

(Pamph. 2004)). The letter explained the general reclassification of two types of

unlawful sexual contact provisions from offenses requiring lifetime registration to

offenses classified under the ten-year registration category.2 Although the letter


    2
        The content of the proffered letter was as follows:

          Dear Registrant:

                  This letter is to inform you of the new law changes that will be taking effect as of
          July 30, 2004 in regards to the Sex Offender Registry and Notification Act 1999 as
          amended.
                                                                                                      7

indicates that the affected crimes were unlawful sexual contact, Class D, rather

than unlawful sexual contact, Class C—the crime for which Reynolds was

convicted in 1993—Reynolds argued that, given the confusing nature of the letter,

he believed that he had been reclassified as a ten-year registrant, and therefore he

thought that his obligation to register had ended before 2013. He argued that he

should be allowed to present the letter to the jury in support of his affirmative

defense of just cause. The court disagreed and determined that the letter was not

relevant.

        [¶11] Reynolds stipulated to his 2006 conviction for failing to register

pursuant to SORNA of 1999 and a very brief trial was held. Reynolds testified at

trial that he failed to register in September 2013. No other evidence was presented

at trial as to whether Reynolds may have had just cause for failing to register, and

the jury was not instructed on the just cause affirmative defense. After a jury


            1.   It changed the names of registration categories from “sexually violent predators”
                 and “sex offenders” to “lifetime registrants” and “10-year registrants”.

            2.   It moves the 2 Class D unlawful sexual contact 17-A MRSA sec. 255.1.B., 17-A
                 MRSA sec. 255.1.D., 17-A MRSA sec. 255-A.1.C. and 17-A MRSA sec.
                 255-A.1.G. offenses that currently require lifetime registration to the 10-year
                 registration category.

                    Note: If you have been convicted of two different sex offenses that require 10
                    year registration, but each conviction has a different date of sentence, due to
                    the multiple offenses you will still be required to register as a lifetime
                    registrant.
                         **(This is not a change in the law).

(Emphasis in original.)
8

found Reynolds guilty, the court sentenced him to two years of incarceration, all

but sixty days suspended, and two years of probation. Reynolds timely appealed

pursuant to 15 M.R.S. § 2115 (2014) and M.R. App. P. 2(b)(2)(A).

                                II. DISCUSSION

      [¶12] SORNA of 1999 requires that any person convicted of a sexually

violent offense register with the SBI as a lifetime registrant.     34-A M.R.S.

§§ 11203(7)(A), (8)(A), 11222(2-A) (2014).        Included in the definition of

“sexually violent offense” is the offense for which Reynolds was originally

convicted—unlawful sexual contact (Class C). See 34-A M.R.S. § 11203(7)(A)

(defining “sexually violent offense” to include a conviction under former 17-A

M.R.S.A. § 255(1)(C)). Because Reynolds was sentenced for unlawful sexual

contact after June 30, 1992, but before September 18, 1999, he was statutorily

obligated to register with the SBI by September 1, 2002, unless he was notified

sooner of his duty to register by the SBI, the Department of Corrections, or a law

enforcement officer. See 34-A M.R.S.A. § 11222(2-A) (Pamph. 2001). Every

ninety days from his initial registration date, Reynolds is obligated to mail a

completed written verification form and a current photograph to the SBI; once
                                                                                                    9

every five years he must verify his registration information in person. See 34-A

M.R.S. § 11222(4-B) (2014).3

        [¶13] Failure to comply with SORNA of 1999 is a strict liability crime, see

34-A M.R.S. § 11227(4) (2014), meaning that the State is not required to prove a

culpable state of mind, see 17-A M.R.S. § 34(4-A) (2014).                           However, the

Legislature has provided that “just cause” is an affirmative defense to a failure to

comply with one’s registration duties pursuant to SORNA of 1999. See 34-A

M.R.S. § 11227(6).

       [¶14] Reynolds does not dispute that he did not register in September 2013.

He argues, however, that by 2013, he had just cause for failing to register based on

his interpretation of the letter from the SBI. Because the letter is relevant to

support his just cause affirmative defense, he argues, the court erred in excluding

the letter.

       [¶15]      “Just cause” for failing to register pursuant to 34-A M.R.S.

§ 11227(6) is not defined in the criminal code. Rather, “[w]hat constitutes just

cause in any given case is a matter that is left to the sound judgment of the jury.”

Cf. State v. Small, 2000 ME 182, ¶ 3, 763 A.2d 104.                            Important to our

consideration here, just cause “includes a requirement of reasonable belief similar

   3
     The first time a registrant fails to comply with SORNA of 1999’s requirements he or she commits a
Class D crime. See 34-A M.R.S. § 11227(1) (2014). A second offense results in a Class C crime. See id.
§ 11227(2).
10

to other justification defenses.” Id. ¶ 4. Thus, a defendant raising just cause as an

affirmative defense pursuant to 34-A M.R.S. § 11227(6) must prove, by a

preponderance of the evidence, that it was reasonable for him to believe that he had

a justifiable reason for failing to register. Cf. Small, 2000 ME 182, ¶ 4, 763 A.2d

104; see also 17-A M.R.S. § 101(2) (2014). Therefore, although the State is not

required to prove a culpable state of mind as an element of the crime, a defendant

charged with this offense is nonetheless entitled by statute to present a defense that

he reasonably believed that he was not required to comply with the registration

duties. To carry his burden, a defendant must be “accorded wide latitude to

present all evidence relevant to his defense.” State v. Garrett, 1998 ME 7, ¶ 5, 704

A.2d 393 (quotation marks omitted); see State v. Buchanan, 2007 ME 58, ¶ 8, 921

A.2d 159 (“A criminal defendant is entitled to admission of relevant evidence, and

the court’s choice to exclude relevant evidence is significantly limited.” (quotation

marks omitted)).

      [¶16] Relevant evidence is “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” M.R. Evid. 401.

“We review a trial court’s determination regarding the relevancy of evidence for

clear error.” Buchanan, 2007 ME 58, ¶ 8, 921 A.2d 159.
                                                                                  11

       [¶17] Reynolds’s receipt of the 2004 letter was evidence that, if the jury

believed Reynolds, tended to make it more probable that he reasonably believed he

had become a ten-year registrant and thus had a justifiable reason for not

registering in 2013—a fact that is of consequence to raising a just cause affirmative

defense. See Small, 2000 ME 182, ¶¶ 3-4, 763 A.2d 104. The letter, which may

have been difficult for someone without a legal background to fully understand,

explained that certain types of unlawful sexual contact crimes had been moved

from the lifetime registration category to the ten-year registration category. The

letter then listed four statutory provisions, all involving section 255, which is the

same section that Reynolds was convicted of violating in 1993. It is possible that a

fact-finder could find credible Reynolds’s assertion that he believed, reasonably,

that his classification had been changed.       Thus, the letter was relevant to

Reynolds’s affirmative defense and should have been admitted unless excluded on

some other ground.

      [¶18]   In excluding the letter, the court noted that the letter expressly

referred to changes in the law with respect to Class D unlawful sexual contact

provisions, whereas Reynolds was undisputedly convicted of Class C offenses in

1993. Further, the court noted that after Reynolds’s initial conviction, his receipt

of the letter, and his 2006 conviction, Reynolds fulfilled his registration

requirements through at least 2010. The court stated,
12

         [a]ll of [this] leads this [c]ourt to conclude that, as a matter of law, this
         evidence would not be a demonstration of just cause under the
         affirmative defense provisions of subsection 6; and as such, this
         particular exhibit . . . would have no other relevance and would not be
         admissible in the context of this trial.

         [¶19] The court’s reference to Reynolds’s continued registration through

2010 appears to support, rather than diminish, Reynolds’s just cause argument.

His obligation to register began, at the earliest, in late 2001, and, at the latest, on

September 1, 2002.            Had the 2004 amendment actually changed Reynolds’s

classification to a ten-year registrant, his obligation to register, by his count,4

would have continued after his conviction in 2006 and ended sometime in 2011 or

2012.

         [¶20] Thus, it appears that the court excluded the letter based on its own

credibility determination. It determined that Reynolds’s belief that the letter had

reclassified him as a ten-year registrant was not reasonable after considering the

contents of the letter and Reynolds’s subsequent actions. In so doing, the court

mistakenly acted as a fact-finder. See State v. Allen, 2006 ME 20, ¶ 26, 892 A.2d


     4
      Pursuant to SORNA of 1999, even if Reynolds had been reclassified as a ten-year registrant in 2004,
his obligation to register would have ended years before his second offense of failing to register in 2013.
Because Reynolds was sentenced for the initial conviction of unlawful sexual contact between June 30,
1992, and September 17, 1999, determining the date from which the ten-year period would have run—
whether it was from conviction, sentence, release, or some other event—would have been governed by
34-A M.R.S.A. § 11225(1)(B) (Pamph. 2004). Pursuant to section 11225(1)(B), the ten-year period for
Reynolds’s registration obligation would have been triggered when he was conditionally released from
incarceration—roughly, the summer of 1995. See id. Thus, had Reynolds been reclassified as a ten-year
registrant, his duty to register would actually have ended in the summer of 2005.
                                                                                   13

447 (“The weight to be given to the evidence and the determination of witness

credibility are the exclusive province of the jury.” (quotation marks omitted)); see

also Chenell v. Westbrook College, 324 A.2d 735, 737 (Me. 1974) (“The trial

[c]ourt may not substitute [its] judgment as to the credibility of witnesses for the

judgment of the jury.”).

         [¶21]   The letter, viewed in the light most favorable to Reynolds, is

sufficient for a jury to entertain a “reasonable hypothesis” that Reynolds had just

cause for failing to register pursuant to SORNA of 1999. See State v. Dyer, 2001

ME 62, ¶ 4, 769 A.2d 873 (providing that “a defense is in issue,” so as to warrant a

jury instruction on the defense, “if the evidence is sufficient to make the existence

of all facts constituting the defense a reasonable hypothesis for the fact finder to

entertain” (quotation marks omitted)). Thus, had the letter been admitted, the court

would have been called upon to instruct the jury on the affirmative defense of just

cause.

         [¶22] In short, had the letter been admitted in evidence and had Reynolds

offered testimony about the letter, it would have been for a jury to determine the

reasonableness of (1) Reynolds’s belief that the letter reclassified him as a ten-year

registrant and (2) his belief that the ten-year registration period had expired, thus

amounting to just cause for failing to register.      To the extent that the court

determined that Reynolds’s purported reliance on the letter was not believable, the
14

court made a credibility determination that should have been made by the jury. See

Allen, 2006 ME 20, ¶ 26, 892 A.2d 447. The court’s exclusion of the letter as

irrelevant was clearly erroneous.

      The entry is:

                      Judgment vacated.      Remanded    for   further
                      proceedings.




ALEXANDER, J. and JABAR, J., concurring in part and dissenting in part.

      [¶23] We concur that we must vacate the judgment of conviction in this

appeal. However, on remand we would order entry of judgment for Reynolds.

      [¶24] The Court’s opinion accurately demonstrates that Ronnie Reynolds’s

offenses were committed and he was convicted and sentenced for those offenses at

a time before the sanctions and costs imposed by the Sex Offender Registration

and Notification Act (SORNA), 34-A M.R.S. §§ 11203, 11222 (2014), and its

prior versions were part of criminal sentencing or were later amended to become

“civil” sanctions applied to his offenses.

      [¶25] However, as we wrote in Doe I v. Williams, 2013 ME 24, ¶¶ 85-103,

61 A.3d 718 (Silver, J., dissenting), application of the SORNA requirements is a

punitive sanction that constitutes punishment for violation of laws.     As such,

after-the-fact application of the SORNA sanctions and costs to enhance the
                                                                                  15

penalties originally available for Reynolds’s offenses is violative of the

prohibitions on ex post facto application of penalty enhancements contained in

article I, section 11 of our Maine Constitution and article I, section 9 of the U.S.

Constitution. See Doe I, ¶¶ 87-103. Rather than repeat that analysis here, we

incorporate those paragraphs of Doe I by reference into this opinion.

        [¶26] Because application of SORNA to enhance the penalties originally

imposed on Reynolds is violative of the prohibitions on ex post facto laws in our

state and federal constitutions, we would vacate the conviction and remand for

entry of judgment for the defendant.



On the briefs:

        James T. Lawley, Esq., Lipman & Katz, P.A., Augusta, for appellant Ronnie
        L. Reynolds

        Carletta Bassano, District Attorney, and Paul Cavanaugh II, First Asst. Dist.
        Atty., Prosecutorial District VII, Ellsworth, for appellee State of Maine


At oral argument:

        James T. Lawley, Esq., for appellant Ronnie L. Reynolds

        Paul Cavanaugh II, First Asst. Dist. Atty., for appellee State of Maine

Washington County Superior Court docket number CR-2013-161
FOR CLERK REFERENCE ONLY
