The opinion
Graham, J.
(dissenting). I conclude that the evidence was insufficient to support the defendant’s conviction; therefore, I dissent. 1
The Commonwealth alleged two things: that (a) on March 31, 2010, the defendant was not living at the address that he had provided to the Springfield police department, and (b) between March 31, 2010, and April 30, 2010, the defendant changed his address without notifying the authorities of the change.
The testimony at trial was that on March 31, 2010, the defendant met with Detective Tracy Duda of the Springfield police department’s sex offender registry unit for the purpose of fulfilling his obligation to register as a sex offender. At that time, the defendant and his girlfriend were staying with the girlfriend’s friend, Shatina Boyd, a tenant at 691 State Street, apartment 3L, in Springfield. 2 Duda helped the defendant fill out the sex offender registration form, reviewed the requirements with him, and read the requirements aloud to him. The defendant, a special education student who dropped out of school after repeating the seventh grade, was unable to read.
*42 The completed registration form contained several errors. The form listed the date of registration as the “third day of the 31st month” of 2010, and listed the defendant as Tony Johnson, a name that had been associated with the defendant in the past. Most importantly, the defendant’s address was listed, improperly, as 619 State Street, apartment 3L, instead of 691 State Street, apartment 3L.
Shortly after the defendant completed the registration form, he and his girlfriend were forced to leave 691 State Street because Boyd was evicted for having too many people and too much traffic in the apartment. 3 Boyd’s testimony regarding the date when the defendant left her apartment, though somewhat confusing and contradictory, is consistent with the defendant’s testimony that he was living at the apartment on March 31, 2010. 4
While the Commonwealth’s evidence showed that the defendant did not live at 619 State Street, the address on the form, the Commonwealth’s own witness, Boyd, substantiated that the numbers on the form were mistakenly reversed, by her testimony *43 that the defendant and his girlfriend had been staying at her apartment at 691 State Street. Thus, the evidence did not establish beyond a reasonable doubt that the defendant provided a false address. As to the question whether the defendant was living at Boyd’s apartment on March 31, 2010, the date the form was filled in, while the Commonwealth’s evidence established that the defendant was not living at Boyd’s apartment on April 8 and thereafter, it did not establish beyond a reasonable doubt that the defendant was not living at that address on March 31. See note 4, supra. When asked, “When is the last time he lived your residence?” Boyd responded, “I’ll say the end of March . . . .” Moreover, other than April 8, Boyd’s testimony in general as to time periods was based on estimates and attempted reconstructions, none of which is sufficient to establish beyond a reasonable doubt that the defendant was not living at that address on the date he signed the form. 5 The Commonwealth’s evidence thus was not sufficient to prove the charge of giving a false address beyond a reasonable doubt.
In his defense at trial the defendant testified that during the first part of April, he suffered a gunshot wound and, thereafter, became a material witness for the Hampden County district attorney’s office. He later testified as a Commonwealth witness before a Hampden County grand jury. During the time he was a material witness, for most of April, 2010, the defendant was in protective custody, living in a motel in Connecticut at the direction of a Hampden County assistant district attorney referred to by the defendant by name.
Finally, the defendant testified that, after he appeared before the grand jury as a Commonwealth witness, the district attorney’s office returned him to Springfield. After his return to Springfield, he was homeless and living on the street prior to his arrest on April 30, 2010, on the current charges. The defendant’s testimony on these key matters was essentially unchallenged.
Even if the Commonwealth’s evidence established that the *44 defendant failed to comply with the registration requirements, the Commonwealth has failed to make the necessary showing of criminal intent. 6 , 7 “Concerning whether the defendant ‘knowingly’ provided false information, G. L. c. 6, § 178H (a), does not require the Commonwealth to prove that a defendant intended to deceive the board, but the Commonwealth must prove that he knew the information was false.” Commonwealth v. Rosado, 450 Mass. 657, 662 (2008), citing Commonwealth v. Fondakowski, 62 Mass. App. Ct. 939, 940 (2005) (sufficient evidence that defendant knowingly provided false information to board where he had home in Northampton but placed “HOME-LESS” as his address and “Any-where I can live” as his city). On this record, the evidence was insufficient to prove beyond a reasonable doubt that the defendant knowingly provided false information about his residence or knowingly failed to provide notice of his intent to change his address.
Accordingly, I would reverse the conviction of failure to register as a sex offender and direct the entry of a judgment of not guilty on that charge. While the order finding a violation of probation and imposing sentence on the offense on which the violation of probation was found is not part of this appeal, in my view, because the conviction of failing to register in the present case, which I believe should be reversed, was one of the main bases for finding a violation of probation, the sentence imposed upon the revocation of probation should also be reconsidered.
The defendant was found guilty on the charge of failure to register as a sex offender, second offense, and, immediately thereafter admitted to a pending charge of violation of probation.
On the violation of probation charge, the judge sentenced the defendant on count one of the underlying indictment (on which the defendant had previously only been sentenced to probation) to a term of no less than three and one-half years, nor more than four and one-half years, to be served in State prison. On count two, the judge ordered the defendant to serve a concurrent sentence of between three and one-half and four and one-half years in State prison. On the new conviction of failure to register as a sex offender, the judge sentenced the defendant to five years’ probation, to be served from and after the committed portion of his sentences.
During the sentencing proceeding, the judge commented that the defendant had several times failed to comply with registration requirements but had not committed any new sex crimes in the last five years.
Neither the defendant nor his girlfriend paid Boyd any rent for staying at the apartment.
After Boyd was evicted, she moved in for several months with a friend who lived in a fourth-floor apartment at 691 State Street.
Boyd testified as follows:
Q.: “When did [the defendant] come to live with you?”
A.: “Around Christmas time.”
Q.: “And turning your attention to April 8th of 2010, did the defendant . . . live with you at that time?”
A.: “No. I got evicted.”
The court: “And when is the last time he lived at your residence?”
A.: “I’ll say the end of March, when it started getting nice out, he wasn’t living with me” (emphasis supplied).
Q.: “When you say that he was living back and forth,, did he stay with you every day of the week?”
A.: “Towards the end he was staying with me, and then he would leave and then he would come back. But I know he was with me from December to March.”
Further, given Boyd’s testimony that, “[a]t the end,” after the initial two- or three-month period the defendant was living with her, he was moving “back and forth,” plus the confusion as to the exact date the defendant moved out (see note 4, supra), the conclusion that he was not living at Boyd’s apartment on March 31 and that he knowingly gave a false address — facts the Commonwealth had to prove beyond a reasonable doubt — is even weaker.
The showing is insufficient when the evidence is evaluated at the close of the Commonwealth’s case, that is, regardless of whether the fact finder credited the defendant’s testimony. If the fact finder believed the defendant’s testimony, the sufficiency of the evidence on the element of intent becomes even more questionable.
With regard to the charge of failure to report a change of address, an additional question arises. General Laws c. 6, § 178E(/i), as appearing in St. 1999, c. 74, § 2, requires a sex offender “who intends to change his residence within a city or town” to provide notice “no later than ten days prior to establishing such new residence.” However, the defendant here, who was evicted and was homeless, apparently had not “establish[ed] [a] new residence.” General Laws c. 6, § 178FV2, provides that a homeless sex offender must appear at the local police department every thirty days to verify that the registration information is accurate. The date the defendant here would have been required to report to the police department to verify registration information was April 30, thirty days after the March 31 registration; however, that was the date he was arrested. Moreover, he was not tried under the theory that he failed to verify registration information thirty days after his March 31 registration.