Lee v. Board of Parole ( 2022 )

471
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted January 27, affirmed December 29, 2022
JOHNNIE LEE,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A173975
Mark J. Geiger filed the brief for petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the brief for respondent.
Before James, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
472 Lee v. Board of Parole
EGAN, J.
Petitioner seeks review of an order of the Board of
Parole and Post-Prison Supervision (the board) denying his
petition, pursuant to ORS 163A.125(1), for relief from sex
offender registration. Under ORS 163A.115(2) and an imple-
menting provision, OAR 255-087-0020(3)(b)(A), the board
concluded that petitioner was not “eligible for relief from the
obligation to report as a sex offender.” ORS 163A.115(2). We
affirm.
In 1992, after a guilty plea, petitioner was con-
victed of the North Carolina crime of second-degree sexual
offense, currently codified as NC Gen Stat § 14-27.27. When
he moved to Oregon in 2002, he was entered into Oregon’s
sex-offender registry and became obligated to report as
a sex offender. In 2019, pursuant to ORS 163A.125(1), he
petitioned for relief from the obligation to report as a sex
offender. The board concluded that petitioner’s conviction
for second-degree sexual offense, NC Gen Stat § 14-27.27,
was an “equivalent crime,” OAR 255-087-0020(3)(b)(A), to
the Oregon crime of first-degree sodomy, ORS 163.405, or
first-degree unlawful sexual penetration, ORS 163.411.
Consequently, the board concluded, petitioner was ineligible
for relief from the obligation to report as a sex offender.
Petitioner seeks judicial review. Petitioner’s argu-
ments on review are narrow. He does not assert that OAR
255-087-0020(3)(b)(A) improperly expands the list of crimes
that disqualify a petitioner from relief from the reporting
requirement. He does not address what standard the board,
or we, should apply to determine whether an out-of-state
conviction is for an “equivalent crime” to one or more of the
crimes listed in ORS 163A.115(2). And he does not raise any
argument about elements of NC Gen Stat § 14-27.27, ORS
163.405, or ORS 163.411 that are not expressly stated in the
statutes themselves. That is, petitioner’s arguments about
equivalence are narrowly focused on a few of the words of
the statutes; he does not raise any arguments based on judi-
cial interpretations of those words or elements that may be
implicit in the statutes but are not expressly stated.
Petitioner raises three contentions. First, he contends
that the board erred in focusing on the facts that led to his
Nonprecedential Memo Op: 323 Or App 471 (2022) 473
conviction—which were never adjudicated or admitted—
rather than focusing on the crime of conviction itself. We
reject that argument because, in its administrative review
response, the board was clear that its analysis was focused
on the crime of conviction, not the underlying facts. Second,
he argues that it is impossible to recover the text of the
North Carolina statute, and its related definition provision,
as they existed in 1992, when petitioner was convicted, and,
consequently, that the board did not, and never can, accu-
rately compare the North Carolina statute to Oregon stat-
utes. We reject that argument for two reasons. First, it is not
impossible to find the 1992 text of the North Carolina stat-
ute.1 Second, to the extent that petitioner is arguing that the
board erred in applying the current version of the statute,
that argument is not preserved; before the board, petitioner
contended that the board should apply the current version of
the statute.
Third, and finally, petitioner argues that the ele-
ments listed in the text of ORS 163.405, first-degree sodomy,
and ORS 163.411, first-degree unlawful sexual penetration,
“are different ‘enough’ from the presumed North Carolina
offense, that it creates substantial doubt as to whether the
Oregon offenses are similar to the North Carolina offense
of conviction, or whether the North Carolina offense is more
closely aligned with [third-degree] sexual abuse,” a misde-
meanor that would not disqualify petitioner from relief from
the reporting requirement. Again, we emphasize that peti-
tioner’s arguments are narrowly focused on a few of the ele-
ments of the statutes that are explicitly stated in the text.
His arguments do not raise any question of what additional
elements may apply based on other statutes or judicial
interpretation.
Although, as noted above, petitioner has not iden-
tified any method by which the textual elements should be
1
Even in the absence of the correct version of a state’s statutory compilation,
one can learn what a statute said on a given date by consulting the statute’s
enactment and amendment history, which is listed in the statutory compilation,
and looking at each of the listed bills in the state’s session laws. See, e.g., NC
Laws 1979, ch 682, § 1; NC Laws 1979, ch 1316, § 1; NC Laws 1981, ch 63, § 179
(enacting, and then amending, former NC Gen Stat § 14-27.5 (1992), renumbered
as NC Gen Stat § 14-27.27 (1995)), ncleg.gov/Laws/SessionLaws (accessed Dec 2,
2022).
474 Lee v. Board of Parole
compared, we will assume, without deciding, that the “close
element matching” approach articulated by the Supreme
Court in State v. Carlton, 361 Or 29, 42, 388 P3d 1093 (2017),
and elaborated in State v. Guzman/Heckler, 366 Or 18, 20,
455 P3d 485 (2019), applies.
Petitioner makes two arguments about the text
of NC Gen Stat § 14-27.27 as compared to the text of ORS
163.405 and ORS 163.411. First, he contends that the
North Carolina statute addresses different sexual acts from
Oregon’s first-degree sodomy statute, ORS 163.405. NC Gen
Stat § 14-27.27 prohibits certain “sexual act[s].”2 “Sexual
act” is defined as “[c]unnilingus, fellatio, analingus, or anal
intercourse, but does not include vaginal intercourse. Sexual
act also means the penetration, however slight, by any
object into the genital or anal opening of another person’s
body. It is an affirmative defense that the penetration was
for accepted medical purposes.” NC Gen Stat § 14-27.20(4).
ORS 163.405, first-degree sodomy, can apply if a
person “engages in oral or anal sexual intercourse with
another person or causes another to engage in oral or anal
sexual intercourse.” “Oral or anal sexual intercourse” is
defined as “sexual conduct between persons consisting of
contact between the sex organs of one person and the mouth
or anus of another.” ORS 163.305(3).
Petitioner asserts that “sodomy I requires sexual
intercourse, unlike the North Carolina law.” However, peti-
tioner fails to consider the definition of “oral or anal sexual
intercourse,” which defines the relevant sexual conduct for
first-degree sodomy as “contact between the sex organs of one
person and the mouth or anus of another.” ORS 163.305(3).
2
NC Gen Stat § 14-27.27 provides, as follows:
“(a) A person is guilty of second degree forcible sexual offense if the per-
son engages in a sexual act with another person:
“(1) By force and against the will of the other person; or
“(2) Who has a mental disability or who is mentally incapacitated or
physically helpless, and the person performing the act knows or should rea-
sonably know that the other person has a mental disability or is mentally
incapacitated or physically helpless.
“(b) Any person who commits the offense defined in this section is guilty
of a Class C felony.”
Nonprecedential Memo Op: 323 Or App 471 (2022) 475
That definition does not include vaginal intercourse or any
other act that the North Carolina statute omits. Contrary
to petitioner’s argument, the statutes’ treatment of sexual
intercourse does not meaningfully distinguish them from
each other.
Second, we understand petitioner to argue that first-
degree unlawful sexual penetration, ORS 163.411, does not
prohibit the same conduct as NC Gen Stat § 14-27.27 because
the Oregon statute applies to penetration by “any object
other than the penis or mouth of the actor,” ORS 163.411(1),
whereas the North Carolina statute simply prohibits pene-
tration by “any object,” NC Gen Stat § 14-27.20(4). Petitioner
is correct that, in that instance, the North Carolina statute
is broader in scope than Oregon’s first-degree unlawful sex-
ual penetration statute, standing alone.
However, here, the additional conduct that peti-
tioner identifies as being covered by the North Carolina
offense—penetration by the mouth or penis of the actor3 —
is entirely covered by Oregon’s first-degree sodomy statute,
which treats that conduct as equally serious (both offenses
are Class A felonies). See Guzman/Heckler, 366 Or at 38 (“A
difference in statutory elements that is confined to conduct
that, although not proscribed in the same statute, is never-
theless proscribed and treated with the same or greater
level of seriousness in Oregon is not likely to be a difference
that will preclude the foreign offense from being a close ele-
ment match.”). Thus, the difference in scope that petitioner
has identified does not demonstrate any error in the board’s
reasoning.
Finally, to any extent to which petitioner argues
that ORS 163.405’s inclusion of age-based provisions means
that it is meaningfully different from NC Gen Stat § 14-27.27
because it proscribes conduct that the North Carolina stat-
ute does not, the Supreme Court has rejected that view.
Guzman/Heckler, 366 Or at 37 n 7 (“When a foreign offense
differs from an Oregon offense only because it is narrower,
3
As petitioner points out in his earlier argument, the North Carolina defi-
nition of “sexual act,” NC Gen Stat § 14-27.20(4), specifically excludes vaginal
intercourse, so the North Carolina statute covers penetration by any object of a
“genital or anal opening of the body” except vaginal penetration by a penis.
476 Lee v. Board of Parole
that difference will not preclude the offense from being a
close element match.”).
Affirmed.