State v. Miller ( 2019 )

459
Submitted July 31, 2018, reversed November 6, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JERRY ALLEN MILLER,
Defendant-Appellant.
Curry County Circuit Court
16CR36960; A163589
454 P3d 14
Defendant appeals from a judgment of conviction for one count of failure to
report as a sex offender, ORS 163A.040(1)(d) (2015). He contends that the trial
court erred by denying his motion for judgment of acquittal because, in his view,
the state failed to prove that he had established a new residence. Held: The trial
court erred. No evidence was offered to show that defendant established any
sort of permanent living arrangement (beyond a sojourn) as required by State v.
Lafountain, 299 Or App 311, 327, 451 P3d 246 (2019), thus requiring a factfinder
to speculate as to whether defendant had established a new residence.
Reversed.
Jesse C. Margolis, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jamie K. Contreras, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Mooney, Judge.
MOONEY, J.
Reversed.
460 State v. Miller
MOONEY, J.
Defendant appeals from a judgment of conviction
for one count of failure to report as a sex offender, ORS
163A.040(1)(d) (2015),1 contending that the trial court erred
by denying his motion for judgment of acquittal. On appeal,
he argues that the state failed to prove that he had estab-
lished a new residence as required by State v. Hiner, 269
Or App 447, 450, 345 P3d 478 (2015) (“[D]uty to report is
triggered only after a sex offender has both left the former
residence and acquired a new one.”). In light of our recent
decision in State v. Lafountain, 299 Or App 311, 327, 451
P3d 246 (2019) (the term residence “refers to a place where
a person is settled beyond just a transient visit or sojourn”),
we agree with defendant and reverse.
Under ORS 163A.040(1)(d) (2015), “[a] person who
is required to report as a sex offender * * * and who has
knowledge of the reporting requirement commits the crime
of failure to report as a sex offender” if, among other things,
the person fails to report a change of residence within 10
days. Defendant stipulated below that he is a person who is
required to register as a sex offender and that he had knowl-
edge of the reporting requirements. Therefore, the only dis-
puted issue is whether defendant changed his residence and
thereafter failed to timely report the new address.
When reviewing the denial of a motion for judgment
of acquittal, “we view the evidence in the light most favor-
able to the state to determine whether a rational factfinder
could have found the elements of the offense beyond a rea-
sonable doubt.” State v. Harper, 296 Or App 125, 126, 436
P3d 44 (2019). We describe the pertinent facts consistently
with that standard.
In June 2016, defendant was homeless and liv-
ing in his van with a registered “[r]esidential [a]ddress” of
“[o]ff 101 up Carpenterville [Road] slightly” in Brookings,
Oregon. Logs kept by park rangers at the Harris Beach
State Park (approximately one and one-half miles away
1
That statute was amended in 2017. Or Laws 2017, ch 418, § 1. The 2017
amendments apply to conduct occurring on or after the effective date of the
amendments and are not at issue in this case.
Cite as 300 Or App 459 (2019) 461
from the Carpenterville Road location) reflect that defen-
dant’s van was present in the park’s rest area every night
and every morning for a 16-day period, from May 31 to
June 16, 2016. Defendant was arrested two days later, on
June 18, 2016, and subsequently charged with failure to
report as a sex offender based on his 16-day stay at Harris
Beach State Park.
At trial, Ranger Liles testified that the rest area
was designed for short term, transient use by travelers and
that park rules prohibit individuals from remaining in the
rest area for more than 12 hours in a 24-hour period and
from staying there for more than three nights in a row. She
further testified that, during the 16-day period in question,
she observed defendant spend his days sitting in his van at
the day use area of the park (leaving his van at times to use
the restroom) and his nights “across the street at the rest
area.” Defendant testified that the Harris Beach rest area
was never “intended to be a permanent spot.” At the time of
his arrest on June 18, 2016, defendant was no longer staying
at Harris Beach State Park.
As we explained in Hiner, 269 Or App at 450, in
a prosecution for failure to report as a sex offender under
ORS 163A.040(1)(d) (2015), the state must prove both that
the individual has left his or her “former residence and
acquired a new one.” In Lafountain, 299 Or App at 327,
we clarified that, in order to establish that an individual
“acquired” a new residence, the state must prove that the
person was “settled beyond just a transient visit or sojourn.”
Evidence that a person was simply passing through, visit-
ing, or spending limited time at a place other than his or her
registered residence would not, without more, be sufficient.
In our view, the evidence in the record before us
was not sufficient to allow a rational factfinder to conclude
that defendant acquired a new residence at Harris Beach
State Park within the meaning of ORS 163A.040(1)(d) (2015)
as interpreted in Lafountain. It is undisputed that his stay
there was temporary, only 16 days in a location that was
designed for short-term, transient use. Significantly in this
context, by the time of defendant’s arrest he had already
moved on to an unidentified location. No evidence was
462 State v. Miller
offered to show that defendant established any sort of per-
manent living arrangement (beyond a sojourn) at the park/
rest area. The factfinder would be required to speculate
as to whether defendant had established a new residence
within the first six days of his stay at the park/rest area to
trigger the reporting requirement (i.e., within 10 days).
The trial court erred by denying defendant’s motion
for judgment of acquittal. We, therefore, reverse.
Reversed.