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State v. Holsclaw

Court of Appeals of Oregon

July 19, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL DUANE HOLSCLAW, Defendant-Appellant.

          Argued and submitted March 16, 2016

         Tillamook County Circuit Court 13CR08512 Mari Garric Trevino, Judge.

          Matthew Blythe, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Jacob R. Brown, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Carson L. Whitehead, Assistant Attorney General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Duncan, Judge pro tempore. [*]

         [286 Or. 791] Case Summary:

         Defendant, a designated predatory sex offender, paid to use the showers in a YMCA facility on seven occasions. For that conduct, defendant was convicted after a bench trial of seven counts of unlawfully being in a location where children regularly congregate, ORS 163.476. On appeal, defendant argues that the trial court erred in entering convictions on all counts because the evidence was insufficient to establish that defendant entered a "premises where persons under 18 years of age regularly congregate" under ORS 163.476(2)(a), which is defined to include "places where persons under 18 years of age gather for regularly scheduled educational and recreational programs." Held: The trial court did not err. First, viewing the evidence in the light most favorable to the state, a reasonable trier of fact could conclude that the relevant "premises" was the YMCA as a whole, not the particular area accessed by defendant. Second, because there was evidence that the YMCA hosted scheduled children's programming throughout every day of the week, a reasonable trier of fact could conclude that defendant violated ORS 163.476 even though, on all but one occasion, he was present in the YMCA during hours when no children's programming was scheduled.

         Affirmed.

         [286 Or. 792] GARRETT, J.

         Defendant, a designated predatory sex offender, used the public shower facilities in a YMCA building on multiple occasions. For that conduct, he was charged with seven counts of unlawfully being in a location where children regularly congregate, ORS 163.476 (2013), amended by Or Laws 2015, ch 820, § 17.[1] Defendant was convicted after a bench trial. On appeal, he argues that the court should have entered a judgment of acquittal on each count because the evidence was insufficient to show that the location used by defendant-the YMCA shower facility- qualified as a "premises where persons under 18 years of age regularly congregate" as defined in ORS 163.476(2)(a). For the reasons explained below, we conclude that, a reasonable trier of fact could find that, the relevant "premises" was the YMCA building as a whole, not a particular area within it. Further, under a proper construction of the statute, a reasonable factfinder could conclude that defendant violated the statute even though his presence at the YMCA was mostly during times when children's programs were not scheduled. Accordingly, the trial court did not err, and the judgment is affirmed.

         When a defendant's challenge to the legal sufficiency of the state's evidence depends upon the meaning of the statute defining the offense, we review the trial court's construction of the statute for legal error. State v. Hunt. 270 Or.App. 206, 210, 346 P.3d 1285 (2015) (so stating with respect to the denial of a motion for a judgment of acquittal); see also State v. Morgan. 361 Or. 47, 51-52, 388 P.3d 1085 (2017) (reasoning that, in a bench trial, a challenge to the sufficiency of evidence made in closing argument is considered "the functional equivalent of a motion for judgment of acquittal" on review). Then, based on the proper construction of the statute, we view the evidence in the light most favorable to the state to determine whether a rational fact-finder could have found the elements of the offense beyond a reasonable doubt. See Hunt, 270 Or.App. at 209. We state the facts in accordance with that standard.

         [286 Or. 793] The Board of Parole and Post-Prison Supervision designated defendant as a "predatory sex offender" under former ORS 181.585 (2011), renumbered as ORS 181.838 (2013), repealed by Or Laws 2015, ch 820, § 36. After his release on parole from prison, defendant was supervised by Tillamook County Community Corrections. During their first meeting, defendant's parole supervisor specifically advised him that, due to a condition of his parole, he was not allowed to enter the Tillamook County YMCA because minors "congregate" there.[2]

         Two weeks after being released, defendant was without housing. An employee of the Salvation Army informed defendant that there were showers available for use at the YMCA during certain hours of the day. The employee referred defendant to a nonprofit organization that provided YMCA shower vouchers to people in need. Defendant was offered a voucher, but he declined, explaining that he could not use the facilities at the YMCA because he could not be around minors.

         Nevertheless, during the months in which defendant was homeless, he went to the YMCA seven times to use the shower facilities. On six of the occasions, he arrived between 5:30 and ...


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