and submitted March 16, 2016
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.
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.
DeVore, Presiding Judge, and Garrett, Judge, and Duncan,
Judge pro tempore. [*]
Or. 791] Case Summary:
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.
Or. 792] GARRETT, J.
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. 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.
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.
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
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.
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 ...