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State v. Chandler

Court of Appeals of Oregon

September 6, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DOUGLAS WAYNE CHANDLER, Defendant-Appellant.

          Argued and submitted September 27, 2017

          Tillamook County Circuit Court 15CR58298 D. Charles Bailey, Jr., Judge.

          Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Reversed.

         Case Summary: Defendant appeals a judgment of conviction for failure to report as a sex offender, ORS 163A.040(1)(g). The charge arose because defendant refused to sign a sex-offender registration form on the day that he was released from prison. On appeal, defendant argues that he did not violate the statute because the statute allows up to 10 days following release for the form to be signed. Held: The trial court erred in in determining that defendant violated the statute because the plain language of ORS 163A.040 and ORS 163A.010 allows up to 10 days for the registration form to be signed.

         Reversed.

         [293 Or.App. 706] GARRETT, J.

         Defendant appeals a judgment of conviction for failure to report as a sex offender, ORS 163A.040:[1] he refused to sign a sex-offender registration form on the day that he was released from prison. On appeal, defendant argues that he did not violate the statute by refusing to sign on the day of his release because the statute allows 10 days following release for the form to be signed. We agree, and reverse.

         The relevant facts are undisputed. In 2012, defendant was convicted of first-degree encouraging child sexual abuse, ORS 163.684, and second-degree encouraging child sexual abuse, ORS 163.686, and sentenced to prison. Those convictions required him to report as a sex offender "[w]ithin 10 days following discharge, release on parole, post-prison supervision or other supervised or conditional release." ORS 163A.010(2), (3)(a)(A).[2]

         When he was eventually released in 2015, defendant was taken to an Oregon State Police (OSP) center and instructed to complete the sex-offender reporting process. Defendant provided some of the information necessary for reporting, but refused to sign the registration form that was required to complete the process. Nielsen, who was assigned to help defendant, advised him to sign the form and explained that refusal to do so would "be a new crime." Defendant still refused to sign. As a result, he was charged with failure to report as a sex offender under ORS 163A.040(1)(g) (a person required to report as a sex offender must "sign the sex offender registration form as required"). Defendant was convicted after a bench trial.

         On appeal, defendant argues that, under the plain language of the statute, a person cannot violate the reporting and registration requirement until 10 days elapse following [293 Or.App. 707] "discharge, release on parole, post-prison supervision or other supervised or conditional release."

         The state responds, first, that defendant's statutory construction argument is not preserved because defendant did not make the argument at trial that he makes on appeal. We disagree. The correct interpretation of the statute was placed in issue by the prosecution and was discussed and expressly ruled upon by the trial court. The state concedes as much, and does not argue that the prosecution had an inadequate opportunity to argue the issue or that the record would have developed differently had defendant objected to the state's argument. Under those circumstances, we consider the purposes of the preservation requirement to have been served. See Peeples v. Lampert,345 Or. 209, 219-20, 191 P.3d 637 (2008) (purposes of the preservation requirement are to (1) apprise the trial court of a party's position such that it can consider and rule on it, (2) ensure fairness to the opposing party by avoiding surprise and allowing that party to address all issues raised, and (3) foster full development of the record); see also, e.g., State v. Roberts,291 Or.App. 124, 129-31, 418 P.3d 41 (2018) (issue was preserved for appeal even though the defendant "never took an explicit position on that issue below," where "the trial court raised the * * * issue sua sponte, and *** the issue was extensively discussed, briefed, and ruled on"); State v. Spears,223 Or.App. 675, 681, 196 P.3d 1037 (2008) (the defendant's argument on ...


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