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State v. Lafountain

Court of Appeals of Oregon

September 11, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL RAYMOND LAFOUNTAIN, Defendant-Appellant.

          Submitted February 26, 2018.

          Union County Circuit Court F22130 Russell B. West, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John Evans, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant, a registered sex offender who was homeless, was convicted of failing to report a "move[ ] to a new residence" under ORS 163A.040(1)(d) (2015), amended by Or Laws 2017, ch 418, § 1. Defendant had reported his residence as a parking lot behind a Chevron gas station, and he subsequently spent periods of time in jail, at a homeless shelter, and across the street from the Chevron. The state charged defendant with violating ORS 163A.040(1) (d) (2015), on the ground that defendant's time spent in those places were moves to "new residences" that had not been reported. After a bench trial, the trial court agreed and convicted defendant. On appeal, defendant argues that a "residence" for purposes of the reporting statutes is a place that a person intends to return to as a home, and not locations where someone is staying temporarily as a prisoner, visitor, or traveler. According to defendant, the evidence in the record does not give rise to a reasonable inference that he had actually established a residence anywhere other than the Chevron address that he reported, and the trial court therefore erred in denying his motion for a judgment of acquittal. Held: The legislature used the term "residence" in ORS 163A.040(1)(d) (2015) consistently with the ordinary understanding that it refers to a place where a person is settled [299 Or.App. 312] beyond just a transient visit or sojourn, and the state's evidence was legally insufficient to prove that defendant had stayed at a homeless shelter or other locations for anything more than a transient visit. Moreover, the legislature did not intend for a correctional facility to constitute an inmate's "residence" for purposes of the crime of failure to report a move to a new residence. Therefore, defendant's incarceration at different jails did not constitute moves to new residences that subjected him to criminal liability under ORS 163A.040(1)(d) (2015), and the trial court erred by denying defendant's motion for a judgment of acquittal.

         [299 Or.App. 313] LAGESEN, P. J.

         At the time of the events in this case, a person required to report as a sex offender committed a crime under Oregon law if that person "move[d] to a new residence and fail[ed] to report the move and the person's new address." ORS 163A0401)(d) (2015), amended by Or Laws 2017, ch 418, § 1. The question in this case is how that provision applies to someone who is homeless: What does it mean to "move to a new residence" in that circumstance? Defendant, a registered sex offender, reported his residence as a parking lot behind a Chevron gas station, and he subsequently spent periods of time in jail, at a homeless shelter, and across the street from the Chevron. The state charged defendant with violating ORS 163A.040(1)(d) (2015), on the ground that defendant's time spent in those places were moves to "new residences" that had not been reported. After a bench trial, the trial court agreed and convicted defendant.

         On appeal, defendant argues that a "residence" for purposes of the reporting statutes is a place that a person intends to return to as a home, and not locations where someone is staying temporarily as a prisoner, visitor, or traveler. In his view, the evidence in the record does not give rise to a reasonable inference that he had actually established a residence anywhere other than the Chevron address that he reported. As we explain below, we agree that the state failed to prove that defendant "move[d] to a new residence." We therefore reverse his conviction on that count, remand for resentencing, and otherwise affirm.

         I. BACKGROUND

         Defendant is a convicted sex offender who is required to report and register under ORS chapter 163A. On four occasions between 2012 and 2014, defendant completed registration forms that listed his residence as the Union County Jail, where he was serving time. On January 20, 2015, defendant completed a registration form that listed "1519 Adams Ave\Prkng lot behind." (Some uppercase omitted.) 1519 Adams Avenue is a Chevron gas station in La Grande. [299 Or.App. 314]

         Throughout 2015, defendant was on post-prison supervision and was supervised by Browne, a parole and probation officer. On January 29, 2015, defendant told Browne that he was considering absconding from supervision. After reporting the following day, January 30, defendant stopped reporting to Browne.

         Two or three weeks later, defendant was arrested in Salem, and he was transported back to Union County. Browne talked to defendant while he was in custody, and defendant told him that, after being released, he was planning to live at the "Ketchup Castle," a nickname for a local building (since burned down). However, upon his release, defendant again absconded.

         In July 2015, defendant again was arrested in Salem. Because of concerns about his mental health, Marion County officials did not transport defendant back to Union County. Browne directed defendant to return to Union County after his release and to report to Browne, but defendant never reported to him.

         In December 2015, defendant was arrested in Jackson County. He was transported to Marion County and was released from the Marion County Jail on January 31, 2016. Again, he did not report to Browne upon his release.

         On February 10, 2016, defendant was arrested in Salem on a detainer issued by Browne. The record is not clear as to what happened next, but it appears that defendant may have been transported to the Union County Jail. In any event, about two weeks later, Browne sent an email to the state police, alerting them that defendant was out of compliance with his sex offender reporting obligations.

         Trooper Madsen began investigating the case. He learned that defendant's last registration had been on January 20, 2015, and had listed the parking lot behind the Chevron as his address. Madsen went to the Chevron station at that address and talked with a store clerk, Colucci. Colucci had worked at the Chevron for five years, typically from 10:00 a.m. to 7:00 p.m. To his knowledge, defendant was not living on Chevron's property. Although defendant had come into the Chevron convenience store more frequently in [299 Or.App. 315] 2014, Colucci had only seen defendant once or twice in the preceding year and was not aware that defendant had ever spent the night on the property.

         After visiting the Chevron, Madsen next went to the Union County Jail, where he spoke with defendant. Madsen drew a rough map of the Chevron station and asked defendant to point out where he lived. Defendant indicated where he was living by placing an "X" on the map directly across the street from the Chevron station.[1]

         Two weeks later, after he had been released from the Union County Jail, defendant met with Browne at his office. Defendant told Browne that he was "frequently between" Medford and Salem over the past year, and that he had remained in Salem after he was released from the Marion County Jail in January, because he could not afford the return trip home to La Grande. Defendant told Browne that he stayed at the Gospel Mission in Salem and that he had decided to stay at that shelter, rather than with his brother in Salem, because he knew that Browne would find him at the shelter.

         The state eventually charged defendant with one felony count of failure to report as a sex offender under ORS 163A, 040 (D(d) (2015) and ORS 163A.040 (3)(b)(B), based on the allegation that he had failed to report within "10 days of the date upon which the person moves to a new residence and is required to report the move and the person[']s new address." He was also charged with one count of failing to make an annual report, a misdemeanor. ORS 163A.040 (1)(e). Defendant pleaded guilty to failing to make the annual report, and the felony count was tried to the court.

         At the conclusion of the state's case, defendant moved for a judgment of acquittal, arguing that the state's evidence proved that he was not in La Grande at various times, and may have been in Medford and Salem, but that "nothing has been introduced as evidence in this record of any particular new residence by [defendant]." He relied on our decision in State v. Hiner, 269 Or.App. 447, 345 P.3d 478');">345 P.3d 478 [299 Or.App. 316] (2015), in which we held that the statute required the state to prove not only that a person has left a previous residence, but that the person acquired a new one. He explained that "we have a circumstance very like that here. The state has put on persuasive evidence, in my view, to show that [defendant] was not here [in La Grande] continuously, but in my view has fallen far short of proving that [defendant] ever established a residence elsewhere."

         The state offered two responses. First, the state argued that the location that defendant had marked on the map for Madsen, which was across the street from the Chevron station, was not the same as the reported address of "1519 Adams Ave\Prkng lot behind." In the state's view, "[t]hat alone shows that *** he wasn't living where he was supposed to be." Alternatively, as a "second theory," the state argued that defendant had been released from jail and had then been picked up four different times on the other side of the state and was staying at a shelter. That, the state argued, was legally sufficient evidence to prove a violation of the statute.

         The trial court denied the motion for a judgment of acquittal, and the state proceeded to make its closing argument, at which time the court pressed the state on its understanding of the statutory requirement to report a move to a new residence. The court inquired, as a hypothetical, whether a person who is "couch surfing" and stays at a different place every night would be required to report a new residence every single day. The prosecutor responded affirmatively that, "if someone is a convicted sex offender and they just want to go couch-surfing and they have 365 different houses that they would stay at and they stay at any one every night, I think they're in violation." But, the state contended, defendant had not simply been at a different place every night: He had been at a homeless shelter for "a length of time" and had not reported that move.

         Defendant's closing argument reiterated the lack of proof that he established a new residence, pointing out that the state had not offered any evidence as to how long defendant had stayed at the shelter in Salem. At that point, the trial court itself introduced an additional theory as to how [299 Or.App. 317] defendant may have violated the statute. The court asked, "Wasn't being in jail for a period of time establishing residence?" ...


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