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State v. Hoseclaw

Court of Appeals of Oregon

September 11, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
WESLEY KEVIN HOSECLAW, Defendant-Appellant.

          Argued and submitted June 7, 2018.

          Jackson County Circuit Court 16CR12255; Benjamin M. Bloom, Judge.

          Erin J. Snyder Severe, 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.

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

          Before Lagesen, Presiding Judge, and James, Judge, and Schuman, Senior Judge.

         Case Summary: Defendant, a registered sex offender, 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. The state's theory was that defendant's release from the Jackson County Jail had triggered his obligation to report a change of residence; and, based on the fact that defendant subsequently reported an address that was not an assigned street number according to Jackson County records, the state charged him with a felony for violating ORS 163A.040(1)(d) (2015). On appeal, defendant advances an unpreserved contention that the state failed to prove that his reporting obligation was triggered, because the jail was not his "residence" and the state failed to prove that he otherwise acquired a new residence. Held: In light of State v. Lafountain, 299 Or.App. 311, P.3d (2019), which held that the legislature did not intend a place of involuntary incarceration to be a "residence" for purposes of ORS 163A.040(1)(d), the trial court plainly erred by convicting defendant on the theory that he had a change of "residence" for reporting purposes when he left the jail. Moreover, the gravity of [299 Or.App. 335] the error and ends of justice militated in favor of the court exercising its discretion to correct the error.

         [299 Or.App. 336] LAGESEN, P. J.

         Defendant, a registered sex offender, was convicted of violating ORS 163A.040(1)(d) (2015), amended by Or Laws 2017, ch 418, § l, [1] which provides that a person commits the crime of failure to report as a sex offender if the person "moves to a new residence and fails to report the move and the person's new address." The state's theory was that defendant's release from the Jackson County Jail had triggered his obligation to report a change of residence within 10 days under ORS 163A.010(3)(a)(B) (requiring a sex offender to report "[w]ithin 10 days of a change of residence"). And, based on the fact that defendant subsequently reported an address that was not a "real" address-that is, he reported an address that was not an assigned street number according to Jackson County records-the state charged defendant with a felony for violating ORS 163A.040(1)(d) (2015). The court found him guilty after a bench trial, and it sentenced him to 10 months in prison and two years of post-prison supervision.

         On appeal, defendant argues that the state failed to prove that his reporting obligation under ORS 163A.010(3) (a)(B) was triggered, because the jail was not his "residence" and the state failed to prove that he otherwise acquired a new residence. In light of our decision in State v. Lafountain, 299 Or.App. 311, ___P.3d___(2019), also decided this date, in which we held that a jail is not an inmate's "residence" within the meaning of ORS 163A.010(3Xa)(B) and ORS 163A.040(1)(d) (2015), we agree with defendant and reverse his conviction.

         BACKGROUND

         In March 2016, Jackson County Sheriffs Deputy McKay responded to a report of a trespass in Gold Hill, Oregon, where he encountered and arrested defendant. McKay was aware that defendant was registered as a sex offender and that he had last reported his address, in December 2015, as 1256 Oak Street in Ashland. While he [299 Or.App. 337] had defendant in custody, McKay asked him whether he was still residing at that address. Defendant said that he was.

         McKay then attempted to confirm that defendant was actually residing at 1256 Oak Street. First, he contacted police dispatch and asked that an Ashland police officer confirm "whether that was a good or bad address, and whether there was an actual address." Officer Rosas, from the Ashland Police Department, responded to the request and drove north on Oak Street toward Eagle Mill Road, looking on both sides of the road for that address. Rosas believed that "1256 should have been on the east side of the road," but all he found there was "fields and blackberry bushes, [but] didn't find any driveways or anything like that." Rosas did not get out of his vehicle, but from the road he did not see any indication, such as tents or sleeping bags, that someone had been staying in that area.

         In addition to sending an officer to the address, McKay also checked Google Maps and Jackson County records to determine whether 1256 Oak Street was a valid address. He concluded from that search that 1256 Oak Street was a fictitious address.

         Defendant was subsequently charged with one count of failure to report as a sex offender under ORS 163A.040 (1)(d) (2015), based on the allegation that he had failed to report within "10 days of a change of address." Because the state charged defendant's providing of a "fictitious address" as a violation of that subsection rather than as a violation of ORS 163A.040(1)(f) for failing "to provide complete and accurate information," and defendant's underlying sex offense was a felony, he faced a Class C felony conviction for failing to report. See ORS 163A.040(3)(b) (providing that failure to report as a sex offender is a Class C felony rather than a misdemeanor if ...


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