and submitted June 7, 2018.
Jackson County Circuit Court 16CR12255; Benjamin M. Bloom,
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
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
Lagesen, Presiding Judge, and James, Judge, and Schuman,
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.
Or.App. 336] LAGESEN, P. J.
a registered sex offender, was convicted of violating ORS
163A.040(1)(d) (2015), amended by Or Laws 2017, ch
418, § l,  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.
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.
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.
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.
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
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 ...