Submitted July 31, 2018
County Circuit Court 16CR36960, Jesse C. Margolis, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
David Sherbo-Huggins, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jamie K. Contreras, Assistant Attorney General,
fled the brief for respondent.
Ortega, Presiding Judge, and Powers, Judge, and Mooney,
Summary: Defendant appeals from a judgment of conviction for
one count of failure to report as a sex offender, ORS
163A.040(1)(d) (2015). He contends that the trial court erred
by denying his motion for judgment of acquittal because, in
his view, the state failed to prove that he had established a
new residence. Held: The trial court erred. No
evidence was offered to show that defendant established any
sort of permanent living arrangement (beyond a sojourn) as
required by State v. Lafountain, 299 Or.App. 311,
327, P.3d (2019), thus requiring a fact finder to speculate
as to whether defendant had established a new residence.
Or.App. 460]MOONEY, J.
appeals from a judgment of conviction for one count of
failure to report as a sex offender, ORS 163A.040(1)(d)
(2015),  contending that the trial court erred by
denying his motion for judgment of acquittal. On appeal, he
argues that the state failed to prove that he had established
a new residence as required by State v. Hiner, 269
Or.App. 447, 450, 345 P.3d 478 (2015) ("[D]uty to report
is triggered only after a sex offender has both left the
former residence and acquired a new one."). In light of
our recent decision in State v. Lafountain, 299
Or.App. 311, 327, __P.3d__(2019) (the term residence
"refers to a place where a person is settled beyond just
a transient visit or sojourn"), we agree with defendant
ORS 163A.040(1)(d) (2015), "[a] person who is required
to report as a sex offender *** and who has knowledge of the
reporting requirement commits the crime of failure to report
as a sex offender" if, among other things, the person
fails to report a change of residence within 10 days.
Defendant stipulated below that he is a person who is
required to register as a sex offender and that he had
knowledge of the reporting requirements. Therefore, the only
disputed issue is whether defendant changed his residence and
thereafter failed to timely report the new address.
reviewing the denial of a motion for judgment of acquittal,
"we view the evidence in the light most favorable to the
state to determine whether a rational factfinder could have
found the elements of the offense beyond a reasonable
doubt." State v. Harper, 296 Or.App. 125, 126,
436 P.3d 44 (2019). We describe the pertinent facts
consistently with that standard.
2016, defendant was homeless and living in his van with a
registered "[residential [a]ddress" of "[o]ff
101 up Carpenterville [Road] slightly" in Brookings,
Oregon. Logs kept by park rangers at the Harris Beach State
Park (approximately one and one-half miles away [300 Or.App.
461] from the Carpenterville Road location) reflect that
defendant's van was present in the park's rest area
every night and every morning for a 16-day period, from May
31 to June 16, 2016. Defendant was arrested two days later,
on June 18, 2016, and subsequently charged with failure to
report as a sex offender based on his 16-day stay at Harris
Beach State Park.
trial, Ranger Liles testified that the rest area was designed
for short term, transient use by travelers and that park
rules prohibit individuals from remaining in the rest area
for more than 12 hours in a 24-hour period and from staying
there for more than three nights in a row. She further
testified that, during the 16-day period in question, she
observed defendant spend his days sitting in his van at the
day use area of the park (leaving his van at times to use the
restroom) and his nights "across the street at the rest
area." Defendant testified that the Harris Beach rest
area was never "intended to be a permanent spot."
At the time of his arrest on June 18, 2016, defendant was no
longer staying at Harris Beach State Park.
explained in Hiner, 269 Or.App. at 450, in a
prosecution for failure to report as a sex offender under ORS
163A040(1)(d) (2015), the state must prove both that the
individual has left his or her "former residence and
acquired a new one." In Lafountain, 299 Or.App.
at 327, we clarified that, in order to establish that an
individual "acquired" a new residence, the state
must prove that the person was "settled beyond just a
transient visit or sojourn." Evidence that a person was
simply passing through, visiting, or ...