Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Miller

Court of Appeals of Oregon

November 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JERRY ALLEN MILLER, Defendant-Appellant.

          Submitted July 31, 2018

          Curry County Circuit Court 16CR36960, Jesse C. Margolis, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David Sherbo-Huggins, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, fled the brief for respondent.

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

         Case 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.

         Reversed.

         [300 Or.App. 460]MOONEY, J.

         Defendant appeals from a judgment of conviction for one count of failure to report as a sex offender, ORS 163A.040(1)(d) (2015), [1] 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 and reverse.

         Under 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.

         When 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.

         In June 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.

         At 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.

         As we 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.