State v. Hiner

345 P.3d 478, 269 Or. App. 447, 2015 Ore. App. LEXIS 261
CourtCourt of Appeals of Oregon
DecidedMarch 4, 2015
Docket12CR0332FE, 12CR0563FE; A151423, A151424
StatusPublished
Cited by5 cases

This text of 345 P.3d 478 (State v. Hiner) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hiner, 345 P.3d 478, 269 Or. App. 447, 2015 Ore. App. LEXIS 261 (Or. Ct. App. 2015).

Opinion

ARMSTRONG, P. J.

Defendant was convicted of failure to report as a sex offender, former ORS 181.599(1) (d) (2011), renumbered as ORS 181.812(l)(d) (2013), and assigns error on appeal to the trial court’s denial of his motion for a judgment of acquittal on the crime.1 He contends that the trial court misconstrued former ORS 181.599(l)(d) and, as a result, erred in concluding that the state was not required to prove that he had acquired a new residence in order to convict him of the crime. We agree with defendant and, accordingly, reverse.

Defendant was convicted in 2004 of sexual offenses. Among other things, defendant’s convictions required him to comply with the sex-offender reporting requirement in former ORS 181.599(l)(d). In early 2012, defendant reported to law enforcement that he resided at the Roseburg Rescue Mission, which operates a homeless shelter. To spend the night at the mission, guests must pay a fee or perform chores. The mission’s check-in supervisor keeps a daily record of who spends the night at the mission. The mission’s records reflected that defendant slept at the mission until late January 2012. Sixteen days after defendant’s last recorded stay at the mission, police responded to a report of an argument, encountered defendant, and, because there was a warrant for his arrest, took him into custody. At the time, former ORS 181.595 to 181.597 (2011), renumbered as ORS 181.806 to 181.808 (2013), required sex offenders to report to law enforcement within 10 days of changing their residence.2

The state subsequently charged defendant with failure to report as a sex offender under former ORS 181.599 (l)(d), which provided:

“(1) A person who is required to report as a sex offender in accordance with the applicable provisions of ORS 181.595, [449]*449181.596, or 181.597 or 181.609 and who has knowledge of the reporting requirement commits the crime of failure to report as a sex offender if the person:
“(d) Moves to a new residence and fails to report the move and the person’s new address [.]”

Defendant opted for a bench trial. The state presented evidence at trial sufficient to support a finding that defendant had left his residence at the Roseburg Rescue Mission 16 days before his arrest by the police and had not reported to law enforcement during that time. It did not present evidence on where defendant had lived after leaving the mission. Defendant moved for a judgment of acquittal at the close of the state’s case, arguing that the state was required to prove that he had acquired a new residence, and the state had failed to present evidence to support such a finding. The trial court denied defendant’s motion, concluding that the state was required to prove only that defendant had left his former residence and had failed to report to law enforcement within 10 days of doing that. The court convicted defendant of failure to report as a sex offender, and he appealed.

On appeal, defendant renews his contention that, in order to convict him of violating former ORS 181.599(l)(d), the state was required to present evidence sufficient to support a finding that he had acquired a new residence. He argues that the phrase “moves to a new residence” in former ORS 181.599 should be construed to mean a “completed change of residence or the settlement into a new residence.” Additionally, defendant notes that former ORS 181.599(l)(d) was amended in 2009, and, under the preamendment version of the statute, the reporting requirement was triggered when a sex offender left the offender’s former residence. See State v. Cox, 219 Or App 319, 323, 182 P3d 250 (2008) (holding that the obligation to report a “change of residence” was triggered upon leaving former residence). By amending the statute, he reasons, the legislature must have intended to change the circumstances under which a person was required to report. The state responds that, by using the present rather than past tense of the verb “move,” the legislature signaled its intention to require sex offenders to [450]*450report after they begin the process of moving to a new residence, rather than when a move is completed.

Former ORS 181.599(l)(d) required a sex offender to report to law enforcement within 10 days of the date that the offender “moves to a new residence.” That phrase directly says that, for the sex offender to have a duty to report, the offender must have moved to a new residence. If that is the correct understanding of the statute, then the reporting requirement was triggered when defendant had both left the mission and acquired a new residence. However, the state’s reading of former ORS 181.599(l)(d) is also plausible. The state notes that the legislature chose to use the present rather than past tense of the verb “move.” That suggests, in turn, that it was the legislature’s intention to require sex offenders to report a change in residence while a move was in progress because, otherwise, it would have used the past tense to signify that the duty to report was triggered when the move was completed. If that is the correct construction of the statute, then defendant’s duty to report was triggered when defendant left the mission.

The statutory context is instructive. Once the reporting requirement is triggered under former ORS 181.599(l)(d), a sex offender is required to report the sex offender’s “new address.” That requirement suggests that the legislature envisioned that sex offenders would have an address to report when the reporting requirement was triggered. Likewise, former ORS 181.598(2) (2011), renumbered as ORS 181.811(4) (2013), which requires the state to verify certain sex offenders’ residences, assumes that sex offenders will have acquired a residence to verify.

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Related

State v. Miller
452 P.3d 1086 (Court of Appeals of Oregon, 2019)
State v. Olson
439 P.3d 551 (Court of Appeals of Oregon, 2019)
State v. McColligan
381 P.3d 1101 (Court of Appeals of Oregon, 2016)
State v. Williams
377 P.3d 677 (Douglas County Circuit Court, Oregon, 2016)
State v. Streeter
348 P.3d 290 (Court of Appeals of Oregon, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
345 P.3d 478, 269 Or. App. 447, 2015 Ore. App. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hiner-orctapp-2015.