State v. Fry, 464 P.3d 521

Defendant is a registered sex offender required to "register once each year within 10 days of [his] birth date" (birthday: May 8).
Defendant's last registration was May 2014. He was arrested May 11, 2017 after a traffic stop; charged and convicted for failing to register (information alleged offense "on or about May 11, 2017").
On July 27, 2017, a records check showed defendant still had not registered; he was arrested and charged again for failing to register (information alleged offense "on or about July 27, 2017").
Defendant moved to dismiss the second charge on double-jeopardy grounds; the state argued failure-to-register is an ongoing offense and that the May 11 arrest was an "intervening act" allowing a second prosecution. The trial court accepted the state's theory and denied the motion.
On appeal both parties agreed (and the court recognized) that failure to register is not a continuing offense but occurs at a discrete time (the 11th day after the birthday deadline). The appellate court found the state actually prosecuted defendant twice for the same 2016 offense because of its mistaken theory and reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the second prosecution violated double jeopardy	The second charge was a distinct prosecution because the May 11 arrest was an "intervening act" that divided ongoing noncompliance into two offenses	The second prosecution was the same offense as the first (ongoing failure to register for the 2016 deadline), so double jeopardy barred retrying him	Reversed: conviction violated double jeopardy because the state prosecuted the same 2016 offense twice due to a mistaken theory
Whether failure-to-register is an ongoing/continuous offense	Failure-to-register can be treated as ongoing and divisible by intervening police contacts	Failure-to-register is a discrete annual offense occurring after the 10-day birthday window; not ongoing	Court: failure-to-register is not an ongoing crime; it occurs at a discrete temporal point (the post-deadline moment)
Whether appellate court can affirm on an alternative basis (that second charge was for 2017 deadline)	Even if trial court erred in reasoning, the charging language could permit viewing the second prosecution as for the 2017 deadline, which would avoid double-jeopardy concerns	The prosecution actually tried the case on the mistaken ongoing-offense theory, so affirming on a different theory would be unfair	Court declined to affirm on that alternative because the state and trial court never tried the case on the 2017-deadline theory; affirming on a different theory would be unfair

State v. Depeche, 242 Or. App. 155 (Or. App. 2011) (held failure-to-register occurs at a discrete time; not an ongoing offense)
State v. Thompson, 251 Or. App. 595 (Or. App. 2012) (same: failure-to-report is not an ongoing crime)
State v. Taylor, 62 Or. App. 220 (Or. App. 1983) (legislature intended ORS 131.515 to adopt constitutional double-jeopardy standards)
Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634 (Or. 2001) (appellate courts may affirm on an alternative basis in certain circumstances)
Biggerstaff v. Bd. of County Comm'rs, 240 Or. App. 46 (Or. App. 2010) (affirming on an alternative basis is a prudential discretionary act)
State v. Burgess, 352 Or. 499 (Or. 2012) (it can be fundamentally unfair to affirm a conviction on a theory different from the one actually tried)