284 P.3d 559
Or. Ct. App.2012Background
- Defendant was convicted of failure to register as a sex offender under ORS 181.599 (2007).
- Indictment alleged failure to report within 10 days of a change of residence in Multnomah County between March 31 and May 11, 2009.
- Defendant registered DePaul Treatment Center’s Multnomah County address on March 31, then left the facility the same day with 21 days unaccounted for.
- Arrested on April 21 and jailed in Inverness Jail (Multnomah County); re-registered on May 11 at Inverness Jail.
- Trial court denied defense motion for judgment of acquittal, finding venue in Multnomah County based on ongoing nonregistration period.
- Appeals court reversed, holding the state failed to prove venue beyond a reasonable doubt and declined to accept alternative theories not developed below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the state prove venue beyond a reasonable doubt? | State argued Multnomah venue inferred from ongoing nonregistration. | Macnab and related authority show no evidence defendant remained in Multnomah County during the nonregistration period. | No; venue not proven beyond a reasonable doubt. |
| Is failure to report as a sex offender an ongoing offense for venue purposes? | State treated filing lapse as ongoing after 10-day grace period. | Offense is not ongoing; venue must align with time of the crime. | Yes; not an ongoing offense for venue purposes; venue not established in Multnomah County. |
| Was alternative venue under ORS 131.325 properly proven? | If cannot determine where offense occurred, venue may be in defendant’s residence. | No direct evidence of residence or apprehension in a county other than Multnomah. | Not proven; alternative venue theory insufficient. |
| Was the state’s alternative two-offense theory properly preserved or developed for appeal? | Argues two separate failures to report—first March 31 move and second May 1 arrest—could create venue. | New below; not properly raised or developed on appeal; not reached. | Not reached/considered; theory rejected for lack of development. |
Key Cases Cited
- State v. Depeche, 242 Or App 155 (2011) (fundamental venue rule for failure to report as sex offender; location at time of expired 10-day period determines venue)
- Massei, 247 Or App 30 (2011) (rejects residential inertia as basis for venue absent other evidence)
- Macnab, 222 Or App 332 (2008) (residence inference insufficient to prove venue beyond reasonable doubt)
- Cox, 219 Or App 319 (2008) (change of residence triggers 10-day reporting period)