Sex Offender Case Law Update (Part II)

Further Update: Well, that didn’t take long – the court of appeals issued its revised decision in Worley on July 21, concluding under the supreme court’s new definition of “change of address” that Mr. Worley had changed addresses, and thus upholding his conviction for failing to update the sheriff. The court again rejected the argument that “drifters” like Worley have no address, saying that the registry “operates on the premise that everyone does, at all times, have an address of some sort, even if it is a homeless shelter, a location under a bridge or some similar place.” In Mr. Worley’s case, where it was impossible for him to return to his old residence (because he was evicted) and where there was substantial evidence that he had relocated to a new place (even if he slept outside that place in his van), he had changed addresses for the purposes of G.S. 14-208.11.

Update: I just learned that the court of appeals has withdrawn its opinion in State v. Worley in light of the supreme court’s decision in Abshire. So, you won’t have to rely on my idle speculation about how Mr. Worley might have fared under the new Abshire rule – now we’ll find out for real. Coincidentally, I read an article today about an appellate court in Pennsylvania that held that state’s registration law did not apply to homeless sex offenders. You can find the article here and the court’s opinion here. I’d be surprised by a similar outcome in North Carolina.

Original Post: Under G.S. 14-208.9, when a registered sex offender has a change of address, he or she is required to report to the sheriff of the county in which the person last registered and provide written notice of the new address not later than 3 business days after the change. If the registrant moves to another county, he or she must report in person the sheriff of the new county within 10 days to provide written notice of the new address. Under G.S. 14-208.11 it is a Class F felony for a registered sex offender to fail to notify the sheriff of a change of address.

That’s straightforward enough when a registrant changes address with a clear-cut move to a new residence. But life’s not always that simple. Two recent cases, one from the North Carolina Supreme Court and one from the court of appeals, shed light on how to deal with temporary changes of address and homeless sex offenders.

In State v. Abshire, the supreme court considered whether a female registrant had a “change of address” when she left her boyfriend’s house and went to stay with her dad for about a month. During that time she still visited her boyfriend’s house almost every day to care for her pets, wash clothes, and “hang out.” She continued to receive her mail there, and she apparently slept there at least a couple of times over the course of the month. All parties involved agreed that the defendant’s stay with her father was temporary, although she did list her father’s residence as her home address on a criminal complaint filed against her brother during her time there. Tipped off by a school social worker investigating the truancy of the defendant’s children, sheriff’s deputies found the defendant at her father’s house and charged her with failure to notify the sheriff of a change of address.

At trial, the defendant moved to dismiss the charge, arguing that she never changed addresses. The trial court denied the motion and sent the case to the jury, which returned a guilty verdict. The court of appeals vacated the conviction, stating that a person’s home address is “a place where a registrant resides and where that registrant receives mail or other communication.” Because Ms. Abshire continued to receive her mail at her boyfriend’s house, the court reasoned, she never changed addresses, and so was not obliged to inform the sheriff.

The supreme court reversed, disagreeing with the definition of “address” used by the court of appeals. A definition focused on where the registrant receives mail, the court said, would allow offenders to flout the purpose of the registry by getting mail in one place and actually living in another. Instead, Justice Brady defined a registrant’s address as his or her “residence” – the “actual place of abode where he or she lives, whether permanent or temporary,” where “certain activities of life occur.” Applying this new definition to Ms. Abshire’s case, the court determined that she had, in fact, changed her address. Spending the night at her father’s house for 5 to 6 weeks (“or for even shorter duration” the court noted), indicated that she “carried out the core necessities of daily living” there. She should have reported the change of address to the sheriff, and was properly convicted for failing to do so.

The Abshire case doesn’t tell us everything we need to know about changes of address, but it does steer us away from technical definitions grounded in notions of “domicile” or “permanent address.” But what about the person who has no address at all?

In State v. Worley, the court of appeals considered whether a homeless offender was properly convicted for failing to update his registration address. Mr. Worley, a self-described drifter, was evicted on August 10, 2005 from an apartment that prohibited sex offenders. He eventually went to the sheriff’s office in mid-September to update his information, but because this update was not made within the required 10-day window he was charged with failure to comply with the registration law. Two years later he was convicted and sentenced as a habitual felon to 107 to 138 months.

Mr. Worley argued that he didn’t update his information for over a month because he hadn’t established a new address until then – he had been living in his van, moving from place to place. The court of appeals rejected the idea that “individuals with no permanent home are not required to provide change of address information until such time as they obtain a new residence.” Rather, the court said that sex offender registry operates on an “assumption that everyone does, at all times, have an ‘address’ of some sort, even if it is a homeless shelter, a location under a bridge or some similar place.” If that were not the case, “drifters” like Mr. Worley could effectively dodge the registry by continuing to drift. Because he failed to inform the sheriff of his whereabouts, his conviction was upheld. (The defendant also argued on appeal that the registration statutes are void for vagueness by failing to define “address” or “change of address,” but because the argument was not raised at trial the court of appeals declined to consider it.) Though Worley was decided before the supreme court issued its opinion in Abshire, it seems to me that if Mr. Worley had changed addresses under the court of appeals’ mail-centric definition in Abshire, then he also changed address under the supreme court’s broader approach. Anyone disagree?

The problem of the homeless sex offender has come up in other states, with varying results.

Tobar v. Kentucky, 2009 Ky. LEXIS 81, 2009 WL 1439833 (Ky., May 21, 2009) (upholding a homeless offender’s conviction for failure to comply with registration requirements when he failed to notify authorities after leaving a shelter).

Santos v. State, 284 Ga. 514, 668 S.E.2d 676 (2008) (finding Georgia’s registration requirements unconstitutionally vague as applied to homeless offenders, in that they did not give offenders fair notice of how to comply with the statute’s requirements).

Commonwealth v. Bolling, 72 Mass. App. Ct. 618, 893 N.E.2d 371 (2008) (a homeless offender was not required to notify registration officials when he occasionally spent the night with friends).

Breeden v. State, 2008 Tex. App. LEXIS 2150, 2008 WL 787934 (Tex. App., Mar. 26, 2008) (transient offender who moved out of a motel to live in his car changed his address under Texas’ registration law).