State v. Benson

                                      748

 Argued and submitted August 5, 2020, affirmed August 11, petition for review
                   denied December 9, 2021 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     THOMAS LEE BENSON,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                       18CR28682; A168917
                                  

     Defendant appeals from a judgment of conviction for failure to report as a
sex offender, ORS 163A.040. During defendant’s bench trial, the state sought to
admit defendant’s completed sex offender registration forms from the preceding
years as proof that defendant had “knowledge of the reporting requirement,” a
required element of the crime of failure to report. ORS 163A.040(1). Defendant
argued that sections of the forms were inadmissible, compelled self-incrimination
when offered for that purpose, because defendant had been required to initial
and sign that he understood his reporting obligations, and the forms warned that
he could be cited for failure to register if he did not sign them. The trial court
admitted the forms over defendant’s objection. On appeal, defendant assigns
error to the admission of that evidence. Held: The requirement that defendant
acknowledge his awareness of his specific reporting requirements did not compel self-incrimination in violation of ORS 136.425(1) and Article I, section 12,
of the Oregon Constitution. Although the regulatory sex offender registration
scheme required defendant to admit to his knowledge of certain legal obligations, defendant was not faced with a substantial risk of self-incrimination at
the time he made the acknowledgments because the disclosures did not imply or
admit his involvement in any criminal activity. Likewise, defendant was also not
presented with “substantial hazards of self-incrimination” as required to invoke
the protections of the Fifth and Fourteenth Amendments to the United States
Constitution. As such, the admissions were voluntary and the trial court did not
err in admitting them.
    Affirmed.



    Heather Karabeika, Judge.
  Kyle Krohn, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Criminal
Appellate Section, Office of Public Defense Services.
   Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
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  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  SHORR, J.
  Affirmed.
750                                                       State v. Benson

           SHORR, J.
         Defendant appeals from a judgment of conviction
for failure to report as a sex offender, ORS 163A.040.1
During defendant’s bench trial, the state sought to admit
defendant’s completed sex offender registration forms from
the preceding 17 years (including his most recent registration form, which was completed less than two months before
the alleged crime) as proof that defendant had “knowledge of
the reporting requirement,” a required element of the crime
of failure to report. ORS 163A.040(1). Defendant argued
that sections of the forms were inadmissible, compelled self-incrimination when offered for that purpose, because defendant had been required to initial and sign that he understood his reporting obligations, and the forms warned that
he could be cited for failure to register if he did not sign
them. The trial court admitted the forms over defendant’s
objection. On appeal, defendant assigns error to the admission of that evidence for the purpose of proving that defendant had “knowledge of the reporting requirement.” For the
reasons that follow, we affirm.
                     I. FACTUAL SUMMARY
         We review the voluntariness of a defendant’s statements as a legal question. State v. Jackson, 

,

 (2018). In so doing, we are bound by the trial
court’s factual findings if they are supported by the record,
and, in the absence of express findings, we presume that
the court decided the facts in the light most favorable to the
state, the prevailing party below. 

 We summarize the relevant facts in accordance with that standard.
         We begin with some procedural facts and background on the sex offender reporting and registration requirements. Defendant is a convicted sex offender subject to the
reporting requirements outlined in ORS chapter 163A. As
a result, defendant is required to “report, in person, to the
Department of State Police, a city police department or a
    1
      ORS 163A.040 and a closely related sex offender registration statute, ORS
163A.010, have been amended and some subsections have been renumbered since
the relevant events in this case. We cite the current versions of those statutes
because those changes do not affect our analysis.
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county sheriff’s office” when certain events occur. ORS
163A.010(3)(a). For example, defendant is required to report
to an above-mentioned law enforcement agency “[w]ithin
10 days of a change of residence,” “[o]nce each year within
10 days of the person’s birth date,” and “[w]ithin 10 days
of a change in work … status.” ORS 163A.010(3)(a)(B),
(D), (F).
         We briefly explain the registration process, as
described by statute and implementing administrative rules.
When an offender reports, the registering agency “shall
complete a sex offender registration form.” ORS 163A.010(1).
Defendant, in turn, is required to “[p]rovide the information
necessary to complete the sex offender registration form and
sign the form as required” and to submit to photographing
and fingerprinting. ORS 163A.010(4). Agencies use “forms
and procedures adopted by the Department of State Police
by administrative rule.” ORS 163A.035(1). Afterwards, the
agency is responsible for forwarding the completed form to
the state police as prescribed. 

          Oregon State Police (OSP) is authorized to adopt and
has adopted administrative “rules to carry out the responsibilities of the department.” ORS 163A.045(2). Those rules
“implement and interpret” the sex offender registration statutes. OAR 257-070-0005; see generally OAR ch 257, div 70.
Current rules, in effect since 2016, prescribe the completion
and submission of forms electronically via “the Department’s
secure internet website.” OAR 257-070-0100(1). OSP has
also defined several relevant terms, including “sex offender
registration form” (“information regarding sex offenders
that is formatted, inscribed, stored and retrievable on a
Department approved medium”) and “electronic signature”
(“an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by
a person with the intent to sign the record”). OAR 257-070-
0015(2), (8). Agency representatives must require offenders
to electronically complete the entire form, electronically initial the form where required, and provide an electronic signature. OAR 257-070-0100(4)(c). As relevant here, offenders
must “submit to registration as directed by the registering
agency and as required by law,” “[p]rovide all information
necessary to complete the sex offender registration form[,]”
752                                                         State v. Benson

and “[s]ign the form by electronic signature or as directed by
the registering agency[.]” OAR 257-070-0110(2), (3)(a) - (b).2
         ORS chapter 163A also defines the criminal offense
of failure to report as a sex offender, ORS 163A.040, which
makes it a crime for any “person who is required to report
as a sex offender in accordance with the applicable provisions of ORS 163A.010, [ORS] 163A.015, [ORS] 163A.020[,]
or [ORS] 163.025 and who has knowledge of the reporting
requirement” to fail to report as specified, to fail “to provide
complete and accurate information,” or to fail “to sign the sex
offender registration form as required.” ORS 163A.040(1).
          Defendant first reported as a sex offender in April
2000, and he submitted registration forms through June
2017. In July 2017, defendant was evicted from his dwelling
and became houseless, transiently staying with friends and
family for brief periods. Defendant testified that he was confused about how or if he could report when he did not have
a residence.3 He made no attempt to update his registration following his eviction. Several months later, during an
unrelated criminal investigation, law enforcement discovered that defendant was no longer living at his registered
address. Defendant was charged with failure to report, ORS
163A.040, and the case proceeded to a bench trial.
     2
       At issue in this case, as we will explain below, are the particular parts of
the registration form that require defendant to acknowledge that he is aware
of his reporting requirements. We do not understand defendant’s arguments on
appeal to challenge OSP’s authority to require that acknowledgment, either as
a violation of the authority delegated to the department, or as a violation of the
department’s own administrative rules.
     3
       We briefly acknowledge that, immediately before the events at issue in this
case, ORS 163A.040(1)(d) was amended. Defendant’s last registration occurred
on June 5, 2017. On June 22, 2017, a legislative change to ORS 163A.040(1)(d)
went into effect; where it had previously been a crime for an offender to move
“to a new residence and fail[ ] to report the move and the person’s new address,”
that paragraph was changed to make it a crime for an offender to fail “to report
following a change of residence.” Or Laws 2016, ch 95, § 4a; Or Laws 2017,
ch 418, § 1. Subsequent to that change in the law, defendant left his registered
address on July 21, 2017. The change appears to have brought the language of
ORS 163A.040(1)(d) in line with ORS 163A.010(3)(a)(B), the latter of which, at
all relevant times, required defendant to report within 10 days of “a change in
residence.” Defendant raised arguments based on that change in the law during
trial but does not repeat them on appeal. For our purposes, we need only consider
the statutory language that was in effect at the time defendant committed the
crime of failure to report. That language is reflected in the current version of
ORS 163A.040, which we cite throughout this opinion.
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         At trial, the state sought to introduce defendant’s
past sex offender registration forms from the preceding
years, which comprised a packet of forms totaling nearly
80 pages. The forms themselves had varied over the years,
but each form followed the same general format. Each consisted of two pages: a first page, which listed defendant’s
biographical information, and a second page, which listed
the specific circumstances that would prompt an offender’s
responsibility to report. Prior to 2014, the second page of
each form merely listed each of those registration requirements and did not ask the offender to confirm his awareness
of each individual requirement. Instead, the offender was
directed to sign below text stating, “I have read and I understand the reporting requirements as outlined on [this] form.
Under penalty of perjury, I certify the above information is
true and correct.” Beginning in 2014, however, an updated
form directed defendant to initial next to each separate registration requirement before signing at the bottom of the
form. Each individual reporting requirement was followed
by the text, “I understand my initials mean I am aware of
my requirement,” and the signature line appeared directly
below text stating, “I have read the information listed above.
Under penalty of false swearing …, I certify the above
information is complete and correct. … I understand I am
required to sign the form or I can be cited for Failure to
Register under ORS [163A.040(1)(h)].”
         Defendant’s most recent registration form had
been completed in June 2017, about seven weeks before his
alleged failure to report. That registration was completed
using the updated form, which requested defendant’s initials next to each individual reporting obligation. Among
the listed requirements, the form stated that he needed to
report “[n]o more than 10 days before and no more than 10
days after I move out of my registered address[.]” The state
presented the forms along with the testimony of Oregon City
Police Officer Hutteball, who had assisted defendant in completing his June 2017 registration. Hutteball described the
registration process, which involves Hutteball asking the
offender a series of questions and inputting the responses
into a computer system to complete the form electronically.
Hutteball then directs the offender to provide his initials
754                                          State v. Benson

and signature via an electronic pad. Although Hutteball is
a civilian employee, he dresses in a uniform displaying the
police emblem and works within the police station.
         Defendant objected to the admission of every page
of the past sex offender registration forms that contained
his initials or signature, arguing that, although the forms
could be admissible for certain limited purposes, they were
inadmissible, compelled self-incrimination when offered to
prove an element of the crime of failure to report, specifically, that defendant had “knowledge of the reporting
requirement.” ORS 163A.040(1). Defendant asserted that
he had been compelled to initial and sign the forms under
threat of prosecution for failure to report.
         The trial court rejected defendant’s arguments and
admitted the past forms in full. Throughout the remainder of
the trial, the state relied on the acknowledgments contained
in defendant’s completed forms (with particular focus on his
June 2017 registration form) in arguing that defendant had
been aware of his reporting requirements when he failed to
report following his eviction in July 2017. Defendant was
convicted, and this timely appeal followed.
         II. ORS 163A.040(1) PROVISION THAT
      AN OFFENDER HAVE “KNOWLEDGE OF THE
             REPORTING REQUIREMENT”
         Preliminarily, the parties dispute the meaning of
ORS 163A.040(1)’s provision that an offender must have
“knowledge of the reporting requirement” to be convicted
of the crime of failure to report as a sex offender. The state
contends that “[t]he knowledge requirement contained in
the sex offender registration statute merely requires general notice of the requirement to register” and is fulfilled
as long as a defendant is aware that he is a person who is
required to report generally. Defendant, on the other hand,
contends that the statute requires the state to prove that
the defendant had “actual knowledge” of his specific reporting requirements, including “when and how to register.”
        When presented with an appeal in which the parties
dispute the required elements of the crime of conviction, we
usually must first resolve that dispute and determine what
Cite as 

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exactly the legislature intended for the statute to require
before addressing other issues. See, e.g., State v. Jones, 

, 

 (2008), rev den, 

 (2009)
(addressing dispositive statutory interpretation issue before
addressing other arguments). However, we need not do so in
all cases, and have at times declined to construe a statute if
the merits of the appeal can be decided without doing so. See,
e.g., State v. Anderson, 

, 

,
rev den, 

 (2010) (declining to decide mental state
requirement of felon-in-possession statute where appellate
argument that the indictment was legally insufficient could
be rejected regardless of the statute’s construction). We are
presented with such a case here. As we explain below, even
assuming, without deciding, that defendant’s interpretation of the statute is correct, the admissions contained in
defendant’s previous sex offender registration forms did not
constitute inadmissible, compelled self-incrimination under
either state or federal law.
           III.   VOLUNTARINESS ANALYSIS
         Defendant assigns error to the trial court’s admission of “the portions of [the completed registration forms]
that contained defendant’s statements that he had read and
understood his sex offender reporting requirements,” repeating his trial argument that those statements were involuntary. As explained earlier, we decide the voluntariness of a
defendant’s statements as a legal question. Jackson, 

.
          Defendant cites three sources of authority for his
contention that the initials and signatures contained in his
registration forms were involuntary and inadmissible admissions: ORS 136.425(1), Article I, section 12, of the Oregon
Constitution, and the Fifth and Fourteenth Amendments
to the United States Constitution. Defendant contends that
the forms compelled his “admission to an element of a crime,
viz., that he had knowledge of the reporting requirement,” in
large part because the forms stated that he could be prosecuted for failure to report if he did not sign them. (Citation
omitted.) In response, the state argues that “the type of regulatory reporting at issue here does not implicate the prohibitions against compelled self-incrimination.” Specifically,
756                                            State v. Benson

the state contends that defendant did not preserve his
arguments under ORS 136.425(1) and that the forms did
not create either a “substantial risk of self-incrimination”
under Article I, section 12, or a “substantial hazard of self-incrimination” pursuant to the Fifth Amendment.
A.    Preservation
         We begin by addressing the state’s contention that
defendant’s arguments under ORS 136.425(1) are unpreserved. Upon reviewing the record, we acknowledge that
defendant never directly cited ORS 136.425(1) to the trial
court; defendant argued that the admissions were “compelled self-incrimination” pursuant to “the privilege,” clarifying only once that the authority for his arguments rested
in Article I, section 12, and the Fifth Amendment. However,
we nevertheless conclude that defendant adequately preserved his arguments under ORS 136.425(1), because defendant’s citation to that authority on appeal does not meaningfully change his arguments from those raised in the trial
court.
         Our case law establishes that ORS 136.425(1) and
Article I, section 12, both set out the same prohibition against
compelled self-incrimination, and we have frequently chosen not to differentiate those authorities when analyzing
voluntariness in our prior cases. In fact, defendant cited one
of those cases in his arguments to the trial court—State v.
Tenbusch, a case where the defendant’s probationary obligations required that he be truthful about his sexual history or face possible revocation. 

, 

 (1994), rev den, 

, cert den, 

(1995). Tenbusch involved voluntariness claims under ORS
136.425(1) and the state and federal constitutions, although
neither the parties nor the court analyzed the statutory
claim independently. Id. at 640 n 3. The analytical approach
in Tenbusch is consistent with more recent cases where we
have stated that the voluntariness requirements of ORS
136.425(1) and Article I, section 12, are essentially the
same, and where we have not considered those authorities
via separate analyses. See, e.g., State v. Chavez-Meza, 

, 386 & n 2, 

 (2019), rev den, 

 (2020); State v. Vasquez-Santiago, 

,
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 (2019); State v. Ruiz-Piza, 

, 572-
73, 

 (2014). When faced with unpreserved ORS
136.425(1) arguments and preserved Article I, section 12,
arguments in State v. Rodriguez-Moreno, we explained that
the coextensive nature of the voluntariness requirements
posed by those two authorities made the question of whether
the court addressed the defendant’s ORS 136.425(1) arguments “irrelevant to the outcome.” 

, 633 n 6,

 (2015), rev den, 

 (2016). In light of
the above cases, defendant’s citation to ORS 136.425(1) on
appeal does not render his arguments meaningfully distinct
from those raised in the trial court pursuant to Article I,
section 12.
         That congruence between the voluntariness requirements of ORS 136.425(1) and Article I, section 12, in turn,
informs our preservation analysis. Our preservation rules
do not typically require parties to cite specific authorities,
so long as they raise the relevant issue. See State v. Walker,

, 

 (2011) (“[A]dducing particular authorities is not a prerequisite to preservation.”); State
v. Hitz, 

, 

 (1988) (“We have previously drawn attention to the distinctions between raising
an issue at trial, identifying a source for a claimed position,
and making a particular argument. The first ordinarily is
essential, the second less so, the third least.” (Emphases
in original; internal citation omitted.)). At trial, defendant
clearly raised the issue he now repeats on appeal—that the
acknowledgments contained in his prior registration forms
were inadmissible, compelled self-incrimination.
         In light of the pragmatic considerations underlying our preservation rules, the content of defendant’s arguments below, and our understanding that ORS 136.425(1)
and Article I, section 12, contain coextensive voluntariness requirements, we conclude that defendant adequately
preserved the issue he now raises on appeal. As in State
v. Roble-Baker, “the state has not been taken by surprise,
misled, or denied the opportunity to meet defendant’s arguments.” 

, 

 (2006). The state and
the trial court had a sufficient opportunity to consider the
same voluntariness arguments that defendant now makes
on appeal.
758                                                         State v. Benson

         Thus, we proceed to consider the merits of defendant’s arguments on appeal. We consider defendant’s voluntariness arguments under state law as one, with the
acknowledgment that the voluntariness protections under
ORS 136.425(1) and Article I, section 12, are, in all important respects, identical. We then turn to defendant’s arguments under the Fifth Amendment. See State v. T. T., 

, 

, rev den, 

 (2021)
(describing “first things first” approach of resolving state
law questions before addressing claims under the federal
constitution).
B.    Voluntariness Analysis under Oregon Law
         Article I, section 12, provides that “[n]o person
shall be … compelled in any criminal prosecution to testify against himself.” Relatedly, ORS 136.425(1) requires
that “[a] confession or admission of a defendant, whether in
the course of judicial proceedings or otherwise, cannot be
given in evidence against the defendant when it was made
under the influence of fear produced by threats.” 4 The relevant inquiry, under both authorities, is the voluntariness of
defendant’s statements or “whether the state met its burden
to prove that defendant’s free will was not overborne and his
capacity for self-determination was not critically impaired,
and that he made his statements without inducement from
fear or promises.” Jackson, 

. At trial, a defendant’s admissions are initially deemed to be involuntary,
and it is the state’s burden to overcome that presumption
by offering evidence affirmatively establishing voluntariness. State v. Hogeland, 

, 

(2017).

     4
       Oregon’s protections against self-incrimination apply to both confessions
and admissions, State v. Smith, 

, 

 (1986), and,
for that reason, the distinction between the two is not important to our analysis
here. “A statement is a confession if it is made after the commission of the crime
in question, for the purpose of acknowledging that the speaker is guilty of some
criminal offense[,]” and “[a] statement is an admission if it is made for some purpose other than to acknowledge guilt.” State v. Kelley, 

, 

 (2010), rev den, 

 (2011) (internal quotation marks omitted). In
other words, “[a]n admission is a concession or voluntary acknowledgment made
by a party of the existence of certain facts that are relevant to the cause of the
adversary.” State v. Eves, 

, 

 (1999) (internal quotation marks omitted).
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         However, the analysis—whether a defendant made
the statements freely without inducement—is complicated
when the government requires certain disclosures as part
of a regulatory framework. The primary case that informs
our understanding of that exception is State v. Monroe, 

, 

 (1990). In Monroe, we explained
that, when disclosures are compelled within a regulatory
context, “a remote possibility of self-incrimination is not sufficient to trigger Article I, section 12; a substantial risk of
self-incrimination is necessary.” 

. The state contends that Monroe controls our analysis in the instant case,
and we agree.
         In Monroe, the defendant appealed her conviction
for failure to perform the duties of a driver, ORS 811.700,
challenging the statute as unconstitutional and contending
that its requirement that a driver involved in an accident
supply her name and address to the other driver compelled
incriminating statements, because that information would
establish “at least two elements of a criminal prosecution for
offenses ranging from driving under the influence, through
reckless driving and malicious mischief, down to and including careless driving.” 

.
          We concluded that the requirements of the statute
did not violate Article I, section 12, because they were regulatory in nature and did not present a substantial risk of
self-incrimination. 

. We determined that the
requirements presented little more than a “remote possibility” that reported information would furnish proof of a
crime, much like other regulatory requirements such as the
requirement that doctors report the deaths of patients or
the requirement that issuers register their securities before
sale. 

. We considered several reasons in support of
that conclusion. First, “the statute does not require a report
to the police, but only the furnishing of information to the
other driver,” limiting a compliant driver’s chance of criminal liability and suggesting that “prosecution is not an aim
of the statute.” 

 Relatedly, “most accidents do not result
in criminal liability,” supporting the contention that “the
statute does not seek disclosure of information that is inherently related to criminal prosecution.” 

 Lastly, “the purpose of ORS 811.700(1)(a) is noncriminal” and “ ‘[t]he essence
760                                            State v. Benson

of the statute is to maximize the protection of one injured in
an accident ….’ ” 

 (quoting State v. Hulsey, 

, 

 (1970)).
         We ultimately determined that “the statute is
not unconstitutional on its face.” 

 Further, because the
defendant had not “pointed to any actual possibility, even
a remote one, of prosecution that might have occurred had
she obeyed [the statute],” complying “would not have placed
defendant substantially at risk of incriminating herself.”
Id. at 383-84 (emphasis in original). We acknowledged that,
“[i]n virtually every situation that requires reporting of
information, there exists some possibility of criminal liability for which the reported information may be an element
of proof. However, that remote possibility is not enough to
invoke the privilege against self-incrimination.” Id. at 383
(emphasis in original). As noted, there must, instead, be a
“substantial risk of self-incrimination.” Id. at 382.
         We understand Monroe to present a two-step inquiry.
First, we must determine whether the claimant’s statements were compelled by a regulatory statute or framework.
Id. If the requirements are “regulatory,” then, second, we
must determine whether complying with the requirements
presented the claimant with a “substantial risk of self-incrimination.” Id. As noted, in resolving that question, the
Monroe court considered (1) whether the disclosures must
be made directly to law enforcement or some other individual or entity; (2) whether the disclosures involve circumstances or conduct that is inherently criminal, or that carries an inherent risk of criminal liability or prosecution; and
(3) whether the purpose of the disclosure requirement is to
assist with the state’s criminal prosecutions, or whether
instead the disclosure requirement is motivated by another,
noncriminal purpose. Id. at 383. Although Monroe did not
enumerate other considerations, voluntariness is a question
that requires review of the totality of the circumstances. See
Jackson, 

. Overall, the question before the court
is whether the act of complying with the regulatory requirement placed the claimant at a substantial risk of incriminating themselves. If the disclosures were not compelled by
a “regulatory” framework, then our standard voluntariness
inquiry applies, and we consider whether the claimant’s free
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will was overborne, their capacity for self-determination was
critically impaired, or their statements were induced by fear
or promises. See id. at 22.
         Before we apply Monroe to the facts of the instant
case, however, we must address two preliminary issues.
First, as we explained earlier, defendant’s older registration forms required his signature below text stating, “I have
read and I understand the reporting requirements as outlined on [this] form. … I certify the above information is
true and correct.” However, beginning in 2014, defendant
was required to first initial next to each individual reporting requirement and text stating, “I understand my initials
mean I am aware of my requirement,” before also signing at
the bottom of the form, below text stating, in part, “I have
read the information listed above. … I certify the above
information is complete and correct.” Therefore, the statements at issue in defendant’s most recent registration forms
arose from two different parts of the forms: defendant’s initials acknowledged that he was aware of his specific reporting requirements, and his signature further confirmed that
he had read the form and attested to the accuracy of the
form as a whole. We note that the parties do not distinguish
those varying aspects of defendant’s recent forms in any
meaningful way, nor do they distinguish the statements
in defendant’s older forms from his more recent ones. As a
result, we assume, without deciding, that they all had the
effect of acknowledging defendant’s awareness or understanding of his reporting requirements, and we do not consider them to constitute meaningfully distinct statements
for our purposes.
         Secondly, the Monroe test requires that we focus on
the specific reporting or disclosure requirements at issue. In
so doing, we note that the parties do not distinguish between
the various aspects of the forms that could be viewed as
presenting distinct disclosure requirements: the requirement that defendant sign the form generally, the requirement that his signature be interpreted to have a certain
meaning due to the accompanying text, the requirement
that defendant initial next to his reporting obligations, and
the requirement that those initials be interpreted to mean
that he is aware of his obligations. The distinction, if any,
762                                          State v. Benson

between those various requirements is unclear. Both parties acknowledge that defendant was statutorily required
to sign the form and raise arguments relating to that specific requirement. But neither party presents any argument
specific to the requirement that defendant initial the form,
or the text stating that defendant’s signatures and initials
indicate his understanding or awareness of the reporting
requirements, as potentially distinct requirements warranting their own individual Monroe analysis.
         The state bears the burden of proof on issues of
voluntariness, but it is also true that we will not “make or
develop a party’s argument when that party has not endeavored to do so itself.” Butler Block, LLC v. TriMet, 

, 

 (2011) (internal quotation marks
omitted). In the instant case, both parties frame the issue
before us as one of whether the sex offender registration
form compelled self-incrimination, in light of defendant’s
legal obligation to sign the form or face prosecution, without
presenting the issue as involving multiple distinct disclosure requirements. As a result, we do the same, assuming,
without deciding, that there are no significant distinctions
between the form’s various requirements that would weigh
on our Monroe analysis or otherwise warrant separate
consideration.
         With that said, we begin our analysis by considering
whether a “regulatory” framework compelled defendant to
initial and sign his previous sex offender registration forms,
acknowledging that he was aware of his specific reporting
requirements. First, we acknowledge that the sex offender
registration statutes as a whole were enacted “to assist law
enforcement agencies in preventing future sex offenses.”
ORS 163A.045(1). When faced with the question of whether
the legislature intended the registration laws to be punitive or regulatory in State v. MacNab, the Supreme Court
concluded that “[w]e need look no further than the legislature’s recital and the structure of the statutes to conclude
that the purpose of the registration requirement is regulatory.” 

, 

 (2002). In Meadows v.
Board of Parole, we explained that, although it was clear
that the legislature intended for the predatory sex offender
notice statute to help prevent crimes, there was no apparent
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intent “to deter potential criminals from committing crimes
through use of fear.” 

, 

 (2002),
rev den, 

 (2003). Although those cases analyzed a
different issue, we conclude that they are sufficiently analogous to the issue before us. In short, we are persuaded that
the sex offender registration scheme as a whole is indeed
regulatory.
         We recognize that the overall sex offender registration scheme is not at issue in this case; instead, defendant challenges the registration forms to the extent that
they demand his initials and signature acknowledging his
awareness of the reporting requirements. But the requirement that defendant confirm his knowledge of his obligations as part of the sex offender registration process is also
regulatory in nature, and results from the legislature’s delegation of authority over the registration process to OSP.
OSP has the authority to carry out sex offender registration
and has created administrative rules to fulfill those duties.
ORS 163A.045(2); OAR 257-070-0005; OAR ch 257, div 70.
OSP also has the authority to design the sex offender registration form and has defined “sex offender registration form”
to mean “information regarding sex offenders that is formatted, inscribed, stored and retrievable on a Department
approved medium.” ORS 163A.035(1); OAR 257-070-0015(8).
One rule directs registering agencies to require offenders to
electronically complete, initial, and sign the form; another
rule requires offenders themselves to submit to the direction of those registering agencies. OAR 257-070-0100(4)(c);
OAR 257-070-0110(2). In light of the legislature’s delegation
of authority over the sex offender registration process and
form to OSP, and OSP’s creation of rules and forms in accordance with that authority, the acknowledgment requirement is as “regulatory” as the registration requirement
itself.
         Because the acknowledgment requirement is fundamentally regulatory in character, we now consider whether
the requirement placed defendant at a “substantial risk of
self-incrimination,” as described in Monroe. First, unlike
the “hit and run” statute at issue in Monroe, the registration
process requires defendant to report directly to law enforcement, which raises a risk that a disclosure may result in
764                                            State v. Benson

criminal liability and prosecution. However, the remaining
considerations all favor the opposite conclusion.

          Defendant’s acknowledgment of his awareness of
the reporting requirements, made during the registration
process, was not inherently criminal and did not carry an
inherent risk of criminal liability or prosecution. As with
car accidents, registrations themselves do not result in the
offender’s prosecution; indeed, the act of appearing in person
to complete a sex offender registration form and acknowledge awareness of the reporting requirements shows compliance with the law, for which few, if any, offenders would
come under any suspicion. And, although here, criminal
liability did attach to defendant’s later failure to fulfill certain reporting obligations, that does not render his earlier
acknowledgments inherently criminal or mean that fulfilling the acknowledgment requirement created an inherent
risk of criminal liability. At the time the acknowledgments
were made, defendant did not face even a remote risk that
disclosing his knowledge of the reporting requirements
would result in his prosecution. The acknowledgments only
took on a criminal character when (1) an event occurred that
triggered defendant’s reporting obligation and (2) defendant
subsequently failed to report in accordance with that obligation. The requirement that he acknowledge his awareness, alone, had no incriminating nature absent those later
events. Importantly, defendant’s own subsequent criminal
conduct was a pivotal and necessary factor that raised the
specter of criminal liability.

        Lastly, we consider whether the requirement that
defendant initial and sign the registration form acknowledging his awareness of the reporting requirements was
intended to assist with the state’s criminal prosecutions
or motivated by some other noncriminal purpose. Because
the parties consider the issue as one undivided disclosure
requirement, focusing primarily on the statutory signature requirement, we look to the legislative history that
bears on that requirement. In 2009, the legislature took
up House Bill (HB) 2169, which proposed several changes
to the sex offender reporting statutes that “[c]larifie[d] sex
offender reporting procedures.” Staff Measure Summary,
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Senate Committee on Judiciary, HB 2169, May 11, 2009
(SCJ Staff Measure Summary). At that time, the reporting
requirements did not explicitly require an offender to provide the information necessary for the registering agency
to complete the registration form; instead, the registering
agency was tasked with the responsibility of completing
the form. See former ORS 181.595 (2007), renumbered as
ORS 181.806 (2013), renumbered as ORS 163A.010 (2015).
The 2009 changes made clear that the offender bore the
ultimate responsibility for providing that information and
added the requirement that the offender was responsible
for “[p]rovid[ing] the information necessary to complete the
sex offender registration form and sign[ing] the form as
required[.]” Or Laws 2009, ch 204, § 1. The changes also
affected the statute defining the offense of failure to report,
making it a crime for an offender to fail to sign the form or
submit to photographing or fingerprinting. Or Laws 2009,
ch 204, § 4.
         The legislature’s primary purpose in effectuating
that legal change was to ensure that registrants provide
complete and accurate information and confirm that information through signature. The committees that took up the
bill were told of past instances where offenders had flipped a
business card at the registering agent and walked away, or
where offenders had presented themselves at a registering
agency after hours. Audio Recording, House Committee on
Judiciary, HB 2169, Feb 3, 2009, at 3:21 (comments of Vi
Beatty), https://olis.oregonlegislature.gov (accessed Aug 4,
2021) (HCJ Audio Recording); Audio Recording, Senate
Committee on Judiciary, HB 2169, May 7, 2009, at 1:05:49
(comments of Vi Beatty), https://olis.oregonlegislature.gov
(accessed Aug 4, 2021) (SCJ Audio Recording); see also SCJ
Staff Measure Summary (summarizing such instances).
Some trial courts had concluded that those offenders had
fulfilled their reporting obligations pursuant to the then-existing reporting statutes. HCJ Audio Recording at 3:21;
SCJ Audio Recording at 1:05:49. Although the legislative
history also highlights some concern that the then-existing
law presented “a possible issue at any subsequent trial for
failure to register as a sex offender,” SCJ Staff Measure
Summary, those concerns were centered on the role of the
766                                            State v. Benson

offense as the enforcement mechanism for the entire registration system. When offenders who had physically reported
but not engaged with the process were later prosecuted
for failure to report, those cases had reached inconsistent
results based on varied interpretations of the reporting statutes by the trial courts. SCJ Audio Recording at 1:05:49.
The legislature’s acknowledgment that lack of clarity in
the registration laws also hampered the scheme’s enforcement mechanism does not suggest that criminal prosecution was the primary motive for the change. Indeed, the
legislative history makes clear that the main concern was
with effectuating the state’s overall sex offender registration system by ensuring that offenders actually completed
the registration process. When the new law went into
effect, offenders were explicitly obligated to sign on the
form’s signature line, which, at that point in time, accompanied text that stated, in part, “I have read and I understand the reporting requirements as outlined on [this]
form.”

         The above legislative history supports the contention that, when the legislature enacted the signature
requirement, it was primarily intended to serve a noncriminal purpose: to ensure that sex offenders actually register,
which in turn ensures that the sex offender registration system as a whole continues to function. And, as mentioned
earlier, defendant’s criminal liability here only arose when
two subsequent events occurred: first, when a change in
defendant’s circumstances triggered his obligation to report,
and, second, when defendant failed to report that change.
His criminal liability was not the result of or caused by his
acknowledgments but was caused by his own later conduct
in failing to register. The lack of any criminal liability flowing from the acknowledgments themselves also supports
the contention that the acknowledgment requirement is not
intended primarily as a prosecution tool.

         Applying Monroe, we conclude that the regulatory
requirement that defendant acknowledge his awareness of
his reporting obligations did not place him at a substantial
risk of self-incrimination. Although defendant was required
to report to law enforcement, the information he provided did
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not imply or admit his involvement in any criminal activity.
If anything, it signaled his compliance with the registration
statutes. Further, the acknowledgment requirement was not
designed as a prosecution tool and was, instead, intended
to ensure continued offender registration. Although defendant’s acknowledgments later became evidence against him
in a criminal prosecution, that alone is not sufficient to
establish that defendant was faced with a substantial risk of
self-incrimination at the time he made the acknowledgments,
when the totality of the above circumstances are considered.
As such, we conclude that, as in Monroe, the requirement
that defendant acknowledge his awareness of his reporting obligations did not confront defendant with a substantial risk of self-incrimination at the time he completed the
forms.

         Finally, under our state law analysis, we address
defendant’s argument that our decision is controlled by State
v. Gaither, a case where we concluded that a probationer’s
required disclosure of his past victims was involuntarily
compelled. 

, 

 (2004), rev den,

 (2005). We reached that conclusion in Gaither
because the facts of that case elucidated that the “defendant
had no choice other than to disclose or face revocation of
his probation”; he would have been punished with a probation violation had he invoked the right to remain silent. Id.
Here, defendant contends that, as in Gaither, his “legal obligation to sign the forms, and the threat of punishment for
refusing to do so,” made the acknowledgments contained in
those forms involuntary. However, we conclude that Gaither
does not inform our analysis here. Gaither involved a probationary requirement that the defendant disclose his past
victims, which in effect required him to acknowledge that
he had committed past crimes. Id. Here, the requirement
that defendant initial and sign an acknowledgment of his
awareness of his registration requirements did not require
him to disclose his involvement with any criminal activity.
Although defendant was threatened with prosecution if he
failed to sign the forms, that did not present defendant with
a choice between self-incrimination and compliance, because
no crime had occurred at that point in time for which he
could incriminate himself.
768                                           State v. Benson

         Further, despite defendant’s citation to numerous
cases, nowhere does he direct us to any case law that could
support a conclusion that his acknowledgments constituted
compelled self-incrimination under the facts presented here.
Defendant was not engaged in criminal activity and was not
under any suspicion at the time he made the admissions.
And, the information disclosed had no incriminating character until (1) subsequent events prompted defendant’s reporting obligation and (2) defendant failed to report, thereby
creating an imminent risk of criminal liability. Although
we recognize defendant’s argument and consider this a close
case, we cannot ignore the absence in our case law of support for defendant’s position on appeal.

         In conclusion, the requirement that defendant
acknowledge his awareness of his specific reporting requirements did not compel self-incrimination in violation of ORS
136.425(1) and Article I, section 12. Although the regulatory
sex offender registration scheme required defendant to admit
to his knowledge of certain legal obligations, that requirement did not create a substantial risk of self-incrimination.
Indeed, that information was not incriminating at all at the
time that it was disclosed. As such, the admissions were voluntary and the trial court did not err in admitting them.

C. Voluntariness Analysis Under the Federal Constitution

         Our analysis under the federal constitution is comparable. The Fifth Amendment provides, in part, “No person
… shall be compelled in any criminal case to be a witness
against himself.” The Fourteenth Amendment provides, in
part, “nor shall any State deprive any person of life, liberty,
or property, without due process of law.” Together, those constitutional provisions require that a confession or admission be voluntary to be admitted into evidence. Dickerson
v. United States, 

, 

, 

 (2000). As under Oregon law, the test for voluntariness is whether, under the totality of the circumstances,
it is apparent that the defendant’s will was not overborne
and his capacity for self-determination was not critically
impaired. Schneckloth v. Bustamonte, 

,

, 

 (1973).
Cite as 

 (2021)                              769

          However, as under Oregon law, that straightforward
calculus is complicated when admissions are compelled by
a noncriminal regulatory regime; statements compelled by
such a regime do not necessarily invoke the privilege against
self-incrimination, even if they “may prove incriminating.”
Baltimore Dept. of Social Servs. v. Bouknight, 

, 555-
56, 

, 

 (1990). When a regulatory
framework compels certain disclosures, a claimant seeking
to invoke the privilege must “show that the compelled disclosures will themselves confront the claimant with substantial
hazards of self-incrimination.” California v. Byers, 

, 

, 

 (1971) (plurality opinion)
(internal quotation marks omitted). Claimants are likely not
confronted with such hazards where the inquiries are “neutral on their face and directed at the public at large” and part
of an “essentially noncriminal and regulatory area of inquiry.”
Albertson v. SACB, 

, 

, 

(1965). For instance, a court order requiring a custodial mother
with an open juvenile dependency case to produce her child
and a California law requiring drivers involved in accidents
to stop and give their names and addresses did not present
substantial hazards of self-incrimination. Bouknight, 

; Byers, 

. On the other hand, substantial hazards of self-incrimination are likely where inquiries
are “directed at a highly selective group inherently suspect
of criminal activities,” “in an area permeated with criminal
statutes,” where the government demands “the admission of
a crucial element of a crime.” Albertson, 

. For
instance, federal statutes that required individuals to register
and pay taxes for gambling activities and orders that required
members of the Communist Party to register did present substantial hazards of self-incrimination where the conduct at
issue (gambling and membership in the Communist Party)
constituted criminal conduct. Grosso v. United States, 

, 

, 

 (1968); Marchetti v. United
States, 

, 

, 

 (1968);
Albertson, 

. When a required disclosure is potentially incriminating, resolving whether the privilege applies
requires “balancing the public need on the one hand, and the
individual claim to constitutional protections on the other.”
Byers, 

.
770                                            State v. Benson

         Our analysis under the federal constitutional provisions reaches the same result as our analysis under Oregon
law. The requirement that an offender acknowledge that
they are aware of their registration requirements exists as
part of a noncriminal regulatory framework, is individually
regulatory in nature, and serves the noncriminal purpose
of effectuating Oregon’s sex offender registration system.
We acknowledge factors that weigh in defendant’s favor.
Although the acknowledgment requirement applies equally
to all who register, the requirement falls only on convicted
sex offenders, a group we can hardly deny is “inherently suspect of criminal activities.” Albertson, 

. And,
if defendant’s interpretation of ORS 163A.040(1) is correct,
the disclosures compelled by the reporting forms can provide the state with “the admission of a crucial element of a
crime,” if that offender later fails to report. 

 However, the
acknowledgment requirement still did not present defendant
with substantial hazards of self-incrimination. The disclosures did not by themselves “implicate anyone in criminal
conduct.” Byers, 

. As we explained earlier, at
the time defendant completed the forms, the disclosures signaled his compliance with the law rather than his violation
of it. Defendant had to subsequently commit the criminal
conduct of failing to report before his earlier acknowledgments developed any incriminating nature.

         That circumstance distinguishes the instant case
from the cases cited by defendant. We start with Marchetti,
which defendant cites for the proposition that “the [privilege
against self-incrimination] applies even to statements made
before the defendant commits a crime.”

         In Marchetti, the United States Supreme Court
determined that a requirement that the defendant acquire
a federal gambling tax stamp, even though required before
the defendant had engaged in illegal gambling, nevertheless effectively declared the defendant’s “present intent to
commence gambling activities, oblig[ing] even a prospective
gambler to accuse himself of conspiracy to violate” various gambling statutes. 390 US at 52-53. Here, defendant’s
admissions that he was aware of the registration requirements admitted no crime at all at the time they were made,
Cite as 

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nor did they indicate that defendant intended to engage in
future criminal activity. That reality also distinguishes
defendant’s situation from Redwine v. Starboard, LLC, 

, 

 (2011), which defendant cites
for the proposition that “[t]he [Fifth Amendment] protection
does not depend on whether a criminal prosecution is pending.” (Internal quotation marks omitted.) In Redwine, the
appellant was called to testify in civil proceedings on a topic
closely related to the federal criminal investigation then
pending against her. 

. Unlike the appellant in
Redwine, defendant had not engaged in any relevant criminal activity at the time he made the statements contained
in his past registration forms and was under no suspicion
of such activity. In light of those realities, the requirements
of the sex offender registration process would not lead an
offender to “realistically … expect that registration will
substantially increase the likelihood of his prosecution.”
Haynes v. United States, 

, 

, 

 (1968). And, despite defendant’s citation of the
above cases in his favor, he fails to point us to any case in
which the federal courts have found substantial hazards
of self-incrimination under circumstances similar to those
presented in this case. For those reasons, we conclude that
the requirement that defendant acknowledge his awareness
of his reporting obligations did not present him with “substantial hazards of self-incrimination.”
         In conclusion, the trial court did not err in admitting defendant’s prior sex offender registration forms.
The admissions contained in those forms did not present
either “substantial risks” or “substantial hazards” of self-incrimination, as required to render defendant’s admissions
involuntary and inadmissible under either ORS 136.425(1)
and Article I, section 12, or the Fifth and Fourteenth
Amendments.
        Affirmed.