State v. McLarrin

                                      306

Argued and submitted February 11; in Case No. 19CR64410, reversed; in Case
                 No. 19CR71593, affirmed June 15, 2022


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               BENJAMIN SHELTON McLARRIN,
                     Defendant-Appellant.
                  Linn County Circuit Court
                   19CR64410, 19CR71593;
                  A173476 (Control), A173629
                                   

    In this consolidated case, defendant appeals a judgment of conviction for failure to register as a sex offender, ORS 163A.040(1). In defendant’s sole assignment
of error, he argues that the trial court erred in denying his motion for judgment
of acquittal. In that motion, defendant asserted that the only evidence that supported his conviction was a confession by defendant to an officer that he had
been living with his aunt for more than 10 days. Defendant argued that a conviction on the evidence, as presented, would be contrary to ORS 136.425(1), which
states that a confession alone cannot be the basis to convict a defendant of an
offense. Held: The trial court erred in denying defendant’s motion for judgment of
acquittal because apart from defendant’s confession, the evidence did not allow
an inference that tended to prove that the injury or harm specified in the crime—
that defendant did not register for more than 10 days after moving—occurred.
    In Case No. 19CR64410, reversed. In Case No. 19CR71593, affirmed.



    Rachel Kittson-MaQatish, Judge.
   Rond Chananudech, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Philip Thoennes, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before James, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
    EGAN, J.
   In Case No. 19CR64410, reversed. In Case No. 19CR71593,
affirmed.
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 (2022)                                               307

           EGAN, J.
          Defendant appeals a judgment of conviction for failure to register as a sex offender.1 ORS 163A.040(1). Under
ORS 136.425(1), a confession alone cannot be the basis to
convict a defendant of an offense unless there is “legally
sufficient corroborating evidence from which the jury could
draw an inference that tends to prove that (1) the injury or
harm specified in the crime occurred and (2) that this injury
or harm was caused by someone’s criminal activity.” State
v. Nickles, 

, 

 (2019). In
defendant’s sole assignment of error, he argues that the trial
court erred in denying his motion for judgment of acquittal. In that motion, defendant argued that the only evidence
that supported his conviction was a confession by defendant
to an officer that he had been living with his aunt for more
than 10 days. We conclude that, apart from defendant’s confession, the evidence did not allow an inference that tended
to prove that the injury or harm specified in the crime—
that defendant did not register for more than 10 days after
moving—occurred. Accordingly, we reverse.
          “We review a trial court’s denial of a motion for
judgment of acquittal to determine whether, after viewing
the facts in the light most favorable to the state, a rational
trier of fact could have found the essential elements of the
crime proved beyond a reasonable doubt.” State v. Moreno,

, 

, rev den, 

,
cert den, ___ US ___, 

, 

 (2016).
“Only if a defendant’s confession is supported by legally sufficient corroborating evidence may both the confession and
the independent corroborating evidence be considered in
determining whether that standard has been met.” State v.
Simons, 

, 

 (2007), rev den,

 (2008) (citing ORS 136.425(1); State v. Lerch,

, 

 (1984)).
        Defendant was required to report as sex offender.
As a part of that requirement, defendant had to report to a

    1
      This appeal is a consolidated case involving Case Nos. 19CR64410 and
19CR71593. Defendant only seeks review of Case No. 19CR64410. We omit any
further discussion of Case No. 19CR71593, as it is not relevant to our conclusion.
308                                                  State v. McLarrin

law-enforcement office “[w]ithin 10 days of a change of residence.” ORS 163A.010(3)(a)(B).2
         On August 27, 2019, Officer Flores was on patrol
when he made contact with defendant. Flores requested dispatch to do a warrant check on defendant. Dispatch informed
Flores that defendant was a registered sex offender and that
his registered address was at the Helping Hands located in
Albany. Flores asked defendant if defendant was still living there, which defendant responded in the affirmative.
Afterwards, Flores told defendant that if he moved, to make
sure to register.
          On September 6, Flores, while on patrol, made contact with defendant again. Flores “struck up a conversation”
with defendant “regarding [defendant’s] sex offender registry.” Flores asked defendant “where he was living.” Defendant
replied that he was not at Helping Hands anymore—
where his residence was registered at that time—rather,
defendant stated he “was living at his aunt’s house.” Flores
informed defendant of the obligation to update his registration and ended that contact.
         Two days later, on September 8, Flores made a
third contact with defendant. Flores asked defendant “about
his registration during that contact as well.” Defendant told
Flores that he “was going to update his sex offender registration to his aunt’s house on September 9th, which would
have been the next day.” Defendant also stated that he did
not know the “exact date that he had been living [at his
aunt’s house,] but [defendant] believed it was less than 10
days.”
        On September 10, Flores made his fourth contact
with defendant over a span of approximately two weeks.
Flores asked defendant if he had updated his registration
and defendant stated that he had not. Flores asked defendant
   2
     ORS 163A.010(3) provides, in part:
       “(a) A person described in subsection (2) of this section shall report,
   in person, to the Department of State Police, a city police department or a
   county sheriff’s office, in the county to which the person was discharged,
   paroled or released or in which the person was otherwise placed:
       “…
       “(B) Within 10 days of a change of residence[.]”
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how long he had been living with his aunt and, after a short
conversation, defendant stated that he had been living with
his aunt for “more than 10 days” and that he had been living
at his aunt’s house for “probably two weeks.”
         At that time, defendant was arrested for failing to
report as a sex offender. See ORS 163A.040(1) (“A person
who is required to report as a sex offender in accordance
with the applicable provisions of ORS 163A.010 … and who
has knowledge of the reporting requirement commits the
crime of failure to report as a sex offender if the person …
[m]oves to a new residence and fails to report the move and
the person’s new address[.]”); ORS 163A.010(3)(a)(B) (requiring registration “[w]ithin 10 days of a change of residence”).
         Defendant waived his right to a trial by a jury and
a bench trial occurred several months later. The state presented the evidence described above, as well as several of
defendant’s sex offender registration forms, including one
that defendant had filled out approximately two months
after his arrest, on which he indicated that he had moved
on September 7.
         After the state rested its case, defendant moved for a
judgment of acquittal. As relevant to this appeal, defendant
argued that the state failed to provide sufficient evidence
that defendant had violated his registration requirement.
Specifically, defendant argued that the only evidence that
the state provided that would have supported a conviction
of defendant for failing to register within 10 days was a confession, which, under ORS 136.427, “alone is not sufficient to
prove [an] element.”
        Defendant noted the difference between confessions
and admissions and conceded that defendant made admissions on September 6 and September 8 but argued that the
statement that defendant made to Flores on September 10
was a confession. Moreover, defendant argued that the conversations on September 6 and September 8 did not “corroborate the confession … that was made on September 10.”
        The trial court agreed with defendant that his statements on September 6 and September 8 were admissions
and that the statements on September 10 were a confession.
310                                         State v. McLarrin

Nevertheless, the court denied defendant’s motion because
the court concluded that the admissions were sufficient
to corroborate defendant’s confession. Accordingly, the
court denied defendant’s motion. At the conclusion of trial,
the court found defendant guilty, and this timely appeal
followed.

        On appeal, defendant concedes, and we agree, that
defendant’s statements on September 6 and September 8
are admissions. Furthermore, the state concedes, and we
agree, that defendant’s statements on September 10 were
a confession. State v. Hauskins, 

, 

 (2012) (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” (internal quotation marks omitted)). With
those concessions, defendant argues that defendant’s admissions on September 6 and September 8, only “establish that
[defendant] had changed his residence on September 6.”
The state responds that, contrary to defendant’s argument,
defendant’s admissions sufficiently corroborate defendant’s
confession.

          ORS 136.425(2) provides, in part, that “a confession alone is not sufficient to warrant the conviction of the
defendant without some other proof that the crime has been
committed.” The Supreme Court has explained that that
statutory provision “codified the common law ‘corpus delicti
rule.’ ” State v. Chatelain, 

, 

 (2009).
The purpose of the rule is to require proof—independent of
a confession, which may be false—that a crime has actually
occurred before a person may be convicted of and punished
for that crime. See 

 (“The corpus delicti rule emerged in
England in the 1800s, apparently in response to celebrated
cases in which alleged murder victims turned up alive
after their alleged murderers already had been convicted
and hanged for the offenses.”). To that end, it requires the
introduction of “independent evidence tending to show” that
“(a) the injury or harm specified in the crime occurred” and
“(b) that injury or harm was caused by someone’s criminal
activity.” 

 (internal brackets and quotation marks
omitted).
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         Given the purpose of the rule and the elements set
out as (a) and (b) above, the Supreme Court has explained
that “[t]he corpus delicti of a given crime does not ordinarily
include every element of the crime that the state is required
to prove for conviction.” 

      “In the case of a homicide, for example, the corpus delicti
   consists of evidence (a) that a death has occurred and
   (b) that the death was caused by someone’s criminal
   activity. However, in the case of burglary and some other
   crimes—attempt crimes, for example—determining the
   extent of the injury or harm produced by the given crime
   is more difficult than it is with crimes like homicide and
   arson.”
Id. at 284-85 (internal citations and quotation marks omitted). Thus, the specific nature of the crime, and its elements,
are important to determining what the crime’s specified
“injury or harm” is and, according, which elements must be
corroborated. Id. at 285-87 (considering the characteristics
of burglary to determine which elements require corroboration); Nickles, 

 (considering in detail the
elements of the crime of unlawful possession of a destructive device to determine the sufficiency of corroborating
evidence).
         “[W]hether evidence is sufficient to satisfy[ ] ORS
135.425(1) does not present the same question as whether
that evidence is sufficient, on its own, to convict the defendant. Even so, there must be some proof, aside from the confession, as to the relevant facts.” Chatelain, 

(emphases in original).
          With that background in mind, we begin by considering what “the relevant facts” are in this case, given
the crime with which defendant was charged. 

 ORS
163A.010(3)(a)(B) requires that people subject to the reporting requirement “shall report, in person” to one of several
types of law enforcement agencies in a particular county
“[w]ithin 10 days of a change of residence.” ORS 163A.040
(1)(d) criminalizes failure to knowingly fail to comply with
that reporting requirement, including its 10-day timing
requirement. State v. Fry, 

, 

(2020) (the crime of failure to register as a sex offender occurs
312                                                      State v. McLarrin

“ ‘literally at midnight on the tenth day after the defendant
change[s] his residence’ ” (quoting State v. Depeche, 

, 

 (2011)).
          The injury or harm specified by those provisions is
specific: The legislature has not identified injury or harm in
a sex offender’s act of moving or, after moving, in waiting up
to 10 days before reporting. The person’s conduct remains
innocent, not criminal, until the end of the tenth day. Thus,
the injury or harm specified by ORS 163A.010(3)(a)(B) and
ORS 163A.040(1)(d) is the harm to the public caused by a
sex offender’s act of waiting more than 10 days after changing residences without reporting.3
         Accordingly, for our purposes here, the “relevant
fact” of which there had to be “some proof, aside from the
confession,” Chatelain, 

, is that defendant did
not report for more than 10 days after moving to his aunt’s
house. See 

 (holding that evidence tending to establish or prove that, when the defendant entered a building, he
intended to commit a crime, was necessary to corroborate
his confession because “the defendant’s intent to commit a
crime in the building [is] the characteristic distinguishing
burglary from mere trespass”). Cf. Nickles, 

 (because the statute at issue did not prohibit possession of all explosive devices, evidence that the defendant had
been injured in an explosion did not tend to show that the
injury was a result of criminal activity).
         Next we consider what it means for there to be
“some proof, aside from the confession” that defendant failed
to report for more than 10 days. Chatelain, 

(emphasis in original); ORS 136.425(1). The Supreme Court
has explained that, in this context, “ ‘some proof means that
there is enough evidence from which the jury may draw an
inference that tends to establish or prove’ a relevant fact.”
Chatelain, 

 (quoting Lerch, 

(emphasis in Chatelain)). As explained below, although the
independent evidence need not conclusively establish the relevant fact or facts, it is clear from both the Supreme Court’s
    3
      There is no dispute that, if that harm befell the public in this case, it was
caused by criminal activity, so we do not consider the second prong of the corpus
delicti rule.
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and our own case law that the evidence must, in some way,
tend to establish the existence of the relevant fact in particular, rather than being consistent with either the presence
of that fact or its absence. Moreover, circumstantial evidence
that is consistent with the existence of the relevant fact—
even if it might lead a juror to suspect that the relevant fact
is one explanation for the circumstances—is not enough to
meet the corroboration standard under ORS 136.425(1).4
         For example, in Nickles, the defendant’s hand was
injured when a homemade explosive device exploded while
he was holding it. He confessed that the device had characteristics that made it an unlawful explosive device.
Id. at 562-63. We explained that not all explosive devices
are unlawful; for example, “a bomb—which would normally
be unlawful to possess—can nonetheless be permissible to
possess if it was prepared for the primary purpose of producing a visible or audible effect.” Id. at 564. The state argued
that the injuries to the defendant’s hand, which were consistent with something exploding in his hand, corroborated
the defendant’s confession because they showed that he had
possessed an explosive device. Id. at 565.
         We rejected that argument, explaining that the
“defendant’s injuries do not assist the state in establishing
that the injury was caused by criminal conduct rather than
by one of the myriad noncriminal causes of traumatic hand
injuries.” Id. Specifically, we explained,
       “Without relying on defendant’s confession for additional information about the explosion, a jury would be left
   to speculate as to the cause of his hand injury and whether
   it had resulted from the explosion of an illegal device or,
   instead, something else, such as a firework or a highly
   pressurized device that defendant lawfully could possess.”
Id. The independent evidence did not tend to establish the
existence of the relevant fact—that the defendant’s injury
was caused by an unlawful explosive device. Rather, the
injury to the defendant’s hand could have been caused by

    4
      Both of those principles are consistent with the original purpose of the
corpus delicti rule, which, as noted above, was to prevent convictions based on
false confessions for crimes that have not occurred despite circumstances that
are consistent with the possibility that the crimes may have occurred.
314                                        State v. McLarrin

possession of an unlawful explosive device or possession of a
lawful explosive device. Accordingly, evidence of the injury
did not adequately corroborate the defendant’s confession.
Id. at 566.

         In State v. Simon, 

, 

 (2007), rev den, 

 (2008), there was ample evidence that the defendant, who worked at an assisted living
facility and had confessed to numerous sex crimes against
its residents, “had private, unsupervised access to” the victims, “was sensitized to the sexual behavior of his patients,
… was sexually attracted to older women, and … acted
on that attraction in his conduct with his coworkers.”
Although that evidence showed that the defendant had the
opportunity and motive to commit the crimes, we held that
it nevertheless did not corroborate the defendant’s confession because it did not “support a reasonable inference that
[the victims] suffered harm.” Id. at 687. That is, although
that circumstantial evidence was consistent with the existence of the relevant facts—that the defendant had sexually
assaulted the victims in the specific ways alleged—that did
not serve the purpose of the corroboration rule because the
evidence lacked the specificity required to make it tend to
show that crimes had actually taken place. See also State v.
Delp, 

, 

, rev den, 

(2008) (“None of the evidence offered by the state independent of the confession[—evidence of the defendant’s sexual
interest in children, opportunity to commit the crimes, and
the existence of a towel mentioned in the confession—]tends
to demonstrate or gives rise to an inference that the alleged
victim was the subject of the specific acts of sodomy and sexual abuse set forth in the indictment.”).

        In Chatelain, the Supreme Court evaluated whether
“the state provided adequate independent proof of [the
defendant’s] intent to distribute marijuana to his minor
companion” once they had unlawfully entered a house to
make the unlawful entry into burglary. 

. The
state argued that evidence that the defendant and the companion had entered the house early in the morning and
remained inside for 45 minutes and that the defendant fled
when the police arrived, exhibited signs of stimulant use
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and marijuana use upon apprehension, and had two lighters
with him, adequately corroborated his intent. 

         The Supreme Court disagreed. It explained that the
first three pieces of evidence “tend[ ] to support an inference
that defendant knew he had engaged in some wrongdoing,”
but that that evidence “does not support an inference as to
defendant’s particular mental state, which is the fact that
must be corroborated.” 

 (emphases in original). As to the
other two pieces of evidence, the court explained that “[t]he
evidence of defendant’s stimulant use and his possession of
two lighters does not support an inference that defendant
intended to distribute marijuana to a minor when he entered
the house.” Id. at 289. Thus, the court concluded that the
state had failed to adequately corroborate the defendant’s
intent to distribute marijuana to a minor. Id.
         With the understanding that the independent evidence must support an inference, with particularity, as to
the fact that must be corroborated, Chatelain, 

,
we turn to the independent evidence that the state provided
in this case, to determine whether it supports an inference
that defendant did not report for more than 10 days after
moving to his aunt’s house:
    •   On August 27, 2019, defendant told Flores that he
        was living at Helping Hands.
    •   On September 6, 2019, defendant told Flores that
        he was not at Helping Hands anymore and that he
        “was living at his aunt’s house.”
    •   On September 8, 2019, defendant told Flores that he
        “was going to update his sex offender registration to
        his aunt’s house … the next day.” Defendant also
        stated that he did not know the “exact date that he
        had been living [at his aunt’s house,] but [defendant] believed it was less than 10 days.”
On September 10, defendant confessed that he had lived at
his aunt’s residence for over 10 days, and he was arrested.
        To corroborate defendant’s confession that, as of
September 10, he had committed the crime by failing
to report within 10 days of changing his residence, the
316                                        State v. McLarrin

independent evidence must tend to establish that he moved
to his aunt’s house more than 10 days before that date—on
or before August 31. As explained above, the independent
evidence need not conclusively establish that defendant
moved on or before August 31, but it must tend to establish
the existence of that fact in particular, rather than being
consistent either with defendant having moved on or before
August 31 (in which case a crime occurred) or with defendant having moved on or after September 1 (in which case
no crime occurred).
         Defendant’s statements on August 27 and
September 6 establish that he moved to his aunt’s house
sometime between August 27 and September 6. That evidence makes it no more likely that defendant moved on or
before August 31 than that he moved on or after September 1;
he could have moved during either time period, and the evidence says nothing one way or the other.
         Defendant’s September 8 statements do not change
that situation. On September 8, defendant said that he “was
going to update his sex offender registration to his aunt’s
house … the next day” and that he did not know the “exact
date that he had been living [at his aunt’s house,] but [defendant] believed it was less than 10 days.” Although those
statements are consistent with the possibility that he moved
on or before August 31, in which case defendant would have
been living at his aunt’s house for at least nine days at that
point, they are equally consistent with the possibility that
he moved on or after September 1, in which case defendant
would have been living at his aunt’s house for up to 8 days
at that point. Without relying on defendant’s confession for
additional information about defendant’s moving date, a
jury would be left to speculate as to the date of his move
and, thus, as to whether a crime had been committed or not.
See Nickles, 

.
         In sum, there was insufficient corroborating evidence to support defendant’s confession, and, accordingly,
we conclude that the trial court erred in denying defendant’s
motion.
         In Case No. 19CR64410, reversed. In Case No.
19CR71593, affirmed.