State v. McLarrin

Decision Date15 June 2022
Docket NumberA173476 (Control), A173629
Citation320 Or.App. 306,513 P.3d 40
Parties STATE of Oregon, Plaintiff-Respondent, v. Benjamin Shelton MCLARRIN, Defendant-Appellant.
CourtOregon Court of Appeals

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, Salem, 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.


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 , 299 Or. App. 561, 563-64, 451 P.3d 624 (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 , 276 Or. App. 102, 107, 366 P.3d 839, rev. den. , 359 Or. 525, 379 P.3d 519, cert. den. , ––– U.S. ––––, 137 S. Ct. 342, 196 L. Ed. 2d 272 (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 , 214 Or. App. 675, 677, 167 P.3d 476 (2007), rev. den. , 214 Or. App. 675, 167 P.3d 476 (2008) (citing ORS 136.425(1) ; State v. Lerch , 296 Or. 377, 398-99, 677 P.2d 678 (1984) ).

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

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 , 251 Or. App. 34, 40, 281 P.3d 669 (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 , 347 Or. 278, 283, 220 P.3d 41 (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 id. ("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." Id. at 284, 220 P.3d 41 (internal brackets and quotation marks omitted).

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." Id.

"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, 220 P.3d 41 (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, 220 P.3d 41 (considering the characteristics of burglary to determine which elements require corroboration); Nickles , 299 Or. App. at 564, 451 P.3d 624 (considering in detail the elements of the crime...

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