People v. Gomez, 2017 IL App (1st) 142950 (March). Episode 322 (Duration 5:56)

Another failure to register as a sex offender is overruled; really highlighting it matters how they charge these things.

Charges

The State charged defendant with one count of failing to register as a sex offender under section 3(a)(1) of the Act, alleging that defendant “knowingly failed to register, in person, as a sex offender with the Chicago police department within 3 days of establishing a residence or temporary domicile in the city of Chicago.”

For a list of more Illinois crimes check out this crimes index.

Facts

Chicago PD have defendant in custody on another matter. They notice he has not registered as a sex offender living in Chicago. The say he should have registered with them within 3 days after being released from prison.

Apparently, Defendant told them that he had tried to register, but the officer did not let him complete the registration because the address he wanted to use was too close to a school.

The court found defendant guilty, stating that the State had proved that defendant “knowingly failed to register in person as a sex offender with the city of Chicago within three days of establishing a residence or temporary domicile in the city of Chicago.” The court sentenced defendant to three years’ incarceration. Defendant filed his appeal.

SORA

Section 3(a)(1) of SORA requires a sex offender to register in person: “with the chief of police in the municipality in which he or she resides or is temporarily domiciled for a period of time of 3 or more days, unless the municipality is the City of Chicago, in which case he or she shall register at the Chicago Police Department Headquarters.” 730 ILCS 150/3(a)(1).

The Act defines “place of residence or temporary domicile as any and all places where the sex offender resides for an aggregate period of time of 3 or more days during any calendar year.” 730 ILCS 150/3(a).

Inherent in each definition is the idea of a specific location.

In order to prove a violation of section 3(a)(1) in this case, then, the State was required to prove both

(1) that the defendant resided or was temporarily domiciled at a specific location within Chicago, and
(2) that the defendant failed to register there.

The State didn’t prove that defendant was living in Chicago.

Analysis

While defendant’s presence at the Chicago police station could lead to the logical inference that defendant was present in Chicago when he was arrested, it does not prove that defendant resided in Chicago on that date, nor could it possibly prove that he had resided in Chicago both on that day and at least two other days in that calendar year, to reach the necessary three-day, temporary domicile element under the statute.

Without any evidence placing defendant’s residence in Chicago for at least three days, the State failed to prove that defendant permanently resided, or was temporarily domiciled, in Chicago.

Not Charged With…

While the law does require defendant to register within three days of his release from prison, and the evidence showed that defendant never registered anywhere, defendant was not charged with failing to register within three days of his prison release or with failing to comply with annual registration (or even with failing to register weekly if homeless).

See also 730 ILCS 150/3(a), 3(b), 6 (requiring homeless sex offender to report weekly, sex offender to register with police within three days of establishing residence in municipality, and sex offender to report annually with police department he last registered with).

He was charged with failing to register in Chicago.

Speculative

True, it is well within the realm of possibility that defendant moved to Chicago for three days or longer after he was released from prison, but it is just as possible that he did not. The record contains no evidence one way or the other.

And the fact that defendant, at one point, attempted to register at an address located within Chicago tells us nothing about his length of stay at that address.

We do not know if defendant resided at that address for one or more days before he attempted to register, or how long he remained at that address after being denied registration, if at all.

Holding

Simply put, we have a length of time that defendant did not register—the entire time he has been out of prison—but we have no “specific location” of his residence sufficient to show that defendant was required to register in Chicago, as opposed to any other jurisdiction. Reasonable inferences are one thing, but courts will not fill in the gaps in the State’s evidence with conjecture.

The reviewing court said that the statute can only be interpreted to mean that that the state must prove the exact address defendant was living at.

The court held that because a defendant’s duty to register is inextricably intertwined with the municipality where he resides or is temporarily domiciled, the proof of a defendant’s place of residence or temporary domicile is an essential element of the offense of failing to register under section 3(a)(1).

Conviction reversed outright.