State v. Hoseclaw

It is appropriate for the court to correct an error if the "plain error [is] based on the defendant's challenge to the sufficiency of the evidence given the gravity of the error and intervening change in the law." See State v. Inloes, 239 Or App 49, 54-55, 243 P3d 862 (2010).

Defendant appealed a conviction of violating ORS 163A.040(1)(d)(2015), amended by Or Laws 2017, ch 418, §1, which provides that "a person commits the crime of failure to report as a sex offender if the person 'moves to a new residence and fails to report the move and the person's new address.'" Defendant assigned error to the State's determination that Defendant's release from the Jackson County Jail "triggered his obligation to report a change of residence." On appeal, Defendant argued the State failed to prove his reporting obligation was actually triggered because his release from jail was not a change of residence within the meaning of the statute. Additionally, Defendant argued the State failed to prove that Defendant also "acquired a new residence." In response, the State argued Defendant failed to preserve his argument for appeal. It is appropriate for the court to correct an error if the "plain error [is] based on the defendant's challenge to the sufficiency of the evidence given the gravity of the error and intervening change in the law." See State v. Inloes, 239 Or App 49, 54-55, 243 P3d 862 (2010). The Court concluded, based on the change of law in State v. Lafountain, 299 Or App 311, __ P3d __ (2019) - holding that “residence” as used in ORS 163A.040(1)(d) and ORS 163A.010(3)(a)(B) does not include a jail in which the defendant is being held - the Court could exercise its discretion to correct the State's error in convicting Defendant of violating this specific statute, when Defendant should have been convicted under ORS 163A.040(1)(f), which would have been a misdemeanor.  

Reversed.