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                               Appellate Court                         Date: 2017.05.19
                                                                       08:06:55 -05'00'




                  People v. Gomez, 2017 IL App (1st) 142950



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           NOE GOMEZ, Defendant-Appellant.



District & No.    First District, Fourth Division
                  Docket No. 1-14-2950



Filed             March 23, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-13852; the
Review            Hon. Rosemary Grant Higgins, Judge, presiding.



Judgment          Reversed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Todd T. McHenry, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Mary L. Boland, and Maha Gardner, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             PRESIDING JUSTICE ELLIS delivered the judgment of the court,
                  with opinion.
                  Justices Howse and Burke concurred in the judgment and opinion.
                                              OPINION

¶1       Defendant Noe Gomez was found guilty of one count of failing to register as a sex offender
     under section 3(a)(1) of the Sex Offender Registration Act (Act) (730 ILCS 150/3(a)(1) (West
     2012)). Under section 3(a)(1), a sex offender has a duty to register with the police in any
     municipality where he “resides or is temporarily domiciled for a period of time of 3 or more
     days.” Id.
¶2       In this appeal, defendant argues that the State failed to prove that he resided or was
     temporarily domiciled in Chicago, as the State alleged in the indictment. We agree. The State
     was required to prove two things—(1) that defendant permanently resided or was temporarily
     domiciled in Chicago, and (2) that defendant failed to register in Chicago. The State failed to
     prove the first element. The State presented no evidence regarding defendant’s current address
     and no evidence proving that defendant had resided anywhere in Chicago for at least three days
     in the relevant calendar year. At most, the State presented evidence that defendant previously
     tried to register at an address in Chicago, that he was later in police custody in Chicago, and
     that a Chicago police officer could not find any record of defendant being registered in any
     jurisdiction, Chicago or otherwise. Whatever might be said about defendant’s failure to
     register, and regardless of whether he may have violated other provisions of state law, the State
     presented no evidence that he violated section 3(a)(1). We reverse defendant’s conviction.

¶3                                        I. BACKGROUND
¶4       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.”
¶5       At defendant’s bench trial, Detective Lunsford of the Chicago police testified that, on June
     26, 2013, he met with defendant at the 18th District police station, where defendant was in
     custody on “an unrelated matter.” Lunsford learned defendant’s sex offender registration
     number and, using the number, searched for a “hard card,” a card issued to a sex offender once
     he or she had completed his registration with the Chicago police. Lunsford said that he found
     “no hard card on file” for defendant. Lunsford testified that a sex offender could obtain a hard
     card “at any municipality or jurisdiction where [he] reside[d].” Lunsford testified that he
     looked “to see if there were hard cards in any other jurisdiction[s] that were on file” for
     defendant and did not find any.
¶6       Lunsford also testified that he received a copy of defendant’s sex offender registration
     form from the prison where he had been housed. According to Lunsford, defendant was
     supposed to have registered on or before July 16, 2012, three days following his release from
     prison.
¶7       Lunsford testified that defendant told him “that he attempted to register at the Chicago
     Police Department but he was not allowed to because the address he was attempting to register
     at was not a valid address.” Lunsford testified that defendant told him that he had attempted to
     register at “5435 South Spalding” but could not because “it was too close to a school.”




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¶8         On cross-examination, Lunsford testified that he checked jurisdictions within Illinois and
       that defendant “was not registered in any other state” according to “the Department of Justice
       online database.”
¶9         The parties stipulated that Victor Olf, a correctional officer at Robinson Correctional
       Center, met with defendant on July 13, 2012, the day defendant was being released from
       prison, and gave defendant a copy of a sex offender registration notification form. Defendant
       read the form, and Olf told him that he would “need to establish his residence within the
       jurisdiction which he decided to reside [in] within three days of his release [from prison], that
       being July 16, 2012.”
¶ 10       The State entered two certified copies of defendant’s 1993 conviction for aggravated
       criminal sexual abuse and 2010 conviction for failing to report as a sex offender.
¶ 11       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 this appeal.

¶ 12                                            II. ANALYSIS
¶ 13       On appeal, defendant raises two challenges to his conviction. First, he claims that the State
       could not prove him guilty of failing to register beyond a reasonable doubt because it failed to
       establish that he resided or was temporarily domiciled in Chicago. Second, he claims that the
       Act violates the ex post facto clauses of the United States and Illinois constitutions because it
       constitutes a form of punishment applied retroactively to defendant for his 1993 conviction.
       See U.S. Const., art. I, § 9, cl. 3; Ill. Const. 1970, art. I, § 16. We do not reach defendant’s
       constitutional claim because we agree that the State failed to prove him guilty of failing to
       register under section 3(a)(1) of the Act.
¶ 14       When evaluating the sufficiency of the evidence supporting a conviction, we determine
       whether, when viewing the evidence in the light most favorable to the State, any rational trier
       of fact could have found the elements of the offense to have been proven beyond a reasonable
       doubt. People v. Wheeler, 226 Ill. 2d 92, 114 (2007). We give “great weight” to the trier of
       fact’s determination of the credibility of witnesses and will only reverse a conviction where the
       evidence is so unreasonable, improbable, or unsatisfactory that it creates a reasonable doubt as
       to defendant’s guilt. Id. at 115.
¶ 15       As we noted above, section 3(a)(1) of the Act 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.” (Emphasis added.) 730 ILCS 150/3(a)(1) (West 2012).
       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) (West 2012). “Inherent in each definition is the idea of a specific
       location.” People v. Robinson, 2013 IL App (2d) 120087, ¶ 23.
¶ 16       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.

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¶ 17       For example, in People v. Evans, 365 Ill. App. 3d 374, 376 (2006), the court held that the
       State had presented sufficient evidence that the defendant resided at his girlfriend’s apartment
       in Dixon, Illinois, to support a conviction under section 3(a)(1). In Evans, the manager for the
       apartment building testified that the defendant moved into the building on October 26, 2003,
       and that he saw the defendant in the building “every evening.” Id. Moreover, several Dixon
       police officers testified that they pulled over defendant between October and November 2003.
       Id. at 376-77. The citations issued to the defendant during those traffic stops listed his
       girlfriend’s apartment as his address. Id. And in December 2003, the defendant registered as a
       sex offender with the Dixon police department, listing his girlfriend’s apartment as his address.
       Id. at 377. From this evidence, the court concluded that “a rational trier of fact could conclude
       beyond a reasonable doubt that, following his release from jail on October 26, 2003, defendant
       resided at [his girlfriend’s apartment] in Dixon for an aggregate period of 10 or more days, and
       that he failed to register with the Dixon police department within 10 days of establishing his
       residence there.” Id.1
¶ 18       By contrast, Robinson, 2013 IL App (2d) 120087, ¶ 1, concerned a similar but independent
       provision of the Act; the defendant was charged with failing to report a change of address
       under section 6 of the Act (730 ILCS 150/6 (West 2008)). One of the elements the State had to
       prove to establish that charge was that the defendant had “established a new ‘fixed residence’
       or ‘temporary domicile.’ ” Robinson, 2013 IL App (2d) 120087, ¶ 14. The evidence showed
       that the defendant had registered his address as his grandfather’s house in Aurora. Id. ¶¶ 3-5. In
       November 2009, the police went to the house to verify the defendant’s address, and the
       defendant’s grandfather told the police that the defendant had not lived with him since August
       2009 and that the defendant was working near Davenport, Iowa. Id. ¶ 5. After hearing that the
       police had met with his grandfather, the defendant called the police and told them “that he
       sometimes left the area for two or three days and was on his way back to Illinois.” Id. ¶ 7. The
       defendant’s sister testified that the defendant lived with their grandfather. Id. ¶ 8.
¶ 19       On appeal, the defendant argued that the State failed to prove him guilty of violating
       section 6 because it “failed to prove that any other location [the defendant] visited constituted a
       ‘fixed residence.’ ” Id. ¶ 17. The court agreed, noting that the definitions of “fixed residence”
       and “temporary domicile” connoted “the idea of a specific location” (id. ¶ 23) and that the
       State’s evidence merely proved the defendant’s absence from his grandfather’s house, not “the
       defendant’s presence at an unregistered address.” (Emphasis in original.) Id. ¶ 21. The court
       noted that the State was required “to prove a specific location [at which the] defendant was
       required to register.” Id. But the State failed to present “evidence of any specific address at
       which defendant stayed for an aggregate period of five days or more, let alone any specific
       amount of time he stayed at various locations.” Id. The lack of “any solid evidence of [the]
       defendant’s whereabouts when he was away” from his grandfather’s house gave rise to a
       reasonable doubt as to the defendant’s guilt. Id. ¶ 22.
¶ 20       The evidence in this case is a far cry from the evidence presented in Evans and is much
       more in line with the lack of proof in Robinson. Here, the State was required to prove that
       defendant resided in Chicago for at least three days without registering with the Chicago

           1
            At the time Evans was decided, section 3(a)(1) of the Act gave sex offenders 10 days to register,
       before the General Assembly, in its wisdom, decided that 10 days was far too long and eventually cut it
       down to 3 days. See Evans, 365 Ill. App. 3d at 376 (citing 730 ILCS 150/3(a)(1) (West 2002)).

                                                      -4-
       police. 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. As such, the State
       failed to prove that defendant was required to register in Chicago.
¶ 21       The State claims that defendant’s residence or temporary domicile in Chicago could be
       inferred from the evidence that defendant did not register as a sex offender within three days
       following his release from prison on July 13, 2012, that defendant said that he had previously
       tried to register at an address in Chicago, and that Detective Lunsford testified that he did not
       find any record of defendant having registered in Chicago or another jurisdiction. We reject the
       State’s claim that these three pieces of evidence could lead to a reasonable inference that
       defendant had been in Chicago for at least three days before his arrest.
¶ 22       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 730 ILCS
       150/3(a), (b), 6 (West 2012) (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. 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.
¶ 23       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.
¶ 24       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” (Robinson, 2013 IL App (2d) 120087,
       ¶ 23) of his residence sufficient to show that defendant was required to register in Chicago, as
       opposed to any other jurisdiction. And in the one instance in which a specific location was
       provided—when defendant attempted to unsuccessfully register at a Chicago address—we do
       not have a length of time to attach to that stay. Reasonable inferences are one thing, but we will
       not fill in the gaps in the State’s evidence with conjecture. See People v. Jones, 174 Ill. 2d 427,
       430 (1996) (element could not be proved beyond reasonable doubt based on “guess,
       speculation, or conjecture”).
¶ 25       The evidence, in the light most favorable to the State, showed that defendant tried to
       register at a Chicago address at some point between July 2012 and June 2013, and that he was
       in Chicago on the day of his arrest. No reasonable inferences can be drawn to establish
       defendant’s residence or temporary domicile in the city of Chicago for three days.
       Consequently, the State failed to prove that defendant failed to register under section 3(a)(1).
¶ 26       The State claims that, under section 3(a)(1), it was “not required to prove exactly where
       defendant was staying or residing” to establish his guilt. In other words, the State claims that,

                                                    -5-
       because there was no record that defendant had registered in any jurisdiction, and he had to live
       somewhere, the State must have proved him guilty of failing to register.
¶ 27        At the outset, the State cites no authority for this proposition, thereby forfeiting it. See Ill.
       S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016); Vine Street Clinic v. HealthLink, Inc., 222 Ill. 2d 276,
       301 (2006) (failure to cite authority results in forfeiture of argument).
¶ 28        Forfeiture aside, we reject the State’s position that it did not need to prove defendant’s
       specific residence or temporary domicile. Section 3(a)(1) requires the State to prove that the
       defendant failed to register with the police in the municipality where he resided or was
       temporarily domiciled. 730 ILCS 150/3(a)(1) (West 2012). Those terms are specifically
       defined in the law as any place where the defendant stays for at least three days. 730 ILCS
       150/3(a) (West 2012). We agree with Robinson that a specific location is contemplated by the
       statute. We can think of no other reasonable way to read it.
¶ 29        The State would have us simply assume defendant’s residence in some unspecified
       municipality by the mere fact that defendant did not register anywhere. But that reading throws
       out the residence element entirely by allowing the State to prove a defendant’s residence with
       evidence of a failure to register. It would eliminate one of the two statutory elements from the
       burden of proof. We decline to read the phrase “resides or is temporarily domiciled” as
       superfluous. See In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002) (if possible, court
       must give effect to “[e]ach word, clause and sentence of the statute” and not render words
       superfluous).
¶ 30        Moreover, the State’s reading of the text is undermined by the fact that the defendant’s
       residence or domicile determines the police department with which he must register. If the
       State did not have to prove the municipality in which a sex offender resided or was domiciled,
       there would be no way to determine if the defendant had any duty to register with the police
       department in question. All the State would have to show is that the police could not uncover a
       record of a defendant’s registration anywhere, leaving that defendant vulnerable to prosecution
       in any jurisdiction. Because a defendant’s duty to register is inextricably intertwined with the
       municipality where he resides or is temporarily domiciled, we conclude that 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).
¶ 31        The State failed to prove that defendant resided or was temporarily domiciled in Chicago.
       Thus, we reverse his conviction under section 3(a)(1). In light of our conclusion, we need not
       address defendant’s argument that the Act is an unconstitutional ex post facto law.

¶ 32                                       III. CONCLUSION
¶ 33       For the reasons stated, we reverse defendant’s conviction.

¶ 34       Reversed.




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