       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                              PAUL DEMUS,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3497

                            [October 10, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Timothy L. Bailey, Judge; L.T. Case No. 15-
004876CF10A.

   Carey Haughwout, Public Defender, and Ikram Ally, Assistant Public
Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Appellant challenges his convictions for two counts of failure to register
as a sexual offender. The information charged appellant with failing to
register within forty-eight hours after establishing or maintaining a
permanent or transient address in Broward County and failing to similarly
report to the Driver’s License Bureau. Appellant moved for judgment of
acquittal at the close of the State’s case, because the State failed to prove
the elements of the crime alleged in the information. The trial court denied
the motion. We reverse because the State presented no evidence that
appellant had established any type of residence in Broward County within
the time frame alleged in the information.

   The State filed an information charging the appellant with failure to
register as a sex offender. Count I of the information stated:

      [Appellant] on or between the 3rd day of February, 2015, and
      the 10th day of April, 2015, in the County and State aforesaid
      [Broward County], being a sexual offender, did fail to report in
      person within 48 hours of establishing a permanent,
      temporary, or transient residence within Broward County,
      Florida and provide the required information to the Broward
      County Sheriff’s Office contrary to FS 943.0435(2) and
      943.0435(9)(a).

Count II of the information provided:

      [Appellant] on or between the 3rd day of February, 2015, and
      the 10th day of April, 2015, in the County and State aforesaid,
      being a sexual offender, did fail to report in person to a driver’s
      license office and provide the required information within 48
      hours after a change in his permanent, temporary, or
      transient residence, contrary to FS 943.0435(4) and
      943.0435(9).

   The parties stipulated that appellant was previously convicted as a
sexual offender, which triggered the reporting requirements of section
943.0435, Florida Statutes. At trial, the State’s sole witness was an
employee of the FDLE in the Sex Offender Registry Department in 2015.
On March 25, 2015, she searched several databases and discovered that
appellant never registered within the forty-eight hour period after he was
released from the Department of Corrections. She noted that the
databases reflected that he had been released from prison on February 1,
2015. His last registration prior to his prison term was in 2009, at which
time he listed his residence in Miami. Over objection, she was allowed to
testify that he had registered on June 1, 2015 (a date outside the time
parameters in the information), as a transient in Broward County. The
FDLE employee had no personal knowledge as to where he was actually
residing from February 1, 2015, to the date of her search. She had seen
a video of him leaving a supermarket in Hollywood, Florida, but no date of
that video was given. A “Record of Inmate Discharge” form admitted by
the State through her testimony and signed by appellant on January 20,
2015, noted his “County of Discharge” as “Miami Dade” and his Release
Address as homeless, “Miami, FL.” It also noted that transportation was
required to Miami.

   After presentation of the State’s case, appellant’s attorney moved for
judgment of acquittal, contending that the State had failed to prove that
appellant had ever established any kind of residence in Broward County.
The trial court denied the motion. The defense presented no witnesses,
and the case was submitted to the jury. On the charges of failure to
register, the jury was instructed as follows:


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      To prove the crime of failure by a sexual offender to comply
      with registration requirements the state must prove the
      following three elements beyond a reasonable doubt.

         1. Paul Demus is a sexual offender.

         2. Paul Demus established a permanent, temporary or
            transient residence in Broward County, Florida.

         3. Paul Demus knowingly failed to register in person at an
            office of the Sheriff of Broward County within 48 hours
            after establishing permanent, temporary, or transient
            residence within the state.

      To prove the crime of failure by a sexual offender to comply
      with registration requirements, the state must prove the
      following three elements beyond a reasonable doubt.

         1. Paul Demus is a sexual offender.

         2. Paul Demus established or maintained a permanent or
            temporary or transient residence in Broward County,
            Florida, and

         3. Paul Demus, knowingly failed to report in person to a
            driver's license office of the Department of Highway
            Safety and Motor Vehicles within 48 hours after any
            change in his permanent, temporary or transient
            residence.

   The jury found appellant guilty, and the trial court sentenced him to
14.8 years in prison. Appellant now appeals his conviction.

   Appellant contends that the court erred in denying his motion for
judgment of acquittal, because the State did not prove that he had
established any residence in Broward County. We review the denial of a
motion for judgment of acquittal de novo. Pagan v. State, 830 So. 2d 792,
803 (Fla. 2002).

   In Count I of the information, appellant was charged with a violation of
section 943.0435(2), Florida Statutes (2014). That section provides:

      (2) A sexual offender shall:


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      (a) Report in person at the sheriff’s office:

      1. In the county in which the offender establishes or
         maintains a permanent, temporary, or transient residence
         within 48 hours after:

      a. Establishing permanent, temporary, or transient residence
         in this state; or

      b. Being released from the custody, control, or supervision of
         the Department of Corrections or from the custody of a
         private correctional facility[.]

   The information, however, alleged facts which, if proved, would
establish a violation of section 943.0435(2)(a)1.a. It did not allege a
violation of the statute by failing to report within forty-eight hours of being
released from custody.

      The general rule is where an offense may be committed in
      various ways, the evidence must establish it to have been
      committed in the manner charged in the indictment. The
      Statute provides a penalty for acts in the disjunctive. The
      indictment or information may have alleged them in the
      conjunctive and proof of one would have sufficed but if one of
      the state of facts is alleged, it cannot be established by proof of
      the other.

Long v. State, 92 So. 2d 259, 260 (Fla. 1957) (emphasis supplied). Thus,
the State was required to prove that appellant had failed to report within
forty-eight hours of establishing a residence of some sort in Broward
County. The State failed to prove that element. The FDLE employee
proved only that appellant had not registered in Broward County. She
offered no evidence that he had established any type of residence in
Broward County. In fact, the only evidence of residence was found on the
Inmate Release form admitted by the State which states that his residence
will be in Miami.

    The State suggests that the defense conceded the defendant’s residence
was in Broward County when, in opening argument, the defense attorney
stated that appellant mistakenly was let off a bus in Broward County
rather than Miami. Not only is what is said in argument not evidence, but
defense counsel never admitted that appellant resided in Broward. Even
if he had been let off the bus in Broward, defense counsel stated that


                                      4
appellant’s intent was always to reside in Miami. Defense counsel never
admitted that appellant spent even a night in Broward.

    Second, the State contends that when defense counsel asked the FDLE
employee whether she had any personal knowledge of appellant’s
whereabouts, she first said she received a tip that was phoned in, and she
looked at a video of him shopping at a grocery store. The defense counsel
then asked whether she had any personal knowledge of appellant’s
whereabouts, which she stated she did not. Neither the tip nor the grocery
store video provides any evidence for the court to deny the motion for
judgment of acquittal. The witness did not provide any details about either
the tip (which would have been inadmissible hearsay) or the video, nor did
she provide a date for either. A video of appellant shopping in a store
would not prove that he resided in the county in which that store was
located. As to the tip, it is not evidence of appellant’s guilt. The employee
only referred to it as supporting her belief that appellant resided in
Broward County. One cannot infer from the fact that the employee
received a tip that it confirmed appellant’s residence in Broward County.
It is just as likely that the tip suggested a sighting of appellant at the store
where the video was recorded. Furthermore, at the commencement of trial
the court had already ruled that tips received by FDLE were inadmissible,
and the video was not revealed to the defense prior to trial. The court
ultimately directed the State not to refer to either in its closing argument.
As there was no evidence to show that appellant was a resident of Broward
County in any capacity, the court should have granted the motion for
judgment of acquittal on Count I.

   Count II alleged a violation of section 943.0435(4), Florida Statutes
(2014) which provides:

      (a) Each time a sexual offender's driver license or
      identification card is subject to renewal, and, without regard
      to the status of the offender's driver license or identification
      card, within 48 hours after any change in the offender's
      permanent, temporary, or transient residence . . . the offender
      shall report in person to a driver license office, and is subject
      to the requirements specified in subsection (3).

The statute requires proof that the offender changed a residence without
then reporting it to the driver’s license bureau. The State never proved
that appellant changed his residence. It attempted, and failed, to prove
that he established a residence in Broward County pursuant to section
943.0435(2)1.a., Florida Statutes. But it neither argued nor provided any
proof that he changed his residence after release from prison. His

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residence prior to prison was Miami, and no evidence was introduced that
showed any change in residence during the time period listed in the
information. Indeed, the inmate release form confirmed that appellant
would be returning to Miami upon release.

   The jury instructions required proof of the following elements: first, that
the offender had established a residence; second, that he had changed his
residence; and third, that he had not reported to the driver’s license agency
within forty-eight hours of the change. Under section 943.0435(4)(a) a
change in residence may be established by proof that the defendant
abandoned a prior residence or established a new residence. See Parks v.
State, 96 So. 3d 474 (Fla. 1st DCA 2012). But in this case, the State
neither proved that appellant established his residence in Broward County
nor changed nor abandoned it. Thus, the court also erred in denying the
motion for judgment of acquittal as to Count II.

   For the foregoing reasons, we vacate the conviction and direct that the
court enter a judgment of acquittal as to the charges. Because he
continues to be a sexual offender, however, compliance with section
943.0435 must continue.

GROSS and GERBER, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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