I enjoy writing these articles, but, I have marketing overlords that demand relevant content. Now, what they mean by “relevant” is, writing to someone who might actually hire me.
This article is my tiny act of marketing defiance, written about homeless folks who are being harrassed by sex offender task forces–and–whom I’m pretty certain cannot afford my services. Yes, I’m virtue signalling within three sentences. Sorry.
So, its hard enough being homeless. And its even harder to be a homeless sex offender. Yes, not many people are going to read past “homeless”, but the good news is that the analysis in our case today applies to most criminal offenses.
Our case for today demonstrates just how difficult it is to prove the felony called “failure to register as a sex offender.” Here are the facts.
Mr. Demus was released from prison in Broward County. He is a sex offender, and sex offenders are required to register with the sheriff and the DMV constantly. When folks are released from prison, for example, they must register their new residence–letting Big Brother know where to find them.
Mr. Demus was arrested several months after his prison release, in Broward County, for failing to register as a sex offender. For those of you unfamiliar with the crime “failing to register”, the state gets two crimes for the price of one. They charged Mr. Demus with (1) failing to report in person to Broward’s Sheriff’s Office within 48 hours of establishing a residence within Broward County, and (2) failing to report to the driver’s license office within 48 hours of any change in his residence. Demus v. State, 2019 Fla. App. LEXIS 15276 (Fla. 4th DCA 2019).
His trial was a quick one. The state presented an FDLE sex registry employee who testified that Mr. Demus never registered in Broward, and he was released from a Broward prison on in January of 2015. She searched FDLE’s database on January 20 and March 25, 2015. Mr. Demus never registered, anywhere. His last place of registration was in Miami, back in 2009 before he went to prison.
After one witness, the jury found Mr. Demus guilty. He recieve 14.8 years in prison.
You heard me. 14.8 years in prison for not following registration requirements in a world in which actual rapists are getting around 10 years, on average, for their horrendous crime.
Let me trickle out some more facts so that you can see where this is going. My old paralegal, Ed Leinster, was the smartest lawyer I have ever met. We worked together for many years and when I brought a new case to him he never wanted to see the police report.
He only wanted to see the jury instructions. And this is our first criminal defense lesson from this case–always take a look at the jury instructions.
Here’s Mr. Demus’ jury instructions that got him over 14 years in prison, for a jury to find Mr. Demus guilty of failing to register the state must prove the following three things beyond a reasonable doubt:
- Mr. Demus is a sexual offender.
- Mr. Demus established a permanent, temporary or transient residence in Broward County, Florida.
- Mr. 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.
At the jury trial, how did the prosecutor prove the above three elements? The state’s sole witness at trial, an FDLE employee, testified that Mr. Demus was a sex offender.
Got it. Jury instruction #1, PROVEN.
The state’s sole witness also testified that she had no records that Mr. Demus registered a permanent, temporary, or transient residence. So, jury instruction #3 is half-proven, in that Mr. Demus failed to register in person at an office of the Sheriff of Broward County.
WHAT ABOUT JURY INSTRUCTION #2?
Yes, that’s right. It is the state’s burden to prove that “2. Mr. Demus established a permanent, temporary or transient residence in Broward County, Florida.”
With what little I’ve told you, have they proven that Mr. Demus established a residence in Broward? Have they proven #2? Well, the state had a small shred of evidence insinuating that Mr. Demus was residing in Broward County.
On cross examination, defense counsel asked the FDLE employee whether she had any personal knowledge of Mr. Demus’ residence, and she stated that she received a tip he may have been in Broward, and she watched a video of him at a Broward grocery store.
Even if this witness’ testimony was admissible (which it is not, its hearsay), the appellate court reasoned that a “video of [Demus] shopping in a store would not prove that he resided in the county in which that store was located.” id. at 7.
The appellate court overturned Mr. Demus’ conviction, finding that “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 empployee 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”. id at 6.
And this brings us to our second very important lesson on failure to register cases: 94.25% of these cases are proven because the state presents evidence of one of two things. First, that a defendant has abandoned a prior residence where he was registered. This is easily proven by calling the new tenant as a witness to say “the offender doesn’t live here, I do”. The second way to prove this case is to establish the offender’s new residence, whereby they have a landlord witness state that “the offender moved into my rental home last month” and yet, the offender never registers this new address.
As you can see in Demus’ case, it can be tough to prove this crime in a homeless situation.