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Shayen v. State

Court of Appeals of Alaska

September 4, 2015

GEORGE SHAYEN III, Appellant,
v.
STATE OF ALASKA, Appellee

          Appeal from the Superior Court, Third Judicial District, Anchorage, Gregory A. Miller, Judge. Trial Court No. 3AN-10-7789 CR.

         Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

         Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

         Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*] Judge MANNHEIMER, writing for the Court. Judge ALLARD, concurring.

          OPINION

         MANNHEIMER, JUDGE

         George Shayen III appeals his conviction for first-degree failure to register as a sex offender. To clarify, Shayen did in fact register as required. He was convicted under AS 11.56.840(a)(3)(B)(i) and AS 11.56.835(a)(1) for failing to provide written notice to the Department of Public Safety when he moved from the Brother Francis Shelter (an Anchorage shelter for the homeless) to an outdoor camping area near Ship Creek. See AS 12.63.010(c).

         In this appeal, Shayen contends that AS 12.63.010(c) -- the statute that requires sex offenders to notify the Department whenever they change their residence -- is unconstitutionally vague as applied to homeless sex offenders. Shayen argues that because homeless people, by definition, have no fixed abode, the statute necessarily fails to give them adequate notice of when they must report a change of location.

         It is true that the relevant chapter of the Alaska Statutes, AS 12.63, does not contain a definition of " residence" . Nor is there any definition of " residence" in 13 AAC 09, the chapter of related regulations promulgated by the Department. (See, in particular, 13 AAC 09.900 -- the section of definitions.)

         We agree with Shayen that, without an explanation or clarification of how the term " residence" applies to homeless people, the provisions of AS 12.63 that require sex offenders to report any change of residence raise significant legal problems when they are applied to homeless sex offenders. But though this problem is real, the facts of Shayen's case do not require us to resolve it.

         The testimony at Shayen's trial showed that Department of Public Safety employees -- or, at least, the employees who dealt with Shayen -- have adopted an ad hoc definition of " residence" that is tailored to the situation of homeless offenders. According to this testimony, the Department did not require homeless sex offenders to provide a residence address, but only to identify the place they were staying with as much detail as reasonably possible. For instance, if a sex offender was staying in a homeless camp, the Department employee would require the offender to provide the location of the camp. And if a homeless sex offender did not know the exact physical location where they would be staying, the offender would be required to simply identify the zip code or area of town where they would likely be staying.

         Turning to the specific facts of Shayen's case, the testimony reveals that, at various times in the past, the Department allowed Shayen to file change-of-residence forms that identified his residence as:

o " Brother Francis Shelter" ,
o " camping in trees by the Valley of the Moon [Park]", and
o " Bean's Café " .

         And when Shayen was living in rural villages -- places where there were no formal street addresses -- the Department accepted such descriptions as " three houses south from [the Post Office]" and " Paul Beebe's ...


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