Lee v. Board of Parole

471

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

Submitted January 27, affirmed December 29, 2022

JOHNNIE LEE,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A173975

Mark J. Geiger filed the brief for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Christopher Page, Assistant Attorney

General, filed the brief for respondent.

Before James, Presiding Judge, and Egan, Judge, and

Kamins, Judge.

EGAN, J.

Affirmed.

472 Lee v. Board of Parole

EGAN, J.

Petitioner seeks review of an order of the Board of

Parole and Post-Prison Supervision (the board) denying his

petition, pursuant to ORS 163A.125(1), for relief from sex

offender registration. Under ORS 163A.115(2) and an imple-

menting provision, OAR 255-087-0020(3)(b)(A), the board

concluded that petitioner was not “eligible for relief from the

obligation to report as a sex offender.” ORS 163A.115(2). We

affirm.

In 1992, after a guilty plea, petitioner was con-

victed of the North Carolina crime of second-degree sexual

offense, currently codified as NC Gen Stat § 14-27.27. When

he moved to Oregon in 2002, he was entered into Oregon’s

sex-offender registry and became obligated to report as

a sex offender. In 2019, pursuant to ORS 163A.125(1), he

petitioned for relief from the obligation to report as a sex

offender. The board concluded that petitioner’s conviction

for second-degree sexual offense, NC Gen Stat § 14-27.27,

was an “equivalent crime,” OAR 255-087-0020(3)(b)(A), to

the Oregon crime of first-degree sodomy, ORS 163.405, or

first-degree unlawful sexual penetration, ORS 163.411.

Consequently, the board concluded, petitioner was ineligible

for relief from the obligation to report as a sex offender.

Petitioner seeks judicial review. Petitioner’s argu-

ments on review are narrow. He does not assert that OAR

255-087-0020(3)(b)(A) improperly expands the list of crimes

that disqualify a petitioner from relief from the reporting

requirement. He does not address what standard the board,

or we, should apply to determine whether an out-of-state

conviction is for an “equivalent crime” to one or more of the

crimes listed in ORS 163A.115(2). And he does not raise any

argument about elements of NC Gen Stat § 14-27.27, ORS

163.405, or ORS 163.411 that are not expressly stated in the

statutes themselves. That is, petitioner’s arguments about

equivalence are narrowly focused on a few of the words of

the statutes; he does not raise any arguments based on judi-

cial interpretations of those words or elements that may be

implicit in the statutes but are not expressly stated.

Petitioner raises three contentions. First, he contends

that the board erred in focusing on the facts that led to his

Nonprecedential Memo Op: 323 Or App 471 (2022) 473

conviction—which were never adjudicated or admitted—

rather than focusing on the crime of conviction itself. We

reject that argument because, in its administrative review

response, the board was clear that its analysis was focused

on the crime of conviction, not the underlying facts. Second,

he argues that it is impossible to recover the text of the

North Carolina statute, and its related definition provision,

as they existed in 1992, when petitioner was convicted, and,

consequently, that the board did not, and never can, accu-

rately compare the North Carolina statute to Oregon stat-

utes. We reject that argument for two reasons. First, it is not

impossible to find the 1992 text of the North Carolina stat-

ute.1 Second, to the extent that petitioner is arguing that the

board erred in applying the current version of the statute,

that argument is not preserved; before the board, petitioner

contended that the board should apply the current version of

the statute.

Third, and finally, petitioner argues that the ele-

ments listed in the text of ORS 163.405, first-degree sodomy,

and ORS 163.411, first-degree unlawful sexual penetration,

“are different ‘enough’ from the presumed North Carolina

offense, that it creates substantial doubt as to whether the

Oregon offenses are similar to the North Carolina offense

of conviction, or whether the North Carolina offense is more

closely aligned with [third-degree] sexual abuse,” a misde-

meanor that would not disqualify petitioner from relief from

the reporting requirement. Again, we emphasize that peti-

tioner’s arguments are narrowly focused on a few of the ele-

ments of the statutes that are explicitly stated in the text.

His arguments do not raise any question of what additional

elements may apply based on other statutes or judicial

interpretation.

Although, as noted above, petitioner has not iden-

tified any method by which the textual elements should be

1

Even in the absence of the correct version of a state’s statutory compilation,

one can learn what a statute said on a given date by consulting the statute’s

enactment and amendment history, which is listed in the statutory compilation,

and looking at each of the listed bills in the state’s session laws. See, e.g., NC

Laws 1979, ch 682, § 1; NC Laws 1979, ch 1316, § 1; NC Laws 1981, ch 63, § 179

(enacting, and then amending, former NC Gen Stat § 14-27.5 (1992), renumbered

as NC Gen Stat § 14-27.27 (1995)), ncleg.gov/Laws/SessionLaws (accessed Dec 2,

2022).

474 Lee v. Board of Parole

compared, we will assume, without deciding, that the “close

element matching” approach articulated by the Supreme

Court in State v. Carlton, 361 Or 29, 42, 388 P3d 1093 (2017),

and elaborated in State v. Guzman/Heckler, 366 Or 18, 20,

455 P3d 485 (2019), applies.

Petitioner makes two arguments about the text

of NC Gen Stat § 14-27.27 as compared to the text of ORS

163.405 and ORS 163.411. First, he contends that the

North Carolina statute addresses different sexual acts from

Oregon’s first-degree sodomy statute, ORS 163.405. NC Gen

Stat § 14-27.27 prohibits certain “sexual act[s].”2 “Sexual

act” is defined as “[c]unnilingus, fellatio, analingus, or anal

intercourse, but does not include vaginal intercourse. Sexual

act also means the penetration, however slight, by any

object into the genital or anal opening of another person’s

body. It is an affirmative defense that the penetration was

for accepted medical purposes.” NC Gen Stat § 14-27.20(4).

ORS 163.405, first-degree sodomy, can apply if a

person “engages in oral or anal sexual intercourse with

another person or causes another to engage in oral or anal

sexual intercourse.” “Oral or anal sexual intercourse” is

defined as “sexual conduct between persons consisting of

contact between the sex organs of one person and the mouth

or anus of another.” ORS 163.305(3).

Petitioner asserts that “sodomy I requires sexual

intercourse, unlike the North Carolina law.” However, peti-

tioner fails to consider the definition of “oral or anal sexual

intercourse,” which defines the relevant sexual conduct for

first-degree sodomy as “contact between the sex organs of one

person and the mouth or anus of another.” ORS 163.305(3).

2

NC Gen Stat § 14-27.27 provides, as follows:

“(a) A person is guilty of second degree forcible sexual offense if the per-

son engages in a sexual act with another person:

“(1) By force and against the will of the other person; or

“(2) Who has a mental disability or who is mentally incapacitated or

physically helpless, and the person performing the act knows or should rea-

sonably know that the other person has a mental disability or is mentally

incapacitated or physically helpless.

“(b) Any person who commits the offense defined in this section is guilty

of a Class C felony.”

Nonprecedential Memo Op: 323 Or App 471 (2022) 475

That definition does not include vaginal intercourse or any

other act that the North Carolina statute omits. Contrary

to petitioner’s argument, the statutes’ treatment of sexual

intercourse does not meaningfully distinguish them from

each other.

Second, we understand petitioner to argue that first-

degree unlawful sexual penetration, ORS 163.411, does not

prohibit the same conduct as NC Gen Stat § 14-27.27 because

the Oregon statute applies to penetration by “any object

other than the penis or mouth of the actor,” ORS 163.411(1),

whereas the North Carolina statute simply prohibits pene-

tration by “any object,” NC Gen Stat § 14-27.20(4). Petitioner

is correct that, in that instance, the North Carolina statute

is broader in scope than Oregon’s first-degree unlawful sex-

ual penetration statute, standing alone.

However, here, the additional conduct that peti-

tioner identifies as being covered by the North Carolina

offense—penetration by the mouth or penis of the actor3 —

is entirely covered by Oregon’s first-degree sodomy statute,

which treats that conduct as equally serious (both offenses

are Class A felonies). See Guzman/Heckler, 366 Or at 38 (“A

difference in statutory elements that is confined to conduct

that, although not proscribed in the same statute, is never-

theless proscribed and treated with the same or greater

level of seriousness in Oregon is not likely to be a difference

that will preclude the foreign offense from being a close ele-

ment match.”). Thus, the difference in scope that petitioner

has identified does not demonstrate any error in the board’s

reasoning.

Finally, to any extent to which petitioner argues

that ORS 163.405’s inclusion of age-based provisions means

that it is meaningfully different from NC Gen Stat § 14-27.27

because it proscribes conduct that the North Carolina stat-

ute does not, the Supreme Court has rejected that view.

Guzman/Heckler, 366 Or at 37 n 7 (“When a foreign offense

differs from an Oregon offense only because it is narrower,

3

As petitioner points out in his earlier argument, the North Carolina defi-

nition of “sexual act,” NC Gen Stat § 14-27.20(4), specifically excludes vaginal

intercourse, so the North Carolina statute covers penetration by any object of a

“genital or anal opening of the body” except vaginal penetration by a penis.

476 Lee v. Board of Parole

that difference will not preclude the offense from being a

close element match.”).

Affirmed.