Sex offender registry. Coffee Superior Court. Before Judge Gillis.
McGee & McGee, James B. McGee III, for appellant.
Bradley L. Collins, District Attorney, George E. Barnhill, Ian L. Sansot, Assistant District Attorneys, for appellee.
BRANCH, Judge. Phipps, C. J., and Barnes, P. J., concur.
Rufus Chestnut was tried by a Coffee County jury and convicted of violating OCGA § 42-1-12, which required Chestnut, as a registered sex offender, to provide the Coffee County sheriff's office with 72 hours advance notice of any change in his residential address, with such notice to include the new address to which Chestnut was moving. Chestnut now appeals, arguing that under the Supreme Court of Georgia's decision in Santos v. State, 284 Ga. 514 (668 S.E.2d 676) (2008), the evidence is insufficient to sustain his conviction. For reasons explained more fully below, we agree with Chestnut and therefore reverse his conviction.
Although this case has a protracted procedural history, the relevant facts are undisputed and show that in November 2006, Chestnut was convicted of incest as a result of his relationship with an adult woman (S. C.), who was the legal daughter of Chestnut's brother Larry Chestnut (" Larry" ). See Chestnut v. State, 287 Ga.App. 693 (652 S.E.2d 596) (2007). Upon being convicted of incest, Chestnut received a sentence of ten years, with four years to be served in incarceration and the balance to be served on probation. As a result of Chestnut's incest conviction, OCGA § 42-1-12 required him to register with the State as a sex offender prior to his release from prison and to register as a sex offender with his local law enforcement agency within 72 hours following his release. See OCGA § 42-1-12 (a) (10) (B) (xii) [331 Ga.App. 70] (defining incest as a " dangerous sexual offense" and subjecting any person convicted of that crime to the registration requirements found in OCGA § 42-1-12); OCGA § 42-1-12 (f) (1), (2).
Chestnut was released from prison on April 11, 2009. Two days later, on April 13, he went to the Coffee County sheriff's office to register as a sex offender. Chestnut's probation officer, Mike Taylor, refused to allow Chestnut to register at the first address he offered because that residence was within 1,000 feet of a day care center and therefore did not meet the requirements of OCGA § 42-1-15 (a) (2006). Recognizing that Chestnut " was homeless," Taylor gave him an additional three days to find a different residence. On April 14, Chestnut returned to the sheriff's office and completed his registration, listing his residential address as " 1014 N. Latitia St., Apt. B, Douglas, Ga." Taylor approved this address after measuring to make sure that it was situated
the statutorily-mandated distance from " day cares, churches, schools, etc."
As part of his registration, Chestnut was required to sign a " Notification Form," on which he acknowledged the restrictions placed upon him by OCGA § 42-1-12, including the requirement that he provide the sheriff's office with 72 hours prior notice before moving from the approved residential address. The notification form further provided that Chestnut understood that a residence address was a " street or route address" and that " [p]ost office box and homeless do not constitute an address."
On June 17, 2009, Taylor went to check on Chestnut at his registered address. Chestnut was not present at the apartment, but his brother, Howard Chestnut, was. Based on a conversation that Taylor had with Howard, Taylor contacted Chestnut. When Chestnut appeared at Taylor's office the following day, he told the probation officer that the apartment belonged to his brother and that Chestnut had been forced to leave when the brother's minor daughter moved into the residence, as Chestnut knew that the terms of his probation forbade him from living with minors. Chestnut explained to Taylor that his niece was going to return to live with her mother and that when the niece moved out, Chestnut would move back in with [331 Ga.App. 71] Howard. On July 21, 2009, Taylor made a second visit to Howard's apartment but found no one at home. The following day, Taylor returned to the apartment with Detective Jamie Hersey of the Coffee County sheriff's office and found Howard at the residence. With Howard's permission, Hersey and Taylor searched the apartment and found no evidence that Chestnut was living there. Hersey then obtained a warrant for Chestnut's arrest, charging Chestnut with violating OCGA § 42-1-12 by failing to inform the sheriff's office 72 hours before changing his ...