Judges L. Mark Bailey and Ezra Friedlander affirmed Daniel J. Milliner's conviction for failing to register as a sex offender and the order revoking his probation and reinstatement of his previously suspended sentence.
In Daniel J. Milliner v. State of Indiana, No. 31A01-0710-CR-470, Milliner argued that after he and his wife separated in late July 2005, he was temporarily homeless and was living with different friends and relatives for a couple of days at a time before he moved in with his girlfriend in fall 2005. Because he considered himself homeless, Milliner said he believed he wasn't required to register every time he moved.
However, the majority didn't agree that he was homeless but that he temporarily made his home with others. Milliner said he never lived with someone for more than seven days, so he didn't have to register each address. The seven-day grace period allows for a registrant to avoid prosecution by reporting a change of address, whether permanent or temporary, wrote Judge Bailey, not that one only has to register if they live in one place for more than seven days.
"The record shows that Milliner moved from one residence and to another, even if the new residence was temporary, 'thereby changing his home address,' and that he failed to re-register as a sex offender within seven days of the move," the judge wrote.
In a short dissent, Judge James Kirsch disagreed with his colleagues in the interpretation of the statute requiring registration. According to the judge, the majority make homelessness a crime for anyone who is required to register as a sex offender.
Judge Kirsch wrote that their interpretation is that the statute requires a homeless person to register every place that he or she sleeps within seven days, even if that is a homeless shelter or park bench. That is not what the General Assembly intended when it enacted the registry statute, wrote the judge.
"A homeless individual who moves about, staying at emergency homeless shelters when space is available and on the streets when it is not, would be required to register retroactively every single day the location where he slept six days earlier even though doing so would not provide any meaningful information to anyone or protect the public in any way," he wrote.