nursing home where he was arrested for violating his duty to register as a sex offender at the bench trial the state was required to prove that mr la fontaine was not confined and not nursing because the state failed to required to register within a specified period of time and are the local city police department or the sheriff's office however if a person is on able to comply with sores in person registration requirements because that person is confined institutionalized or in prison that specific offender does not have to register until three days following the discharge parole or release from confinement mr l was unable to comply with the duty to register statute in this case because he was confined in a nursing home because of that confinement status he was not required to register until three days after his release or discharge from the nursing home precluded your honor in this case there are there's a bit in the trial record about my client's mind taller illness mental history so i think that he was in a nursing home in his mid fifty's so that suggests there was something pretty seriously wrong with him either mentally physically or both so and there's also no evidence in the record as to how mr la fontaine got to the nursing home there's no evidence that says that he got there voluntarily or that he was taken the he was not a trained her attorney and obviously had some misconceptions about things fight he certainly didn't believe that he was confined in the state went so far as to i attempted to prove that he was not confined trial was run was in a rather loose sounds my example for that would be that and the closing argument the state dead and those the state did offer into evidence the docket entry from the champagne county case that was dismissed by the word guard less officer handles testimony was not enough to prove beyond a reasonable doubt that mr la fontaine was confined because officer hindawi directly contradicted his own testimony when he claimed when he when he testified that he did not know why mr la fontaine was confined he did not know if you was free to leave and officer hendo did not know if there was a court order so the state's entire case is resting on officer handles testimony and moreover officer him no there is no evidence that he had personal knowledge of this issue of confinement over the elements of the state group in this case your honor the state would have to prove that my client how did you do to register and that he was having to register because he's confined creates the offense and the case so that makes it and element of the offense as opposed to enough permanent defense what about the state is  what he was charged with a violation of his duty to register i would i think that that means that he has to show that the state if he was a resident of that nursing home that the state with then not have to prove it with not five i think that they can find nature if it is medical advice they're free to leave whenever they want to the legislature however your honor ends and  in section seven thirty i'll see s one fifty slash five dash five that that is the statute that instructs the nursing home personal hospital personnel treatment facility personnel to instruct the sex offender to register and that statute it says upon release from confinement and a hospital are other treatment facility so i think that that statute itself shows that the legislature intended to include under this definition of confinement or in this institutionalized in prison or confinement that nursing homes hospitals private institutions are would fall under the town of gori your honor and moreover the state the position that your honor is is pronouncing here is that of the state of the state argues that the statute does not apply to nursing homes and that the statute is limited in its application to persons who are committed or incarcerated however the problem with the state's interpretation of the statute is it entirely reads confined out of the statute and this court has a duty not to render any terms of the statutes of her fluids so if if this court agrees with the state then that's first element and and also i think it's important to point out to the court that in the statute it goes in order of degrees of commitment so we start with confined then we move to institutionalized and then we move to in prison so i think that the way the legislature wrote the statute was to create an umbrella where the client was where the defendant is not able to register because of the special status the purpose of the sex offender registration act is to protect the public if mr law hunting has a fifty four year old man was confined in a nursing home he didn't threaten the public he was not a threat to the public and tell them according to soar at three days after his release they might have been the offense that mr la fontaine was not confined to stand your point about the officer you know that's all i know you know but he did testify that that's an ad that's a walking back of his testimony that officer is making a conclusory statement that mr la fontaine is confined and then admitting three relevant facts that show he does not know whether or not mr l i've been looking at the statute here and i just have to tell you i have some skepticism but if the state is charged with a are part of a statute as either an affirmative defense or an element whether a statutory clause establishes an essential element of the offense or is an affirmative defense depends on whether the application of the cause establishe damage your argument but would you agree that in cases the sex offender given the public policy related to them that's probably a poorly written statute in case i'm just an inquiry where there depending on what you know we sometimes do drafts or opinion the legislature you might want to take a look at this is this is unclear or is this really a good and that's your lifetime position our position would require the state to prove and every case that the sex offender was not confined and i think taking that to its logical extreme could cause a problem however the way that the statute is written t that it wasn't this case i was actually asked you you know i don't have enough legislative history and understanding of that so i i have a difficult time making a blanket  i don't think that's a fair interpretation of the record before us there's no indication that mr la fontaine was able to leave the nursing home in any way shape or form he said that when he left a small poor five times a day in law and then  or call really now i'll check my notes during the response but i don't work hard reading now my client was pretty adamant from the time that he regained his fitness which was about two weeks before trial and then hugh waived his jury the next week and forth and back and forth now they're still doing what the words nursing home don't appear anywhere in the statute as to the proof that the charge was that residence and if you look at black's residence is different from confinement grose events is that you have an intent to live there you're not forced there you're not confined there i counsel so there's nothing in the record to explain how he got there he himself said he used me that he had a manical problem in springfield and they sent him down there and in his words i'm a volume three record one eight three and they placed me down here for ability should so that's his explanation as to why he's there as court's already eighty nine claiming that this evidence is is in favor of the defense serious they asked the officer if he was free to come and go with the officers said quote he was not confined they asked the officers if he was restricted from leaving the facility in the officer's response was quote not that i know of no account if there had been of jackson the foundation chooses to do that so if we're here to argue about you know i need some more time to write some more briefs that wasn't that wasn't on the schedule ok not only did the officer testify while defendant was allowed to cross examine him and during the cross examination he kept using the word nursing home and the officer kept responding nursing home nobody ever mentioned prison or confinement or mental institution or treatment facility defend himself continuously asked on cross examination about the nursing home and when he ask yasser about the alarm going off he said no and he said when you walk out the door to more go off and he said no did they stop you when you walk me out no that's  r one nine one officer when he's making statements but he seems self wants to be considered as under oath at all times and that is record are to await and riley's testifying a two eleven he says quote i've done a lot of internal affairs division investigation over the years and it's not unusual for me to go downtown that step i don't know what he means he said the section especially the post council has cited and says any person an able to comply with the registration requirements of this article because he or she is confined institutionalized or imprison shall register in person within three days don't say that any person can find institutionalized from prison shall register with them three days say any person on able to comply with the registration requirements so is there any home voluntarily he was taken there because of his treatment at another care facility your honor also ask your honor harris also asked if my client was restricted from any visitors from any of the letters or mail and things departed absolutely they could have been that witness also might have known whether or not mr lafontaine was confined but what we have here is we have a trial with one witness who has no personal knowledge of whether or not mr l smoke cigarettes that does not mean he could have been smoking the cigarettes on a balcony and side the food court it was in the courtyard person yes at the at the city police department or the sheriff county sheriff's office so because of that in person registration requirement as to where this confined issue comes into play and that's where all of these things that we're talking about whether m i went out and i received mail whether here how phone calls all of these things whether or not he was actually confined could have been proven by a witness that the state just chose not to call this conviction can not stand alone on officer handles testimony that then he directly contradicted that is not enough proof to show that mr la fontaine violated his duty to register this is reversed what happens if this is reverse and somehow he mysteriously gets from springfield and mason