Submitted on Briefs: February 8, 2017
FROM: District Court of the Thirteenth Judicial District, In
and For the County of Yellowstone, Cause No. DC 13-901
Honorable G. Todd Baugh, Presiding Judge.
Appellant: Chad Wright, Chief Appellate Defender, Chad R.
Vanisko, Assistant Appellate Defender, Helena, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Jonathan
M. Krauss, Assistant Attorney General, Helena, Montana, Scott
D. Twito, Yellowstone County Attorney, Ingrid Rosenquist,
Deputy County Attorney, Billings, Montana.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Defendant Donnie Nolan appeals from his conviction for
failure to register as a violent offender, a felony. Violent
offenders must register pursuant to §§ 46-23-503,
-504(1), MCA (2011). Then, "[i]f an offender required to
register under this part has a change of . . . residence . .
. the offender shall within 3 business days of the change
appear in person and give notification of the change to the .
. . [appropriate] registration agency." Section
In 1996, Nolan was convicted of felony robbery in Atlanta,
Georgia, and he was required to register as a violent
offender while living in Montana pursuant to the Montana
Sexual and Violent Offender Registration Act. In October
2011, following his release on parole in Montana on an
unrelated offense, Nolan completed an information form that
denoted he was required to register as a violent offender in
compliance with Title 46, chapter 23, MCA. Nolan registered
his address as 225 Jackson Street, Billings, Montana. Over
the next two years, according to records maintained by the
Yellowstone County Sheriff's Office (YCSO), Nolan updated
that address to reflect a trip out of town, a move to another
address, and his return to 225 Jackson Street.
On May 7, 2013, Nolan entered into a rental contract and
began to occupy a residence at 706 Avenue C, Billings,
Montana. Nolan did not register the 706 Avenue C address with
the YCSO. As a result, he was charged with "knowingly
fail[ing] to register as a sexual or violent offender, verify
said registration, or keep said registration current" in
violation of §§ 46-23-504 to 46-23-507, MCA. Nolan
raised a constitutional objection in the District Court to
§ 46-23-504(4)(a), MCA, arguing that the language
providing that the registration agency "may
require" registration of additional residences is vague
and, as such, unconstitutional. The District Court denied his
motion, but conducted the trial, with the parties'
consent, on the question of whether Nolan had abandoned his
residence at 225 Jackson Street when moving to 706 Avenue C:
THE COURT [to Nolan]: You're going to have all of your
constitutional rights at trial. And the jury's going to
basically, as near as I can tell, have about one question to
answer: Did he move, or did he just pick up an additional
At trial, the prosecution argued that Nolan abandoned his
prior residence at 225 Jackson Street and moved to a new
location, thus requiring that he update his registration in
accordance with § 46-23-505(1), MCA. Nolan's defense
was that he simply acquired an additional residence,
while also maintaining the prior one, and, thus, was not
required to register the second address based on the
statutory language that the registering agency only "may
require" registering the additional address, and he was
not so requested by YCSO, a fact which the State did not
During the settling of jury instructions, the District Court
The only way that you're convicted, Mr. Nolan, if I
understand it, is if the jury believes that you moved from .
. . Jackson to Avenue C without retaining a residence at . .
. Jackson. If the - if the jury believes that you moved from
one place, abandoned it, moved to another place, they're
going to convict you.
District Court gave instructions reflecting this
understanding, and ...