ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-519

February 11, 2004

MARK RANDAL DAVIS AN APPEAL FROM WASHINGTON

APPELLANT COUNTY CIRCUIT COURT

[CR02-1618-2]

V. HON. KIM MARTIN SMITH, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Mark Randal Davis appeals from his conviction for failing to register as a sexual offender. The trial court sentenced him to 132 months in the Department of Correction. Appellant argues that the trial court erred in not giving the jury an affirmative defense instruction. We hold that there was no evidence to warrant the requested instruction, and we affirm the conviction.

Appellant was charged with failure to register as a sex offender on September 3, 2002. Prior to trial, appellant filed notice with the trial court that he would assert the affirmative defense found in Ark. Code Ann. § 12-12-904 (Supp. 2001). At trial, the State put forth testimony from two witnesses; the defense entered into evidence a stipulated letter written by the appellant. After the State and the defense rested their cases, the trial judge ruled that appellant's proffered affirmative defense instruction would not be submitted to the jury on the ground that there was no evidence to support it.

If there is any evidence to warrant a jury instruction it is error to refuse to do so. Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985). Likewise, there is no error when an instruction is not given, and there is no evidence to support the giving of that instruction. Parks v. State, 24 Ark. App. 139, 750 S.W.2d 65 (1988). There must be evidence of all the elements of the affirmative defense to warrant giving the instruction. Id.

It is an affirmative defense to prosecution if the delay in reporting a change in address is caused by an eviction, a natural disaster, or any other unforseen circumstance; and the person provides the new address to the Arkansas Crime Information Center in writing no later than five business days after the offender establishes residency. Ark. Code Ann. § 12-12-904(a)(2) (emphasis added.) According to the appellant, his delay in reporting a change in address was due to the unforseen circumstance "of homelessness." Appellant further contends that he presented evidence at trial to support an affirmative defense instruction on that basis. We disagree. Appellant did present evidence through the cross examination of Bobby McDaniel that he was homeless for a period of time. However, McDaniel also testified that at the time of appellant's arrest, appellant was living on his property in a trailer, and there was a mailbox at the residence at the time of appellant's arrest. In addition, McDaniel testified that the appellant worked odd jobs while living on his property, and appellant did not have to pay him rent. The State's other witness, Charles Davis, testified that appellant lived on McDaniel's property one-and-one-half to two months before he was arrested. Appellant entered a letter into evidence that said he did not intend to stay at McDaniel's residence, but he was merely obtaining food and shelter there temporarily. There was no evidence to dispute that appellant resided at the trailer for over a month.

Whether homelessness is an unforseen circumstance under Ark. Code Ann. § 12-12-904 is not an issue in this case. McDaniel and Charles Davis testified that appellant resided on McDaniel's property for at least one month before he was arrested. Nothing in appellant's letter contradicted their testimony. Furthermore, the second element of the affirmative defense requires the defendant to provide a new address no more than five business days after residency has been established. Although appellant argues that he did not consider the trailer as his residence, he resided there for more than a month. The fact that one is required to register within five business days of residency shows that the State has an interest in knowing even the short term residences of sex offenders. Appellant's decision to subsist from the generosity of others did not excuse him from notifying the authorities of his whereabouts in order to comply with the law. Simply put, there was no evidence to support the trial court giving the affirmative defense instruction.

Affirmed.

Bird and Crabtree, JJ., agree.