LOITERING BY A PERSON REQUIRED TO REGISTER AS A SEX OFFENDER -- ELEMENTS
No person may be convicted of loitering by a person required to register as a sex offender unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, [Name of Defendant] was convicted of a crime that required him/her to register as a sex offender; and
Second, while required to register as a sex offender he/she knowingly;
Third, was loitering within 500 feet of a/an [elementary/(junior high)/high school]/[permitted/licensed child care facility]/park/playground.
Third, was loitering within 1,000 feet of the residence of the victim of the sex crime for which [Name of Defendant] was convicted.
Loitering means to stand around or move slowly about; to spend time idly; to saunter; to delay; to linger; to lag behind.
[Loitering does not include:
(A (custodial parent)/(legal guardian) of a student enrolled at the school/(child care facility) who is enrolling/delivering/retrieving the student at the school/(child care facility) [during regular school/facility hours]/[for (school-sanctioned)/(child-care-facility-sanctioned) extracurricular activities].
(A person receiving medical treatment at a hospital/(a facility certified/ licensed by the State of Oklahoma to provide medical services), unless it is any form of psychological, social or rehabilitative counseling services or treatment programs for sex offenders).
(A person attending a recognized church/(religious denomination) for worship if he/she has notified the religious leader of his/her status as a registered sex offender and he/she was granted written permission by the religious leader).]
Statutory Authority: 21 O.S. Supp. 2019, § 1125.
Notes on Use
The trial judge should use the bracketed exceptions at the end of the instructions only if they are supported by the evidence. This Instruction should be modified as appropriate, if the defendant was convicted in another jurisdiction of an offense which would require registration if the defendant had been convicted in Oklahoma of that offense. See 21 O.S. Supp. 2019, § 1125(A)(1).
The Oklahoma Court of Criminal Appeals held that 21 O.S. Supp. 2010, § 1125 was not unconstitutionally vague in Weeks v. State, 2015 OK CR 16, ¶¶ 20-26, 362 P.3d 650, 656-57, and Engles v. State, 2015 OK CR 17, ¶ 6, 366 P.3d 311, 314. In Weeks, the Court of Criminal Appeals distinguished two of its previous decisions in which anti-loitering ordinances in Oklahoma City and Tulsa had been struck down on the ground that they were unconstitutionally vague. The Court explained that in contrast to the anti-loitering ordinances in its previous decisions, § 1125 includes exemptions that provide guidance as to what is and what is not prohibited and "the statute clearly defines the prohibited conduct through reference to the only conduct that is permitted." Weeks v. State, 2015 OK CR 16, ¶ 26, 362 P.3d 657. Similarly, in Engles, the Court decided that the exemptions in § 1125 avoided unconstitutional vagueness. The Court held: "By operation of these specific statutory exemptions, any sex offender convicted of a registerable offense involving a victim under thirteen, who is present in the zone of safety without a statutory exemption and the required prior notice to administrators is, by definition, loitering in violation of the law." 2015 OK CR 17, ¶ 6, 366 P.3d 311, 314 (emphasis in original).