by Sagi Schwartzberg

The Supreme Court of Nebraska interpreted the definition of “working days” in Neb. Rev. Stat. § 29-4001.01(6) of the Nebraska Sex Offender Registration Act (“SORA”) to refer to Mondays, Tuesdays, Wednesdays, Thursdays, and Fridays, excluding legal holidays. The Court held that the State failed to provide sufficient evidence to prove that the defendant established a “temporary domicile” or “habitual living location” at a location other than his permanent address that would trigger a reporting requirement under SORA, and thus, the Court reversed his conviction for failure to register and vacated his prison sentence.

Background

Chad Clausen, a resident of Douglas County, Nebraska, was previously convicted of sexual assault and required to register under Nebraska’s SORA. Sometime in October of 2022, law enforcement in Washington County, Nebraska, received an anonymous tip that Clausen was residing at an address in Washington County.

On October 18, 2022, an investigating officer from the Washington County Sheriff’s Department visited the Washington County address (“Residence”) and spoke to Virginia Guerrero—the mother of Clausen’s fiancée. Guerrero told the officer that Clausen had been residing at the Residence “off and on” for approximately six months. That same day, the officer spoke to Clausen by telephone; Clausen admitted that “he was living [at the Residence] for three days, and then residing back at his residence in Douglas County for three days.” After the officer confronted Clausen with the information he obtained from Guerrero, Clausen admitted that he was staying at the Residence “most nights,” apologized to the officer, and asked if he was going to jail.

Based on the investigation, the State initiated a criminal proceeding against Clausen, alleging that he violated SORA—specifically, Neb. Rev. Stat. § 29-4004(3), which provides, in pertinent part, that when a person subject to SORA has “a new address, temporary domicile, or habitual living location in a different county in [Nebraska,]” they must inform the sheriff of the county of their residence within three working days “before the address change” and register with the sheriff of their “new county of residence … within three working days after the address change.” § 29-4004(3).

SORA defines the term “habitual living location” as “any place that an offender may stay for a period of more than three days even though the … offender maintains a separate permanent address or temporary domicile.” § 29-4001.01(3). “Temporary domicile” is defined as “any place at which the person actually lives or stays at least three working days.” § 29-4001.01(6). [emphasis supplied]

Procedural History

At trial, the State introduced the evidence uncovered during the investigation by the Washington County Sheriff’s Department. While the investigating officer testified that Clausen never reported the Residence to the Washington County Sheriff’s Department, on cross-examination, he admitted that his investigation did not determine whether Clausen was staying at the Residence on weeknights, weekends, or holidays. Nevertheless, the trial court concluded that the evidence presented was sufficient to show that Clausen established both a “temporary domicile” and a “habitual living location” in Washington County. Accordingly, the court found him guilty of violating his SORA reporting obligations and sentenced him to a prison sentence of two to four years. Clausen timely appealed.

In the Court of Appeals, Clausen argued that there was insufficient evidence to support the trial court’s conclusion that he established a “temporary domicile” or a “habitual living location” under SORA, and that the definitions of these terms are unconstitutionally vague. In support, Clausen relied on Doe v. Nebraska, 734 F. Supp. 2d 882 (D. Neb. 2010), which rejected a challenge to those terms as unconstitutionally vague but interpreted the phrase “period of at least three working days” in § 29-4001.01(6) to mean three consecutive weekdays, excluding holidays, and determined that the requirement to register a “habitual living location” under SORA only applies to “intended relocations.”

The Court of Appeals noted that the State did not oppose Clausen’s definitions of the various statutory terms (though, the court itself seemingly failed to adopt Doe’s interpretation of “working days” as meaning weekdays by disregarding whether the days in question were weekdays or weekends in concluding that Clausen’s stay at the Residence satisfied the definition of “temporary domicile”), and it observed that “there is no evidence to indicate whether Clausen stayed at the [Residence] on weekdays, weekends, or both.” Nonetheless, the court determined that based on Clausen’s admission that he stayed at the Residence “most nights,” a rational trier of fact could have found that Clausen stayed at the Washington County residence for three consecutive weekdays or for more than three consecutive days. Thus, it affirmed his conviction. Clausen timely appealed to the state Supreme Court.

Analysis

The legal issue before the Court was whether—after reviewing the evidence in the light most favorable to the prosecution—any rational trier of fact could have found the essential elements of failing to register a new residence, temporary domicile, or habitual living location beyond a reasonable doubt. However, because Clausen challenged both the Court of Appeals’ definition of “temporary domicile” and its conclusion that sufficient evidence existed to support the conclusion that Clausen established a “habitual living location,” resolution of the issue hinged on the statutory interpretation of those SORA provisions.

The Court began its analysis by observing that § 29-4001.01(6) defines “temporary domicile” as “any place at which the person actually lives or stays for a period of at least three working days.” It rejected the Court of Appeals’ confusing and seemingly contradictory interpretation of “at least three working days” as meaning any three-day period regardless of whether those days include Saturdays, Sundays, or legal holidays. It stated that the “plain and ordinary meaning of ‘working days’ excludes Saturdays, Sundays, and legal holidays.” See Schuyler Apt. Partners v. Colfax Cty. Bd. Of Equal., 783 N.W.2d 587 (Neb. 2010) (“[a]bsent a statutory indication to the contrary, words in a statute will be given their ordinary meaning”). The Court explained that this is the same conclusion regarding the definition of “working days” reached by other courts, including Doe. See, e.g., State v. Nerz, 587 N.W.2d 23 (Minn. 1998); Abbott v. Ryan, 964 So.2d 1087 (La. Ct. App. 2007); Bennett v. Fier, 1998 Ohio App. LEXIS 2967 (Ohio App. July 2, 1998). Thus, the Court announced: “We hold that ‘working days,’ as used in § 29-4001(6), refers to Mondays, Tuesdays, Wednesdays, Thursdays, and Fridays, unless one of those days is a legal holiday.”

The Court then turned to the sufficiency of evidence issue, i.e., whether there was sufficient evidence that Clausen established a temporary domicile or habitual living location at the Residence. If the evidence showed that he established either, he would have been required to register the location under SORA, according to the Court.

First, the Court addressed whether the evidence proved that Clausen established a “temporary domicile” at the Residence. It observed that there was no direct evidence introduced at trial regarding which days of the week he was present at the Residence, and without knowing which days he was present, “a rational trier of fact could not have found that he established a temporary domicile there.” While a criminal conviction can be based on circumstantial evidence, State v. Warlick, 956 N.W.2d 269 (Neb. 2021), and there was some circumstantial evidence of when he was at the Residence, the Court stated that a conviction cannot be based upon speculation. Id. Even viewing the evidence in the light most favorable to the State, the Court explained that a rational trier of fact could not properly infer based on circumstantial evidence that he stayed at the Residence for three consecutive weekdays “without engaging in speculation.” Thus, the Court concluded that there was insufficient evidence that he established a temporary domicile at the Residence.

Next, the Court discussed the issue of whether Clausen established a “habitual living location” at the Residence. As a preliminary matter, the Court questioned “what triggers the establishment of a habitual living location under the statute.” It speculated that the intent to stay at another location for more than three days may trigger the establishment of a habitual living location, but “that appears to raise some difficulties.” Ultimately, the Court explained that it need not answer these opens questions because the State sought to prove that Clausen established a habitual living location at the Residence based on its assertion that he actually stayed there for more than three days. Consequently, the Court presumed without deciding—for purposes of resolving the case—that a person subject to SORA obligations “establishes a habitual living location if he or she actually stays at a place for more than 3 consecutive days.”

Based on the foregoing, the Court determined that a trier of fact would need to engage in speculation to conclude that Clausen actually stayed at the Residence for more than three consecutive days. But again, a criminal conviction cannot be based upon speculation. Warlick. The Court explained that there was evidence in the record that he stayed at the Residence for three-day periods and “most nights,” but “one would have to engage in speculation to conclude from those pieces of evidence that Clausen actually stayed” at the Residence for more than three consecutive days. The Court added that the State failed to provide evidence that he stayed at the Residence for the “requisite length or types of days that would trigger an obligation to notify authorities.” Thus, the Court ruled that the State did not prove that Clausen established a habitual living location at the Residence.

Conclusion

The Court concluded that the State failed to provide sufficient evidence that Clausen established either a “temporary domicile” or a “habitual living location” at the Residence. Thus, the Court held that the State failed to prove that he violated his SORA registration obligations.

Accordingly, the Court reversed his conviction and vacated his sentence. See: State v. Clausen, 15 N.W.3d 858 (Neb. 2025).

Writer’s note: As is common in many SORA cases, the Court of Appeals and Supreme Court relied on the premise that sex offenders pose a high risk to reoffend. Anyone who deals with this issue should become familiar with various cases and studies that dispels the “high risk of recidivism” myth. Moving Forward: A Resource Guide by Ian Jaso, JD, is an informative book that delves into the origins of this myth and cites numerous helpful publications and court cases from across the country and is available on Amazon.  

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