OR- Same name, same birthday, different men

7-13-2008 Oregon:

SWEET HOME — Richard Bryan Smith is suing his neighbors, saying they keep spreading a false accusation that he’s a registered sex offender.

Smith shares a name and a birth date with another Richard Bryan Smith, who has served time for sex offenses against a child. Both Smiths are white men, 41, with thin features who like to wear their hair long, and both lived for a time in Southern California.

The Smith in Sweet Home is 5-foot-7 and weighs about 125 pounds, with blue eyes and no birthmark. He moved to Sweet Home in 2006.

The other one, who registered in Reno, Nev., as a sex offender in March 2008, is listed as 5-foot-10 and 180 pounds, with brown eyes and a birthmark on his right cheek. The two have different Social Security numbers.

The Sweet Home Smith has neighbors, Ray and Tracy Kelly, who appear to be convinced the two Smiths are one and the same. Smith is accusing the Kellys of, among other things, distributing the actual offender’s photograph and sex offender registration information, telling people they refer to him.

“It’s truly humiliating,” Smith said. “It’s intimidating walking down the road with my kids.“

Smith filed suit June 4 in Linn Circuit Court and is represented by John Kennedy of Lebanon. He is suing the couple for $150,000, alleging defamation and intentional infliction of emotional distress.

The suit is meant to show his two children, ages 8 and 10, how laws protect people, Smith said, and to stop his neighbors from insisting he is someone he is not.

The Kellys referred all questions to their attorney, Timothy Felling of Albany.

Felling filed a response July 8 that states his clients did believe Smith was a sex offender, but that they have not harassed or defamed him in the way he claims.

Smith has always gone by his middle name, Bryan, because his father is also named Richard Smith. He said he first learned of the existence of the other Richard Bryan Smith when he was pulled over for rolling through a stop sign in Riverside, Calif., in 1998. He was a land surveyor then, on his way to work.

The police officer came back from running his driver’s license and told him to step out of the car and lie down in the street, he recalled. He remembers the officer telling him, “You’re going back to prison.”

Smith had been in trouble before, convicted of accessory to theft in the late 1980s and battery in the mid-1990s. But he had never served prison time and told officers he didn’t know what they were talking about.

Officers held Smith for several hours while he and family members protested his innocence, Smith recalled. Eventually, someone at the department told him it was a case of mistaken identity and let him go.

Smith and his wife, Jeannine, moved with their children to Sweet Home in June 2006. They became friendly with the Kellys and often had them over, he said.

During one such gathering, Smith said the conversation turned to police issues and he related the story of his mistaken-identity arrest.

That’s a conversation the Kellys insist never happened. Instead, they told Felling, Tracy Kelly began to “have suspicions” about Smith, and after asking him his birth date ran his information through a computer search. She came across the record of the other Richard Bryan Smith, with the same birth date, also from Southern California, and thought the picture was similar enough to be the same person.

Kelly told Felling she contacted police, who said they would investigate.

That was Oct. 10, 2007. A Sweet Home police officer came by Smith’s house and told him the department had received an anonymous call saying Smith was an offender who had not registered in Oregon as required.

A police report from that day states the officer checked dispatch records from California and found the records of the two Smiths, but checked the Social Security number belonging to the Sweet Home Smith and found it did not match the number given to the sex offender.

Two months later, someone printed and distributed flyers from a California sex offender watch list bearing the picture and registration information for the offender named Smith. Below the printout information was a handwritten note with the Sweet Home Smith’s address and the message: “He has relocated ... Right down our street!”

Smith of Sweet Home, who had received a copy of the flier from a friend of his son, said he called police at that point and accused the Kellys of distributing it. The officer contacted the Kellys, who “did not openly admit that they were distributing the printouts but insinuate that they were involved and did suspect (Smith) of being a sex offender.”

Sweet Home Police Chief Bob Burford remembers that conversation. He said his officer called California officials to confirm their Richard Bryan Smith was still in the state. The sheriff’s office confirmed it had been in contact with that Smith in California on Dec. 4, 2007, and the Sweet Home officer contacted the Kellys with that information.

“From our standpoint, it’s two different people,” Burford said.

The Kellys told Felling they did make the initial printout, but gave it to just one other neighbor, “on the belief that it was true and accurate,” Felling said.

Smith firmly believes the Kellys distributed the picture to families and agencies throughout town. He says he’s also absolutely sure the Kellys still believe he is a sex offender, in spite of the information from the Sweet Home police.

Smith says the two families fought this past April after Smith found Ray Kelly using a ladder in his back yard. Smith said the two argued and Ray Kelly accused him of being a sex offender, in front of Smith’s children. Smith said he decided to file suit after that dispute.

The Kellys acknowledge the ladder incident but say Ray Kelly never made the sex offender accusation.

Life in Sweet Home hasn’t been easy since the conflict began, said Smith, who is on disability while recovering from a back injury. His wife, Jeannine, is a full time caregiver with disability services.

He’s heard comments about the sex offender posters all over town and believes his children’s friends were specifically targeted to receive them. High school boys cough the word “pervert” when he walks by.

“I would really like for them (the Kellys) to yield and say, ‘We did this, we did this intentionally and this was really mean-spirited,’” Smith said. “They weren’t provoked at all.” ..News Source.. by Jennifer Moody, Albany Democrat-Herald