State Of Washington v. E.z.l-d., 01/10/97

• Court: Court of Appeals of Washington
• Decided: November 17, 2014
• Docket: 71262-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, O Wo No. 71262-4-1 Respondent, DIVISION ONE v.

E.Z.L.-D., CD DOB: 01/10/97 UNPUBLISHED OPINION en CD Appellant. FILED: November 17, 2014

Spearman, C.J. — E.Z.L.-D., a juvenile offender, challenges his conviction

for failure to register as a sex offender pursuant to RCW 9A.44.130, alleging that

the charging information was constitutionally deficient because it lacked a

statement regarding the applicable registration deadline. In a statement of

additional grounds filed pursuant to RAP 10.10, he also contends his conviction

should be reversed because his violation of the registration statute was

unknowing and compliance with the statute was impossible. We affirm.

FACTS

Following a March 30, 2011, conviction for one count of rape of a child in

the first degree, E.Z.L.-D. was incarcerated at Denney Juvenile Justice Center

(DJJC) and required to register as a sex offender pursuant to RCW 9A.44.130.

On April 17, 2012, while E.Z.L.-D. was in custody at DJJC, he signed and received a copy of a form notification of registration requirements for sex and No. 71262-4-1/2

kidnapping offenders. He was orally advised of the contents of this form. That

same day he registered with the Snohomish County Sheriffs Office, listing "the

Tamarack House," a juvenile residential placement facility, as his place of

residence. Clerk's Papers (CP) at 4.

On June 6, 2013, E.Z.L.-D. was released into the custody of the

Department of Social and Health Services (DSHS). DSHS initially placed him at

the Tamarack House. However, the next day he was moved to a different facility,

the Cedar House, where he remained until June 20, 2013. After that, DSHS

placed E.Z.L.-D. at his grandmother's residence.

After his initial registration on April 17, 2012, E.Z.L.-D. never registered a

change of address either in person or by mail, as required under RCW

9A.44.130. On June 21, 2013, during a telephone conversation with his probation

officer, E.Z.L.-D. stated that he '"didn't think [he] should have to'" re-register after

each change of address. CP at 5. In a subsequent conversation with his

probation officer on July 2, 2013, E.Z.L.-D. admitted that he still '"hadn't gotten

around to'" registering. CP at 5.

On July 30, 2013, the State charged E.L.-D. with one count of failure to

register as a sex offender in violation of RCW 9A.44.130. On October 22, 2014,

the matter proceeded to bench trial. The trial court found E.L.-D. guilty as

charged. He appeals. No. 71262-4-1/3

DISCUSSION

E.Z.L.-D. was charged with failure to register under RCW 9A.44.130(1)(a)1

as follows:

FAILURE TO REGISTER, committed as follows: That the respondent, having been convicted on or about the 30th day of March, 2011, of a sex offense, to wit: Rape of a Child in the First Degree, being required to register pursuant to RCW 9A.44.130, and having registered as residing at a fixed residence, did, on or about the 2nd day of July, 2013, cease to reside at that residence and did knowingly fail to provide timely written notice to the county sheriffs office; proscribed by RCW 9A.44.132, a felony.

CP at 43. He asserts for the first time on appeal that the information was

constitutionally deficient because, although it alleged he failed to provide timely

notice of his change in address, it did not specify the 72-hour statutory

registration deadline. He contends that registering within 72 hours is an essential

element of the crime of failure to register, which must be included in the charging

document in order for it to withstand constitutional scrutiny. We disagree.

1 RCW 9A.44.130(1)(a) provides:

Any adult or juvenile residing whether or not the person has a fixed residence, or who is a student, is employed, or carries on a vocation in this state who has been found to have committed or has been convicted of any sex offense or kidnapping offense, or who has been found not guilty by reason of insanity under chapter 10.77 RCW of committing any sex offense or kidnapping offense, shall register with the county sheriff for the county of the person's residence, or if the person is not a resident of Washington, the county of the person's school, or place of employment or vocation, or as otherwise specified in this section. When a person required to register under this section is in custody of the state department of corrections, the state department of social and health services, a local division of youth services, or a local jail or juvenile detention facility as a result of a sex offense or kidnapping offense, the person shall also register at the time of release from custody with an official designated by the agency that has jurisdiction over the person. No. 71262-4-1/4

"[A] charging document is constitutionally adequate only if all essential

elements of a crime, statutory and nonstatutory, are included in the document so

as to apprise the accused of the charges against him or her and to allow the

defendant to prepare a defense." State v. Vanqerpen. 125 Wn.2d 782, 787, 888

P.2d 1177 (1995). An insufficient charging document requires reversal and

dismissal of charges without prejudice. Id.

In State v. Peterson. 145 Wn. App. 672, 677-78, 186P.3d 1179(2008),

we considered whether residential status and registration deadlines were

essential elements of the crime of failure to register under with former RCW

9A.44.130 (2003).2 See, Laws of 2003, Ch. 215, § 1. Subsections (5)(a) and

(6)(a) of the statute3 provided for registration requirements and reporting

2 We note that on review, the Supreme Court concluded that residential status was not an essential element of the crime of failure to register because "it is possible to prove that a registrant failed to register within any applicable deadline without having to specify the registrant's particular residential status." State v. Peterson, 168 Wn.2d 763, 772, 230 P.3d 588 (2010).The Court also noted that "[cjommon sense suggests the statutory deadline is part of the State's burden of proof." id. at 771, n.7. But the Court determined that the issue of whether a registration deadline was also an essential element of the crime of failure to register was not before it and specifically declined to decide that question, id.

3 Former RCW 9A.44.130(5)(a) and (6)(a) provided as follows:

(5)(a) If any person required to register pursuant to this section changes his or her residence address within the same county, the person must send written notice of the change of address to the county sheriff within seventy-two hours of moving. If any person required to register pursuant to this section moves to a new county, the person must send written notice of the change of address at least fourteen days before moving to the county sheriff in the new county of residence and must register with that county sheriff within twenty-four hours of moving. The person must also send written notice within ten days of the change of address in the new county to the county sheriff with whom the person last registered. The county sheriff with whom the person last registered shall promptly forward the information concerning the change of address to the county sheriff for the county of the person's new residence. Upon receipt of notice of change of address to a new state, the county sheriff shall promptly forward the information regarding the change of address to the No. 71262-4-1/5

deadlines differentiated upon an offender's residential status.4 Peterson argued

that these subsections constituted alternative means for committing the crime of

failure to register, which must be specified in the charging document. Moreover,

he argued that, because the State must prove these facts beyond a reasonable

doubt to obtain a conviction, they were essential elements of the crime.

We disagreed, explaining that "[t]he statute imposes one duty: to register

with the sheriff." Id. at 677-78. We further explained that the subsections

pertaining to the nature and contents of registration, an offender's residential

status, and the applicable registration deadlines "merely articulate the definition

of continuing compliance. They do not define the elements or create alternative

means of committing the crime of failure to register as a sex offender." Id.

We reached a similar conclusion in State v. Bennett, 154 Wn. App. 202,

224 P.3d 849 (2010). There, we considered whether the to convict instruction

included all essential elements of the charged crime: failure to register under

former RCW 9A.44.130. Bennett raised the same argument advanced in

agency designated by the new state as the state's offender registration agency.

(6)(a) Any person required to register under this section who lacks a fixed residence shall provide written notice to the sheriff of the county where he or she last registered within forty-eight hours excluding weekends and holidays after ceasing to have a fixed residence. The notice shall include the information required by subsection (3)(b) of this section, except the photograph and fingerprints. The county sheriff may, for reasonable cause, require the offender to provide a photograph and fingerprints. The sheriff shall forward this information to the sheriff of the county in which the person intends to reside, if the person intends to reside in another county. Laws of 2003, ch. 215 § 1.

4 Subsections (5)(a) and (6)(a) of former RCW 9A.44.130 have been recodified at subsections (5)(a) and (b), respectively. No. 71262-4-1/6

Peterson. Id. at 206-08. Once again, we concluded that the residential status and

registration deadlines set forth in subsections (5)(a) and (6)(a) of former RCW

9A.44.130 were not essential elements of the crime of failure to register. Id. at

208. As such, Bennett's to convict instruction was not deficient for failure to

include these elements, jd.

E.L.-D. does not attempt to distinguish these cases. Rather, he argues

that the failure to register within 72 hours is an essential element of the crime

because the State must prove it beyond a reasonable doubt. But the mere fact

that the State bears the burden of proving a fact at trial does not automatically

make that fact an essential element of the crime. State v. Allen, 176 Wn.2d 611,

628-30, 294 P.3d 679 (2013) (holding, in a felony harassment case, that even

though the State bore the burden of proving a "true threat" in order to obtain a

conviction, the requirement of a "true threat," was not an essential element of the

crime and need not be contained in the charging document); State v. Lorenz, 152

Wn.2d 22, 31, 93 P.3d 133 (2004) (explaining, in a child molestation case, that

even though touching for the purpose of "sexual gratification" must be proved

beyond a reasonable doubt to sustain a conviction, it is not an essential element

of the crime of child molestation and need not be included in the "to convict"

instruction). Moreover, the argument ignores our holdings in Peterson and

Bennett that the registration deadline is definitional, and the well-established rule

that the State need not include definitions of elements in the charging document.

See, State v. Johnson. 180 Wn.2d 295, 302, 325 P.3d 135 (2014) ("We have No. 71262-4-1/7

never held that the information must also include definitions of essential

elements.. . .")

Peterson and Bennett make clear that the sole essential element of the

crime of failure to register is violation of the duty to register with the sheriff. The

subsections of the statute that establish the deadlines for meeting this duty

merely articulate the definition of continuing compliance. Peterson. 145 Wn. App.

at 678. Accordingly, we reject E.Z.L.-D.'s argument that the registration deadline

is an essential element of the crime that must be included in the charging

document.

Statement of Additional Grounds

In a statement of additional grounds (SAG), E.Z.L.-D. argues that his

conviction should be reversed because the State failed to prove he knew of his

obligation to register. He appears to claim that he signed the written notice of his

obligation to register without reading it and that he was not orally advised of the

obligation. But, at trial, E.Z.L.-D. stipulated that he "was put on notice and knew

of [his] duty to register as a sex offender and of the duty to notify the Snohomish

County Sherriff's Office of any change of residence address." CP at 33; see also,

(10/22/13) VRP at 61-62. Additionally, the trial court heard undisputed testimony

from Detective Joseph Beard that E.L.-D. signed a form containing a notification

of the applicable registration requirements and was orally advised of its contents.

This form was admitted into evidence at trial. Thus, substantial evidence

supports the trial court's conclusion that E.Z.L.-D.'s violation was knowing. No. 71262-4-1/8

E.Z.L.-D. also contends that his conviction should be reversed because,

as a ward of the State, "my social worker kept moving me to different places."

SAG at 1. Although this may be true, we do not see how it negates the State's

proof as to any element of the charged crime.

Affirm.

fzJfo&^.^^J WE CONCUR:

Ax,T.