FILED APRIL 14, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 36885-8-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) GLEN LINDSAY CATHERS, ) ) Appellant. )
LAWRENCE-BERREY, J. — RCW 9A.44.130(6)(a) requires a registered sex
offender who lacks a fixed residence to notify the appropriate sheriff’s department within
three business days after ceasing to have a “fixed residence.” Failure to do this
constitutes failure to register. RCW 9A.44.128(5) defines “fixed residence” as “a
building that a person lawfully and habitually uses as living quarters a majority of the
week.” We conclude that a registered sex offender does not cease to have a “fixed
residence” simply because the offender is temporarily gone from his residence for 7 to 12
days. We, therefore, reverse Glen Cathers’s conviction for failure to register. No. 36885-8-III State v. Cathers
FACTS
Glen Cathers is a level 1 sex offender and is required to register in Klickitat
County. He first registered in Klickitat County in 19981 and was compliant with his
registration requirements for 20 years.
The Klickitat County Sheriff’s Department checks the residential status of level 1
sex offenders, such as Cathers, once per year. In June 2018, the Department’s criminal
records technician directed a deputy to verify Cathers was residing at his registered
address on Jenkins Creek Road.
On June 20, 2018, Deputy Timothy Neher went to Cathers’s registered address.
He arrived at the address after 5:00 p.m., and no one was there. He left a business card in
the door. The next day, Deputy Neher returned to the address. Cathers was not there, but
the deputy did speak with a person who was there, Kathleen O’Brennan. On June 27,
2018, Deputy Neher returned once again to the address. Cathers was not there, but Ms.
O’Brennan was. The deputy did not notice any evidence that Cathers had or was in the
process of moving out.
1 The trial court’s finding says 1998. The testimony at trial was 1988. Neither party assigned error to the finding. A probable cause statement supports 1998. It is unimportant to our decision.
2 No. 36885-8-III State v. Cathers
Ms. O’Brennan is a friend of Cathers and his partner, Naomi Fisher. The couple
hires her once or twice per year to watch their cats when they travel. Ms. O’Brennan was
watching their cats when the deputy came by in June. She watched their cats for a 12-day
period. The trial court found that Cathers was “gone from his residence” between 7 and
12 days. Clerk’s Papers at 10 (Conclusion of Law 9).
Several months later, the State charged Cathers with felony failure to register as a
sex offender. Cathers waived his right to a jury trial. On the above facts, the trial court
found Cathers guilty. The trial court entered a judgment of conviction, sentenced Cathers
to 30 days in jail, and approved a $10,000 appeal bond.
Cathers timely appealed.
ANALYSIS
Cathers accepts the trial court’s findings of fact and argues those findings are
insufficient to establish he violated RCW 9A.44.130.
The State charged Cathers for failure to register as a sex offender, citing
RCW 9A.44.132(1), which provides:
A person commits the crime of failure to register as a sex offender if the person has a duty to register under RCW 9A.44.130 for a felony sex offense and knowingly fails to comply with any of the requirements of RCW 9A.44.130.
3 No. 36885-8-III State v. Cathers
The State relied on RCW 9A.44.130(6)(a), which provides:
Any person required to register under this section who lacks a fixed residence shall provide signed written notice to the sheriff of the county where he or she last registered within three business days after ceasing to have a fixed residence. . . .
(Emphasis added.)
To determine whether the trial court’s findings were sufficient to convict Cathers
for failure to register, we must determine what the State was required to prove under
RCW 9A.44.130(6)(a).
“In interpreting a statute, our primary goal is to determine and give effect to the
legislature’s intent and purpose in creating the statute.” Pac. Nw. Shooting Park Ass’n v.
City of Sequim, 158 Wn.2d 342, 354, 144 P.3d 276 (2006). “We generally begin our
analysis with the text of the statute.” Id. “If the statute is clear and unambiguous on its
face, we determine its meaning only from the language of the statute and do not resort to
statutory construction principles.” Id. “A statute is ambiguous only if it can be
reasonably interpreted in more than one way, not merely because other possible
interpretations exist.” Id.
We first determine what “ceasing to have a fixed residence” means.
“Fixed residence” means a building that a person lawfully and habitually uses as living quarters a majority of the week. Uses as living quarters means to conduct activities consistent with the common understanding of
4 No. 36885-8-III State v. Cathers
residing, such as sleeping; eating; keeping personal belongings; receiving mail; and paying utilities, rent, or mortgage. . . .
RCW 9A.44.128(5).
The State argues Cathers ceased having a fixed residence when he did not use his
living quarters a majority of one week. It further argues, because Cathers did not provide
signed written notice to the sheriff within three business days after ceasing to have a fixed
residence, as required by RCW 9A.44.130(6)(a), he was guilty of failure to register. We
disagree.
The State’s construction of “fixed residence” ignores the word “habitually.” When
construing a statute, we must give effect to every word. HomeStreet, Inc. v. Dep’t of
Revenue, 166 Wn.2d 444, 452, 210 P.3d 297 (2009).
“Habitually” is not defined. “When a statute fails to define a term, a court may
rely on the ordinary meaning of the word as stated in a dictionary.” State v. Klein, 156
Wn.2d 102, 116, 124 P.3d 644 (2005). “Habitually” means “consistently, persistently,
repeatedly, usually.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1017 (1993).
A person who uses a building as his or her living quarters, yet is occasionally away for
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FILED APRIL 14, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 36885-8-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) GLEN LINDSAY CATHERS, ) ) Appellant. )
LAWRENCE-BERREY, J. — RCW 9A.44.130(6)(a) requires a registered sex
offender who lacks a fixed residence to notify the appropriate sheriff’s department within
three business days after ceasing to have a “fixed residence.” Failure to do this
constitutes failure to register. RCW 9A.44.128(5) defines “fixed residence” as “a
building that a person lawfully and habitually uses as living quarters a majority of the
week.” We conclude that a registered sex offender does not cease to have a “fixed
residence” simply because the offender is temporarily gone from his residence for 7 to 12
days. We, therefore, reverse Glen Cathers’s conviction for failure to register. No. 36885-8-III State v. Cathers
FACTS
Glen Cathers is a level 1 sex offender and is required to register in Klickitat
County. He first registered in Klickitat County in 19981 and was compliant with his
registration requirements for 20 years.
The Klickitat County Sheriff’s Department checks the residential status of level 1
sex offenders, such as Cathers, once per year. In June 2018, the Department’s criminal
records technician directed a deputy to verify Cathers was residing at his registered
address on Jenkins Creek Road.
On June 20, 2018, Deputy Timothy Neher went to Cathers’s registered address.
He arrived at the address after 5:00 p.m., and no one was there. He left a business card in
the door. The next day, Deputy Neher returned to the address. Cathers was not there, but
the deputy did speak with a person who was there, Kathleen O’Brennan. On June 27,
2018, Deputy Neher returned once again to the address. Cathers was not there, but Ms.
O’Brennan was. The deputy did not notice any evidence that Cathers had or was in the
process of moving out.
1 The trial court’s finding says 1998. The testimony at trial was 1988. Neither party assigned error to the finding. A probable cause statement supports 1998. It is unimportant to our decision.
2 No. 36885-8-III State v. Cathers
Ms. O’Brennan is a friend of Cathers and his partner, Naomi Fisher. The couple
hires her once or twice per year to watch their cats when they travel. Ms. O’Brennan was
watching their cats when the deputy came by in June. She watched their cats for a 12-day
period. The trial court found that Cathers was “gone from his residence” between 7 and
12 days. Clerk’s Papers at 10 (Conclusion of Law 9).
Several months later, the State charged Cathers with felony failure to register as a
sex offender. Cathers waived his right to a jury trial. On the above facts, the trial court
found Cathers guilty. The trial court entered a judgment of conviction, sentenced Cathers
to 30 days in jail, and approved a $10,000 appeal bond.
Cathers timely appealed.
ANALYSIS
Cathers accepts the trial court’s findings of fact and argues those findings are
insufficient to establish he violated RCW 9A.44.130.
The State charged Cathers for failure to register as a sex offender, citing
RCW 9A.44.132(1), which provides:
A person commits the crime of failure to register as a sex offender if the person has a duty to register under RCW 9A.44.130 for a felony sex offense and knowingly fails to comply with any of the requirements of RCW 9A.44.130.
3 No. 36885-8-III State v. Cathers
The State relied on RCW 9A.44.130(6)(a), which provides:
Any person required to register under this section who lacks a fixed residence shall provide signed written notice to the sheriff of the county where he or she last registered within three business days after ceasing to have a fixed residence. . . .
(Emphasis added.)
To determine whether the trial court’s findings were sufficient to convict Cathers
for failure to register, we must determine what the State was required to prove under
RCW 9A.44.130(6)(a).
“In interpreting a statute, our primary goal is to determine and give effect to the
legislature’s intent and purpose in creating the statute.” Pac. Nw. Shooting Park Ass’n v.
City of Sequim, 158 Wn.2d 342, 354, 144 P.3d 276 (2006). “We generally begin our
analysis with the text of the statute.” Id. “If the statute is clear and unambiguous on its
face, we determine its meaning only from the language of the statute and do not resort to
statutory construction principles.” Id. “A statute is ambiguous only if it can be
reasonably interpreted in more than one way, not merely because other possible
interpretations exist.” Id.
We first determine what “ceasing to have a fixed residence” means.
“Fixed residence” means a building that a person lawfully and habitually uses as living quarters a majority of the week. Uses as living quarters means to conduct activities consistent with the common understanding of
4 No. 36885-8-III State v. Cathers
residing, such as sleeping; eating; keeping personal belongings; receiving mail; and paying utilities, rent, or mortgage. . . .
RCW 9A.44.128(5).
The State argues Cathers ceased having a fixed residence when he did not use his
living quarters a majority of one week. It further argues, because Cathers did not provide
signed written notice to the sheriff within three business days after ceasing to have a fixed
residence, as required by RCW 9A.44.130(6)(a), he was guilty of failure to register. We
disagree.
The State’s construction of “fixed residence” ignores the word “habitually.” When
construing a statute, we must give effect to every word. HomeStreet, Inc. v. Dep’t of
Revenue, 166 Wn.2d 444, 452, 210 P.3d 297 (2009).
“Habitually” is not defined. “When a statute fails to define a term, a court may
rely on the ordinary meaning of the word as stated in a dictionary.” State v. Klein, 156
Wn.2d 102, 116, 124 P.3d 644 (2005). “Habitually” means “consistently, persistently,
repeatedly, usually.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1017 (1993).
A person who uses a building as his or her living quarters, yet is occasionally away for
one or two weeks, still “habitually” lives there a majority of the week. This is because the
person is consistently and usually there.
5 No. 36885-8-III State v. Cathers
The trial court was concerned that a convicted sex offender might evade the
registration requirements by listing an address but never or rarely using it. Under our
construction of RCW 9A.44.130(6)(a), a person who never or rarely uses the listed
residence would be guilty of failure to register.
But those are not the facts here. The trial court found that Cathers was gone from
his residence between 7 and 12 days. We conclude the trial court's findings were
insufficient to establish that Cathers ceased having a fixed residence within the meaning
of RCW 9A.44.130(6)(a). 2 We direct the trial court to vacate Cathers' conviction with
prejudice.
Reversed.
Lawrence-Berrey, J. WE CONCUR: j
Pennell, C.J. Fearing, J.
2 We invite the legislature to provide greater detail in this area. How long may level 1, 2, or 3 sex offenders be absent from their residences? Should registered sex offenders be required to notify the sheriffs office before being absent for more than three days? Should registered sex offenders be required to disclose where they plan on staying each day, and be required to be reachable by telephone for efficient verification? Courts are ill-equipped to fill in these gaps.