FILED COURT QF' APPEALS DIVISION TI 2015 MAR 17 1"i 8: / 43
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
STATE OF WASHINGTON, No. 46077 -7 -I1
Respondent,
v.
UNPUBLISHED OPINION LAMONT M. BROUSSARD,
Appellant.
MAxA, J. — Lamont Broussard appeals his conviction for failing to register as a sex
offender. Broussard argues that the trial court erred in denying his motion for a continuance
because he needed more time to obtain an expert' s report to support that his theory that his
mental condition prevented him from knowingly failing to register. In his statement of
additional grounds ( SAG), Broussard also argues that, ( 1) his conviction for failure to register as
a sex offender should be reversed because he no longer had a duty to register in 2013 and the
registration requirement constitutes cruel and unusual punishment, (2) he is entitled to mental
health treatment as an alternative to confinement, and ( 3) his sentence exceeded the statutory
maximum.
We hold that Broussard has failed to demonstrate that the denial of a continuance
prejudiced him or that the outcome of the trial would have been different had the continuance
been granted. In addition, we hold that Broussard' s SAG contentions have no merit.
Accordingly, we affirm Broussard' s conviction. 46077 -7 -II
FACTS
In July 2013, Broussard was charged with felony failure to register as a sex offender.
After questions about Broussard' s competency were raised, the trial court ordered that Broussard
undergo an evaluation to determine whether he was competent to stand trial. After reviewing the
evaluation report, the trial court entered an order stating that Broussard was competent to
understand the proceedings and to assist in his defense. Trial was set for December 30, 2013.
On December 12, the trial court granted Broussard' s motion for a continuance to finalize
preparation for a mental health defense. On January 23, 2014, the trial court granted a joint
motion for another continuance because of scheduling conflicts, and the trial was set for
February 11.
On the day of trial, Broussard' s counsel told the presiding court that Dr. Mark Duris had
conducted a mental health evaluation of Broussard. Defense counsel stated that Dr. Duris had
informed him of the results, and they essentially were the same as an evaluation done in an
earlier prosecution. Defense counsel did not state what Dr. Duris had told him, but Broussard
was unhappy with both evaluations. The prosecutor represented that neither evaluation showed
that Broussard' s mental health issues rose to the legal standard of some type of defense.
Broussard' s counsel stated that Dr. Duris had not yet prepared a written report, and
therefore he was not ready to go to trial. However, after learning that Dr. Duris had the same
opinions as a previous evaluator, the presiding court stated that it was sending the case to trial on
that day. When the case was assigned to the trial court, Broussard renewed his motion for a
continuance. The trial court denied the motion.
2 46077 -7 -II
In a bench trial, Broussard presented a defense that his mental illness prevented him from
knowingly failing to register because he did not understand what was real at the time. The trial
court found Broussard guilty of failure to register as a sex offender. The trial court sentenced
him to 43 months total confinement and 36 months community custody.
Broussard appeals his conviction and sentence.
ANALYSIS
A. DENIAL OF THE MOTION FOR A CONTINUANCE
Broussard argues that the trial court' s denial of his motion for a continuance was an
abuse of discretion because it denied him of his right to prepare and present evidence material to
his defense —that his mental illness prevented him from " knowingly" failing to register.
Specifically, Broussard maintains that the trial court' s denial of a continuance prevented him
from obtaining Dr. Duris' s written report concerning Broussard' s mental health. We hold that
the trial court did not abuse its discretion because the record does not show that Broussard was
prejudiced by the denial of the continuance or that the outcome of the trial would likely have
been different had the continuance been granted.
The decision to grant or deny a continuance rests within the sound discretion of the trial
court. State v. Downing, 151 Wn. 2d 265, 272, 87 P. 3d 1169 ( 2004). We review a trial court' s
decision to grant or deny a continuance for an abuse of discretion. Id. We will not disturb the
trial court' s decision unless the appellant makes a clear showing that the trial court' s discretion is
manifestly unreasonable or exercised on untenable grounds. Id.
3 46077 -7 -II
However, the failure to grant a continuance may violate due process and /or the right to
compulsory process if the denial prevents the defendant from presenting a witness material to his
defense. Id. at 274 -75. Whether the denial of a continuance rises to the level of a constitutional
violation requires a case by case inquiry. Id. at 275.
In exercising discretion to grant or deny a continuance in light of constitutional concerns,
trial courts may consider many factors including surprise, diligence, redundancy, due process,
and materiality. Id. at 273. Further, in order to establish an abuse of discretion for denial of a
continuance, an appellant must show that he or she has been prejudiced or that the result of the
trial likely would have been different had the continuance been granted. State v. Deskins, 180
Wn.2d 68, 82, 322 P. 3d 780 ( 2014); State v. Eller, 84 Wn.2d 90, 95, 524 P. 2d 242 ( 1974).
Here, Broussard cannot show that the failure to grant a continuance prejudiced him or
that the trial outcome likely would have been different had the continuance been granted.
Broussard' s only argument is that the denial of a continuance prevented him from calling Dr.
Duris as a witness to support his theory that he did not knowingly fail to register as a sex
offender, which is a requirement under RCW 9A.44. 132. However, Broussard gave no
indication before either the presiding court or the trial court that Dr. Duris' s testimony would
have been helpful to his defense. Instead, Broussard was unhappy with Dr. Duris' s opinion and
Broussard did not object when the prosecutor indicated that Dr. Duris' s report would not support
Broussard' s defense. Without some showing of what testimony Broussard expected from Dr.
Duris, Broussard cannot meet his burden of establishing that the absence of Dr. Duris' s
testimony prejudiced him or that the trial outcome likely would have been different if the
continuance had been granted.
4 46077 -7 -II
In addition, the trial court' s denial of a continuance did not preclude Broussard from
presenting his mental health defense. Broussard did present evidence and argument that he did
not knowingly fail to register. The trial court heard and considered Broussard' s testimony, but
ultimately concluded that he did knowingly fail to register.
We hold that the trial court did not abuse its discretion in denying Broussard' s requests
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FILED COURT QF' APPEALS DIVISION TI 2015 MAR 17 1"i 8: / 43
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
STATE OF WASHINGTON, No. 46077 -7 -I1
Respondent,
v.
UNPUBLISHED OPINION LAMONT M. BROUSSARD,
Appellant.
MAxA, J. — Lamont Broussard appeals his conviction for failing to register as a sex
offender. Broussard argues that the trial court erred in denying his motion for a continuance
because he needed more time to obtain an expert' s report to support that his theory that his
mental condition prevented him from knowingly failing to register. In his statement of
additional grounds ( SAG), Broussard also argues that, ( 1) his conviction for failure to register as
a sex offender should be reversed because he no longer had a duty to register in 2013 and the
registration requirement constitutes cruel and unusual punishment, (2) he is entitled to mental
health treatment as an alternative to confinement, and ( 3) his sentence exceeded the statutory
maximum.
We hold that Broussard has failed to demonstrate that the denial of a continuance
prejudiced him or that the outcome of the trial would have been different had the continuance
been granted. In addition, we hold that Broussard' s SAG contentions have no merit.
Accordingly, we affirm Broussard' s conviction. 46077 -7 -II
FACTS
In July 2013, Broussard was charged with felony failure to register as a sex offender.
After questions about Broussard' s competency were raised, the trial court ordered that Broussard
undergo an evaluation to determine whether he was competent to stand trial. After reviewing the
evaluation report, the trial court entered an order stating that Broussard was competent to
understand the proceedings and to assist in his defense. Trial was set for December 30, 2013.
On December 12, the trial court granted Broussard' s motion for a continuance to finalize
preparation for a mental health defense. On January 23, 2014, the trial court granted a joint
motion for another continuance because of scheduling conflicts, and the trial was set for
February 11.
On the day of trial, Broussard' s counsel told the presiding court that Dr. Mark Duris had
conducted a mental health evaluation of Broussard. Defense counsel stated that Dr. Duris had
informed him of the results, and they essentially were the same as an evaluation done in an
earlier prosecution. Defense counsel did not state what Dr. Duris had told him, but Broussard
was unhappy with both evaluations. The prosecutor represented that neither evaluation showed
that Broussard' s mental health issues rose to the legal standard of some type of defense.
Broussard' s counsel stated that Dr. Duris had not yet prepared a written report, and
therefore he was not ready to go to trial. However, after learning that Dr. Duris had the same
opinions as a previous evaluator, the presiding court stated that it was sending the case to trial on
that day. When the case was assigned to the trial court, Broussard renewed his motion for a
continuance. The trial court denied the motion.
2 46077 -7 -II
In a bench trial, Broussard presented a defense that his mental illness prevented him from
knowingly failing to register because he did not understand what was real at the time. The trial
court found Broussard guilty of failure to register as a sex offender. The trial court sentenced
him to 43 months total confinement and 36 months community custody.
Broussard appeals his conviction and sentence.
ANALYSIS
A. DENIAL OF THE MOTION FOR A CONTINUANCE
Broussard argues that the trial court' s denial of his motion for a continuance was an
abuse of discretion because it denied him of his right to prepare and present evidence material to
his defense —that his mental illness prevented him from " knowingly" failing to register.
Specifically, Broussard maintains that the trial court' s denial of a continuance prevented him
from obtaining Dr. Duris' s written report concerning Broussard' s mental health. We hold that
the trial court did not abuse its discretion because the record does not show that Broussard was
prejudiced by the denial of the continuance or that the outcome of the trial would likely have
been different had the continuance been granted.
The decision to grant or deny a continuance rests within the sound discretion of the trial
court. State v. Downing, 151 Wn. 2d 265, 272, 87 P. 3d 1169 ( 2004). We review a trial court' s
decision to grant or deny a continuance for an abuse of discretion. Id. We will not disturb the
trial court' s decision unless the appellant makes a clear showing that the trial court' s discretion is
manifestly unreasonable or exercised on untenable grounds. Id.
3 46077 -7 -II
However, the failure to grant a continuance may violate due process and /or the right to
compulsory process if the denial prevents the defendant from presenting a witness material to his
defense. Id. at 274 -75. Whether the denial of a continuance rises to the level of a constitutional
violation requires a case by case inquiry. Id. at 275.
In exercising discretion to grant or deny a continuance in light of constitutional concerns,
trial courts may consider many factors including surprise, diligence, redundancy, due process,
and materiality. Id. at 273. Further, in order to establish an abuse of discretion for denial of a
continuance, an appellant must show that he or she has been prejudiced or that the result of the
trial likely would have been different had the continuance been granted. State v. Deskins, 180
Wn.2d 68, 82, 322 P. 3d 780 ( 2014); State v. Eller, 84 Wn.2d 90, 95, 524 P. 2d 242 ( 1974).
Here, Broussard cannot show that the failure to grant a continuance prejudiced him or
that the trial outcome likely would have been different had the continuance been granted.
Broussard' s only argument is that the denial of a continuance prevented him from calling Dr.
Duris as a witness to support his theory that he did not knowingly fail to register as a sex
offender, which is a requirement under RCW 9A.44. 132. However, Broussard gave no
indication before either the presiding court or the trial court that Dr. Duris' s testimony would
have been helpful to his defense. Instead, Broussard was unhappy with Dr. Duris' s opinion and
Broussard did not object when the prosecutor indicated that Dr. Duris' s report would not support
Broussard' s defense. Without some showing of what testimony Broussard expected from Dr.
Duris, Broussard cannot meet his burden of establishing that the absence of Dr. Duris' s
testimony prejudiced him or that the trial outcome likely would have been different if the
continuance had been granted.
4 46077 -7 -II
In addition, the trial court' s denial of a continuance did not preclude Broussard from
presenting his mental health defense. Broussard did present evidence and argument that he did
not knowingly fail to register. The trial court heard and considered Broussard' s testimony, but
ultimately concluded that he did knowingly fail to register.
We hold that the trial court did not abuse its discretion in denying Broussard' s requests
for a continuance.
B. DUTY TO REGISTER AS A SEX OFFENDER
Broussard asserts in his SAG that the requirement that he register as a sex offender based
on his 1994 juvenile third degree rape conviction should have expired after 10 years. We treat
this assertion as an argument that his conviction should be reversed because he no longer had a
duty to register in 2013. He also argues that continuing to require registration after 10 years
constitutes cruel and unusual punishment. We reject the first argument and decline to consider
the second.
1. Length of Registration Requirement
In 1994, Broussard was convicted of third degree rape as a juvenile. This conviction
required him to register as a sex offender. Former RCW 9A.44. 130( 1)( a) ( 1994); former RCW
9. 94A.030( 31)( a) ( 1994); former RCW 9A.44. 060 ( 1979). Because third degree rape is a class C
felony, RCW 9A. 44. 060( 2) ( 1979), under former RCW 9A.44. 140( c) ( 1991) Broussard had to
spend 10 consecutive years in the community without being convicted of any new offenses
before he became eligible for relief from the duty to register as a sex offender.
5 46077 -7 -II
In 2001, less than 10 years after Broussard served his sentence for the third degree rape
conviction, Broussard was convicted of third degree robbery in Oregon. After that conviction,
he was convicted of multiple additional crimes between 2003 and 2012. Because Broussard has
failed to spend 10 consecutive years in the community without being convicted of a new offense,
he has yet to become eligible for relief from his duty to register as a sex offender.
We hold that Broussard still had a statutory duty to register as a sex offender in 2013.
2. Cruel and Unusual Punishment
The Eighth Amendment to the United States Constitution prohibits cruel and unusual
punishment and article I, section 14 of the Washington Constitution prohibits cruel punishment.
However, Broussard is not arguing that his sentence in this case is unconstitutional. He is
challenging the effect of the sentence imposed in 1994. Because the 1994 sentence is not at issue
in this appeal, we need not consider this argument.
C. MENTAL HEALTH TREATMENT AS AN ALTERNATIVE TO CONFINEMENT
Broussard argues in his SAG that based on his eligibility for federal disability for his
mental health issues, we should take his disability into account and provide mental health
treatment as an alternative to confinement. We treat this request as an argument that the trial
court erred in not taking his disability into account during sentencing. We hold that Broussard
was not eligible for mental health treatment as an alternative to confinement because he had prior
convictions for a " sex offense."
Mental health treatment as an alternative to confinement is available to certain offenders
under the special sex offender sentencing alternative ( SSOSA). RCW 9. 94A.670. However, a
sex offender is not eligible for a SSOSA if the offender has a prior conviction for a " sex offense" 46077 -7 -II
as defined by RCW 9. 94A.030( 46). RCW 9. 94A. 670( 2)( b). A " sex offense" includes a felony
violation for failing to register if the person has been convicted of failing to register on at least
one prior occasion. RCW 9. 94A.030( 46)( a)( v).
Here, Broussard had committed a " sex offense" within the meaning of RCW
9. 94A.030( 46)( a)( v) because he had two prior felony convictions for failing to register as a sex
offender. Therefore, Broussard was not eligible for mental health treatment as an alternative to
confinement under SSOSA.
D. STATUTORY MAXIMUM SENTENCE
Broussard asserts in his SAG that his sentence to 43 months incarceration and 36 months
community supervision exceeds the statutory maximum sentence for his failing to register as a
sex offender. However, Broussard confuses his standard sentencing range with the statutory
maximum sentence. Although the high end of the standard sentencing range for his offense was
57 months, the statutory maximum sentence is 120 months. RCW 9A.44. 132( 1)( b); RCW
9A.20. 021( 1)( b).
Broussard was sentenced to a combined 79 months incarceration and community custody,
well below the statutory maximum of 120 months. Therefore, we hold that Broussard' s sentence
does not exceed the statutory maximum.
7 46077 -7 -II
We affirm Broussard' s conviction and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,
it is so ordered.
We concur:
Bff RC / N,
SUTTON, J.