IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 80911-3-I ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION SCHOPF, TIMOTHY JOHN MELO, ) DOB: 03/15/1982, ) ) Appellant. )
BOWMAN, J. — A jury convicted Timothy John Melo Schopf of failure to
register as a sex offender, possession of a controlled substance, and two counts
of bail jumping. Schopf asserts insufficient evidence supports his conviction for
failure to register, we must reverse his possession of methamphetamine
conviction, and the trial court erred in imposing a discretionary legal financial
obligation (LFO). We conclude that the evidence is sufficient to support Schopf’s
conviction of failure to register and affirm that conviction. Based on the
Washington State Supreme Court’s recent decision in State v. Blake, ___ Wn.2d
___, 481 P.3d 521 (2021), and the State’s concession, we reverse and vacate
Schopf’s felony conviction of possession of a controlled substance. We remand
for resentencing and to strike the imposition of supervision fees as a condition of
community custody.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80911-3-I/2
FACTS
Following a 2002 felony sex offense conviction, the court ordered Schopf
to register his place of residence with the appropriate county sheriff’s office. On
November 30, 2017, he registered with the Snohomish County Sheriff’s Office
and provided an Everett address as his residential address. The residence was
his mother and stepfather’s home.
In 2018, Schopf’s stepfather told him that the living arrangement “wasn’t
working out, and he needed to find a place of his own.” Eventually, on August
31, Schopf left the home and no longer resided there. Although some of his
personal belongings remained in the home, Schopf’s stepfather did not see him
again until almost a year later in May 2019. Schopf did not report any changes to
his residence to the Snohomish County Sheriff’s Office after November 2017.
In December 2018, an Everett police officer tried to verify that Schopf was
living at his registered address. Because he was unable to do so, he forwarded
the matter to a detective. The detective tried to confirm Schopf’s address in
January 2019. He went to Schopf’s registered address and spoke to Schopf’s
mother and stepfather. The detective determined that Schopf no longer lived
there.
The State charged Schopf with the crime of failure to register as a sex
offender between August 31, 2018 and April 16, 2019. Based on separate
events in April 2019, the State also charged Schopf with one count of felony
possession of a controlled substance. The State later amended the information
2 No. 80911-3-I/3
to add two counts of bail jumping after the court released Schopf on bail and he
failed to appear at two court hearings.1
Following a two-day trial, the jury convicted Schopf as charged.
ANALYSIS
Failure To Register
Schopf challenges the sufficiency of the evidence supporting his
conviction of failure to register as a sex offender. Schopf stipulated that he had a
duty to register. The only disputed issue at trial was whether he “knowingly”
failed to do so.
When a defendant challenges the sufficiency of the evidence, we ask
“whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found guilt beyond a reasonable doubt.” State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “[A]ll reasonable
inferences from the evidence must be drawn in favor of the State and interpreted
most strongly against the defendant.” Salinas, 119 Wn.2d at 201. “A claim of
insufficiency admits the truth of the State’s evidence and all inferences that
reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201. In a challenge
to the sufficiency of the evidence, circumstantial evidence and direct evidence
carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
Under RCW 9A.44.132(1), a person commits the crime of failure to
register as a sex offender if the person (1) has a duty to register under RCW
9A.44.130 and (2) “knowingly” fails to register his whereabouts with the
1 Schopf does not challenge his bail jumping convictions in this appeal.
3 No. 80911-3-I/4
appropriate county sheriff's department. A person with a duty to register who
relocates to a new residential address must register the new address within three
business days. RCW 9A.44.130(5). And a person with a duty to register who
formerly had a “fixed residence” but no longer has one must report the change
within three business days. RCW 9A.44.130(6)(a).
For purposes of the registration provisions, a “fixed residence” is
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 residing, such as sleeping; eating; keeping personal belongings; receiving mail; and paying utilities, rent, or mortgage. A nonpermanent structure including, but not limited to, a motor home, travel trailer, camper, or boat may qualify as a residence provided it is lawfully and habitually used as living quarters a majority of the week, primarily kept at one location with a physical address, and the location it is kept at is either owned or rented by the person or used by the person with the permission of the owner or renter.
RCW 9A.44.128(5).
Despite the uncontroverted evidence that Schopf did not reside at the
Everett home during the charging period, he claims that the State failed to meet
its burden to prove that he knowingly failed to register because there was no
evidence that he understood or was aware of the statutory definition of “fixed
residence.” Schopf focuses on the form entitled “Sex and Kidnapping Offender
Notification of Registration Requirements” (Form). Schopf acknowledged he
received the Form when he registered his mother and stepfather’s address in
November 2017. He points out that while the Form set forth the text of
registration statute RCW 9A.44.130, it did not define “fixed residence,” which
appears in a different statutory section, RCW 9A.44.128. And in light of the
4 No. 80911-3-I/5
testimony that some of his personal belongings remained in the home after he
left and he was allowed to continue to use the residence as a mailing address, he
claims that he “may well have believed that the house continued to be his ‘fixed
residence.’ ”
But Schopf misconstrues the standard of review. Viewing the evidence in
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 80911-3-I ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION SCHOPF, TIMOTHY JOHN MELO, ) DOB: 03/15/1982, ) ) Appellant. )
BOWMAN, J. — A jury convicted Timothy John Melo Schopf of failure to
register as a sex offender, possession of a controlled substance, and two counts
of bail jumping. Schopf asserts insufficient evidence supports his conviction for
failure to register, we must reverse his possession of methamphetamine
conviction, and the trial court erred in imposing a discretionary legal financial
obligation (LFO). We conclude that the evidence is sufficient to support Schopf’s
conviction of failure to register and affirm that conviction. Based on the
Washington State Supreme Court’s recent decision in State v. Blake, ___ Wn.2d
___, 481 P.3d 521 (2021), and the State’s concession, we reverse and vacate
Schopf’s felony conviction of possession of a controlled substance. We remand
for resentencing and to strike the imposition of supervision fees as a condition of
community custody.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80911-3-I/2
FACTS
Following a 2002 felony sex offense conviction, the court ordered Schopf
to register his place of residence with the appropriate county sheriff’s office. On
November 30, 2017, he registered with the Snohomish County Sheriff’s Office
and provided an Everett address as his residential address. The residence was
his mother and stepfather’s home.
In 2018, Schopf’s stepfather told him that the living arrangement “wasn’t
working out, and he needed to find a place of his own.” Eventually, on August
31, Schopf left the home and no longer resided there. Although some of his
personal belongings remained in the home, Schopf’s stepfather did not see him
again until almost a year later in May 2019. Schopf did not report any changes to
his residence to the Snohomish County Sheriff’s Office after November 2017.
In December 2018, an Everett police officer tried to verify that Schopf was
living at his registered address. Because he was unable to do so, he forwarded
the matter to a detective. The detective tried to confirm Schopf’s address in
January 2019. He went to Schopf’s registered address and spoke to Schopf’s
mother and stepfather. The detective determined that Schopf no longer lived
there.
The State charged Schopf with the crime of failure to register as a sex
offender between August 31, 2018 and April 16, 2019. Based on separate
events in April 2019, the State also charged Schopf with one count of felony
possession of a controlled substance. The State later amended the information
2 No. 80911-3-I/3
to add two counts of bail jumping after the court released Schopf on bail and he
failed to appear at two court hearings.1
Following a two-day trial, the jury convicted Schopf as charged.
ANALYSIS
Failure To Register
Schopf challenges the sufficiency of the evidence supporting his
conviction of failure to register as a sex offender. Schopf stipulated that he had a
duty to register. The only disputed issue at trial was whether he “knowingly”
failed to do so.
When a defendant challenges the sufficiency of the evidence, we ask
“whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found guilt beyond a reasonable doubt.” State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “[A]ll reasonable
inferences from the evidence must be drawn in favor of the State and interpreted
most strongly against the defendant.” Salinas, 119 Wn.2d at 201. “A claim of
insufficiency admits the truth of the State’s evidence and all inferences that
reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201. In a challenge
to the sufficiency of the evidence, circumstantial evidence and direct evidence
carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
Under RCW 9A.44.132(1), a person commits the crime of failure to
register as a sex offender if the person (1) has a duty to register under RCW
9A.44.130 and (2) “knowingly” fails to register his whereabouts with the
1 Schopf does not challenge his bail jumping convictions in this appeal.
3 No. 80911-3-I/4
appropriate county sheriff's department. A person with a duty to register who
relocates to a new residential address must register the new address within three
business days. RCW 9A.44.130(5). And a person with a duty to register who
formerly had a “fixed residence” but no longer has one must report the change
within three business days. RCW 9A.44.130(6)(a).
For purposes of the registration provisions, a “fixed residence” is
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 residing, such as sleeping; eating; keeping personal belongings; receiving mail; and paying utilities, rent, or mortgage. A nonpermanent structure including, but not limited to, a motor home, travel trailer, camper, or boat may qualify as a residence provided it is lawfully and habitually used as living quarters a majority of the week, primarily kept at one location with a physical address, and the location it is kept at is either owned or rented by the person or used by the person with the permission of the owner or renter.
RCW 9A.44.128(5).
Despite the uncontroverted evidence that Schopf did not reside at the
Everett home during the charging period, he claims that the State failed to meet
its burden to prove that he knowingly failed to register because there was no
evidence that he understood or was aware of the statutory definition of “fixed
residence.” Schopf focuses on the form entitled “Sex and Kidnapping Offender
Notification of Registration Requirements” (Form). Schopf acknowledged he
received the Form when he registered his mother and stepfather’s address in
November 2017. He points out that while the Form set forth the text of
registration statute RCW 9A.44.130, it did not define “fixed residence,” which
appears in a different statutory section, RCW 9A.44.128. And in light of the
4 No. 80911-3-I/5
testimony that some of his personal belongings remained in the home after he
left and he was allowed to continue to use the residence as a mailing address, he
claims that he “may well have believed that the house continued to be his ‘fixed
residence.’ ”
But Schopf misconstrues the standard of review. Viewing the evidence in
the light most favorable to the State, a rational trier of fact could have found that
Schopf knew he no longer lived at a “fixed residence” in Everett and needed to
reregister. The Form admitted at trial showed that Schopf received notice of all
the relevant statutory provisions. And even though those provisions omit the
legal definition of “fixed residence,” they are clear about Schopf’s obligations.
RCW 9A.44.130 unambiguously required Schopf to report that he was no longer
living at the Everett residence he shared with his mother and stepfather. The
Form notified Schopf that if he “change[d] his . . . residence address within the
same county,” he had to notify the sheriff’s office within three business days.
RCW 9A.44.130(5)(a).2 The Form also notified Schopf that if he “move[d] to a
new county,” he had to register with the sheriff of that county within three
business days. RCW 9A.44.130(5)(b). And finally, the Form showed Schopf
knew that if he became homeless, he had to notify the sheriff’s office within three
business days “after ceasing to have a fixed residence.” RCW 9A.44.130(6)(a).
As much as Schopf suggests that the statutory language is technical and
not easily understood, the Form also summarized the most significant provisions
2 Emphasis added.
5 No. 80911-3-I/6
in basic terms. Schopf confirmed on the Form that he understood and could read
English. He affixed his initials to each of these statements on the Form:
___ I UNDERSTAND THAT I HAVE 3 BUSINESS DAYS TO CHANGE MY ADDRESS[.]
___ I UNDERSTAND THAT IF I MOVE OUT OF THE COUNTY I HAVE 3 BUSINESS DAYS TO CHANGE MY ADDRESS AND REGISTER WITH THE NEW COUNTY[.]
___ I UNDERSTAND THAT IF I MOVE OUT OF STATE THAT I HAVE 3 BUSINESS DAYS TO CHANGE MY ADDRESS WITH THE COUNTY I WAS LIVING IN.
___ I UNDERSTAND THAT IF I AM HOMELESS THAT I HAVE TO REPORT IN PERSON EVERY TUESDAY BETWEEN 9:00 AM AND 5:00 PM.
The testimony at trial established that after August 2018, Schopf no longer
lived at the Everett home listed as his registered address and that he failed to
notify the sheriff’s office. Whether he obtained a new residential address or
became homeless, the evidence supports the inference that Schopf knew that his
change of residence triggered the obligation to reregister. Sufficient evidence in
the record supports the jury’s determination that Schopf knowingly failed to
register.
Possession of a Controlled Substance
Schopf challenges his conviction of possession of a controlled substance,
arguing, among other things, that the imposition of strict liability for simple drug
possession violates due process.
In Blake, our Supreme Court determined that Washington’s strict liability
felony drug possession statute RCW 69.50.4013 criminalizes “unknowing, and
hence innocent, passivity and therefore ‘has an insufficient relationship to the
6 No. 80911-3-I/7
objective of’ regulating drugs.” Blake, 481 P.3d at 530 (quoting City of Seattle v.
Pullman, 82 Wn.2d 794, 802, 514 P.2d 1059 (1973)). The court held that the
statute exceeds the scope of the legislature’s “ ‘legitimate police power
authority’ ” and violates the right to due process under the state and federal
constitutions. Blake, 481 P.3d at 530 (quoting Pullman, 82 Wn.2d at 802).
In light of the Blake decision, the State concedes that we must reverse
Schopf’s conviction of felony possession of a controlled substance. We accept
the concession. And because we reverse and vacate Schopf’s drug possession
conviction, it is unnecessary to address his challenge to the trial court’s ruling
denying his motion to suppress drug evidence that supported his conviction. 3
Department of Corrections Supervision Fee
Schopf challenges the imposition of community custody supervision fees
as a part of his judgment and sentence.
Community custody supervision fees are authorized under RCW
9.94A.703(2)(d), which states, “Unless waived by the court, as part of any term of
community custody, the court shall order an offender to . . . [p]ay supervision
fees as determined by the [Department of Corrections].” Because the sentencing
court can waive these fees, they are discretionary LFOs. State v. Dillon, 12 Wn.
App. 2d 133, 152, 456 P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d 198
(2020); State v. Lundstrom, 6 Wn. App. 2d 388, 396 n.3, 429 P.3d 1116 (2018),
review denied, 193 Wn.2d 1007, 443 P.3d 800 (2019).
3 On resentencing, the court should determine whether and to what extent the decision in Blake affects Schopf’s criminal history and recalculate his offender score if necessary.
7 No. 80911-3-I/8
Here, the sentencing court conveyed its intent to impose the mandatory
victim penalty assessment and waive “[a]ll other fines, fees, costs, and
assessments.” Consistent with this ruling, the LFO portion of the judgment and
sentence includes only the $500 victim penalty assessment. Still, the court did
not strike the provision imposing community custody supervision fees. The fee
language appears in a separate section of the judgment and sentence as
condition (6) in a long list of “Conditions Applicable to All Community Custody
Terms.”
The State contends there is no basis to review the sentencing court’s
discretionary decision since Schopf failed to object to the imposition of
supervision fees. But a defendant may challenge conditions of community
custody for the first time on appeal. State v. Wallmuller, 194 Wn.2d 234, 238,
449 P.3d 619 (2019). And Schopf’s failure to object was understandable
because the court told Schopf that it would not impose any nonmandatory fines,
fees, or costs and the State did not specifically request imposition of supervision
fees.
Because the record reflects Schopf’s indigency and the court's intent to
waive all discretionary LFOs, we remand for the trial court to strike the provision
imposing supervision fees. See Dillon, 12 Wn. App. 2d at 152.
8 No. 80911-3-I/9
We affirm Schopf’s conviction of failure to register, reverse and vacate his
conviction of felony possession of a controlled substance, and remand for
resentencing and to strike the provision requiring him to pay supervision fees.
WE CONCUR: