State v. Breidt

349 P.3d 924, 187 Wash. App. 534
CourtCourt of Appeals of Washington
DecidedMay 5, 2015
DocketNo. 45190-5-II
StatusPublished
Cited by1 cases

This text of 349 P.3d 924 (State v. Breidt) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Breidt, 349 P.3d 924, 187 Wash. App. 534 (Wash. Ct. App. 2015).

Opinion

Lee, J.

¶1 The trial court found Cory Brent Breidt guilty of failure to register as a sex offender. Breidt appeals, arguing that the failure to register statute is unconstitutionally vague as applied to him because the statute does not adequately define “change,” “residence,” “residence address,” or the phrase “changes his or her residence address.” [537]*537We hold that the individual terms “change,” “residence,” and “residence address” are sufficiently defined by either prior case law or their ordinary meaning. We further hold that the entire phrase “changes his or her residence address” is sufficiently clear that a person of common intelligence would understand that being evicted and moving out of a house involved a change of residence address. As a result, we hold that Breidt has failed to meet his burden to prove the failure to register statute is unconstitutionally vague as applied to him, and we affirm.

FACTS

¶2 On August 21, 2012, Breidt registered as a sex offender with the Cowlitz County Sheriff’s Office and listed his residence on Southwest Second Avenue in Kelso, Washington. He did not submit a change of address to the Cowlitz County Sheriff between November 1, 2012 and February 4, 2013.

¶3 On November 27, 2012, Kelso Police Detective Rich Fletcher went to that address to verify that Breidt was residing there. Fletcher made contact with Porfitio Chavez, who identified himself as a resident of the house. Fletcher was unable to make contact with Breidt at that residence address and relayed that information to the Cowlitz County Sheriff’s Office. The State charged Breidt with failure to register as a sex offender.

¶4 Breidt waived his right to a jury trial and the case proceeded to a bench trial. At trial, Chavez testified that he allowed Breidt to reside with him at his house on Southwest Second Avenue after Breidt got out of prison in August or September 2012. Breidt slept on the couch, got his mail, took his meals, and kept his belongings there. In mid-October, Chavez gave Breidt two weeks’ notice to move out by November 1. Breidt vacated the residence and took most of his belongings with him. After November 1, Chavez did not allow Breidt to stay at the residence. Breidt did not live [538]*538at the residence after November 1, but Breidt would come over to the house to “hang out for a little bit and leave.” Report of Proceedings (RP) at 14. Chavez stated he did not think Breidt had spent the night at Chavez’s after November 1, but could not remember for sure. Chavez also testified that after he made Breidt leave the residence, Chavez would put “return to sender” on Breidt’s mail that came to the residence. RP at 16. If Breidt came by the house and Chavez had not yet returned the mail, Chavez would give Breidt his mail.

¶5 The trial court found Breidt guilty of failure to register as a sex offender. Breidt appeals.

ANALYSIS

¶6 Breidt argues that the sex offender registration statute is unconstitutionally vague as applied to him because it does not adequately define what constitutes a change of one’s residence address. We disagree.

¶7 RCW 9A.44.130(4)(a) provides:

If any person required to register pursuant to this section changes his or her residence address within the same county, the person must provide, by certified mail, with return receipt requested or in person, signed written notice of the change of address to the county sheriff within three business days of moving.

¶8 We hold that all of the individual terms that Breidt challenges are defined by either prior case law or their ordinary meaning. And, the entire phrase “changes his or her residence address” is sufficiently clear to inform a person of common intelligence what conduct is required or proscribed.

A. Standard of Review

¶9 We review the constitutionality of a statute de novo. State v. Watson, 160 Wn.2d 1, 5-6, 154 P.3d 909 (2007). [539]*539We presume that statutes are constitutional; the defendant bears the burden of proving the statute is vague beyond a reasonable doubt. State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992). When the statute at issue “does not involve First Amendment rights, we evaluate the vagueness challenge by examining the statute as applied under the particular facts of the case.” State v. Jenkins, 100 Wn. App. 85, 89, 995 P.2d 1268, review denied, 141 Wn.2d 1011 (2000).

¶10 Due process requires statutes to provide fair notice of the conduct they require or proscribe. Watson, 160 Wn.2d at 6. “A statute fails to provide the required notice if it ‘either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” Id. at 7 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)). Therefore, to prove the failure to register statute is unconstitutionally vague, Breidt “must show beyond a reasonable doubt that either (1) the statute does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) the statute does not provide ascertainable standards of guilt to protect against arbitrary enforcement.” Coria, 120 Wn.2d at 163.

¶11 Breidt only argues that the terms of the statute are not sufficiently defined. Specifically, Breidt argues that the statute is unconstitutionally vague because it fails to define the terms “residence,” “change,” and “residence address.” Br. of Appellant at 5-6. In addition, Breidt argues that the entire phrase “changes his or her residence address” is vague. Id. at 7.

¶12 When a statute does not define a term, the statute is not automatically deemed unconstitutionally vague. Jenkins, 100 Wn. App. at 90. Instead, when terms are not defined in a statute, they are given their ordinary meaning. Id.

[540]*540B. “Residence”

¶13 Addressing the term “residence,” Breidt recognizes that several cases have applied the ordinary meaning of the term “residence,” but appears to argue that, because courts have looked at “a variety of factors to determine whether or not a particular dwelling qualifies as a residence,” a person of ordinary intelligence would not be able to understand the meaning of the term “residence.” Br. of Appellant at 6. We disagree.

¶14 The term “residence” is commonly understood as “a temporary or permanent dwelling place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit.” Webster’s Third New International Dictionary 1931 (1969). In State v. Pickett, 95 Wn. App. 475, 478, 975 P.2d 584

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Bluebook (online)
349 P.3d 924, 187 Wash. App. 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-breidt-washctapp-2015.