Opinion
No. 34898-5-II.
May 15, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-01792-9, John F. Nichols, J., entered June 1, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Penoyar, JJ.
Joseph Alan Cooper appeals his conviction of failing to register as a sex offender, arguing that the charging document failed to include an essential element of the offense. We affirm.
Facts
In 2003, Cooper was convicted in Oregon of first degree attempted sexual abuse. Because of that conviction, his probation officer required him to live in Oregon. Sometime between January and August 2005, Cooper sought to move to Washington, but his probation officer denied the request.
After a police officer saw Cooper at his son's football game in Vancouver, Washington, he referred the matter to the Clark County Sheriff's Office. The State eventually charged Cooper by amended information with failure to register as a sex offender, and the charging document read as follows:
COUNT 01 — FAILURE TO REGISTER AS A SEX OR KIDNAPPING OFFENDER (FELONY) — 9A.44.130 (10)(a)
That he, JOSEPH ALAN COOPER, in the County of Clark, State of Washington, between June 1, 2004 and August 2, 2005, having previously been convicted on or about the 25th day of February, 2003, of a sex offense or kidnapping offense, to-wit: Attempted Sexual Abuse in the First Degree, in the Circuit Court of the State of Oregon, Clackamas, Oregon, Court Number (OR003075J) Cause Number 02-1457, and being required to register pursuant to RCW 9A.44.130, did knowingly fail to register with the county sheriff's for the counties in which the defendant resided; contrary to Revised Code of Washington 9A.44.130(4)(b) and 9A.44.130(10)(a).
Clerk's Papers (CP) at 7.
At trial, Cooper's probation officer testified that although Cooper had changed his Oregon residence several times, he had never received permission to live outside the state. The State then introduced several witnesses who identified Cooper as having recently lived in their Vancouver, Washington, neighborhoods. Tammy Hearon testified that Cooper and his family lived across the street in the summer and fall of 2004. Her neighbor Ryan Lynch also recalled seeing Cooper leave for work on a regular basis. Lynch thought Cooper and his family lived in his neighborhood from July through December 2004.
Holly Frazier lived in a different Vancouver neighborhood and testified that Cooper and his family lived next door from approximately January through August 2005.
Detective Kevin McVicker testified that from June 2004 through August 2005, Cooper did not contact the Clark County Sheriff's Office and register as a sex offender living at a Clark County address.
After the State rested, Cooper filed a motion to dismiss based in part on the insufficiency of the charging document. He alleged that by failing to include the language from RCW 9A.44.130 regarding the 30-day period within which a new resident of Washington could register as a sex offender without incurring penalty, the information failed to include an essential element of the offense. The court rejected his argument.
Cooper then testified that he came to Washington periodically on travel permits approved by his probation officer. On cross examination, however, he admitted that most of his trips to Washington were unauthorized. He came to visit his wife and children who lived in two rental homes in Vancouver. He denied residing anywhere other than at various Oregon addresses.
When the parties discussed the jury instructions, they agreed that both the instruction defining the crime of failure to register as a sex offender and the "to convict" instruction outlining the elements of the offense should include the 30-day period referred to in RCW 9A.44.130. Accordingly, the pertinent instructions read as follows:
Instruction No. 6
A person commits the crime of failure to register as a sex offender when having previously been convicted of a sex offense, and being required to register within 30 days of having moved to the State of Washington, did knowingly fail to register in the county of his residence.
Instruction No. 7
To convict the defendant of the crime of Failure to Register as a Sex Offender, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That between June 1, 2004 and August 2[,] 2005, the defendant, having previously been convicted of a sex offense, and;
(2) Being required to register within 30 days of establishing residence; did [k]nowingly fail to register;
(3) In the county of his residence, and;
(4) That the acts occurred in Clark County, the State of Washington.
. . . .
CP at 35, 36.
The jury found Cooper guilty as charged. He now appeals.
Analysis
At issue is whether the information was deficient because it failed to inform Cooper of all the essential elements of failure to register as a sex offender.
A charging document must include all essential elements of a crime, statutory or otherwise, "to afford notice to an accused of the nature and cause of the accusation against him." State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). But charging documents do not need to mirror the language of the statute. State v. Tandecki, 153 Wn.2d 842, 846, 109 P.3d 398 (2005). The notice requirement's purpose is to allow the defendant to prepare an adequate defense to the charges. Kjorsvik, 117 Wn.2d at 101-02. The time at which a defendant challenges the charging document controls the standard of review for determining the charging document's validity. State v. Borrero, 147 Wn.2d 353, 360, 58 P.3d 245 (2002). When the charging document is challenged before the verdict, the language must be construed strictly. Borrero, 147 Wn.2d at 360. When the charging document is challenged after the verdict, the language is construed liberally in favor of validity. Borrero, 147 Wn.2d at 360.
Here, Cooper challenged the information after the State presented its case in chief and well before the verdict, so we must construe its language strictly.
Cooper complains that the information made no mention of the timing element set forth in that portion of the statute relevant to his offense. At the time of his offense, RCW 9A.44.130 provided in pertinent part as follows:
OFFENDERS WHO ARE NEW RESIDENTS OR RETURNING WASHINGTON RESIDENTS. Sex offenders and kidnapping offenders who move to Washington state from another state or a foreign country that are not under the jurisdiction of the state department of corrections, the indeterminate sentence review board, or the state department of social and health services at the time of moving to Washington, must register within thirty days of establishing residence or reestablishing residence if the person is a former Washington resident. . . .
Former RCW 9A.44.130(4)(a)(v).
As amended in 2006, the statute now gives such offenders three business days within which to register. Laws of 2006, ch. 127, §§ 2.
Other subsections of the statute provide different deadlines within which other categories of sex offenders must register (e.g., offenders under federal jurisdiction, offenders who are convicted but not confined, offenders who lack a fixed residence). See RCW 9A.44.130(4)(a)(iii), (iv), (vii). Washington courts have recognized that in proving a violation of this statute, the State must prove a failure to comply with its time requirements. See State v. Pickett, 95 Wn. App. 475, 477, 975 P.2d 584 (1999) (to obtain conviction under RCW 9A.44.130, State had to prove that defendant was required to register, that he changed his residence address, and that he failed to timely send written notice to the sheriff); State v. Vanderpool, 99 Wn. App. 709, 713, 995 P.2d 104 (2000) (defendant had three distinct legal duties under RCW 9A.44.130, each of which involved different time requirements).
The 30-day time period at issue here could give notice of a possible defense, in that the statute is not violated until that period lapses. Cooper's argument ignores the fact, however, that the amended information the State filed did include a timing element. It stated that he failed to register between June 1, 2004, and August 2, 2005. This time period necessarily included the 30-day period set forth in the statute and gave Cooper ample notice that he, at least, would not be able to assert a defense based thereon.
The fact that the trial court subsequently included the 30-day time period as an element of the "to convict" instruction is not determinative. The charging document was not required to mirror the language of the statute, and as written it gave notice of a time period that was more difficult to prove than that required by statute. We see no fatal defect in the amended information.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
Hunt, J. and Penoyar, J., concur.