Opinion
No. 64727-0-I.
January 10, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-1-01603-2, Ronald L. Castleberry, J., entered December 22, 2009.
Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Appelwick and Schindler, JJ.
Scott A. Avilla appeals his conviction and sentence for one count of failing to register as a sex offender. He challenges the sufficiency of the evidence to support this conviction. He also claims the trial court misapprehended its discretion to consider an exceptional sentence downward. Because sufficient evidence in the record established that Avilla knowingly moved from his registered address to a new residence without registering within the time required, his evidentiary challenge fails. And because the court actually considered the merits of Avilla's request for an exceptional sentence, decided that the record did not provide a substantial and compelling reason to impose a lesser sentence, and imposed a standard range sentence, Avilla's sentence is not subject to appellate review. We affirm Avilla's conviction and sentence.
Background
Scott A. Avilla was previously convicted of voyeurism and failing to register as a sex offender. He knew that RCW 9A.44.130 requires that he register with the sheriff of the county in which he resides. Avilla had registered his residence numerous times.
In June 2008, Avilla registered an address on Jim Creek Road in Arlington, Washington, with the Snohomish County Sheriff's Office. Avilla later informed his landlord that he intended to move from that address. On December 10, Detective Ryan Gausman went to the Jim Creek Road address to verify that Avilla actually lived there. The landlord informed the detective that Avilla moved out some time before November 30 and no longer lived at that location.
On December 19, Detective Gausman learned that Avilla was involved in an unrelated disturbance. Detective Gausman went to the location where Avilla was being detained and verified that Avilla had been advised of his Miranda warnings. Detective Gausman interviewed Avilla, asking him if he still resided at the Jim Creek Road address. Avilla initially responded that he had not yet officially moved out. After additional questioning, however, he stated, "I guess maybe I actually finished moving five days ago." Detective Gausman then arrested Avilla. At the time of his arrest, Avilla had a key to his girl friend's apartment in his front pocket. Avilla was released from custody and on December 29 registered an address in Everett with the Snohomish County Sheriff's Office.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On September 14, 2009, the State charged Avilla with one count of failing to register as a sex offender. The State alleged that on or about November 30, 2008, Avilla vacated the Jim Creek Road address and knowingly failed to provide timely written notice to the county sheriff's office. Avilla agreed to a bench trial.
At trial, Avilla's landlord for the Jim Creek Road address and Detective Gausman testified consistent with the facts described above.
Avilla also testified. He stated that in 2008 he lived in a recreational vehicle (RV) parked at the Jim Creek Road address. Although he could not recall the exact date, he moved from that address some time in late November or early December. Avilla testified that he moved the RV to his brother's house in Marysville before moving in with his girl friend in Everett. After moving, he returned to the Jim Creek Road property twice to collect mail. Avilla also indicated that he had knowledge of the registration requirement.
At the close of all the evidence, the court determined that Avilla moved from the Jim Creek Road address by December 1, 2008, and did not register another address until December 29, 2008, well beyond the 72 hours required by statute. Finding that the facts in the record did not support a defense of confusion about the registration requirement and that Avilla may not have reregistered had he not been arrested on December 19, the court found Avilla guilty of one count of failing to register as a sex offender.
With Avilla's offender score, the standard range for his conviction was 33 to 43 months of incarceration and 36 months of community custody. The statutory maximum was 60 months. At sentencing, Avilla requested a downward exceptional sentence based on a number of factors, including his history of compliance, the minor nature of his offense, and various economic considerations. The court expressed its concern that in this case the standard range was out of proportion to the crime but found that the facts did not support any substantial and compelling reason to impose an exceptional downward sentence. The court sentenced Avilla to 33 months of imprisonment and 27 months of community custody.
Avilla appeals.
Analysis
Avilla challenges the sufficiency of the evidence to sustain a conviction under RCW 9A.44.130. He also contends that the trial court failed to exercise its discretion to consider an exceptional sentence downward. We address each argument separately.
Failure to Register
Avilla asserts the State failed to prove that he knowingly failed to register as a sex offender because he had not completed or only recently finished moving to a new address at the time of his arrest. We disagree.
Evidence is sufficient if, after viewing all the facts and reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could find the elements of the crime beyond a reasonable doubt. A sufficiency challenge admits the truth of the prosecution's evidence and all inferences that can be reasonably drawn from it. Circumstantial evidence and direct evidence are equally reliable.
State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
RCW 9A.44.130 requires a person convicted of a sex offense to regularly register his "complete residential address" with that county's sheriff. The purpose of this statute "is to aid law enforcement in keeping communities safe by requiring offenders to divulge their presence in a particular jurisdiction." To accomplish this goal, the statute establishes time limits for registration when an offender vacates an existing residence or moves to a new residence. When an offender moves to a new residence within the same county, as Avilla did, the statute requires that the offender register his new location within 72 hours.
RCW 9A.44.130(1)(a), (3)(a).
State v. Peterson, 168 Wn.2d 763, 773-74, 230 P.3d 588 (2010).
The term "residence" is not statutorily defined. We may resort to dictionary definitions to give undefined terms their plain and ordinary meaning. Webster's Third New International Dictionary defines "residence" as
Am. Legion Post No. 32 v. City of Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991).
1 a: the act or fact of abiding or dwelling in a place for some time . . . 2 a (1) : the place where one actually lives or has his home as distinguished from his technical domicile (2) : 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 (1993).
Based on this definition, we have held that a sex offender must register the address where he intends to stay even if for an indefinite though temporary period of time.
State v. Pray, 96 Wn. App. 25, 30, 980 P.2d 240 (1999).
Here, the trial court found that Avilla moved from the Jim Creek Road address on or before December 1, 2008. This finding is supported by sufficient evidence in the record. The landlord testified that Avilla paid rent through November and vacated the premises some time in November 2008. Detective Gausman testified that on December 10 he learned from the landlord that Avilla no longer resided at that address. Avilla testified that he moved from the Jim Creek Road address some time in late November or early December.
The trial court found that after Avilla vacated the Jim Creek Road residence, he moved either to his brother's residence in Marysville or to his girl friend's residence in Everett, both in Snohomish County, but failed to register either residence within the 72 hours required by statute. Ample evidence supports these findings. At trial, Avilla testified that in December 2008 he lived temporarily at his brother's residence and part-time at his girl friend's residence. Either address qualifies as a residence under the statute. And at the time of his arrest, Avilla stated that he had finished moving into his new residence 5 days earlier. The parties agree that Avilla did not register any new residence until December 29, 9 days after his arrest and at least 28 days after he moved from the Jim Creek Road address.
In response, Avilla claims the requirement to register a new address did not arise until he completely severed all ties with the Jim Creek Road address. He asserts that this had not occurred at the time of his arrest because he continued to receive mail there. We do not find this argument persuasive. Avilla testified that he did not sleep or stay at that address on those occasions when he picked up his mail. Avilla cites no case law supporting the proposition that receipt of mail at an address is a defense to failing to register the residence where the sex offender actually resides. A person does not reside at an address simply because he receives mail there. Allowing registration of a mail drop instead of the offender's actual place of abode would frustrate the purpose of the sex offender registration statute.
Viewing the evidence in the light most favorable to the State, a rational trier of fact could find beyond a reasonable doubt that Avilla moved from Jim Creek Road and knowingly failed to register his new residence within the 72 hours statutorily mandated. We affirm Avilla's conviction.
Exceptional Sentence
Avilla argues the court abused its discretion by concluding that it lacked legal authority to impose an exceptional sentence downward. In effect, Avilla asserts the sentencing court categorically refused to consider his request for a sentence below the standard range. Because Avilla's argument rests on an incorrect characterization of the court's reason for denying his sentencing request, it fails.
Generally, a defendant may ask a trial court to consider an exceptional sentence below the standard range and is entitled to have that request considered on its merits. But a defendant is not entitled to an exceptional sentence because he asked for it. Instead, a trial court has considerable discretion to impose an exceptional sentence where "`substantial and compelling reasons' . . . justify departure from the standard range and . . . those reasons are consistent with the purposes of the Sentencing Reform Act of 1981 (SRA)." If, however, a standard range sentence is imposed, the defendant may not appeal his sentence unless the sentencing court refused to consider a request for an exceptional sentence or relied on an impermissible basis for denying the request.
State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).
Grayson, 154 Wn.2d at 342.
State v. Davis, 146 Wn. App. 714, 719, 192 P.3d 29 (2008) (quoting RCW 9.94A.535).
State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997); RCW 9.94A.585.
Contrary to Avilla's characterization of the court's decision, the record establishes that the trial court did in fact consider the merits of Avilla's request for a sentence below the standard range. In its oral ruling, it weighed Avilla's history of compliance, along with the fact that only 18 days elapsed between the date he vacated the Jim Creek Road address and the date of his arrest. The court considered Avilla's knowledge of the registration requirement and an absence of confusion in Avilla's failure to register. The court determined that this evidence did not provide a substantial and compelling reason to depart from the standard range. The court remarked, "I want to make it abundantly clear that if there w[ere] any grounds for an exceptional [sentence] down, this court would in fact give an exceptional down sentence. I don't feel that there have been any that have been presented to me." In other words, the court was well aware that if facts in the record supported departure from the standard range, it could impose an exceptional sentence, but because the record in this case did not contain facts supporting a downward departure, it refused to grant one. Therefore, the court did not abuse its discretion, and Avilla is statutorily barred from appealing his standard range sentence.
Conclusion
A rational trier of fact could conclude from the evidence presented that Avilla abandoned the Jim Creek Road address by December 1, 2008, and knowingly failed to register his new residence within the required 72 hours. In addition, the trial court appropriately exercised its discretion in considering but refusing to impose an exceptional downward sentence. For the reasons articulated above, we affirm the trial court.
WE CONCUR.