Opinion
No. 40241-6-II
11-15-2011
STATE OF WASHINGTON, Respondent, v. DOUGLAS BUSH, II, Appellant.
UNPUBLISHED OPINION
Quinn-Brintnall, J. — A jury found Douglas Bush, II guilty of failure to register as a sex offender. Former RCW 9A.44.130(4)(b), (11)(a) (2006). During closing argument, the State argued that the jury could convict Bush on four separate incidents even though two of the incidents occurred outside of the charging period. Bush argues that the State presented insufficient evidence to prove each of the four incidents beyond a reasonable doubt. Because the State was not required to prove each of the incidents beyond a reasonable doubt and sufficient evidence supports the jury's verdict, we affirm.
FACTS
Bush is required to register as a sex offender. On June 19, 2009, upon his release from jail, Bush registered his address as 14703 N.E. 76th Street in Vancouver, Washington. Bush later admitted that he had never lived at that address.
On July 30, Bush registered his address as 501 S.E. 123rd Avenue, Unit I59 in Vancouver. On August 3, City of Vancouver Police Detective Patrick Kennedy went to Unit I59 to verify that Bush lived in the apartment. When nobody answered the door, Kennedy left his phone number and a note asking Bush to call him.
Detective Kennedy later thought that Bush might have meant to register at the adjacent apartment, Unit I57. On August 6, Kennedy contacted Jeanie Alo at Unit I57, who told Kennedy that Bush did not live in her apartment. Alo testified that Bush had stayed at her apartment two or three weeks earlier in July 2009. Alo testified that Bush slept on her couch, was not on the lease, and did not pay rent, receive mail, share in any of the living expenses, or keep any belongings at her apartment. Alo also testified that she and Bush had agreed Bush would give her food stamps or food in exchange for housing.
On the evening of August 6, Detective Kennedy spoke with Bush about his registration. Bush told Kennedy that he stayed at Alo's apartment seven to ten times before he registered that address on July 30. However, at trial, Bush testified that he did not stay at Alo's apartment until after he registered the address. Bush testified that he slept on Alo's couch, had only a backpack of belongings, and would call ahead of time to see if he could sleep at Alo's apartment. City of Vancouver Police Detective Mike Davis testified that Bush told him that he "would come and go" from Alo's apartment. 1 Report of Proceedings (RP) at 123. Davis further testified that when Bush was not staying at Alo's apartment, Bush "was basically transient." 1 RP at 123.
The State charged Bush with failing to register as a sex offender between July 30, 2009 and August 6, 2009. Former RCW 9A.44.130(4)(b), (11)(a). Bush stipulated that he was required to register during that period pursuant to ch. 9A.44 RCW. On January 4, 2010, the case proceeded to a jury trial. During closing argument, the State argued that Bush failed to register as a sex offender in four ways:
(1) Bush registered the Northeast 76th Street address on June 16, 2009, but never lived there.Bush did not object.
(2) Bush registered the Southeast 123rd Avenue address but never lived there because "couch surfing there for a few days" does not qualify as a residence. 2 RP at 218.
(3) Bush lacked a fixed residence between June 16, 2009 and August 6, 2009, and was required to report as a transient.
(4) Bush left the Southeast 123rd Avenue address on or at before July 30, 2009, but did not report that within 48 or 72 hours.
The trial court instructed the jury that "[i]n any case where the offense is alleged to have occurred more than once over a period of time, all twelve of you must agree that the same criminal act has been proved beyond a reasonable doubt." Clerk's Papers (CP) at 20. The trial court further instructed the jury:
To convict [Bush] 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:CP at 21. The verdict form did not contain a special verdict form asking the jury to specify on which act it found Bush guilty of failure to register.
(1) That on about or between July 30, 2009, and August 6, 2009, [Bush] was required to register as a sex offender; and
(2) That on about or between July 30, 2009, and August 6, 2009, [Bush] knowingly failed to comply with a requirement of sex offender registration; and
(3) That the acts occurred in the State of Washington.
The jury found Bush guilty as charged. The trial court sentenced Bush to 27 months confinement and 36 months of community custody. Bush timely appeals.
On February 9, 2011, a commissioner of this court affirmed Bush's conviction. On March 14, Bush moved to modify the commissioner's ruling, arguing that absent a special jury verdict form, we could be not convinced beyond a reasonable doubt that the jury did not convict Bush for acts that occurred outside the charging period. We granted Bush's motion for full appellate review on April 20.
DISCUSSION
Sufficiency of the Evidence
Bush asserts that the evidence was insufficient to support his conviction. Specifically, Bush relies on State v. Jensen, 125 Wn. App. 319, 104 P.3d 717, review denied, 154 Wn.2d 1011 (2005), to argue that the State failed to meet its burden to present sufficient evidence to prove each alleged instance beyond a reasonable doubt. The State counters, arguing that under State v. Peterson, 168 Wn.2d 763, 230 P.3d 588 (2010), it was not required to prove each act with sufficient evidence because failure to register is not an alternative means crime. We agree with the State.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the jury's verdict, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the evidence and all reasonable inferences that a trier of fact can draw from that evidence. Salinas, 110 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). We do not need to be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the jury's verdict. State v. Jones, 93 Wn. App. 166, 176, 968 P.2d 888 (1998), review denied, 138 Wn.2d 1003 (1999). We presume that jurors follow the court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994); State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983).
A sex offender is statutorily required to register with the sheriff of his county of residence. Former RCW 9A.44.130(1)(a) (2006); Peterson, 168 Wn.2d at 768. A convicted sex offender changing his residence within the same county must provide the county sheriff with written notice of the change within 72 hours. Former RCW 9A.44.130(5)(a) (2006); State v. Stratton, 130 Wn.
App. 760, 764, 124 P.3d 660 (2005). A convicted sex offender who lacks a "fixed residence" must provide written notice to the sheriff of the county where he last registered within 48 hours. Former RCW 9A.44.130(6)(a) (2006); Stratton, 130 Wn. App. at 764. In addition, an offender who lacks a fixed residence must report weekly, in person, to the sheriff of the county where he is registered. Former RCW 9A.44.130(6)(b) (2006); Stratton, 130 Wn. App. at 764.
The offense of failure to register is a continuing course of conduct crime. Peterson, 168 Wn.2d at 766 (failure to register is not an alternative means crime merely because it can be accomplished in different ways); State v. Green, 156 Wn. App. 96, 100, 230 P.3d 654 (2010) (statute requiring a convicted sex offender to register "in person, every ninety days" indicates that the unit of prosecution is an ongoing course of conduct); see former RCW 9A.44.140(6) (2002) ("[u]nless relieved of the duty to register . . . a violation of RCW 9A.44.130 is an ongoing offense"). "There is only one method by which an offender fails to register, and that is if he moves from his residence without notice." Peterson, 168 Wn.2d at 770. A person is guilty of failure to register as a sex offender when, having been previously convicted of a qualifying sex offense, he knowingly fails to comply with any of the statutory requirements. Former RCW 9A.44.130(11)(a); former RCW 9A.44.130(10)(a) (2006). Thus, at trial, the State was required to prove beyond a reasonable doubt that on, about, or between July 30, 2009 and August 6, 2009, Bush was a sex offender who knowingly did not register as the law required.
Federal courts have similarly held that failure to register is a continuing offense under the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250. See United States v. George, 579 F.3d 962, 964-68 (9th Cir. 2009), amended on reh'g, 625 P.3d 1124 (9th Cir. 2010).
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Here, Bush registered Alo's apartment as his residence on July 30, 2009. Alo testified that Bush sometimes slept on the couch in her apartment but did not live there. Bush testified that he slept on Alo's couch, had a backpack of belongings, and would call ahead to see if he could spend the night at Alo's apartment. Detective Davis testified that Bush told him that he would "come and go" from Alo's apartment and that Bush "was basically transient." 1 RP at 123.
Reviewing the evidence in the light most favorable to the jury's verdict, we hold that under these facts, any rational trier of fact could have found Bush guilty of failure to register. Salinas, 119 Wn.2d at 201. Sufficient evidence supports a finding that Bush lacked a "fixed residence" between July 30, 2009 and August 6, 2009, and that he did not register with the county sheriff within 48 hours of lacking a "fixed residence" as required by former RCW 9A.44.130(6)(a). Moreover, the trial court instructed the jury that "where the offense is alleged to have occurred more than once over a period of time, all twelve of you must agree that the same criminal act was proved beyond a reasonable doubt." CP at 20. Here the violation period was specifically limited to the week between July 30, 2009 and August 6, 2009. Because we presume that jurors follow the court's instructions and the remaining evidence amply supports the jury's finding of guilt, we hold that the State's comments had no prejudicial effect influencing the jury's verdict. See, e.g., State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (failure to object to State's allegedly improper comments constitutes waiver unless the resulting prejudice could not have been neutralized by a curative jury instruction (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998))).
Accordingly, because the State met its burden to prove beyond a reasonable doubt that Bush failed to comply with the sex offender registration statute during the time period charged and the evidence was sufficient to support his conviction, we affirm.
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.
QUINN-BRINTNALL, J.
We concur:
ARMSTRONG. J.
WORSWICK, A.C.J.