Opinion
No. 34785-7-II.
April 10, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-8-01064-8, Christine A. Pomeroy, J., entered April 6, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Armstrong and Penoyar, JJ.
KDH appeals his juvenile court adjudication that he failed to register as a sex offender under RCW 9A.44.130. He argues that (1) the charging document was defective in failing to set forth all essential elements of the charge; (2) there was insufficient evidence to support the trial court's finding of guilt; and (3) the RCW 9A.44.130 definition of "residence" is so ambiguous that it requires reversal. We affirm. FACTS I. Sex Offender Registration On April 2, 2004, KDH pleaded guilty in juvenile court to first degree child molestation. As part of his disposition, the juvenile court required him to register as a sex offender under RCW 9A.44.130. When the State released KDH from custody in July, 2004, he registered as a sex offender in person with the Thurston County Sheriff's Department. Sheriff's Department Detective Daryl Leischner explained the registration requirements to KDH at length, and gave KDH a Thurston County Sheriff's Department registration requirements form, reminding KDH that he was responsible for updating his address every time he moved. During the next year, KDH successfully changed his address and notified the Thurston County Sheriff's Department on five separate occasions. At the end of summer 2005, KDH was registered at an address in Rainier, Washington. In early September, KDH asked his friend David Bolin if he could stay at David's house on Maxine Street in Lacey, Washington. David's mother, Deann Bolin, agreed to let KDH stay at the house for a few weeks. KDH did not notify the Thurston County Sheriff's Department of this address change at this time. On September 26, 2005, however, KDH reported that he had changed his address to his sister's Wilson Street home in Olympia. Because the Wilson Street address was in the Olympia School District, this move should have triggered KDH's transfer from North Thurston High School. But because KDH wished to remain at North Thurston High School, on October 25, 2005, he changed his sex offender registration with the Thurston County Sheriff's Department, indicating the Bolin home on Maxine Street as his residence. The Maxine Street address allowed KDH's continued enrollment at North Thurston High School. On November 12, 2005, Lacey Police Sergeant David Campbell responded to an assault at North Thurston High School and contacted KDH. Campbell, who knew KDH was a sex offender with registration requirements, asked KDH if he was still residing at the Maxine Street address in Lacey. KDH admitted to Campbell that he had lived at the Maxine Street address for only several weeks at the beginning of the year, but that he had not lived there for some time. After learning that KDH had not been living at the Maxine Street residence after October 24, 2005, Detective Lesischner began an investigation. II. Procedure The State charged KDH in Thurston County Juvenile Court with one count of failing to register as a sex offender from October 25, 2005, to December 13, 2005. The juvenile court held a bench trial. The State presented testimony from David and Deann Bolin that KDH did not live at the Bolins' Maxine Street residence during the dates in question, and that around the beginning of the 2005 school year, Deann Bolin had told KDH he was no longer welcome in her home. According to Deann Bolin, after the beginning of the 2005 school year, KDH was at her home on only two nights, when David Bolin snuck KDH into the home without her permission. David corroborated his mother's testimony that KDH stopped living at the Bolin home on Maxine Street at the beginning of the 2005 school year. Deann Bolin further testified that her home is a relatively small two-story house with one main entrance in the front and a sliding glass door in the rear that leads to a daylight basement. David's room was in the daylight basement. Although Deann Bolin and her husband lived on the upper floor, they could hear any activity in the basement; and her husband locks both the front door and the sliding glass door every night. During the days when KDH claimed to be living at the Bolins, as far as Deann Bolin was aware, only she and her husband were in the house, and they heard no unexplained noises. Sergeant Campbell testified that in November 2005, KDH admitted he did not live at the Maxine Street address, but asserted that he had continued to use the address so he could attend North Thurston High School. KDH presented contrary evidence that he did reside at the Maxine Street address during the dates in question. He produced six witnesses, all of whom corroborated that KDH was living at the Bolin residence on Maxine Street in October and November 2005. Three of the witnesses were KDH's friends; each testified he or she had visited KDH at the Bolin residence during the October and November months. All of these witnesses positively remembered KDH residing at the Bolin home with Deann Bolin's permission. KDH's girlfriend, Rachel Benavides, testified that she spent the night with KDH at the Bolin residence on several occasions. KDH also called his sister, his mother, and his mother's boyfriend as witnesses. All three testified that they had dropped KDH off at the Maxine Street address in October and November. KDH's mother testified that she had spoken with Deann Bolin about KDH continuing to live at the home, and Deann Bolin had agreed to allow KDH to stay. The trial court found KDH delinquent for failing to register as a sex offender and committed him to 30 days in juvenile detention. KDH appeals. ANALYSIS I. Charging Document KDH argues that the charging document was insufficient because it lacked the following statutory elements: that KDH had (1) to inform the county sheriff's office of his changed address (2) within 72 hours of the change. We disagree. A. Standard of Review Generally, a charging document must contain "[a]ll essential elements of a crime" so as to give the defendant notice of the charges, thus allowing the defendant to prepare a defense. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). But the standard of review depends on the point at which the defendant challenges the charging document. Kjorsvik, 117 Wn.2d at 103. When, as here, the defendant challenges the charging document for the first time on appeal, the Court liberally construes the document in favor of validity. Kjorsvik, 117 Wn.2d at 105. Under this liberal construction rule, "even if there is an apparently missing element, [if] it may be able to be fairly implied from language within the charging document," then we will uphold the charging document on appeal. Kjorsvik, 117 Wn.2d at 104. Thus, we look at the entire information to determine if it contains the necessary allegations. Kjorsvik, 117 Wn.2d at 104. The test is: "(1) [D]o the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?" Kjorsvik, 117 Wn.2d at 105-106. B. Failure To Register The amended information charged KDH with: COUNT 1 — VIOLATION OF SEX OFFENDER REGISTRATION, RCW (10)(a) — ClassC Felony 9A.44.130 In that the respondent [KDH], in the State of Washington, on or about October 25, 2005 through December 13, 2005, having been previously convicted of a sex offense, to wit: Child Molestation in the First Degree, and therefore required to register as a sex offender in Washington, did knowingly fail to comply with sex offender registration requirements. Clerk's Papers at 3. RCW 9A.44.130(5)(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 send signed written notice of the change of address to the county sheriff within seventy-two hours of moving. The State argues that this statute contains two essential elements: (1) that the defendant has a previous conviction for a felony sex offense, and (2) that the defendant knowingly failed to comply with the registration requirements of RCW 9A.44.130. Applying a liberal interpretation, the State contends that the First Amended Information recites the statute's essential elements. We agree. Under a liberal construction, the amended information implied the missing reference to KDH's responsibility to register with the Thurston County Sheriff's Office within 72 hours. First, the amended information refers to a time period from October 25 to December 13, 2005, thereby implying that registration needed to take place within a set time period. As the State notes in its brief, it is not alleging that KDH failed to register within 72 hours of changing his address; instead, it is alleging that KDH did not accurately register his new address for over six weeks after the change. That the information does not expressly allege that KDH failed to register within 72 hours did not nullify KDH's understanding that he had to re-register his new address within a specific time frame, which here, the State alleged, was six weeks. Second, courts have consistently acknowledged that the purpose of the sex offender registry law is to apprise law enforcement of sex offenders' whereabouts in order to protect the community at large. See State v. Stratton, 130 Wn. App. 760, 765, 124 P.3d 660 (2005). Although the charging document here does not explicitly state that a defendant had to register with the Sheriff's Department, that necessity is certainly implied in the language. The primary goal of the "essential elements" rule is to notify a defendant such as KDH of the nature of the charged crime so that he can prepare an adequate defense. Kjorsvik, 117 Wn.2d at 101. The record demonstrates that KDH was familiar with the sex-offender registration process and that he had encountered no difficulty following the required re-registration process the five times he had previously changed his address. Thus, we cannot conceive how an omitted express reference to the Thurston County Sheriff's Department somehow failed to notify KDH of the nature of his offense or hinder his ability to prepare an adequate defense. Moreover, the State did not charge KDH with failure to register with the Sheriff's Department. Instead, it charged him with failure to register accurately with the Sheriff's Department when he falsely claimed that the Bolins' Maxine Street address was his residence. The record amply shows that KDH understood the necessity of accurate residence registration (as demonstrated by his five previous registrations), but that this time he chose to ignore the requirement in order to attend his preferred high school in a district in which he did not actually reside. KDH having challenged the charging document for the first time on appeal, we liberally construe the information as containing the essential elements of the charged crime of failing to register as a sex offender under RCW 9A.44.130. Thus, KDH's challenge fails. II. Sufficiency of Evidence KDH next argues that the trial court lacked sufficient evidence to find that he violated RCW 9A.44.130 by failing to register a correct address. This argument also fails. A. Standard of Review Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, 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 State's evidence and all inferences that reasonably can be drawn there from." Salinas, 119 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 will not disrupt a trier of fact's credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Rather, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). B. Failure To Register The State presented sufficient evidence that KDH was not residing at the Maxine Street address from October 25 until December 13. First, the State called Deann Bolin, owner and occupier of the Maxine Street address, who unequivocally stated that KDH was neither invited to nor staying in her home during the dates in question. Second, David Bolin, KDH's friend and occupant of the Maxine Street address, confirmed his mother's testimony that KDH was not residing at the home during the charged period. Finally, KDH admitted to law enforcement in November that he was not living at the Maxine Street address and explained that he had registered there in order to continue his enrollment at North Thurston High School, in which district the Maxine Street address was located. Although KDH presented contradictory evidence, the trial court clearly found the State's evidence more credible.4 Under Walton, we defer to the trial court on these issues. 64 Wn. App. at 415-16. We hold, therefore, that there was sufficient evidence to support the trial court's finding that KDH did not reside at the Maxine Street address from October 25 until December 13, as charged. III. Statutory Language Not Ambiguous Last, KDH argues that the RCW 9A.44.130 definition of "residence" is so vague that we must dismiss his failure-to-register adjudication. Again, we disagree. A. Standard of Review A statute is ambiguous if a court can interpret it in more than one reasonable way. State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005). And if a criminal statute is ambiguous, the rule of lenity requires the court to interpret it in favor of the defendant, absent legislative intent to the contrary. Jacobs, 154 Wn.2d at 601 (citing In re Post Sentencing Review of Charles, 135 Wn.2d 239, 249, 955 P.2d 798 (1998)); State v. Roberts, 117 Wn.2d 576, 585, 817 P.2d 855 (1991). Such is not the case here, however. B. "Residence" We recently addressed RCW 9A.44.130's definition of "residence" in Stratton, 130 Wn. App. 760. In Stratton, we held that the statutory term "residence" can encompass a place where a defendant keeps a phone line, receives mail, and sleeps in his automobile on the property. 130 Wn. App. at 766. We reasoned that the local sheriff's department could contact the defendant at such an address by mail, by phone, or in person in the evenings. Stratton, 130 Wn. App. at 765. Even though Stratton slept in his car and did not reside inside the dwelling itself, we reasoned that his residence was consistent with and satisfied the statutory definition of a "fixed residence." Stratton, 130 Wn. App. at 766-67. Here, KDH lived at the Bolins' Maxine Street address for several weeks at the end of August/beginning of September 2005. But he no longer resided there as of October 25, 2005, when he registered with the sheriff's department as living at the Maxine Street address. KDH would have us expand Stratton to hold that the RCW 9A.44.130 is so ambiguous that its term "residence" encompasses a place where the defendant did not physically reside as well as a place he had no authority to enter. He does not persuade us that such expansion is proper. No rule of lenity could possibly include the definition of "residence" as a place where a defendant, such as KDH, does not reside and has no authority to inhabit. Therefore, KDH's statutory ambiguity argument fails. 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. We concur: Armstrong, P.J. Penoyar, J.
Moreover, David Bolin had stopped living at the Bolin home in October and November 2005 and, thus, would have been unavailable and unable to sneak KDH into the home on subsequent occasions.
This rule encourages defendants who recognize a charging defect to object when an amendment can cure the defect. Kjorsvik, 117 Wn.2d at 103. A defendant's remedy at trial for an allegedly inadequate information is to seek a bill of particulars under CrR 2.1(c).