Opinion
No. 37894-9-II.
April 28, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 08-1-00413-1, Bryan E. Chushcoff, J., entered May 23, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Armstrong, JJ.
Anthony Toliver appeals his conviction for failure to register as a sex offender, arguing that the State failed to produce sufficient evidence and to allege an essential element of the crime in its information. A commissioner of this court initially considered Toliver's appeal as a motion on the merits under RAP 18.14 and then referred it to a panel of judges. Concluding that both the evidence and the information were sufficient, we affirm Toliver's conviction.
On October 15, 2007, Toliver, who is required to register as a sex offender under RCW 9A.44.130, registered with the Pierce County Sheriff's Department as living at 3566 South D Street, Apartment 1, in Tacoma. He resided there with his girl friend, Lynn Reiten. On December 9, 2007, Toliver and Reiten had an argument about his drug use. According to Reiten, Toliver moved out of the apartment that day and she did not know where he was living. According to Toliver, he did not move out of the apartment. He testified that he lived in the apartment during the day, when Reiten was not there, and then worked at night. He testified that he kept a mattress and his tools in a locked garage detached from the apartment. He had keys to both the apartment and the garage. On January 9, 2008, Toliver told his probation officer that he would be moving if his new address was approved. Toliver testified that he did not move from the apartment until January 17, 2008, when he was arrested for failure to register his change of address.
The State charged Toliver with failure to register as a sex offender as follows:
That ANTHONY ROBERT TOLIVER, in the State of Washington, on or about the 9th day of December, 2007, did unlawfully, feloniously, and knowingly fail to comply with the registration requirements of RCW 9A.44.130 when required to do so, having been convicted of a felony sex offense . . . defendant failed to comply by either failing to reside at the registered address or by failing to comply with notification requirements regarding a change of address, contrary to RCW 9A.44.130.
Clerk's Papers (CP) at 6.
After a bench trial, the court made the following pertinent findings:
VI. That on October 15, 2007, [Toliver] registered with the Pierce County Sheriff's Department Sex Offender Registration Unit to live at 3566 South D Street, Apartment #1, in Tacoma, Washington.
VII. That in December of 2007, [Toliver] was residing at 3566 South D Street, Apartment #1, with Lynn Reiten.
VIII. That on or about December 9, 2007, [Toliver] and Lynn Reiten had an argument, following which, both she and [Toliver] agreed that he should move out of the apartment at 3566 South D Street, Apartment #1.
IX. [Toliver] moved out of 3566 South D Street, Apartment #1, on or about December 9, 2007, following his argument with Lynn Reiten.
X. Ms. Reiten continued to reside at 3566 South D Street, Apartment #1, and would have known if [Toliver] had failed to move out.
XI. The testimony of Lynn Reiten was credible.
XII. [Toliver] did not report his change of address following December 9, 2007, to the Pierce County Sheriff's Department within 72 hours as required by law.
CP at 8. The trial court found Toliver guilty and he appeals.
First, Toliver argues that the State failed to produce sufficient evidence that he moved out of the apartment at 3566 South D Street on December 9, 2007. He contends that Reiten only speculated that Toliver had moved out of the apartment, based on the following exchange:
Q. Ms. Reiten, did you have any knowledge, after he moved out on or about December 9, 2007, of [Toliver] living in [the detached] garage?
A. No.
Q. Would you know if he did?
A. I would assume, yes. I park right next to it.
2 Report of Proceedings at 61.
The evidence is sufficient if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find all of the essential elements of the crime have been proved beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Reiten, who the trial court found credible, expressly testified that Toliver moved out of the apartment on December 9, 2007, she did not know where he was living after that, and she had no reason to believe he was living in the detached garage as he claimed. From this testimony, a rational trier of fact could find beyond a reasonable doubt that Toliver moved out the apartment on December 9, 2007, and did not move into the detached garage. The evidence was sufficient to support the trial court's finding that Toliver did not timely report his change of address to the Pierce County Sheriff's Department as required by law.
Second, Toliver argues that the amended information was deficient because it did not allege that he did not notify the sheriff within 72 hours of his change of address, as required by RCW 9A.44.130(5)(a). He contends that this time frame is an essential element of the crime, such that its absence from the amended information makes the amended information deficient. State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d 86 (1991). But we rejected this argument in State v. Peterson, 145 Wn. App. 672, 677-78, 186 P.3d 1179 (2008), review granted, 203 P.3d 379 (2009).
Accordingly, we affirm Toliver's conviction for failure to register as a sex offender.
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.
BRIDGEWATER, P.J. and ARMSTRONG, J., concur.