Opinion
No. 36416-6-II.
September 9, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00237-0, H. John Hall, J., entered June 12, 2007.
Zachary Wilson appeals his Lewis County conviction of failure to register as a sex offender. He contends that (1) RCW 9A.44.130(7) is ambiguous and under the rule of lenity, the trial court should have interpreted it in his favor; (2) insufficient evidence supports his conviction; (3) the trial court's to-convict and definitional jury instructions were erroneous; and (4) the information was constitutionally deficient because it did not contain all of the essential elements of the charged offense. Pro se, he raises additional arguments. We reverse the conviction and remand for dismissal of the charge without prejudice. As the State may elect to recharge him, we address issues that may be pertinent in a second trial.
FACTS
Wilson was convicted of three sex offenses in 1999 as a juvenile. As a risk level III offender, he must report every 90 days, in person, on a date established by the county sheriff where he is registered. After his November 2006 release, he registered on December 19, 2006, and received written notice that his next reporting date was March 20, 2007. He spent 20 days in jail in early 2007 for a probation violation and registered again upon his release, February 15, 2007. He did not report on March 20, 2007, and the State charged him with failure to register as a sex offender.
At trial, Wilson testified that he believed he had 90 days after February 15 before he needed to report again. He argued that he had, in fact, complied with the statute, because at the time of his arrest, he had not failed to report every 90 days. He pointed out that March 20, 2007, was 91 days from his December registration date, arguing that it was, therefore, an invalid requirement pursuant to the statute. Detective Bradford Borden, Lewis County's sex offender registration officer, explained that the reporting dates were set on the third Tuesday of each quarter "to make it as close to the 90 days as we can so we don't run into a weekend." Report of Proceedings May 22, 2007 at 24.
The jury found Wilson guilty as charged. Because of his extensive criminal history, his offender score was 14 and his standard range sentence was 43 to 57 months. The trial court rejected his request for a sentence below the range because he had two prior convictions of failure to register and sentenced him to 43 months in prison. He appeals.
ANALYSIS
Statutory Interpretation
The majority of the issues in this case arise from the interpretation and implementation of RCW 9A.44.130(7), which provides in pertinent part:
All offenders who are required to register pursuant to this section who have a fixed residence and who are designated as a risk level II or III must report, in person, every ninety days to the sheriff of the county where he or she is registered.
Reporting shall be on a day specified by the county sheriff's office, and shall occur during normal business hours.
Wilson contends that the statute is ambiguous because it does not indicate whether the 90-day requirement or the specific date requirement should control in a situation where they are inconsistent. He must prove beyond a reasonable doubt that, as applied in his circumstances, the statute was so vague that it did not define a criminal offense with sufficient definiteness to allow a person of ordinary understanding to know what conduct it prohibited. See State v. Prestegard, 108 Wn. App. 14, 21, 28 P.3d 817 (2001). Merely showing that the statute did not provide him with complete certainty as to what conduct is prohibited is insufficient. State v. Jenkins, 100 Wn. App. 85, 89-90, 995 P.2d 1268 (2000).
We evaluate vagueness claims that do not involve first amendment rights under the facts of each case. See In re Detention of Albrecht, 129 Wn. App. 243, 254, 118 P.3d 909 (2005), review denied, 157 Wn.2d 1003 (2006).
Here, the statutory requirements are clear. Under Wilson's argument, it is not the statutory language, but the county sheriff's action that is confusing. Wilson identified the reason for his failure to report on March 20 was the belief that his appearance on February 15 reset the reporting date, not any confusion generated by the fact that March 20 was one day over the 90-day requirement. Pursuant to the statute, he must comply by reporting on the March 20 date chosen by the county sheriff. Only if Wilson had reported on March 20 as directed, and then been charged with a violation of the 90-day requirement, could he argue that as applied to him, the statute is ambiguous.
As the statute is unambiguous, the rule of lenity does not apply. State v. Tvedt, 153 Wn.2d 705, 107 P.3d 728 (2005) (the rule of lenity requires the court to construe an ambiguous criminal statute favorably to the accused).
Sufficiency of the Evidence
Wilson also challenges the sufficiency of the evidence to support his conviction, arguing that he cannot be required to report on a date that is outside the period established by the legislature. County sheriff actions of standardizing reporting dates to the third Tuesday will not be invalidated unless they are arbitrary and capricious. See State v. MacKenzie, 114 Wn. App. 687, 695-96, 60 P.3d 607 (2002). Pursuant to legislative authority, an erroneous decision is not arbitrary and capricious if it was based on a rational factual analysis. State v. Ford, 110 Wn.2d 827, 832, 755 P.2d 806 (1988) (state toxicologist's approval of the DataMaster machine on the basis of the testing of a prototype, before the ultimate machine was produced, may have been premature but was not arbitrary and capricious); see also State v. Straka, 116 Wn.2d 859, 886-87, 810 P.2d 888 (1991) (state patrol's decision not to use software recommended by state toxicologist to preserve error messages had rational basis and was not bad faith).
Here, the Lewis County sheriff's scheduling procedures were based on reasonable considerations and were consistent with the statutory intent.
The March 20 reporting date was a valid requirement. The failure to report on that date provides sufficient evidence to support the conviction.
Jury Instructions
Wilson next contends that the to-convict and definitional jury instructions were inadequate because they did not include the requirement that he report every 90 days, stating only that the jury must find that he failed to report on March 20, 2007. When a jury instruction omits an element of the charged offense or misstates the law, it is subject to a harmless error analysis. State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004)). The pivotal question is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict. Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).
The instruction Wilson proposed did not mention the 90-day requirement either.
The failure to report on the day designated by the sheriff's department was a violation of the statute. Inclusion of the 90-day requirement would not have changed the result. Omission of that requirement was harmless.
Information
Wilson next contends that the information was deficient because it did not contain all of the essential elements of the offense. The information charged:
FAILURE TO REGISTER AS A SEX OFFENDER, which is a violation of RCW 9A.44.130(7), the maximum penalty for which is 5 years in prison and a $10,000 fine, in that defendant on or about March 20, 2007, in Lewis County, Washington, then and there being a person required to register as a sex offender in Lewis County, did knowingly unlawfully fail to comply with the statutory registration requirements by failing to report on the required day for the 90 day reporting requirement as required by RCW 9A.44.130(7); against the peace and dignity of the State of Washington.
Clerk's Papers at 45.
We review a charging document challenged for the first time on appeal under a liberal standard. State v. Johnson, 119 Wn.2d 143, 149-50, 829 P.2d 1078 (1992). But even under that standard, the necessary elements must appear in some form. State v. O'Neal, 126 Wn. App. 395, 414, 109 P.3d 429 (2005). The information here does not include the elements that Wilson had a fixed residence and was a risk level II or III. The State concedes that the charge must be dismissed, and we agree.
Statement of Additional Grounds
RAP 10.10.
Wilson complains that his risk level was improperly raised from I to III on the basis of a subsequent conviction that was not a sex offense. In fact, he committed four crimes in five months: third degree assault, first degree malicious mischief, attempt to elude, and failure to register. That repeated criminal behavior, especially as it includes a prior failure to register, is a valid indicator of risk.
His risk level was raised in November 2006, when he was released from confinement on those crimes.
Wilson also asserts that he substantially complied with the registration statute. But substantial compliance is not a defense. See Prestegard, 108 Wn. App. at 21-22. Likewise unpersuasive is his claim that the punishment was too harsh. The punishment was a result of his prior lawless behavior. His attorney argued that his substantial compliance should be considered a mitigating factor, but the trial court rejected that argument because of his two prior failures to register. The trial court did not abuse its discretion. State v. Berty, 136 Wn. App. 74, 83-84, 147 P.3d 1004 (2006) (a trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds). We reverse and remand. The trial court shall vacate the conviction and dismiss the charge without prejudice. See State v. Vangerpen, 125 Wn.2d 782, 792-93, 888 P.2d 1177 (1995).
A sentence within the standard range is generally not an abuse of discretion. State v. Medrano, 80 Wn. App. 108, 111-12, 906 P.2d 982 (1995).
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, J., Penoyar, A.C.J., concur.