State Of Wash. v. Peterson
| Decision Date | 06 May 2010 |
| Docket Number | No. 82089-9.,82089-9. |
| Citation | 230 P.3d 588,168 Wash.2d 763 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent,v.Michael Eugene PETERSON, Petitioner. |
Casey Grannis, Nielsen Broman & Koch, P.L.L.C., Seattle, WA, for Petitioner.
Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.
¶ 1 Presented as a challenge to the sufficiency of the State's evidence, this case requires us to consider what elements constitute the crime of failure to register as a sex offender (failure to register) under former RCW 9A.44.130 (Laws of 2003, ch. 215, § 1).1 Specifically, we must determine whether a registrant's residential status must be proved at trial and whether the crime is an alternative means crime. We hold that failure to register as a sex offender is not an alternative means crime and that the elements of the crime do not include a registrant's particular residential status. Accordingly, the evidence was sufficient to sustain the defendant's conviction.2
¶ 2 Michael Peterson was convicted of third degree rape in 1988. As a sex offender, he must register with the sheriff of the county in which he resides pursuant to RCW 9A.44.130. Since Peterson's release from custody in 1991 he has registered numerous times as either having an address or as being homeless. On September 12, 2005, Peterson moved to an apartment in Everett and registered with the Snohomish County Sheriff's Office as required.
¶ 3 On November 2, 2005, an Everett police officer attempted to verify Peterson's address. He learned that Peterson had moved four days earlier and his whereabouts were unknown. On December 6, 2005, Peterson registered as a homeless person with the Snohomish County Sheriff's Office.
¶ 4 The State charged Peterson with failure to register as a sex offender. The first charging document alleged that Peterson failed to report to the county sheriff between November 2 and November 22, 2005. An amended information clarified that Peterson failed to register with the county sheriff within 48 hours of ceasing to have a fixed residence. A second amended information alleged instead that Peterson failed to register within 72 hours of ceasing to reside at his Everett apartment.3 At trial, the State presented evidence that Peterson vacated the residence on or around November 2, 2005, and did not report to the sheriff until December 6, 2005. The State did not present any evidence concerning Peterson's residential status after leaving his Everett apartment. The to-convict instruction stated, in part, that the jury had to find beyond a reasonable doubt that Peterson failed to “provide written notice to the county sheriff within 72 hours after ceasing to reside” at his previous residence. Clerk's Papers (CP) at 33. A jury found him guilty, and he was sentenced to 15 days of confinement.
¶ 5 Peterson appealed his conviction. The Court of Appeals rejected Peterson's contention that failure to register is an alternative means crime. State v. Peterson, 145 Wash.App. 672, 678, 186 P.3d 1179 (2008). It concluded that the deadlines under RCW 9A.44.130 are not elements of the crime. Id. Peterson petitioned for review, which we granted.4 165 Wash.2d 1027, 203 P.3d 379 (2009).
¶ 6 Peterson makes two related yet distinct arguments regarding the nature of the crime at issue, one having to do with whether failure to register is an alternative means crime and the other having to do with the elements of the crime that must be proved. We address these arguments separately after discussing the crime of failure to register generally. Finally, we consider whether the evidence here was sufficient to convict.
¶ 7 RCW 9A.44.130(1) requires a person convicted of a sex offense to regularly register his whereabouts in a county with that county's sheriff. When an offender vacates or otherwise leaves his or her residence, the statute sets forth various time limits for reregistration, depending on the offender's residential status. For example, an offender who becomes homeless-that is, who lacks a fixed residence-must register within 48 hours of leaving a fixed residence, whereas an offender who moves from one fixed residence to another within a county has 72 hours to register. Compare RCW 9A.44.130(6)(a) with RCW 9A.44.130(5)(a). Following a move, the longest grace period available to an offender is 10 days.5 All deadlines exclude weekends and holidays. Id.
¶ 8 The purpose of the registration requirement is to aid law enforcement by providing notice of the whereabouts of convicted sex offenders within the law enforcement agency's jurisdiction. Laws of 1990, ch. 3, § 401.
¶ 9 Peterson claims that the various deadlines and entities with which an offender must register represent alternative means of committing the crime. He claims his right to jury unanimity was violated because substantial evidence did not support each alternative means of failure to register.
¶ 10 An alternative means crime is one “that provide[s] that the proscribed criminal conduct may be proved in a variety of ways.” State v. Smith, 159 Wash.2d 778, 784, 154 P.3d 873 (2007).
[W]hen the crime charged can be committed by more than one means, the defendant does not have a right to a unanimous jury determination as to the alleged means used to carry out the charged crime or crimes should the jury be instructed on more than one of those means.... But, in order to safeguard the defendant's constitutional right to a unanimous verdict as to the alleged crime, substantial evidence of each of the relied-on alternative means must be presented.
Id. at 783, 154 P.3d 873 (emphasis added) (citing State v. Kitchen, 110 Wash.2d 403, 410-11, 756 P.2d 105 (1988)).
¶ 11 The legislature has not statutorily defined alternative means crimes, nor specified which crimes are alternative means crimes. This is left to judicial determination. State v. Klimes, 117 Wash.App. 758, 769, 73 P.3d 416 (2003). An example of an alternative means crime is theft because it may be committed by (1) wrongfully obtaining or exerting control over another's property or (2) obtaining control over another's property through color or aid of deception. State v. Linehan, 147 Wash.2d 638, 644-45, 647, 56 P.3d 542 (2002).
¶ 12 Peterson argues that failure to register is an alternative means crime because it can be accomplished in three different ways: (1) failing to register after becoming homeless, (2) failing to register after moving between fixed residences within a county, or (3) failing to register after moving from one county to another. This is too simplistic a depiction of an alternative means crime, as a comparison between theft and failure to register makes plain. The alternative means available to accomplish theft describe distinct acts that amount to the same crime. That is, one can accomplish theft by wrongfully exerting control over someone's property or by deceiving someone to give up their property. In each alternative, the offender takes something that does not belong to him, but his conduct varies significantly. In contrast, the failure to register statute contemplates a single act that amounts to failure to register: the offender moves without alerting the appropriate authority. His conduct is the same-he either moves without notice or he does not. The fact that different deadlines may apply, depending on the offender's residential status, does not change the nature of the criminal act: moving without registering.
¶ 13 The mere use of a disjunctive in a statute does not an alternative means crime make. In re Pers. Restraint of Jeffries, 110 Wash.2d 326, 339, 752 P.2d 1338 (1988). Here, the different deadlines in the statute, while presented in the disjunctive, do not implicate alternate criminal acts. There is only one method by which an offender fails to register, and that is if he moves from his residence without notice.
¶ 14 Our analysis differs from the Court of Appeals'. It seemed to conclude that failure to register is an alternative means crime, but that the different deadlines based on various residential scenarios are not themselves alternatives, but rather define “the requirements for amending the registration” upon moving. Peterson, 145 Wash.App. at 678, 186 P.3d 1179. It may be that in making this statement, the Court of Appeals was guided by our observation that “[d]efinition statutes do not create additional alternative means of committing an offense.” Linehan, 147 Wash.2d at 646, 56 P.3d 542. But it is not necessary to draw a distinction between alternatives and definitions of alternatives where the crime at issue is not an alternative means crime at all. We hold that the failure to register is not an alternative means crime.6
¶ 15 In concluding that the deadlines and residential scenarios in the failure to register statute are not alternative means, the Court of Appeals also concluded that they are not elements of the crime. Peterson, 145 Wash.App. at 678, 186 P.3d 1179. As noted above, although these questions are related, they should be analyzed separately.
¶ 16 For the purposes of this case, we need not examine every deadline and residential scenario potentially at issue under RCW 9A.44.130. We need decide only whether residential status is an element because this is the element that Peterson primarily claims the State failed to prove. The State charged, instructed, and provided evidence on the 72-hour deadline.7
¶ 17 Peterson contends that under RCW 9A.44.130(6)(a), “the state needed to prove the fact that Peterson was homeless” and that under RCW...
To continue reading
Request your trial
-
In re Mulamba
...prove the proscribed criminal conduct in a variety of ways." Armstrong , 188 Wash.2d at 340, 394 P.3d 373 (citing State v. Peterson , 168 Wash.2d 763, 769, 230 P.3d 588 (2010) ).¶ 55 Here, Mr. Mulamba was charged with first degree assault of a child under RCW 9A.36.120 and second degree ass......
-
State v. Gomez
...in original.10 Emphasis omitted.11 Alterations in original.12 (Emphasis in original.) Garcia Gomez also cites State v. Peterson, 168 Wash.2d 763, 230 P.3d 588 (2010). The statute in Peterson is not analogous to the second degree assault statute. In Peterson, the Supreme Court concluded fail......
-
State v. Barboza-Cortes
...Mr. Barboza-Cortes’s analysis. The word "or" is not, by itself, a strong indicator of an alternative means crime. State v. Peterson , 168 Wash.2d 763, 770, 230 P.3d 588 (2010). Instead, we look at the other statutory language, as well as context. Here, the legislature preceded the three-ver......
-
State v. Brown
...superficial view, stating: “The mere use of a disjunctive in a statute does not an alternative means crime make.” State v. Peterson, 168 Wash.2d 763, 770, 230 P.3d 588 (2010). We agree. Identifying an alternative means statute is more complicated than spotting the word “or.”• Legislative In......
-
Table of Cases
...v. Peterson, 97 Wn.2d 864, 651 P.2d 211 (1982): 16.2(2) State v. Peterson, 145 Wn. App. 672, 186 P.3d 1179 (2008), aff'd, 168 Wn.2d 763, 230 P.3d 588 (2010): 13.3(2)(a) State v. Petrina, 73 Wn. App. 779, 871 P.2d 637 (1994): 12.8(2), 12.8(4) State v. Phelan, 100 Wn.2d 508, 671 P.2d 1212 (19......
-
§ 13.3 Mootness
...substantial public interest and likely to evade review. STATE V . PETERSON, 145 Wn. App. 672, 186 P.3d 1179 (2008), aff'd, 168 Wn.2d 763, 230 P.3d 588 (2010). Defendant appealed conviction of failure to register as a sex offender. Court vacated the conviction on appeal on the basis of defec......