State v. Barge
| Decision Date | 06 March 2012 |
| Docket Number | No. 41196-2-II,41196-2-II |
| Court | Court of Appeals of Washington |
| Parties | STATE OF WASHINGTON, Respondent, v. WILLIAM AARON BARGE, Appellant. |
STATE OF WASHINGTON, Respondent,
v.
WILLIAM AARON BARGE, Appellant.
No. 41196-2-II
COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
Dated: March 6, 2012
Quinn-Brintnall, J. — William Aaron Barge appeals his conviction of failure to register as a sex offender, arguing that the State presented insufficient evidence to support his conviction, that the absence of an opportunity to challenge his sex offender classification denied him due process, and that the sex offender classification statutes violate his right to equal protection. Finding no error, we affirm.
As a result of his 1997 Lewis County conviction of third degree rape of a child, Barge was required to register as a sex offender. Before his most recent release from prison, the Department of Corrections' End of Sentence Review Committee (ESRC) classified him as a level II offender. After his release, the Lewis County Sheriff's Office did its own assessment and agreed with the level II classification.
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On April 22, 2009, Barge appeared at the Lewis County Sheriff's Office and registered as a level II sex offender with a fixed residence. Detective Bradford Borden, who is in charge of sex offender registration in Lewis County, told Barge that his risk classification required him to report to the office every 90 days. Barge then signed a form stating that he had to report on June 16, 2009, between 8:00 am and 5:00 pm. This was the date the sheriff's office had previously set for second quarter registration for level II and level III sex offenders in the county. The form stated in bold print that "it is a felony offense to not report on the established date." Ex. 2.
Barge did not report on June 16. Rather, he called the sheriff's office early the next morning and appeared in person a few hours later. As a consequence, the State charged him with knowingly failing to register "on the required day for the 90 day reporting requirement" under former RCW 9A.44.130(7) and (11)(a) (2006).1 Clerk's Papers at 31.
The matter proceeded to a bench trial after Barge waived his right to a jury. Detective Borden testified that Barge reported on June 17, 2009, rather than the set reporting date of June 16. He said that Barge called at 8:20 am on June 17, and came in later that morning, explaining that he had forgotten about the reporting date until he got home on June 16 after 6:00 pm. Borden added that he was in his office until 7:00 pm on June 16 and did not hear from Barge that night. When Barge came in on June 17, he acknowledged having signed and received a copy of the reporting notification form.
Barge's ex-girlfriend testified that she picked him up from work at about 5:00 pm on June 16 and drove him home. Barge testified that when he got home from work, he realized his
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oversight and called the sheriff's office then and the next morning. When he got to the office on June 17, he explained that he had forgotten about the reporting date because of his many community supervision requirements. He did not deny signing and receiving a copy of the reporting notification form.
The trial court found Barge guilty, noting that his explanation for his behavior was not a defense. The court then denied Barge's motion for arrest of judgment, finding substantial evidence that he failed to report on the date directed. Based on Barge's offender score of 14, which included two prior convictions of failure to register, the trial court imposed a high-end sentence of 57 months but granted a stay of sentence pending this appeal.
Sufficiency of the Evidence
Barge argues initially that the State produced insufficient evidence to support his conviction. Evidence is sufficient to support a conviction if, 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 reasonable inferences that can be drawn therefrom. Salinas, 119 Wn.2d at 201.
Barge was charged with violating former RCW 9A.44.130(7) and (11)(a). Former subsection (7) provided as follows:
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. . . . Failure to report, as specified, constitutes a violation of this section and is punishable as provided in subsection (11) of this
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section.
Former RCW 9A.44.130(11)(a) added that "[a] person who knowingly fails to comply with any of the requirements of this section" was guilty of a class C felony if that person had a prior felony sex offense conviction.
Barge argues that the only act punishable under these provisions was the failure to report every 90 days. He contends that by failing to report on June 16 after registering on April 22, he failed to report only after a 55-day interval and therefore did not commit a crime.
We recently rejected a similar sufficiency argument raised by another offender who missed the same June 16 reporting date in Lewis County. State v. Caton, 163 Wn. App. 659, 665-66, 260 P.3d 946 (2011). Caton contended that his failure to report on June 16, 2009, occurred only 27 days after his initial registration and thus did not violate the 90-day reporting requirement in former RCW 9A.44.130(7). Caton, 163 Wn. App. at 676. Citing the unchallenged findings establishing that he knowingly failed to report on the designated reporting date, as well as additional testimony that he was a level II sex offender and subject to the reporting requirement, we concluded that sufficient evidence supported Caton's conviction. Caton, 163 Wn. App. at 676-77.
Barge does not challenge any findings of fact, including those establishing that he knowingly failed to report to the sheriff's office on June 16, 2009, one of the quarterly preset reporting dates. Former RCW 9A.44.130(7) allowed sheriffs to impose such preset reporting dates, and Barge does not expressly challenge that grant of authority.2 See Caton, 163 Wn. App.
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at 671-72 (rejecting equal protection challenge to statutory provision allowing counties to set reporting date within 90-day registration period for level II and III sex offenders). Under former RCW 9A.44.130(11)(a), the failure to comply with any requirement of former RCW 9A.44.130 constituted a crime, and the State here provided sufficient evidence that Barge violated one such requirement. There is no ambiguity in the statutory reporting requirements that triggers the rule of lenity, and we reject Barge's sufficiency challenge. See State v. Jacobs, 154 Wn.2d 596, 601, 115 P.3d 281 (2005) (if a criminal statute is ambiguous, the rule of lenity requires appellate courts to interpret the statute in favor of the defendant absent legislative intent to the contrary). Due Process Right to Challenge Sex Offender Classification
Barge next contends that the ESRC, the Lewis County Sheriff, and the trial court denied him procedural due process by not giving him an opportunity to contest his sex offender classification.
Barge made no attempt to challenge his level II classification below. Generally, an appellate court may refuse to consider a claim of error not raised before the trial court. RAP 2.5(a); State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011). An exception exists for a claim of manifest error affecting a...
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