State v. Caton

• Decision Date: 13 September 2011
• Docket Number: No. 40422–2–II.,40422–2–II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Michael Edward CATON, Appellant.

163 Wash.App. 659

260 P.3d 946

STATE of Washington, Respondent,

v.Michael Edward CATON, Appellant.

No. 40422–2–II.

Court of Appeals of Washington, Division 2.

Sept. 13, 2011.

OPINION TEXT STARTS HEREWest CodenotesPrior Version Recognized as UnconstitutionalWest's RCWA 4.24.550(6)(b) Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, WA, for Respondent.VAN DEREN, J.

[163 Wash.App. 664] ¶ 1 Michael Caton appeals his conviction for failure to register as a sex offender. He argues: (1) the legislature violated separation of powers principles when it authorized county sheriffs under former RCW 9A.44.130(7) (2006) to designate a reporting date within a 90 day period for certain registered sex offenders, (2) former RCW 9A.44.130(7) violates equal protection principles on the same basis, (3) former RCW 9A. 44.130(7) is unconstitutionally vague, (4) admission of Caton's sex offender registration form at trial violated his right to confront witnesses, and (5) sufficient evidence does not support his conviction. In a statement of additional for review grounds,¹ he also contends: (1) the trial court erroneously included his failure to register as a sex offender conviction when calculating his offender score, (2) the trial court erred when it sentenced him to community custody, (3) sentencing him under former RCW 9A.44.130(11)(a) violated ex post facto prohibitions, and (4) the county sheriff failed to follow statutory sex offender registration requirements. We affirm.

FACTS

¶ 2 On May 19, 2009, Caton registered as a sex offender with the Lewis County Sheriff's Office. When he registered, he signed a notification form acknowledging his understanding (1) that he was required to report to the sheriff's office every 90 days, (2) that his reporting date was June 16, 2009, between 8:00 a.m. and 5:00 p.m., and (3) that failure to report on that date was a felony offense.² Lewis County Sheriff's Detective Bradford Borden provided Caton with a copy of the notification form.

¶ 3 To reasonably manage the 90 day reporting requirement for all sex offenders living in Lewis County, the county specified four predesignated reporting days, one in each quarter of the year. It did not set individual reporting dates for each sex offender because doing so would be “very chaotic.” Report of Proceedings (RP) at 61.

¶ 4 On June 9, Caton was arrested for a “driving offense.” Clerk's Papers (CP) at 7. On June 10, after his release from jail, he appeared at the sheriff's office, believing that, as a registered sex offender, he was required to report to the sheriff after release from confinement for any offense. Borden did not give him a new registration date, leaving June 16 as Caton's next reporting date.

¶ 5 On June 16, Caton failed to report to the sheriff's office; instead he reported on June 17. The State charged him under former RCW 9A.44.130(7) and former RCW 9A.44.130(11)(a) with failure to register as a sex offender for failing to report in person “on the required day for the 90 day reporting” period. CP at 1.

¶ 6 At a bench trial, Borden stated that he worked in the Lewis County Sheriff's Office Sex Offender Registration Unit and was its sex offender registration file custodian. He stated that the sheriff's office ultimately sets the risk level for registered sex offenders, but that the Washington State Department of Corrections's End of Sentence Review Committee (ESRC) also sets offenders' risk levels when they are released from confinement. Borden stated that the sheriff's office prepared Caton's registration form and used it for “initial registration[ ] and changes of address.” RP at 57. Over Caton's hearsay and foundation objections, the trial court admitted the registration form.

¶ 7 Referring to Caton's sex offender registration form, Borden stated that ESRC classified him as a level II offender. Borden classified Caton as a level II sex offender on the Lewis County registration form based on Caton's sex offender registration file, including the ESRC's report. Borden stated that the ERSC's report contained “a synopsis of the details concerning” Caton and, that, based on numeric assessment tools, the ERSC had elevated him to a level II offender. RP at 65. Caton unsuccessfully renewed his objection to the registration form's admission on hearsay and foundation grounds, arguing that “it's based on some other documentation to indicate risk level II and that that should be a prerequisite foundational requirement, prior to the admission of that document.” RP at 66.

[163 Wash.App. 667] ¶ 8 The trial court convicted Caton as charged. It calculated his offender score as 9+ and sentenced him to 50 months' incarceration and 36 months' community custody.

ANALYSIS

I. Separation of Powers

¶ 9 Caton, citing State v. Torres Ramos, 149 Wash.App. 266, 202 P.3d 383 (2009), argues that the legislature's authorization of county sheriffs under former RCW 9A.44.130(7) to determine sex offenders' reporting date during the 90 day reporting period violates separation of powers principles because it allows them to define an essential element of the crime of failure to register as a sex offender.

¶ 10 We review a statute's constitutionality de novo. State v. Abrams, 163 Wash.2d 277, 282, 178 P.3d 1021 (2008). We presume the statute's constitutionality, and the party challenging it must prove its unconstitutionality beyond a reasonable doubt. Abrams, 163 Wash.2d at 282, 178 P.3d 1021.

¶ 11 Washington courts have recognized the separation of powers doctrine as a founding, implicit principle of our state and federal constitutions. State v. Blilie, 132 Wash.2d 484, 489, 939 P.2d 691 (1997). The doctrine serves to ensure that the fundamental functions of each government branch remain inviolate. Carrick v. Locke, 125 Wash.2d 129, 135, 882 P.2d 173 (1994). When separation of powers challenges are raised involving different branches of state government, only the state constitution is implicated. Carrick, 125 Wash.2d at 135 n. 1, 882 P.2d 173.

¶ 12 Authority to define crimes and set punishments rests firmly with the legislature. State v. Wadsworth, 139 Wash.2d 724, 734, 991 P.2d 80 (2000). Specifically, the legislature is responsible for defining the elements of a crime. State v. Evans, 154 Wash.2d 438, 447 n. 2, 114 P.3d 627 (2005); Wadsworth, 139 Wash.2d at 735, 991 P.2d 80. “[I]t is unconstitutional for the Legislature to abdicate or transfer its legislative function to others.” Brower v. State, 137 Wash.2d 44, 54, 969 P.2d 42 (1998). Such a delegation is proper, however, when (1) the legislature provides standards to indicate what is to be done and designates the agency to accomplish it and (2) procedural safeguards exist to control arbitrary administrative action and abuse of discretionary power. State v. Simmons, 152 Wash.2d 450, 455, 98 P.3d 789 (2004).

¶ 13 We also review questions of statutory interpretation, such as the essential elements of a crime, de novo. State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005). When interpreting a statute, we seek to ascertain the legislature's intent. Jacobs, 154 Wash.2d at 600, 115 P.3d 281. “ ‘[I]f the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.’ ” Jacobs, 154 Wash.2d at 600, 115 P.3d 281 (alteration in original) (quoting Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002)). We determine the “ ‘plain meaning’ ” of a statutory provision from the ordinary meaning of its language, as well as the general context of the statute, related provisions, and the statutory scheme as a whole. Jacobs, 154 Wash.2d at 600, 115 P.3d 281 (quoting Campbell & Gwinn, 146 Wash.2d at 9–10, 43 P.3d 4). We interpret statutes to give effect to all language in the statute and to render no portion meaningless or superfluous. State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003).

¶ 14 The elements of a crime are “those facts ‘that the prosecution must prove to sustain a conviction.’ ” State v. Miller, 156 Wash.2d 23, 27, 123 P.3d 827 (2005) (quoting Black's Law Dictionary 559 (8th ed. 2004)). “An ‘essential element is one whose specification is necessary to establish the very illegality of the behavior.’ ” State v. Tinker, 155 Wash.2d 219, 221, 118 P.3d 885 (2005) (quoting State v. Johnson, 119 Wash.2d 143, 147, 829 P.2d 1078 (1992)). It is proper to look first to the statute to determine the elements of a crime. Miller, 156 Wash.2d at 27, 123 P.3d 827.

¶ 15 Former RCW 9A.44.130(7) provided:

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.

Former RCW 9A.44.130(11)(a) provided, “A person who knowingly fails to comply with any of the requirements of this section is guilty of a class C felony.”

¶ 16 In Ramos, we considered whether the legislature's delegation of authority under former RCW 4.24.550(6)(b) (2005), allowing the county sheriff to assign risk classifications to sex offenders, violated separation of powers principles.³ 149 Wash.App. at 269–70, 202 P.3d 383. We observed that the statute, by allowing the county sheriff to classify offenders with a risk level I or II, allowed the county sheriff to define an element essential to a violation of the requirements of former RCW 9A.44.130(7). Ramos, 149 Wash.App. at 271–72, 202 P.3d 383. We further observed that former RCW 4.24.550(6)(b) did not provide standards, definitions, or methodologies to guide local law enforcement agencies in determining an offender's classification. Ramos, 149 Wash.App. at 275–76, 202 P.3d 383. We held that the legislature's delegation of this function to the...