State v. Liden
| Decision Date | 14 October 2003 |
| Docket Number | No. 28562-2-II., No. 28559-2-II |
| Citation | 77 P.3d 668,118 Wash. App. 734 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Scott Michael LIDEN, Appellant. |
Brandy Marshelle Meyer, Lewis County Prose. Atty. Ofc., J. Andrew Toynbee, Attorney at Law, Chehalis, WA, for Respondent.
Manek R. Mistry, Backlund & Mistry, Chehalis, WA, for Appellant.
Scott Liden appeals his convictions of bail jumping and failure to register as a kidnapping offender,1 arguing that he was not subject to the kidnapping registration statute, the bail jumping information was defective, and insufficient evidence supported his conviction of bail jumping. We agree that Liden was not subject to the registration statute and that insufficient evidence supported his bail jumping conviction; therefore, we reverse both convictions.
On May 10, 1996, Liden pleaded guilty to two unlawful imprisonment counts.2 No law then required him to register as a kidnapping offender. In 1997, the legislature amended RCW 9A.44.130 to require kidnapping offender registration.3 Laws of 1997, ch. 113, § 3. RCW 9A.44.130(4)(a)(ii) also requires registration by formerly convicted offenders still under active Department of Corrections (DOC) supervision on July 27, 1997.4 The State charged Liden with failure to register as a kidnapping offender. On May 24, 2001, he signed for and received a notice setting his trial for the "[w]eek of August 6, 2001." Clerk's Papers (CP) at Exhibit. 10. On August 9, 2001, the court called his trial, but he did not appear. In response, the State amended the information to additionally charge him with one count of bail jumping.
Liden moved to dismiss the failure to register charges, arguing that because he was merely on monetary and not active supervision, RCW 9A.44.130 did not apply. The trial court denied the motion.
At his trial, the State called Community Corrections Officer (CCO) James Moore and asked him to define "active supervision." Report of Proceedings (RP) (2/13/02) at 31-32. He testified that DOC's active supervision includes monetary supervision.5
During cross-examination, Moore admitted that Liden's DOC supervision record stated that Liden's active supervision ended on May 10, 1997. On redirect examination, Moore testified that active supervision "is from the time the individual is placed with the [DOC] for supervision until such time that he has fully paid any financial/legal obligations." RP (2/13/01) at 40. On recross examination, Moore explained that although he had seen a DOC directive defining active supervision, he could neither produce a copy of it nor state its effective date.
With regard to the bail jumping charge, the State called Lewis County Superior Court Deputy Clerk Kim Alexander. She testified that on August 9, 2001, Liden did not appear for trial. She stated that August 9, 2001, was a Thursday, and the presiding judge routinely schedules Thursday criminal trials. The trial court relied on the notice of the trial setting date and the clerk's testimony to find that if Liden had appeared on any of the days before August 9, 2001, it would not have issued a bench warrant.
The court found Liden guilty of failure to register as a kidnapping offender and bail jumping. Liden appeals.
Liden contends that RCW 9A.44.130 does not apply to him because he was not subject to DOC's active supervision when the legislature amended the registration statute.6 And he asserts that DOC's failure to promulgate a regulatory definition of "active supervision" denied him his due process rights. Appellant's Reply Brief at 5-6.
Due process requires that a penal statute be sufficiently specific so that persons of common understanding will be on notice of the activity the statute prohibits. State v. Jenkins, 100 Wash.App. 85, 89, 995 P.2d 1268, review denied, 141 Wash.2d 1011, 10 P.3d 1072 (2000). "The requirement of sufficient definiteness `protects individuals from being held criminally accountable for conduct which a person of ordinary intelligence could not reasonably understand to be prohibited.'" Jenkins, 100 Wash.App. at 90, 995 P.2d 1268 (quoting State v. Coria, 120 Wash.2d 156, 163, 839 P.2d 890 (1992)). We interpret statutes de novo to ascertain and give effect to the legislature's intent. In the Matter of the Detention of A.S., 138 Wash.2d 898, 911, 982 P.2d 1156 (1999); State v. Lee, 96 Wash.App. 336, 341, 979 P.2d 458 (1999). Where the statute is plain and unambiguous, we derive its meaning and the legislature's intent from its language. In re the Parentage of J.H., 112 Wash.App. 486, 498, 49 P.3d 154 (2002),review denied, 148 Wash.2d 1024, 66 P.3d 637 (2003).
According to RCW 9A.44.130(4)(a)(ii), DOC's "active supervision" definition controls. But as Liden notes, DOC provides no written definition of "active supervision." The State produced only CCO Moore's definition. But Moore's definition directly conflicted with DOC records noting that Liden's active supervision ended on May 10, 1997, while Liden was still on monetary supervision. This statute alone, and absent a clear DOC definition, does not give proper notice to possible offenders of the proscribed conduct. The lack of any statutory or regulatory definition of the phrase "active supervision" leaves Liden in a position where he does not have fair warning as to whether the statute applies to him, requiring reversal of his failure to register conviction.7
Liden further contends that his bail jumping conviction must be reversed on several grounds. First, he asserts that the trial setting notice inadequately advised him of when to appear for trial. Second, he asserts that insufficient evidence supported the conviction because the State failed to establish that he did not appear during the prescribed time period. Finally, he asserts that the bail jumping information was factually and legally deficient.
As we already noted, the due process vagueness doctrine serves to (1) provide citizens with fair warning of what conduct must be avoided and (2) protect them from arbitrary enforcement of the law. State v. Halstien, 122 Wash.2d 109, 116-17, 857 P.2d 270 (1993). Here, the trial setting notice stated:
CP at Exh. 10. The notice also stated that CP at Exh. 10.
Taking the evidence and all reasonable inferences in the State's favor, we fail to see how the State proved that Liden knew the exact date on when to appear for his trial. Although the court may routinely call criminal trials on Thursdays, as the deputy clerk testified, no one gave Liden such notice. The notice of trial setting date was insufficient as a predicate for a bail jumping charge and his conviction for bail jumping is reversed.
Reversed.
1. The State charged Liden with failure to register as a kidnapping offender on July 7, 1999. The State further charged Liden with three counts of failure to register as a kidnapping offender, through an amended information filed on February 2, 2002. A...
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State v. Stratton
...to the sheriff of the county where he is registered. RCW 9A.44.130(6)(b). ¶ 11 We interpret statutes de novo. State v. Liden, 118 Wash.App. 734, 738, 77 P.3d 668 (2003). Our goal is to "ascertain and give effect to the intent and purpose of the legislature in creating the statute." Am. Cont......
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In re the Marriage of Le-Feddema v. Feddema, No. 33267-1-II (Wash. App. 6/6/2006)
... ... He argues that because he did not receive proper notice of the trial date he was deprived of his due process rights under the state and federal constitutions. We affirm ... Procedural Background ... When Julie Le and Paul Feddema were divorced, they executed a ... Even if Feddema received a copy of this notice, that document does not specify a requested trial date. In State v. Liden, the defendant received a notice setting trial stating that his trial would occur the `Week of August 6, 2001.' 118 Wn. App. 734, 739, 77 P.3d 668 ... ...