State v. Mason
| Decision Date | 28 August 2012 |
| Docket Number | No. 41771–5–II.,41771–5–II. |
| Citation | 285 P.3d 154 |
| Parties | STATE of Washington, Respondent, v. Jeremy Paul MASON, Appellant. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.
Sara I. Beigh, Lewis County Prosecutor's Office, Chehalis, WA, for Respondent.
¶ 1 A jury convicted Jeremy Paul Mason for failing to register as a sex offender in violation of former RCW 9A.44.130 (2006). On appeal, Mason argues the information was constitutionally deficient because the State did not allege that he was required to register “with the county sheriff for the county of the person's residence” and that he failed to do so. Former RCW 9A.44.130(1)(a). We affirm.
¶ 2 The State charged Mason with failure to register as a sex offender under former RCW 9A.44.130. The amended information alleged:
On or about and between March 27, 2010, and April 19, 2010, in the County of Lewis, State of Washington, the above-named defendant, having been convicted of a felony sex offense or a federal or out-of-state conviction for an offense that under the laws of this state would be a felony sex offense and having a duty to register as a sex offender under former RCW 9A.44.130 in effect at the time of the charged offense, did knowingly fail to comply with any of the registration requirements of former RCW 9A.44.130 in effect at the time of the charged offense; contrary to former Revised Code of Washington 9A.44.130(11) in effect at the time of the charged offense.
¶ 3 At trial, Mason stipulated to a prior conviction requiring him to register as a sex offender. According to Thurston County Detective Darryl Leischner, on April 30, 2007, Mason registered with the Thurston County Sheriff's Office using an address in Rainier, Thurston County. Stephanie Jones, a Thurston County employee, testified that on April 20, 2010, Mason told her “he had been staying the past couple of weeks” in Centralia, Lewis County. Report of Proceedings (RP) at 23. Lewis County Detective Bradford Borden testified that Mason first registered with the Lewis County Sheriff's Office on April 21, 2010. Richard Cannon testified that Mason lived with him in Centralia, Lewis County, for two or three weeks in April 2010.
¶ 4 After the State rested, Mason moved to dismiss, arguing that the State failed to allege that Mason had a duty to register with the county sheriff, an element of the charge according to Mason. The trial court denied the motion, stating, “I think the deletion of the word or the omission of the word sheriff is not fatal to the information.” RP at 47.
¶ 5 Mason generally argues that the amended information was constitutionally deficient because it failed to allege the essential elements of the crime of failure to register as a sex offender. Under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution, the State must allege in the charging document all essential elements of a crime to inform a defendant of the charges against him and to allow for preparation of his defense. State v. Phillips, 98 Wash.App. 936, 939–40, 991 P.2d 1195 (2000) (citing State v. Kjorsvik, 117 Wash.2d 93, 101–02, 812 P.2d 86 (1991)). A charging document is constitutionally sufficient if the information states each essential element of the crime, whether statutory or nonstatutory, even if it is vague as to some other matter significant to the defense. Phillips, 98 Wash.App. at 939, 991 P.2d 1195. Where, as here, a defendant moves to dismiss an allegedly insufficient charging document before or during trial, we construe the information strictly to determine whether all the elements of the crime charged are included. Phillips, 98 Wash.App. at 942–43, 991 P.2d 1195. We first look to the statute to determine the elements “ ‘that the prosecution must prove to sustain a conviction.’ ” State v. Williams, 162 Wash.2d 177, 183, 170 P.3d 30 (2007) (internal quotation marks omitted) (quoting State v. Miller, 156 Wash.2d 23, 27, 123 P.3d 827 (2005)).
¶ 6 Former RCW 9A.44.130(1)(a) provides:
Any adult or juvenile residing whether or not the person has a fixed residence, or who is a student, is employed, or carries on a vocation in this state who has been found to have committed or has been convicted of any sex offense ... shall register with the county sheriff for the county of the person's residence.
A person is guilty of failing to register if he “knowingly fails to comply with any of the requirements” of the registration statute. Former RCW 9A.44.130(11)(a)1
¶ 7 Mason specifically argues that the State failed to allege that his sex offense conviction required him to register “ ‘with the county sheriff for the county of [his] residence’ ” or that he failed to register “ ‘with the county sheriff for the county of [his] residence.’ ” Br. of Appellant at 5 (quoting former RCW 9A.44.130(1)(a)). The State argues, “Because failure to register is not an alternative means crime there is not a requirement to set forth the subsection or a to wit within the charging language of the information.” Br. of Resp't at 6. The State further contends that our Supreme Court's decision in State v. Peterson, 168 Wash.2d 763, 230 P.3d 588 (2010) compels us to adopt the rule that the essential elements of failure to register are “ ‘knowingly fail[ing] to comply with any of the requirements of’ [former] RCW 9A.44.130.” Br. of Resp't at 6 (quoting former RCW 9A.44.130(11)(a)).
¶ 8 Mason insufficiently briefs his assertion that reference to the county sheriff is an essential element of the crime of failure to register, thus, we do not consider his conclusory arguments. But we disagree with the State's interpretation of Peterson and discuss the case to clarify its effect on charging in failure to register cases.
¶ 9 Our Supreme Court recently addressed (1) whether failure to register as a sex offender is an alternative means crime with regard to residential status and (2) the essential elements of the crime of failure to register. Peterson, 168 Wash.2d at 769, 771, 230 P.3d 588. The court directed that although the alternative means and the essential elements issues are “related, they should be analyzed separately.” Peterson, 168 Wash.2d at 771, 230 P.3d 588 (emphasis added).
¶ 10 Peterson argued 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.” Peterson, 168 Wash.2d at 769–770, 230 P.3d 588. Our Supreme Court observed that “[t]his is too simplistic a depiction of an alternative means crime.” Peterson, 168 Wash.2d at 770, 230 P.3d 588. Because Peterson's conduct was the same in failing to register after changing his residential status, regardless of differing deadlines applicable to what the move entailed, the court held that the nature of the criminal acts that Peterson argued were alternative means was actually the same: “moving without registering.” Peterson, 168 Wash.2d at 770, 230 P.3d 588. The Peterson court also stated in its alternative means analysis:
[T]he 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.”
168 Wash.2d at 770, 230 P.3d 588. The court concluded that because Peterson's argument failed to show alternate criminal acts, he had not shown an alternative means crime at all. Peterson, 168 Wash.2d at 770–71, 230 P.3d 588.
¶ 11 We caution, however, that applying our Supreme Court's reasoning in Peterson that focused solely on Peterson's narrow factual circumstances to other factual circumstances leads to results contrary to the statutory language. The statutory language clearly and expressly establishes multiple circumstances that trigger the registration requirement that do not involve moving from one residence to another (or to none) without notice. Former RCW 9A.44.130(11)(a) unequivocally states that “knowingly fail[ing] to comply with any of the requirements of this section” constitutes the crime of failure to register.
¶ 12 The following provisions of the registration statute encompass conduct other than “moving” without notifying the proper authority: former RCW 9A.44.130(1)(b)(i)-(ii) (); former RCW 9A.44.130(1)(b)(iii) (); former RCW 9A.44.130(1)(b)(iv) (); former RCW 9A.44.130(6)(b) (); former RCW 9A.44.130(7) (); former RCW 9A.44.130(8) ().
¶ 13 Peterson dealt only with the requirements of former RCW 9A.44.130 that required registration after moving, i.e., former RCW 9A.44.130(5)(a) and .130(6)(a). But all...
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