IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
O Wo
No. 71262-4-1
Respondent,
DIVISION ONE
v.
E.Z.L.-D.,
CD
DOB: 01/10/97 UNPUBLISHED OPINION
en
CD
Appellant. FILED: November 17, 2014
Spearman, C.J. — E.Z.L.-D., a juvenile offender, challenges his conviction
for failure to register as a sex offender pursuant to RCW 9A.44.130, alleging that
the charging information was constitutionally deficient because it lacked a
statement regarding the applicable registration deadline. In a statement of
additional grounds filed pursuant to RAP 10.10, he also contends his conviction
should be reversed because his violation of the registration statute was
unknowing and compliance with the statute was impossible. We affirm.
FACTS
Following a March 30, 2011, conviction for one count of rape of a child in
the first degree, E.Z.L.-D. was incarcerated at Denney Juvenile Justice Center
(DJJC) and required to register as a sex offender pursuant to RCW 9A.44.130.
On April 17, 2012, while E.Z.L.-D. was in custody at DJJC, he signed and
received a copy of a form notification of registration requirements for sex and
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kidnapping offenders. He was orally advised of the contents of this form. That
same day he registered with the Snohomish County Sheriffs Office, listing "the
Tamarack House," a juvenile residential placement facility, as his place of
residence. Clerk's Papers (CP) at 4.
On June 6, 2013, E.Z.L.-D. was released into the custody of the
Department of Social and Health Services (DSHS). DSHS initially placed him at
the Tamarack House. However, the next day he was moved to a different facility,
the Cedar House, where he remained until June 20, 2013. After that, DSHS
placed E.Z.L.-D. at his grandmother's residence.
After his initial registration on April 17, 2012, E.Z.L.-D. never registered a
change of address either in person or by mail, as required under RCW
9A.44.130. On June 21, 2013, during a telephone conversation with his probation
officer, E.Z.L.-D. stated that he '"didn't think [he] should have to'" re-register after
each change of address. CP at 5. In a subsequent conversation with his
probation officer on July 2, 2013, E.Z.L.-D. admitted that he still '"hadn't gotten
around to'" registering. CP at 5.
On July 30, 2013, the State charged E.L.-D. with one count of failure to
register as a sex offender in violation of RCW 9A.44.130. On October 22, 2014,
the matter proceeded to bench trial. The trial court found E.L.-D. guilty as
charged. He appeals.
No. 71262-4-1/3
DISCUSSION
E.Z.L.-D. was charged with failure to register under RCW 9A.44.130(1)(a)1
as follows:
FAILURE TO REGISTER, committed as follows: That the
respondent, having been convicted on or about the 30th day of
March, 2011, of a sex offense, to wit: Rape of a Child in the First
Degree, being required to register pursuant to RCW 9A.44.130, and
having registered as residing at a fixed residence, did, on or about
the 2nd day of July, 2013, cease to reside at that residence and did
knowingly fail to provide timely written notice to the county sheriffs
office; proscribed by RCW 9A.44.132, a felony.
CP at 43. He asserts for the first time on appeal that the information was
constitutionally deficient because, although it alleged he failed to provide timely
notice of his change in address, it did not specify the 72-hour statutory
registration deadline. He contends that registering within 72 hours is an essential
element of the crime of failure to register, which must be included in the charging
document in order for it to withstand constitutional scrutiny. We disagree.
1 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 or kidnapping offense, or who has been found not guilty by
reason of insanity under chapter 10.77 RCW of committing any sex offense
or kidnapping offense, shall register with the county sheriff for the county of
the person's residence, or if the person is not a resident of Washington, the
county of the person's school, or place of employment or vocation, or as
otherwise specified in this section. When a person required to register
under this section is in custody of the state department of corrections, the
state department of social and health services, a local division of youth
services, or a local jail or juvenile detention facility as a result of a sex
offense or kidnapping offense, the person shall also register at the time of
release from custody with an official designated by the agency that has
jurisdiction over the person.
No. 71262-4-1/4
"[A] charging document is constitutionally adequate only if all essential
elements of a crime, statutory and nonstatutory, are included in the document so
as to apprise the accused of the charges against him or her and to allow the
defendant to prepare a defense." State v. Vanqerpen. 125 Wn.2d 782, 787, 888
P.2d 1177 (1995). An insufficient charging document requires reversal and
dismissal of charges without prejudice. Id.
In State v. Peterson. 145 Wn. App. 672, 677-78, 186P.3d 1179(2008),
we considered whether residential status and registration deadlines were
essential elements of the crime of failure to register under with former RCW
9A.44.130 (2003).2 See, Laws of 2003, Ch. 215, § 1. Subsections (5)(a) and
(6)(a) of the statute3 provided for registration requirements and reporting
2 We note that on review, the Supreme Court concluded that residential status was not an
essential element of the crime of failure to register because "it is possible to prove that a
registrant failed to register within any applicable deadline without having to specify the registrant's
particular residential status." State v. Peterson, 168 Wn.2d 763, 772, 230 P.3d 588 (2010).The
Court also noted that "[cjommon sense suggests the statutory deadline is part of the State's
burden of proof." id. at 771, n.7. But the Court determined that the issue of whether a registration
deadline was also an essential element of the crime of failure to register was not before it and
specifically declined to decide that question, id.
3 Former RCW 9A.44.130(5)(a) and (6)(a) provided as follows:
(5)(a) If any person required to register pursuant to this section
changes his or her residence address within the same county, the person
must send written notice of the change of address to the county sheriff
within seventy-two hours of moving. If any person required to register
pursuant to this section moves to a new county, the person must send
written notice of the change of address at least fourteen days before
moving to the county sheriff in the new county of residence and must
register with that county sheriff within twenty-four hours of moving. The
person must also send written notice within ten days of the change of
address in the new county to the county sheriff with whom the person last
registered. The county sheriff with whom the person last registered shall
promptly forward the information concerning the change of address to the
county sheriff for the county of the person's new residence. Upon receipt of
notice of change of address to a new state, the county sheriff shall
promptly forward the information regarding the change of address to the
No. 71262-4-1/5
deadlines differentiated upon an offender's residential status.4 Peterson argued
that these subsections constituted alternative means for committing the crime of
failure to register, which must be specified in the charging document. Moreover,
he argued that, because the State must prove these facts beyond a reasonable
doubt to obtain a conviction, they were essential elements of the crime.
We disagreed, explaining that "[t]he statute imposes one duty: to register
with the sheriff." Id. at 677-78. We further explained that the subsections
pertaining to the nature and contents of registration, an offender's residential
status, and the applicable registration deadlines "merely articulate the definition
of continuing compliance. They do not define the elements or create alternative
means of committing the crime of failure to register as a sex offender." Id.
We reached a similar conclusion in State v. Bennett, 154 Wn. App. 202,
224 P.3d 849 (2010). There, we considered whether the to convict instruction
included all essential elements of the charged crime: failure to register under
former RCW 9A.44.130. Bennett raised the same argument advanced in
agency designated by the new state as the state's offender registration
agency.
(6)(a) Any person required to register under this section who lacks
a fixed residence shall provide written notice to the sheriff of the county
where he or she last registered within forty-eight hours excluding
weekends and holidays after ceasing to have a fixed residence. The
notice shall include the information required by subsection (3)(b) of this
section, except the photograph and fingerprints. The county sheriff may,
for reasonable cause, require the offender to provide a photograph and
fingerprints. The sheriff shall forward this information to the sheriff of the
county in which the person intends to reside, if the person intends to
reside in another county. Laws of 2003, ch. 215 § 1.
4 Subsections (5)(a) and (6)(a) of former RCW 9A.44.130 have been recodified at
subsections (5)(a) and (b), respectively.
No. 71262-4-1/6
Peterson. Id. at 206-08. Once again, we concluded that the residential status and
registration deadlines set forth in subsections (5)(a) and (6)(a) of former RCW
9A.44.130 were not essential elements of the crime of failure to register. Id. at
208. As such, Bennett's to convict instruction was not deficient for failure to
include these elements, jd.
E.L.-D. does not attempt to distinguish these cases. Rather, he argues
that the failure to register within 72 hours is an essential element of the crime
because the State must prove it beyond a reasonable doubt. But the mere fact
that the State bears the burden of proving a fact at trial does not automatically
make that fact an essential element of the crime. State v. Allen, 176 Wn.2d 611,
628-30, 294 P.3d 679 (2013) (holding, in a felony harassment case, that even
though the State bore the burden of proving a "true threat" in order to obtain a
conviction, the requirement of a "true threat," was not an essential element of the
crime and need not be contained in the charging document); State v. Lorenz, 152
Wn.2d 22, 31, 93 P.3d 133 (2004) (explaining, in a child molestation case, that
even though touching for the purpose of "sexual gratification" must be proved
beyond a reasonable doubt to sustain a conviction, it is not an essential element
of the crime of child molestation and need not be included in the "to convict"
instruction). Moreover, the argument ignores our holdings in Peterson and
Bennett that the registration deadline is definitional, and the well-established rule
that the State need not include definitions of elements in the charging document.
See, State v. Johnson. 180 Wn.2d 295, 302, 325 P.3d 135 (2014) ("We have
No. 71262-4-1/7
never held that the information must also include definitions of essential
elements.. . .")
Peterson and Bennett make clear that the sole essential element of the
crime of failure to register is violation of the duty to register with the sheriff. The
subsections of the statute that establish the deadlines for meeting this duty
merely articulate the definition of continuing compliance. Peterson. 145 Wn. App.
at 678. Accordingly, we reject E.Z.L.-D.'s argument that the registration deadline
is an essential element of the crime that must be included in the charging
document.
Statement of Additional Grounds
In a statement of additional grounds (SAG), E.Z.L.-D. argues that his
conviction should be reversed because the State failed to prove he knew of his
obligation to register. He appears to claim that he signed the written notice of his
obligation to register without reading it and that he was not orally advised of the
obligation. But, at trial, E.Z.L.-D. stipulated that he "was put on notice and knew
of [his] duty to register as a sex offender and of the duty to notify the Snohomish
County Sherriff's Office of any change of residence address." CP at 33; see also,
(10/22/13) VRP at 61-62. Additionally, the trial court heard undisputed testimony
from Detective Joseph Beard that E.L.-D. signed a form containing a notification
of the applicable registration requirements and was orally advised of its contents.
This form was admitted into evidence at trial. Thus, substantial evidence
supports the trial court's conclusion that E.Z.L.-D.'s violation was knowing.
No. 71262-4-1/8
E.Z.L.-D. also contends that his conviction should be reversed because,
as a ward of the State, "my social worker kept moving me to different places."
SAG at 1. Although this may be true, we do not see how it negates the State's
proof as to any element of the charged crime.
Affirm.
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WE CONCUR:
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