Opinion
No. 26435-1-III.
September 30, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-00948-6, Harold D. Clarke III, J., entered August 28, 2007.
UNPUBLISHED OPINION
Geddy Lee Anderson appeals his Spokane County failure-to-register-as-a-sex-offender conviction. Mr. Anderson contends RCW 9A.44.130 is unconstitutionally vague; the evidence insufficiently supports his conviction because he was not "residing" in Washington while he was traveling outside the state; and the court lacked jurisdiction over him. We disagree and affirm.
FACTS
The facts are unchallenged. Mr. Anderson is required to register as a sex offender because of a child rape conviction. He registered his address at 2724 N. Perrine Court in Spokane Valley, a rental owned by Joe Lopez, and then left Washington for the business purpose of touring as a tattoo artist without intending to move from the state. On December 7, 2006, Mr. Lopez evicted Mr. Anderson while he was touring. Mr. Anderson knew he had been evicted. In January 2007, Spokane Sherriff's Detective John Grandinetti could not locate Mr. Anderson at his given address in person or by mail and he could not locate Mr. Anderson at his local tattoo business that continued operating in his absence. Between December 7, 2006 and February 14, 2007, Mr. Anderson failed to give written notice of a change of address or appear in person at the Spokane County Sheriff's Department.
The State charged Mr. Anderson with one count of failure to register as a sex offender under RCW 9A.44.130. Mr. Anderson was arrested on March 20, 2007.
At a bench trial, Detective Grandinetti and Mr. Lopez related the key facts. Sahara Weems and Justin Ray testified for Mr. Anderson. Ms. Weems, Mr. Anderson's girl friend, testified Mr. Anderson returned to town on March 20, 2007 after he had left to tour tattoo conventions for business sometime in late November or early December. Mr. Ray, who worked at Mr. Anderson's tattoo shop, testified similarly to Ms. Weems.
Mr. Anderson testified that he owns a tattoo business in the Spokane Valley and attends tattoo conventions in different places almost every weekend to further his business and his reputation as a tattoo artist. After attending about 10 conventions, he arrived back in Spokane on March 20, 2007, the day he was arrested. Mr. Anderson testified he left Spokane intending to return:
[Defense counsel:] Okay. When you go to these [conventions], are you
planning on moving there?
[Mr. Anderson:] No. You go, you stay in a hotel for a couple days.
. . . .
[Defense counsel:] All right. So was it ever your intent to move?
[Mr. Anderson:] No. Not at all.
[Defense counsel:] Was it ever your intent to leave your business and your home in Spokane?
[Mr. Anderson:] No. Never. That is why I have a business, so I can go on the road.
. . . .
[Defense counsel:] When you — heard [the State] ask you about the eviction — when you left town, were you planning on moving to any other jurisdiction?
[Mr. Anderson:] No. [Defense counsel:] And were you planning on moving out of that address?
[Mr. Anderson:] No. Not at all.
. . . .
[Defense counsel:] And did you at any time establish your residence while you were on the road in any other jurisdiction?
[Mr. Anderson:] No. Not at all.
Report of Proceedings (RP) (July 24, 2007) at 79, 82, 92-93.
Defense trial counsel argued Mr. Anderson was a "returning Washington resident" under RCW 9A.44.130(4)(a)(v) when he returned from his business tour and had three business days to register. Further, "[w]hen you are talking about resident and what does residence mean, and whether or not [Mr. Anderson] qualifies as a resident, and it is not clear what they have to do to comply, I think that there is a problem in the statute being void for vagueness." RP (July 24, 2007) at 104-05. Defense counsel reasoned Mr. Anderson cannot be punished for failure to register while he was out of the state because the trial court lacked jurisdiction over Mr. Anderson during that time.
RCW 9A.44.130(4)(a)(v) provides, in relevant part, "[s]ex offenders . . . who move to Washington state from another state or a foreign country that are not under the jurisdiction of the state department of corrections, the indeterminate sentence review board, or the state department of social and health services at the time of moving to Washington, must register within three business days of establishing residence or reestablishing residence if the person is a former Washington resident."
The court orally found Mr. Anderson guilty as charged and entered consistent written findings of fact and conclusions of law. The court concluded RCW 9A.44.130 is not vague. Further, the court concluded Mr. Anderson remained a Washington resident while he was touring. Accordingly, the court found Mr. Anderson violated RCW 9A.44.130 by failing to notify the Spokane County Sheriff's Department of the change of address after he was evicted from the Perrine Court property. Mr. Anderson appealed.
ANALYSIS A. Vagueness
The issue is whether the sex offender registration statute, RCW 9A.44.130, is unconstitutionally vague. Mr. Anderson contends RCW 9A.44.130 is unconstitutionally vague because it is unclear when a person is "residing" in Washington for purposes of the statute, and therefore has a duty to register. We disagree.
Pursuant to RCW 9A.44.130(1)(a):
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 convicted of any sex 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 a person's school, or place of employment or vocation.
RCW 9A.44.130(1)(a) (emphasis added).
We review the constitutionality of a statute de novo. State v. Watson, 160 Wn.2d 1, 5, 154 P.3d 909 (2007) (quoting Kitsap County v. Mattress Outlet, 153 Wn.2d 506, 509, 104 P.3d 1280 (2005)). "If the statute does not involve First Amendment rights, then the vagueness challenge is to be evaluated by examining the statute as applied under the particular facts of the case." State v. Coria, 120 Wn.2d 156, 163, 839 P.2d 890 (1992) (citing City of Spokane v. Douglass, 115 Wn.2d 171, 182, 795 P.2d 693 (1990)). Accordingly, because the sex offender registration statute does not implicate First Amendment rights, we will evaluate the statute's constitutionality as applied to Mr. Anderson. See Watson, 160 Wn.2d at 6 (evaluating a vagueness challenge to the sex offender registration statute as applied).
"The fundamental principle underlying the vagueness doctrine is that the Fourteenth Amendment requires citizens be afforded fair warning of proscribed conduct." Coria, 120 Wn.2d at 163 (citing Douglass, 115 Wn.2d at 178). "A statute is presumed to be constitutional, and the person challenging a statute on vagueness grounds has the heavy burden of proving vagueness beyond a reasonable doubt." Id. (citing Douglass, 115 Wn.2d at 178). To prove vagueness, the challenger must establish one of the following grounds: "(1) the statute does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) the statute does not provide ascertainable standards of guilt to protect against arbitrary enforcement." Id. (citing Douglass, 115 Wn.2d at 178).
Mr. Anderson argues solely ground one. A statute is unconstitutional under the first ground if it "forbids conduct in terms so vague that persons of common intelligence must guess at its meaning and differ as to its application." Coria, 120 Wn.2d at 163 (quoting Douglass, 115 Wn.2d at 179) (internal quotation marks omitted). Some imprecision in the statutory language is permitted. Id. (citing Douglass, 115 Wn.2d at 179). Rather, "a statute meets constitutional requirements `[i]f persons of ordinary intelligence can understand what the ordinance proscribes, notwithstanding some possible areas of disagreement.'" Watson, 160 Wn.2d at 7 (alteration in original) (quoting Douglass, 115 Wn.2d at 179).
RCW 9A.44.130 applies to Mr. Anderson to require him to maintain compliance with the sex offender registration statute, despite his eviction from the Perrine Court property, as a sex offender "residing" in Washington. See RCW 9A.44.130(1)(a), (5)(a), (6)(a), (6)(b). RCW 9A.44.130 does not define "residing." Absent a statutory definition, a nontechnical word may be given its dictionary meaning. State v. Pray, 96 Wn. App. 25, 29, 980 P.2d 240 (1999) (citing State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990)).
The word "residing" is not unconstitutionally vague. Persons of common intelligence need not guess at its meaning. The dictionary defines "resides" as "to settle oneself or a thing in a place: be stationed : REMAIN, STAY . . . to dwell permanently or continuously." Webster's Third New International Dictionary 1931 (1993). Further, the connotation of "resides" is that "a person keeps or returns to a particular dwelling place." Webster's Third New International Dictionary 1931 (1993). The dictionary definition of "resides" and its connotation give fair notice of when a person is "residing" in Washington for purposes of the sex offender registration statute. Mr. Anderson fails to meet his heavy burden of proving vagueness beyond a reasonable doubt.
B. Evidence Sufficiency
The issue is whether the trial evidence sufficiently supports Mr. Anderson's conviction for failure to register as a sex offender, particularly if he was "residing" in Washington during, December 7, 2006 to February 14, 2007.
Evidence sufficiently supports a conviction if, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). "[W]hen the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977) (citing State v. Woods, 5 Wn. App. 399, 404, 487 P.2d 624 (1971)).
Mr. Anderson was charged with failing to register as a sex offender under RCW 9A.44.130(5)(a), (6)(a), or (6)(b). Mr. Anderson does not contest his child rape conviction carries a registration requirement. Mr. Anderson's focus is if the evidence shows he was "residing" in Washington while he was out of state on business.
The State had the burden of proving beyond a reasonable doubt one of the following elements: (1) Mr. Anderson changed his residence address within the same county where he previously registered, Spokane County, and failed to send written notice to the county sheriff within 72 hours of moving; (2) he ceased to have a fixed residence within Spokane County, and failed to notify the county sheriff of this change of status within 48 hours excluding weekends and holidays; or (3) lacking a fixed residence, Mr. Anderson failed to report weekly in person to the sheriff of Spokane County. See RCW 9A.44.130(5)(a), (6)(a), (6)(b).
Mr. Anderson testified he left Spokane to attend tattoo conventions; he did not intend to move or leave his Spokane business and home; and he did not establish a residence in any other jurisdiction. The facts show he knew about his eviction and he returned to Spokane on March 20, 2007, more than three months after his eviction.
The court found Mr. Anderson's limited intent when physically departing from Washington state was to tour as a tattoo artist to promote his personal reputation and enhance his ongoing Washington-based business, not move from the state or change his Washington residence. Mr. Anderson misunderstands that his intent was a fact question while the legal consequence is whether he violated the registration statute. See Brown v. State, 130 Wn.2d 430, 448, 924 P.2d 908 (1996) (explaining intent as a mixed question of fact and law).
Viewing the evidence in the light most favorable to the State, the evidence is sufficient to establish Mr. Anderson was "residing" in Washington during the relevant time, and subject to the sex offender registration requirements. Accordingly, we need not discuss Mr. Anderson's further contention that he was a "returning Washington resident" under subsection (4)(a)(v) of the sex offender registration statute because he did not intend to give up his Washington residency. See RCW 9A.44.130(4)(a)(v) (explaining duties of returning Washington residents). Similarly, Mr. Anderson inaptly cites to Pray, 96 Wn. App. 25 to argue that "residing" requires physical presence because we are not dealing with a situation where a registrant moved to another county under a former provision of RCW 9A.44.130(4)(a).
C. Jurisdiction
The issue is whether, considering his physical absence, Washington had criminal jurisdiction over Mr. Anderson for failing to register as a sex offender.
We review jurisdiction questions de novo. State v. Daniels, 104 Wn. App. 271, 274, 16 P.3d 650 (2001) (citing State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069 (1997)). Washington has criminal jurisdiction over "[a] person who commits in the state any crime, in whole or in part." RCW 9A.04.030(1). The burden of proving jurisdiction lies with the State. Daniels, 104 Wn. App. at 274-75 (citing State v. L.J.M., 129 Wn.2d 386, 392, 918 P.2d 898 (1996)). "Ordinarily, the State meets this burden by presenting evidence that any or all of the essential elements of the alleged offense occurred in the state." Id. at 275 (quoting L.J.M., 129 Wn.2d at 392) (internal quotation marks omitted).
The fact that Mr. Anderson was not physically present in Washington when he was evicted does not mean the crime did not occur within the state or that the court lacked subject matter jurisdiction. Therefore, Washington had criminal jurisdiction over Mr. Anderson.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and SWEENEY, J., concur.