State Of Washington v. Lester James ( 2014 )

b RT OF
FILED
APPEALS
DIVISION 11
2014 JUN 17 AN u: 36
IN THE COURT OF APPEALS OF THE STATE OF WASHI e` r ASH! ' ON
DY
DIVISION II
STATE OF WASHINGTON, No. 44173 -0 -II
Respondent,
v.
LESTER JIM JAMES, UNPUBLISHED OPINION
Appellant.
WoRSwIcK, J. — Following a bench trial, the trial court found Lester James guilty of
failure to register as a sex offender. James appeals his conviction and sentence, asserting that ( 1)
the sex offender registration statute, RCW 9A.44. 130, is unconstitutionally vague as applied, ( 2)
the State failed to present sufficient evidence in support of his conviction, ( 3) the trial court
violated his right to confrontation by limiting the scope of his cross -examination of a witness,
and ( 4) the trial court miscalculated his offender score. We affirm.
FACTS
James is a convicted sex offender required to register his residence under RCW
9A.44. 130. In August and October of 2011, James registered his address as unit 1 of an
apartment complex in Longview, Washington.
On December 21, 2011, Olga Lozano, a civilian investigator for the Longview Police
Department, went with Detective Danielle Jenkins to James' s registered address to verify that he
was living there. They were not able to make contact with James on that date. Lozano again
went to the Longview apartment complex to verify James' s registered address on January 4,
No. 44173 -0 -II
2012 and January 8, 2012, but she was unable to make contact with James on either date. The
State charged James with failure to register as a sex offender, alleging that he committed the
offense on, about, or between the dates of November 1, 2011 and January 11, 2012.
At trial, Lozano testified that when she went to James' s registered address on January 8,
Richard Barnard was at the apartment. Before calling Barnard to testify, the State moved to
exclude evidence of Barnard' s sex offender registration status, asserting that Barnard' s status
was not relevant to any issue in the case. James' s defense counsel opposed the State' s motion
and argued that Barnard' s status was relevant to show " his motives to give answers that he
believes the prosecution will want in order to curry favor in the prosecution' s eyes." Report of
Proceedings ( RP) at 66. The trial court agreed with the State and excluded evidence related to
Barnard' s status as a registered sex offender.
Barnard testified that he moved into unit 1 of the Longview apartment complex on
January 5, 2012, that the unit was unoccupied when he moved in, and that he did not have any
roommates during the month of January. Barnard further testified that when he moved into the
unit, the unit was empty apart from some clothing, soap, and shampoo. Barnard stated that he .
gave these items away and that no one came to the apartment to claim them. Barnard also stated
that the first time he met James was a month or two after moving into unit 1. When defense
counsel cross -examined Barnard, the following exchange took place:
Defense counsel]: ... And you' re sure this was on the 5th that you —
Barnard]: Yes, I got out of prison on the 5th.
Defense counsel]: Out of prison where?
Barnard]: Uh, Monroe.
Defense counsel]: Monroe, for what?
State]: Objection, Your Honor. Relevance?
Trial court]: Sustained. Sustained.
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Defense counsel]: You have to register as a sex offender?
State]: Objection, Your Honor. Relevance?
Trial court]: Sustained.
Defense Your Honor, once again, so I can make my record
counsel]:
here, should —this person' s registration status, why they' re in
it be necessary —uh
custody right —why he' s in custody right now, is all relevant to his motivation on
how he answers the questions that were prepared by the prosecution and the
Defense. Uh, he' s in custody. Uh, he always has a Defense with him —uh-
charged with failure to register himself. This is highly relevant to his credibility.
RP at 72 -73.
Brian Weathers, a property manager for the Longview apartment complex, testified that
he had a conversation with James in January 2012, about James' s rent being past due since
December 25, 2011. According to Weathers, James stated that he did not have any rent money at
that time, but that he could pay his rent after receiving his tax return. Weathers testified that he
had agreed to James' s proposal but that James never paid his past due rent. Weathers stated that
he did not evict James from the unit before renting it to Barnard. Weathers also stated that he
knew James had items from a rent -to -own store while living in unit 1.
James testified that he received $2, 000 a month from the Puyallup Tribe of Indians and
that his rent for unit 1 of the Longview apartment complex was around $300 per month. James
further testified that he could not make his December 25, 2011 rent payment because he had
spent his money on funeral costs for an individual that James considered to be his son. James
stated that, because he was emotionally distraught over the loss of his son, he spent several
nights with family members in Shelton and at Andrew Alston' s home in Kelso; James became
friends with Alston when Alston lived in a different unit at the Longview apartment complex.
James also stated that when he spent nights at Alston' s home, he would bring a backpack
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containing a change of clothes. James testified that he had helped Alston pay for rent or food
when he came to visit but denied that he had lived at Alston' s home.
Alston testified that James spent several nights at his home but stated that James did not
live there. Additionally, contrary to James' s testimony, Alston testified that James never brought
a backpack with him when he came to visit, and that James did not help pay for rent. The trial
court found James guilty of failure to register as a sex offender, calculated his offender score at
9, and sentenced him to 43 months of incarceration and 36 months of community custody.
James timely appeals his conviction and resulting sentence.
ANALYSIS
I. RCW 9A.44. 130
James first contends that RCW 9A.44. 130 is unconstitutionally vague as applied because
the statute does not sufficiently define what it means to " change" one' s " residence." We
disagree.
The constitutionality of a statute is a question of law that we review de novo. State v.
Watson, 160 Wash. 2d 1, 5 - 6, 154 P.3d 909 ( 2007). Where, as here, the challenged statute " does
not involve First Amendment rights, we evaluate the vagueness challenge by examining the
statute as applied under the particular facts of the case." State v. Jenkins, 100 Wash. App. 85, 89,
995 P.2d 1268 ( 2000) ( citing State v. Coria, 120 Wash. 2d 156, 163, 839 P.2d 890 ( 1992)). We
presume statutes to be constitutional, and the challenger bears the burden of proving vagueness
beyond a reasonable doubt. Coria, 120 Wash. 2d at 163. To meet this burden, James " must show,
beyond a reasonable doubt, that either ( 1) the statute does not define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is proscribed, or ( 2) the
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statute does not provide ascertainable standards of guilt to protect against arbitrary enforcement."
Coria, 120 Wash. 2d at 163. James appears to challenge the constitutionality of RCW 9A.44. 130
only on the first ground.
With regard to this first ground, "[ t] he due process clause of the Fourteenth Amendment
to the United States Constitution requires statutes to provide fair notice of the conduct they
proscribe." Watson, 160 Wash. 2d at 6. To meet this standard, " the language of a penal statute
must be sufficiently explicit to inform those who are subject to it what conduct on their part will
render them liable to its penalties.' Watson, 160 Wash. 2d at 6 -7 ( quoting Connally v. Gen.
Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 ( 1926)). And, "[ a] statute fails to
provide the required notice if it `either forbids or requires the doing of an act in terms so vague
that [ people] of common intelligence must necessarily guess at its meaning and differ as to its
application. ' Watson, 160 Wash. 2d at 7 ( quoting Connally, 269 U.S. at 391). But " a statute is not
unconstitutionally vague merely because a person cannot predict with complete certainty the
exact point at which his [ or her] actions" become prohibited conduct. Watson, 160 Wash. 2d at 7
alteration in original) ( internal quotation marks omitted). 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 Wash. 2d at 7 ( alteration in
original) ( quoting City ofSpokane v. Douglass, 115 Wash. 2d 171, 179, 795 P.2d 693 ( 1990)).
RCW 9A.44. 130 sets forth the registration requirements for convicted sex offenders and
provides in relevant part:
4)( a) If any person required to register pursuant to this section changes
his or her residence address within the same county, the person must provide, by
certified mail, with return receipt requested or in person, signed written notice of
the change of address to the county sheriff within three business days of moving.
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b) If any person required to register pursuant to this section moves to a
new county, the person must register with that county sheriff within three
business days of moving. Within three business days, the person must also
provide, by certified mail, with return receipt requested or in person, signed
written notice of the change of address in the new county to the county sheriff
with whom the person last registered.:. .
5)( a) Any person required to register under this section who lacks a fixed
residence shall provide signed written notice to the sheriff of the county where he
or she last registered within three business days after ceasing to have a fixed
residence... .
b) A person- who lacks a fixed residence must report weekly, in person, to the
sheriff of the county where he or she is registered... .
An offender who knowingly fails to comply with the registration requirements of RCW
9A.44. 130 commits the crime of failure to register as a sex offender. RCW 9A.44. 132.
James argues that RCW 9A.44. 130( 4)' s registration requirements are unconstitutionally
vague as applied to him because the statute does not define " residence" or " residence address."
But in the absence of a statutory definition, we give words used in a statute their ordinary
meaning. State v. Alvarez, 128 Wash. 2d 1, 11, 904 P.2d 754 ( 1995). And Washington cases have
repeatedly applied an ordinary meaning to the term " residence" when interpreting the provisions
of RCW 9A.44. 130.
For example, in State v. Pickett, 95 Wn. App. 475, 975 P.2d 584 ( 1999), Division One of
this Court analyzed a former version of RCW 9A.44. 130 to detennine whether sufficient
evidence supported a conviction for failure to register as a sex offender where the accused was
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homeless during the alleged commission of the offense.' In holding that there was insufficient
evidence in support of the defendant' s conviction, the Pickett court relied on the ordinary
meaning of the word " residence," stating, " Residence as the term is commonly understood is the
place where a person lives as either a temporary or permanent dwelling, a place to which one
intends to return, as distinguished from a place of temporary sojourn or transient visit." 95 Wn.
App. at 478. And in Jenkins, we relied on the Pickett court' s statement of the ordinary meaning
of "residence" in holding that a former version of RCW 9A.44. 130 was unconstitutionally vague
as applied because the statute did not indicate whether an offender met registration obligations
2
by providing a mailing address as opposed to a residential address. 100 Wash. App. at 91.
That prior case law has recognized this ordinary meaning of "residence" as used in RCW
9A.44. 130 defeats James' s claim that the term is unconstitutionally vague as applied. In Watson
our Supreme Court reasoned that "[ b ]. cause of the inherent vagueness of language, citizens may
e
need to utilize other statutes and court rulings to clarify the meaning of a statute." 160 Wash. 2d at
8. And, in reviewing constitutional vagueness claims, we presume that such court rulings are
available to all citizens. "' Watson, 160 Wash. 2d at 8 ( quoting Douglass, 115 Wash. 2d at 180)
internal quotation marks omitted). Accordingly, in reviewing James' s vagueness claim we
adopt the ordinary meaning of "residence" as stated in Pickett, which case we presume was
available to James to clarify his understanding of registration obligations under RCW 9A.44. 130.
1 The legislature has since amended RCW 9A.44. 130 to correct the infirmity identified in
Pickett, and the statute now includes reporting provisions applicable to offenders that are
homeless. See LAws OF WASHINGTON 1999, 1st Spec. Sess., ch. 6, § 1 - 2.
2
The legislature has since amended RCW 9A.44. 130 to correct this infirmity and the statute now
provides that an offender must provide a " complete residential address" when registering. See
LAWS OF WASHINGTON 2006, ch. 126, § 1.
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Applying this ordinary meaning of the word " residence" to the facts here, we hold that a
person of common intelligence would understand RCW 9A.44. 130( 4) to require an offender to
register within three business day of changing " the place where [ the offender] lives as either a
temporary or permanent dwelling, a place to which [the offender] intends to return, as
distinguished from a place of temporary sojourn or transient visit." Pickett, 95 Wash. App. at 478.
Accordingly, James has failed to show beyond a reasonable doubt that RCW 9A.44. 130 is
unconstitutionally vague as applied to him.
II. SUFFICIENCY OF THE EVIDENCE
Next, James contends that the State failed to present sufficient evidence in support of his
conviction. Again, we disagree.
Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the
evidence in the light most favorable to the State, could find the elements of the charged crime
beyond a reasonable doubt. State v. Longshore, 141 Wash. 2d 414, 420 -21, 5 P.3d 1256 ( 2000).
We interpret all reasonable inferences in the State' s favor. State v. Hosier, 157 Wash. 2d 1, 8, 133
P.3d 936 ( 2006). Direct and circumstantial evidence carry the same weight. State v. Varga, 151
Wash. 2d 179, 201, 86 P.3d 139 ( 2004). Credibility determinations are for the trier of fact and are
not subject to review. State v. Cantu, 156 Wash. 2d 819, 831, 132 P.3d 725 ( 2006).
To convict James of failure to register as a sex offender as charged here, the State had to
prove beyond a reasonable doubt that James ( 1) had a duty to register under RCW 9A.44. 130 for
a felony sex offense and ( 2) knowingly failed to register within three business days of either (a)
changing his residence or ( b) ceasing to have a fixed residence. RCW 9A. 44. 130( 4) -( 5); RCW
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9A.44. 132. James argues that sufficient evidence did not support his conviction because the
State failed to present evidence showing that he did not intend to return to his registered
address. 3 We disagree. The evidence at trial showed that James ceased paying rent for his
apartment at the end of 2011 and started helping Alston pay for rent and food while staying at
Alston' s home. Additionally, Barnard testified that he moved into unit 1 of the Longview
apartment complex on January 5, that the unit was unoccupied when he moved in, and that he
first met James months after moving into the unit. Although Barnard testified that there were
some clothing and toiletry items in the unit when he moved in, he also testified that nobody came
to claim those items. Additionally, Weathers testified that James had possessed items from a
rent -o -own store when he lived in unit 1, which items were not present when Barnard moved
t
into the unit. Taken together, and viewed in a light most favorable to the State, this was ample
evidence that James did not intend to return to his registered address and, thus, was required to
register under RCW 9A.44. 130.
James also argues that sufficient evidence did not support the mens rea element that he
knowingly" failed to register. We disagree. At trial, the State presented a registration
notification document that James had signed in August, 2011. The registration notification
document contained provisions mirroring the language of RCW 9A. 44. 130( 4) -(5). And James
entered his initials next to each of these provisions, indicating that he had " read and understood"
the provisions. Exhibit 1 at 3 -4. Thus, the evidence showed that James was aware of his
3
In advancing this claim, James asserts that the ordinary meaning of "residence" as stated in
Pickett should apply. We agree. See also State v. Drake, 149 Wash. App. 88, 94 -95, 201 P. 3d.
1093 ( 2009) ( applying the Pickett court' s definition of residence and holding that there was
insufficient evidence that the defendant did not intend to return to his registered address).
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registration obligations and, therefore, knowingly failed to comply with those obligations by not
informing the county sheriff within three business days of either changing his residence or
ceasing to have a fixed residence. Accordingly, we hold that sufficient evidence supported
James' s conviction for failure to register as a sex offender.
III. RIGHT OF CONFRONTATION
Next, James contends that the trial court' s ruling limiting the scope of his cross -
examination of Barnard violated his constitutional right of confrontation. Again, we disagree.
Both the state and federal constitutions protect the right to confrontation, including the
right to conduct a meaningful cross -examination of adverse witnesses. State v. Darden, 145
Wash. 2d 612, 620, 41 P.3d 1189 ( 2002). The purpose of cross -examination is to test the witness' s
perception, memory, and credibility. Darden, 145 Wash. 2d at 620. But the right to cross -
examination is not absolute. Darden, 145 Wash. 2d at 620. A trial court may deny cross -
examination if the evidence sought is vague, argumentative, speculative, or simply irrelevant.
Darden, 145 Wash. 2d at 620 - 21. And, "[ w]here the right [ to cross -examination] is not altogether
denied, the scope or extent of cross -examination for the purpose of showing bias rests in the
sound discretion of the trial court." State v. Robbins, 35 Wash. 2d 389, 396, 213 P.2d 310 ( 1950).
Accordingly, we will not disturb a trial court' s decision limiting the scope of cross -examination
absent a manifest abuse of that discretion. State v. Campbell, 103 Wash. 2d 1, 20, 691 P.2d 929
1984).
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James asserted at trial that evidence of Barnard' s sex offender registration status was
relevant to show Barnard' s " motives to give answers that he believes the prosecution will want
in order to curry favor in the prosecution' s eyes." RP at 66. But evidence of Barnard' s sex
offender registration status, alone, had no tendency to make it more or less probable that he
would tailor his testimony to " curry favor" with the State. See ER 401 (" Relevant evidence'
means evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence. "). And the trial court' s evidentiary ruling did not prohibit defense counsel from
questioning Barnard about his motive to testify, whether the State had pending charges against
him, or whether the State had promised him anything in exchange for his testimony.
Accordingly, we hold that the trial court did not violate James' s confrontation right by excluding
irrelevant evidence.
IV. OFFENDER SCORE CALCULATION
Finally, James contends that the trial court erred in calculating his offender score at 9
because the trial court scored one point for James' s conviction of violation of a domestic abuse
protection order, which offense James contends is " generally" a gross misdemeanor and, thus,
should not have been included in his offender score calculation. Because James cannot
demonstrate on this record that the trial court miscalculated his offender score by including in its
calculation James' s prior offense of violation of a domestic abuse protection order, we affirm his
sentence.
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Under the sentencing provision applicable to James' s conviction for failure to register as
a sex offender, RCW 9. 94A. 525( 18), the trial court was required to add 1 point to James' s
offender score for each of his prior adult felony convictions. A statement of James' s criminal
history, which James affirmatively agreed was correct at his sentencing hearing, lists a prior
adult conviction for violation of a domestic violence protection order. Former RCW 26. 50. 110
2006) provides that the violation of a court' s protection order is a gross misdemeanor except
that:
4) Any assault that is a violation of an order issued under this chapter, chapter
7. 90, 10. 99, 26. 09, 26. 10, 26. 26, or 74. 34 RCW, or of a valid foreign protection
order as defined in RCW 26. 52. 020, and that does not amount to assault in the
first or second degree under RCW 9A.36. 011 or 9A.36. 021 is a class C felony,
and any conduct in violation of such an order that is reckless and creates a
substantial risk of death or serious physical injury to another person is a class C
felony.
5) A violation of a court order issued under this chapter, chapter 7. 90, 9A.46,
9. 94A, 10. 99, 26. 09, 26. 10, 26. 26, or 74. 34 RCW, or of a valid foreign protection
order as defined in RCW 26. 52. 020, is a class C felony if the offender has at least
two previous convictions for violating the provisions of an order issued under this
chapter, chapter 7. 90, 10. 99, 26. 09, 26. 10, 26. 26, or 74. 34 RCW, or a valid
foreign protection order as defined in RCW 26. 52. 020. The previous convictions
may involve the same victim or other victims specifically protected by the orders
the offender violated.
On this record, we cannot determine whether James' s prior conviction for violation of a
domestic violence protection order was a misdemeanor or, instead, was a class C felony under
former RCW 26. 50. 110( 4) -( 5). Because facts outside the record are necessary for us to
determine whether the trial court, in fact, miscalculated James' s offender score, we decline to
reach this issue on the merits. See State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251
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0
1995) ( Reviewing courts do not consider matters outside the trial record on direct appeal.). We
affirm James' s conviction and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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