State Of Washington v. John Norman Hartman, Ii ( 2018 )

FILED
•*COURT OF APPEALS OW I
STATE OF WASHINGTON
2018 OCT 1 All 9: 10
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 76557-4-1
)
Respondent, )
) DIVISION ONE
v. )
)
JOHN NORMAN HARTMAN, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: October 1, 2018
)
MANN, A.C.J. — John Hartman appeals his conviction for felony failure to register
as a sex offender under RCW 9A.44.132. Hartman argues that there was insufficient
evidence to support his conviction beyond a reasonable doubt, that the trial court erred
in failing to enter written findings of fact and conclusions of law, and that the sentence
imposed exceeded the statutory maximum.
We affirm Hartman's conviction. However, we accept the State's concession that
the combined period of confinement and community custody imposed exceeds the
statutory maximum of 60 months, and remand for resentencing.
Hartman is required to register as a sex offender. Snohomish County Deputy
Sheriff David Coleman was assigned to verify Hartman's registered address on
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A.
September'16, 2015. Coleman Wentto the registered address at 1710 Russian Road,
in Arlington. On the Russian Road property is a house where Arlene Lawyer, her
mother, and two children resided. The property also had a shop where Hartman and
Chauncea Schnabell lived.
While at the Russian Road residence, Coleman spoke with Lawyer and
Schnabel. Lawyer told Coleman that Hartman no longer resided at the Russian Road
address and had not lived there since the end of June or the beginning of July. Lawyer
indicated that Hartman may have left a couple of items until the end of July, such as his
mobile trailer and his vehicle. During this interaction, Schnabel called Hartman on her
cell phone, and Coleman spoke to Hartman. Hartman explained he had not gone in to
register because he had car trouble and he was afraid to go to the courthouse. Later
that day, Hartman registered his new address, 5729 Mero Road in Snohomish, with the
Snohomish County Sheriff's Office. The Mero Road address is Hartman's mother's
house.
The State charged Hartman by amended information with failure to register, a
class C felony, for the time period of about July 16 through September 15, 2015.
Hartman waived his right to a jury trial. After a bench trial, on February 14, 2017, the
trial court found Hartman guilty and issued an oral ruling.
On March 3, 2017, the trial court sentenced Hartman to the standard range of 33
months, with credit for time served, and 36 months of community custody. Hartman
filed a notice of appeal that same day. After the appeal was filed, the trial court entered
written findings of fact on September 13, 2017. We granted the State's motion to
I Schanbel is Lawyer's daughter.
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expand the trial court's authority to include the trial court's written findings and
conclusions under RAP 7.2(a), (e), and RAP 8.3.
Hartman argues first that there was insufficient evidence to sustain his
conviction. We disagree.
"The test for determining the sufficiency of the evidence is whether, after viewing
the evidence in the light most favorable to the State, any rational trier of fact could have
found guilt beyond a reasonable doubt." State v. Kintz, 169 Wash. 2d 537, 551, 238 P.3d
470(2010). 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." Kintz,
169 Wash. 2d at 551 (citing State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992)).
"A claim of insufficiency admits the truth of the State's evidence and all inferences that
reasonably can be drawn therefrom." Kintz, 169 Wash. 2d at 551. Circumstantial
evidence is considered as reliable as direct evidence. State v. Delmarter, 94 Wash. 2d
634, 638,618 P.2d 99(1980). "Credibility determinations are for the trier of fact' and
are not subject to review." State v. Cardenas-Flores, 189 Wash. 2d 243, 266, 401 P.3d 19
(2017)(citing State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850(1990)).
Hartman was convicted of failing to register as a sex offender under RCW
9A.44.132. Under RCW 9A.44.132, the State must prove beyond a reasonable doubt
that Hartman (1) had a duty to register under RCW 9A.44.130 for a felony sex offense
and (2) knowingly failed to comply with any of the requirements of RCW 9A.44.130.
RCW 9A.44.132(1). An offender must register his or her new address within three
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business days of moving. RCW 9A.44.130(5)(a). A person who lacks a "fixed
residence"2 must report weekly to the county sheriff. RCW 9A.44.130(6)(b).
It is undisputed that Hartman had a duty to register. Hartman stipulated that he
had a prior conviction for indecent liberties that required him to register in Snohomish
County as a sex offender during the period at issue.
There was also sufficient evidence establishing that Hartman knowingly failed to
register. The State presented evidence from Detectives Berg and Ferreira that Hartman
was familiar with the process of registering a new address with the Snohomish County
Sheriff's Office
Detective Ferreira, who was on duty the day Hartman registered the Russian
Road address, testified that Hartman signed the Notification of Registration and Sex
Offender Requirements form, which had a box indicating that Hartman attested to
reading and understanding the information contained therein. The form included a
paragraph about the requirements for when an address must be changed. Detective
Ferreira asked Hartman if he had any questions about the information in the form.
Detective Ferreira gave Hartman a copy of the form.
There was also sufficient evidence to support that Hartman had not lived at the
Russian Road address after mid-July 2017. Deputy Coleman testified that Schnabel
and Lawyer told him that Hartman no longer resided there. Schnabel offered to call
2 A fixed residence "means a building that a person lawfully and habitually uses as living quarters
a majority of the week. Uses as living quarters means to conduct activities consistent with the common
understanding of residing, such as sleeping; eating; keeping personal belongings; receiving mail; and
paying utilities, rent, or mortgage. A nonpermanent structure including, but not limited to, a motor home,
travel trailer, camper, or boat may qualify as a residence provided it is lawfully and habitually used as
living quarters a majority of the week, primarily kept at one location with a physical address, and the
location it is kept at is either owned or rented by the person or used by the person with permission of the
owner or renter." RCW 9A.44.128(5).
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Hartman on her cell phone for Coleman. Hartman told Coleman over the phone that he
had not registered because his car had broke down, and he was afraid to go to the
courthouse. He also asked Coleman several times not to file charges against him.
Lawyer testified that she asked Hartman to move out of the Russian Road
address in late June or the beginning of July and that he was out by mid-July. Schnabel
testified that Hartman was completely moved out before her birthday, July 21, 2015.
Neither Lawyer nor Schnabel could say with certainty that Hartman had not slept in the
shop for a night or two between July and September, but they also had not seen him
enter or exit the shop during that time, except to move his personal belongings. Lawyer
and Schnabel both testified that Hartman asked them to say he was still living at the
Russian Road address if any officers stopped by to check on his status.
Hartman argues that Lawyer and Schnabel were angry with him, and that his
mother, Karen Strand, and her boyfriend John Pennock testified that he had not moved
to the Mero Road property until September. Strand and Pennock testified that they
helped Hartman move out of the Russian Road address using Pennock's pick-up truck.
Strand testified that Hartman had previously lived with her at the Mero Road address,
but this time he planned to live in his trailer on the property. Strand testified that she
rented a storage unit for Hartman in mid-June, but Hartman did not begin moving
anything into the unit until September. Pennock testified that the trailer Hartman was
going to live in was not habitable prior to September 9, 2015, because it was not
hooked up to electricity or water until early-September. A receipt from Lowes shows
that wire was purchased to run electricity underground to the trailer on September 4,
2015, and Pennock testified that it would have taken four or five days to hook up the
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water and electricity from the date the wire was purahased, making the trailer livable on
September 9, 2015—four business days before Hartman registered the Mero Road
address.
While we agree with Hartman that there was conflicting testimony, it is not our
role to determine the credibility of the witness. We defer to the trial court's credibility
determinations. Cardenas-Flores, 189 Wash. 2d at 266. The trial court heard the
testimony and found that Hartman had been kicked out of the Russian Road residence
and was not residing at that address from July to September 2017.
Viewed in the light most favorable to the State, a rational trier of fact could have
found that Hartman failed to register after moving out of the Russian Road residence.
III.
Hartman argues next that his conviction should be reversed because the trial
court failed to enter written findings of fact and conclusions of law as required by CrR
6.1(d). We disagree.
CrR 6.1(d) requires entry of written findings of fact and conclusions of law at the
conclusion of a bench trial. State v. Head, 136 Wash. 2d 619, 622, 964 P.2d 1187(1998).
"Remand for entry of written findings and conclusions" is the proper remedy for a
violation of CrR 6.1(d). Head, 136 Wash. 2d at 622 (citing State v. Mallory, 69 Wash. 2d 532,
533, 419 P.2d 324 (1966)). "Reversal may be appropriate where a defendant can show
actual prejudice resulting from the absence of findings and conclusions or following
remand for entry of the same." Head, 136 Wash. 2d at 624. An example of actual
prejudice is where "there is strong indication that findings ultimately entered have been
'tailored' to meet issues raised on appeal." Head, 136 Wash. 2d at 624-25.
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While the trial court here did not issue written findings of fact or conclusions of
law until six months after its oral ruling, Hartman fails to demonstrate actual prejudice
from the delay. Hartman does not allege that it was impossible to review the trial court's
application of law to the facts in this case, and there is no indication that the written
findings of fact and conclusions of law were tailored to the issues on appeal. The
written findings of fact and conclusions of law do not differ from the trial court's oral
findings made on February 14, 2017. Because written findings and conclusions have
been entered, remand is not necessary.
IV.
Hartman also challenges his combined term of confinement and community
custody as exceeding the statutory maximum. The State concedes that the combined
term of 68 months exceeds the statutory maximum of 60 months.
The combined term of confinement and community custody cannot exceed the
statutory maximum. RCW 9.94A.701. The trial court is required to "reduce an
offender's term of community custody to ensure that the total sentence is within the
statutory maximum." State v. Land, 172 Wash. App. 593, 603, 295 P.3d 782(2013)(citing
State v. Boyd, 172 Wash. 2d 470, 473, 275 P.3d 321 (2012)). We accept the State's
concession and remand for correction of the term of community custody.
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We affirm Hartman's conviction, but remand for correction of the term of
community custody.
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WE CONCUR:
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