State v. PetersonState v. Peterson
FACTS AND PROCEDURAL HISTORY
¶ 2 Michael Peterson was convicted of third degree rape in 1988. As a sex offender, he must register with the sheriff of the county in which he resides pursuant to
¶ 3 On November 2, 2005, an Everett police officer attempted to verify Peterson‘s address. He learned that Peterson had moved four days earlier and his whereabouts were unknown. On December 6, 2005, Peterson registered as a homeless person with the Snohomish County Sheriff‘s Office.
¶ 4 The State charged Peterson with failure to register as a sex offender. The first charging document alleged that Peterson failed to report to the county sheriff between November 2 and November 22, 2005. An amended information clarified that Peterson failed to register with the county sheriff within 48 hours of ceasing to have a fixed residence. A second amended information alleged instead that Peterson failed to register within 72 hours of ceasing to reside at his Everett apartment.3 At trial, the State presented
¶ 5 Peterson appealed his conviction. The Court of Appeals rejected Peterson‘s contention that failure to register is an alternative means crime. State v. Peterson, 145 Wash.App. 672, 678, 186 P.3d 1179 (2008). It concluded that the deadlines under
ANALYSIS
¶ 6 Peterson makes two related yet distinct arguments regarding the nature of the crime at issue, one having to do with whether failure to register is an alternative means crime and the other having to do with the elements of the crime that must be proved. We address these arguments separately after discussing the crime of failure to register generally. Finally, we consider whether the evidence here was sufficient to convict.
A. Failure To Register
¶ 7
¶ 8 The purpose of the registration requirement is to aid law enforcement by providing notice of the whereabouts of convicted sex offenders within the law enforcement agency‘s jurisdiction. LAWS OF 1990, ch. 3, § 401.
1. Is failure to register an alternative means crime?
¶ 9 Peterson claims that the various deadlines and entities with which an offender must register represent alternative means of committing the crime. He claims his right to jury unanimity was violated because substantial
¶ 10 An alternative means crime is one “that provide[s] that the proscribed criminal conduct may be proved in a variety of ways.” State v. Smith, 159 Wash.2d 778, 784, 154 P.3d 873 (2007).
[W]hen the crime charged can be committed by more than one means, the defendant does not have a right to a unanimous jury determination as to the alleged means used to carry out the charged crime or crimes should the jury be instructed on more than one of those means. . . . But, in order to safeguard the defendant‘s constitutional right to a unanimous verdict as to the alleged crime, substantial evidence of each of the relied-on alternative means must be presented.
Id. at 783, 154 P.3d 873 (emphasis added) (citing State v. Kitchen, 110 Wash.2d 403, 410-11, 756 P.2d 105 (1988)).
¶ 11 The legislature has not statutorily defined alternative means crimes, nor specified which crimes are alternative means crimes. This is left to judicial determination. “[T]here simply is no bright-line rule by which the courts can determine whether the legislature intended to provide alternate means of committing a particular crime. Instead, each case must be evaluated on its own merits.” State v. Klimes, 117 Wash. App. 758, 769, 73 P.3d 416 (2003). An example of an alternative means crime is theft because it may be committed by (1) wrongfully obtaining or exerting control over another‘s property or (2) obtaining control over another‘s property through color or aid of deception. State v. Linehan, 147 Wash.2d 638, 644-45, 647, 56 P.3d 542 (2002).
¶ 12 Peterson argues 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. This is too simplistic a depiction of an alternative means crime, as a comparison between theft and failure to register makes plain. The alternative means available to accomplish theft describe distinct acts that amount to the same crime. That is, one can accomplish theft by wrongfully exerting control over someone‘s property or by deceiving someone to give up their property. In each alternative, the offender takes something that does not belong to him, but his conduct varies significantly. In contrast, the 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.
¶ 13 The mere use of a disjunctive in a statute does not an alternative means crime make. In re Pers. Restraint of Jeffries, 110 Wash.2d 326, 339, 752 P.2d 1338 (1988). Here, the different deadlines in the statute, while presented in the disjunctive, do not implicate alternate criminal acts. There is only one method by which an offender fails to register, and that is if he moves from his residence without notice.
¶ 14 Our analysis differs from the Court of Appeals‘. It seemed to conclude that failure to register is an alternative means crime, but that the different deadlines based on various residential scenarios are not themselves alternatives, but rather define “the requirements for amending the registration” upon moving. Peterson, 145 Wash.App. at 678, 186 P.3d 1179. It may be that in making this statement, the Court of Appeals was guided by our observation that “[d]efinition statutes do not create additional alternative means of committing an offense.” Linehan, 147 Wash.2d at 646, 56 P.3d 542. But it is not necessary to draw a distinction between alternatives and definitions of alternatives where the crime at issue is not an alternative means crime at all. We hold that the failure to register is not an alternative means crime.6
¶ 15 In concluding that the deadlines and residential scenarios in the failure to register statute are not alternative means, the Court of Appeals also concluded that they are not elements of the crime. Peterson, 145 Wash. App. at 678, 186 P.3d 1179. As noted above, although these questions are related, they should be analyzed separately.
¶ 16 For the purposes of this case, we need not examine every deadline and residential scenario potentially at issue under
¶ 17 Peterson contends that under
¶ 18 The elements of a crime are commonly defined as “`[t]he constituent parts of a crime—[usually] consisting of the actus reus, mens rea, and causation—that the prosecution must prove to sustain a conviction.‘” State v. Fisher, 165 Wash.2d 727, 754, 202 P.3d 937 (2009) (quoting BLACK‘S LAW DICTIONARY 559 (8th ed.2004)). Although Peterson is correct that a registrant‘s residential status informs the deadline by which he must register, 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. That is what happened here. Peterson registered outside of any deadline contained in the statute. It was therefore unnecessary to show his particular residential status in order to prove a violation of the statute.
¶ 19 The to-convict instruction submitted to the jury specified that Peterson failed to register within 72 hours. Sufficient evidence in the record supported this contention. Verbatim Report of Proceedings (Vol. I) at 19-35, 63. Peterson‘s argument now appears to be that the jury had no way of knowing whether the 72-hour deadline applied to him. Without knowing his residential status, it is possible he had, for example, 10 days to register if he moved from one county to another.8 While this argument has some initial appeal, it rests on the faulty premise that residential status is an element of the crime. In this case, Peterson‘s specific residential status was not essential to proving the criminal act at issue: that he failed to provide timely notice of his whereabouts under any of the statutorily defined deadlines after vacating his registered address.
¶ 20 In support of his argument, Peterson cites three Court of Appeals cases in which an offender‘s residential status was pivotal. Suppl. Br. of Pet‘r at 10-12 (citing State v. Pickett, 95 Wash.App. 475, 975 P.2d 584 (1999); State v. Bassett, 97 Wash.App. 737, 987 P.2d 119 (1999); State v. Stratton, 130 Wash.App. 760, 124 P.3d 660 (2005)). These cases are distinguishable. In Pickett and Bassett, the Court of Appeals took umbrage with the fact that the sex offender registration statute failed to offer offenders with no fixed residence a way to comply with the statute, i.e., one could not register as homeless. Pickett, 95 Wash.App. at 479, 975 P.2d 584; Bassett, 97 Wash.App. at 739-40, 987 P.2d 119 (citing Pickett, 95 Wash.App. at 476, 975 P.2d 584). This failing has since been remedied by the legislature. LAWS OF 1999, 1st Sp. Sess., ch. 6, § 1. Pickett and Bassett do not hold or otherwise imply that an offender‘s residential status is an element that must be proved in order to sustain a conviction. Likewise, Stratton does not suggest that residential status is an element that must be proved. There, the defense presented evidence that the offender was still residing at his fixed residence, albeit in a car in the driveway. Stratton, 130 Wash.App. at 763-64, 124 P.3d 660. Because the offender had never moved in the first place, the duty to register was not triggered and no crime had been committed. Id. at 766-67, 124 P.3d 660.
¶ 21 The Court of Appeals here recognized that requiring the State to prove an offender‘s new residential status would frustrate the failure to register statute. Peterson, 145 Wash.App. at 677, 186 P.3d 1179.
Because the State cannot account for Peterson‘s whereabouts between the time he left his Everett apartment and registered as homeless, the State cannot prove [which of the statutory deadlines applies]. Since Peterson failed to register for more than 30 days, he clearly violated his duty to keep his registration current under all options in the statute. Yet, under Peterson‘s theory he could not be convicted of violating any one of them.
Id. The purpose of the sex offender registration statute is to aid law enforcement in keeping communities safe by requiring offenders to divulge their presence in a particular jurisdiction. LAWS OF 1990, ch. 3, § 401. The criminal punishment attendant to failure to register helps effectuate this purpose. The Court of Appeals correctly observed that allowing individuals to escape punishment when they have failed to register within the prescribed deadlines is an absurd reading of the statute. Peterson, 145 Wash.App. at 677, 186 P.3d 1179 (citing State v. Ammons, 136 Wash.2d 453, 457, 963 P.2d 812 (1998) (noting that courts cannot construe statutes in a matter that renders them absurd)). Reduced to its essentials, Peterson‘s argument is that an offender who successfully hides his whereabouts after moving cannot be convicted of failure to register despite clear evidence that he failed to register within any statutorily prescribed deadline. We reject this argument and hold that residential status is not an element of the crime of failure to register.
B. Sufficiency of the Evidence
¶ 22 Having concluded that failure to register is not an alternative means crime, and that residential status is not an element of the crime, it is clear that the State presented sufficient evidence to convict Peterson of the crime of failure to register. The prosecution charged Peterson with violating the 72-hour registration deadline. The evidence the State presented at trial proved that Peterson had not registered within 72 hours, specifically that he did not register until December 6, 2005. Having left his residence on November 2, 2005, he was outside of any of the statutorily prescribed deadlines when he finally registered. Accordingly, we hold that there was sufficient evidence to convict Peterson of the crime of failure to register.
CONCLUSION
¶ 23 Failure to register is not an alternative means crime, and an offender‘s residential status is not an element of the crime of failure to register. The evidence was sufficient to convict Peterson, and we affirm the Court of Appeals.
WE CONCUR: MADSEN, C.J., C. JOHNSON, ALEXANDER, SANDERS, CHAMBERS, OWENS, FAIRHURST, J.M. JOHNSON, JJ.
Notes
The Court of Appeals dismissed without prejudice because the State appropriately conceded that Peterson‘s charging document was defective in light of the missing knowledge element. The Court of Appeals nonetheless reviewed the merits of Peterson‘s arguments concerning the other elements of failure to register because they were likely to arise on retrial. In its answer to Peterson‘s petition for review, the State urged this court to deny review of these issues, arguing they are not ripe for consideration because a new charging document will be filed, eventually requiring a new to-convict instruction. Answer to Pet. for Review at 6.
We conclude these issues are appropriate for our review. Peterson argues that the evidence against him was insufficient to sustain a conviction precisely because the State did not prove required elements of the crime. Pet. for Review at 19. If he is correct, the remedy is dismissal with prejudice. State v. DeVries, 149 Wash.2d 842, 853, 72 P.3d 748 (2003). The State would not get another chance to remedy its defective information and prosecute Peterson again. In order to determine whether the evidence against Peterson was sufficient to sustain a conviction, we must address his claims regarding alternative means and the elements of the crime of failure to register.