State Of Washington, V Michael George Richey ( 2013 )

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2013 NOT 19 AM 3: 39
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D UTY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43032 -1 - II
Respondent,
M10,
MICHAEL GEORGE RICHEY, UNPUBLISHED OPINION
QuiNN- BRINTNALL, J. — Michael George Richey appeals his conviction for failing to
register as a sex offender. He argues that sufficient evidence does not support his conviction and
that his sentence exceeded the statutory maximum. We affirm the conviction on the ground that
sufficient evidence supports Richey' s conviction, but reverse the sentence and remand for
1
resentencing.
FACTS
Due to a 1994 conviction for second degree child rape, Richey has a duty to register as a
sex offender. On May 3, 2010, Richey registered his address as 2011 217t" Street Court East,
Spanaway, Washington, with the Pierce County Sheriff' s Department.
On 7, 2010, the department two deputies to verify the address. With
May sheriff' s sent
the permission of Hollie Moss, a resident, and Christina Lawson, Moss' s daughter, the officers
1 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 14 and then referred it to a panel of judges.
No. 43032 -1 - II
entered the trailer located at the registered address. They inspected Richey' s bedroom and saw a
bare mattress leaning against a wall and a few stacked boxes. They returned a few weeks later,
but no one was home. They classified Richey as " absconded." Clerk' s Papers ( CP) at 10. The
State charged Richey with failing to register as a sex offender " by either failing to reside at the
registered address or by failing to comply with notification requirements regarding a change of
address." CP at 3.
Richey waived his right to a jury trial. During the bench trial, various witnesses testified
about Richey' s connection to the trailer. Harold Lidren, Richey' s brother, stated that he had
dinner with Richey at the trailer on the evening of May 12, 2010. Benjamin Workman, Richey' s
friend, said that he helped Richey move his belongings out of the bedroom to a storage shed on
May 6, 2010, because the bedroom flooded. Patrick Sorensen, another friend of Richey' s,
testified that on a few occasions he would drop Richey off and pick him up at the trailer.
Sorensen helped Richey move out of the trailer in late summer 2010, but they only moved items
out of a separate storage unit on the property.
Moss also testified. She recalled that Richey stayed at her trailer about four nights per
week. Richey paid her a total $ 200 for rent for the several months that he lived in the trailer.
One time, Richey' s mother also, gave Moss $ 100. Richey corroborated that he did not stay at the
trailer every night. Because it took him two and a half hours to get from the trailer to his
rehabilitation and therapy appointments, he would regularly stay at his mother' s house or with
Tom Jones, another friend. Richey added that the reason the officers saw the mattress stripped
and leaning against the wall on May 7 was because he needed to let the mattress dry after the
flood in his bedroom. When he did stay at the trailer, he slept in the living room. Richey used
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No. 43032 -1 - II
the trailer as his mailing address and stored personal belongings in a storage shed on the
property.
The trial court convicted Richey of failing to register as a sex offender in violation of
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former RCW 9A.44. 130 ( 2010). It found that Richey " stayed at the trailer maybe four nights
per week" and that he stayed with his mother or Jones or other unknown locations " in order to
avoid making the lengthy trip to his appointments." CP at 11 - 12. It added that Richey " did
know where he would stay from one night to the next." CP at 12. It concluded that Richey
lacked a " fixed residence between May 7 and July 29, 2010, but failed to register as a transient
sex offender. CP at 14. It sentenced Richey to 43 months in custody and 0 to 36 months of
community custody. Richey appeals.
ANALYSIS
SUFFICIENCY OF THE EVIDENCE
A challenge to the sufficiency of the evidence presented at a bench trial requires us to
review the trial court' s findings of fact and conclusions of law to determine whether substantial
evidence supports the challenged findings and whether the findings support the conclusions."
State v. Homan, 172 Wn. App. 488, 490, 290 P.3d 1041 ( 2012) ( citing State v. Stevenson, 128
Wn. App. 179, 193, 114 P.3d 699 ( 2005)), review granted, 177 Wash. 2d 1022 ( 2013). Evidence is
substantial if it is sufficient to convince a fair -
minded, rational person of the truth of the finding.
State v. McEnry, 124 Wn. App. 918, 924, 103 P.3d 848 ( 2004). Unchallenged findings of fact
2 Former RCW 9A.44. 130 provides in part,
1)( a) Any adult or juvenile residing whether or not the person has a fixed
residence ... who has been found to have committed or has been convicted of any
sex offense ... shall register with the county sheriff for the county of the person' s
residence.
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No. 43032 -1 - II
are verities on appeal. State v. Hill, 123 Wash. 2d 641, 644; 870 P.2d 313 ( 1994). A claim of
insufficiency admits the truth of the State' s evidence and all inferences that can reasonably be
drawn from them. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 ( 1992). We review the
trial court' s conclusions of law de novo. 3 Homan, 172 Wash. App. at 490.
Richey specifically challenges findings of fact XXIX and XXXII. As an initial matter,
Richey argues that the evidence does not support the finding of fact XXXII and that Richey " did
not know where he would stay from one night to the next." Br. of Appellant at 8. The trial
court, however, ruled that Richey " did know" where he would stay. CP at 12. Accordingly, we
do not address this challenge further.
Richey also argues that substantial evidence does not support finding of fact XXIX, that
t] he defendant did not take meals at the trailer." CP at 11. We agree that a strictly technical
reading of the finding of fact is not supported by substantial evidence. Richey' s brother testified
that he ate a single meal with Richey at the trailer and Moss testified that Richey ate at the trailer
a] little." 2 Report of Proceedings at 148. Therefore, if the trial court' s finding of fact is read
strictly to mean that Richey never ate a meal at the trailer, it would be contrary to the testimony
of witnesses who the trial court specifically found to be credible, and not supported by
3 However,
We note that the dissent applies the rule of lenity to reach the opposite conclusion.
the rule of lenity is a rule of statutory construction that applies to situations where more than one
interpretation be drawn from the wording of a
can statute. State v. Sneeden, 149 Wash. 2d 914,
922, 73 P.3d 995 ( 2003). In this case, we are not faced with competing interpretations of the
meaning fixed
of Rather, we must decide whether the facts, as found by the trial
residence.
court, are sufficient to support the trial court' s conclusion that Richey failed to register as a sex
offender as required by former RCW 9A.44. 130. It is well settled law that when determining the
sufficiency of the evidence, a reviewing court makes all reasonable inferences in favor of the
State and the verdict. Salinas, 119 Wash. 2d at 201. Although, as the dissent articulates, there are
two inferences that can be made from the trial court' s findings of fact, the sufficiency of the
evidence standard requires us to accept the inferences that favor the verdict.
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No. 43032 -1 - II
substantial evidence. We do not consider this particular finding, but the remaining,
unchallenged, findings of fact support the trial court' s conclusions.
Under former RCW 9A.44. 130( 5)( a), a sex offender who is required to register must give
the county sheriff's office written notice within three business days of changing his residence. If
the sex offender lacks a fixed residence he is required to notify the sheriff' s office within three
business days and report to the sheriff' s office on a weekly basis. Former RCW 9A.44. 130( 6).
Here, the trial court concluded that Richey lacked a fixed residence and, thus, violated former
RCW 9A.44. 130( 6) by failing to notify the sheriff' s office.
State Stratton, 130 Wn. App. 760, 124 P.3d 660 ( 2005), to argue that
Richey relies on v.
the trailer was his fixed residence. In Stratton, this court defined residence as
the act ... of abiding or dwelling in a place for some time: an act of making
one' s home in the place where one actually lives or has his home
a place ...;
distinguished from his technical domicile; ... a temporary or permanent dwelling
place, abode, or habitation to which one intends to return as distinguished from a
place of temporary sojourn or transient visit ...; a building used as a home."
130 Wash. App. at 765 ( quoting WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY, at 1931
1. 969)). This court also defined " fixed" as, among other things, "`` not subject to change or
fluctuation. "' Stratton, 130 Wn. App. at 765 ( quoting WEBSTER' s, at 861. Under the definition
of fixed residence adopted by this court in Stratton, the trailer at issue here was neither fixed nor
4
Richey' s residence.
First, Richey' s living arrangement at the trailer was not fixed. He stayed at the trailer for,
at most, four nights a week. The remaining nights, Richey moved between his mother' s home
4
We note that in 2011, the legislature codified a definition of "fixed residence" for the purposes
of failure to register offenses which is different than the definition established by this court in
Stratton. LAWS OF 2011, ch. 337, § 2. However, because Richey' s offense occurred in 2010, we
apply the Stratton definition of fixed residence rather than the new statutory definition.
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No. 43032 -1 - II
and the homes of other friends. Because the place where Richey stayed was regularly changing,
his address was not fixed.
Second, the trailer was not Richey' s residence. Richey argues that because ( 1) he kept
personal belongings at the trailer, ( 2) received mail at the trailer, and ( 3) intended to return to the
trailer, it was his residence. He analogizes to Stratton, in which we determined that although the
defendant lived in his car in the driveway outside of the house, the address was his fixed
residence because he received mail and telephone service there, and intended to return to the
house. 130 Wash. App. at 766. But Stratton is distinguishable.
In Stratton, the defendant returned to the address every night, could easily be contacted
by law enforcement at the address, and the address was not subject to change because he had no
definite departure date or alternative place to stay. 130 Wn. App. at 766. Here, Richey did not
return to the trailer every night, and he regularly stayed at alternative addresses. Because Richey
was at the trailer sporadically it would be more difficult for law enforcement to locate him at the
trailer which defeats the purpose of the registration requirement. See State v. Vanderpool, 99
Wn. App. 709, 712, 995 P.2d 104 ( purpose of sex offender registration is " to allow law
enforcement agencies to protect their communities, conduct investigations and quickly,
apprehend sex offenders "), reviewed denied, 141 Wash. 2d 1017 ( 2000). Therefore, the trailer was
not Richey' s residence.
Because the trailer was not Richey' s fixed residence, he failed to comply with the
registration requirements by failing to notify law enforcement of his change in address under
former RCW 9A.44. 130 and the trial court' s conclusions of law were correct. We affirm
Richey' s conviction.
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No. 43032 -1 - II
SENTENCE
Richey also appeals his 0 to 36 month term of community custody, arguing that the
combination of his indefinite community custody term and his term of 43 months of confinement
exceeds the 60 -month statutory maximum punishment for his crime in violation of RCW
9. 94A. 701( 9), 5 and that he is entitled to be resentenced to reduce his term of community custody.
State v. Boyd, 174 Wash. 2d 470, 472 -73, 275 P.3d 321 ( 2012).
to be because he
The State concedes Richey is entitled resentenced was " potentially
sentenced past the statutory maximum of 60 months." Br. of Resp' t at 15. We accept the State' s
concession and remand for resentencing under Boyd.
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.
UINN- BRINTNALL, J.
I concur:
HUNT, P. J. a-
5
RCW 9. 94A.701 provides,
9) The term of community custody specified by this section shall be
reduced by the court whenever an offender' s standard range term of confinement
in combination with the term of community custody exceeds the statutory
maximum for the crime as provided in RCW 9A.20. 021.
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No. 43032 -1 - II
BJORGEN, J. ( dissenting) — As the majority states, the central issue in this appeal is
whether substantial evidence supports the trial court' s finding that Michael Richey lacked a fixed
residence between May 7 and July 29, 2010. More specifically, the question is whether
sufficient evidence supports the court' s determination that the Spanaway address was not
Richey' s fixed residence.
A "fixed residence" requires:
the act ... of abiding or dwelling in a place for some time: an act of making
one' s home ina place ... ; the place where one actually lives or has his home
distinguished from his technical domicile; ... a temporary or permanent dwelling
place, abode, or habitation to which one intends to return as distinguished from a
place of temporary sojourn or transient visit ... ; a building used as a home."
State v. Stratton, 130 Wn. App. 760, 765, 124 P.3d 660 ( 2005) ( quoting Webster' s Third New
International Dictionary 1931 ( 1969)) ( emphasis omitted). In determining whether a location
serves as a " fixed residence" under these principles, we must apply the rule of lenity and
interpret the statute in Richey' s favor absent contrary legislative intent. Stratton, 130 Wash. App.
at 766.
In Stratton, the defendant moved out of the home he was purchasing after defaulting on
the payments. Although Stratton no longer entered the house or, presumably, stored belongings
in it, he returned there every night, received his mail and phone messages there, and slept in his
car outside the home. We held that under these circumstances the State had failed to prove that
the home was not the defendant' s fixed residence. Stratton, 130 Wash. App. at 762.
A comparison of Richey' s situation with the facts of Stratton could serve an argument
either way. On one hand, Stratton was more anchored in his location because he returned to it
every night; on the other hand, Richey was more securely rooted because he slept and stored
No. 43032 -1 - II
belongings inside the residence. More profitable is the evaluation of Richey' s circumstances
directly under the definition of "fixed residence" found in Stratton.
The state of Richey' s bedroom on May 7, 2010, when the officers first visited, suggested
that he no longer lived there: a bare mattress was propped against the wall and a few boxes were
stacked on the floor. However, Workman' s testimony, found credible by the court, was that
Richey' s room had flooded the day before and that Richey had moved his possessions as a result.
Richey also testified that when the room was flooded, he slept in the living room. This evidence
shows a legitimate reason, consistent with fixed residency, why the room looked vacant when the
officers first visited.
5
Turning to Richey' s periodic absences, there is no easy litmus signaling how many
weekly absences is inconsistent with fixed residency. Instead, the circumstances of the absences
must be considered in applying the definition in Stratton. Credible evidence showed that Richey
spent about four nights per week at the trailer and the other three nights at his mother' s or
Jones' s home because it took two -and -a -half hours to get to his therapy / ehabilitation
r
appointments from the trailer. These circumstances show a legitimate reason for his absence
each week, consistent with fixed residency.
Finally, the lodestar in statutory construction is legislative intent. See Lacey Nursing Or.
128 Wash. 2d 40, 53, 905 P.2d 338 ( 1995). The purpose of the sex offender
v. Dep' t of Revenue,
registration requirement is to provide law enforcement an address where they can contact an
offender. Stratton, 130 Wn. App. at 765. Credible evidence showed that Richey stored his
5 The State relies on State v. Pray to argue that Richey was required to re- register at the
addresses he used temporarily. 96 Wash. App. 25, 980 P.2d 240 ( 1999). Although Pray held that
even the temporary use of an address can amount to establishing a fixed residence, in Pray, the
court held that offender " abandoned" his registered permanent address before moving to a
temporary address. 96 Wash. App. at 30. Here, Richey never abandoned the trailer.
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No. 43032 -1 - II
belongings at the trailer, returned and slept there four nights per week, received mail there, met
friends there, and had a legitimate reason, consistent with fixed residency, for his absences.
Although his absences made it more difficult for law enforcement to contact him, an increase in
difficulty is not the standard. Here, Richey was absent three nights a week for a regular, easily
confirmable purpose. This pattern is wholly consistent with fixed residency and would allow
law enforcement ample and reasonable opportunity to contact Richey. Deeming this to be a
fixed residence is consistent with the statute' s purpose.
Richey' s living situation, as shown by credible, unrebutted evidence, was consistent with
the central elements of Stratton' s definition of " fixed residence" and allowed the statute' s
purposes to be served. Therefore, sufficient evidence did not support Richey' s conviction, and I
would reverse.
BJOOTGEN,?
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