State Of Washington v. Brian Christopher Cozad ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
March 7, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON No. 48526-5-II
Respondent,
v.
BRIAN CHRISTOPHER COZAD, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — A jury found Brian C. Cozad guilty of failure to register as a sex offender.
Cozad appeals arguing that the trial court erred by instructing the jury as to the registration
requirements for a sex offender with a fixed residence. Cozad also argues that the trial court erred
by refusing to give a jury instruction on the necessity defense. The evidence supported giving an
instruction on the registration requirements for a sex offender with a fixed residence and the
evidence did not support an instruction on a necessity defense. Accordingly, the trial court did not
err. We affirm.
FACTS
The State charged Cozad with one count of failing to register as a sex offender between
April 18, 2014 and May 28, 2014. A jury trial began on December 21, 2015.
No. 48526-5-II
At trial, Community Corrections Officer Sandy Heurion testified that she was supervising
Cozad based on a 2008 conviction for failing to register as a sex offender and a 2011 conviction
for failure to register as a sex offender. Heurion testified that she informed Cozad of all necessary
sex offender registration requirements.
Clark County Sheriff’s Office Detective Barry Folsom is a detective assigned to the sex
offender registration unit. The sex offender registration unit is responsible for monitoring all sex
offenders required to register in Clark County. Detective Folsom testified that all sex offenders
who register as homeless or transient are required to check in in person with the sex offender
registration unit once a week. All transient sex offenders required to register are required to check
in personally at the sex offender registration unit every Tuesday between 6:00 AM and 4:00 PM.1
Detective Folsom also testified that, if an offender who has registered as transient obtains a fixed
residence, the offender is required to notify the sex offender registration unit of the change of
address.
Detective Folsom testified that, on April 18, 2014, Cozad registered a change in address
from a fixed residence to homeless. When Cozad registered as homeless Folsom notified him, in
writing, of the weekly in person check in requirement. Detective Folsom also testified that Cozad
did not check in in person when required on April 22, April 29, or May 6.
1
Although the sex offender registration unit has a direct line and they encourage offenders to call
if they have problems or questions, calling in is not an adequate substitute for in person check in.
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No. 48526-5-II
Cozad testified that before April 18 he was living in an apartment with his girlfriend.2
However, the apartment manager asked him to leave because the Department of Corrections was
regularly contacting him. Cozad stated that “[a]t that point in time I registered as homeless, but
that wasn’t entirely accurate.” 1 Report of Proceedings (RP) at 142. Cozad continued sleeping at
the apartment with his girlfriend because he left before the apartment manager arrived at the
building and did not get home until after the apartment manager left for the day. Cozad was also
giving his girlfriend money for the apartment.
Cozad also testified that he was working for a “temp agency” at the time. 1 RP at 143. On
April 21 Cozad began working a job that required him to work from 5:00 AM to 7:30 PM seven
days a week. Because of his work schedule, Cozad called the sex offender registration unit
Tuesday evenings after he got off work to report his whereabouts for the previous week. Cozad
testified that if he had a cell phone on the job site, he would be fired. He also testified that it was
difficult to find employment as a felon.
After testimony concluded, Cozad asked the trial court to give the pattern jury instruction
on a necessity defense. Washington Pattern Jury Instruction (WPIC) 18.02 states:
Necessity is a defense to a charge of [failure to register as a sex offender] if
(1) the defendant reasonably believed the commission of the crime was necessary
to avoid or minimize a harm; and
(2) harm sought to be avoided was greater than the harm resulting from a violation
of the law; and the [sic]
(3) the threatened harm was not brought about by the defendant; and
2
The girlfriend Cozad was living with at the time is now his wife.
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No. 48526-5-II
(4) no reasonable legal alternative existed.
The defendant has the burden of proving this defense by a preponderance
of the evidence. Preponderance of the evidence means that you must be persuaded,
considering all the evidence in the case, that it is more probably true than not true.
If you find that the defendant has established this defense, it will be your duty to
return a verdict of not guilty [as to failure to register as a sex offender].
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 18.02, at 292
(4th ed. 2016). The trial court refused to give the necessity instruction because the trial court found
that Cozad had presented insufficient evidence to support the instruction.
The State proposed jury instructions which included both the registration requirements for
transient sex offenders and the change of address requirements if a sex offender establishes a fixed
residence. The trial court determined the evidence supported the additions and gave both the
State’s proposed instructions. The instruction on registration requirements read:
A person who is required to register as a sex offender must comply with
certain requirements of registration, including the following:
(1) the requirement that the defendant, lacking a fixed residence, report
weekly, in person, to the sheriff of the county where the defendant is registered[.]
(2) the requirement that the defendant, lacking a fixed residence, comply
with a request from the county sheriff for an accurate accounting of where the
defendant stayed during the week.
(3) the requirement that the defendant provide the following information
when registering: complete and accurate residential address or, if the defendant
lacks a fixed residence, where the defendant plans to stay.
(4) the requirement that the defendant provide, in person or by certified mail
with return receipt requested, signed written notice of a change of address within
three business days of the change of address to the county sheriff with whom the
defendant is registered.
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No. 48526-5-II
Clerk’s Papers (CP) at 35. The instruction defining fixed residence read:
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.
Lacks a fixed residence means the person does not have a living situation
that meets the definition of a fixed residence and includes, but is not limited to, a
shelter program designed to provide temporary living accommodations for the
homeless, an outdoor sleeping location, or locations where the person does not have
permission to stay.
CP at 36.
The jury found Cozad guilty of failure to register as a sex offender. The trial court
sentenced Cozad to a standard range sentence of 25 months. Cozad appeals.
ANALYSIS
Cozad argues that the trial court erred by giving the jury instructions related to a fixed
residence because the evidence did not support the allegation that Cozad had a fixed residence.
Cozad also argues that the trial court erred by refusing to give the instruction on the necessity
defense because the instruction was supported by the evidence in the record. Here, evidence
supported giving the instructions on fixed residence and the evidence did not support giving an
instruction on the necessity defense. Accordingly, the trial court did not err, and we affirm.
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No. 48526-5-II
STANDARD OF REVIEW
We review whether evidence supports giving a jury instruction for an abuse of discretion.
State v. Walker, 136 Wash. 2d 767, 771-72, 966 P.2d 883 (1998); State v. Green, 182 Wash. App. 133,
152, 328 P.3d 988 (2014).3 A trial court abuses its discretion only where its decision is manifestly
unreasonable or based on untenable reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482
P.2d 775 (1971). A party is entitled to a jury instruction on a theory of the case when evidence
exists in the record to support the party’s theory. State v. Hughes, 106 Wash. 2d 176, 191, 721 P.2d
902 (1986). A party is not entitled to an instruction that is not supported by the evidence. Hughes,
106 Wash. 2d at 191.
A. FIXED RESIDENCE INSTRUCTIONS
Cozad argues that the evidence did not support giving the instructions related to the
registration requirements for registration related to an offender who has a fixed residence because
Cozad’s alleged residence—his girlfriend’s apartment—did not meet the definition of fixed
3
Cozad alleges that we review jury instructions de novo. Br. of App. at 6. When the alleged error
is an error of law, we review jury instructions de novo. State v. Wiebe, 195 Wash. App. 252, 255,
377 P.3d 290 (2016). However, when the alleged error is based solely on the sufficiency of the
evidence, the appropriate standard of review is abuse of discretion. See also, State v. Fleming, 155
Wash. App. 489, 503, 228 P.3d 804 (2010) (this court generally reviews the trial court’s choice of
jury instructions for an abuse of discretion, but it reviews alleged errors of law in jury instructions
de novo).
Cozad also argues that he received ineffective assistance of counsel based on counsel’s
failure to object to the State’s proposed jury instructions. However, because the jury instructions
were proper, counsel’s performance was not deficient. Without deficient performance, a defendant
cannot establish an ineffective assistance of counsel claim. State v. McFarland, 127 Wash. 2d 322,
334-35, 899 P.2d 1251 (1995).
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No. 48526-5-II
residence. Specifically, he argues that the apartment could not be a fixed residence because Cozad
did not have permission to stay at the apartment. Br. of App. at 9.
RCW 9A.44.128(5) defines “fixed residence” as “a building that a person lawfully and
habitually uses as living quarters a majority of the week.” And under RCW 9A.44.128(9) a person
“lacks a fixed residence” if the person is in “locations where the person does not have permission
to stay.” Cozad argues that the apartment was not a fixed residence because the apartment manager
asked Cozad to leave the apartment. However, Cozad cites no authority for the proposition that
when a person has the permission of a tenant to be in the apartment and no eviction action has been
taken, simply being asked to leave by the apartment manager renders his or her presence in the
apartment unlawful or not permissive. In fact, Cozad’s argument is contrary to current law. City
of Bremerton v. Widell, 146 Wash. 2d 561, 570-73, 51 P.3d 733 (2002) (holding a tenant’s invitation
overcomes an objection by a landlord such that a tenant’s invitation is a defense to criminal
trespass).
The rest of Cozad’s testimony establishes that Cozad slept at the apartment almost every
night and contributed money to rent. Accordingly, Cozad’s testimony establishes evidence
supporting the State’s theory that Cozad had a fixed residence at the time that he registered as
transient. Accordingly, evidence supported the State’s theory that Cozad failed to comply with
the registration requirements that he provide a complete and accurate address, or that he failed to
appropriately notify the sheriff’s office of a change in address once the apartment was reestablished
as his fixed residence. The trial court did not abuse its discretion when it gave the State’s proposed
jury instructions related to the registration requirements for a fixed residence.
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No. 48526-5-II
B. NECESSITY DEFENSE
Cozad also argues that the trial court erred by refusing to give his proposed instruction on
necessity because the instruction was supported by sufficient evidence in the record. We disagree.
Here, the record did not support giving an instruction on the necessity defense. Accordingly, the
trial court did not err by refusing to give the instruction.
A defendant may assert the common law defense of necessity “when circumstances cause
the accused to take unlawful action in order to avoid a greater injury.” State v. Jeffrey, 77 Wn.
App. 222, 224, 889 P.2d 956 (1995) (citing State v. Diana, 24 Wash. App. 908, 913, 604 P.2d 1312
(1979)). To establish a necessity defense, the defendant must establish that (1) he or she believed
the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to
be avoided was greater than the harm caused by the violation of the law, (3) the circumstances
have not been brought about by the accused, and (4) no legal alternative existed. Jeffery, 77 Wn.
App. at 225 (citing State v. Gallegos, 73 Wash. App. 644, 651, 871 P.2d 621 (1994)). Cozad’s
proposed instruction, WPIC 18.02, articulated the required elements of a necessity defense.
Cozad cannot show that substantial evidence supports a necessity defense. First, Cozad
cannot establish that commission of the crime was necessary to avoid or minimize harm. Cozad
alleges that he was required to violate the check in requirements “in order to avoid the greater harm
of him becoming unemployed and permanently homeless” and because “he would lose his job, his
income, and his (unlawful) occasional residence.” Br. of App. at 15, 17. But the evidence
presented at trial simply does not support Cozad’s assertion. The only evidence presented at trial
was (1) Cozad was working from 5:00 AM and 7:30 PM and (2) he would be fired for having a cell
phone at the job site. There was no testimony establishing that Cozad would have been fired if he
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No. 48526-5-II
had arranged to arrive at work a few hours later one day a week, or any other evidence affirmatively
establishing Cozad would have suffered the harm he complains of if he had complied with the
registration requirement.
Cozad argues that the harm sought to be avoided was creating an increased risk to the
public because becoming unemployed would also result in him becoming homeless which poses a
greater risk to the community. However, as noted above, Cozad has not actually established that
complying with the registration requirements would have resulted in unemployment or
homelessness. Therefore, Cozad also cannot establish that the harm he sought to avoid was greater
than the harm caused by violating the sex offender registration requirements.
Moreover, Cozad primarily contributed to the circumstances that resulted in his inability
to register. Cozad testified that, when the apartment manager asked him to leave because of contact
with the Department of Corrections, he decided to register as transient. Cozad testified that
registering as transient was not accurate and that he still slept at his girlfriend’s apartment. And,
Cozad was aware that registering as transient would require in person check in every week. Based
on the evidence in the record, Cozad decided that, rather than take any other steps to address either
the apartment manager’s or the Department of Corrections’ concerns, he would register as
transient. Therefore, Cozad created the circumstances that required him to check in personally.
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No. 48526-5-II
Because Cozad cannot show substantial evidence in the record supports at least three of
the four required elements for a necessity defense, the trial court did not err by refusing to give the
instruction on the necessity defense. We affirm.
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.
SUTTON, J.
We concur:
WORSWICK, P.J.
JOHANSON, J.
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