No. 27193-1-II.The Court of Appeals of Washington, Division Two.
Filed: August 16, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Kitsap County, No. 008008019, Hon. William J. Kamps, May 30, 2001, Judgment or order under review.
Counsel for Appellant(s), Anton L. Knappert, Law Office of Wecker Hunko Bougher, 569 Division St. Suite E, Port Orchard, WA 98366.
Counsel for Respondent(s), Jennifer A. Forbes, Kitsap Co. Deputy Pros. Atty., Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
CHRISTINE QUINN-BRINTNALL, A.C.J.
D.K. was 14 years old when he pleaded guilty to attempted third degree rape. At his sentencing, the trial court advised him that he had an obligation to register as a sex offender under RCW 9A.44.130. On appeal, D.K. asserts that because he is a juvenile and the crime was a gross misdemeanor, not a felony, it is not a sex offense under the Juvenile Justice Act (JJA) and he is not required to register as a sex offender. We affirm the trial court. RCW 9A.44.130 controls; D.K. is required to register as a sex offender.
FACTS
On July 28, 2000, D.K. and S.C. were alone in the home of S.C.’s cousin. D.K., a boy, was 14 years old; S.C., a girl, was 13. D.K. grabbed S.C. and attempted to undress her and himself. He forced her to the couch, put his hand around her neck, and attempted oral vaginal contact. The cousin returned, told D.K. to leave, and called the police to report the incident.
The State charged D.K. with attempted third degree rape on November 1, 2000. He entered an Alford[1] plea, acknowledging that there was a substantial likelihood that he would be convicted if the case went to trial. The judgment and sentence included requirements that he complete sex offender treatment and notified him of his obligation to register as a sex offender.
At sentencing, D.K. argued that attempted third degree rape is not a sex offense under the JJA and thus he was not required to register as a sex offender. In its memorandum decision, the trial court found that the sex offender registration statute applied to juvenile offenders. The court also found that because there was no ambiguity between the JJA and the registration statute, the rule of lenity did not apply.
D.K. timely appeals one issue to this court: Is a juvenile who is found to have committed an anticipatory felony sex offense that is a gross misdemeanor under chapter 9A.28 RCW required to register as a sex offender under RCW 9A.44.130?
ANALYSIS
When the language of a statute is clear and unambiguous, its meaning is to be derived from the language of the statute alone and it is not subject to judicial construction. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001). An ambiguity exists if the statute is susceptible to more than one reasonable interpretation. State v. Thorne, 129 Wn.2d 736, 763 n. 6, 921 P.2d 514 (1996). We interpret statutes giving effect to the Legislature’s intent. State v. Acheson, 75 Wn. App. 151, 152, 877 P.2d 217 (1994).
D.K.’s argument that the sex offender registration argument does not apply to him has three parts: (1) that the JJA is the exclusive authority for juvenile offenders; (2) that as a juvenile, he is subject only to the JJA; and (3) that the JJA’s definition of sex offense excludes gross misdemeanors.[2] D.K. then asserts that because the definition of `sex offense’ is different under the registration statute (RCW 9A.44.130) than under the JJA (Chapter 13.40 RCW), and because only the JJA controls sentencing of juveniles, an ambiguity exists that requires this court to reconcile the two statutes. He argues further that the statutory conflict can only be resolved in two ways: either the JJA trumps because he is a juvenile, or the rule of lenity requires application of the narrower definition (excluding gross misdemeanors) and excludes him from the registration requirement. We disagree.[3]
The sex offender registration statute, RCW 9A.44.130(1), states, `Any adult or juvenile . . . who has been found to have committed or has been convicted of any sex offense or kidnapping offense . . . shall register with the county sheriff for the county of the person’s residence. . . .’ That statute defines `sex offense’ as `any offense defined as a sex offense by RCW 9.94A.030‘ as well as `any gross misdemeanor that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a sex offense under RCW 9.94A.030.’ Former RCW 9A.44.130(9)(a) (2000).[4] No provision of the JJA addresses a juvenile’s requirement to register as a sex offender. The JJA defines sex offense but provides that, `The provisions of chapters 13.04 and 13.40 RCW . . . shall be the exclusive authority for the adjudication and disposition of juvenile offenders except where otherwise expressly provided.’ RCW 13.04.450 (emphasis added).
Here the Legislature has `otherwise expressly provided’ by enacting RCW 9A.44.130. The sex offender registration statute applies by its plain language to juveniles. RCW 9A.44.130(1) (`[a]ny adult or juvenile’). And it expressly defines felonies as sex offenses as well as gross misdemeanors that are anticipatory of those felonies: attempts, solicitations, and conspiracies.
As an express and subsequently enacted specific statute, the registration statute for adult and juvenile sex offenders, RCW 9A.44.130, controls. See State v. Walls, 81 Wn.2d 618, 622, 503 P.2d 1068 (1973) (where general and special laws are concurrent, the special law applies `to the exclusion of the general law’); State v. Murphy, 98 Wn. App. 42, 48-49, 988 P.2d 1018 (1999), review denied, 140 Wn.2d 1018 (2000).
This court’s decision in Acheson is solidly on point and dispositive. In that case, the appellant was a 14-year-old boy who pleaded guilty to one count of first degree child molestation. Like D.K., he appealed the order requiring him to register as a sex offender. Acheson claimed that since JJA juvenile offenders are adjudicated and not convicted, the sex offender registration act did not apply to juveniles. This court held:
Here, our review of the language of RCW 9A.44.130
leads us to conclude it was the Legislature’s intent that the statute apply to juveniles under the jurisdiction of the juvenile court. Contrary to Acheson’s assertion, RCW 9A.44.130 does not require that the defendant be convicted of a felony. Instead, the language of the statute requires, in the disjunctive, registration by `[a]ny adult or juvenile residing in this state who has been found to have committed or has been convicted of any sex offense. . .’. RCW 9A.44.130(1).
Acheson, 75 Wn. App. at 154 (Italics and boldface ours).
We note that Acheson committed a felony sex offense that is defined under both RCW 9.94A.030 (sex offender definitional statute) and former RCW 13.40.020(24) (1994)[5] (under the JJA). The holding in Acheson, that the sex offender registration statute directs juvenile sex offenders to register, applies to D.K. and the registration statute expressly includes those who, like D.K., have been found to have committed anticipatory felony sex offenses even when those offenses are classified as gross misdemeanors through the operation of chapter 9A.28 RCW.
The Legislature’s intent is clear. RCW 9A.44.130 requires that both adult and juvenile sex offenders who have committed or attempted (conspired or solicited the commission of) a felony sex offense must register. As an anticipatory sex offense, D.K.’s conviction for attempted third degree rape falls squarely within the statute and he must register.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: MORGAN, J., HOUGHTON, J.
(1970).