No. 29133-2-III.The Court of Appeals of Washington, Division Three.
Filed July 28, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Okanogan County, No. 09-1-00339-2, Jack Burchard, J., entered May 7, 2010.
Affirmed by unpublished opinion per Siddoway, J., concurred in by Kulik, C.J., and Korsmo, J.
SIDDOWAY, J.
A person commits the crime of failure to register as a kidnapping offender when he has a duty to register with the county sheriff and knowingly fails to do so. Former RCW 9A.44.130(12) (2008). Upon Dennis Stensgar’s release from custody for failure to register as a kidnapping offender, he visited the office of the Okanogan County Sheriff and filled out — only partially — a required registration and change of address form. Portions of the form that he did not fill out were later completed by a sheriff’s detective. After being arrested six days later on unrelated charges, Mr. Stensgar was charged and convicted again of failure to register, based on this most recent, materially incomplete or misleading form. He appeals, arguing that the evidence was insufficient to support his conviction because any misinformation on the form was completed not by him, but by the detective. The State presented evidence from which a rational jury could have found the elements of failure to register beyond a reasonable doubt. We therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
Dennis Stensgar was convicted of kidnapping in the second degree in 1997, resulting in his classification as a level III kidnapping offender. Level III kidnapping offenders, like level III sex offenders, are those deemed most likely to reoffend. Following their release from custody, they are required by statute to register their residence address with the county sheriff for the county in which they reside. Former RCW 9A.44.130(1)(a). If a level III offender moves to a new address, the offender is required to register the new address within 72 hours. Former RCW 9A.44.130(5)(a). If an offender becomes homeless, he or she is required to notify the county sheriff, provide information on where he or she plans to stay, and thereafter report weekly, in person, to the sheriff’s office. Former RCW 9A.44.130(3)(b), (6)(a), (b). Counties are provided with a “Requirements to Register” form that describes the registration requirements and is to be reviewed and signed by level III sex and kidnapping offenders. Prior to 2009, Mr. Stensgar had signed the form, indicating that it had been read to and reviewed with him.
Prior to November 2009, Mr. Stensgar had been convicted of failing to register three times. After serving time in the Okanogan County jail for his third conviction for failure to register, Mr. Stensgar was released from custody on or about November 2, 2009 and went to the sheriff’s office to fill out a registration and change of address form. The form was accepted by a records clerk and passed along to Detective Deborah Behymer. During the time frame involved in this case, Detective Behymer had registration and oversight responsibility for offenders residing in Okanogan County and periodically visited their registered addresses to confirm they were living at their reported locations.
Detective Behymer had dealt with Mr. Stensgar prior to November 2009. Mr. Stensgar’s conviction in September 2009 for failure to register resulted after she visited property on Highway 155 in Nespelem owned by Ambrose Adolph, an elderly gentleman who had been a friend of Mr. Stensgar’s parents; Mr. Adolph’s Nespelem property had been identified by Mr. Stensgar as his registered address. There she learned from Mr. Ambrose and his caregiver that Mr. Stensgar did not reside at the home and had not been there for over a year and a half.
Upon reviewing the registration and change of address form completed by Mr. Stensgar on November 2, Detective Behymer noticed that he had left several fields blank, without which the form would not be accepted by the State. He had not provided his state identification number or social security number, both of which were available to Detective Behymer, who added that information herself. In addition, Mr. Stensgar had left the “New address” field blank, although he had written “General Delivery, Omak 98841” in an adjacent field provided for a “Mailing Address.” Clerk’s Papers (CP) at 113. Directly above and to the right of the “New address” field — in what the detective later described as the “apartment number spot,” but which was a portion of the field for the “Last registered address” — Mr. Stensgar had written “6398 Hwy 155,” Ambrose Adolph’s address. Id.; Report of Proceedings (RP) at 89. Upon seeing that the “New address” field was left blank, Detective Behymer completed it with the “6398 Hwy 155” address, which she later testified at trial was the “correct place.” RP at 89.
At the time Detective Behymer completed the “New address” field on Mr. Stensgar’s November 2 form with this information, she knew that 6398 Highway 155 was the address for the Adolph home and knew that, at least as of September 2009, Mr. Stensgar had not lived there. On November 10, she traveled to the Adolph home and confirmed with Mr. Adolph’s youngest daughter Karen, then living at the address, that Mr. Stensgar still did not reside there. As a result, Mr. Stensgar was charged on December 1 with failure to register as a kidnapping offender, for knowingly failing to comply with the requirements of former RCW 9A.44.130. The information identified the date of the violation as on or about November 2 and stated that Mr. Stensgar “did not live at the address that he provided as his registration address and did not either provide a current address or register as homeless and/or did not notify of a move either within the county or out of the county.” CP at 129-30.
Among the witnesses called at trial were three of Mr. Adolph’s children and his full-time caregiver. Gloria Adolph, one of Mr. Adolph’s daughters, testified that by agreement among her siblings she had primary responsibility for her father’s affairs, she had never given Mr. Stensgar permission to reside at the property, and she would not have permitted it. She testified that a couple of years prior, her father had been assaulted from behind at his home and robbed, and while Mr. Adolph did not know who attacked him, the children suspected Mr. Stensgar. Karen Adolph testified that she had lived in one of the two homes on the property (the home that the family referred to as the “stick house”) since October 2009, very near the singlewide trailer where Mr. Adolph lived, and that Mr. Stensgar did not reside at the property. RP at 128. Mr. Adolph’s caregiver testified that she had provided care to Mr. Adolph from 7 a.m. until at least 4 p.m., seven days a week, for a period from early September 2009 to January 2010, and had never seen Mr. Stensgar at the property. Finally, the State called an employee of the Department of Social and Health Services (DSHS), who testified that Mr. Stensgar had applied for food stamps on November 2, 2009 and had provided the 6398 Highway 155 address as one where he hoped to be able to reside. In the defense case, Mr. Stensgar called Stephen Charley, Mr. Adolph’s stepson, who testified that he had once told Mr. Stensgar he could stay in the stick house for a few days, with his stepfather’s knowledge. He admitted on cross-examination that he could not recall when he had given permission to Mr. Stensgar, other than that it was at a time when no one else was living at the stick house. He acknowledged that it could have been a couple of years prior to the April 2010 trial.
The jury found Mr. Stensgar guilty and he was sentenced to eight months’ confinement. He timely appealed.
ANALYSIS
Mr. Stensgar’s sole assignment of error is to the sufficiency of the evidence to convict him. In deciding a defendant’s challenge to the sufficiency of the evidence we view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245
(2007). “A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In determining whether the necessary quantum of proof exists, we need not be convinced of the defendant’s guilt beyond a reasonable doubt, but only that substantial evidence supports the State’s case. State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303, review denied, 119 Wn.2d 1003 (1992). The State must present enough evidence to allow the jury to find each element beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When assessing whether substantial evidence is present, we cannot rely on guess, speculation, or conjecture. State v. Prestegard, 108 Wn. App. 14, 23, 28 P.3d 817 (2001).
The “to convict” instruction informed the jury that to convict Mr. Stensgar of failure to register, the State must prove, among other elements, and beyond a reasonable doubt, that the defendant either
(a) Knowingly failed to maintain registration as a kidnapping offender with the sheriff of the county in which he resides[;] or
(b) Changed his residence address within the same county and knowingly failed to provide written notice to the county sheriff within seventy-two hours of moving; or
(c) Lacked a fixed residence and knowingly failed to provide written notice to the sheriff of the county where he or she last registered within forty-eight hours after ceasing to have a fixed residence.
CP at 42 (Instruction 7). The jury was given the following instruction as to what it means to act knowingly:
A person knows or acts knowingly or with knowledge with respect to a duty to register as a kidnapping offender when he or she is aware . . . that he has a duty to register and fails to register or to notify the sheriff of a change in his residential status.
If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.
Acting knowingly when failing to register a change in residential status is required to establish an element of a crime, the element is also established if a person acts intentionally when he fails to register a change in his residential status. A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime.
CP at 46 (Instruction 10).
Mr. Stensgar argues that the evidence showed that he tried to register and that the erroneous identification of the Adolph home as his new address was not his doing, but was an unauthorized correction or completion by Detective Behymer. While Mr. Stensgar did not testify, he argues on appeal that the evidence suggests that his intent in completing the November 2 form was to truthfully disclose that he lacked a residence. Counsel argues on appeal that “[a]pparently he was not aware that leaving the new address portion blank was not the desired method for indicating homelessness,” and that he “very well could have been planning to appear seven days later for his homeless weekly check-in requirement” but because he was arrested within six days, it is impossible to know. Br. of Appellant at 7-8. We are urged that the unilateral act by Detective Behymer in completing the new address cannot support “knowing” action on the part of Mr. Stensgar or be imputed to him. Id. at 8.
This argument on appeal was also Mr. Stensgar’s defense theory at trial, and it was clearly presented and argued to the jury. In cross-examining Detective Behymer, defense counsel pointed out that it was the detective, not Mr. Stensgar, who wrote the Adolph residence address in the new address field, at a time when Mr. Stensgar was not present. The detective admitted that she had been confused with why Mr. Stensgar had placed the Highway 155 address where he did. In response to questioning by the prosecutor, however, she testified that if she was mistaken and Mr. Stensgar had not intended to provide the Highway 155 address as his new address, then leaving the new address field blank would itself have been a failure to register. She also testified that Mr. Stensgar had filled out registration and new address forms correctly a number of times prior to the November 2 form.
At the close of the State’s case, the defense moved to dismiss the claims based on this theory that Mr. Stensgar had not provided the false new address and his intent had been to register as homeless. As pointed out by the State in opposing the motion, the registration and new address form has a box to indicate that an offender is registering as homeless, which Mr. Stensgar did not mark. Moreover, rather than mark the box on the form that would indicate that the offender had moved, Mr. Stensgar marked the box indicating that the purpose for completing the form was to check in.
In closing argument to the jury, the State did not rely on Detective Behymer’s completion of the new address as the basis for knowing conduct on Mr. Stensgar’s part nor did it impute the detective’s action to him. Instead, the State argued that because Mr. Stensgar identified the Highway 155 address as his last registered address and indicated on the form that the updated information was a “check in” rather than a “move,” the necessary implication was that the Highway 155 address remained his address. It argued that if he had intended to report a move or that he was homeless, he failed to do that — either by checking the correct box, or providing the necessary information. It finally reminded the jury that Mr. Stensgar’s arrest on unrelated charges on November 8 took place in Spokane, arguing, “How far is Spokane from Desautel? That’s a ways. Was there notice that he moved? No notice.” RP at 194.
In light of the State’s evidence that Mr. Stensgar had signed the “Requirements to Register” form, indicating that it had been read to and reviewed with him; that he had correctly completed registration and new address forms in the past; that his November 2 form did not indicate that he had moved or was homeless and provided only the last, Highway 155 registered address; that he simultaneously provided the address to DSHS as an intended address; and that he was not in fact residing at the Highway 155 address; there was substantial evidence from which a rational jury could find the elements of failure to register beyond a reasonable doubt. We therefore affirm the judgment and sentence.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. and KORSMO, J., concur.