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Corrected Copy No. 44173 0- II- COURT OF APPEALS, DIVISION II OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent, VS. Lester James, Appellant. Cowlitz County Superior Court Cause No. 12 1-- 00128 3- The Honorable Judge Michael Evans Appellant's Opening Brief Corrected Copy Jodi R. Backlund Manek R. Mistry Skylar T. Brett Attorneys for Appellant BACKLUND & MISTRY P.O. Box 6490 Olympia, WA 98507 360)339 4870- [email protected] TABLE OF CONTENTS TABLE OF CONTENTS ........................................... ...............................i TABLE OF AUTHORITIES ................................... ...............................iii ASSIGNMENTS OF ERROR .................................. ...............................1 ISSUES PERTAINING TO ASSIGNMENTS OF ERROR .................1 STATEMENT OF FACTS AND PRIOR PROCEEDINGS .................4 ARGUMENT..............................................................8 ............................... I. RCW 9A.13044.is unconstitutionally vague as applied toMr.James ....................................... ............................... 8 A. Standard of Review ...................... ...............................8 B. The statute criminalizing failure to register as a sex offender is unconstitutionally vague because it does not adequately define what it means to "change"one' s residence." .......................................... ...............................9 II. There was insufficient evidence to convict Mr.James. 13 A. Standard of review ..................... ...............................13 B. The state introduced insufficient evidence to find each element of failure to register beyond a reasonable doubt. 14 III. The court denied Mr.James his right to confront the witnesses against him by limiting his cross -examination ofBarnard ......................................... ...............................21 A. Standard of review ..................... ...............................21 i B. Mr. James was denied his right to confront adverse witnesses when the trial court limited his cross -examination ofBarnard .......................................... ...............................22 IV. The trial court miscalculated Mr. James's offender score when it added a point for a prior gross misdemeanor conviction .................. ...............................25 CONCLUSION........................................................26 ............................... 11 TABLE OF AUTHORITIES FEDERAL CASES Chambers v. Mississippi, 410 U.S.284, 93 S.Ct. 1038, 35 L.2dEd.297 1973) ..................................................................... ...............................23 City of Chicago v. Morales, 527 U.S.41, 119 S.Ct. 1849, 144 L.2dEd.67 1999) ..................................................................... ...............................10 Connally v. Gen. Const. Co.,269 U.S. 385, 46 S.Ct. 126, 70 L.Ed 322 1926) ....................................................................... ...............................9 Davis v. Alaska, 415 U.S.308, 94 S.Ct. 1105, 39 L.2dEd.347 (1974) ...22, 23 Grayned v. City ofRockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.2dEd.222 1972) ..................................................................... ...............................10 United States v. Abel, 469 U.S.45, 105 S.Ct. 465, 83 L.2dEd.450 (1984) 23 United States v. Martin, 618 F.3d 705 (7th Cir. 2010) Martin( II).....23,25 WASHINGTON STATE CASES City ofBellevue v. Lorang, 140 Wn.2d 19, 992 P.2d 496 (2000) .............10 City ofSpokane v. Neff, 152 Wn.2d 85, 93 P.3d 158 (2004) ......................9 In re Call, 114 Wn.2d 315, 28 P.3d 709 (2001) ........ ...............................25 In re Detention ofMartin, 163 Wn.2d 501, 182 P.3d 951 (2008)Martin ( I) .............................................................................12 ............................... In re Goodwin, 146 Wn.2d 861, 50 P.3d 618 ( 2002) ..........................25, 26 State v. Caton, 174 Wn.2d 239, 273 P.3d 980 (2012) ........................14,20 State v. Coria, 120 Wn.2d 156, 839 P.2d 890 ( 1992) ...............................11 iii State v. Darden, 145 Wn.2d 612, 26 P.3d 308 (2002) ............22, 23, 24, 25 State v. Drake, 149 Wn. App. 88, 201 P.3d 1093 (2009) 12, 13, 15, 17, 18, 19,22 State v. Jasper, 174 Wn.2d 96, 271 P.3d 876 (2012) ...............................22 State v. Jenkins, 100 Wn. App. 85, 995 P.2d 1268 (2000) ...........11, 13, 14 State v. Mendoza, 139 Wn. App. 693, 162 P.2d 439 (2007) .....................25 State v. Pickett, 95 Wn. App. 475, 975 P.2d 584 (1999) ..........................12 State v. Sansone, 127 Wn. App. 630, 111 P.3d 1251 (2005) ....................10 State v. Sims, 171 Wn.2d 436, 256 P.3d 285 ( 2011) .. ...............................25 State v. Smith, 155 Wn.2d 496, 120 P.3d 559 ( 2005) ...............................14 State v. Spencer, 111 Wn. App. 401, 45 P.3d 209 (2002) ........................23 State v. Stratton, 130 Wn. App. 760, 124 P.3d 660 (2005) ....12, 15, 16, 17 State v. Valencia, 169 Wn.2d 782, 239 P.3d 1059 (2010) ....................9, 10 State v. Watson, 160 Wn.2d 1, 154 P.3d 909 (2007) ... ...............................9 State v. Williams, 144 Wn.2d 197, 26 P.3d 890 (2001) ............................10 State v. Willingham, 169 Wn.2d 193, 234 P.3d 211 (2010) ...............12, 17 CONSTITUTIONAL PROVISIONS U.S.Const. Amend. VI ...................................... ...............................1, 2, 22 U.S.Const. Amend. XIV ......................................... ...............................1,9 Wash. const. art. I, §22 ............................................. ............................... 22 Wash. Const. art. I, §3 ................................................. ............................... 9 1V WASHINGTON STATUTES RCW26.11050. .........................................................26 ............................... RCW9.94A.525 ......................................................... ............................... 26 RCW9A.44 .................................................... ............................... 11, 14, 16 RCW 9A.44.128 ................................. ............................... 11, 12, 17, 18, 20 RCW 9A.44.130 ....... ............................... 1, 9, 11, 12, 13, 14, 15, 17, 19, 20 RCW 9A.44.132 ............................................. ............................... 14, 18, 21 OTHER AUTHORITIES Black's Law Dictionary (6th ed. 1990) ...................... ...............................12 RAP2.5 ........................................................................ ............................... 9 Webster's Third International Dictionary (1969) ...... ...............................16 v ASSIGNMENTS OF ERROR 1. As applied to Mr. James, the sex offender registration statute is unconstitutionally vague. 2. RCW 9A.13044.is unconstitutionally vague because it fails to adequately define the term "residence"or the phrase "residence address." 3. RCW 9A.13044.is unconstitutionally vague because it fails to adequately define what is meant by a "change"of residence address. 4. Mr. James's conviction infringed his Fourteenth Amendment right to due process because the evidence was insufficient to establish the elements of failure to register. 5. The prosecution failed to prove that Mr. James "knowingly" failed to comply with his duty to register. 6. The prosecution failed to prove that Mr. James changed his residence address. 7. The trial court violated Mr. James's Sixth and Fourteenth Amendment right to confront witnesses. 8. The sentencing judge erred by sentencing Mr. James with an offender score of nine. 9. The trial court erred by including a gross misdemeanor in Mr. James's offender score. 10. The court erred in adopting Finding of Fact No. 2.1 in the Judgment and Sentence. 11. The court erred in adopting Finding of Fact No. 2.2 in the Judgment and Sentence. 12. The court erred in adopting Finding of Fact No. 2.3 in the Judgment and Sentence. ISSUES PERTAINING TO ASSIGNMENTS OF ERROR 1. A criminal statute is unconstitutionally vague if it fails to provide (1)adequate notice of what is forbidden and (2) objective guidelines to guard against arbitrary application. RCW 9A.13044.does not define the term "residence"or the phrase "residence address,"and does not explain what is meant by a "change"of residence address. Is the statute unconstitutionally vague as applied to Mr. James, who was temporarily absent from his apartment for a period of less than a week, who had permission from his landlord to remain in the apartment despite difficulty paying his rent, who left clothing and other property in the apartment during his temporary absence, and who showed no intention of abandoning the apartment? 2. To obtain a conviction for failure to register, the prosecution was required to prove that Mr. James "knowingly failed to comply"with his registration requirements. Here, the prosecution did not prove that Mr. James "knowingly failed to comply,"because it did not prove he knew he had changed his residence address. Was the evidence insufficient to prove that Mr. James knowing failed to comply with the registration requirements? The prosecution alleged that Mr. James had an obligation to re- register because he had "changed"his "residence address." The prosecution failed to prove that he intended to abandon his apartment, and the evidence showed that he was temporarily absent for less than a week, that he stayed part of the time in another unit in the same apartment building, that he left clothing and other
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