FILED 


DECEMBER 31, 2013 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 31137-6-III 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

CORY LEE LANE, ) 

) 

Appellant. ) 

KULIK, 1. - Cory Lee Lane appeals his conviction for failing to register as a sex 

offender. He contends that both the information charging him with the offense and the 

jury instructions are constitutionally deficient because they did not include any ofthe 

statute's particular registration requirements, which are based upon the offender's 

residential status and other circumstances. Mr. Lane also appeals his sentence. 

We affirm the conviction for failing to register as a sex offender. We remand for 

resentencing and the State conceded this remand is proper to correct the miscalculation in 

Mr. Lane's offender score. 
No. 31137-6-III 

State v. Lane 

FACTS 

Cory Lee Lane is required to register as a sex offender. In April 2011, Pend 

Oreille County deputies were alerted that Mr. Lane appeared to be living in Pend Oreille 

County. Mr. Lane failed to report this residence to the Pend Oreille County Sheriff's 

Office. 

The State filed an amended information charging Mr. Lane with failure to register 

as a sex offender. At trial, the State presented evidence from multiple witnesses that Mr. 

Lane was living with Roxanne Perry in Newport, Washington, in Pend Oreille County. 

Mr. Lane testified that he lived and worked in Spokane and only occasionally visited Ms. 

Perry at her Newport home. A jury found him guilty of failure to register as a sex 

offender. 

At sentencing, the court calculated Mr. Lane's offender score as a 9 and imposed a 

low end standard range sentence of 90 months. He appeals. 

ANALYSIS 

Information-Essential Elements ofFailure to Register as a Sex Offender. Mr. 

Lane contends, for the first time on appeal, that the information is constitutionally 

inadequate because it did not include any ofthe particular registration requirements 

designated in subsections of the sex registration statute. He contends these requirements, 

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No. 31137-6-III 

State v. Lane 

which are based upon the offender's residential status and other circumstances, constitute 

essential elements ofthe offense and, therefore, should have been included in the 

information. 

A charging document is constitutionally adequate if it sets forth the essential 

elements ofthe charged offense. U.S. CONST. amend. VI ("In all criminal prosecutions, 

the accused shall enjoy the right ... to be informed ofthe nature and cause of the 

accusation."); CONST. art. I, § 22 (amend. 10) ("In criminal prosecutions the accused shall 

have the right ... to demand the nature and cause of the accusation against him."); State 

v. Kjorsvik, 117 Wn.2d 93,97,812 P.2d 86 (1991). "The purpose of this 'essential 

elements' rule is to give notice of the nature and cause of an accusation against the 

accused so that a defense can be prepared." State v. Campbell, 125 Wn.2d 797,801,888 

P.2d 1185 (1995). The charging document need not use the exact words of the statute. 

Kjorsvik, 117 Wn.2d at 108. Rather, we evaluate whether "all the words used would 

reasonably apprise an accused of the elements of the crime charged." Id. at 109. 

"A challenge to the sufficiency of a charging document is of constitutional 

magnitude and may be raised for the first time on appeal." Campbell, 125 Wn.2d at 801. 

However, where, as here, no challenge is raised in the trial court, we liberally construe the 

charging document in favor of validity on appeal. Kjorsvik, 117 Wn.2d at 105. In 

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No. 31137-6-III 

State v. Lane 

liberally construing the charging document, we ask whether the elements ofthe offense 

"appear in any form, or by fair construction can ... be found, in the charging document." 

ld. Where the essential elements are present in the charging document, we then 

determine whether the defendant was nevertheless "actually prejudiced by the inartful 

language which caused a lack ofnotice." ld. at 106. 

The State charged Mr. Lane with failure to register as a sex offender under 

RCW 9A.44.130, alleging: 

[O]n or about May 1,2010 and June 16,2011, in Pend Oreille County, State 

of Washington, the above-named Defendant having been convicted on or 

about the 17th day ofJanuary, 1992, of a sex offense that would be 

classified as a felony under the laws of Washington, to-wit: ATTEMPTED 

RAPE IN SPOKANE COUNTY, WASHINGTON, Cause No. 91-1-01549­

1, and being required to register pursuant to RCW 9A.44.130 on or about or 

between May 1,2010 and June 16,2011, did knowingly fail to register with 

the county sheriffs ofPend Oreille County. 

Clerk's Papers (CP) at 136. 

A person commits the crime of failure to register as a sex offender ifhe or she 

"knowingly fails to comply with any ofthe requirements" ofthe sex offender registration 

statute. Former RCW 9A.44.130(l1)(a) (2006).1 The applicable statute provides that any 

1 The current statute similarly provides that "[a] person commits the crime of 

failure to register as a sex offender ifthe person has a duty to register under 

RCW 9A.44.130 for a felony sex offense and knowingly fails to comply with any ofthe 

requirements ofRCW 9A.44.130." RCW 9A.44.132(1). 

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No. 31137-6-111 

State v. Lane 

individual who "has been convicted of any sex offense ... shall register with the county 

sheriff for the county ofthe person's residence." RCW 9A.44.130(1)(a). The statute 

establishes different time lines for changing registration based upon the sex offender's 

residential status and other circumstances. State v. Peterson, 145 Wn. App. 672, 676, 186 

P.3d 1179 (2008); aff'd, 168 Wn.2d 763,230 P.3d 588 (2010). For example, registration 

requirements vary depending upon whether the offender has a fixed address or is 

homeless. Id. (citing former RCW 9A.44.130(5)(a), (6)(a)). 

Without specifying which particular subsection should have been alleged, Mr. 

Lane asserts that the information is constitutionally deficient because the particular 

time line and residential status are elements of the crime of failure to register, which the 

State must prove for conviction. 

His argument is without merit. The sex offender registration statute establishes 

one punishable offense and imposes only one duty: to register with the sheriff. Peterson, 

168 Wn.2d at 768. '" A person who knowingly fails to register with the county sheriff or 

notify the county sheriff, or who changes his or her name without notifying the county 

sheriff and the state patrol, as required by this section is guilty of a class C felony ifthe 

crime for which the individual was convicted was a felony sex offense.'" Peterson, 145 

Wn. App. at 677-78 (quoting former RCW 9A.44.130(11)(a)). 

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No. 31137-6-111 

State v. Lane 

It is well settled that the various deadlines and procedures for registration set forth 

in the sex offender registration statute do not constitute essential elements of the offense 

of failure to register as a sex offender. State v. Bennett, 154 Wn. App. 202, 207, 224 P.3d 

849 (2010) (quoting Peterson, 145 Wn. App. at 678). In affirming Division One's 

opinion in Peterson based on a different analysis, our Supreme Court held that residential 

status, which determines the deadline for registration, is not an element of the crime of 

failure to register. Peterson, 168 Wn.2d at 774. It explained, "a registrant's residential 

status informs the deadline by which he must register," but "it is possible to prove that a 

registrant failed to register within any applicable deadline without having to specifY the 

registrant's particular residential status." ld. at 772. 

Our analysis is further supported by the Washington Supreme Court's recent 

holding that constitutional requirements that merely define and limit the scope of an 

essential element of a crime do not themselves constitute essential elements that must be 

alleged in the charging document. State v. Allen, 176 Wn.2d 611,294 P.3d 679 (2013). 

In Allen, the court held that the "true threat" concept is not an element of the offense of 

felony harassment, notwithstanding the fact that the State must prove that the threat 

constituted a "true threat" in order to obtain a conviction. ld. at 628-30. Similarly, 

statutes defining and limiting essential elements do not constitute essential elements. 

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No. 31 1 37-6-III 

State v. Lane 

State v. Rattana Keo Phuong, 174 Wn. App. 494, 299 PJd 37 (2013). In Phuong, the 

court rejected a claim that the statutory definition of "restraint" is an essential element 

that must be alleged in the information. 

Here, the information charging Mr. Lane with failure to register as a sex offender 

alleged that he knowingly failed to comply with the requirements ofthe sex offender 

registration statute. Because particular registration requirements under that statute are not 

elements of the offense, the information was constitutionally adequate. 

Mr. Lane additionally argues that because the State charged him under a prior 

enactment ofRCW 9A.44.130 that was amended in 2010, "he has been convicted of an 

offense that did not exist after June 9,2010." Appellant's Br. at 12. Relying on State v. 

Aho, 137 Wn.2d 736, 975 P.2d 512 (1999), he argues that because the amended 

information encompassed the charging period ofMay 1, 2010, to June 16, 2011, "the 

State could only rely upon evidence that pre-dated June 10,2010." Appellant's Reply Br. 

at 1. 

Aho is inapposite here. In that case, a jury found the defendant guilty of a crime 

under a statute that did not take effect until approximately a year and one-half after the 

beginning of the charging period. A unanimous court reversed, stating, "Because the jury 

did not identify when the acts that it found constituted the offense occurred, it is possible 

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No. 31137-6-II1 

State v. Lane 

that [Mr.] Aho has been illegally convicted based upon an act or acts occurring before the 

effective date of the child molestation statute." Id. at 744. 

Thus, in Aha, the due process violation occurred because Mr. Abo was charged 

with a crime that did not exist during part of the time the crime was alleged to have 

occurred. Id. at 742-43. That is not the case here. As noted above, the amended statute 

is substantially similar to the previous statute. The recodification ofthe statute in 2010 

did not change the essential elements of the crime of failure to register. Contrary to Mr. 

Lane's assertion, the crime of failure to register as a sex offender still existed after June 9, 

2010. 

The information was constitutionally adequate. 

Jurv Instructions. Mr. Lane assigns error to several jury instructions, contending 

they do not correctly state the law for the relevant charging period because they reference 

a statute that was amended in June 2010. Although he does not indicate which elements 

are missing, he maintains that the instructions "omitted the essential elements of the 

offense of failure to register as a sex offender" and thereby "deprived him of a fair and 

impartial trial." Appellant's Br. at 11, 9. 

8 

No. 31137-6-III 

State v. Lane 

The instructions at issue provide: 

A person commits the crime of failure to register as a sex offender if 

the person has a duty to register for a felony sex offense and knowingly 

fails to notifY the county sheriff in writing in the new county of residence at 

least 14 days prior to moving to such county and fails to register with such 

county within 24 hours of moving to such county. 

CP at 122, Instruction 11. 

The "to convict" instruction stated: 

To convict the defendant of the crime of failure to register as a sex 

offender, each of the following elements of the crime must be proved 

beyond a reasonable doubt: 

(1) That on or between May 1, 2010 and June 16, 2011, the 

defendant has a duty to register as a sex offender; 

(2) That on or between May 1,2010 and June 16,2011, the 

defendant knowingly failed to comply with the requirement of sex offender 

registration; 

(a) Failed to notifY the Pend Oreille County Sheriffs 

Office in writing at least 14 days prior to moving his 

residence to the county; and 

(b) Failed to register with the Pend Oreille County 

Sheriffs Office within 24 hours of moving his residence to 

Pend Oreille county. 

(3) That the acts occurred in the State of Washington. 

CP at 123, Instruction 12. 

Instruction 15 defined "residence" as: 

9 

No. 31 I 37-6-III 

State v. Lane 

[P]ersonal presence at some place of abode with no present intention of 

definite and early removal and with purpose to remain for undetermined 

period, but not necessarily combined with design to stay permanently. 

"Residence" is also defined as a temporary or permanent dwelling place to 

which one intends to return, as distinguished from a place oftemporary 

sojourn or transient visit. 

CP at 126. 

Mr. Lane did not object at trial to the jury instructions. A failure to object to jury 

instructions at trial usually constitutes waiver of any error, precluding review for the first 

time on appeal. RAP 2.5(a)(3). Generally, "[a]n appellate court may consider a claimed 

error in a jury instruction only if the appellant raised the specific issue by exception at 

trial." Van Hout v. Celotex Corp., 121 Wn.2d 697, 702, 853 P.2d 908 (1993). A trial 

court must be apprised ofthe specific grounds for objection and given an opportunity to 

correct any mistakes in time to prevent an unnecessary retrial. Ifthis does not occur, the 

appellate court cannot review the alleged error. Ryan v. Westgard, 12 Wn. App. 500, 510, 

530 P.2d 687 (1975). This court, however, will reach an error not raised below where the 

error is manifest and affects a constitutional right. To establish that the error was 

manifest, a defendant must make a plausible showing that the error had a practical and 

identifiable consequence in the trial of his or her case. State v. Lynn, 67 Wn. App. 339, 

345, 835 P.2d 251 (1992). 

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No. 31137-6-II1 

State v. Lane 

Mr. Lane does not make a plausible showing of manifest error. Nevertheless, even 

ifwe address the merits, Mr. Lane's argument fails. A trial court properly instructs the 

jury where its instructions (1) permit the parties to argue their case theories; (2) do not 

mislead; and (3) when read as a whole, accurately inform the jury of the applicable law. 

State v. Barnes, 153 Wn.2d 378,382, 103 P.3d 1219 (2005). The instructions at issue 

conform to this standard. 

First, the instructions allowed the parties to argue their theories of the case. The 

State's theory was that Mr. Lane failed to register in the county where he resided. Mr. 

Lane's theory was that that he did not fail to comply because he was already registered in 

the county of his residence, Spokane, and therefore was not required to register with Pend 

Oreille County. 

Additionally, the instructions did not mislead the jury. As explained above, the 

essential elements of the offense of failure to register as a sex offender are the knowing 

failure to comply with the registration requirements set forth in the statute. The ~~to 

convict" instruction included these elements and provided the specific way in which Mr. 

Lane failed to register. Mr. Lane contends that the instructions were a misstatement of 

the law because the State referenced the wrong statute. This argument is without merit. 

While former RCW 9A.44.l30 was recodified as RCW 9A.44.l32, effective June 10, 

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No. 31137-6-111 

State v. Lane 

2010, the essential elements of the crime of failure to register did not change. LAWS OF 

2010, ch. 267, § 3. As noted above, the current statute similarly provides that a person 

commits the crime of failure to register as a sex offender ifhe has a duty to register and 

knowingly fails to comply with any ofthe requirements. RCW 9A.44.132(1). 

Moreover, the jury was properly instructed regarding the definition of "residence" 

and that it must consider the instructions as a whole. When read as a whole, the 

instructions did not misstate the law. Accordingly, the instructions did not relieve the 

State of its burden to prove all the elements of the crime. 

The instructions contained the essential elements ofthe offense of failure to 

register as a sex offender and, thus, were constitutionally adequate. 

Offender Score. Mr. Lane also contends that his 1992 third degree assault 

conviction and 1994 attempt to elude convictions "wash out" under RCW 

9.94A.S2S(2)(c), reducing his offender score from a 9 to 7. He also points out that the 

court incorrectly listed the 1992 third degree assault as an adult offense. The State 

concedes sentencing error and requests the matter be remanded for resentencing to prove 

Mr. Lane's convictions and offender score. 

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No. 31137-6-111 

State v. Lane 

RCW 9.94A.530(2) provides: "On remand for resentencing ... the parties shall 

have the opportunity to present and the court to consider all relevant evidence regarding 

criminal history, including criminal history not previously presented." 

We affirm Mr. Lane's conviction and remand for resentencing. 

A majority of the panel has determined 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, J. 

WE CONCUR: 

Korsmo, C.J. Fearing, 1. 

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