### FILED DECEMBER31, 2013 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III
INTHECOURTOFAPPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) No. 31137-6-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) CORYLEE LANE, ) ) Appellant. ) KULIK, 1.

- Cory LeeLane appeals his conviction for failing toregister as a sex offender. He contends that boththe information charginghim withthe offense andthe jury instructions are constitutionally deficientbecausethey didnot include any ofthe statute'sparticularregistrationrequirements, which arebased uponthe offender's residential status and othercircumstances. Mr. Lane also appeals his sentence. We affirm the conviction for failing toregister as a sex offender. Weremand for resentencing andthe State concededthis remand is properto correctthe miscalculationin 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 tothe Pend Oreille County Sheriff's Office. The State filed an amended information chargingMr. Lane with failure to register
as a sex offender. Attrial, the Statepresented evidence from multiple witnesses that Mr. Lanewas 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 herNewport home. Ajury found him guilty offailure 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 of90 months. He appeals. ANALYSIS 

### Information-EssentialElements of Failure to Registeras 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 ofthe sex registration statute. He contendsthese requirements,
2No. 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 ifit 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 ofthe accusation."); CONST. art. I, 

### § 22 (amend. 10) ("In criminal prosecutions the accused shall have the right
...to demand the nature and cause ofthe accusation against him."); State


### v. Kjorsvik, 117 Wn.2d 93,97,812 P.2d 86 (1991). "Thepurpose ofthis 'essential elements' rule is to give notice ofthe nature and cause ofan accusation against the accused so that a defense can beprepared." State v. Campbell, 125 Wn.2d 797,801,888 P.2d 1185 (1995). The charging document need not use the exactwords ofthe statute. Kjorsvik, 117 Wn.2d at 108. Rather, we evaluate whether "all the words used would reasonably apprise an accused ofthe elements ofthe crime charged." Id. at 109. "A challenge to the sufficiency ofa charging document is ofconstitutional 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 inthe trial court, we liberally construe the charging document in favor ofvalidity on appeal. Kjorsvik, 117 Wn.2d at 105. In


### 3No. 31137-6-III State 

### v. Lane liberally construing the charging document, we ask whether the elements ofthe offense "appear in any form, orby 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 "actuallyprejudiced 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 aboutMay 1,2010 and June 16,2011, in Pend Oreille County, State ofWashington, the above-named Defendanthaving been convicted on or about the 17th day ofJanuary, 1992, ofa sex offense that would be classified as a felony underthe laws ofWashington, 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 offailure to register as a sex offender ifhe or she "knowingly fails to comply with any ofthe requirements" ofthe sex offenderregistration statute. Former RCW 9A.44.130(l1)(a) (2006).1 The applicable statute provides that any
1The current statute similarlyprovides that "[a] person commits the crime of failure toregister 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 complywith any ofthe requirements ofRCW9A.44.130." RCW 9A.44.132(1). 

### 4No. 31137-6-111 State 

### v. Lane
individual who "has been convicted ofany sex offense
... shall register with the county sherifffor the county oftheperson's residence." RCW 9A.44.130(1)(a). The statute establishes differenttimelines 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). Forexample, 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 timeline and residential status are elements ofthe crime offailure to register, which the State mustprove for conviction. His argument is withoutmerit. The sex offenderregistration 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 sheriffor notify the county sheriff, orwho changes his orher name without notifying the county sheriffand the statepatrol, as required by this section is guilty ofa 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)).


### 5No. 31137-6-111 State v. Lane
It is well settled that the various deadlines and procedures for registration set forth in the sex offenderregistration statute do not constitute essential elements ofthe offense offailure to register as a sex offender. State v. Bennett, 154 Wn. App. 202, 207, 224 P.3d 849 (2010) (quotingPeterson, 145 Wn. App. at 678). In affirmingDivision One's opinion inPeterson based on a different analysis, our Supreme Courtheld that residential status, which determines the deadline for registration, is not an element ofthe crime of failure to register. Peterson, 168 Wn.2d at 774. It explained, "aregistrant's residential status informs the deadline by which he must register," but "itis possible to prove that a registrant failed to register within any applicable deadline withouthaving to specifY the registrant's particularresidential status." ld. at 772. Ouranalysis is further supported by the Washington Supreme Court's recent holding that constitutional requirements thatmerely define and limit the scope ofan essential element ofa crime do notthemselves constitute essential elements that must be alleged in the charging document. State v. Allen, 176 Wn.2d 611,294 P.3d 679 (2013). InAllen, the court held that the "true threat" concept is not an element ofthe offense of felony harassment, notwithstanding the fact that the State mustprove thatthe threat constituted a "true threat" in orderto obtain a conviction. ld. at 628-30. Similarly, statutes defining and limiting essential elements do not constitute essential elements.
6No. 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 thatthe 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. Becauseparticularregistration requirements under that statute are not elements ofthe 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, "hehas been convicted ofan 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 thatpre-datedJune 10,2010." Appellant's Reply Br. at 1. Aho is inapposite here. In that case, ajury found the defendant guilty ofa crime under a statute that did not take effect until approximately a year and one-halfafter the beginning ofthe charging period. A unanimous courtreversed, stating, "Becausethejury did not identify when the acts that it found constituted the offense occurred, it is possible
7No. 31137-6-II1 State v. Lane
that [Mr.] Aho has been illegally convicted based upon an act or acts occurringbefore the effective date ofthe child molestation statute." Id. at 744. Thus, in

### Aha, the due process violation occurred because Mr. Abowas charged with a crime that did not exist during part ofthe time the crime was alleged to have occurred. Id. at 742-43. That is notthe 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 ofthe crime offailure to register. Contrary to Mr. Lane's assertion, the crime offailure to register as a sex offender still existed after June 9, 2010. The information was constitutionally adequate. JurvInstructions. Mr. Lane assigns errorto severaljury instructions, contending they do not correctly state the law for the relevant chargingperiod 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 ofthe offense offailure to register as a sex offender" and thereby "deprivedhim ofa fair and impartial trial." Appellant's Br. at 11, 9.



### 8No. 31137-6-III State v. Lane
The instructions at issue provide: A person commits the crime offailure 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 sheriffin writing in the new county ofresidence at least 14 days priorto moving to such county and fails to register with such county within 24 hours ofmovingto such county. CP at 122, Instruction 11. The "to convict" instruction stated: To convict the defendant ofthe crime offailure to register as a sex offender, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on orbetween 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 ofsex offender registration; (a) Failed to notifY the Pend Oreille County Sheriffs Office in writing at least 14 days prior to movinghis residence to the county; and (b) Failedto register with the Pend Oreille County Sheriffs Office within 24 hours ofmoving his residence to Pend Oreille county. (3) Thatthe acts occurred in the State ofWashington. CP at 123, Instruction 12. Instruction 15 defined "residence" as:

9No. 31 I37-6-III State v. Lane [P]ersonal presence at some place ofabode 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 orpermanent dwellingplace to which one intends to return, as distinguished from a place oftemporary sojourn ortransient visit. CP at 126. Mr. Lane did not object attrial to thejury instructions. A failure to objecttojury instructions at trial usually constitutes waiver ofany error, precludingreview for the first time on appeal. RAP 2.5(a)(3). Generally, "[a]n appellate court may consider a claimed
error in ajury instruction only ifthe 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 thatthe errorwas manifest, a defendantmust make a plausible showing that the error had apractical and identifiable consequence in the trial ofhis orher case. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).

10No. 31137-6-II1 State v. Lane
Mr. Lane does notmake a plausible showing ofmanifest error. Nevertheless, even ifwe address the merits, Mr. Lane's argument fails. A trial courtproperly 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 thejury ofthe 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 ofthe case. The State's theory was that Mr. Lane failed to register in the county where he resided. Mr. Lane'stheory was that that he did not fail to comply because he was already registered in the county ofhis residence, Spokane, and therefore was not required to register with Pend Oreille County. Additionally, the instructions did not mislead thejury. As explained above, the essential elements ofthe offense offailure 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 thatthe instructions were a misstatement of the lawbecause 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,
11No. 31137-6-111 State v. Lane 2010, the essential elements ofthe crime offailure 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 offailure 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, thejurywas properly instructed regardingthe 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 notrelieve the State ofits burden toprove all the elements ofthe crime. The instructions containedthe essential elements ofthe offense offailure 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 alsopoints outthat the court incorrectly listedthe 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.

12No. 31137-6-111 State v. Lane
RCW 9.94A.530(2)provides: "Onremand for resentencing
...the parties shall have the opportunity to present andthe court to consider all relevant evidenceregarding criminal history, including criminal history notpreviouslypresented." We affirm Mr. Lane's conviction and remand for resentencing. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for publicrecord pursuantto RCW 2.06.040. Kulik, 

### J. WE CONCUR:

Korsmo, C.J. Fearing, 1.

13