IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. BENJAMIN BATSON, JR., Appellant. No. 72158-5-1 DIVISION ONE

PUBLISHED FILED: June 6. 2016



### Cox, J. — Benjamin Batson appeals hisjudgment and sentence that is 

### based on his conviction of failure to register as a sex offender, violating RCW 9A.44.132(1)(b). Among otherthings, he claims that insufficient evidence 

### supports his conviction. Because the State failed in its burden to prove beyond a reasonable doubtthat Batson lacked a "fixed residence" during the charging 

### period, we agree. Accordingly, we reverse and dismiss. 

### This disposition means thatwe need not address the constitutional and otherchallenges raised inthe briefing and Statementof Additional Grounds. Thus, we do notfurther address these challenges. In 1984, the state ofArizona convicted Batson of two counts ofsexual 

### conductwith a minor underthe age of 18, a felony inthat state. In2011, Batson 

### pleaded guilty to failing to register as a sex offender inKing County, Washington.No. 72158-5-1/2 

### InDecember 2011, Batson registered as a sex offenderwiththe King 

### County Sheriff's Office. He listed the St. Martinde Porres Shelter, a homeless shelter program, as his residence. He did not subsequentlyfileany change of address form with the sheriff's office. 

### On April 11, 2013, Batson was released fromcustody inPierce County. 

### He had been charged withthefelony offailing to register as a sex offender 

### during an amended charging period in March 2009. After this release from custody, the State charged Batson inKing County withfailing to register as a sex 

### offender. Italleged that hefailed to complywith the registration requirements for the charging period fromApril 19, 2013 to September8, 2013. At trial, the State specifically argued that Batson lacked a "fixed 

### residence," as defined byRCW 9A.44.128. Accordingly, the State argued that he


### was required to report to the King County Sheriff'sOffice on aweekly basis under RCW 9A.44.130(6)(b). 

### Attrial, the State sought to meet its burden to prove that Batson lacked a 

### "fixed residence" during the charging period with testimonyfrom thedirectorof the St. Martin de Porres Shelterprogram. Batson did not testify at trial. 

### Thejuryconvicted him as charged. Thetrial courtdenied Batson'sCrR 7.4motion to arrest judgment based oninsufficientevidence that he lacked a "fixed residence" during the charging period. Batson appeals.No. 72158-5-1/3

SUFFICIENCY OF EVIDENCE Batson argues that insufficientevidence supports his conviction. We hold thatthe State failed in its burden to prove beyond a reasonable doubtthat Batson lacked a "fixed residence," which is the basis for weekly reporting. Accordingly, there is insufficient evidence to supportthis conviction. Evidence is sufficientwhen any rational trier offact could find beyond a 

### reasonable doubtthe essential elements ofthe crime.1 When considering a sufficiency challenge, we deferto thejury's determination as to the weight and 

### credibility of the evidence.2 "In claiming insufficientevidence, the defendant necessarily admits the truth ofthe State's evidence and all reasonable inferences 

### that can be drawn from it."3 Whetherevidence is sufficient is a question of constitutional law that we review de novo.4 RCW 9A.44.130(1)(a) requires certain sex offenders to registerwith the 

### county sheriff. RCW 9A.44.130 has many detailed procedural requirements. One such requirement is that offenders who lack a "fixed residence" must report 

### weekly to the sheriff of the propercounty.5 RCW 9A.44.132 criminalizes failing to register as a sex offender. To obtain a conviction underthis statute, the State must prove thatthe offender had

1 State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). 2State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). 3 State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014). 4State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). 5RCW9A.44.130(6)(b).No. 72158-5-1/4

a duty to register and did not comply with RCW 9A.44.130's registration 

### requirements.6 In some circumstances, this requires thatthe State prove a negative. For example, in State v. Presteqard, the State alleged that Keith Prestegard violated 

### RCW9A.44.130 byfailing to register his change ofaddress.7 Thus, "the State 

### had to prove a negative: that Prestegard did not reregisterafter he moved."8 Here, the State proposed and the court gave Instruction 8, the "to-convict" instruction, which stated in relevant part: To convictthe defendant ofthe crime offailure to register as a sex offender, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) Thatthe defendantwas previously convicted of a felony sex offense; (2) That due to this conviction, the defendantwas required to register inthe State ofWashington as a sex offender between April 19, 2013, and September 8, 2013; and (3) That during that time period, the defendant knowingly failed to comply with a requirement of sex offender registration: A requirement of sex offender registration is that a person who lacks afixedresidence must report weekly, in person, to the sheriffof 

### the county where he orshe is registered.191 Instruction 7 was similarly worded, stating: A person commits the crime offelony failure to register as a sex offenderwhen that person, having been convicted of a felony sex offense for which he is required to register as a sex offender

6RCW9A.44.132. 

### 7 108Wn. App. 14, 18, 28 P.3d 817 (2001). 8Id, at 19. 

### 9Clerk's Papers at449 (emphasis added). 4No. 72158-5-1/5 with the county sheriff's office, knowingly fails to comply with the requirement of sex offender registration. A requirement of sex offender registration is that a person who lacks a fixedresidence must report weekly, in person, to the 

### sheriff of the county where he or she is registered.1101 The State also proposed and the court gave Instruction 13, which stated: A fixed residence means a building that a person lawfully 

### and habitually uses as livingquarters a majority ofthe week. Uses 

### as living quarters means to conduct activities consistentwiththe common understanding ofresiding, such as sleeping; eating; keeping personal belongings; receiving mail; and paying utilities, rent, or mortgage. 

### Ashelter program may qualify as a residence provided it is a shelter program designed to provide temporary living accommodations forthe homeless, provides an offenderwith a 

### personally assigned living space, and the offender is permitted to 

### store belongings in the living space.[11] The term "fixedresidence" is an importantfocus of both the "to convict" instruction and Instruction 13. A lack of sufficient evidence of a "fixed residence" 

### is fatal to the conviction. Because this term is defined by statute, we look to the 

### relevant statutory language to determine its meaning. 

### Construction of a statute is a question oflawthat wereview de novo.12 Our fundamental objectivein reading a statute is to ascertain and carry out the 

### legislature's intent.13 Ifa statute's meaning isplain, wegive effect to that

10 Id. at448 (emphasis added). 11 Id. at 454. 12 Citizens All, for Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 435, 359 P.3d 753 (2015).

13 Id.No. 72158-5-1/6 

### meaning.14 When a statute defines a term, that definitioncontrols.15 "In criminal cases, we apply the rule of lenity to ambiguous statutes and interpretthe statute in the defendant's favor."16 In RCW 9A.44.128(5), the legislature defined the term "fixed residence" for the purposes of RCW 9A.44.130 in relevant part as follows: "Fixed residence" means a building that a person lawfully and habitually uses as living quarters a majority ofthe week. Uses as living quarters means to conduct activities consistentwith the common understanding of residing, such as sleeping; eating; keeping personal belongings; receiving mail; and paying utilities, rent, ormortgage. . . . A shelterprogram mayqualifyas a 

### residenceprovidedit is a shelterprogram designedto provide temporary livingaccommodationsfor the homeless, provides an offenderwith apersonallyassignedlivingspace, andthe 

### offenderis permittedto store belongings in the livingspaced As this definition states, a shelter program qualifies as a "fixed residence" if itmeets three criteria. First, itmust be designed to provide temporary living accommodations for the homeless. Second, itmust provide an offenderwith a personally assigned living space. Finally, the offender must be permitted to store 

### belongings in the living space.18 Notably, "[Ijacks a fixed residence" is defined as: mean[ing] the person does not have a living situation that meets the definition ofa fixed residence and includes, but is not limited to, a shelterprogram designed to provide temporary living
14 Id, 15 State v. Sullivan, 143 Wn.2d 162, 175, 19 P.3d 1012 (2001). 16 State v. Conover, 183 Wn.2d 706, 712, 355 P.3d 1093(2015). 

### 17 (Emphasis added.) 18 RCW 9A.44.128(5).No. 72158-5-1/7 accommodations for the homeless, an outdoor sleeping location, or 

### locations where the person does nothave permission to stay.[19] Thus, a shelter program thatdoes not meetthe definition of a "fixed residence" does not qualify for purposes ofthe registration requirements. Inthis case, the sole evidence about the St. Martin de Porres Shelter 

### program was provided at trial by its director. Notably, both sides point to this evidence in their appellate briefing to supportconflicting arguments. Accordingly,

we quote the material portions ofthis evidence: 

### [The State:] How does the shelter [program] serve [clients]? [Shelter Director:] We provide mats on the floor to come sleep at night. We are open from 6:30 at night to 7:30 inthe morning. At 7:30, we are closed for the day untilwe open back up at night. We 

### have nursing services there, drug and alcohol counselors, mats on the floor to sleep on, showerfacilities, and evening meal[s]. 

### [The State:] When you say "mats on the floor to sleep on," is that in a common sleeping area? [Shelter Director:] Right. Yes, it is. 

### [The State:] These are not beds, but pads on the floor? [Shelter Director:] Yes. Sleeping mattresses. 

### [The State:] How many mats are there? [Shelter Director:] 212. 

### [The State:] Arethese mats filled on a firstcome, firstserved basis? [Shelter Director:] Firstcome, firstserved for your first night. Once you are there, that's your matto stay on as long as you want. [The State:] What if you don't come?

19 RCW 9A.44.128(9).No. 72158-5-1/8 

### [Shelter Director:] Ifyou don't show up, we will give to—we turn away people every night. Ifyou don't show up on a given night, we give it to someone else. Ifyou access the shelter, you have to go through a waiting list. [The State:] What do people do with belongings during the day? [Shelter Director:] During the day, we do have storage boxes and 

### hooks that get assigned to them. Some leave items there during the day and offthe streets so they don't have to keep bringing it back, trying to walk around. And then we have access three times a night that we open up the storage. 

### [The State:] Can you tell me: Are there cubbies and bins for storage also? [Shelter Director:] Yeah. 

### [The State:] How do those work? 

### [Shelter Director:] Same way. Same way. Cubbies down inthe main floor. Then there is bigger ones upstairs. 

### [The State:] Do people enter into a formal agreementto livethere, or a written agreement? 

### [Shelter Director:] No, no, because it's supposed to be a temporary shelter. Itcan turn outto be permanent, but all we have is people who play by the rules. 

### [The State:] Arethere some people that stay there for a long time? [Shelter Director:] Yes, there is. 

### [The State:] Dothey stayfor a long time because they come every night and have a mat? 

### [Shelter Director:] Come every night and have a mat, yes. One of the biggest reasons for being there is lack ofaffordable housing. 

### [The State:] Do people have a personallyassigned sleeping space?

8No. 72158-5-1/9 

### [Shelter Director:] It'sjustthat once they get a mat assigned to them, once they get one assigned to them, it's theirs. It's theirs until they miss a night. [The State:] During the day, people aren't allowed to stay there; is that right? [Shelter Director:] No. We have one exception to that the landlord has allowed. That's a very small program, 10 guys during the 

### dayJ201 Here, the question is whetherthis uncontroverted evidence aboutthe St. 

### Martin de Porres Shelter program is sufficientto establish that Batson lacked a "fixed residence" during the charging period. Looking at the evidence inthe light mostfavorable to the State, we conclude that itfailed to prove that he lacked a "fixed residence," as thejury instructions required. This term requires that an accused does not have a living situation that meets the definition of a "fixed residence."21 Thus, ourfocus is on the second 

### paragraph ofInstruction 13, which is based on RCW 9A.44.128(5). Focusing on that paragraph, there is no dispute thatthe St. Martinde 

### Porres Shelterprogram "provide[s].
. .temporary living accommodations for the homeless."22 The director's testimony establishes that its clients eat, sleep, and 

### store personal belongings at the shelterprogram—"activities consistentwith the

20 Report of Proceedings (June 17, 2014) at 111-14. 21 RCW 9A.44.128(5). 22 Id.No. 72158-5-1/10



### common understanding ofresiding."23 And the program's services are intended to be temporary. We next considerwhetherthe shelter program "provides
... a personally 

### assigned living space."24 We conclude thatthe evidence in this record establishes this. Here, the directortestified in direct response to the prosecutor's question that clients get sleeping mats assigned to them on a first-come, first-served basis. Significantly, once clients receive an assigned mat, it's theirs to keep until they miss a night. In short, the sleeping mats, inthis case, constitute the personally assigned living space for clients until they miss a night. The State argues thatthis shelter program does not personally assign 

### living spaces because ithas a common living area.25 But the term "living space" inthe statute does not exclude common living areas. And it is not surprising to this courtthat shelterprograms may often provide services in a common living

area. Inourview, a reasonable interpretation of "livingspace" inthisjury instruction and statute includes the assignment ofsleeping mats underthe circumstances ofthis case. Further, even ifwe were to conclude thatthe term "livingspace" could be 

### reasonably interpreted to exclude common living areas, the statute would be

23 Id, 24 Id. 25 Brief of Respondent at 33-34. 10No. 72158-5-1/11 ambiguous. Thus, underthe rule of lenity applicable to criminal statutes, we 

### would interpretthe statute in Batson's favor.26 In any event, the State fails to support its argument by any citation to authority. We assume ithas found none. We turn to the final clause ofthe second paragraph ofthe instruction. The question is whetherthe clients ofthe shelter program are "permitted to store belongings inthe living space." We read this requirement to be one of proximity of storage for personal belongings to the personally assigned living space. A close reading ofthe record shows that the State failed to fulfill its burden to show a lack of such proximity. When questioned by the prosecutor on this point, the director testified that 

### clients "have storage boxes and hooks that [are] assigned to them."27 They are provided access to this storage three times nightly. He further testified that "cubbies and bins" are also provided to clients. 

### Cubbies and bins are both "[on] the mainfloor" and "biggerones [are] upstairs."28 This record simply does not showwhetherthe storage areas for personal belongings—cubbies and bins—on the main floor ofthe shelter program lack proximity to the assigned sleeping mats located there. More importantly, since the director did nottestify about Batson's specific situation, there is simply no

26Conover, 183 Wn.2d at 712. 

### 27 Report ofProceedings (June 17, 2014) at 112. 28 \± 11No. 72158-5-1/12 evidence to fill this void. Thus, the State failed in its burden to show Batson lacked a "fixed residence." The State also argues thatthe shelter program was not a "fixed residence" because residents could not store personal belongings in their assigned living spaces—assigned mats in this case. The State concedes thatthe shelter provided storage spaces for its clients. But itargues that because this storage
was in a separate room, which the residents could access only three times a night, the shelter did not provide "a personally assigned living space where a 

### person ispermittedto store belongings."29 The State overlooks the fact that storage was also provided on the main floor, where the assigned sleeping mats were located, notjust at another location. And itdoes notfill the evidentiary void regarding Batson's specific situation that wejust discussed. After determining thatthe shelterprogram is a "fixed residence" underthe 

### statute, the next question is whether sufficient evidence supports finding that Batson did not live in a "fixed residence." 

### Here, the State presented no direct evidence ofwhere Batson was living 

### during the charging period from April 19, 2013 to September 8, 2013. The State argues that the following evidence allowed thejury to infer that Batson was not living in a "fixed residence" during the charging period: [B]etween 2009 and 2013 [Batson] never asserted that he had a fixed residence; each time he provided an address itwas a shelter 

### for homeless persons (or a jail); the last address Batson provided to
29 Brief of Respondent at 34 (emphasis added).

12No. 72158-5-1/13 the sheriff's office was a homeless shelter; and Batson had filed 

### change ofaddress forms on several occasions—thejury could infer 

### that he would have done so again if he had a new address.[30] This evidence is insufficientfor several reasons. First, the State conflates homelessness with lacking a "fixed residence." But as we explained earlier, the statute clearly specifies that some shelter programs are "fixed residences." 

### Thus, whether Batson was "homeless" is immaterial. The relevant question is whether he lacked a "fixed residence." And as explained earlier, the St. Martin de Porres Shelter program qualified as a "fixed residence." The State also argues that thejury could inferthat Batson was not in a "fixed residence" because it could infer that he was not in the St. Martin de Porres Shelter.31 Not so. The State relies on two pieces ofevidence for this inference. First, that Batson was released from Pierce Countyjail on April 11, 2013. Second, itrelies

on the shelterdirector's testimony that the shelter program had a waiting list. With these two pieces ofevidence, the State argues that thejury could infer that 

### Batson lost his spot atthe shelter program and was unable to livethere again. 

### This inference is purely speculative. Batson was released from jail on April 11, 2013. The charging period in this case begins on April 19, 2013, eight 

### days later. The State did not introduce evidence about how long it wouldtake Batson to reenter the shelter after his release. Thus, there is no reasonable



### 30 id, at 36-37. 31 Id. at 35. 13No. 72158-5-1/14 

### basis forthejury to inferthat Batson would not have been able to reenterthe shelter program during the eight day period at issue. Moreover, it is not enough for the State to show that Batson did not reside inthe St. Martin de Porres Shelterprogram. The State had to prove that Batson 

### did not have any "fixedresidence." IfBatson resided in a different "fixed residence," he was not subjectto the weekly reporting requirement. This record is simply silent on this point. In sum, there is insufficient evidence for a jury to have found that Batson 

### lacked a "fixedresidence" during the charging period. We must reverse his 

### conviction. Because doublejeopardy prohibits the Statefrom retrying him on this 

### charge, we dismiss with prejudice.32
We reverse and dismiss. 

# 4tt,J~-

WE CONCUR: 

# Y^y^^Ov

32 State v. Fuller, 185Wn.2d 30, 36, 367 P.3d 1057 (2016). 14