                                                                                                   FILED
                                                                                            C;DURT OF APPEALS
                                                                                                 DIVISION II

                                                                                         onNiiiNelrbi5
    IN THE COURT OF APPEALS OF THE STATE
                                                                                          STATE OF WASHINGTON
                                                        DIVISION II
                                                                                           BY
                                                                                                       IT




 STATE OF WASHINGTON,                                                                  No. 45190 -5,


                                        Respondent,


           v.



 CORY BRENT BREIDT,                                                                 PUBLISHED OPINION


                                        Appellant.




          LEE, J. —         The trial court found Cory Brent Breidt guilty of failure to register as a sex

offender. Breidt appeals, arguing that the failure to register statute is unconstitutionally vague as

applied   to    him because the      statute   does      not   adequately define "   change," " residence," " residence



address,"      or   the   phrase " changes   his   or   her   residence address."    We hold that the individual terms


 change," " residence,"          and " residence address" are sufficiently defined by either prior case law or

their ordinary        meaning.     We further hold that the            entire phrase "   changes his or her residence


address" is sufficiently clear that a person of common intelligence would understand that being

evicted and moving out of a house involved a change of residence address. As a result, we hold

that Breidt has failed to meet his burden to prove the failure to register statute is unconstitutionally

vague as applied to him, and we affirm.


                                                               FACTS


          On August 21, 2012, Breidt registered as a sex offender with the Cowlitz County Sheriff' s

Office    and   listed his     residence on    Southwest Second Avenue in Kelso, Washington. He did                 not
No. 45190 -5 -II




submit a change of address to the Cowlitz County Sheriff between November 1, 2012 and February

4, 2013.


          On November 27, 2012, Kelso Police Detective Rich Fletcher went to that address to verify

that Breidt was residing there. Fletcher made contact with Porfitio Chavez, who identified himself

as a resident of          the   house.      Fletcher was unable to make contact with Breidt at that residence


address and relayed that information to the Cowlitz County Sherriff' s Department. The State

charged Breidt with failure to register as a sex offender.


          Breidt     waived      his   right     to   a   jury   trial   and   the   case proceeded   to   a   bench trial.   At trial,


Chavez testified that he allowed Breidt to reside with him at his house on Southwest Second

Avenue after Breidt got out of prison in August or September 2012. Breidt slept on the couch, got

his mail, took his meals, and kept his belongings there. In mid -October, Chavez gave Breidt two

weeks'     notice    to    move out         by   November 1.             Breidt vacated the residence and took most of his


belongings      with      him.    After November 1, Chavez did not allow Breidt to stay at the residence.

Breidt did not live at the residence after November 1, but Breidt would come over to the house to


 hang    out   for   a   little bit   and   leave."        Report of Proceedings ( RP) at 14. Chavez stated he did not


think Breidt had spent the night at Chavez' s after November 1, but could not remember for sure.

Chavez also testified that after he made Breidt leave the residence, Chavez would put " return to


sender"    on   Breidt'     s mail     that   came        to the   residence.        RP at 16.   If Breidt came by the house and

Chavez had not yet returned the mail, Chavez would give Breidt his mail.


           The trial court found Breidt guilty of failure to register as a sex offender. Breidt appeals.




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                                                   ANALYSIS


          Breidt argues that the sex offender registration statute is unconstitutionally vague as

applied to him because it does not adequately define what constitutes a change of one' s residence

address. We disagree.


          RCW 9A.44. 130( 4)( a) provides:


          If any person required to register pursuant to this section changes his or her
          residence address within the same county, the person must provide, by certified
          mail, with return receipt requested or in person, signed written notice of the change
          of address to the county sheriff within three business days of moving.

          We hold that all of the individual terms that Breidt challenges are defined by either prior

case law or their ordinary meaning. And, the entire phrase " changes his or her residence address"

is sufficiently clear to inform a person of common intelligence what conduct is required or

proscribed.




A.        STANDARD OF REVIEW


          We   review   the constitutionality    of a statute   de   novo.   State v. Watson, 160 Wn.2d 1, 5 -6,


154 P. 3d 909 ( 2007). We presume that statutes are constitutional; the defendant bears the burden


of proving the statute is vague beyond a reasonable doubt. State v. Coria, 120 Wn.2d 156, 163,

839 P. 2d 890 ( 1992).         When the statute at issue " does not involve First Amendment rights, we


evaluate the vagueness challenge by examining the statute as applied under the particular facts of

the   case."   State v. Jenkins, 100 Wn. App. 85, 89, 995 P.2d 1268, review denied, 141 Wn.2d 1011

 2000).


          Due process requires statutes to provide fair notice of the conduct they require or proscribe.

Watson, 160 Wn.2d         at   6. "   A statute fails to provide the required notice if it `either forbids or




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No. 45190 -5 -II




requires the doing of an act in terms so vague that men of common intelligence must necessarily
guess at   its meaning        and   differ   as   to its   application. '       Id. at 7 ( quoting Connally v. Gen. Constr.

Co., 269 U. S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 ( 1926)).                          Therefore, to prove the failure to


register statute is unconstitutionally vague, Breidt " must show beyond a reasonable doubt that

either ( 1) the statute does not define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is proscribed, or (2) the statute does not provide ascertainable


standards of guilt      to   protect against       arbitrary     enforcement."       Coria, 120 Wn.2d at 163.


        Breidt only          argues   that the terms        of   the   statute are not   sufficiently defined.   Specifically,

Breidt argues that the statute is unconstitutionally vague because it fails to define the terms

 residence," " change," and " residence address."                      Br. of Appellant at 5 - 6. In addition, Breidt argues


that the entire phrase " changes his or her residence address" is vague. Br. of Appellant at 7.

        When       a    statute     does     not    define       a   term,    the statute is not automatically deemed

unconstitutionally       vague.       Jenkins, 100 Wn.           App.    at   90. Instead, when terms are not defined in a


statute, they are given their ordinary meaning. Id.

B. "       RESIDENCE"


        Addressing           the term "     residence,"      Breidt recognizes that several cases have applied the


ordinary meaning        of    the term " residence," but appears to argue that, because courts have looked



at " a variety of factors to determine whether or not a particular dwelling qualifies as a residence,"

a person of ordinary intelligence would not be able to understand the meaning of the term

residence.   Br.   of   Appellant      at   6. We disagree.
No. 45190 -5 - II



             The term "       residence"      is commonly          understood as "      a temporary or permanent dwelling

place, abode, or habitation to which one intends to return as distinguished from a place of

temporary          sojourn or     transient   visit."    WEBSTER' S THIRD NEW INT'L DICTIONARY 1931 ( 1969).


In State      v.   Pickett,   95 Wn. App. 475, 478, 975 P. 2d                  584 ( 1999), Division One of this court held


that   it   was    adopting this " ordinary meaning"               of residence: "    the place where a person lives as either


a temporary or permanent dwelling, a place to which one intends to return, as distinguished from

a place of         temporary      sojourn or   transient       visit."
                                                                          We relied on the " ordinary meaning" articulated

in Pickett in Jenkins, 100 Wn.                App.      at   91.   Thus, contrary to Breidt'        s argument, "     residence" has


been sufficiently defined such that an ordinary person would understand that the term to mean a

place where a person intends to return to live as opposed to a place that he or she is just visiting.

             The term " residence" is sufficiently definitive to allow an ordinary person to understand

what the term means. Breidt fails to show beyond a reasonable doubt that the term " residence" is


unconstitutionally vague


C. "          RESIDENCE ADDRESS" AND " CHANGE"


             Breidt    also    argues     that the      statute    does      not   adequately define the terms "         change"   or



 residence address."              We disagree.


             In Jenkins, the term " address" was not defined in the statute. Jenkins, 100 Wn. App. at 90.

We held that the term "[ address] has been defined in Washington as ` the place where mail or other


communications will reach a person,'                          which `    may be      other   than   a   person' s   residence. '   Id.


 quoting State         v.   Morgan, 32 Wn.        App.        236, 237, 646 P. 2d 1387 ( 1982)).             Although the Jenkins


court established           the   plain   meaning    of      the term " address,"      it determined that its use was vague in


former RCW 9A.44. 130( 3) ( 1998) because former RCW 9A.44. 130( 3) required a sex offender to




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No. 45190 -5 - II




provide an address when registering but it did not specify whether the sex offender was required

to provide a mailing address or a residence address. Id. at 91.

            The vagueness problem identified in Jenkins, as it relates to the term " address" does not

exist   here. RCW 9A.44. 130( 4)( a) specifically                       references a " residence address."             Therefore, there


is no confusion regarding whether the address refers to a residence address or a mailing address.'

Breidt accurately             observes         that,    in RCW 9A.44. 130( 4)(             a),   the legislature used the phrase


 residence address" rather             than " fixed           residence,"     a term used elsewhere within RCW 9A.44. 130.


Breidt      asserts       that, therefore, "      residence       address"      must mean         something different than " fixed


residence."          This    assertion    is    correct.       However, we decline to reach the conclusion that Breidt


would like this court to reach based on that assertion.


            As explained above, the courts have already established the plain meaning of the terms

 residence"          and "    address."         The      plain    meaning       of   the   phrase "   residence    address"        can be


determined           by    combining the          plain       meanings        of " residence"      and "   address."      Accordingly,

 residence address" is the designation of "the place where a person lives as either a temporary or

permanent dwelling, a place to which one intends to return, as distinguished from a place of

temporary       sojourn or       transient      visit."       Pickett, 95 Wn. App. at 478.

            Breidt further        argues   that "       change"    is   not   adequately defined in the        statute. "    Change" is


defined      as: "   to   make   different"       or "   to   replace with another."             WEBSTER'   s, supra, at    373.   Breidt


offers no discernible argument as to why the dictionary definition of "change" is not an appropriate



  The legislature corrected the deficiency identified in Jenkins and the relevant part of the statute
now  reads, " A person required to register under this section must provide the following

information          when     registering ... (         ii) complete and accurate residential address or, if the person
lacks   a   fixed    residence, where           he     or she plans     to stay."    RCW 9A.44. 130( 2)( a).



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No. 45190 -5 -II




meaning to assign to the word within the sex offender registration statute or how the ordinary

meaning fails to sufficiently define the term. Thus, Breidt' s argument that the term " change" is


unconstitutionally vague, fails.

D. "       CHANGES HIS OR HER RESIDENCE ADDRESS"


          Similarly, Breidt argues the entire phrase " changes his or her residence address" is vague.

Br. of Appellant at 7. We disagree.


          Breidt points out that, in Jenkins, we held that the phrase " changes his or her residence

address"    was   unconstitutionally         vague.        100 Wn.     App.    at   90.   However, as discussed above,


Jenkins involved a challenge by a homeless sex offender under the prior version of the statute

which   did   not provide specific procedures              for homeless       sex offenders   to   register.   Id. at 91.    The


Jenkins    court noted    that, because the homeless did               not   have   a " residence address,"     people " must




necessarily    guess as   to the types      of   living   situations   that the term ` residence' encompasses."             Id. at


91.    In other words, under the former statute, determining that " residence address" included the

homeless or people without a fixed address, required people to guess that the statute applied to


them.


          But after the legislature amended former RCW 9A.44. 130 to include procedures


specifically for people without a fixed address, the vagueness problem that was identified in

Jenkins no longer exists. If people are without a fixed address, there are provisions that explicitly

apply to them. And, if a person goes from having a residence address to being homeless, it is clear

that the   provisions     regarding         residences     no   longer apply.         Instead, the procedures for their


registration are governed by the procedures for sex offenders with no fixed residence. Therefore,

the phrase "    changes    his   or   her   residence address"         can only apply when a person establishes a




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No. 45190 -5 -II



different   residence or replaces one residence with another.                     Applying the same basic principles

articulated above, the phrase " changes his or her residence address" means when a person makes


a different location " the place where a person lives as either a temporary or permanent dwelling, a

place to which one intends to return, as distinguished from a place of temporary sojourn or transient

visit."   Pickett, 95 Wn. App. at 478.

          Here, Breidt     was     told to move   out of   Chavez'    s   house   by November   1, 2012. He took the


majority of his belongings with him. Chavez testified that Breidt never resided at the house after

he was told to move out. And, although Breidt still received mail at the house, Chavez had started


returning Breidt' s mail to sender. There is no evidence that Breidt intended to return to Chavez' s

home for more than a transient visit. Therefore, Chavez' s home could not be Breidt' s residence.

If Chavez' s home was no longer Breidt' s residence, then Breidt' s residence address had to have


been somewhere else. A person of common intelligence would have understood that being evicted

and moving out of a house was a change of residence address that required updating one' s sex

offender registration with the sheriff' s office.


          Breidt asserts that the phrase " changes his or her residence address" is vague because a


change     of one' s residence "       could occur when a person ceases to pay rent, receives notice of

eviction, sleeps some predetermined number of nights at another location, changes his /her mailing

address, or   leaves    without     intending to return to the   original address."      Br. of Appellant at 7. Breidt


is   correct —there are several ways in which conduct could be considered a change of residence

address.     However, the          requirement    of sufficient       definiteness " does not demand ` impossible


standards of     specificity   or absolute agreement,'       and it permits some amount of imprecision in the


language    of   the   statute."    Jenkins, 100 Wn.   App.      at   90 ( quoting Coria, 120 Wn.2d     at   163).   It is




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No. 45190 -5 -I1




possible that there may be some situations in which it is not absolutely clear that a person has

changed his or her residence address. But, as explained above, the meaning of "changes his or her

residence   address"    is sufficiently clear to provide a person of common intelligence with an

understanding of when a sex offender is required to notify the sheriff's office that he or she has

changed his or her residence.


        Breidt has failed to meet his burden to demonstrate that the sex offender registration statute


is unconstitutionally    vague   as   applied.   Accordingly, we hold that under the current statute,

 changes his or her residence address" is not unconstitutionally vague as applied, and we affirm

Breidt' s conviction.




 We concur:




 ALI




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