                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          March 7, 2017



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON                                                No. 48526-5-II

                        Respondent,

        v.

 BRIAN CHRISTOPHER COZAD,                                     UNPUBLISHED OPINION

                        Appellant.


       SUTTON, J. — A jury found Brian C. Cozad guilty of failure to register as a sex offender.

Cozad appeals arguing that the trial court erred by instructing the jury as to the registration

requirements for a sex offender with a fixed residence. Cozad also argues that the trial court erred

by refusing to give a jury instruction on the necessity defense. The evidence supported giving an

instruction on the registration requirements for a sex offender with a fixed residence and the

evidence did not support an instruction on a necessity defense. Accordingly, the trial court did not

err. We affirm.

                                              FACTS

       The State charged Cozad with one count of failing to register as a sex offender between

April 18, 2014 and May 28, 2014. A jury trial began on December 21, 2015.
No. 48526-5-II


       At trial, Community Corrections Officer Sandy Heurion testified that she was supervising

Cozad based on a 2008 conviction for failing to register as a sex offender and a 2011 conviction

for failure to register as a sex offender. Heurion testified that she informed Cozad of all necessary

sex offender registration requirements.

       Clark County Sheriff’s Office Detective Barry Folsom is a detective assigned to the sex

offender registration unit. The sex offender registration unit is responsible for monitoring all sex

offenders required to register in Clark County. Detective Folsom testified that all sex offenders

who register as homeless or transient are required to check in in person with the sex offender

registration unit once a week. All transient sex offenders required to register are required to check

in personally at the sex offender registration unit every Tuesday between 6:00    AM   and 4:00 PM.1

Detective Folsom also testified that, if an offender who has registered as transient obtains a fixed

residence, the offender is required to notify the sex offender registration unit of the change of

address.

       Detective Folsom testified that, on April 18, 2014, Cozad registered a change in address

from a fixed residence to homeless. When Cozad registered as homeless Folsom notified him, in

writing, of the weekly in person check in requirement. Detective Folsom also testified that Cozad

did not check in in person when required on April 22, April 29, or May 6.




1
  Although the sex offender registration unit has a direct line and they encourage offenders to call
if they have problems or questions, calling in is not an adequate substitute for in person check in.



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No. 48526-5-II


          Cozad testified that before April 18 he was living in an apartment with his girlfriend.2

However, the apartment manager asked him to leave because the Department of Corrections was

regularly contacting him. Cozad stated that “[a]t that point in time I registered as homeless, but

that wasn’t entirely accurate.” 1 Report of Proceedings (RP) at 142. Cozad continued sleeping at

the apartment with his girlfriend because he left before the apartment manager arrived at the

building and did not get home until after the apartment manager left for the day. Cozad was also

giving his girlfriend money for the apartment.

          Cozad also testified that he was working for a “temp agency” at the time. 1 RP at 143. On

April 21 Cozad began working a job that required him to work from 5:00            AM   to 7:30   PM   seven

days a week. Because of his work schedule, Cozad called the sex offender registration unit

Tuesday evenings after he got off work to report his whereabouts for the previous week. Cozad

testified that if he had a cell phone on the job site, he would be fired. He also testified that it was

difficult to find employment as a felon.

          After testimony concluded, Cozad asked the trial court to give the pattern jury instruction

on a necessity defense. Washington Pattern Jury Instruction (WPIC) 18.02 states:

          Necessity is a defense to a charge of [failure to register as a sex offender] if

          (1) the defendant reasonably believed the commission of the crime was necessary
          to avoid or minimize a harm; and

          (2) harm sought to be avoided was greater than the harm resulting from a violation
          of the law; and the [sic]

          (3) the threatened harm was not brought about by the defendant; and



2
    The girlfriend Cozad was living with at the time is now his wife.



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No. 48526-5-II


       (4) no reasonable legal alternative existed.

               The defendant has the burden of proving this defense by a preponderance
       of the evidence. Preponderance of the evidence means that you must be persuaded,
       considering all the evidence in the case, that it is more probably true than not true.
       If you find that the defendant has established this defense, it will be your duty to
       return a verdict of not guilty [as to failure to register as a sex offender].

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 18.02, at 292

(4th ed. 2016). The trial court refused to give the necessity instruction because the trial court found

that Cozad had presented insufficient evidence to support the instruction.

       The State proposed jury instructions which included both the registration requirements for

transient sex offenders and the change of address requirements if a sex offender establishes a fixed

residence. The trial court determined the evidence supported the additions and gave both the

State’s proposed instructions. The instruction on registration requirements read:

               A person who is required to register as a sex offender must comply with
       certain requirements of registration, including the following:

             (1) the requirement that the defendant, lacking a fixed residence, report
       weekly, in person, to the sheriff of the county where the defendant is registered[.]

              (2) the requirement that the defendant, lacking a fixed residence, comply
       with a request from the county sheriff for an accurate accounting of where the
       defendant stayed during the week.

               (3) the requirement that the defendant provide the following information
       when registering: complete and accurate residential address or, if the defendant
       lacks a fixed residence, where the defendant plans to stay.

               (4) the requirement that the defendant provide, in person or by certified mail
       with return receipt requested, signed written notice of a change of address within
       three business days of the change of address to the county sheriff with whom the
       defendant is registered.




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No. 48526-5-II


Clerk’s Papers (CP) at 35. The instruction defining fixed residence read:

                Fixed residence means a building that a person lawfully and habitually uses
       as living quarters a majority of the week. Uses as living quarters means to conduct
       activities consistent with the common understanding of residing, such as sleeping;
       eating; keeping personal belongings; receiving mail; and paying utilities, rent, or
       mortgage.

               Lacks a fixed residence means the person does not have a living situation
       that meets the definition of a fixed residence and includes, but is not limited to, a
       shelter program designed to provide temporary living accommodations for the
       homeless, an outdoor sleeping location, or locations where the person does not have
       permission to stay.

CP at 36.

       The jury found Cozad guilty of failure to register as a sex offender. The trial court

sentenced Cozad to a standard range sentence of 25 months. Cozad appeals.

                                           ANALYSIS

        Cozad argues that the trial court erred by giving the jury instructions related to a fixed

residence because the evidence did not support the allegation that Cozad had a fixed residence.

Cozad also argues that the trial court erred by refusing to give the instruction on the necessity

defense because the instruction was supported by the evidence in the record. Here, evidence

supported giving the instructions on fixed residence and the evidence did not support giving an

instruction on the necessity defense. Accordingly, the trial court did not err, and we affirm.




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No. 48526-5-II


                                       STANDARD OF REVIEW

       We review whether evidence supports giving a jury instruction for an abuse of discretion.

State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998); State v. Green, 182 Wn. App. 133,

152, 328 P.3d 988 (2014).3 A trial court abuses its discretion only where its decision is manifestly

unreasonable or based on untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482

P.2d 775 (1971). A party is entitled to a jury instruction on a theory of the case when evidence

exists in the record to support the party’s theory. State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d

902 (1986). A party is not entitled to an instruction that is not supported by the evidence. Hughes,

106 Wn.2d at 191.

A. FIXED RESIDENCE INSTRUCTIONS

       Cozad argues that the evidence did not support giving the instructions related to the

registration requirements for registration related to an offender who has a fixed residence because

Cozad’s alleged residence—his girlfriend’s apartment—did not meet the definition of fixed




3
  Cozad alleges that we review jury instructions de novo. Br. of App. at 6. When the alleged error
is an error of law, we review jury instructions de novo. State v. Wiebe, 195 Wn. App. 252, 255,
377 P.3d 290 (2016). However, when the alleged error is based solely on the sufficiency of the
evidence, the appropriate standard of review is abuse of discretion. See also, State v. Fleming, 155
Wn. App. 489, 503, 228 P.3d 804 (2010) (this court generally reviews the trial court’s choice of
jury instructions for an abuse of discretion, but it reviews alleged errors of law in jury instructions
de novo).
         Cozad also argues that he received ineffective assistance of counsel based on counsel’s
failure to object to the State’s proposed jury instructions. However, because the jury instructions
were proper, counsel’s performance was not deficient. Without deficient performance, a defendant
cannot establish an ineffective assistance of counsel claim. State v. McFarland, 127 Wn.2d 322,
334-35, 899 P.2d 1251 (1995).



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No. 48526-5-II


residence. Specifically, he argues that the apartment could not be a fixed residence because Cozad

did not have permission to stay at the apartment. Br. of App. at 9.

        RCW 9A.44.128(5) defines “fixed residence” as “a building that a person lawfully and

habitually uses as living quarters a majority of the week.” And under RCW 9A.44.128(9) a person

“lacks a fixed residence” if the person is in “locations where the person does not have permission

to stay.” Cozad argues that the apartment was not a fixed residence because the apartment manager

asked Cozad to leave the apartment. However, Cozad cites no authority for the proposition that

when a person has the permission of a tenant to be in the apartment and no eviction action has been

taken, simply being asked to leave by the apartment manager renders his or her presence in the

apartment unlawful or not permissive. In fact, Cozad’s argument is contrary to current law. City

of Bremerton v. Widell, 146 Wn.2d 561, 570-73, 51 P.3d 733 (2002) (holding a tenant’s invitation

overcomes an objection by a landlord such that a tenant’s invitation is a defense to criminal

trespass).

        The rest of Cozad’s testimony establishes that Cozad slept at the apartment almost every

night and contributed money to rent. Accordingly, Cozad’s testimony establishes evidence

supporting the State’s theory that Cozad had a fixed residence at the time that he registered as

transient. Accordingly, evidence supported the State’s theory that Cozad failed to comply with

the registration requirements that he provide a complete and accurate address, or that he failed to

appropriately notify the sheriff’s office of a change in address once the apartment was reestablished

as his fixed residence. The trial court did not abuse its discretion when it gave the State’s proposed

jury instructions related to the registration requirements for a fixed residence.




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No. 48526-5-II


B. NECESSITY DEFENSE

        Cozad also argues that the trial court erred by refusing to give his proposed instruction on

necessity because the instruction was supported by sufficient evidence in the record. We disagree.

Here, the record did not support giving an instruction on the necessity defense. Accordingly, the

trial court did not err by refusing to give the instruction.

        A defendant may assert the common law defense of necessity “when circumstances cause

the accused to take unlawful action in order to avoid a greater injury.” State v. Jeffrey, 77 Wn.

App. 222, 224, 889 P.2d 956 (1995) (citing State v. Diana, 24 Wn. App. 908, 913, 604 P.2d 1312

(1979)). To establish a necessity defense, the defendant must establish that (1) he or she believed

the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to

be avoided was greater than the harm caused by the violation of the law, (3) the circumstances

have not been brought about by the accused, and (4) no legal alternative existed. Jeffery, 77 Wn.

App. at 225 (citing State v. Gallegos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994)). Cozad’s

proposed instruction, WPIC 18.02, articulated the required elements of a necessity defense.

        Cozad cannot show that substantial evidence supports a necessity defense. First, Cozad

cannot establish that commission of the crime was necessary to avoid or minimize harm. Cozad

alleges that he was required to violate the check in requirements “in order to avoid the greater harm

of him becoming unemployed and permanently homeless” and because “he would lose his job, his

income, and his (unlawful) occasional residence.” Br. of App. at 15, 17. But the evidence

presented at trial simply does not support Cozad’s assertion. The only evidence presented at trial

was (1) Cozad was working from 5:00 AM and 7:30 PM and (2) he would be fired for having a cell

phone at the job site. There was no testimony establishing that Cozad would have been fired if he



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No. 48526-5-II


had arranged to arrive at work a few hours later one day a week, or any other evidence affirmatively

establishing Cozad would have suffered the harm he complains of if he had complied with the

registration requirement.

       Cozad argues that the harm sought to be avoided was creating an increased risk to the

public because becoming unemployed would also result in him becoming homeless which poses a

greater risk to the community. However, as noted above, Cozad has not actually established that

complying with the registration requirements would have resulted in unemployment or

homelessness. Therefore, Cozad also cannot establish that the harm he sought to avoid was greater

than the harm caused by violating the sex offender registration requirements.

       Moreover, Cozad primarily contributed to the circumstances that resulted in his inability

to register. Cozad testified that, when the apartment manager asked him to leave because of contact

with the Department of Corrections, he decided to register as transient. Cozad testified that

registering as transient was not accurate and that he still slept at his girlfriend’s apartment. And,

Cozad was aware that registering as transient would require in person check in every week. Based

on the evidence in the record, Cozad decided that, rather than take any other steps to address either

the apartment manager’s or the Department of Corrections’ concerns, he would register as

transient. Therefore, Cozad created the circumstances that required him to check in personally.




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No. 48526-5-II


        Because Cozad cannot show substantial evidence in the record supports at least three of

the four required elements for a necessity defense, the trial court did not err by refusing to give the

instruction on the necessity defense. We affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                       SUTTON, J.
 We concur:



 WORSWICK, P.J.




 JOHANSON, J.




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