                                                                                                                 F ILED
                                                                                                       COLR - OF APPEALS
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                                                                                                               DIVISIO;!i II

                                                                                                     2013 NOT 19       AM 3: 39
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                                                                                                                D    UTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II


STATE OF WASHINGTON,                                                            No. 43032 -1 - II


                                      Respondent,


       M10,



MICHAEL GEORGE RICHEY,                                                    UNPUBLISHED OPINION




       QuiNN- BRINTNALL, J. —                  Michael George Richey appeals his conviction for failing to

register as a sex offender. He argues that sufficient evidence does not support his conviction and

that his sentence exceeded the statutory maximum. We affirm the conviction on the ground that

sufficient evidence supports Richey' s conviction, but reverse the sentence and remand for
                1
resentencing.


                                                        FACTS


       Due to a 1994 conviction for second degree child rape, Richey has a duty to register as a

sex offender.       On May 3, 2010, Richey registered his address as 2011 217t" Street Court East,

Spanaway, Washington, with the Pierce County Sheriff' s Department.

        On           7, 2010, the                  department          two deputies to verify the   address.    With
              May                     sheriff' s                sent




the permission of Hollie Moss, a resident, and Christina Lawson, Moss' s daughter, the officers


1 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 14    and   then   referred   it to   a panel of judges.
No. 43032 -1 - II



entered   the trailer located       at   the   registered address.            They inspected Richey' s bedroom and saw a

bare   mattress   leaning    against a wall and a                few    stacked   boxes.   They returned a few weeks later,

but   no one was    home.      They       classified       Richey       as " absconded."       Clerk'   s   Papers ( CP)   at   10.   The


State charged Richey with failing to register as a sex offender " by either failing to reside at the

registered address or by failing to comply with notification requirements regarding a change of

address."    CP at 3.


          Richey    waived    his     right    to   a   jury   trial.   During the bench trial, various witnesses testified

about   Richey' s    connection          to the trailer.          Harold Lidren, Richey' s brother, stated that he had

dinner with Richey at the trailer on the evening of May 12, 2010. Benjamin Workman, Richey' s

friend, said that he helped Richey move his belongings out of the bedroom to a storage shed on

May 6,      2010, because the bedroom flooded.                            Patrick Sorensen, another friend of Richey' s,

testified that on a few occasions he would drop Richey off and pick him up at the trailer.

Sorensen helped Richey move out of the trailer in late summer 2010, but they only moved items

out of a separate storage unit on the property.

          Moss     also   testified.      She recalled that Richey stayed at her trailer about four nights per

week.     Richey    paid    her   a   total $ 200        for rent for the several months that he lived in the trailer.

One time,    Richey' s      mother also, gave            Moss $ 100.         Richey corroborated that he did not stay at the

trailer every     night.     Because it took him two and a half hours to get from the trailer to his

rehabilitation and therapy appointments, he would regularly stay at his mother' s house or with

Tom Jones,        another   friend.       Richey added that the reason the officers saw the mattress stripped

 and leaning against the wall on May 7 was because he needed to let the mattress dry after the
 flood in his bedroom. When he did stay                         at   the trailer, he   slept   in the   living   room.     Richey used



                                                                         2
No. 43032 -1 - II



the trailer as his mailing address and stored personal belongings in a storage shed on the

property.


         The trial court convicted Richey of failing to register as a sex offender in violation of
                                                  2
former RCW 9A.44. 130 ( 2010).                         It found that    Richey " stayed at the trailer maybe four nights

per week" and that he stayed with his mother or Jones or other unknown locations " in order to

avoid    making the            lengthy trip    to his        appointments."      CP    at   11 - 12.    It   added   that   Richey " did

know     where           he   would    stay from       one   night   to the   next."   CP    at   12.    It concluded that Richey

lacked a " fixed residence between May 7 and July 29, 2010, but failed to register as a transient

sex offender.             CP    at   14.   It sentenced Richey to 43 months in custody and 0 to 36 months of

community custody. Richey appeals.

                                                                ANALYSIS


SUFFICIENCY OF THE EVIDENCE


             A challenge to the sufficiency of the evidence presented at a bench trial requires us to

review the trial court' s findings of fact and conclusions of law to determine whether substantial

evidence supports the challenged findings and whether the findings support the conclusions."

State   v.   Homan, 172 Wn.                App.   488, 490, 290 P. 3d 1041 ( 2012) (              citing State v. Stevenson, 128

Wn.     App.        179, 193, 114 P. 3d 699 ( 2005)),            review granted,       177 Wn.2d 1022 ( 2013).               Evidence is


 substantial if it is sufficient to convince a fair -
                                                    minded, rational person of the truth of the finding.

State   v.   McEnry,           124 Wn.     App.       918, 924, 103 P. 3d 848 ( 2004).            Unchallenged findings of fact




 2 Former RCW 9A.44. 130 provides in part,
              1)(   a)    Any adult or juvenile residing whether or not the person has a fixed
             residence ...           who has been found to have committed or has been convicted of any
             sex offense ...          shall register with the county sheriff for the county of the person' s
             residence.



                                                                        3
No. 43032 -1 - II



are verities on appeal.                 State   v.   Hill, 123 Wn.2d 641, 644; 870 P. 2d 313 ( 1994).                                A claim of


insufficiency admits the truth of the State' s evidence and all inferences that can reasonably be

drawn from them. State                  v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).                              We review the


trial     court' s conclusions of            law de   novo.    3 Homan, 172 Wn. App. at 490.

             Richey      specifically        challenges    findings        of   fact XXIX          and     XXXII.       As an initial matter,


Richey argues that the evidence does not support the finding of fact XXXII and that Richey " did
not       know    where    he   would         stay from    one night        to the      next."       Br.    of   Appellant     at   8.   The trial


court,      however,      ruled    that      Richey " did know"          where     he   would       stay.    CP    at   12.   Accordingly, we

do not address this challenge further.

             Richey also argues that substantial evidence does not support finding of fact XXIX, that
     t] he defendant did          not   take    meals at       the trailer."      CP    at   11.    We agree that a strictly technical


reading of the finding of fact is not supported by substantial evidence. Richey' s brother testified
that he ate a single meal with Richey at the trailer and Moss testified that Richey ate at the trailer

     a]   little."     2 Report    of   Proceedings       at    148.     Therefore, if the trial court' s finding of fact is read

 strictly to mean that Richey never ate a meal at the trailer, it would be contrary to the testimony
 of     witnesses        who    the trial       court   specifically         found to be             credible,     and not supported by



 3                                                                                                                                       However,
     We    note      that the dissent applies the          rule of       lenity   to   reach       the   opposite conclusion.


 the rule of lenity is a rule of statutory construction that applies to situations where more than one
 interpretation     be drawn from the wording of a
                         can                                                       statute.        State v. Sneeden, 149 Wn.2d 914,
 922, 73 P. 3d 995 ( 2003). In this case, we are not     faced with competing interpretations of the
 meaning      fixed
                  of             Rather, we must decide whether the facts, as found by the trial
                               residence.

 court, are sufficient to support the trial court' s conclusion that Richey failed to register as a sex
 offender as required by former RCW 9A.44. 130. It is well settled law that when determining the
 sufficiency of the evidence, a reviewing court makes all reasonable inferences in favor of the
 State      and   the   verdict.    Salinas, 119 Wn.2d              at   201.     Although, as the dissent articulates, there are
 two inferences that can be made from the trial court' s findings of fact, the sufficiency of the
 evidence standard requires us to accept the inferences that favor the verdict.

                                                                           2
No. 43032 -1 - II



substantial          evidence.             We     do        not   consider          this   particular    finding, but the remaining,

unchallenged, findings of fact support the trial court' s conclusions.


            Under former RCW 9A.44. 130( 5)(                           a),   a sex offender who is required to register must give


the county sheriff's office written notice within three business days of changing his residence. If

the sex offender lacks a fixed residence he is required to notify the sheriff' s office within three

business days            and report        to the      sheriff' s office on a          weekly basis.      Former RCW 9A.44. 130( 6).


Here, the trial court concluded that Richey lacked a fixed residence and, thus, violated former

RCW 9A.44. 130( 6) by failing to notify the sheriff' s office.

                                          State        Stratton, 130 Wn.             App.    760, 124 P. 3d 660 ( 2005), to argue that
             Richey       relies on               v.




the trailer was his fixed residence. In Stratton, this court defined residence as

                 the act ...        of   abiding       or   dwelling in        a place     for   some   time:    an act of making
             one' s      home in           the place where one actually lives or has his home
                                         a place ...;

             distinguished from his technical domicile; ...    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 ...;  a building used as a home."

 130 Wn. App. at 765 ( quoting WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY, at 1931
     1. 969)).     This   court      also defined " fixed"               as,   among       other   things, "` not subject to change or



fluctuation. "' Stratton, 130 Wn.                       App.      at   765 ( quoting WEBSTER' s,           at   861.   Under the definition


 of fixed residence adopted by this court in Stratton, the trailer at issue here was neither fixed nor
                                4
 Richey' s         residence.




                 First, Richey' s living arrangement at the trailer was not fixed. He stayed at the trailer for,
 at most,         four   nights a week.           The remaining nights, Richey moved between his mother' s home

 4
      We note that in 2011, the legislature codified a definition of "fixed residence" for the purposes
 of failure to register offenses which is different than the definition established by this court in
 Stratton. LAWS OF 2011, ch. 337, § 2. However, because Richey' s offense occurred in 2010, we

 apply the Stratton definition of fixed residence rather than the new statutory definition.
                                                                                5
No. 43032 -1 - II



and   the homes     of other   friends.     Because the place where Richey stayed was regularly changing,

his address was not fixed.


          Second, the trailer         was not    Richey' s   residence.       Richey argues that because ( 1) he kept

personal   belongings    at    the trailer, ( 2)   received mail at the trailer, and ( 3) intended to return to the


trailer, it was his residence. He analogizes to Stratton, in which we determined that although the


defendant lived in his car in the driveway outside of the house, the address was his fixed

residence because he received mail and telephone service there, and intended to return to the

house.    130 Wn. App. at 766. But Stratton is distinguishable.

          In Stratton, the defendant returned to the address every night, could easily be contacted

by law enforcement at the address, and the address was not subject to change because he had no
definite departure date        or alternative place        to stay.     130 Wn.   App.    at   766.   Here, Richey did not

return to the trailer every night, and he regularly stayed at alternative addresses. Because Richey

was at the trailer sporadically it would be more difficult for law enforcement to locate him at the

trailer   which   defeats the     purpose of       the   registration requirement.         See State v. Vanderpool, 99


Wn.    App.   709, 712, 995 P. 2d 104 (              purpose       of   sex   offender   registration    is " to allow law


enforcement       agencies       to    protect     their   communities,         conduct investigations           and   quickly,

apprehend sex offenders "), reviewed               denied, 141 Wn.2d 1017 ( 2000). Therefore, the trailer was


not Richey' s residence.

          Because the trailer was not Richey' s fixed residence, he failed to comply with the

registration requirements by failing to notify law enforcement of his change in address under

 former RCW 9A.44. 130                and   the trial court'   s   conclusions     of    law   were   correct.    We affirm



 Richey' s conviction.



                                                                   2
No. 43032 -1 - II



SENTENCE


         Richey also appeals his 0 to 36 month term of community custody, arguing that the

combination of his indefinite community custody term and his term of 43 months of confinement

exceeds the 60 -month statutory maximum punishment for his crime in violation of RCW

9. 94A. 701( 9),   5 and that he is entitled to be resentenced to reduce his term of community custody.

State v. Boyd, 174 Wn.2d 470, 472 -73, 275 P. 3d 321 ( 2012).

                                                            to be                    because he
         The State        concedes   Richey is   entitled           resentenced                         was "   potentially


sentenced past      the statutory    maximum of    60   months."    Br.   of   Resp' t   at   15.   We accept the State' s


concession and remand for resentencing under Boyd.

         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.




                                                                UINN- BRINTNALL, J.
I concur:




 HUNT, P. J.                a-

 5
     RCW 9. 94A.701 provides,
                     9)    The term of community custody specified by this section shall be
          reduced by the court whenever an offender' s standard range term of confinement
          in combination with the term of community custody exceeds the statutory
          maximum for the crime as provided in RCW 9A.20. 021.
                                                            7
No. 43032 -1 - II



             BJORGEN, J. (    dissenting) — As the majority states, the central issue in this appeal is

whether substantial evidence supports the trial court' s finding that Michael Richey lacked a fixed

residence between May 7 and July 29, 2010. More specifically, the question is whether

sufficient evidence supports the court' s determination that the Spanaway address was not

Richey' s fixed residence.

             A "fixed residence" requires:


              the act ... of abiding or dwelling in a place for some time: an act of making
             one' s   home ina place ... ; the place where one actually lives or has his home
             distinguished from his technical domicile; ... 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 ... ;   a building used as a home."

State   v.   Stratton, 130 Wn.         App.   760, 765, 124 P. 3d 660 ( 2005) (     quoting Webster' s Third New

International         Dictionary      1931 ( 1969)) (   emphasis omitted).       In determining whether a location

serves as a " fixed residence" under these principles, we must apply the rule of lenity and

interpret the statute in Richey' s favor absent contrary legislative intent. Stratton, 130 Wn. App.

at 766.


             In Stratton, the defendant moved out of the home he was purchasing after defaulting on

the payments. Although Stratton no longer entered the house or, presumably, stored belongings

in it, he returned there every night, received his mail and phone messages there, and slept in his

car outside the home. We held that under these circumstances the State had failed to prove that

the home was not the defendant' s fixed residence. Stratton, 130 Wn. App. at 762.

             A comparison of Richey' s situation with the facts of Stratton could serve an argument

either way. On one hand, Stratton was more anchored in his location because he returned to it

every    night; on      the   other   hand,   Richey    was more   securely    rooted   because he   slept and stored
No. 43032 -1 - II



belongings inside the residence. More profitable is the evaluation of Richey' s circumstances

directly under the definition of "fixed residence" found in Stratton.

         The state of Richey' s bedroom on May 7, 2010, when the officers first visited, suggested

that he no longer lived there: a bare mattress was propped against the wall and a few boxes were

stacked on the floor. However, Workman' s testimony, found credible by the court, was that

Richey' s room had flooded the day before and that Richey had moved his possessions as a result.

Richey also testified that when the room was flooded, he slept in the living room. This evidence

shows a legitimate reason, consistent with fixed residency, why the room looked vacant when the

officers first visited.

                                                            5
         Turning    to   Richey' s   periodic absences,         there is no easy litmus signaling how many

weekly absences is inconsistent with fixed residency. Instead, the circumstances of the absences

must be considered in applying the definition in Stratton. Credible evidence showed that Richey

spent about four nights per week at the trailer and the other three nights at his mother' s or

Jones' s home because it took two -and -a -half hours to get to his therapy / ehabilitation
                                                                            r

appointments from the trailer. These circumstances show a legitimate reason for his absence

each week, consistent with fixed residency.

          Finally, the lodestar in statutory construction is legislative intent. See Lacey Nursing Or.
                           128 Wn.2d 40, 53, 905 P. 2d 338 ( 1995).           The purpose of the sex offender
v.   Dep' t of Revenue,

registration requirement is to provide law enforcement an address where they can contact an

 offender.   Stratton, 130 Wn.        App.   at   765.   Credible evidence showed that Richey stored his


 5 The State relies on State v. Pray to argue that Richey was required to re- register at the
 addresses   he   used   temporarily. 96 Wn. App. 25, 980 P. 2d 240 ( 1999). Although Pray held that
 even the temporary use of an address can amount to establishing a fixed residence, in Pray, the
 court held that offender " abandoned" his registered permanent address before moving to a
 temporary address. 96 Wn. App. at 30. Here, Richey never abandoned the trailer.
                                                                9
No. 43032 -1 - II



belongings at the trailer, returned and slept there four nights per week, received mail there, met

friends there, and had a legitimate reason, consistent with fixed residency, for his absences.

Although his absences made it more difficult for law enforcement to contact him, an increase in

difficulty is not the standard. Here, Richey was absent three nights a week for a regular, easily

confirmable purpose. This pattern is wholly consistent with fixed residency and would allow

law enforcement ample and reasonable opportunity to contact Richey. Deeming this to be a

fixed residence is consistent with the statute' s purpose.


         Richey' s living situation, as shown by credible, unrebutted evidence, was consistent with

the   central   elements      of   Stratton'   s   definition   of "   fixed   residence"   and allowed the statute' s


purposes   to be    served.    Therefore, sufficient evidence did not support Richey' s conviction, and I

would reverse.




                                                                       BJOOTGEN,?




                                                                10
