                                                              FILED
                                                           APRIL 14, 2020
                                                    In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )          No. 36885-8-III
                                              )
                     Respondent,              )
                                              )
              v.                              )          PUBLISHED OPINION
                                              )
GLEN LINDSAY CATHERS,                         )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, J. — RCW 9A.44.130(6)(a) requires a registered sex

offender who lacks a fixed residence to notify the appropriate sheriff’s department within

three business days after ceasing to have a “fixed residence.” Failure to do this

constitutes failure to register. 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.” We conclude that a registered sex offender does not cease to have a “fixed

residence” simply because the offender is temporarily gone from his residence for 7 to 12

days. We, therefore, reverse Glen Cathers’s conviction for failure to register.
No. 36885-8-III
State v. Cathers


                                          FACTS

       Glen Cathers is a level 1 sex offender and is required to register in Klickitat

County. He first registered in Klickitat County in 19981 and was compliant with his

registration requirements for 20 years.

       The Klickitat County Sheriff’s Department checks the residential status of level 1

sex offenders, such as Cathers, once per year. In June 2018, the Department’s criminal

records technician directed a deputy to verify Cathers was residing at his registered

address on Jenkins Creek Road.

       On June 20, 2018, Deputy Timothy Neher went to Cathers’s registered address.

He arrived at the address after 5:00 p.m., and no one was there. He left a business card in

the door. The next day, Deputy Neher returned to the address. Cathers was not there, but

the deputy did speak with a person who was there, Kathleen O’Brennan. On June 27,

2018, Deputy Neher returned once again to the address. Cathers was not there, but Ms.

O’Brennan was. The deputy did not notice any evidence that Cathers had or was in the

process of moving out.




       1
         The trial court’s finding says 1998. The testimony at trial was 1988. Neither
party assigned error to the finding. A probable cause statement supports 1998. It is
unimportant to our decision.

                                              2
No. 36885-8-III
State v. Cathers


       Ms. O’Brennan is a friend of Cathers and his partner, Naomi Fisher. The couple

hires her once or twice per year to watch their cats when they travel. Ms. O’Brennan was

watching their cats when the deputy came by in June. She watched their cats for a 12-day

period. The trial court found that Cathers was “gone from his residence” between 7 and

12 days. Clerk’s Papers at 10 (Conclusion of Law 9).

       Several months later, the State charged Cathers with felony failure to register as a

sex offender. Cathers waived his right to a jury trial. On the above facts, the trial court

found Cathers guilty. The trial court entered a judgment of conviction, sentenced Cathers

to 30 days in jail, and approved a $10,000 appeal bond.

       Cathers timely appealed.

                                        ANALYSIS

       Cathers accepts the trial court’s findings of fact and argues those findings are

insufficient to establish he violated RCW 9A.44.130.

       The State charged Cathers for failure to register as a sex offender, citing

RCW 9A.44.132(1), which provides:

       A person commits the crime of failure to register as a sex offender if the
       person has a duty to register under RCW 9A.44.130 for a felony sex
       offense and knowingly fails to comply with any of the requirements of
       RCW 9A.44.130.




                                              3
No. 36885-8-III
State v. Cathers


       The State relied on RCW 9A.44.130(6)(a), which provides:

       Any person required to register under this section who lacks a fixed
       residence shall provide signed written notice to the sheriff of the county
       where he or she last registered within three business days after ceasing to
       have a fixed residence. . . .

(Emphasis added.)

       To determine whether the trial court’s findings were sufficient to convict Cathers

for failure to register, we must determine what the State was required to prove under

RCW 9A.44.130(6)(a).

       “In interpreting a statute, our primary goal is to determine and give effect to the

legislature’s intent and purpose in creating the statute.” Pac. Nw. Shooting Park Ass’n v.

City of Sequim, 158 Wn.2d 342, 354, 144 P.3d 276 (2006). “We generally begin our

analysis with the text of the statute.” Id. “If the statute is clear and unambiguous on its

face, we determine its meaning only from the language of the statute and do not resort to

statutory construction principles.” Id. “A statute is ambiguous only if it can be

reasonably interpreted in more than one way, not merely because other possible

interpretations exist.” Id.

       We first determine what “ceasing to have a fixed residence” means.

       “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

                                              4
No. 36885-8-III
State v. Cathers


       residing, such as sleeping; eating; keeping personal belongings; receiving
       mail; and paying utilities, rent, or mortgage. . . .

RCW 9A.44.128(5).

       The State argues Cathers ceased having a fixed residence when he did not use his

living quarters a majority of one week. It further argues, because Cathers did not provide

signed written notice to the sheriff within three business days after ceasing to have a fixed

residence, as required by RCW 9A.44.130(6)(a), he was guilty of failure to register. We

disagree.

       The State’s construction of “fixed residence” ignores the word “habitually.” When

construing a statute, we must give effect to every word. HomeStreet, Inc. v. Dep’t of

Revenue, 166 Wn.2d 444, 452, 210 P.3d 297 (2009).

       “Habitually” is not defined. “When a statute fails to define a term, a court may

rely on the ordinary meaning of the word as stated in a dictionary.” State v. Klein, 156

Wn.2d 102, 116, 124 P.3d 644 (2005). “Habitually” means “consistently, persistently,

repeatedly, usually.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1017 (1993).

A person who uses a building as his or her living quarters, yet is occasionally away for

one or two weeks, still “habitually” lives there a majority of the week. This is because the

person is consistently and usually there.




                                             5
No. 36885-8-III
State v. Cathers


       The trial court was concerned that a convicted sex offender might evade the

registration requirements by listing an address but never or rarely using it. Under our

construction of RCW 9A.44.130(6)(a), a person who never or rarely uses the listed

residence would be guilty of failure to register.

       But those are not the facts here. The trial court found that Cathers was gone from

his residence between 7 and 12 days. We conclude the trial court's findings were

insufficient to establish that Cathers ceased having a fixed residence within the meaning

of RCW 9A.44.130(6)(a). 2 We direct the trial court to vacate Cathers' conviction with

prejudice.

       Reversed.


                                                    Lawrence-Berrey, J.
WE CONCUR:                                                                       j



Pennell, C.J.                                       Fearing, J.



       2 We invite the legislature to provide greater detail in this area. How long may
level 1, 2, or 3 sex offenders be absent from their residences? Should registered sex
offenders be required to notify the sheriffs office before being absent for more than three
days? Should registered sex offenders be required to disclose where they plan on staying
each day, and be required to be reachable by telephone for efficient verification? Courts
are ill-equipped to fill in these gaps.

                                              6
