                                                                            FILED
                                                                           MAY 7, 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. 36657-0-III
                      Respondent,               )
                                                )
        v.                                      )
                                                )
 BRADLEIGH A. HINES,                            )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )

       SIDDOWAY, J. — Bradleigh Hines appeals his conviction following a bench trial

for felony failure to register as a sex offender, challenging the sufficiency of the State’s

evidence. He also challenges the judgment’s provision requiring him to pay interest on

nonrestitutionary legal financial obligations (LFOs). We affirm the conviction but

remand with directions to strike the interest provision from his judgment and sentence.
No. 36657-0-III
State v. Hines


                    FACTS AND PROCEDURAL BACKGROUND

       The following background is substantially based on the unchallenged findings of

fact following Mr. Hines’s bench trial. Unchallenged findings are verities on appeal.

State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014).

       In December 2004, Mr. Hines was convicted of third degree rape of a child, which

required him to register as a sex offender. Thereafter, and through March 2015, he had

four convictions for failing to register. In the months leading up to the offenses charged

in this case, Mr. Hines was serving community custody for one of those convictions and

was registered as a sex offender with the Asotin County Sheriff’s Office.

       Between July and November 2017, Mr. Hines’s community custody officer

(CCO), Amanda Renzelman, allowed him to live in Lewiston, Idaho, with Cassie

Dahlman, the mother of his children, while he pursued a transfer of his supervision to

Idaho. Mr. Hines registered Ms. Dahlman’s Lewiston address as his residence with both

the Asotin and Nez Perce (Idaho) County sheriffs’ offices during this time frame. After a

home visit and a less-than-pleasant interaction with the Idaho CCO who would supervise

him following any transfer, Mr. Hines abandoned his transfer request and returned to

Asotin County.

       Following a brief period of registration in Asotin County as a transient, on

November 28, 2017, Mr. Hines registered a camp trailer located at 2524 6th Avenue in




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State v. Hines


Clarkston as his residence. The property and trailer belonged to Adam Schirm.

       About a month later, on December 20, CCOs Kevin Vogeler and Kyle Helm

traveled to the Clarkston camp trailer to verify Mr. Hines’s presence. Efforts to find him

there in the morning and the evening were unsuccessful. They sent a text message to Mr.

Hines asking him to contact CCO Renzelman. Mr. Hines did not respond.

       A month later, on January 18, CCOs Renzelman and Vogeler returned to the

Clarkston camp trailer once in the morning and again in the afternoon. It did not appear

anyone was living there, because the trailer door was ajar and bags of garbage were piled

in front of it, obstructing the path into the trailer. CCO Renzelman left her business card

and a note asking Mr. Hines to contact the Department of Corrections (DOC) no later

than January 22 at 8:00 a.m. CCO Renzelman also attempted to call Mr. Hines and sent a

text message asking for an update about his residence.

       Mr. Hines did not report as instructed on January 22, and did not reply to the calls

and text messages. The next day, CCO Renzelman sent another text message and told

Mr. Hines to report by 8:00 a.m. on January 24 to avoid issuance of a warrant. Mr. Hines

did not respond or report, and a warrant was issued.

       A week later, Sergeant Lucas Martin of the Nez Perce County Sheriff’s Office

found Mr. Hines at Ms. Dahlman’s home in Lewiston. Mr. Hines eventually admitted he




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State v. Hines


had been staying there since Christmas because his car broke down, impeding his return

to Clarkston.1

       The State charged Mr. Hines with felony failure to register as a sex offender (third

or subsequent conviction) and escape from community custody.

       When the case later proceeded to a one-day bench trial, the State’s witnesses were

Mr. Schirm and the law enforcement officers involved in Mr. Hines’s supervision and

efforts to locate him in December 2017 and January 2018. Witnesses for the defense

were Mr. Hines and Kaitlyn Flerchinger, who claimed to have been living with Mr. Hines

during the December/January time frame.

       When called as a State witness, Mr. Schirm testified he had not seen Mr. Hines at

the trailer in Clarkston since around New Years of 2018. But he denied ever telling Mr.

Hines he had to leave.2 When cross-examined, he testified that he worked nights and


       1
         As the Asotin County trial court was aware, Clarkston and Lewiston are sister
cities, with both bordering state lines defined by the Snake River.
       2
           He was asked twice by the prosecutor:
       Q      All right. Was there—did you ever at any time talk to him about
       not—not being able to stay there any longer?
       A      No. He needed like a brake booster for his car or something like that
       and I gave him that and a tire and that’s about all I really ever talked to him.
       Q      All right.
       A      No, we never told him he had to leave.
       ....
       Q      . . . Do you recall telling the officer that you found—that you
       stopped letting him stay there because you found out he was convicted and
       he’d have to register?

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No. 36657-0-III
State v. Hines


slept days, so Mr. Hines might have been at the property unbeknownst to him, and “I

wasn’t really keeping tabs on him.” Report of Proceedings (RP) at 52.

      Mr. Schirm’s testimony was followed by that of Asotin County Sheriff’s Deputy

Jesse Carpenter. Deputy Carpenter was informed of Mr. Hines’s DOC arrest warrant on

January 24 and was sent to do a verification check at the camp trailer. Mr. Hines was not

present, but the deputy spoke with Mr. Schirm. Over a defense objection that it was

hearsay, Deputy Carpenter testified that Mr. Schirm told him Mr. Hines no longer lived

there. He testified that Mr. Schirm told him he became concerned that Mr. Hines was a

registered sex offender and had “told Mr. Hines to move along.” RP at 56. Responding

to the hearsay objection, the prosecutor said the testimony was offered as impeachment.

The objection was overruled on that basis.

      In the defense case, Mr. Hines and Ms. Flerchinger testified that during December

2017 and January 2018 they spent most nights in the trailer in Clarkston. Mr. Hines

testified he did not report to DOC or make his whereabouts known to CCO Renzelman

because he believed he likely had a warrant for missing his appointments and wanted to

spend the holidays with his children and Ms. Dahlman.




      A      No. No, we never told him he had to leave.
Report of Proceedings at 50.



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State v. Hines


       At the conclusion of the evidence, the trial court found Mr. Hines guilty of both

charges, telling him the evidence it found “most compelling”

       is your statement to that Idaho deputy when you were asked directly about
       your residential status at the place that you were found and you responded
       to him that you had been staying there and that you couldn’t get back to
       Washington. So to come back in today and say I was back and forth and
       back and forth and it just so happened that nobody ever caught up with me
       at the trailer when I was back there . . . lacks credibility in the Court’s eyes.

RP at 133. The court added that “[a]ll the other evidence that was presented through the

State’s witnesses was consistent with an absence of residency at that stated address.” Id.

       The trial court later entered written findings and conclusions, in which it

concluded that “[n]ot later than January 1, 2018, the Defendant ceased residing at 2524

6th Avenue, Clarkston, Washington, and began residing at 628 Burrell Avenue Space 10,

Lewiston, Idaho.” Clerk’s Papers (CP) at 51. It sentenced Mr. Hines to 50 months of

confinement, and imposed LFOs that “shall bear interest from the date of the Judgment

until payment in full, at the rate applicable to civil judgments.” CP at 58.

       Mr. Hines appeals.

                                         ANALYSIS

I.     SUFFICIENT EVIDENCE SUPPORTS THE CONVICTION FOR FAILURE TO REGISTER AS A
       SEX OFFENDER

       Mr. Hines challenges two of the trial court’s findings of fact and argues the

remaining findings do not support the trial court’s conclusion that he is guilty of failure to




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State v. Hines


register as a sex offender. He challenges one of the statements in the court’s finding 7.

The finding states in part (the challenged statement is highlighted):

       On January 18, 2017, CCOs Renzelman and Vogeler attempted to contact
       the Defendant at the camp trial at the 6th Avenue address. The officers
       attempted contact in the morning and again in the afternoon. . . . During
       the afternoon attempt, officers contacted Adam Schirm who stated that the
       Defendant was no longer living there.

CP at 49-50 (emphasis added). Mr. Hines argues that statements made by Mr. Schirm to

officers were admitted only for impeachment, not as substantive evidence.

       He also challenges language in finding 11,3 which states:

       During his contact with Sgt. Martin on January 31, 2018, the Defendant
       initially denied that he was living at that location, but then admitted, on
       audio recording, that he had been living at that location since Christmas.
       The Defendant offered the excuse that his car had broken down. He further
       stated that he had not been back to the Clarkston residence as a result of
       this.

CP at 50 (emphasis added). He argues that when interviewed by Sergeant Martin, he said

he had been “staying,” not “living,” at the Lewiston address.

       In evaluating a claim of insufficient evidence, we “view the evidence in the light

most favorable to the prosecution and determine whether any rational fact finder could

have found the elements of the crime beyond a reasonable doubt.” Homan, 181 Wn. 2d



       3
          The trial court’s first 11 findings of fact are correctly and sequentially numbered,
but errors occur thereafter and include a second finding 11. Mr. Hines’s assignment of
error is to the first finding 11.



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No. 36657-0-III
State v. Hines


at 105. Following a bench trial, appellate review “is limited to determining whether

substantial evidence supports the findings of fact and, if so, whether the findings support

the conclusions of law.” Id. at 105-06. “‘Substantial evidence’ is evidence sufficient to

persuade a fair-minded person of the truth of the asserted premise.” Id. at 106. Appellate

courts “must defer to the trier of fact for purposes of resolving conflicting testimony and

evaluating the persuasiveness of the evidence.” Id. The trial court’s conclusions of law

are reviewed de novo. Id.

       Under RCW 9A.44.132(1), “[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.”

Requirements of RCW 9A.44.130 include notifying the county sheriff within three days

of establishing a residence after moving to a new county or ceasing to have a fixed

residence. RCW 9A.44.130(5)(b), (6)(a). Mr. Hines concedes that he is a convicted sex

offender required to maintain registration and that he did not register with the Asotin

County Sheriff’s Office after January 1, 2018. The only disputed issue was whether he

had established a new residence or ceased to have a fixed address, triggering an

obligation to register the change. It was Mr. Hines’s position at trial that the Clarkston

camp trailer continued to be his fixed residence throughout the charging period of

January 1 through 31, 2018.



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No. 36657-0-III
State v. Hines


       Mr. Hines relies on two decisions of this court to argue that “the dispositive

question in determining where a person resides is whether the person intends to return.”

Br. of Appellant at 10 (citing State v. Pickett, 95 Wn. App. 475, 478, 975 P.2d 584 (1999)

and State v. Drake, 149 Wn. App. 88, 94-95, 201 P.3d 1093 (2009)). But both decisions

predate the legislature’s adoption in 2011 of statutory definitions of “fixed residence” and

“lacks a fixed residence.” LAWS OF 2011, ch. 337, § 2. “Fixed residence” is defined to

mean

       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.

RCW 9A.44.128(5).

       Finding 7

       Responding to Mr. Hines’s challenge to the statement in finding 7 that “officers

contacted Adam Schirm who stated that the Defendant was no longer living there,” CP at

49-50, (meaning in the Clarkston camp trailer), the State argues that Mr. Hines is

conflating testimony of Deputy Carpenter, to which defense counsel did object, with

testimony of other witnesses, to which no objection was made. The State points out that

finding 7 explicitly speaks to what CCOs Renzelman and Vogeler were told on the

afternoon of January 18. No objection was made when the CCOs testified to what they

were told on the 18th.

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State v. Hines


       Asked about her afternoon visit that day, CCO Renzelman testified as follows:

          Q And did you make a subsequent contact that day or attempt to
       contact?
          A We did. We returned later that afternoon and spoke with an
       individual that identified himself as Adam, who said that Brad had moved
       out on New Year’s and he had not seen him again since.

RP at 67. Questioned about the same afternoon visit, CCO Vogeler testified:

          Q And you—did you attempt to conduct a home contact with Mr.
       Hines?
            A Yes.
            Q And that—where was that?
          A It was at that same location. We ended up seeing a person that was
       doing some sort of groundwork or yardwork and talked with that individual
       and he told us that he didn’t live there anymore; that he had actually moved
       out.

RP at 80.

       In reply, Mr. Hines argues that this, too, was hearsay, and it was ineffective

assistance of counsel for his trial lawyer not to make the same hearsay objection she

successfully made to testimony from Deputy Carpenter. While Mr. Hines makes a

tenable claim of ineffective assistance, we will not consider an argument made for the

first time in a reply brief to which the State has no opportunity to respond. Cowiche

Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (“An issue

raised and argued for the first time in a reply brief is too late to warrant consideration.”).




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State v. Hines


       Finding 11

       Sergeant Martin of the Nez Perce County Sheriff’s Office was the State’s first

witness and testified that when he located Mr. Hines on January 31, he questioned Mr.

Hines before and after taking him into custody. The in-custody questioning took place

inside the sergeant’s patrol car, and was recorded. Mr. Hines argues that finding 11 is

unsupported by evidence because he admitted to Sergeant Martin only that he had been

“staying” with Ms. Dahlman in Lewiston, not “living” there.

       According to Sergeant Martin’s testimony and the recording, which was played for

the court,4 the words “stay” and “live” were both used throughout the interview. The

State’s response brief identifies portions of Sergeant Martin’s testimony and the

recording that support a finding that Mr. Hines admitted he had been living at the

Lewiston location at Christmas. Br. of Resp’t at 12-14.

       The simpler response to the challenge to finding 11, however, is that whether Mr.

Hines was living or staying in Lewiston, there was sufficient evidence that the Clarkston

camp trailer was no longer his fixed residence. Mr. Hines does not challenge the court’s

finding that he had not been back to the Clarkston residence as a result of car trouble that

began around Christmas. Viewing the evidence in the light most favorable to the State,



       4
          The report of proceedings includes a transcription of the playing of the recording,
but it is not entirely accurate. The recording, exhibit P6, is the more reliable evidence.


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No. 36657-0-III
State v. Hines


both direct evidence (the unobjected-to statements made to CCOs Renzelman and

Vogeler by a person the trial court could reasonably infer was Mr. Schirm) and

circumstantial evidence (Mr. Hines’s absence during verification visits, his failure to

respond to physical and electronic messages, visual indications the camper was not being

lived in, and Mr. Hines’s admission that he had been staying in Lewiston since

Christmas) support the conclusion that the camp trailer in Clarkston was no longer a

place he “habitually use[d] as living quarters a majority of the week.” RCW

9A.44.128(5). Because his registered address ceased to be his fixed residence, Mr. Hines

was required, but failed, to notify the Asotin County’s Sheriff’s Office.5

II.    THE STATE CONCEDES THAT MR. HINES’S NONRESTITUTIONARY LFOS SHOULD
       NOT BEAR INTEREST

       Mr. Hines’s remaining assignment of error is to a provision of his judgment and

sentence requiring him to pay interest on his LFOs notwithstanding legislation effective

June 7, 2018, that prohibits interest on nonrestitutionary LFOs. See LAWS OF 2018, ch.

269, § 1(1). Mr. Hines was sentenced in February 2019, and has no restitution obligation.

       The State concedes error and does not object if we address it. We exercise our

discretion to correct the error.


       5
         This court recently held that an individual who failed to use his living quarters
for a majority of one week was not guilty of failure to register where he habitually used
his registered fixed residence as his living quarters and was only occasionally away.
State v. Cathers, No. 36885-8-III, (Wash. Ct. App. Apr. 14, 2020), https://www.courts.wa
.gov /opinions/pdf/368858_pub.pdf. That is not the case here.

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State v. Hines


       The conviction is affirmed. We remand with directions to make a ministerial

correction striking the interest provision.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                                   _____________________________
                                                   Siddoway, J.

WE CONCUR:



_____________________________
Lawrence-Berrey, J.



_____________________________
Fearing, J.




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