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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                              NO. 68615-1-1

                      Respondent,                                 DIVISION ONE

                     v.



RICHARD CARL HOWARD,                                              UNPUBLISHED OPINION


                     Appellant.                                   FILED: August 5, 2013



       Lau, J. — Richard Howard challenges his conviction for failure to register as a

sex offender, arguing that the trial court violated his constitutional right to be present for

trial and abused its discretion in admitting evidence. He also challenges the sufficiency

of the information. Because Howard fails to demonstrate error, we affirm the conviction.

However, we accept the State's concession of error in the trial court's imposition of

certain conditions of community custody and remand for the trial court to strike the

challenged conditions.

                                                 FACTS


       Richard Howard is required to register as a sex offender. In January 2011,

Howard moved into a clean and sober transitional recovery group home in Kent. House
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rules require submission to urinalysis or an alcohol swab upon request. Failure to

provide a requested sample and use of alcohol and/or drugs are grounds for immediate

termination from the house.


          Early in the morning of March 3, 2011, Howard came into the house, slamming

the door. House manager Michael Parker asked Howard to provide a urine sample.

When Howard did not cooperate, Parker called another house manager. Eventually,

both managers informed Howard that he was terminated from the program. Howard

took some of his possessions and left.

          The house administrator sent an e-mail to Howard's Community Corrections

Officer Juan Hernandez explaining that Howard had been terminated from the program.

Hernandez called Howard on March 4 and instructed Howard to come to his office.

Despite agreeing to report to Hernandez's office by 1 p.m., Howard did not appear or

contact Hernandez. The Department of Corrections obtained a warrant for Howard's

arrest.


          On March 11, a fugitive task force surrounded Howard's wife's residence in

Tacoma and used a public address system to call Howard to come out. The officers

eventually entered the house with a ram and found Howard in an upstairs bedroom.

          The State charged Howard with felony failure to register as a sex offender

between March 3 and March 11, 2011. The trial court instructed the jury that "[a]

requirement of sex offender registration is that a sex offender must provide . . . signed

written notice of the change of address within 3 business days of moving to a new

residence . .. ."
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       During deliberations, the jury sent out the following question: "How long does the

registered sex offender have to register as transient once they have lost their housing?

Can we please see the law as written?" The trial judge and defense counsel appeared

by telephone conference call and the prosecutor was present in the courtroom where

the bailiff read the jury's question aloud on the record. After discussion on the record

and over defense counsel's objection, the trial court instructed the jury in writing as

follows: "Any person required to register under [the law] who lacks a fixed residence

shall provide signed notice to the sheriff of the county where he or she last registered

within three business days after ceasing to have a fixed residence." (Alteration in

original.)

       The jury found Howard guilty as charged, and the trial court imposed a standard

range sentence.

        Howard appeals.

                                        ANALYSIS


        Presence at Trial

        For the first time on appeal, Howard contends that the trial court violated both his

right to be present under the federal constitution and his state constitutional right to

appear and defend in person when it responded to a jury inquiry in his absence. State

v, Irbv, 170 Wn.2d 874, 880-85, 246 P.3d 796 (2011) (addressing federal and state

rights). We generally will not review a claim of error raised for the first time on appeal.
RAP 2.5(a). An exception exists for "manifest" errors affecting a constitutional right.

RAP 2.5(a)(3). Violations of the federal constitutional right to be present and the state

constitutional right to appear and defend may amount to manifest constitutional error if

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the defendant can plausibly show that the error had practical and identifiable

consequences at trial. State v. Lynn. 67 Wn. App. 339, 345, 835 P.2d 251 (1992). This

requires a showing of actual prejudice. State v. Q'Hara, 167 Wn.2d 91, 99, 217 P.3d

756 (2009).

       Even assuming without deciding that Howard had a right to be present during the

court's handling of the jury inquiry here, he fails to demonstrate that his absence

resulted in actual prejudice. Prejudice in this setting is not presumed, jrby, 170 Wn.2d

at 886 (citing State v. Caliquri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983)). Howard

merely claims that his "presence would have been beneficial," and that he could have

informed his counsel whether he was aware of the three-day rule for reporting

homelessness and pointed out that the instruction describing a three-day rule for

reporting a new residence "caused the jury's questions." Br. of Appellant at 11. It is not

apparent how such assertions would have been of any benefit to the consideration and

resolution of the jury's question as to the law regarding the deadline for reporting

homelessness. Howard fails to establish manifest error.

       Sufficiency of the Information

       Howard next contends, for the first time on appeal, that the information is

constitutionally deficient because it does not allege as an essential element of the

offense the statutory requirement that he register with the sheriff of his home county.

      A charging document is constitutionally adequate if it sets forth the essential

elements of the charged offense. State v. Kiorsvik, 117 Wn.2d 93, 97, 812 P.2d 86

(1991) (citing federal and state constitutions). "The purpose of this 'essential elements'

rule is to give notice of the nature and cause of an accusation against the accused so

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that a defense can be prepared." State v. Campbell, 125 Wn.2d 797, 801, 888 P.2d

1185 (1995). The charging document need not use the exact words of the statute.

Kiorsvik, 117 Wn.2d at 108. Rather, "the question ... is whether all the words used

would reasonably apprise an accused of the elements of the crime charged." Kiorsvik,

117Wn.2dat109.

      When a challenge to the sufficiency of an information is raised for the first time

on appeal, we liberally construe the charging document in favor of validity on appeal.

Campbell. 125 Wn.2d at 801: Kiorsvik. 117 Wn.2d at 105. In liberally construing the

information, we ask whether the elements of the offense "appear in any form, or by fair

construction can ... be found, in the charging document." Kiorsvik, 117 Wn.2d at 105.

Where the essential elements are present in the charging document, we then determine

whether the defendant was nevertheless "actually prejudiced by the [ujnartful language

which caused a lack of notice." Kiorsvik, 117 Wn.2d at 106.

      The State charged Howard with failure to register as a sex offender, alleging in

the information:

              That the defendant RICHARD CARL HOWARD in King County,
       Washington, during a period of time intervening between March 3, 2011 through
       March 11, 2011, having been convicted of Rape of a Child in the First Degree, a
       felony sex offense, as defined in RCW 9A.44.128; for which he was required to
       register as a sex offender under RCW 9A.44.130 did knowingly fail to comply
       with the requirements of RCW 9A.44.130, and that the defendant has been
       convicted in the State of felony failure to register as a sex offender on two or
       more prior occasions;
              Contrary to RCW 9A.44.132(1)(b), and against the peace and dignity of
       the State of Washington.

       RCW 9A.44.132(1) provides in pertinent part:




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      A person commits the crime of failure to register as a sex offender ifthe 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.

            (b) If a person has been convicted of a felony failure to register as a sex
      offender in this state or pursuant to the laws of another state on two or more prior
      occasions, the failure to register under this subsection is a class B felony.

       RCW 9A.44.130 sets forth various registration requirements, including deadlines

for registration based on a sex offender's residential status and other circumstances.

       Howard identifies three particular requirements of RCW 9A.44.130 to support his

claim that the information failed to allege an essential element of the crime. RCW

9A.44.130(4)(a) requires an offender who changes residence within the same county to

notify that county's sheriff in writing or in person within three business days of moving.

RCW 9A.44.130(4)(b) requires an offender who moves to a new county to register with

the new county's sheriff and notify his former county's sheriff within three business

days. And RCW 9A.44.130(5)(a) requires an offender who lacks a fixed residence to

provide notice to the sheriff of the county in which he was last registered within three

days of ceasing to have fixed residence. Based on these provisions, Howard claims,

"Registering with the local sheriff is an essential element of the offense." Br. of

Appellant at 14.

       But even constitutional requirements that merely define and limit the scope of an

essential element of a crime do not themselves constitute essential elements that must

be alleged in the charging document. See State v. Allen, 176 Wn.2d 611, 294 P.3d 679
(2013) (First Amendment protections limiting the criminalization of threatening language

to only "true threats," defines, rather than constitutes, an essential element and need
not be included in the information). Similarly, statutes defining and limiting essential

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elements do not constitute essential elements. See State v. Phuonq,           Wn. App.     ,

299 P.3d 37, 62-64 (2013) (rejecting claim that statutory definition of "restrain" is an

essential element that must be alleged in information charging unlawful imprisonment).

       And we have rejected other claims that the various deadlines and procedures for

complying with registration requirements set forth in the sex offender registration statute

constitute essential elements of the offense of failure to register as a sex offender.

State v. Bennett, 154 Wn. App. 202, 224 P.3d 849 (2010); State v. Peterson, 145 Wn.

App. 672, 186 P.3d 1179 (2008), affirmed, 168 Wn.2d 763, 230 P.3d 588 (2010). In

affirming our decision in Peterson based on a differing analysis, our Supreme Court

held "that residential status is not an element of the crime" of failure to register."

Peterson. 168 Wn.2d at 774.

       As the Supreme Court recognized in Peterson, "a registrant's residential status

informs the deadline by which he must register," but "it is possible to prove that a

registrant failed to register within any applicable deadline without having to specify the

registrant's particular residential status." Peterson, 168 Wn.2d at 772. In Peterson, the

State presented evidence that Peterson vacated his residence on or around November

2, 2005, and did not report to the sheriff until December 6, 2005. Peterson, 168 Wn.2d

at 767. The State alleged and proved that "Peterson registered outside of any deadline

contained in the statute. It was therefore unnecessary to show his particular residential

status in order to prove a violation of the statute." Peterson, 168 Wn.2d at 772.

       But Howard points to the observation in State v. Mason, 170 Wn. App. 375, 383,

285 P.3d 154 (2012), that the Supreme Court's opinion in Peterson left open the

question of "whether other facts may constitute essential elements of the crime of failure

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to register, such as the statutory deadline and the 'particular county sheriff to which one

must give notice.'" In Mason, the State charged Mason with failing to comply with

registration requirements between March 27 and April 19, 2010. Mason, 170 Wn. App.

at 377. At trial, the State presented evidence that Mason (1) registered with the

Thurston County Sheriff on April 30, (2) told a Thurston County employee on April 20

that "'he had been staying the past couple weeks'" in Lewis County, (3) registered with

the Lewis County Sheriff on April 21, and (4) lived in Lewis County for two or three

weeks in April. Mason, 170 Wn. App. at 378. After the State rested, Mason moved to

dismiss, arguing that the State failed to allege that he had a duty to register with the

county sheriff, which he contended was an essential element of the charge. Mason,

170 Wn. App. at 378. On appeal, the Mason court refused to address his challenge to

the sufficiency of the information based on inadequate briefing but observed that in light

of the reasoning in Peterson, "this case presents a cross-county move that may require

greater specificity in the information." Mason, 170 Wn. App. at 384.

       Howard claims that greater specificity was required in his information because,

as in Mason, his case involved evidence of a move from one county to another. But

unlike the circumstances in Mason, it was undisputed that Howard did not register with

any sheriff of any county between March 3 and March 11. And Howard claimed at trial

that he had not moved out of the group home. Thus, the contested issue at trial was

whether Howard had a change in residential status between March 3 and March 11,

triggering a registration requirement. The State alleged and proved that Howard failed

to comply with registration requirements between March 3 and March 11. Just as it was

not necessary to allege and prove Howard's particular residential status during that

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period, it was not necessary for the State to allege and prove the county sheriff to which

he could have reported in order to comply with the statute. See Peterson, 168 Wn.2d at

772. Howard fails to demonstrate that the information lacked any essential element of

the offense. The information was constitutionally adequate.

      Admission of Evidence

       Howard next argues that the trial court abused its discretion by admitting

ER 404(b) evidence of the circumstances of his arrest. Under ER 404(b),

      [ejvidence of other crimes, wrongs, or acts is not admissible to prove the
      character of a person in order to show action in conformity therewith. It may,
      however, be admissible for other purposes, such as proof of motive, opportunity,
      intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

      "This list of other purposes for which such evidence of other crimes, wrongs, or

acts may be introduced is not exclusive." State v. Baker. 162 Wn. App. 468, 473, 259

P.3d 270, review denied, 173 Wn.2d 1004 (2011).

      A trial court must state its reasoning on the record when admitting ER 404(b)

evidence. State v. Jackson, 102 Wn.2d 689, 693, 689 P.2d 76 (1984). "To justify the

admission of prior acts under ER 404(b), there must be a showing that (1) the evidence

serves a legitimate purpose, (2) the evidence is relevant to prove an element of the

crime charged, and (3) the probative value outweighs its prejudicial effect." State v.

Maqers, 164 Wn.2d 174, 184, 189 P.3d 126 (2008). We review a trial court's decision

to admit evidence under ER 404(b) for abuse of discretion. Baker, 162 Wn. App. at

473. A trial court abuses its discretion when its decision is manifestly unreasonable or

based on untenable grounds or reasons. State v. Dixon, 159 Wn.2d 65, 75-76, 147

P.3d 991 (2006).


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       Prior to trial, the prosecutor argued that the circumstances of Howard's arrest

were relevant to show his consciousness of guilt for living with his wife in Tacoma

without complying with his registration requirements as a sex offender. After hearing

argument, the trial court found:

              That the fact of his residence - - not residing where he should be or
       knowing that he'd been kicked out of the housing and so forth, does have a
       connection to his state of mind with respect to his knowledge about whether or
       not he should be registering. And by living in a place not reported to the
       Department of Corrections, there is a connection to the requirement to report
       your new address to the Sheriff so that you can make your registration under the
       new address. So I believe that there is a relationship between the housing
       situation and Mr. Howard's overall knowledge of his obligation to register as a
       sex offender.

Verbatim Report of Proceedings (Mar. 14, 2012) at 79. The trial court then ruled that

the State would be allowed to present evidence of the circumstances of the arrest.

However, it excluded any reference to the fact that Howard had been found with a child

sitting on his lap as more prejudicial than probative.

       Howard claims that the evidence was not logically related to consciousness of

guilt as to the charged crime because the Department of Corrections had issued a

warrant for his arrest for his failure to contact his Community Corrections Officer. He

testified that at the time of his arrest, he knew about the warrant but did not know about

the charge of failure to register until 30 days later. Butthe fact that Howard had a

different explanation for his actions does not render the admission of the evidence

unreasonable. See State v. Hebert. 33 Wn. App. 512, 515, 656 P.2d 1106 (1982)

(evidence offlight properly admitted to show consciousness of guilt for charged crime of
burglary despite defendant's claim that he fled because he was a parolee in possession
of marijuana). The record reveals that the trial court properly considered the evidence

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under ER 404(b) and limited the potential prejudice by excluding details regarding the

presence of a child. Howard fails to establish error.

       Community Custody Conditions

       Howard challenges community custody conditions 4, 5, 7, 10, and 11, on his

judgment and sentence, claiming that the trial court exceeded its authority in directing

him to obtain a sexual deviancy evaluation, disclose dating relationships, follow a

curfew, stay out of sex-related businesses, and obtain approval before possessing

sexually explicit materials. Acknowledging that the trial court did not make the required

findings to support such conditions, the State concedes that the conditions should be

struck. We accept the State's concession and remand for the trial court to strike the

challenged conditions.

       Statement of Additional Grounds for Review

       Howard has filed a statement of additional grounds for review alleging: (1) the

prosecutor's cross-examination question about "crimes of dishonesty" was "very

prejudicial," (2) the trial court improperly denied his request for an appeal bond because

his arrest "had nothing to do with this current charge," (3) the fact that he contacted the

group home director after the incidents of March 4 made it "obvious [he] wasn't aware

[he] was no longer living at the residence," (4) he does not believe certain people at

"jury selection" "could have been impartial," and (5) he was denied his right to "go pro se

prior to the starting of my trial." Because these bare claims are not supported by

credible evidence in the record, we cannot review them. RAP 10.10(c) (an appellate

court will not consider an argument made in a statement of additional grounds for

review if it does not inform the court of the nature and occurrence of the alleged errors).

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      Affirmed in part and remanded.




WE CONCUR:




     Co7(> J.                                 *^<^




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