      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 72158-5-1

                     Respondent,                      DIVISION ONE


              v.



 BENJAMIN BATSON, JR.,                                PUBLISHED


                     Appellant.                       FILED: June 6. 2016




      Cox, J. — Benjamin Batson appeals his judgment and sentence that is

based on his conviction of failure to register as a sex offender, violating RCW

9A.44.132(1)(b). Among other things, he claims that insufficient evidence

supports his conviction. Because the State failed in its burden to prove beyond a

reasonable doubt that Batson lacked a "fixed residence" during the charging

period, we agree. Accordingly, we reverse and dismiss.

      This disposition means that we need not address the constitutional and

other challenges raised in the briefing and Statement of Additional Grounds.

Thus, we do not further address these challenges.

       In 1984, the state of Arizona convicted Batson of two counts of sexual

conduct with a minor under the age of 18, a felony in that state. In 2011, Batson

pleaded guilty to failing to register as a sex offender in King County, Washington.
No. 72158-5-1/2



       In December 2011, Batson registered as a sex offender with the King

County Sheriff's Office. He listed the St. Martin de Porres Shelter, a homeless

shelter program, as his residence. He did not subsequently file any change of

address form with the sheriff's office.

       On April 11, 2013, Batson was released from custody in Pierce County.

He had been charged with the felony of failing to register as a sex offender

during an amended charging period in March 2009. After this release from

custody, the State charged Batson in King County with failing to register as a sex

offender. It alleged that he failed to comply with the registration requirements for

the charging period from April 19, 2013 to September 8, 2013.

       At trial, the State specifically argued that Batson lacked a "fixed

residence," as defined by RCW 9A.44.128. Accordingly, the State argued that he

was required to report to the King County Sheriff's Office on a weekly basis

under RCW 9A.44.130(6)(b).

       At trial, the State sought to meet its burden to prove that Batson lacked a

"fixed residence" during the charging period with testimony from the director of

the St. Martin de Porres Shelter program. Batson did not testify at trial.

       The jury convicted him as charged. The trial court denied Batson's CrR
7.4 motion to arrest judgment based on insufficient evidence that he lacked a

"fixed residence" during the charging period.

       Batson appeals.
No. 72158-5-1/3



                          SUFFICIENCY OF EVIDENCE

       Batson argues that insufficient evidence supports his conviction. We hold

that the State failed in its burden to prove beyond a reasonable doubt that Batson

lacked a "fixed residence," which is the basis for weekly reporting. Accordingly,

there is insufficient evidence to support this conviction.

       Evidence is sufficient when any rational trier of fact could find beyond a

reasonable doubt the essential elements of the crime.1 When considering a

sufficiency challenge, we defer to the jury's determination as to the weight and

credibility of the evidence.2 "In claiming insufficient evidence, the defendant

necessarily admits the truth of the State's evidence and all reasonable inferences

that can be drawn from it."3 Whether evidence is sufficient is a question of

constitutional law that we review de novo.4

       RCW 9A.44.130(1)(a) requires certain sex offenders to register with the

county sheriff. RCW 9A.44.130 has many detailed procedural requirements.

One such requirement is that offenders who lack a "fixed residence" must report

weekly to the sheriff of the proper county.5

       RCW 9A.44.132 criminalizes failing to register as a sex offender. To

obtain a conviction under this statute, the State must prove that the offender had



       1 State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).

       2 State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

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

       4 State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).

       5RCW9A.44.130(6)(b).
No. 72158-5-1/4


a duty to register and did not comply with RCW 9A.44.130's registration

requirements.6

       In some circumstances, this requires that the State prove a negative. For

example, in State v. Presteqard, the State alleged that Keith Prestegard violated

RCW 9A.44.130 by failing to register his change of address.7 Thus, "the State

had to prove a negative: that Prestegard did not reregister after he moved."8

       Here, the State proposed and the court gave Instruction 8, the "to-convict"

instruction, which stated in relevant part:

              To convict the defendant of the crime of failure to register as
       a sex offender, each of the following elements of the crime must be
       proved beyond a reasonable doubt:

               (1) That the defendant was previously convicted of a felony
       sex offense;

              (2) That due to this conviction, the defendant was required to
       register in the State of Washington as a sex offender between April
       19, 2013, and September 8, 2013; and

               (3) That during that time period, the defendant knowingly
       failed to comply with a requirement of sex offender registration: A
       requirement of sex offender registration is that a person who lacks
       a fixed residence must report weekly, in person, to the sheriff of
       the county where he or she is registered.191

       Instruction 7 was similarly worded, stating:

              A person commits the crime of felony failure to register as a
       sex offender when that person, having been convicted of a felony
       sex offense for which he is required to register as a sex offender


       6RCW9A.44.132.

       7 108 Wn. App. 14, 18, 28 P.3d 817 (2001).

       8 Id, at 19.

       9 Clerk's Papers at 449 (emphasis added).
                                              4
No. 72158-5-1/5



      with the county sheriff's office, knowingly fails to comply with the
      requirement of sex offender registration.

            A requirement of sex offender registration is that a person
      who lacks a fixed residence must report weekly, in person, to the
      sheriff of the county where he or she is registered.1101

      The State also proposed and the court gave Instruction 13, which stated:

              A 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.

             A shelter program may qualify as a residence provided it is a
      shelter program designed to provide temporary living
      accommodations for the homeless, provides an offender with a
      personally assigned living space, and the offender is permitted to
      store belongings in the living space.[11]

      The term "fixed residence" is an important focus of both the "to convict"

instruction and Instruction 13. A lack of sufficient evidence of a "fixed residence"

is fatal to the conviction. Because this term is defined by statute, we look to the

relevant statutory language to determine its meaning.

       Construction of a statute is a question of law that we review de novo.12

Our fundamental objective in reading a statute is to ascertain and carry out the

legislature's intent.13 If a statute's meaning is plain, we give effect to that




       10 Id. at 448 (emphasis added).

       11 Id. at 454.

      12 Citizens All, for Prop. Rights Legal Fund v. San Juan County, 184
Wn.2d 428, 435, 359 P.3d 753 (2015).

       13
            Id.
No. 72158-5-1/6



meaning.14 When a statute defines a term, that definition controls.15 "In criminal

cases, we apply the rule of lenity to ambiguous statutes and interpret the statute

in the defendant's favor."16

       In RCW 9A.44.128(5), the legislature defined the term "fixed residence" for

the purposes of RCW 9A.44.130 in relevant part as follows:

       "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. . . . A shelter program may qualify as a
       residence provided it is a shelter program designed to provide
       temporary living accommodations for the homeless, provides
       an offender with a personally assigned living space, and the
       offender is permitted to store belongings in the living spaced

       As this definition states, a shelter program qualifies as a "fixed residence"

if it meets three criteria. First, it must be designed to provide temporary living

accommodations for the homeless. Second, it must provide an offender with a

personally assigned living space. Finally, the offender must be permitted to store

belongings in the living space.18

       Notably, "[Ijacks a fixed residence" is defined as:

       mean[ing] 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


       14 Id,

       15 State v. Sullivan, 143 Wn.2d 162, 175, 19 P.3d 1012 (2001).

       16 State v. Conover, 183 Wn.2d 706, 712, 355 P.3d 1093(2015).

       17 (Emphasis added.)

       18 RCW 9A.44.128(5).
No. 72158-5-1/7


      accommodations for the homeless, an outdoor sleeping location, or
       locations where the person does not have permission to stay.[19]

      Thus, a shelter program that does not meet the definition of a "fixed

residence" does not qualify for purposes of the registration requirements.

       In this case, the sole evidence about the St. Martin de Porres Shelter

program was provided at trial by its director. Notably, both sides point to this

evidence in their appellate briefing to support conflicting arguments. Accordingly,

we quote the material portions of this evidence:

       [The State:] How does the shelter [program] serve [clients]?

       [Shelter Director:] We provide mats on the floor to come sleep at
       night. We are open from 6:30 at night to 7:30 in the morning. At
       7:30, we are closed for the day until we open back up at night. We
       have nursing services there, drug and alcohol counselors, mats on
       the floor to sleep on, shower facilities, and evening meal[s].

       [The State:] When you say "mats on the floor to sleep on," is that in
       a common sleeping area?

       [Shelter Director:] Right. Yes, it is.

       [The State:] These are not beds, but pads on the floor?

       [Shelter Director:] Yes. Sleeping mattresses.

       [The State:] How many mats are there?

       [Shelter Director:] 212.

       [The State:] Are these mats filled on a first come, first served basis?

       [Shelter Director:] First come, first served for your first night. Once
       you are there, that's your mat to stay on as long as you want.

       [The State:] What if you don't come?




       19 RCW 9A.44.128(9).
No. 72158-5-1/8



      [Shelter Director:] If you don't show up, we will give to—we turn
      away people every night. If you don't show up on a given night, we
      give it to someone else. If you access the shelter, you have to go
      through a waiting list.


      [The State:] What do people do with belongings during the day?

      [Shelter Director:] During the day, we do have storage boxes and
      hooks that get assigned to them. Some leave items there during
      the day and off the streets so they don't have to keep bringing it
      back, trying to walk around. And then we have access three times
      a night that we open up the storage.

      [The State:] Can you tell me: Are there cubbies and bins for storage
      also?


      [Shelter Director:] Yeah.

      [The State:] How do those work?

      [Shelter Director:] Same way. Same way. Cubbies down in the
      main floor. Then there is bigger ones upstairs.


      [The State:] Do people enter into a formal agreement to live there,
      or a written agreement?

      [Shelter Director:] No, no, because it's supposed to be a temporary
      shelter. It can turn out to be permanent, but all we have is people
      who play by the rules.

      [The State:] Are there some people that stay there for a long time?

      [Shelter Director:] Yes, there is.

      [The State:] Do they stay for a long time because they come every
      night and have a mat?

      [Shelter Director:] Come every night and have a mat, yes. One of
      the biggest reasons for being there is lack of affordable housing.



      [The State:] Do people have a personally assigned sleeping space?


                                           8
No. 72158-5-1/9


       [Shelter Director:] It's just that once they get a mat assigned to
       them, once they get one assigned to them, it's theirs. It's theirs
       until they miss a night.

       [The State:] During the day, people aren't allowed to stay there; is
       that right?

       [Shelter Director:] No. We have one exception to that the landlord
       has allowed. That's a very small program, 10 guys during the
       dayJ201

       Here, the question is whether this uncontroverted evidence about the St.

Martin de Porres Shelter program is sufficient to establish that Batson lacked a

"fixed residence" during the charging period. Looking at the evidence in the light

most favorable to the State, we conclude that it failed to prove that he lacked a

"fixed residence," as the jury instructions required.

       This term requires that an accused does not have a living situation that

meets the definition of a "fixed residence."21 Thus, our focus is on the second

paragraph of Instruction 13, which is based on RCW 9A.44.128(5).

       Focusing on that paragraph, there is no dispute that the St. Martin de

Porres Shelter program "provide[s]. . . temporary living accommodations for the

homeless."22 The director's testimony establishes that its clients eat, sleep, and

store personal belongings at the shelter program—"activities consistent with the




       20 Report of Proceedings (June 17, 2014) at 111-14.

       21 RCW 9A.44.128(5).

       22 Id.
No. 72158-5-1/10


common understanding of residing."23 And the program's services are intended

to be temporary.

       We next consider whether the shelter program "provides ... a personally

assigned living space."24 We conclude that the evidence in this record

establishes this.


       Here, the director testified in direct response to the prosecutor's question

that clients get sleeping mats assigned to them on a first-come, first-served

basis. Significantly, once clients receive an assigned mat, it's theirs to keep until

they miss a night. In short, the sleeping mats, in this case, constitute the

personally assigned living space for clients until they miss a night.

       The State argues that this shelter program does not personally assign

living spaces because it has a common living area.25 But the term "living space"

in the statute does not exclude common living areas. And it is not surprising to

this court that shelter programs may often provide services in a common living

area. In our view, a reasonable interpretation of "living space" in this jury

instruction and statute includes the assignment of sleeping mats under the

circumstances of this case.


       Further, even if we were to conclude that the term "living space" could be

reasonably interpreted to exclude common living areas, the statute would be




       23 Id,

       24 Id.

       25 Brief of Respondent at 33-34.
                                             10
No. 72158-5-1/11



ambiguous. Thus, under the rule of lenity applicable to criminal statutes, we

would interpret the statute in Batson's favor.26

       In any event, the State fails to support its argument by any citation to

authority. We assume it has found none.

       We turn to the final clause of the second paragraph of the instruction. The

question is whether the clients of the shelter program are "permitted to store

belongings in the living space."

       We read this requirement to be one of proximity of storage for personal

belongings to the personally assigned living space. A close reading of the record

shows that the State failed to fulfill its burden to show a lack of such proximity.

       When questioned by the prosecutor on this point, the director testified that

clients "have storage boxes and hooks that [are] assigned to them."27 They are

provided access to this storage three times nightly.

       He further testified that "cubbies and bins" are also provided to clients.

Cubbies and bins are both "[on] the main floor" and "bigger ones [are] upstairs."28

       This record simply does not show whether the storage areas for personal

belongings—cubbies and bins—on the main floor of the shelter program lack

proximity to the assigned sleeping mats located there. More importantly, since

the director did not testify about Batson's specific situation, there is simply no




       26 Conover, 183 Wn.2d at 712.

       27 Report of Proceedings (June 17, 2014) at 112.

       28 \±

                                              11
No. 72158-5-1/12


evidence to fill this void. Thus, the State failed in its burden to show Batson

lacked a "fixed residence."


       The State also argues that the shelter program was not a "fixed residence"

because residents could not store personal belongings in their assigned living

spaces—assigned mats in this case. The State concedes that the shelter

provided storage spaces for its clients. But it argues that because this storage

was in a separate room, which the residents could access only three times a

night, the shelter did not provide "a personally assigned living space where a

person is permitted to store belongings."29

       The State overlooks the fact that storage was also provided on the main

floor, where the assigned sleeping mats were located, not just at another

location. And it does not fill the evidentiary void regarding Batson's specific

situation that we just discussed.

       After determining that the shelter program is a "fixed residence" under the

statute, the next question is whether sufficient evidence supports finding that

Batson did not live in a "fixed residence."

       Here, the State presented no direct evidence of where Batson was living

during the charging period from April 19, 2013 to September 8, 2013. The State

argues that the following evidence allowed the jury to infer that Batson was not

living in a "fixed residence" during the charging period:

       [B]etween 2009 and 2013 [Batson] never asserted that he had a
       fixed residence; each time he provided an address it was a shelter
       for homeless persons (or a jail); the last address Batson provided to


       29 Brief of Respondent at 34 (emphasis added).


                                              12
No. 72158-5-1/13


       the sheriff's office was a homeless shelter; and Batson had filed
      change of address forms on several occasions—the jury could infer
      that he would have done so again if he had a new address.[30]

      This evidence is insufficient for several reasons. First, the State conflates

homelessness with lacking a "fixed residence." But as we explained earlier, the

statute clearly specifies that some shelter programs are "fixed residences."

Thus, whether Batson was "homeless" is immaterial. The relevant question is

whether he lacked a "fixed residence." And as explained earlier, the St. Martin

de Porres Shelter program qualified as a "fixed residence."

       The State also argues that the jury could infer that Batson was not in a

"fixed residence" because it could infer that he was not in the St. Martin de

Porres Shelter.31 Not so.

      The State relies on two pieces of evidence for this inference. First, that

Batson was released from Pierce County jail on April 11, 2013. Second, it relies

on the shelter director's testimony that the shelter program had a waiting list.

With these two pieces of evidence, the State argues that the jury could infer that

Batson lost his spot at the shelter program and was unable to live there again.

       This inference is purely speculative. Batson was released from jail on

April 11, 2013. The charging period in this case begins on April 19, 2013, eight

days later. The State did not introduce evidence about how long it would take

Batson to reenter the shelter after his release. Thus, there is no reasonable




       30 id, at 36-37.

       31 Id. at 35.

                                             13
No. 72158-5-1/14



basis for the jury to infer that Batson would not have been able to reenter the

shelter program during the eight day period at issue.

       Moreover, it is not enough for the State to show that Batson did not reside

in the St. Martin de Porres Shelter program. The State had to prove that Batson

did not have any "fixed residence." If Batson resided in a different "fixed

residence," he was not subject to the weekly reporting requirement. This record

is simply silent on this point.

       In sum, there is insufficient evidence for a jury to have found that Batson

lacked a "fixed residence" during the charging period. We must reverse his

conviction. Because double jeopardy prohibits the State from retrying him on this

charge, we dismiss with prejudice.32

       We reverse and dismiss.

                                                         4tt ,J~-

WE CONCUR:




  Y^y^^Ov




        32 State v. Fuller, 185Wn.2d 30, 36, 367 P.3d 1057 (2016).
                                             14
