iiith
N@VEMBER ida 2915

in the Uitice of the £lerlc of Conrt
WA Sta€e Court of Ap§)eals, Hivision lii

lN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE
STATE OF WASHINGTON, ) No. 34846-6-111
Respondent, §
y. § UNPUBLISHED OPINION
DUSTIN HAWK CHAN£BERS, §
Appellant. §

LAWRENCE~BERREY, J. _ Dustin H. Charnbers appeais his conviction for failure
to register as a sex offender. We affirm. `
BACKGROUND
The State set forth the following allegations in the amended inforlnation:

On or between February 9, 2016 and March 15, 2016 in the County of
Oi<anogan, State of Washington, [`Dustin Hawk Chambers], having been
convicted on or about Noveinber i9, 2009, of a sex offense or kidnapping
offense that Would be ciassified as a felony under the i_aws of Washington,

to wit: lndecent Liberties,m being required to register pursuant to
RCW 9A.44.l30, and lacking a fixed address, did (l) knowingly fail to

 

lWe deern the amended information as referring to “sex offense” as defined by
RCW 9A.44.128(10)(a)»--“[a]ny offense defined as a sex offense by RCW 9.94A.030.”
RCW 9.94A.030(47)(a)(i) defines “sex offense” as including a felony that is a violation
of chapter 9A.44 RCW other than RCW 9A.44.l32. Indecent liberties is a felony that is a
Violation of chapter 9A.44, specifically RCW 9A.44. lOO.

No. 34846~6»Hi
Stctte v. Chambers

provide Written notice to the county sheriff where he or she last registered

within three business days of ceasing to have a fixed residence or (2) did

knowingly faii to report weekly, in person, to the sheriff of the county

where he or she is registered or (3) did knowingly fail to provide the county
sheriff with an accurate accounting of where he or she stays during the
weel<; contrary to Revised Code of Washington 9A.44.130(5).

Clerlt’s Papers (CP) at 44.

During motions in limine prior to the commencement of the triai, the State
said it would not attempt to prove that Mr. Chanibers’s predicate offense was
classified as a felony sex offense under the laws of Washington. Rather, the State
said it would prove that i\/lr. Chainbers’s predicate offense triggered a duty for i\/ir.
Chambers to register with the tribe, thereby satisfying an alternate definition of
“sex offense.”

RCW 9A.44.128(8) defines “i<idnapping offense” in four different
definitionai snbsections, and RCW 9A.4¢i.128(i0) defines “seX offense” in ll
different definitional subsections The one noted by the State during motions in
limine is RCW 9A.44.128, which provides:

(i()) “Sex offense” nieans:
(l) Any tribal conviction for an offense for which the person wouid

be required to register as a sex offender while residing in the reservation of l

conviction; or, if not required to register in the reservation of conviction, an

offense that under the laws of this state would be classified as a sex offense
under this subsection

No. 34846-6~lll
State v. Chctmbers

Mr. Chambers waived his right to a jury trial, and the case was tried to the
bench 'l`he State presented its evidence, and the defense did not call any
witnesses The trial court found Mr. Chambers guilty of the crime of failure to
register as a sex offender, with the predicate offense being a tribal conviction for
which l\/lr. Chanibers was required to register as a sex offender while residing in
the reservation of conviction

l\/_lr. Charnbers appealed

ANALYSIS

DUE PROCESS CliA LLENGE

i\/lr. Chambers asserts that his conviction for failure to register as a sex offender
must be reversed because the State violated his right to due process under the state and
federal constitutions by failing to prove an essential element of the crime charged H_e
does not contest the adequacy of the charging document Rather, he argues that failure to
register is an alternative means criine, in that there are alternative predicate offenses that
give rise to the registration requirements Specifically, he argues the State specified in the
amended information one alternative means to prove the predicate offense and failed to

IJITGV€ ill 31 ITlCEll'lS.

l\io. 34846~6~lll
S)faie v. Chambers

To be upheld, the State must prove every essential element of a crime charged
beyond a reasonable doubt. State v. Sz`bert, l68 Wn.?,d 306, 3l.l, 230 P.3d l42 (20l0).
An element of the crime includes any alternative means for committing the crime that the
State intends to rely on at triai. Sl'ate v. Gold.smith,r 147 Wn, App` 3i7, 324-25, 195 P.3d
98 (2008). l

An alternative means crime is one in which the proscribed criminal conduct can be
proved in various ways Sta)fe v. Peterson, 168 Wn.2d 763, 769, 230 _P.3d 588 (20l0).
“‘ [D]efinition statutes do not create additional alternative means of committing an
offense.ljj Id. at 770 (quoting Sta.te v. Linehan, l47 Wn.Zd 638, 646, 56 P.3d 542
(2002)).

ln Peterson, our Suprerne Court held that failure to register is not an alternative
means crime ]d. at 771. Peterson noted, “[l]t is not necessary to draw a distinction
between alternatives and definitions of alternatives where the crime at issue is not an
alternative means crime at all.” n ]a’. Accordingly, the various definitions by which a
“i<;idnapping offense” or a “sex offense” become a predicate offense are not essential
elements of the crime of failure to register as a sex offender Because this is,the only
aspect that l\/lr. Chambers asserts was not proved, we need not discuss whether other

elements were sufiiciently proved

No. 34846~6-lll
Stute v. Cham/;)ers

APPELLATE COSTS

i\/lr. Chambers requests that should he not substantially prevail on appeal, no
appellate costs be awarded under RAP 14.2. The State takes no position The State has g
substantially prevailed on appeal The trial court properly made a determination of
indigency and Mr. Chambers’s likely future inability to pay.

RAP l4.2 governs the award of appellate costs. The rule generally requires an
award of appellate costs to the party that substantially prevails RAP 14.2. The rule
permits an appellate court, in its decision, to decline an award of appellate costs, or to
direct a commissioner or clerk to decide the issue. Id, A commissioner or clerk is
precluded from awarding appellate costs if he or she finds that the defendant lacks the
current or likely future ability to pay such costs. Icz’. lf a trial court earlier found that the
defendant was indigent for purposes of appeal, that finding continues unless the
commissioner or clerl<n determines by a preponderance of the evidence that the
defendant’s financial circumstances have significantly improved since the earlier finding
Id.

llere, in the event the State requests appellate costs, we defer the issue to our

commissioner Because the trial court found that Mr. Chambers was indigent for

purposes of appeal, that finding continues unless the commissioner finds by a

N@. santee-in
Srate v, Chnmbers
preponderance of the evidence that Mr. Chambers’s financial circumstances have
significantly improved.
Aft`irmed.
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.
g m \_._:¢"“"?.F-r-<' § ~§:§ LMQ\; §
Lawrenee~Berrey, l. l l
at

Wl""£ CONCUR:

  

 

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Fearing, C.J. `b Pennell, .l.

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