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State v. Boyd

Court of Appeals of Washington, Division 1

December 11, 2017

STATE OF WASHINGTON, Respondent,
v.
JAYSON LEE BOYD, Appellant.

          MANN, J.

         Jayson Boyd, a homeless man, was convicted a third time for failing to register as a sex offender and for bail jumping. Boyd appeals his conviction arguing that (1) the current sex offender registration statute, as applied, violates the ex post facto clause of the state and federal constitutions, (2) there was insufficient evidence to convict him of failure to register and bail jumping, (3) the trial court abused its discretion by denying his motion for a mistrial based on prosecutorial misconduct, and (4) the trial court incorrectly denied his proposed reasonable doubt instruction. We affirm.

         FACTS

         In February 1998, when he was 23 years old, Boyd had sex with a 15 year old. On May 27, 1999, Jayson Boyd pleaded guilty to rape of a child in the third degree. Boyd was sentenced on July 29, 1999. Boyd has not committed a sex offense since his original conviction. Nevertheless, he is required to register as a sex offender under RCW 9A.44.130 and RCW 9A.44.140. Since his conviction in 1999, Boyd has been convicted of failure to register as a sex offender three times, all in Skagit County.

         Boyd is homeless, has a ninth or tenth grade education, and is mentally ill. At the time of his crime in 1998, homeless sex offenders were not required to register as sex offenders because they did not have addresses. RCW 9A.44.130 (1998); State v. Pickett, 95 Wn.App. 475, 478, 975 P.2d 584 (1999). The legislature subsequently amended RCW 9A.44.130 to require homeless sex offenders who lacked a fixed address to update the county sheriff weekly, in person, of their whereabouts. Laws of 1999, 1st Spec. Sess., ch. 6, §§ 1-3;'former RCW 9A.44.130 (2000); former RCW 9A.44.130 (2011).

         Boyd largely complied with the registration requirement but pleaded guilty to crimes of failure to register in 2009, 2010, and 2013. After his most recent release from confinement, Boyd has registered a change of address with the Skagit County Sheriff more than 20 times. Boyd registered as a transient on December 11, 2014, and checked in weekly for the next six weeks.[1] Boyd failed to check in with the sheriff during the last week of January and the first two weeks of February 2015.

         In March 2015, the State charged Boyd with failure to register as a sex offender between January 27, 2015 and February 10, 2015. The court ordered a competency evaluation after Boyd rambled incoherently during a pretrial hearing. A month later, after Boyd was found competent to stand trial, the court held another hearing. At that hearing, the court issued a scheduling order, which Boyd signed, setting the next hearing date for November 6, 2015. While explaining the order to Boyd, however, the court misspoke-it told Boyd that he needed to appear on December 6, 2015. After Boyd failed to appear on November 6, 2015, the State amended the information to add a charge for bail jumping.

         Boyd was convicted by a jury as charged and sentenced to 45 months in prison. Boyd appeals.

         ANALYSIS

         Ex Post Facto Application of Transient Registration Requirements

         Boyd argues first that application of the amended registration statute to him violates the ex post facto clause of the state and federal constitutions requiring reversal of the conviction for failure to register. We disagree.

         "The ex post facto clauses of the federal and state constitutions forbid the State from enacting any law which imposes punishment for an act which was not punishable when committed or increases the quantum of punishment annexed to the crime when it was committed." State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994); see U.S. Const, art. I, § 10; Wash. Const, art. I, § 23. The analysis under the state constitution is the same as it is under the federal constitution. See Ward, 123Wn.2d at 496.

          "A law violates the ex post facto clause if it: (1) is substantive, as opposed to merely procedural; (2) is retrospective (applies to events which occurred before its enactment); and (3) disadvantages the person affected by it." Ward, 123 Wn.2d at 498 (quoting In re Pers. Restraint of Powell, 117 Wn.2d 175, 185, 814 P.2d 635 (1991)). The "sole determination of whether a law is 'disadvantageous' is whether the law alters the standard of punishment which existed under prior law." Ward, 123 Wn.2d at 498.

         This court reviews constitutional issues de novo. A statute is presumed constitutional and the party challenging it has the burden to prove beyond a reasonable doubt that the statute is unconstitutional. Ward, 125 Wn.2d at 496.

         Washington's community protection act, codified at RCW 9A.44.130-.140, sets out provisions for the registration of adult and juvenile sex offenders as well as community notification. In general, convicted sex offenders are required to register with the county sheriff and provide their (1) name and aliases used, (2) accurate address or, if the person lacks a fixed residence, where he or she plans to stay, (3) date and place of birth, (4) place of employment, (5) crime for which convicted, (6) date and place of conviction, (7) social security number, (8) photograph, and (9) fingerprints. RCW 9A.44.130(2)(a). Certain elements of the registration information are disseminated to the public. RCW 4.24.550.

         In Ward, our Supreme Court considered and rejected the argument that the sex offender registration requirements violates the ex post facto clause. 123 Wn.2d at 498-511. Applying the three-part test for ex post facto analysis from Powell, the Supreme Court concluded first that the statute was retrospective because it was being applied after the defendants had committed their offenses. Ward, 123 Wn.2d at 498. The Supreme Court then assumed, without deciding, that the statute was substantive instead of procedural. Ward, 123 Wn.2d at 498. The court held that the appellants were not "disadvantaged" because, while the registration requirements were burdensome, the 1991 statute did not alter the standard of punishment. Ward, 123 Wn.2d at 498-99. To reach this conclusion, the Supreme Court first looked to the legislature's findings to determine if the legislature intended for the statute to be regulatory or punitive. The court concluded that "the Legislature unequivocally stated that the State's policy is to 'assist local law enforcement agencies' efforts to protect their communities by regulating sex offenders by requiring sex offenders to register with local enforcement agencies.'" Ward, 123 Wn.2d at 499 (quoting Laws of 1990, ch. 3, §401).

         The Supreme Court continued its analysis, however, in order to determine whether the "actual effect of the statute" was "so punitive as to the negate the legislature's stated regulatory intent." Ward, 123 Wn.2d at 499. The Supreme Court based its analysis on four of the factors identified by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L.Ed.2d 644, 83 S.Ct. 554 (1963): (1) whether the statute involved an affirmative disability or restraint; (2) whether it had historically been regarded as a punishment; (3) whether its operation would promote traditional aims of punishment-retribution and deterrence; and (4) whether it is excessive in relation to its nonpunitive purpose. Ward, 123 Wn.2d at 500-11.

         After an exhaustive review, the Supreme Court concluded

that the requirement to register as a sex offender under RCW 9A.44.130 does not constitute punishment. The Legislature's purpose was regulatory, not punitive; registration does not affirmatively inhibit or restrain an offender's movement or activities; registration per se is not traditionally deemed punishment; nor does registration of sex offenders necessarily promote the traditional deterrent function of punishment. Although a registrant may be burdened by registration, such burdens are an incident of the underlying conviction and are not punitive for purposes of ex post facto analysis. We hold, therefore, that the community protection act's requirement for registration of sex offenders, retroactively applied to Ward and Doe, is not punishment. Thus, it does not violate ex post facto prohibitions under the federal and state constitutions.

Ward, 123 Wn.2d at 510-11.

         Subsequent to Ward, in 1999 the legislature amended RCW 9A.44.130 to add a requirement that transient sex offenders must register weekly, in person, with the sheriff:

A person who lacks a fixed residence must report weekly, in person, to the sheriff of the county where he or she is registered. The weekly report shall be on a day specified by the county sheriffs office, and shall occur during normal business hours. The person must keep an accurate accounting of where he or she stays during the week and provide it to the county sheriff upon request. The lack of a fixed residence is a factor that may be considered in determining an offender's risk level and shall make the offender subject to disclosure of information to the public at large pursuant to RCW 4.24.550.

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

         In State v. Enquist, 163 Wn.App. 41, 49, 256 P.3d 1277 (2011), Division Two of this court addressed an ex post facto challenge to the transient registration requirements under RCW 9A.44.130(6)(b). The Enquist court concluded-without discussing the Mendoza-Martinez factors-that the appellant failed to prove beyond a reasonable doubt that the weekly, in-person reporting requirement violated the ex post facto clause:

Although Enquist testified that weekly reporting was inconvenient, inconvenience alone does not make the statute punitive. Enquist has not demonstrated that the registration requirements constitute punishment. As the Ward court concluded, "[a]lthough a registrant may be burdened by registration, such burdens are an incident of the underlying conviction and are not punitive for purposes of ex post facto analysis."

Enquist, 163 Wn.App. at 49 (quoting Ward. 123 Wn.2d at 510-11). Our Supreme Court denied review.

         Boyd argues that the transient registration requirements, which were not considered by the Supreme Court in Ward, violate the ex post facto clause. He argues that Enquist is wrong because it relied on Ward without analyzing the added transient registration requirements under the Mendoza-Martinez factors. While we agree that the requirement for weekly, in person registration is more burdensome than the Supreme Court considered in Ward, we disagree that the registration requirements violate the ex post facto clause.

         As in Ward, we assume that the sex offender registration requirements for transients are substantive, not procedural. We also assume that these requirements, which were enacted after the acts for which Boyd was convicted, apply retroactively. Thus, the primary question we must decide is whether the registration requirements for transient sex offenders are punitive.

         We start with the legislature's stated intent. As the Ward court held, the legislature "unequivocally stated that the State's policy is to 'assist local law enforcement agencies' efforts to protect their communities by regulating sex offenders by requiring sex offenders to register with local enforcement agencies." Ward, 123 Wn.2d at 499 (quoting Laws of 1990, ch. 3, § 401). This legislative intent remains the same.

         We next address each of the four relevant Mendoza-Martinez factors considered by the Supreme Court in Ward in order to determine whether the "actual effect of the statute is so punitive as to negate the Legislature's regulatory intent." Ward, 123Wn.2d at 499.

         First, do the transient sex offender registration requirements involve an affirmative disability or restraint? This factor requires us to examine "how the effects of the [statute] are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive." Smith v. Doe,538 U.S. 84, 99-100, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). The paradigmatic affirmative disability or restraint is imprisonment. Smith. 538 U.S. at 100. Here, while undoubtedly the transient registration requirements are burdensome, this does not necessarily mean that they are punitive. As Division Two in Enquist observed, "inconvenience alone does not make the statute punitive." Enquist, 163 Wn.App. at 49. Notably, ...


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