IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
No. 40241-6-II
Respondent,
v.
DOUGLAS BUSH, II,
UNPUBLISHED OPINION
Appellant.
Quinn-Brintnall, J. — A jury found Douglas Bush, II guilty of failure to register as a sex
offender. Former RCW 9A.44.130(4)(b), (11)(a) (2006). During closing argument, the State
argued that the jury could convict Bush on four separate incidents even though two of the
incidents occurred outside of the charging period.
Bush argues that the State presented
insufficient evidence to prove each of the four incidents beyond a reasonable doubt. Because the
State was not required to prove each of the incidents beyond a reasonable doubt and sufficient
evidence supports the jury’s verdict, we affirm.
FACTS
Bush is required to register as a sex offender. On June 19, 2009, upon his release from
jail, Bush registered his address as 14703 N.E. 76th Street in Vancouver, Washington. Bush later
No. 40241-6-II
admitted that he had never lived at that address.
On July 30, Bush registered his address as 501 S.E. 123rd Avenue, Unit I59 in
Vancouver. On August 3, City of Vancouver Police Detective Patrick Kennedy went to Unit I59
to verify that Bush lived in the apartment. When nobody answered the door, Kennedy left his
phone number and a note asking Bush to call him.
Detective Kennedy later thought that Bush might have meant to register at the adjacent
apartment, Unit I57. On August 6, Kennedy contacted Jeanie Alo at Unit I57, who told Kennedy
that Bush did not live in her apartment. Alo testified that Bush had stayed at her apartment two
or three weeks earlier in July 2009. Alo testified that Bush slept on her couch, was not on the
lease, and did not pay rent, receive mail, share in any of the living expenses, or keep any
belongings at her apartment. Alo also testified that she and Bush had agreed Bush would give her
food stamps or food in exchange for housing.
On the evening of August 6, Detective Kennedy spoke with Bush about his registration.
Bush told Kennedy that he stayed at Alo’s apartment seven to ten times before he registered that
address on July 30. However, at trial, Bush testified that he did not stay at Alo’s apartment until
after he registered the address. Bush testified that he slept on Alo’s couch, had only a backpack
of belongings, and would call ahead of time to see if he could sleep at Alo’s apartment. City of
Vancouver Police Detective Mike Davis testified that Bush told him that he “would come and go”
from Alo’s apartment. 1 Report of Proceedings (RP) at 123. Davis further testified that when
Bush was not staying at Alo’s apartment, Bush “was basically transient.” 1 RP at 123.
The State charged Bush with failing to register as a sex offender between July 30, 2009
and August 6, 2009. Former RCW 9A.44.130(4)(b), (11)(a). Bush stipulated that he was
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required to register during that period pursuant to ch. 9A.44 RCW. On January 4, 2010, the case
proceeded to a jury trial. During closing argument, the State argued that Bush failed to register
as a sex offender in four ways:
(1) Bush registered the Northeast 76th Street address on June 16, 2009, but never
lived there.
(2) Bush registered the Southeast 123rd Avenue address but never lived there
because “couch surfing there for a few days” does not qualify as a residence. 2 RP
at 218.
(3) Bush lacked a fixed residence between June 16, 2009 and August 6, 2009, and
was required to report as a transient.
(4) Bush left the Southeast 123rd Avenue address on or at before July 30, 2009,
but did not report that within 48 or 72 hours.
Bush did not object.
The trial court instructed the jury that “[i]n any case where the offense is alleged to have
occurred more than once over a period of time, all twelve of you must agree that the same
criminal act has been proved beyond a reasonable doubt.” Clerk’s Papers (CP) at 20. The trial
court further instructed the jury:
To convict [Bush] 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 on about or between July 30, 2009, and August 6, 2009,
[Bush] was required to register as a sex offender; and
(2)
That on about or between July 30, 2009, and August 6, 2009,
[Bush] knowingly failed to comply with a requirement of sex
offender registration; and
(3)
That the acts occurred in the State of Washington.
CP at 21. The verdict form did not contain a special verdict form asking the jury to specify on
which act it found Bush guilty of failure to register.
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No. 40241-6-II
The jury found Bush guilty as charged. The trial court sentenced Bush to 27 months
confinement and 36 months of community custody. Bush timely appeals.1
DISCUSSION
Sufficiency of the Evidence
Bush asserts that the evidence was insufficient to support his conviction. Specifically,
Bush relies on State v. Jensen, 125 Wn. App. 319, 104 P.3d 717, review denied, 154 Wn.2d 1011
(2005), to argue that the State failed to meet its burden to present sufficient evidence to prove
each alleged instance beyond a reasonable doubt. The State counters, arguing that under State v.
Peterson, 168 Wn.2d 763, 230 P.3d 588 (2010), it was not required to prove each act with
sufficient evidence because failure to register is not an alternative means crime. We agree with
the State.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the
jury’s verdict, it permits any rational trier of fact to find the essential elements of the crime beyond
a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of
insufficiency admits the truth of the evidence and all reasonable inferences that a trier of fact can
draw from that evidence. Salinas, 110 Wn.2d at 201.
Circumstantial evidence and direct
evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We
defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990);
1
On February 9, 2011, a commissioner of this court affirmed Bush’s conviction. On March 14,
Bush moved to modify the commissioner’s ruling, arguing that absent a special jury verdict form,
we could be not convinced beyond a reasonable doubt that the jury did not convict Bush for acts
that occurred outside the charging period. We granted Bush’s motion for full appellate review on
April 20.
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No. 40241-6-II
State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011
(1992). We do not need to be convinced of the defendant’s guilt beyond a reasonable doubt, but
only that substantial evidence supports the jury’s verdict. State v. Jones, 93 Wn. App. 166, 176,
968 P.2d 888 (1998), review denied, 138 Wn.2d 1003 (1999). We presume that jurors follow the
court’s instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994); State v. Weber,
99 Wn.2d 158, 166, 659 P.2d 1102 (1983).
A sex offender is statutorily required to register with the sheriff of his county of residence.
Former RCW 9A.44.130(1)(a) (2006); Peterson, 168 Wn.2d at 768. A convicted sex offender
changing his residence within the same county must provide the county sheriff with written notice
of the change within 72 hours. Former RCW 9A.44.130(5)(a) (2006); State v. Stratton, 130 Wn.
App. 760, 764, 124 P.3d 660 (2005). A convicted sex offender who lacks a “fixed residence”
must provide written notice to the sheriff of the county where he last registered within 48 hours.
Former RCW 9A.44.130(6)(a) (2006); Stratton, 130 Wn. App. at 764. In addition, an offender
who lacks a fixed residence must report weekly, in person, to the sheriff of the county where he is
registered. Former RCW 9A.44.130(6)(b) (2006); Stratton, 130 Wn. App. at 764.
The offense of failure to register is a continuing course of conduct crime.2 Peterson, 168
Wn.2d at 766 (failure to register is not an alternative means crime merely because it can be
accomplished in different ways); State v. Green, 156 Wn. App. 96, 100, 230 P.3d 654 (2010)
(statute requiring a convicted sex offender to register “in person, every ninety days” indicates that
the unit of prosecution is an ongoing course of conduct); see former RCW 9A.44.140(6) (2002)
2
Federal courts have similarly held that failure to register is a continuing offense under the Sex
Offender Registration and Notification Act, 18 U.S.C. § 2250. See United States v. George, 579
F.3d 962, 964-68 (9th Cir. 2009), amended on reh’g, 625 P.3d 1124 (9th Cir. 2010).
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No. 40241-6-II
(“[u]nless relieved of the duty to register . . . a violation of RCW 9A.44.130 is an ongoing
offense”). “There is only one method by which an offender fails to register, and that is if he
moves from his residence without notice.” Peterson, 168 Wn.2d at 770. A person is guilty of
failure to register as a sex offender when, having been previously convicted of a qualifying sex
offense, he knowingly fails to comply with any of the statutory requirements. Former RCW
9A.44.130(11)(a); former RCW 9A.44.130(10)(a) (2006). Thus, at trial, the State was required
to prove beyond a reasonable doubt that on, about, or between July 30, 2009 and August 6, 2009,
Bush was a sex offender who knowingly did not register as the law required.
Here, Bush registered Alo’s apartment as his residence on July 30, 2009. Alo testified
that Bush sometimes slept on the couch in her apartment but did not live there. Bush testified that
he slept on Alo’s couch, had a backpack of belongings, and would call ahead to see if he could
spend the night at Alo’s apartment. Detective Davis testified that Bush told him that he would
“come and go” from Alo’s apartment and that Bush “was basically transient.” 1 RP at 123.
Reviewing the evidence in the light most favorable to the jury’s verdict, we hold that
under these facts, any rational trier of fact could have found Bush guilty of failure to register.
Salinas, 119 Wn.2d at 201. Sufficient evidence supports a finding that Bush lacked a “fixed
residence” between July 30, 2009 and August 6, 2009, and that he did not register with the
county sheriff within 48 hours of lacking a “fixed residence” as required by former RCW
9A.44.130(6)(a). Moreover, the trial court instructed the jury that “where the offense is alleged
to have occurred more than once over a period of time, all twelve of you must agree that the same
criminal act was proved beyond a reasonable doubt.” CP at 20. Here the violation period was
specifically limited to the week between July 30, 2009 and August 6, 2009. Because we presume
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that jurors follow the court’s instructions and the remaining evidence amply supports the jury’s
finding of guilt, we hold that the State’s comments had no prejudicial effect influencing the jury’s
verdict. See, e.g., State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (failure to object
to State’s allegedly improper comments constitutes waiver unless the resulting prejudice could not
have been neutralized by a curative jury instruction (quoting State v. Brown, 132 Wn.2d 529, 561,
940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998))).
Accordingly, because the State met its burden to prove beyond a reasonable doubt that
Bush failed to comply with the sex offender registration statute during the time period charged
and the evidence was sufficient to support his conviction, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it
is so ordered.
QUINN-BRINTNALL, J.
We concur:
ARMSTRONG. J.
WORSWICK, A.C.J.
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