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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                                          DIVISION I

state of washington,         )       No. 65468-3-I
                                            )
                      Respondent,           )
                                            )       UNPUBLISHED OPINION
              v.                            ) 
                                            )
shayne aLLEN wedemeyer,                     )
                                            )
                      Appellant.            )       FILED:  January 17, 2012

       Schindler, J.  --  A jury convicted Shayne Allen Wedemeyer of failure to register

as a sex offender in violation of former RCW 9A.44.130 (2006).  For the first time on 

appeal, Wedemeyer claims the information did not allege an essential element of the 

crime.  Wedemeyer also claims insufficient evidence supports the jury verdict.  We 

affirm.

                                            FACTS

       On November 2, 1993, a jury convicted Shayne Allen Wedemeyer of rape of a 

child in the third degree.  As a convicted sex offender, state law required Wedemeyer
register with the Snohomish County Sheriff and report any change in address.1  

       On July 12, 2006, Wedemeyer notified the Snohomish County Sheriff's Office of 

a change of address.  Wedemeyer stated that he was living at 44021 179th Place SE, 

       1 Former RCW 9A.44.130(1)(a). 

No. 65468-3-I/2

Gold Bar, Washington 98251. Wedemeyer's mother has lived at that address in Gold 

Bar for approximately 10 years.  

       During 2007, a detective in the Snohomish County registered sex offender unit,

Detective David Coleman, received several reports from the patrol deputies that 

Wedemeyer was not living at his registered address.  Detective Coleman described the 

process for verifying a registration address for a sex offender and the need to obtain a 

written statement as follows:    

       The process is that patrol deputies go out and do address verification.  I 
       complete a monthly list of the addresses where people need to -- where 
       the patrol officers need to go and verify address verification.  In this case I 
       received patrol checks back that indicated that he may not live there, Mr. 
       Wedemeyer may not live at his registered address.  Normally with those I 
       get a written statement and then I'm able to really get my investigation 
       going and get it to the prosecutor's office.  In the checks that I received 
       regarding Mr. Wedemeyer, that didn't happen.  So, what I needed to do 
       was go out and verify whether in fact he was actually living there or not 
       and get a written statement from someone at the residence that had that 
       information and could give me that information, whether he lived there or 
       not. 

       On December 2, 2008, Detective Coleman went to Wedemeyer's registered 

address at 44021 179th Place SE in Gold Bar to determine whether he still lived there

and obtain a written statement.  Wedemeyer's mother Lorna Galbreth confirmed that 

Wedemeyer had lived with her but told Detective Coleman that "she had kicked 

[Wedemeyer] out around the middle of August because of his continued drug use."

       On December 31, the State charged Wedemeyer with failure to register as a sex 

offender.  The information alleged that "on or about the 15th day of August, 2006, 

[Wedemeyer] cease[d] to reside at [his registered] residence and did knowingly fail to

provide timely written notice to the county sheriff's office" as required under former 

                                               2 

No. 65468-3-I/3

RCW 9A.44.130.  

       Before trial, the prosecutor stated that in order to prove Wedemeyer was a sex 

offender and that Wedemeyer knew he had an obligation to register a change of his 

residential address, the State planned to introduce into evidence certified copies of the 

judgment and sentence for his 1993 conviction of rape of a child in the third degree and

two prior convictions for failure to register as a sex offender.  In response, Wedemeyer

agreed to stipulate that he "was convicted of a sex offense that requires him to register 

with the county sheriff for the county of his residence," and "has actual knowledge of 

his registration requirements."

       The only witnesses at trial were Wedemeyer's mother Lorna Galbreth and 

Detective Coleman.  Galbreth testified that she told her son to leave in "July or August 

of 2006" and he had not resided with her or been to her house since he left.  

       During Detective Coleman's testimony, the State introduced into evidence a 

number of exhibits showing that beginning in 1996 until July 12, 2006, Wedemeyer

reported a change of his registered residential address to the Snohomish County 

Sherriff's Office eight different times.  As reflected in Exhibit 16, Wedemeyer's last 

registered residential address is his mother's house located at 44021 179th Place SE 

in Gold Bar.  The uncontroverted evidence established that Wedemeyer had not 

reported a change in residential status or a change of address since July 12, 2006.  

       At the request of the parties, the court read into evidence the stipulation that 

Wedemeyer was a sex offender and knew he had an obligation to report a change in 

his residential address to the Snohomish County Sherriff's Office.

                                               3 

No. 65468-3-I/4

       During closing argument, the prosecutor pointed out that Wedemeyer admitted 

he was convicted as a sex offender and that he knew he had an obligation to comply 

with the sex offender registration requirements.  The prosecutor argued that because

the uncontroverted evidence established that Wedemeyer did not register a change of 

address or a change of residential status after moving out of his mother's house in mid-

August 2006, he was guilty of the crime of failure to register as a sex offender.  The 

defense argued that the delay in filing the charges against Wedemeyer was

unreasonable and the State did not prove beyond a reasonable doubt exactly when 

Wedemeyer moved out of his mother's house. 

       The jury found Wedemeyer guilty of the charged crime and the court imposed a 

standard range sentence.  

                                          ANALYSIS

Charging Document

       For the first time on appeal, Wedemeyer argues that the information is

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

crime that he had an obligation to register a residential address within the same county 

within 72 hours.

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

elements of the charged crime.  U.S. Const. amend. VI; Wash. Const. art. I, § 22

(amend. 10); State v. Campbell, 125 Wn.2d 797, 801, 888 P.2d 1185 (1995).  The 

purpose of the essential elements rule is "to give notice of the nature and cause of an 

accusation against the accused so that a defense can be prepared." Campbell, 125 

                                               4 

No. 65468-3-I/5

Wn.2d at 801. The charging document need not use the exact words of the statute. 

State v. Kjorsvik, 117 Wn.2d 93, 108, 812 P.2d 86 (1991).  Rather, "the question . . . is 

whether all the words used would reasonably apprise an accused of the elements of 

the 

                                               5 

No. 65468-3-I/6

crime charged." Kjorsvik, 117 Wn.2d at 109.

       A defendant can challenge the sufficiency of a charging document for the first 

time on appeal. Kjorsvik, 117 Wn.2d at 102.  However, if raised for the first time on 

appeal, we apply a stricter standard of review and liberally construe the language of the 

charging document in favor of validity.  Kjorsvik, 117 Wn.2d at 103 -- 05.  We "examine 

the document to determine if there is any fair construction by which the elements are all 

contained in the document."

              This stricter standard, to be used when the sufficiency of an 
       indictment is challenged initially on appeal, permits a court to construe a 
       charging document quite liberally.  If the information contains allegations 
       that express the crime which was meant to be charged, it is sufficient 
       even though it does not contain the statutory language. . . . A court should 
       be guided by common sense and practicality in construing the language. . 
       . . Even missing elements may be implied if the language supports such a 
       result.
State v. Hopper, 118 Wn.2d 151, 155 -- 56, 822 P.2d 775 (1992).2 However, even if

such a construction is possible, the charging document is adequate only if "the 

defendant has suffered no prejudice as a result of the ambiguous or vague language in 

the information." Hopper, 118 Wn.2d at 156.

       The State charged Wedemeyer with the crime of failure to register as a sex 

offender and alleged that on or about August 15, 2006, Wedemeyer ceased living at 

the registered address and knowingly failed to provide notice as required by former 

RCW 9A.44.130.

       During July and August 2006, the legislature enacted three versions of the

statute defining the crime of failure to register:  Laws of 2006, chapter 126, section 1 (in 

       2 (Citations omitted.)

                                               6 

No. 65468-3-I/7

effect June 7, 2006 to September 1, 2006); Laws of 2006, chapter 128, section 1 (in 

effect June 7, 2006 to September 1, 2006); and Laws of 2006, chapter 129, section 1 

(in effect June 7, 2006 to September 1, 2006).  

       Where the legislature amends a statute more than once during a legislative 

session, "each act shall be given effect to the extent that the amendments do not 
conflict in purpose." RCW 1.12.025(1).3  The amendments enacted by the legislature

in the three versions of the sex offender registration statute during the 2006 legislative 

session do not conflict in purpose.  Chapter 126 and chapter 128 define the crime of 

failure to register as a sex offender as follows:

       A person who knowingly fails to . . . comply with any of the requirements 
       of this section is guilty of a class C felony if the crime for which the 
       individual was convicted was a felony sex offense.

Laws of 2006, ch. 126, § 1(10)(a); Laws of 2006, ch. 128, § 1(10)(a).  

       Chapter 129 defines the crime of failure to register as follows:

       A person who knowingly fails to register with the county sheriff or notify 
       the county sheriff, or who changes his or her name without notifying the 
       county sheriff and the state patrol, as required by this section is guilty of a 
       class C felony if the crime for which the individual was convicted was a 
       felony sex offense.

Laws of 2006, ch. 129, § 1(11)(a).  

       The amended information charging Wedemeyer with the crime of failure to 

register as a sex offender in violation of former RCW 9A.44.130 states, in pertinent 

part:

       3 RCW 1.12.025(1) provides, in pertinent part:
       If at any session of the legislature there are enacted two or more acts amending the 
       same section of the session laws or of the official code, each amendment without 
       reference to the others, each act shall be given effect to the extent that the amendments 
       do not conflict in purpose.
                                               7 

No. 65468-3-I/8

       FAILURE TO REGISTER, committed as follows:  That the defendant, 
       having been convicted on or about the 2nd day of November, 1993, of a 
       sex offense or kidnapping offense, to wit:  Rape of a Child in the Third 
       Degree, being required to register pursuant to RCW 9A.44.130, and 
       having registered as residing at a fixed residence, did, on or about the 
       15th day of August, 2006, cease to reside at that residence and did 
       knowingly fail to provide timely written notice to the county sheriff's office; 
       proscribed by RCW 9A.44.130, a felony.

       Wedemeyer argues that the information is constitutionally inadequate because 

the State did not allege as an essential element of the crime that he was required to 

report within 72 hours.  The three versions of former RCW 9A.44.130 that were 
enacted during the 2006 legislative session contain nearly identical deadlines.4 A sex 

offender who moves to another residential address within the same county must 

register within 72 hours.  If the sex offender moves to a new county, the offender must 

register with the sheriff of the new county within 24 hours.  Laws of 2006, ch. 126, § 

1(5)(a); Laws of 2006, ch. 128, § 1(5)(a); Laws of 2006, ch. 129, § 1(5)(a).  If the sex 

offender ceases to have a fixed residence, the offender must provide written notice to 

the county sheriff within 48 hours, excluding weekends and holidays.  Laws of 2006, ch. 
126, § 1(6)(a); Laws of 2006, ch. 128, § 1(6)(a); Laws of 2006, ch. 129, § 1(6)(a).5  

       The elements of a crime are defined as " '[t]he constituent parts of a crime  -- 

usu[ally] consisting of the actus reus, mens rea, and causation  --  that the prosecution 

       4 The only difference between the versions is that chapter 126 added the requirement that written 
notice to the county sheriff about a change of address must be signed.  Laws of 2006, ch. 126, § 1(5)(a), 
1(6)(a).  
       5 In 2010 and 2011, the legislature amended RCW 9A.44.130.  Laws of 2010, ch. 265, § 1; Laws of 
2010, ch. 267, §§ 1-3; Laws of 2011, ch. 337, §§ 3-5.  RCW 9A.44.132(1) defines the crime of failure to 
register as a sex offender:
       A person commits the crime of failure to register as a sex offender if the 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.
Laws of 2011, ch. 337, § 5(1).  RCW 9A.44.130 now describes the procedures for registering as a sex 
offender, and adjusts the various registration deadlines to "three business days." Laws of 2010, ch. 267, § 2.  
                                               8 

No. 65468-3-I/9

must prove to sustain a conviction.' " State v. Fisher, 165 Wn.2d 727, 754, 202 P.3d 

937 (2009) (quoting Black's Law Dictionary 559 (8th ed. 2004)).  

       The essential elements of failure to register as a sex offender as defined in 

                                               9 

No. 65468-3-I/10

former RCW 9A.44.130(11) are the knowing failure to timely register with the county 

sheriff a residential change of address as required by the statute.  Laws of 2006, ch. 

126, § 1(10)(a); Laws of 2006, ch. 128, § 1(11)(a); Laws of 2006, ch. 129, § 1(11)(a).  

In State v. Peterson, 168 Wn.2d 763, 230 P.3d 588 (2010), our supreme court held that 

"the failure to register statute contemplates a single act that amounts to failure to 

register:  the offender moves without alerting the appropriate authority."  Peterson, 168 
Wn.2d at 770.6 The court also states that "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.  

       Here, the amended information charging Wedemeyer with the crime of failure to 

register in violation of former RCW 9A.44.130 is constitutionally adequate.  The State 

alleged that Wedemeyer ceased living at the registered address on or about August 15 

and knowingly failed to register as required by former RCW 9A.44.130.  Moreover, 

even if the language used in the information is ambiguous or vague, Wedemeyer 

cannot show prejudice where his status was unknown and he did not comply with any 

of the applicable deadlines.

       Wedemeyer's reliance on a footnote in Peterson to argue the information is 

constitutionally inadequate is misplaced. The footnote is related to sufficiency of the 
evidence, and not whether the information was constitutionally adequate.7  

       6 (Emphasis in original.)
       7 The footnote states:  
              Common sense suggests the statutory deadline is part of the State's burden of 
       proof.  It would not be sufficient for the State to prove failure to register within 24 hours, 
       for example. . . . But we need not decide this particular question.  The issue before us is 
       whether the offender's residential status must be proved in order to convict.  
Peterson, 168 Wn.2d at 771 n.7.
                                              10 

No. 65468-3-I/11

Sufficiency of the Evidence

       In the alternative, Wedemeyer asserts insufficient evidence supports his 

conviction of failure to register.  Wedemeyer argues that under the law of the case 

doctrine, the State assumed the burden of proving that he committed the crime of

failure to register on August 15, 2006. The State contends Wedemeyer ignores the 

language used in the to-convict jury instruction, and asserts that use of the phrase "on 

or about" August 15, 2006 supports the jury finding that the crime was committed 

sometime in August. In support, the State cites State v. Hayes, 81 Wn. App. 425, 914 

P.2d 788 (1996), to argue that "on or about" does not require the State to prove that 

Wedemeyer ceased to reside at his registered address on a particular date.  In Hayes, 

we held that use of the language "on or about" is sufficient to prove the act at any time 

within the statute of limitations, as long as there is no alibi defense and time is not a 

material element of the charged crime.  Hayes, 81 Wn. App. at 432-33.  

       In determining the sufficiency of the evidence, we view the evidence in the light 

most favorable to the State and determine whether any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.  State v. 

Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002).  A challenge to the sufficiency of 

the evidence admits the truth of the evidence.  State v. Salinas, 119 Wn.2d 192, 201, 

829 P.2d 1068 (1992).  "[A]ll reasonable inferences from the evidence must be drawn in 

favor of the State and interpreted most strongly against the defendant."  Salinas, 119 

Wn.2d at 201.  

       Under the law of the case doctrine, if the State does not object, the jury 

                                              11 

No. 65468-3-I/12

instructions become the law of the case, and "[i]n criminal cases, the State assumes the 

burden of proving otherwise unnecessary elements of the offense when such added 

elements are included without objection, in the 'to convict' instruction."  State v. 

Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).  

       The to-convict jury instruction used in this case states:

              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 on or about the 15th day of August, 2006, the defendant 
                    was required to register as a sex offender; 

              (2)   That on or about [the] 15th day of August, 2006 the defendant 
                    knowingly failed to comply with the following requirements of 
                    sex offender registration; 

                    (i) the requirement to register a change of address with the 
                    county sheriff within seventy-two hours (excluding weekends 
                    and holidays) of ceasing to permanently reside at the 
                    registered address;

              (3)   That the acts occurred in the State of Washington. 

       Wedemeyer argues that the State did not prove beyond a reasonable doubt that 

he moved out of his mother's house 72 hours before August 15, 2006.  Although the

State assumed the burden of proving that "on or about the 15th day of August, 2006, 

[Wedemeyer] was required to register as a sex offender," we reject Wedemeyer's 

argument that insufficient evidence supports his conviction. 

       Contrary to Wedemeyer's argument, the to-convict instruction did not require the 

jury to find that the duty to register occurred on August 15 but, rather, "on or about"

August 15.  Viewing the evidence in the light most favorable to the State, a rational jury 

                                              12 

No. 65468-3-I/13

could have found beyond a reasonable doubt that Wedemeyer knowingly failed to 

comply with the requirement to register a change of address with the county sheriff on 

or about August 15.  The undisputed evidence shows that Wedemeyer moved out of 

his mother's house sometime in July or August 2006 and that he had not registered a 

new address or change in residential status since July 12, 2006.    

       We affirm.

WE CONCUR:

                                              13