Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41196-2-II

                             Respondent,

       v.

WILLIAM AARON BARGE,                                       UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.   --   William Aaron Barge appeals his conviction of failure to register 

as a sex offender, arguing that the State presented insufficient evidence to support his conviction, 

that the absence of an opportunity to challenge his sex offender classification denied him due 

process, and that the sex offender classification statutes violate his right to equal protection.  

Finding no error, we affirm.

                                            FACTS

       As a result of his 1997 Lewis County conviction of third degree rape of a child, Barge was 

required to register as a sex offender.  Before his most recent release from prison, the Department 

of Corrections' End of Sentence Review Committee (ESRC) classified him as a level II offender.  

After his release, the Lewis County Sheriff's Office did its own assessment and agreed with the 

level II classification.   

No. 41196-2-II

       On April 22, 2009, Barge appeared at the Lewis County Sheriff's Office and registered as 

a level II sex offender with a fixed residence.  Detective Bradford Borden, who is in charge of sex 

offender registration in Lewis County, told Barge that his risk classification required him to report 

to the office every 90 days.  Barge then signed a form stating that he had to report on June 16, 

2009, between 8:00 am and 5:00 pm.  This was the date the sheriff's office had previously set for 

second quarter registration for level II and level III sex offenders in the county.  The form stated 

in bold print that "it is a felony offense to not report on the established date." Ex. 2.  

       Barge did not report on June 16.  Rather, he called the sheriff's office early the next 

morning and appeared in person a few hours later.  As a consequence, the State charged him with 

knowingly failing to register "on the required day for the 90 day reporting requirement" under 

former RCW 9A.44.130(7) and (11)(a) (2006).1  Clerk's Papers at 31.  

       The matter proceeded to a bench trial after Barge waived his right to a jury.  Detective 

Borden testified that Barge reported on June 17, 2009, rather than the set reporting date of June 

16.  He said that Barge called at 8:20 am on June 17, and came in later that morning, explaining 

that he had forgotten about the reporting date until he got home on June 16 after 6:00 pm.  

Borden added that he was in his office until 7:00 pm on June 16 and did not hear from Barge that 

night.  When Barge came in on June 17, he acknowledged having signed and received a copy of 

the reporting notification form.  

       Barge's ex-girlfriend testified that she picked him up from work at about 5:00 pm on June 

16 and drove him home.  Barge testified that when he got home from work, he realized his 

1 In an amendment that took effect on June 10, 2010, the legislature eliminated the 90-day 
specification in the reporting requirement.  Laws of 2010, ch. 265, § 1.

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No. 41196-2-II

oversight and called the sheriff's office then and the next morning.  When he got to the office on 

June 17, he explained that he had forgotten about the reporting date because of his many 

community supervision requirements.  He did not deny signing and receiving a copy of the 

reporting notification form.  

       The trial court found Barge guilty, noting that his explanation for his behavior was not a 

defense.  The court then denied Barge's motion for arrest of judgment, finding substantial 

evidence that he failed to report on the date directed.  Based on Barge's offender score of 14, 

which included two prior convictions of failure to register, the trial court imposed a high-end 

sentence of 57 months but granted a stay of sentence pending this appeal.  

                                         DISCUSSION

Sufficiency of the Evidence

       Barge argues initially that the State produced insufficient evidence to support his 

conviction.  Evidence is sufficient to support a conviction if, viewed in the light most favorable to 

the State, 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 State's evidence and all reasonable inferences that can be 

drawn therefrom.  Salinas, 119 Wn.2d at 201.  

       Barge was charged with violating former RCW 9A.44.130(7) and (11)(a).  Former 

subsection (7) provided as follows:

       All offenders who are required to register pursuant to this section who have a fixed 
       residence and who are designated as a risk level II or III must report, in person, 
       every ninety days to the sheriff of the county where he or she is registered.  
       Reporting shall be on a day specified by the county sheriff's office, and shall occur 
       during normal business hours. . . . Failure to report, as specified, constitutes a 
       violation of this section and is punishable as provided in subsection (11) of this 

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No. 41196-2-II

       section.  

Former RCW 9A.44.130(11)(a) added that "[a] person who knowingly fails to comply with any 

of the requirements of this section" was guilty of a class C felony if that person had a prior felony 

sex offense conviction.

       Barge argues that the only act punishable under these provisions was the failure to report 

every 90 days.  He contends that by failing to report on June 16 after registering on April 22, he 

failed to report only after a 55-day interval and therefore did not commit a crime.  

       We recently rejected a similar sufficiency argument raised by another offender who missed 

the same June 16 reporting date in Lewis County.  State v. Caton, 163 Wn. App. 659, 665-66, 

260 P.3d 946 (2011).  Caton contended that his failure to report on June 16, 2009, occurred only 

27 days after his initial registration and thus did not violate the 90-day reporting requirement in 

former RCW 9A.44.130(7).  Caton, 163 Wn. App. at 676.  Citing the unchallenged findings 

establishing that he knowingly failed to report on the designated reporting date, as well as 

additional testimony that he was a level II sex offender and subject to the reporting requirement, 

we concluded that sufficient evidence supported Caton's conviction.  Caton, 163 Wn. App. at 676-

77.

       Barge does not challenge any findings of fact, including those establishing that he 

knowingly failed to report to the sheriff's office on June 16, 2009, one of the quarterly preset 

reporting dates.  Former RCW 9A.44.130(7) allowed sheriffs to impose such preset reporting 

dates, and Barge does not expressly challenge that grant of authority.2  See Caton, 163 Wn. App. 

2 The legitimacy of the sheriff's authority to set a reporting date within the 90-day reporting 
period appears to be the real basis for complaint, but Barge's sufficiency challenge does not 
present this issue for review.

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No. 41196-2-II

at 671-72 (rejecting equal protection challenge to statutory provision allowing counties to set 

reporting date within 90-day registration period for level II and III sex offenders).  Under former 

RCW 9A.44.130(11)(a), the failure to comply with any requirement of former RCW 9A.44.130 

constituted a crime, and the State here provided sufficient evidence that Barge violated one such 

requirement.  There is no ambiguity in the statutory reporting requirements that triggers the rule 

of lenity, and we reject Barge's sufficiency challenge.  See State v. Jacobs, 154 Wn.2d 596, 601, 

115 P.3d 281 (2005) (if a criminal statute is ambiguous, the rule of lenity requires appellate courts 

to interpret the statute in favor of the defendant absent legislative intent to the contrary).

Due Process Right to Challenge Sex Offender Classification

       Barge next contends that the ESRC, the Lewis County Sheriff, and the trial court denied 

him procedural due process by not giving him an opportunity to contest his sex offender 

classification.  

       Barge made no attempt to challenge his level II classification below.  Generally, an 

appellate court may refuse to consider a claim of error not raised before the trial court.  RAP 

2.5(a); State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011).  An exception exists for a 

claim of manifest error affecting a constitutional right.  RAP 2.5(a)(3); Gordon, 172 Wn.2d at 

676.  "Manifest" under RAP 2.5(a)(3) requires a showing of actual prejudice, or a showing that 

the alleged error had practical and identifiable consequences in the trial of the case.  Gordon, 172 

Wn.2d at 676; State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009).  

       Barge contends that his right to procedural due process was violated because he was 

denied the opportunity to challenge his risk level classification.  Both the Fourteenth Amendment 

and the Washington Constitution provide that no person shall be deprived of life, liberty, or 

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No. 41196-2-II

property without due process of law.  State v. Green, 157 Wn. App. 833, 847, 239 P.3d 1130 

(2010).  Procedural due process requires notice and an opportunity to be heard before the 

government can take a person's liberty or property interests.  Green, 157 Wn. App. at 847.  

Barge argues that his classification as a level II sex offender subjected him to further punishment 

and thus gave him a liberty interest in being free from improper classification.  

       Before the quarterly reporting requirement was added to former RCW 9A.44.130 in 2006, 

the Supreme Court rejected a due process challenge to the sex offender classification statutes in 

In re Personal Restraint of Meyer, 142 Wn.2d 608, 16 P.3d 563 (2001).  The court concluded 

that the statutes were procedural rather than punitive and thus created no liberty interest.  Meyer, 

142 Wn.2d at 619.  In so holding, the court added that an offender could obtain judicial review of 

an arbitrary and capricious classification by filing a writ of certiorari.  Meyer, 142 Wn.2d at 624.  

The court also noted that an offender could get his risk classification changed by petitioning the 

superior court of conviction to relieve him of the duty to register.  Meyer, 142 Wn.2d at 614 n.2; 

former RCW 9A.44.140(3) (1998).       There is no statutory provision for a hearing before the 

ESRC and local law enforcement agency to determine an offender's risk level classification. In re 

Det. of Enright, 131 Wn. App. 706, 713, 128 P.3d 1266 (2006), review denied, 158 Wn.2d 1029 

(2007).

       Barge contends that Meyer and the limited relief it offers is not controlling here.  He 

maintains that with the subsequent enactment of former RCW 9A.44.130(7) and the creation of 

the offense of failure to register every 90 days as a level II or III offender, such offenders secured 

a liberty interest in being free from improper classification.  See In re Det. of Bergen, 146 Wn. 

App. 515, 525, 195 P.3d 529 (2008) (laws that dictate particular outcome based on particular 

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No. 41196-2-II

facts can create liberty interests that trigger due process protection), review denied, 165 Wn.2d 

1041 (2009).  

       But even if Barge is correct in arguing that he had a due process right to challenge his sex 

offender classification either before or during his prosecution for failure to register, which we do 

not hold, he made no attempt to exercise that right either before trial, at trial, in his motion for 

arrest of judgment, or at sentencing.  See Enright, 131 Wn. App. at 710 (court examined merits of 

due process claim where a sexually violent predator unsuccessfully sought to challenge his level 

III classification during hearing on less restrictive alternative petition).  As a consequence, the 

record is insufficient to determine whether Barge was improperly classified and thus prejudiced by 

the inability to challenge his classification either before or during trial.  Because there is no 

showing of manifest error, Barge has not preserved his procedural due process challenge for 

appellate review.  

Equal Protection and the Risk Classification Statutes

       Finally, Barge argues that RCW 4.24.550(6)(b)          and RCW 72.09.345, the risk 

classification statutes, violate equal protection by allowing similarly situated sex offenders to be 
disparately classified depending on each county sheriff's criteria.3  

       The classification of sex offenders according to their risk of reoffending is authorized by 

RCW 72.09.345 and RCW 4.24.550.  Enright, 131 Wn. App. at 712.  When a sex offender is 

scheduled for release from confinement, the ESRC accesses all relevant records and information 

to determine the risk the offender poses to the community.  RCW 72.09.345(3), (4); Enright, 131 

3 We cite the current statutes for clarity; the pertinent substantive provisions here remained 
unchanged since Barge committed his offense.  State v. Singer, 159 Wn.2d 224, 227 n.3, 149 
P.3d 372 (2006).  
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No. 41196-2-II

Wn. App. at 713.  Level I offenders are considered a low risk to reoffend, level II are at moderate 

risk, and level III are at high risk to reoffend.  RCW 72.09.345(6); Enright, 131 Wn. App. at 713.  

The ESRC notifies the sheriff or other local law enforcement agency in the offender's community 

of the offender's pending release and the recommended classification.  RCW 72.09.345(7); 

Meyer, 142 Wn.2d at 613.  The ESRC must provide the reasons underlying level II and III 

classifications.  RCW 72.09.345(7).  

       Local law enforcement agencies make the final determination of a sex offender's risk level 

after reviewing the ESRC's recommendation.  RCW 4.24.550(6)(b); Meyer, 142 Wn.2d at 613.  

If the local law enforcement agency decides to classify an offender differently, it must notify the 

ESRC and submit its reasons for the change.  RCW 4.24.550(10).  Depending on the risk level, 

the law enforcement agency discloses to the community relevant information concerning the 

offender.  Meyer, 142 Wn.2d at 613-14.  And, under former RCW 9A.44.130(7), level II and 

level III offenders with fixed addresses must report quarterly to local law enforcement.  

       Barge argues here that the risk assessment statutes violate equal protection because they 

provide no standards for the ultimate classification and lead to disparate classifications depending 

on the sheriff or local law enforcement agency involved.  As Detective Borden explained, "In 

Lewis County we [classify sex offenders] through a review of the documentations provided by the 

End of Sentence Review Committee and then we also do a risk assessment ourselves."  Report of 

Proceedings (Apr. 23, 2010) at 18.  Barge contends that there are as many approaches to 

assigning risk assessment levels as there are counties.  

       This contention is based solely on Barge's conclusory assertions made for the first time on 

appeal.  Barge raised no such argument below, and there is nothing in the record showing how 

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No. 41196-2-II

Lewis County or any other county makes its risk assessments.  See State v. Brosius, 154 Wn. 

App. 714, 721, 225 P.3d 1049 (2010) (describing assessment tool Lewis County used to classify 

defendant).  To the extent that Barge raises a claim of disparate impact that lacks evidentiary 

support, we could decline to consider his equal protection challenge.  See O'Hara, 167 Wn.2d at 

99 (error is not manifest if the trial record is insufficient to determine the merits of the claim); 

State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993) (RAP 2.5(a)(3) does not mandate 

appellate review of newly-raised argument if record does not contain facts necessary for its 

adjudication).  But because Barge's equal protection challenge can be interpreted as one based 

solely on the legislature's failure to provide explicit procedures and standards for making risk 

assessments, the alleged error is grounded on a legal argument rather than undeveloped facts and 

we exercise our discretion to review it.  See State v. Osborne, 140 Wn. App. 38, 41, 163 P.3d 

799 (2007) (courts retain discretion under RAP 2.5(a) to hear issue raised for first time on 

appeal).  

       Constitutional equal protection guarantees require similar treatment under the law for 

similarly situated persons.  Caton, 163 Wn. App. at 670-71 (citing U.S. Const. amend. XIV, § 1; 

Wash. Const. art. I, § 12).  Because sex offenders are not a suspect class, we review this 

challenge under the rational basis test.  Caton, 163 Wn. App. at 671.  Under this test, a statute 

violates equal protection unless it applies alike to all members within the designated class; there 

are reasonable grounds to distinguish between those within and those without the class; and the 

classification has a rational relationship to the purpose of the legislation.  Petersen v. State, 100 

Wn.2d 421, 445, 671 P.2d 230 (1983).  Barge argues that the risk classification statutes fail the 

first part of this test due to the lack of standards for assigning risk assessment levels.  

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No. 41196-2-II

       Barge incorrectly asserts that a county's risk assessment is a purely ad hoc decision.  

When this court considered a similar challenge to the risk assessment procedures for juvenile sex 

offenders, we observed that RCW 72.09.345 specifies a wide range of materials for the ESRC to 

consider in assigning risk levels and that this specification creates standards for classifying risk 

levels.  Brosius, 154 Wn. App. at 720.  Additional statutory standards exist in requiring the ESRC 

to specify the underlying reasons for a level II or III classification and in requiring a county sheriff 

to submit reasons for changing that recommended classification.  See Brosius, 154 Wn. App. at 

721.  Where a sex offender was classified without ESRC input, we found that classification 

completely lacking in standards but noted that we were not considering a circumstance where a 

local law enforcement agency set a risk level with the benefit of ESRC input.  State v. Ramos, 149 

Wn. App. 266, 276 n.10, 202 P.3d 383 (2009). 

       Furthermore, even if the assessment standards result in offenders being classified 

differently based on their county location, this result does not necessarily offend equal protection 

guarantees.  In reviewing an equal protection challenge to the former habitual criminal statute, 

RCW 9.92.090, we rejected the argument that the statute unlawfully delegated legislative 

authority because it lacked guidelines and allowed arbitrary application by the prosecuting 

attorney.4  State v. Ragan, 22 Wn. App. 591, 598, 593 P.2d 815, review denied, 92 Wn.2d 1013 

(1979).  The only limit that equal protection placed on the prosecuting attorney's discretion under 

that statute was that it could not be arbitrary, capricious, or based on constitutionally invidious 

standards.  Ragan, 22 Wn. App. at 599.  The fact that different county prosecutors might apply 

4 The "Habitual Offender Act" gave prosecutors the discretion to institute a habitual offender 
proceeding and seek a life sentence when a defendant was convicted and had certain prior felony 
convictions.  RCW 9.92.090; State v. Lee, 87 Wn.2d 932, 933-34, 558 P.2d 236 (1976), appeal 
dismissed, 432 U.S. 901 (1977).
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No. 41196-2-II

different standards in invoking the statute was immaterial.  "Territorial uniformity within a state is 

not a constitutional requirement."  Ragan, 22 Wn. App. at 599; see also State v. Anderson, 12 

Wn. App. 171, 174, 528 P.2d 1003 (1974) (rejecting argument that insufficient standards and 

safeguards in habitual criminal statute violated equal protection because defendant did not show 

that the prosecuting attorney had applied the statute on an arbitrary and discriminatory basis).  

       Barge makes no showing that county sheriffs have applied their risk assessment authority 

on an arbitrary and discriminatory basis.  Without such a factual showing, the possibility that 

counties employ different   procedures to make such classifications does not violate equal 

protection.  See McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S. Ct. 1101, 6 L. Ed. 2d 393 

(1961) (state legislatures are presumed to have acted within their constitutional power despite the 

fact that, in practice, their laws result in some inequality).  We reject Barge's equal protection 

challenge and affirm his conviction.  

       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:

VAN DEREN, J.

WORSWICK, A.C.J.

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