Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                                FILED
                                                                           FEB. 23, 2012
                                                                     In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29321-1-III
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )
ERIC P. ALGER,                                  )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Kulik, C.J.  --  Eric P. Alger appeals his conviction for failing to register as a sex 

offender.  The State alleged Mr. Alger changed his address without sending notice to the 

sheriff's office.  Mr. Alger claims that the State failed to produce sufficient evidence that 

he no longer lived at the registered address.  He contends that he continued to secretly 

reside at the apartment where he had previously registered as a sex offender so no new 

registration was required.  In a claim of insufficient evidence, we draw all reasonable 

inferences in favor of the State.  Here, the evidence was sufficient to show that Mr. Alger 

abandoned his apartment and did not intend to return.  Thus, the evidence supports the 

trial court's conclusion that Mr. Alger was guilty of failure to register as a sex offender  

No. 29321-1-III
State v. Alger

when he changed his place of residence. We affirm the conviction.

                                            FACTS

       Mr. Alger's conviction for indecent liberties required him to register as a sex 

offender.  On April 19, 2010, Mr. Alger moved into the New Washington Apartments in 

Spokane, Washington.  The Department of Corrections (DOC) approved Mr. Alger's 

living arrangements at the New Washington Apartments for three months, with his rent to 

be paid by the DOC.  The DOC paid Mr. Alger's first month's rent through May 19.  

       On April 20, Mr. Alger registered his New Washington Apartment address with 

the Spokane County Sheriff's Office.  On that same day, Mr. Alger met with his 

community corrections officer (CCO), Pamela Madill.  Officer Madill informed Mr. 

Alger that he was required to register as a sex offender and that he needed prior approval 

before changing his address.  She also informed Mr. Alger that he was required to sign in 

and out when he entered and exited the New Washington Apartments and that he needed 

to check in at the DOC kiosk between face-to-face meetings with his CCO.  Officer 

Madill set her next meeting with Mr. Alger for May 4. 

       Mr. Alger signed in and out regularly until April 29.  On April 29, Mr. Alger 

signed out but never signed back in.  No one saw him on the premises again.  

       On May 3, the manager of the New Washington Apartments conducted a welfare 

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State v. Alger

check on Mr. Alger's apartment.  The manager found Mr. Alger's apartment key on the 

bed and Mr. Alger's personal items strewn throughout the room.  He picked up the key, 

locked the room, and contacted Officer Madill to report Mr. Alger's apparent absence.  

The manager held Mr. Alger's key at the front desk for Mr. Alger to claim.  

       When Mr. Alger failed to attend the meeting with Officer Madill on May 4, a 

warrant was issued for his arrest.  Mr. Alger testified that once he missed his DOC 

appointment on May 4, he assumed a warrant would be issued. 

       On May 19, the last day of the monthly rental period, the apartment manager 

entered Mr. Alger's room again and packed up Mr. Alger's belongings.  According to the 

manager, the contents of the room had been undisturbed.  The manager placed Mr. 

Alger's belongings in storage.  Mr. Alger never attempted to retrieve his belongings.  The 

DOC did not pay rent for the remaining two months.  

       Mr. Alger maintained that he continued to sleep in his room regularly even after 

the manager cleared it on May 19.  However, Mr. Alger also testified that he did 

everything he could to avoid being seen in order to avoid arrest on the warrant.  He 

stopped signing in and out, did not enter or exit the building when the attendant occupied 

the front desk or when people were present, and used a butter knife to enter his 

apartment's interior door.  He also stated that he ate offsite, took care not to disturb the 

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No. 29321-1-III
State v. Alger

positioning of items in his room, and carried a backpack of items he retrieved from his 

room prior to the manager's May 3 room check.  

       Mr. Alger testified that he continued to use his apartment until his arrest on June 3. 

Mr. Alger was charged with failure to register as a sex offender between the dates of 

May 4 and May 18 by changing his address and failing to send notice to the sheriff's 

office.  The court found Mr. Alger guilty. Mr. Alger appeals the conviction, claiming that 

the State failed to produce sufficient evidence that he changed his residence from the 

New Washington Apartments.

                                         ANALYSIS

       In a challenge to a sufficiency of the evidence, the test is whether, viewing the 

evidence in the light most favorable to the State, any rational trier of fact could find the 

essential elements of the crime beyond a reasonable doubt.  State v. Gentry, 125 Wn.2d 

570, 596-97, 888 P.2d 1105 (1995).  "[A]ll reasonable inferences from the evidence must 

be drawn in favor of the State and interpreted most strongly against the defendant."  Id. at 

597.  Direct and circumstantial evidence are equally reliable.  State v. Delmarter, 94 

Wn.2d 634, 638, 618 P.2d 99 (1980).  

       The sex offender registration statute requires that registered sex offenders who 

change addresses within the same county "must send signed written notice of the 

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State v. Alger

change of address to the county sheriff within seventy-two hours of moving." Former 

RCW 9A.44.130(5)(a) (2006).  If the sex offender lacks a fixed residence, he or she must 

"provide signed written notice to the sheriff of the county where he or she last registered 

within forty-eight hours excluding weekends and holidays after ceasing to have a fixed 

residence." Former RCW 9A.44.130(6)(a).  

       The State must prove every element of a charged offense beyond a reasonable 

doubt.  In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).  A 

person must knowingly fail to comply with the registration requirements under 

RCW 9A.44.130 in order to be found guilty of the crime of failure to register as a sex 

offender.  Former RCW 9A.44.130(11)(a). 

       A residence is "the place where a person lives as either a temporary or permanent 

dwelling, a place to which one intends to return, as distinguished from a place of 

temporary sojourn or transient visit."  State v. Pickett, 95 Wn. App. 475, 478, 975 P.2d 

584 (1999).  However, residential status is not an element of the crime of failure to 

register.  State v. Peterson, 168 Wn.2d 763, 774, 230 P.3d 588 (2010).

       The intent of the sex offender registry is to aid law enforcement in keeping the 

community safe by knowing the whereabouts of sex offenders.  Id. at 773-74.

       This court's decision in State v. Drake, 149 Wn. App. 88, 201 P.3d 1093 (2009) 

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State v. Alger

provides guidance in assessing Mr. Alger's situation.  Mr. Drake, a sex offender, 

registered his apartment address with the police department.  Id. at 91.  On May 6, Mr. 

Drake failed to pay rent and was evicted.  Id.  Mr. Drake did not register a change of 

address between May 6 and May 20 and was convicted of failure to register as a sex 

offender.  Id. at 91-92.  On appeal, this court determined that the State failed to prove 

beyond a reasonable doubt that Mr. Drake knowingly failed to register.  Id. at 95.  

Because the State did not produce evidence that Mr. Drake had notice of the eviction, the 

State did not prove the mens rea element -- that Mr. Drake knew he needed to register a 

new address.  Id. at 94.

       This court also determined that the State failed to present evidence that would 

infer that Mr. Drake did not intend to return.  Id. at 95.  "If Mr. Drake maintained his 

residence at the New Washington Apartments and intended to return there, he was under 

no duty to change his registration to another residence or declare that he had no fixed 

residence."  Id. at 94-95.

       Here, in support of the contention that Mr. Alger changed his residence by 

abandoning his apartment, the State presented the testimony of the apartment manager 

that (1) he did not see Mr. Alger in the building, (2) he had Mr. Alger's key in his 

possession, and (3) he noticed that the contents of Mr. Alger's room were undisturbed.  

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No. 29321-1-III
State v. Alger

The State also presented evidence that Mr. Alger failed to use a sign-in sheet as proof that 

he was not residing at the apartment.  

       Mr. Alger contends that he did not abandon his apartment and lived there 

undetected.  Mr. Alger stated that he hid in order to avoid arrest on a DOC warrant.  The 

apartment manager testified that it was possible, though unlikely, for Mr. Alger to come 

into the building at night and enter the room without being seen.  

       Based on this evidence, the trial court concluded that "the defendant ceased being 

regularly and publically [sic] present at the 327 ½ W Second address regardless of 

whether it was because he had physically abandoned the premises or just intended to 

make it impossible for persons to locate him at that residence."  Clerk's Papers (CP) at

53.  "The defendant abandoned the public residence where he could be located at by the 

[Spokane County Sheriff's Office] and did not register a new address." CP at 54.

       Based on the testimony of the apartment manager, the court could infer that Mr. 

Alger abandoned his residence and did not intend to return. The evidence of Mr. Alger's 

intent not to return distinguishes this situation from Drake. Therefore, with all 

reasonable inferences drawn in favor of the State and interpreted most strongly against 

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State v. Alger

Mr. Alger, the evidence is sufficient to support the trial court's conclusion that Mr. Alger 

was guilty of failure to register as a sex offender.

       We affirm the decision of the trial court.

       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.

                                            _________________________________
                                            Kulik, C.J.

WE CONCUR:

______________________________              _________________________________
Sweeney, J.                                 Korsmo, J.

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