WPIC 49C.02 Failure to Register as Sex or Kidnapping Offender—Elements

In element (1), choose from among the bracketed alternatives depending on the nature of the charge and any applicable stipulations. Refer to the Comment to WPIC 49C.05 (Requirements of Sex and Kidnapping Offender Registration under RCW 9A.44.130—Definition) for a list of “felony sex offenses” that require registration as a sex offender. If the defendant is accused with having multiple prior offenses in element (1), parties should modify the instruction as needed.

In practice, the parties often stipulate to the existence of a prior conviction. See WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)) for a discussion of “Old Chief” stipulations applicable to “felony sex offense” in element (1) and the registration requirement in element (2).

In element (2), fill in the beginning and ending dates of the charging period in the spaces marked “date 1” and “date 2.” Choose from among the bracketed phrases depending on whether the case is in superior or district court.

In element (3), use either the bracketed phrase “a requirement of sex offender registration” and instruction WPIC 49C.05 (Requirements of Sex and Kidnapping Offender Registration under RCW 9A.44.130—Definition), or fill in the bracketed space with a single requirement of sex offender registration, if the defendant is charged with violating a single registration requirement.

If the offense charged is Class B felony failure to register as a sex offender, use WPIC 49C.03 (Special Verdict Form—Failure to Register as Sex Offender—Class B Felony). If the offense charged is Class C felony failure to register as a sex offender, use WPIC 49C.04 (Special Verdict Form—Failure to Register as Sex Offender—Class C Felony).

Use WPIC 10.02 (Knowledge—Knowingly—Definition) with this instruction.

RCW 9A.44.130; RCW 9A.44.132. This instruction has been modified for this edition. The statutes do not require the prosecutor to prove the date of conviction, so element (1) has been revised to remove that requirement.

Essential elements. The to-convict instruction sets forth the essential elements of the offense by requiring the State to prove that the defendant was required to register as a sex or kidnapping offender and that the defendant failed to do so. The particular registration requirements that are alleged to have been violated may be set forth in a separate instruction. See State v. Bennett, 154 Wn.App. 202, 206–08, 224 P.3d 849 (2010). Frequently, it will be preferable to list the applicable registration requirements in a separate instruction, using WPIC 49C.05 (Requirements of Sex and Kidnapping Offender Registration under RCW 9A.44.130—Definition). If the defendant is charged with violating a single registration requirement, it may be preferable to incorporate the language of that requirement into this instruction.

Registration requirement—element (3). Practitioners will need to decide, depending on the circumstances of the particular case, whether to phrase element (3) using the generic language “a requirement of sex [or kidnapping] offender registration” or instead using the blank second bracket to identify a particular requirement of registration, such as “the requirement to register with the county sheriff within three business days of being sentenced.”

Alternative means. The Supreme Court has held that the offense of failing to register does not involve alternative means. State v. Peterson, 168 Wn.2d 763, 769–71, 230 P.3d 588 (2010). In Peterson, the defendant had argued that the statute's creation of multiple deadlines, each applying in different circumstances depending on the defendant's residential status, constituted alternative means for committing the offense. The court rejected this argument, concluding “[t]he fact that different deadlines may apply depending on the offender's residential status does not change the nature of the criminal act: moving without registering.” Moreover, “[t]here is only one method by which an offender fails to register, and that is if he moves from his residence without notice.” State v. Peterson, 168 Wn.2d at 770.

The Court of Appeals has concluded that Peterson's holding on alternative means should be limited to cases in which a defendant's change in residence is at issue. State v. Mason, 170 Wn.App. 375, 381, 285 P.3d 154 (2012). In Mason, the court observed that the statute includes registration requirements that are not tied to a defendant's change in residence.

Given these two decisions, practitioners should note that in Peterson, the court emphasized that there is no bright-line rule by which the courts can determine whether the legislature intended to provide alternate means of committing a particular crime. The WPI Committee suggests that each case must be carefully evaluated to determine which reasoning—that in Mason or that in Peterson—best applies to the particular type of failure to register charged. In a case where the court determines that the jury should be instructed on alternate means, insert the language from WPIC 4.23 (Elements of the Crime—Alternate Elements—Alternative Means for Committing a Single Offense—Form).

Knowledge. It is an element of a failure to register charge that the defendant acted with knowledge of the applicable registration requirement. Most typically, the evidence in support of this element will consist of written notification from law enforcement, prior court orders, or other evidence relating to prior adjudications. Under RCW 9A.44.130(4)(c), there may also be unusual circumstances when the present charge involves an alleged breach of the registration duties triggered by an arrest or arraignment on a charge of failure to register or by the assertion of a defense of lack of knowledge. In appropriate circumstances, it may be necessary to draft an instruction from the language of this statute, taking care to avoid commenting on the evidence.

“Old Chief” stipulations. In practice, the parties often stipulate to one or more elements of this instruction. The broad rule is that the prosecuting authority need not accept a defendant's offer to stipulate; however, an exception has been created for what is often referred to as an “Old Chief” stipulation. State v. Johnson, 90 Wn.App. 54, 62, 950 P.2d 981 (1998). For a discussion of “Old Chief” stipulations, see the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)).

Jurisdictional element. In this instruction, the jurisdictional element is incorporated in element (2).