iiith N@VEMBER ida 2915 in the Uitice of the £lerlc of Conrt WA Sta€e Court of Ap§)eals, Hivision lii lN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 34846-6-111 Respondent, § y. § UNPUBLISHED OPINION DUSTIN HAWK CHAN£BERS, § Appellant. § LAWRENCE~BERREY, J. _ Dustin H. Charnbers appeais his conviction for failure to register as a sex offender. We affirm. ` BACKGROUND The State set forth the following allegations in the amended inforlnation: On or between February 9, 2016 and March 15, 2016 in the County of Oi<anogan, State of Washington, [`Dustin Hawk Chambers], having been convicted on or about Noveinber i9, 2009, of a sex offense or kidnapping offense that Would be ciassified as a felony under the i_aws of Washington, to wit: lndecent Liberties,m being required to register pursuant to RCW 9A.44.l30, and lacking a fixed address, did (l) knowingly fail to

lWe deern the amended information as referring to “sex offense” as defined by RCW 9A.44.128(10)(a)»--“[a]ny offense defined as a sex offense by RCW 9.94A.030.”

RCW 9.94A.030(47)(a)(i) defines “sex offense” as including a felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.l32. Indecent liberties is a felony that is a Violation of chapter 9A.44, specifically RCW 9A.44. lOO.

No. 34846~6»Hi Stctte v. Chambers provide Written notice to the county sheriff where he or she last registered within three business days of ceasing to have a fixed residence or (2) did knowingly faii to report weekly, in person, to the sheriff of the county where he or she is registered or (3) did knowingly fail to provide the county sheriff with an accurate accounting of where he or she stays during the weel<; contrary to Revised Code of Washington 9A.44.130(5).

Clerlt’s Papers (CP) at 44.

During motions in limine prior to the commencement of the triai, the State said it would not attempt to prove that Mr. Chanibers’s predicate offense was classified as a felony sex offense under the laws of Washington. Rather, the State said it would prove that i\/lr. Chainbers’s predicate offense triggered a duty for i\/ir.

Chambers to register with the tribe, thereby satisfying an alternate definition of “sex offense.”

RCW 9A.44.128(8) defines “i<idnapping offense” in four different definitionai snbsections, and RCW 9A.4¢i.128(i0) defines “seX offense” in ll different definitional subsections The one noted by the State during motions in limine is RCW 9A.44.128, which provides: (i()) “Sex offense” nieans: (l) Any tribal conviction for an offense for which the person wouid be required to register as a sex offender while residing in the reservation of l conviction; or, if not required to register in the reservation of conviction, an offense that under the laws of this state would be classified as a sex offense under this subsection No. 34846-6~lll State v. Chctmbers Mr. Chambers waived his right to a jury trial, and the case was tried to the bench 'l`he State presented its evidence, and the defense did not call any witnesses The trial court found Mr. Chambers guilty of the crime of failure to register as a sex offender, with the predicate offense being a tribal conviction for which l\/lr. Chanibers was required to register as a sex offender while residing in the reservation of conviction l\/_lr. Charnbers appealed ANALYSIS DUE PROCESS CliA LLENGE i\/lr. Chambers asserts that his conviction for failure to register as a sex offender must be reversed because the State violated his right to due process under the state and federal constitutions by failing to prove an essential element of the crime charged H_e does not contest the adequacy of the charging document Rather, he argues that failure to register is an alternative means criine, in that there are alternative predicate offenses that give rise to the registration requirements Specifically, he argues the State specified in the amended information one alternative means to prove the predicate offense and failed to IJITGV€ ill 31 ITlCEll'lS. l\io. 34846~6~lll S)faie v. Chambers To be upheld, the State must prove every essential element of a crime charged beyond a reasonable doubt. State v. Sz`bert, l68 Wn.?,d 306, 3l.l, 230 P.3d l42 (20l0).

An element of the crime includes any alternative means for committing the crime that the State intends to rely on at triai. Sl'ate v. Gold.smith,r 147 Wn, App` 3i7, 324-25, 195 P.3d 98 (2008). l An alternative means crime is one in which the proscribed criminal conduct can be proved in various ways Sta)fe v. Peterson, 168 Wn.2d 763, 769, 230 _P.3d 588 (20l0). “‘ [D]efinition statutes do not create additional alternative means of committing an offense.ljj Id. at 770 (quoting Sta.te v. Linehan, l47 Wn.Zd 638, 646, 56 P.3d 542 (2002)). ln Peterson, our Suprerne Court held that failure to register is not an alternative means crime ]d. at 771. Peterson noted, “[l]t is not necessary to draw a distinction between alternatives and definitions of alternatives where the crime at issue is not an alternative means crime at all.” n ]a’. Accordingly, the various definitions by which a “i<;idnapping offense” or a “sex offense” become a predicate offense are not essential elements of the crime of failure to register as a sex offender Because this is,the only aspect that l\/lr. Chambers asserts was not proved, we need not discuss whether other elements were sufiiciently proved No. 34846~6-lll Stute v. Cham/;)ers APPELLATE COSTS i\/lr. Chambers requests that should he not substantially prevail on appeal, no appellate costs be awarded under RAP 14.2. The State takes no position The State has g substantially prevailed on appeal The trial court properly made a determination of indigency and Mr. Chambers’s likely future inability to pay.

RAP l4.2 governs the award of appellate costs. The rule generally requires an award of appellate costs to the party that substantially prevails RAP 14.2. The rule permits an appellate court, in its decision, to decline an award of appellate costs, or to direct a commissioner or clerk to decide the issue. Id, A commissioner or clerk is precluded from awarding appellate costs if he or she finds that the defendant lacks the current or likely future ability to pay such costs. Icz’. lf a trial court earlier found that the defendant was indigent for purposes of appeal, that finding continues unless the commissioner or clerl<n determines by a preponderance of the evidence that the defendant’s financial circumstances have significantly improved since the earlier finding Id. llere, in the event the State requests appellate costs, we defer the issue to our commissioner Because the trial court found that Mr. Chambers was indigent for purposes of appeal, that finding continues unless the commissioner finds by a N@. santee-in Srate v, Chnmbers preponderance of the evidence that Mr. Chambers’s financial circumstances have significantly improved.

Aft`irmed.

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. g m \_._:¢"“"?.F-r-<' § ~§:§ LMQ\; § Lawrenee~Berrey, l. l l at Wl""£ CONCUR:

-~`~""-' nev :Wm_v,,-‘ /', /[,/€` { ~ W..,r aid ae'i~»€t ri " l'('"'M thl"“ Fearing, C.J. `b Pennell, .l. \-t,,..l>'