FILED
APRIL 2, 2019
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
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35428-8-III
Respondent, )
)
v. )
)
JAMIE LYNNE HUGDAHL, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Jamie Hugdahl appeals from jury verdicts determining that she
delivered controlled substances on four occasions while within 1,000 feet of a school bus
stop. Concluding that the jury instructions were proper and that the charging documents,
liberally construed, provided adequate notice of the school bus stop enhancement, we
affirm.
FACTS
The multiple charging documents filed against Ms. Hugdahl consistently alleged
that she committed the four drug deliveries within 1,000 feet of a “school bus route.”
Clerk’s Papers (CP) at 58-59. She never challenged any of the charging documents, but
did assert a defense of entrapment. CP at 32. The court instructed the jury on the
No. 35428-8-III
State v. Hugdahl
defense; the instruction told jurors that they must find the defendant not guilty if she
established the existence of entrapment by a preponderance of the evidence. CP at 34.
Consistent with the pattern jury instructions, each of the four elements instructions
told jurors that if they found the respective elements proved beyond a reasonable doubt,
“it will be your duty to return a verdict of guilty.” CP at 23-26. The four special verdict
forms directed the jury to answer yes or no whether the drug deliveries occurred within
1,000 feet of a “school bus route stop.” CP at 51, 53, 55, 57.
The jury convicted Ms. Hugdahl as charged and answered “yes” on each of the
four special verdicts. CP at 51-57. The court imposed standard range sentences of 64
months that included a 24 month enhancement due to the special verdicts. Ms. Hugdahl
timely appealed to this court. A panel considered her appeal without hearing argument.
ANALYSIS
Ms. Hugdahl contends that the elements instructions were flawed by failure to
cross-reference the entrapment instruction, that her counsel was ineffective for not
challenging the elements instructions, and that the charging document did not inform her
that the enhancement applied only to a school bus route “stop.” Treating the first two
issues as one contention, we first address the elements instruction before turning to the
challenge of the charging document.
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Elements Instruction
Ms. Hugdahl argues that because the standard elements instructions did not
mention her affirmative defense, they conflicted with the entrapment instruction and were
invalid. She also argues that her attorney performed deficiently by failing to challenge
the instruction.
This challenge was waived by failure to present it to the trial court. RAP 2.5(a);
State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). RAP 2.5(a)(3) permits a party
to raise initially on appeal a claim of “manifest error affecting a constitutional right.”
This authority is permissive; an appellate court will refuse to consider such issues if the
record is not sufficient to permit review of the claim. State v. McFarland, 127 Wn.2d
322, 899 P.2d 1251 (1995). If the record is not adequate to review the claim, it is not
“manifest” within the meaning of the rule. Id. at 333.
The failure to challenge a jury instruction is a classic instance of waiver. Scott,
110 Wn.2d at 689-691. Due process requires only that the jury properly be instructed on
the elements of the offense and on the State’s burden to prove the case beyond a
reasonable doubt. Id. at 690. That was done here. The allegation that the separate
entrapment instruction conflicted with the elements instructions is not preserved for
review.
Anticipating this result, Ms. Hugdahl contends that her counsel performed
deficiently by not objecting to the instructions. To prevail on such a claim, she would
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have to show both that her attorney erred so significantly that he failed to live up to the
standards of the profession and that the error prejudiced her. Strickland v. Washington,
466 U.S. 668, 688-692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McFarland, 127
Wn.2d at 334-335. The entrapment instruction informed the jury on what it must do if it
determined that Ms. Hugdahl was entrapped into committing the offenses, while the
elements instructions told the jurors what to do if the State proved its case beyond a
reasonable doubt or if it failed to do so. They did not conflict. Although it may have
been simpler to combine some aspects of the instructions into one instruction, no
authority requires such action. Ms. Hugdahl has not established that her attorney erred.
She also has not established that she was prejudiced from this alleged error. The
jury was instructed on her defense and told to return not guilty verdicts if it found that she
had been entrapped. She was able to argue her theory of the case. The jury could easily
harmonize the entrapment and elements instructions. There has been no demonstration of
harm.
Ms. Hugdahl failed to establish that her counsel performed deficiently.
Charging of Enhancements
Ms. Hugdahl also argues that the charging documents were defective by
incorrectly stating the enhancement applicable to her charges. The deficiency in the
charging document actually gave her more notice than was necessary. Liberally
construed, the final amended information did provide constitutionally adequate notice.
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RCW 69.50.435(1)(c) provides a sentence enhancement for drug delivery offenses
committed within 1,000 feet of a school bus route stop.1 The charging documents,
however, consistently alleged that Ms. Hugdahl committed the four offenses within 1,000
feet of a school bus route and made no mention of the bus stop. The jury was properly
instructed that it needed to determine if the offenses occurred within 1,000 feet of a bus
route stop.
Ms. Hugdahl did not challenge the enhancement until this appeal. In that
circumstance, well settled standards govern our review. “All essential elements of a
crime, statutory or otherwise, must be included in a charging document in order to afford
notice to an accused of the nature and cause of the accusation against him.” State v.
Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). When challenged for the first time after
a verdict has been returned, courts will liberally construe the document to see if the
necessary facts can be found. If not, the charge will be dismissed without prejudice.
Even if the charge is stated, a defendant who shows prejudice from “inartful” pleading
also receives a dismissal of charges without prejudice. Id. at 105-106. The initial
question to be answered is whether “the necessary facts appear in any form, or by fair
construction can they be found, in the charging document.” Id. at 105. The liberal
This enhancement adds 24 months to the offender’s sentence range. RCW
1
9.94A.533(6).
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construction standard for belated challenges is designed to discourage “sandbagging” by
withholding a challenge that could otherwise be timely remedied. Id. at 103.
We believe that the necessary facts are found in the charging document if we
liberally construe that document.2 The numerous informations repeatedly advised Ms.
Hugdahl that she was alleged to have committed the four deliveries within 1,000 feet of a
school bus route in violation of RCW 69.50.435. Bus routes have bus stops; a bus stop is
part of a bus route. Advising a defendant that the crimes were committed within 1,000
feet of a bus route necessarily included any bus stops along that route. Liberally
construed, a bus route includes a bus stop.
The record also does not disclose any prejudice to Ms. Hugdahl from the inartful
language. The relationship between the location of the drug deliveries and the bus stop
was not at issue in the case. The entirety of the defense closing argument related to the
entrapment defense. No issues were raised about what the defendant was alleged to have
done or where she did it, nor were any concerns argued about the State’s case. There is
no suggestion she did not understand about the enhancement or its application to the case.
The issue simply was not a concern for the defense at trial.
2
We have reached the same result with related charging document challenges to
the school bus route stop enhancement in a series of unpublished cases. E.g., State v.
Moore, noted at 145 Wn. App. 1038 (2008); State v. Hopwood, noted at 138 Wn. App.
1009 (2007); State v. Jones, noted at 117 Wn. App. 1016 (2003); see GR 14.1.
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The error in omitting the word "stop" from the charging document was not of such
significance that it deprived Ms. Hugdahl of notice of the enhancement the prosecutor
was seeking, nor has she demonstrated that she was prejudiced by the error. For both
reasons, her belated challenge to the charging document is without merit.
Affirmed.
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.
I CONCUR:
Pennell, J.
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No. 35428-8-III
LAWRENCE-BERREY, CJ. (dissenting) -The majority errs by rejecting Jamie
Hugdahl's postverdict challenge to the charging document. Because the necessary facts
do not appear by fair construction in the charging document, I dissent.
"All essential elements of a crime, statutory or otherwise, must be included in a
charging document in order to afford notice to an accused of the nature and cause of the
accusation against him." State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). The
majority correctly notes, when a defendant's first challenge to the charging document is
postverdict, courts liberally construe the document to see if the necessary facts can be
found or fairly implied. And if not, the charges-or in this case the enhancements-will
be dismissed without prejudice. Dismissal is required, and the defendant is not required
to additionally establish prejudice. This is because prejudice is presumed when the
necessary facts cannot be found or fairly implied in the charging document. State v.
McCarty, 140 Wn.2d 420, 425-26, 998 P.2d 296 (2000) (citing Kjorsvik, 117 Wn.2d at
105-06).
Here, the charging document alleged that all four controlled substance deliveries
committed by Ms. Hugdahl occurred "within one thousand feet of a school bus route
designated by the school district in violation of [RCW] 69.50.435[(l)(c)]." Clerk's
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Papers at 5 8-59. But a person who delivers controlled substances within 1,000 feet of a
designated school bus route does not violate the statutory aggravator. Instead, the
statutory aggravator is violated when a person delivers controlled substances within 1,000
feet of a designated school bus route stop. The majority commits a logical fallacy by
equating a bus route with a bus route stop. A bus route is not a bus route stop. A person
can be within 1,000 feet of a bus route and still be one mile from a bus route stop.
Because a bus route is not a bus route stop, I dissent.
Lawrence-B�rrey, C.J. 4,
c..}
2