(concurring) — The majority accurately states the law set out in State v. McCarty.1 Under existing law no showing of prejudice is required. It also quite correctly points out that the charging document here does not track the third degree rape statute, RCW 9A.44.060(l)(a). And it is, therefore, deficient, and constitutionally so. I nonetheless write separately because in my judgment this should be harmless error. See Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277 (1995-96).
Henry Guzman’s defense here was, essentially, “I didn’t do it.” That portion of this criminal information which improperly substituted lack of agreement for the statutorily required lack of consent is therefore of no moment. Had Mr. Guzman’s defense been that the complaining witness agreed or acceded to his request, then he might well have been prejudiced by an information that improperly spelled out that element for the jury. But here when his factual assertion is not in any way based upon the victim’s expression of lack of consent, he is not prejudiced.
*187Moreover, the trial judge’s instructions to the jury included instruction 5.2 She specifically tells the jury that to convict Mr. Guzman of the crime of third degree rape the State must prove beyond a reasonable doubt “[t]hat [M.J.] did not consent to sexual intercourse with the defendant and such lack of consent was clearly expressed by words or conduct.” Report of Proceedings at 524. This language tracks the rape statute precisely.
We apply a harmless error standard to a broad range of constitutional errors. State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002) (right to confrontation); State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002) (jury instructions); State v. Romero, 113 Wn. App. 779, 790, 54 P.3d 1255 (2002) (comments on the right to remain silent). Indeed, “most constitutional errors are presumed to be subject to harmless error analysis.” State v. Banks, 149 Wn.2d 38, 43, 65 P.3d 1198 (2003). The adequacy of a criminal information should be no different.
This is not, or at least should not be, an exercise in judicial sophistry. If a constitutional error resulted in a charging document or trial or a sentence that was unfair or can be construed in some logical fashion as harming the defendant, then the case should certainly be reversed. Sweeney, supra, at 280-81. But that did not happen here. If the harmless error doctrine is to be applied to a constitutional error, then it should be applied fairly and across the *188board to any constitutional error amenable to a harmless error analysis.
Now, certainly, there is error which defies a harmless error analysis. Banks, 149 Wn.2d at 43. But these are errors which “ ‘ “infect the entire trial process” and “necessarily render [the whole] trial fundamentally unfair.” ’ ” Id. (quoting Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) and Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986))). They would include constitutional errors in the makeup of the jury pool, or the jury selection. State v. Guloy, 104 Wn.2d 412, 432, 705 P.2d 1182 (1985) (Brachtenbach, J., concurring) (discrimination in the selection of a jury) (citing Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967)). Or they would include constitutional errors involving the adequacy of trial counsel. See State v. Lopez, 79 Wn. App. 755, 767, 904 P.2d 1179 (1995) (violation of Sixth Amendment right to effective assistance of counsel is not harmless error). Both of these examples involve error that is intrinsic to the trial and simply defy harmless error analysis. There is no way to analytically evaluate the effect of this type of error on the trial. But that is not the case with flawed charging documents.
We should not have to reverse this conviction. But we must.
Review denied at 151 Wn.2d 1036 (2004).
140 Wn.2d 420, 425, 998 P.2d 296 (2000).
Instruction 5 states:
“To convict the defendant of the crime of Third Degree Rape, each of the following elements of the crime must be proved beyond a reasonable doubt:
“(1) That on, about or during August 12, 2001 and August 31, 2001, the defendant engaged in sexual intercourse with [M.JJ;
“(2) That [M. J.] was not married to the defendant;
“(3) That [M.J.] did not consent to sexual intercourse with the defendant and such lack of consent was clearly expressed by words or conduct; and
“(4) That the acts occurred in The State of Washington.
“If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
“On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.” Clerk’s Papers at 47.