State v. Kiliona-Garramone

Penoyar, C. J.

court correctly dismissed this case under State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86 (1991). As the majority points out, the problem with the information here was that it accused the defendants of providing information that they did not believe to be true “as to every material” instead of “as to every material matter.” In this case, “matter” matters because it clarifies whether the charge is that the defen*31dants misrepresented facts that were important to the defendants’ applications or whether the charge is simply that the defendants misrepresented anything at all in the application process. An example will illustrate the lack of clarity the missing word creates: Assume the defendants knowingly lied about their weight. Are they guilty? As charged in the information, they apparently are, since weight was in the materials the defendants filed. But if the State must prove that weight is a “material matter,” guilt would turn on whether weight affects eligibility.

¶25 Under Kjorsvik, we should consider whether the missing “matter” appears in any form, or by fair construction can be found in the charging document. Kjorsvik, 117 Wn.2d at 105. Put another way, does this information “ ‘enable a person of common understanding to know what is intended’ ”? Kjorsvik, 117 Wn.2d at 110 (emphasis omitted) (quoting RCW 10.37.050(6)). In Kjorsvik, this prong of the test was satisfied because the defendant clearly would have known that he was accused of intending to steal money where the information alleged that the defendant unlawfully, with force, and against the victim’s will, took the money while armed with a deadly weapon. Kjorsvik, 117 Wn.2d at 110. Here, however, I agree with the trial court that nothing in the balance of the information informs the defendants that only material false statements were alleged.15

¶26 The second prong of Kjorsvik is prejudice. Kjorsvik, 117 Wn.2d at 106. Because I believe that the defendants prevail under the first prong of the Kjorsvik test, I do not address prejudice. See State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 (2000) (“If the necessary elements are not *32found or fairly implied, however, we presume prejudice and reverse without reaching the question of prejudice.”).

¶27 I would affirm.

Reconsideration denied March 1, 2012.

Review denied at 174 Wn.2d 1014 (2012).

At best, the defendants arguably had a hint that the language was incomplete because “as to every material” is a rather odd turn of phrase. But the balance of the information contains other stilted language, such as “in that the said defendant” and “did willfully make and subscribe.” Clerk’s Papers (CP) (Kiliona-Garramone) at 86-87; CP (Ferrara) at 72-73; CP (Garramone) at 81-82. In any case, a mere clue that something is missing does not tell the defendants what that something is.