FILED
OCTOBER 13, 2016
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. 33142-3-111
)
Respondent, )
)
V. ) PUBLISHED OPINION
)
EVAN WAYNE SULLIVAN, )
)
Appellant. )
LAWRENCE-BERREY, A.CJ. -The liberal standard for reviewing the sufficiency
of a charging document applies when a defendant challenges the document after the State
rests its case. In so holding, we join Division Two of this court and depart from Division
One.
But even applying the liberal standard, as the State requests, we conclude that the
State's charging document was constitutionally defective. We therefore reverse Evan
Sullivan's conviction for second degree assault of a child and dismiss the charge without
prejudice to the right of the State to recharge in a manner consistent with this opinion.
No. 33142-3-III
State v. Sullivan
FACTS
The State charged Mr. Sullivan with second degree assault of a child. Prior to
trial, the State amended the information twice. The second amended information alleged
Mr. Sullivan was 18 years of age or older, the victim was under the age of 13, and in
violation ofRCW 9A.36.130(l)(a) and RCW 9A.36.021(1)(a), Mr. Sullivan, with intent
to assault the victim, "did assault said child and thereby inflicted substantial bodily
harm." Clerk's Papers (CP) at 9. The word "recklessly" was omitted prior to the word
"inflicted."
Several times during his opening statement, Mr. Sullivan argued the State had the
burden of proving he recklessly caused the child's injuries. He argued the jury could not
conclude beyond a reasonable doubt that the injuries were caused recklessly, which he
stated was an essential element the State must prove.
The State presented its case and then rested. Mr. Sullivan then moved to dismiss
the charge on the grounds that the information failed to include the essential element of
recklessness in the information. The trial court determined that the word "reckless" did
not need to be in the information for Mr. Sullivan to be on notice of the crime charged
and have sufficient ability to defend the case. It therefore denied Mr. Sullivan's motion.
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State v. Sullivan
Mr. Sullivan called one witness, then rested. The trial court instructed the jury and
the parties presented closing arguments.
The jury found Mr. Sullivan guilty of second degree assault of a child. Prior to
sentencing, Mr. Sullivan again moved the trial court to reverse his conviction on the
grounds that the information failed to allege the essential element of recklessness. This
time the trial court determined that recklessness was an essential element of second
degree assault of a child, due to the number of ways a person can commit second degree
assault. Because of the timing of Mr. Sullivan's original motion to dismiss, the trial court
construed the information liberally. The trial court agreed with Mr. Sullivan that it could
not infer the essential element of recklessness from the State's information, even applying
the liberal standard. However, the trial court concluded that Mr. Sullivan was not
prejudiced by the missing element of recklessness, given that he referenced the State's
burden of proving recklessness in his opening statement. On that basis, the trial court
denied Mr. Sullivan's posttrial motion.
Mr. Sullivan appeals.
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State v. Sullivan
ANALYSIS
Mr. Sullivan argues that the second amended information was constitutionally
defective because it failed to allege all the essential elements of second degree assault of a
child. Specifically, he contends it omitted the statutory element of "recklessly."
Criminal defendants have the constitutional right to know "the nature and cause of
the accusation" against them. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. To be
constitutionally sufficient, a charging document must include all essential elements of a
crime, statutory and nonstatutory, so as to inform a criminal defendant of the charges and
to allow the defendant to prepare a defense. State v. Kjorsvik, 117 Wn.2d 93, 97, 101,
812 P .2d 86 (1991 ). A charging document that omits an essential element of the charged
crime is constitutionally defective and must be dismissed without prejudice. State v.
Johnson, 180 Wn.2d 295, 300-01, 325 P.3d 135 (2014). '" An essential element is one
whose specification is necessary to establish the very illegality of the behavior charged.'"
State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal quotation marks
omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)). We review
the constitutional adequacy of a charging document de novo. State v. Goss, 378 P.3d 154,
157 (2016).
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State v. Sullivan
A. LIBERAL STANDARD APPLIES WHEN CONSTITUTIONAL CHALLENGE FIRST
MADE AFTER STATE RESTS ITS CASE
Mr. Sullivan and the State dispute whether this court must apply a strict or a liberal
standard in reviewing the constitutional adequacy of the second information. Mr.
Sullivan asks this court to strictly construe the charging document because he challenged
it immediately after the State rested, while the State argues for the liberal standard. The
reason for this dispute is because the law is unsettled as to which standard applies when a
defendant challenges the charging document after the State rests but before the jury
reaches a verdict.
Two separate review standards exist for evaluating the constitutional adequacy of a
charging document. The first is the liberal standard, under which a court has
"' considerable leeway to imply the necessary allegations from the language of the
charging document."' State v. Taylor, 140 Wn.2d 229,237,996 P.2d 571 (2000)
(quoting Kjorsvik, 117 Wn.2d at 104). The second is the strict standard, which constitutes
a "bright line rule mandating dismissal" when a charging document omits an essential
element of the crime. State v. Johnson, 119 Wn.2d 143, 150, 829 P.2d 1078 (1992).
"' The standard of review for evaluating the sufficiency of a charging document is
determined by the time at which the motion challenging its sufficiency is made.'" State
v. Borrero, 147 Wn.2d 353, 360, 58 P.3d 245 (2002) (quoting Taylor, 140 Wn.2d at 237).
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No. 33142-3-111
State v. Sullivan
In Kjorsvik, the Washington Supreme Court first examined the question of whether
courts should apply a different standard of review when a defendant challenges a
charging document for the first time on appeal. See Kjorsvik, 117 Wn.2d at 103. The
Kjorsvik court held that "[ c]harging documents which are not challenged until after the
verdict will be more liberally construed in favor of validity than those challenged before
or during trial." Id. at 102. The court reasoned that without this rule the defendant has no
incentive to timely make such a challenge since it might only result in an amendment or a
dismissal.potentially followed by a refiling of the charge. Id. at 103. The court further
reasoned that using a more liberal standard of review would discourage "sandbagging"-
where the defendant recognizes a defect in the information but forgoes raising it before
trial when a successful objection would result only in the State amending the
information. 1 Id.
1
The State and Mr. Sullivan dispute whether Mr. Sullivan actually "sandbagged"
the State. The State argues Mr. Sullivan knew the essential elements because defense
counsel repeatedly referred to the State's burden of proving recklessness in his opening
statement. Mr. Sullivan responds he did not "sandbag" the State because the prosecutor
acknowledged he had intended to file a third amended information and then admitted he
made a mistake in not filing it prior to trial. Although the Kjorsvik court adopted the
liberal standard of review to discourage criminal defendants from "sandbagging,"
Kjorsvik does not require trial or appellate courts to examine the record and make a
finding as to whether a particular defendant actually engaged in "sandbagging."
Therefore, this court will not attempt to resolve this issue.
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No. 33142-3-III
State v. Sullivan
The Washington Supreme Court has never expressly considered what standard of
review applies when a defendant challenges a charging document after the State rests but
before the jury reaches a verdict. But it has at least implicitly held that the strict standard
applies in this situation. In State v. Vangerpen, the defendant challenged the information
after the defense rested and the court expressly rejected the liberal standard of review
because "the sufficiency of the information was challenged prior to verdict." 125 Wn.2d
782, 788, 888 P.2d 1177 (1995). Similarly, in Borrero, the defendant challenged the
information immediately after the State rested and the court applied the strict standard,
given that he challenged the information prior to verdict. 2 Borrero, 147 Wn.2d at 357,
360.
The Washington Court of Appeals is split on what standard of review applies when
a defendant challenges a charging document after the State rests but before the jury
reaches a verdict. Division One of this court has adopted the strict standard in this
2
The State argues Borrero is distinguishable because the defendant challenged the
information for the first time on appeal. This is incorrect-Aaron Borrero challenged it
after the State rested. See Borrero, 147 Wn.2d at 357. The State similarly argues the
Vangerpen court adopted the liberal standard because the defendant challenged the
information after the State rested. This is also incorrect-the Vangerpen court expressly
rejected the liberal standard. See Vangerpen, 125 Wn.2d at 788.
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No. 33142-3-III
State v. Sullivan
situation, reasoning that "the State would be at liberty to refile a complete charge, and the
defendant has not taken advantage of a 'free verdict."' State v. Chaten, 84 Wn. App. 85,
87, 925 P .2d 631 ( 1996). Division One has further reasoned that applying a liberal
standard in this situation was "implicitly rejected by the Supreme Court in State v.
Vangerpen." Id.; accord State v. Thanh Dong Tang, 77 Wn. App. 644,647, 893 P.2d 646
(1995) ("Here [Mr.] Tang moved to dismiss at the close of the State's case and we are
therefore required to strictly construe the information pursuant to Vangerpen.").
Division Two has reached the opposite conclusion. See State v. Phillips, 98 Wn.
App. 936, 991 P.2d 1195 (2000). The Phillips court reasoned that the State generally may
not amend the information after it rests, and therefore the rule should be that courts
strictly construe the information when the State can still amend it and liberally construe
the information when the only remedy is dismissal. Id. at 941-42. The court then
reasoned that Vangerpen did not control because the information was insufficient under
either standard, so therefore the Vangerpen court's application of the strict standard was
nonbinding dicta. Id. at 942. Citing Phillips, Division Two has reaffirmed this approach.
See State v. Kiliona-Garramone, 166 Wn. App. 16, 23, 267 P.3d 426 (2011).
Division Three has never expressly considered this specific issue, but it has
implicitly adopted Division Two's approach. See State v. Mendoza-Solorio, 108 Wn.
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No. 33142-3-III
State v. Sullivan
App. 823, 830, 33 P.3d 411 (2001) (citing Phillips, 98 Wn. App. at 940-43). We now
make our holding explicit: Because Kjorsvik stated that prevention of "sandbagging" was
the purpose for applying a liberal standard of review, and because "sandbagging" could
occur once the State loses its right to amend the charging document, we agree with
Division Two that the liberal standard for reviewing a charging document should apply
after the State rests.
B. APPLYING THE LIBERAL REVIEW STANDARD, THE SECOND INFORMATION IS
CONSTITUTIONALLY DEFECTIVE
The liberal review standard employs the two-prong Kjorsvik test: ( 1) do the
necessary elements appear in any form, or by fair construction can they be found, in the
information, and if so (2) can the defendant nevertheless show he or she was actually
prejudiced by the unartful language. Kjorsvik, 117 Wn.2d at 105-06; see also State v.
Zillyette, 173 Wn.2d 784, 786, 270 P.3d 589 (2012) (clarifying the rule, but adding
"nonetheless" to the second step). If the necessary elements are not found or fairly
implied on the face of the information, this court must presume prejudice and is required
to reverse without reaching the question of prejudice. Zillyette, 173 Wn.2d at 786. If a
court does find all essential elements, the defendant is still entitled to reversal if he or she
can show actual prejudice. State v. Campbell, 125 Wn.2d 797, 802, 888 P.2d 1185
(1995).
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No. 33142-3-III
State v. Sullivan
Under the first Kjorsvik prong, this court looks solely to the face of the charging
document. Kjorsvik, 117 Wn.2d at 106. "Words in a charging document are read as a
whole, construed according to common sense, and include facts which are necessarily
implied." Id. at 109. A charging document satisfies the first prong if it includes the
essential elements of the offense even if it does not contain the exact statutory language.
State v. Hopper, 118 Wn.2d 151,156,822 P.2d 775 (1992). "Even missing elements may
be implied if the language supports such a result." Id. However, "[i]f the document
cannot be construed to give notice of or to contain in some manner the essential elements
of a crime, the most liberal reading cannot cure it." Campbell, 125 Wn.2d at 802.
Merely citing to the proper statute and naming the offense is insufficient unless the
name of the offense apprises the defendant of all of the essential elements of the crime.
Vangerpen, 125 Wn.2d at 787; Zillyette, 178 Wn.2d at 162 ("The mere recitation of a
'numerical code section' and the 'title of an offense' does not satisfy the essential
elements rule."). The reasoning behind this requirement is that defendants should not
have to search for the rules or regulations they are accused of violating. Kjorsvik, 117
Wn.2d at 101; City ofAuburn v. Brooke, 119 Wn.2d 623,635, 836 P.2d 212 (1992).
The State charged Mr. Sullivan with second degree assault of a child under
RCW 9A.36.130(1 )(a). That statute provides, in relevant part:
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No. 33142-3-III
State v. Sullivan
( 1) A person eighteen years of age or older is guilty of the crime of assault
of a child in the second degree if the child is under the age of thirteen and
the person:
(a) Commits the crime of assault in the second degree, as defined in
RCW 9A.36.021, against a child ....
RCW 9A.36.130. We quote RCW 9A.36.021 below, and emphasize the word at issue:
( 1) A person is guilty of assault in the second degree if he or she, under
circumstances not amounting to assault in the first degree:
(a) Intentionally assaults another and thereby recklessly inflicts
substantial bodily harm ....
(Emphasis added.) Thus, "second degree assault comprises two discrete acts, each with
its own mental state-intentional assault and reckless infliction of substantial bodily
harm." 3 State v. McKague, 159 Wn. App. 489, 509, 246 P.3d 558, aff'd, 172 Wn.2d 802,
262 P.3d 1225 (2011).
Here, the second amended information alleged:
That the said EVAN WAYNE SULLIVAN in the County of Benton, State
of Washington, during the time intervening between the 5th day of April,
2013, and the 5th day of May, 2013, in violation ofRCW 9A.36.130(1)(a)
AND RCW 9A.36.02l(l)(a) being eighteen years of age or older and with
intent to assault A.K.G., (D.O.B.: 10/25/2012) a child under the age of
3
Washington courts have held that the failure to allege the element of intent to
assault does not render a charging document defective because the common
understanding of the word "assault" implies intent. E.g., Taylor, 140 Wn.2d at 242-43;
State v. Davis, 119 Wn.2d 657,663, 835 P.2d 1039 (1992); Chaten, 84 Wn. App. at 87.
Although Washington courts will infer intent to assault in a charging document, neither
the dictionary definition nor the common understanding of the word "assault" reasonably
implies the element of recklessness as to the resulting harm.
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No. 33142-3-III
State v. Sullivan
thirteen, did assault said child and thereby inflicted substantial bodily harm,
to wit: inflicted trauma to head and/or leg resulting in a skull fracture and/or
tibia fracture, contrary to the form of the Statute in such cases made and
provided, and against the peace and dignity of the State of Washington.
CP at 9.
The second amended information omits the word "recklessly." Even a liberal
reading of the information does not allow for the missing word, as the trial court itself
determined.
The State argues the second degree assault of a child statute, RCW 9A.36.130,
only lists three elements the State must prove-( 1) that the defendant is 18 or older,
(2) that the child is under 13, and (3) that the defendant committed the crime of second
degree assault as defined in RCW 9A.36.021 against a child-and therefore it was not
required to allege any of the elements in the actual second degree assault statute. We note
that the State fails to cite any authority for this argument. Mr. Sullivan argues the second
degree assault of a child statute incorporates second degree assault, and therefore the
State was required to allege all of that statute's elements.
Division Two addressed a similar situation in State v. Johnstone, 96 Wn. App. 839,
982 P.2d 119 (1999). There, the State charged the defendants with criminal "interference
with owner's control" under former RCW 9.05.070 (1998). Id. at 843. That statute
required the State to prove that the defendants intended to "impair the owner's
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No. 33142-3-III
State v. Sullivan
management or control of any enterprise described in [former] RCW 9.05.060 [(1998)]."
Former RCW 9.05.070. Former RCW 9.05.060 defined enterprise as "any agricultural,
stockraising, lumbering, mining, quarrying, fishing, manufacturing, transportation,
mercantile, or building enterprise wherein persons are employed for wage." See
Johnstone, 96 Wn. App. at 843. The State's information alleged that the defendants
"impair[ ed] the owner's management or control of any enterprise described in [former]
RCW 9.05.060," but it did not specify which of the enterprises in former RCW 9.05.060
the defendants allegedly interfered with or that the enterprise was one where persons were
"employed for [a] wage." Johnstone, 96 Wn. App. at 843. Construing the information
strictly, the court held this rendered the information constitutionally deficient. Id. at 844-
46. The court reasoned that the nature of the enterprise and the fact that persons were
employed for a wage were necessary to establish the illegality of the defendants'
behavior, thus making them essential elements for a conviction under former
RCW 9.05.070. Id. at 845.
Importantly, the court further held that the reference to former RCW 9.05.060 in
the information was insufficient. Id. The court reasoned that holding otherwise would
mean that the defendants "would have the burden of locating the relevant code ... and
determining the elements of the offense from the proper code section," and that was "an
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No. 33142-3-III
State v. Sullivan
unfair burden to place on an accused." Id. (quoting Brooke, 119 Wn.2d at 634-35); see
also State v. Cipriano Bahit Nonog, 169 Wn.2d 220,229, 237 P.3d 250 (2010) (assuming,
without deciding, that the underlying crime is an element of the actual crime with which
the defendant is being charged, and that to be constitutionally adequate the information as
a whole needs to reasonably apprise the defendant of the underlying crime).
Here, like in Johnstone, an allegation that Mr. Sullivan recklessly caused the
resulting injuries was necessary to establish the illegality of his behavior, thus making it
an essential element for a conviction under RCW 9A.36.130(1)(a). 4 Without alleging Mr.
Sullivan recklessly caused the resulting injury, the State's second amended information
did not actually allege criminal behavior. Further, the information's reference to
RCW 9A.36.02l(l)(a) is insufficient because, as the Johnstone court held, this would
shift the burden to Mr. Sullivan to locate the relevant statute and determine the elements
4
After briefing was complete, the State filed a statement of additional authorities,
citing Goss. There, the State charged Michael Goss with second degree child
molestation. Goss, 378 P.3d at 156. The court held the charging document was
constitutionally sufficient even though it omitted the statutory phrase who "was at least 12
years old." Id. at 160. The court reasoned that inclusion of the statutory phrase was
unnecessary because the State did not need to prove that the victim was at least 12 years
old. Id.
Goss is distinguishable. Here, the State was required to prove the reckless
element.
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No. 33142-3-III
State v. Sullivan
of the offense. It is well settled that citing to the proper statute and naming the offense is
insufficient to satisfy the essential elements rule.
Applying the first prong of Kjorsvik, it is apparent "recklessly" does not appear in
any form in the State's second amended information. Because the reckless element is
missing entirely, Mr. Sullivan need not show prejudice. Zillyette, 173 Wn.2d at 786.
C. MR. SULLIVAN DID NOT WAIVE HIS CONSTITUTIONAL CHALLENGE
The State argues Mr. Sullivan waived his right to challenge the information by not
requesting a bill of particulars. However, there is a difference between a constitutionally
defective charging document and a vague charging document. State v. Leach, 113 Wn.2d
679, 686-87, 782 P.2d 552 (1989). A defendant may not challenge a constitutionally
sufficient charging document for "vagueness" on appeal if he or she did not request a bill
of particulars at trial. Id. at 687; Nonog, 169 Wn.2d at 225 n.2. Mr. Sullivan does not
argue the State's information was vague-he argues it was constitutionally defective
because it failed to allege recklessness. He, therefore, did not waive his right to challenge
the information by not requesting a bill of particulars.
CONCLUSION
Even applying the liberal review standard, the second amended information was
constitutionally defective. Because the charging document was constitutionally defective,
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No. 33142-3-III
State v. Sullivan
binding precedent requires that we reverse the conviction even without Mr. Sullivan
showing how he was prejudiced. We therefore reverse Mr. Sullivan's conviction and
dismiss the second degree assault of a child charge without prejudice to the right of the
State to recharge and retry either the same offense or any lesser included offense. See
Vangerpen, 125 Wn.2d at 791-95.
j
WE CONCUR:
Pennell, J.
16