FILED COURT OF APPEALS DIVISION 11 2015 1AR 10 AN 8: 36 T SHINGION BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGT
DIVISION II
STATE OF WASHINGTON, No. 45732 -6 -II
Respondent,
v.
JAMIE C. SATTERTHWAITE, PUBLISHED OPINION
Appellant.
WORSWICK, J. — Jamie Satterthwaite appeals her conviction for possession of a stolen
motor vehicle,' arguing the charging document was constitutionally deficient for failure to
include RCW 9A. 56. 140( 1)' s term that the defendant must " withhold or appropriate [ possessed
stolen property] to the use of any person other than the true owner or person entitled thereto."
We hold as a matter of first impression that " withhold or appropriate" is an essential element of
RCW 9A.56. 068' s possession of a stolen motor vehicle. Because the necessary facts of RCW
9A.56. 068' s " withhold or appropriate" element do not appear in any form, nor by fair
construction can they be found, in the charging document, we reverse Satterthwaite' s conviction
and remand for further proceedings.
1 RCW 9A. 56. 068. No. 45732 -6 -II
FACTS
The State charged Jamie Satterthwaite with possession of a stolen motor vehicle and bail
jumping. 2 The third amended information stated the following about the possession of a stolen
motor vehicle count:
8th In the County of Mason, State of Washington, on or about the day of April, 2013, the above -named defendant, JAMIE C. SATTERTHWAITE, did commit POSSESSION OF A STOLEN MOTOR VEHICLE, a Class B Felony, in that said defendant did knowingly possess a stolen vehicle, to wit: 1988 Chevrolet S - 10, WA License Number 624 -XMK, belonging to Fred Anderson, contrary to RCW 9A.56.068 and against the peace and dignity of the State of Washington.
Clerk' s Papers ( CP) at 53. Satterthwaite did not object to this charging document below.
A jury found Satterthwaite guilty of possession of a stolen motor vehicle and bail
jumping. Satterthwaite appeals.
ANALYSIS
Satterthwaite argues for the first time on appeal that the charging document was
constitutionally deficient because it omitted an essential element of the offense of possession of a
stolen motor vehicle: RCW 9A.56. 140( 1)' s term requiring that the defendant " withhold or
appropriate [ possessed stolen property] to the use of any person other than the true owner or
person entitled thereto." The State argues it need not include RCW 9A.56. 140( 1)' s " withhold or
appropriate" term because the term is a definition of an essential element, rather than an essential
element itself. We agree with Satterthwaite.
2 RCW 9A.76. 170. The bail jumping count is not germane to this appeal. No. 45732 -6 -II
I. STANDARD OF REVIEW FOR CHARGING DOCUMENTS CHALLENGED THE FIRST TIME ON APPEAL
We review a charging document' s adequacy de novo. State v. Johnson, 180 Wn.2d 295,
300, 325 P. 3d 135 ( 2014). "[ A] charging document is constitutionally adequate only if all
essential elements of a crime, statutory and nonstatutory, are included in the document so as to
apprise the accused of the charges against him or her and to allow the defendant to prepare a
defense." State v. Vangerpen, 125 Wn.2d 782, 787, 888 P. 2d 1177 ( 1995). " Words in a
charging document are read as a whole, construed according to common sense, and include facts
which are necessarily implied." State v. Kjorsvik, 117 Wn.2d, 93, 109, 812 P. 2d 86 ( 1991).
Where a defendant challenges the charging document' s sufficiency for the first time on
appeal, we construe the document liberally and will find it sufficient if the necessary elements
appear in any form, or by fair construction may be found, on the document' s face. State v.
McCarty, 140 Wn.2d 420, 425, 998 P. 2d 296 ( 2000). But if the document cannot be construed to
give notice of or to contain in some manner the essential elements of an offense, the document is
insufficient, and even the most liberal reading cannot cure it. 140 Wn.2d at 425.
After Satterthwaite' s opening brief, but before the State' s response brief, our Supreme
Court decided Johnson. 180 Wn.2d at 295. In Johnson, the charging document charged Johnson
with " Unlawful Imprisonment— Domestic Violence" and alleged Johnson " did knowingly
restrain [ J. J.], a human being." 180 Wn.2d at 301 ( alteration in original). In holding the
charging document was not deficient, the Court rejected Johnson' s argument that the charging
document must include the statutory definition of "restrain." 180 Wn.2d at 301 -02. It held the
State did not need to include definitions of elements, and it was enough that the State alleged all
of the essential elements found in the unlawful imprisonment statute. 180 Wn.2d at 302. The No. 45732 -6 -II
Court explained: "' An essential element is one whose specification is necessary to establish the
very illegality of the behavior charged. ' 180 Wn.2d at 300 ( quoting State v. Zillyette, 178
Wn.2d 153, 158, 307 P. 3d 712 ( 2013)). Conversely, a definition of an element " defines and limits the scope of' an element. 180 Wn.2d at 302.
II. CHAPTER 9A.56 RCW' S POSSESSION OF STOLEN PROPERTY OFFENSES
Multiple possession of stolen property offenses fall under chapter 9A.56 RCW. RCW
9A.56. 068( 1) states:
A person is guilty of possession of a stolen vehicle if he or she possess [ possesses] a stolen motor vehicle.
RCW 9A.56. 140( 1) states:
Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use ofany person other than the true owner or person entitled thereto.
Emphasis added.) RCW 9A.56.068( 1) implicitly incorporates RCW 9A.56. 140( 1)' s terms
because the terms apply to other possession of stolen property offenses in the same chapter and
provide the mens rea element of the offense of possession of a stolen motor vehicle. See 11A
WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 77.21 at 178
3d ed. 2008); State v. Hayes, 164 Wn. App. 459, 479 -80, 262 P. 3d 538 ( 2011).
III. " WITHHOLD OR APPROPRIATE" AS AN ESSENTIAL ELEMENT
We hold that under Johnson' s framework, " withhold or appropriate" is an essential
element of chapter 9A. 56 RCW' s possession of stolen property offenses. The test for whether a
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FILED COURT OF APPEALS DIVISION 11 2015 1AR 10 AN 8: 36 T SHINGION BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGT
DIVISION II
STATE OF WASHINGTON, No. 45732 -6 -II
Respondent,
v.
JAMIE C. SATTERTHWAITE, PUBLISHED OPINION
Appellant.
WORSWICK, J. — Jamie Satterthwaite appeals her conviction for possession of a stolen
motor vehicle,' arguing the charging document was constitutionally deficient for failure to
include RCW 9A. 56. 140( 1)' s term that the defendant must " withhold or appropriate [ possessed
stolen property] to the use of any person other than the true owner or person entitled thereto."
We hold as a matter of first impression that " withhold or appropriate" is an essential element of
RCW 9A.56. 068' s possession of a stolen motor vehicle. Because the necessary facts of RCW
9A.56. 068' s " withhold or appropriate" element do not appear in any form, nor by fair
construction can they be found, in the charging document, we reverse Satterthwaite' s conviction
and remand for further proceedings.
1 RCW 9A. 56. 068. No. 45732 -6 -II
FACTS
The State charged Jamie Satterthwaite with possession of a stolen motor vehicle and bail
jumping. 2 The third amended information stated the following about the possession of a stolen
motor vehicle count:
8th In the County of Mason, State of Washington, on or about the day of April, 2013, the above -named defendant, JAMIE C. SATTERTHWAITE, did commit POSSESSION OF A STOLEN MOTOR VEHICLE, a Class B Felony, in that said defendant did knowingly possess a stolen vehicle, to wit: 1988 Chevrolet S - 10, WA License Number 624 -XMK, belonging to Fred Anderson, contrary to RCW 9A.56.068 and against the peace and dignity of the State of Washington.
Clerk' s Papers ( CP) at 53. Satterthwaite did not object to this charging document below.
A jury found Satterthwaite guilty of possession of a stolen motor vehicle and bail
jumping. Satterthwaite appeals.
ANALYSIS
Satterthwaite argues for the first time on appeal that the charging document was
constitutionally deficient because it omitted an essential element of the offense of possession of a
stolen motor vehicle: RCW 9A.56. 140( 1)' s term requiring that the defendant " withhold or
appropriate [ possessed stolen property] to the use of any person other than the true owner or
person entitled thereto." The State argues it need not include RCW 9A.56. 140( 1)' s " withhold or
appropriate" term because the term is a definition of an essential element, rather than an essential
element itself. We agree with Satterthwaite.
2 RCW 9A.76. 170. The bail jumping count is not germane to this appeal. No. 45732 -6 -II
I. STANDARD OF REVIEW FOR CHARGING DOCUMENTS CHALLENGED THE FIRST TIME ON APPEAL
We review a charging document' s adequacy de novo. State v. Johnson, 180 Wn.2d 295,
300, 325 P. 3d 135 ( 2014). "[ A] charging document is constitutionally adequate only if all
essential elements of a crime, statutory and nonstatutory, are included in the document so as to
apprise the accused of the charges against him or her and to allow the defendant to prepare a
defense." State v. Vangerpen, 125 Wn.2d 782, 787, 888 P. 2d 1177 ( 1995). " Words in a
charging document are read as a whole, construed according to common sense, and include facts
which are necessarily implied." State v. Kjorsvik, 117 Wn.2d, 93, 109, 812 P. 2d 86 ( 1991).
Where a defendant challenges the charging document' s sufficiency for the first time on
appeal, we construe the document liberally and will find it sufficient if the necessary elements
appear in any form, or by fair construction may be found, on the document' s face. State v.
McCarty, 140 Wn.2d 420, 425, 998 P. 2d 296 ( 2000). But if the document cannot be construed to
give notice of or to contain in some manner the essential elements of an offense, the document is
insufficient, and even the most liberal reading cannot cure it. 140 Wn.2d at 425.
After Satterthwaite' s opening brief, but before the State' s response brief, our Supreme
Court decided Johnson. 180 Wn.2d at 295. In Johnson, the charging document charged Johnson
with " Unlawful Imprisonment— Domestic Violence" and alleged Johnson " did knowingly
restrain [ J. J.], a human being." 180 Wn.2d at 301 ( alteration in original). In holding the
charging document was not deficient, the Court rejected Johnson' s argument that the charging
document must include the statutory definition of "restrain." 180 Wn.2d at 301 -02. It held the
State did not need to include definitions of elements, and it was enough that the State alleged all
of the essential elements found in the unlawful imprisonment statute. 180 Wn.2d at 302. The No. 45732 -6 -II
Court explained: "' An essential element is one whose specification is necessary to establish the
very illegality of the behavior charged. ' 180 Wn.2d at 300 ( quoting State v. Zillyette, 178
Wn.2d 153, 158, 307 P. 3d 712 ( 2013)). Conversely, a definition of an element " defines and limits the scope of' an element. 180 Wn.2d at 302.
II. CHAPTER 9A.56 RCW' S POSSESSION OF STOLEN PROPERTY OFFENSES
Multiple possession of stolen property offenses fall under chapter 9A.56 RCW. RCW
9A.56. 068( 1) states:
A person is guilty of possession of a stolen vehicle if he or she possess [ possesses] a stolen motor vehicle.
RCW 9A.56. 140( 1) states:
Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use ofany person other than the true owner or person entitled thereto.
Emphasis added.) RCW 9A.56.068( 1) implicitly incorporates RCW 9A.56. 140( 1)' s terms
because the terms apply to other possession of stolen property offenses in the same chapter and
provide the mens rea element of the offense of possession of a stolen motor vehicle. See 11A
WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 77.21 at 178
3d ed. 2008); State v. Hayes, 164 Wn. App. 459, 479 -80, 262 P. 3d 538 ( 2011).
III. " WITHHOLD OR APPROPRIATE" AS AN ESSENTIAL ELEMENT
We hold that under Johnson' s framework, " withhold or appropriate" is an essential
element of chapter 9A. 56 RCW' s possession of stolen property offenses. The test for whether a
term is an essential element of an offense is whether the term' s specification is necessary to
4 No. 45732 -6 -II
establish the very illegality of the behavior charged, rather than a term that defines and limits the
elements' scope. Johnson, 180 Wn.2d at 300, 302.
It is the withholding or appropriation of a stolen item of property to the use of someone
other than the owner that ultimately makes the possession illegal, thus differentiating between a
person attempting to return known stolen property and a person choosing to keep, use, or dispose
of known stolen property. Thus, RCW 9A.56. 140( 1)' s " withhold or appropriate" is a term
whose specification is necessary to establish the very illegality of the behavior charged in chapter
9A.56 RCW' s possession of stolen property offenses, rather than a term that defines and limits
the elements' scope. Therefore, even though RCW 9A.56. 140( 1)' s " withhold or appropriate"
purports to define the meaning of "[ p] ossessing stolen property," RCW 9A.56. 140( 1)' s
withhold or appropriate" is an essential element of chapter 9A.56 RCW' s possession of stolen
property offenses, including RCW 9A.56. 068' s possession of a stolen motor vehicle. See
Johnson, 180 Wn.2d at 300, 302.
This holding is consistent with decisions on closely related issues. In State v. McKinsey,
our Supreme Court reviewed the statutory elements of possession of stolen property offenses
under chapter 9A.56 RCW to determine whether first degree possession of stolen property was
an offense of dishonesty admissible under ER 609( a)( 2). 116 Wn.2d 911, 913, 810 P. 2d 907
1991). In doing so, the court emphasized the importance of RCW 9A.56. 140( 1)' s " withhold or
appropriate" as an element of first degree possession of stolen property. 116 Wn.2d at 913. In
State v. Khlee, while not addressing the issue, we cited to RCW 9A.56. 140( 1) and RCW
9A.56. 310( 4) to note that chapter 9A.56 RCW " includes appropriation as an element of the
offense of knowingly possessing a stolen firearm." 106 Wn. App. 21, 25, 22 P. 3d 1264 ( 2001).
5 No. 45732 -6 -II
IV. THE CHARGING DOCUMENT IN SATTERTHWAITE' S CASE
Here, the charging document stated Satterthwaite committed " possession of a stolen
motor vehicle" because she " did knowingly possess a stolen vehicle ... belonging to Fred
Anderson, contrary to RCW 9A. 56. 068." CP at 53. The charging document did not mention
withholding or appropriating the stolen vehicle to the use of a person other than the owner, and
did not cite RCW 9A.56. 140. Thus, the necessary facts of "withhold or appropriate" do not
appear in any form, nor by fair construction can they be found, in the charging document.
Withhold or appropriate" is an essential element of possession of a stolen motor vehicle
because it is the withholding or appropriation of a stolen motor vehicle to the use of someone
other than the owner that ultimately makes the possession illegal, differentiating between the
person attempting to return a known stolen motor vehicle and the person choosing to keep, use,
or dispose of a known stolen motor vehicle. Because the necessary facts of the essential element
of "withhold or appropriate" do not appear in any form, nor by fair construction can they be
found, in the charging document, the charging document was insufficient. Accordingly, we
reverse Satterthwaite' s conviction for possession of a stolen motor vehicle and remand for
further proceedings.
1{ We concur: Worswick, J. Cl....