State Of Washington, V. Kyle Caperoon

• Court: Court of Appeals of Washington
• Decided: June 10, 2024
• Docket: 85020-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

STATE OF WASHINGTON, No. 85020-2-I

Respondent,

v. UNPUBLISHED OPINION

CAPEROON, KYLE SPENCER,

Appellant.

BOWMAN, J. — Kyle Spencer Caperoon appeals his jury conviction for first

degree felony murder. He asserts the State’s information fails to set forth the

essential elements of felony murder because it does not list the elements of the

predicate offense, first degree robbery. And he asks us to remand for the trial

court to strike the victim penalty assessment (VPA) imposed at sentencing. We

affirm Caperoon’s conviction but remand for the court to strike the VPA from his

judgment and sentence.

FACTS

On August 31, 2020, Caperoon and two associates robbed his drug

dealer, J.S., at gunpoint. During the robbery, Caperoon shot and killed J.S. The

State charged Caperoon with one count of first degree felony murder with first

degree robbery as the predicate offense and a firearm enhancement.1 The

1 The State also charged Caperoon with one count of unlawful possession of a firearm in the second degree. Caperoon does not challenge that conviction. No. 85020-2-I/2

information alleges that Caperoon,

on or about the 31st day of August, 2020, committed or attempted to commit the crime of Robbery in the First Degree, and in the course of or in furtherance of such crime or in immediate flight therefrom the defendant (or another participant) did cause the death of another person, to-wit: [J.S.], not a participant in such crime, said death occurring on or about the 31st day of August, 2020; proscribed by RCW 9A.32.030(1)(c), a felony; and that at the time of the commission of the crime, the defendant or an accomplice was armed with a firearm, as provided and defined in RCW 9.94A.533(3), RCW 9.41.010, and RCW 9.94A.825.

A jury convicted Caperoon as charged. At sentencing, the court imposed

a low-end, standard-range, consecutive sentence of 372 months of confinement,

which included the 60-month firearm enhancement. The court declared

Caperoon indigent, waived all nonmandatory fees, and imposed a $500 VPA.

Caperoon appeals.

ANALYSIS

Caperoon argues that we must reverse his felony murder conviction

because the information charging him fails to list the elements of the predicate

felony. He also asserts new legislation requires remand to strike the VPA.

We review a challenge to the sufficiency of an information de novo. State

v. Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007), abrogated on other

grounds by State v. Bergstrom, 199 Wn.2d 23, 502 P.3d 837 (2022). A criminal

defendant has a constitutional right to notice of the alleged crime the State

intends to prove. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. The State

provides notice of the alleged crime through the information. State v. Kosewicz,

174 Wn.2d 683, 691, 278 P.3d 184 (2012). The State must include all essential

2 No. 85020-2-I/3

elements of an alleged crime in the information to sufficiently apprise the

defendant of the charges against him so that he may prepare a defense. Id.

(citing State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991)).

When, as here, a defendant challenges the sufficiency of an information

for the first time on appeal, we apply the liberal construction rule. State v. Brown,

169 Wn.2d 195, 197, 234 P.3d 212 (2010) (citing Kjorsvik, 117 Wn.2d at 102).

Under that rule, we determine (1) whether the essential elements of the crime

“appear in any form, or can be found by any fair construction, in the information”

and, if so, (2) whether the defendant “was actually prejudiced” by the language in

the document. Id. at 197-98. In applying the liberal construction rule, we

construe the charging document liberally in favor of validity. Id. at 197.

Caperoon contends the State’s felony murder information is insufficient

because it fails to list the elements of first degree robbery, the alleged predicate

offense. Washington courts have long held that while a predicate offense is an

element of a felony murder charge, an information need not include the elements

of the predicate offense itself. Kosewicz, 174 Wn.2d at 691-92 (citing State v.

Hartz, 65 Wn. App. 351, 354, 828 P.2d 618 (1992)); see also State v. Anderson,

10 Wn.2d 167, 180, 116 P.2d 346 (1941). This is because the defendant is not

“actually charged” with the predicate crime. Kosewicz, 174 Wn.2d at 691-92.

Instead, the predicate offense substitutes for the mental state the State is

otherwise required to prove. Id. at 692 (citing State v. Craig, 82 Wn.2d 777, 781,

514 P.2d 151 (1973)).

3 No. 85020-2-I/4

Caperoon acknowledges that Washington law does not require the State

to list the elements of the predicate felony in an information charging a defendant

with felony murder. Still, he argues for “a change in the law” and makes several

arguments to preserve the issue for review by the Washington Supreme Court.

In response, the State argues in favor of the existing law to preserve its issues

for Supreme Court review. As we are bound to follow the decisions of our

Supreme Court, we do not address the arguments. State v. Gore, 101 Wn.2d

481, 486-87, 681 P.2d 227 (1984). And because Washington law does not

require the State to list the elements of the predicate felony in an information

charging felony murder, we reject Caperoon’s challenge to the sufficiency of the

information.

Caperoon also asks us to remand for the trial court to strike the $500 VPA

imposed at sentencing. When the court sentenced Caperoon in February 2023,

the $500 VPA was mandatory under former RCW 7.68.035(1)(a) (2018). But

during Caperoon’s pending appeal, the legislature amended the VPA statute,

eliminating the VPA for indigent defendants. LAWS OF 2023, ch. 449, § 1 (adding

language to RCW 7.68.035(4) that the court “shall not impose the [VPA] under

this section if the court finds that the defendant, at the time of sentencing, is

indigent”). That statute applies prospectively to cases pending appeal at the time

of the amendments. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023);

see State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714 (2018). And the

parties do not dispute that Caperoon is indigent.

4 No. 85020-2-I/5

We affirm Caperoon’s conviction but remand for the trial court to strike the

$500 VPA from his judgment and sentence.

WE CONCUR: