IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84149-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION THOMAS OSCAR CADY,
Respondent.
COBURN, J. — While on pretrial electronic home detention (EHD) in Edmonds,
Snohomish County, Thomas Oscar Cady failed to return home by curfew after a
scheduled court hearing in King County earlier in the day. A jury convicted him of
escape in the third degree. Cady argues that the State failed to prove that he
committed this act in King County, as required by the law of the case in the jury
instructions. We agree and reverse and remand for the trial court to dismiss with
prejudice.
FACTS
Cady faced a felony charge in King County Superior Court and was released
from jail, but the court imposed electronic home detention without bail. Cady was to
carry out this home detention at his residence in Edmonds. Home detention required
Citations and pincites are based on the Westlaw online version of the cited material. 84149-1-I/2
Cady to wear a “transmitter” around his ankle, which sent electronic signals to a
“monitor” that remained stationary within his home. Cady signed a form acknowledging
the conditions of conduct for persons ordered by King County Superior Court into EHD
and agreed to abide by them. 1 The detention required Cady to stay “within the four
walls” of his home unless he was given permission to leave for a court appearance or
other “legitimate” reason. Cady was given permission to leave his home on February
12, 2020 for a court appearance in King County Superior Court by his King County Jail
Corrections Division caseworker, Steve Kekoa Jaber. The permission required him to
be back at his home by 5 p.m. that day.
The next morning, Jaber received an alert that Cady’s transmitter had not
returned to his home by 5 p.m. the previous day. Jaber attempted to call Cady at the
number Cady had provided when he began home detention, but found the phone was
disconnected. Jaber attempted to call at least one other phone number associated with
Cady but was unable to reach him. Jaber did not attempt to locate Cady at Cady’s
1 The following is a summary of the conditions: 1. You shall commit no crimes. 2. You shall not use controlled substances without a valid prescription and shall not consume alcohol beginning from the date of this order. 3. You shall attend all court ordered therapy and treatment. 4. You shall attend work or school. 5. You shall be on time when reporting to meetings with [King County Department of Adult and Juvenile Detention (DAJD)] staff. 6. You must arrange for the employer to directly mail your wages to the DAJD caseworker. 7. You must obtain pre-approval to work overtime. 8. You shall not forge a document or provide false information to DAJD staff. 9. You shall maintain an active, primary telephone line with long distance service. 10. You must not remove the EHD monitoring equipment that was placed on your person or in your home. 11. You must comply with the curfew and curfew conditions set by DAJD staff. 12. You must obtain permission from DAJD staff prior to making a change in your residence. 13. You will be removed from EHD and placed in WER if you receive three written warnings in a 30 day period for being less than 60 minutes late in violation of conditions 5 and 11 above.
2 84149-1-I/3
home or take any additional investigative steps to locate Cady. Jaber completed a
report and forwarded it to Garren Clark, a criminal investigator with the King County
Department of Adult and Juvenile Detention. Clark conducted no investigation of
Jaber’s report before filing Clark’s own report and statement of probable cause with the
prosecutor.
Cady was charged by information with escape in the second degree and theft in
the second degree based on the fact that his electronic home detention transmitter was
not detected at his home by the monitor. The State subsequently dismissed the theft
charge. Cady proceeded to trial on the escape charge. At trial, the State initially
submitted a proposed jury instruction for the lesser included offense of escape in the
third degree, before withdrawing its proposal. The defense requested that the jury be
instructed on the lesser included offense and the court agreed. The defense submitted
the same instruction that the State had previously submitted. Both parties were sent
copies of the jury instructions to review the night before they were finalized. The next
day, prior to finalizing the instructions, the State did not make any objections to the
proposed instructions. The jury was instructed that if they did not find Cady guilty of
escape in the second degree they should consider whether he was guilty of the lesser
included offense of escape in the third degree. Cady was convicted of escape in the
third degree.
Cady appeals.
DISCUSSION
Cady argues that because the State failed to object to the addition of an
unnecessary element in the to-convict instruction for escape in the third degree, that the
3 84149-1-I/4
act of escape occurred in King County, it became the law of the case and the State was
required to prove the element beyond a reasonable doubt.
Washington’s “law of the case” doctrine “derives from . . . common law.”
Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005), and “is an established
doctrine with roots reaching back to the earliest days of statehood.” State v. Hickman,
135 Wn.2d 97, 101, 954 P.2d 900 (1998). In criminal cases, where additional elements
are included in a jury instruction on the elements of the crime and not objected to, the
State is required to prove those elements even if they are not included in the statute.
State v. Johnson, 188 Wn.2d 742, 754, 399 P.3d 507 (2017).
In this case, the State failed to object to the inclusion of an unnecessary element
in Instruction No. 11, the to-convict instruction for escape in the third degree. The
instruction read
To convict the defendant of the crime of escape in the third degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about February 12, 2020, the defendant knowingly escaped from custody or knowingly violated the terms of an electronic home monitoring program; and
(2) That this act occurred in King County of the State of Washington.[2]
Under Hickman and Johnson, the element became the law of the case and the State
was required to prove beyond a reasonable doubt that Cady committed the act of
escape in King County. The instructions also defined “custody” as “restraint pursuant to
an order of a court.”
Cady contends that the State failed to provide sufficient evidence that the act
2 The to-convict instruction for the charge of escape in the second degree required the jury to find the act occurred in the State of Washington.
4 84149-1-I/5
occurred in King County. We agree.
On appeal, a defendant may assign error to elements added under the law of the
case doctrine. Hickman, 135 Wn.2d at 102 (citing State v. Ng, 110 Wn.2d 32, 39, 750
P.2d 632 (1988)). Such an assignment may include the sufficiency of the evidence of
the added element. Id. at 102 (citing State v. Barringer, 32 Wn. App. 882, 887-88, 650
P.2d 1129 (1982)). Evidence is sufficient to support a criminal conviction if, after
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84149-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION THOMAS OSCAR CADY,
Respondent.
COBURN, J. — While on pretrial electronic home detention (EHD) in Edmonds,
Snohomish County, Thomas Oscar Cady failed to return home by curfew after a
scheduled court hearing in King County earlier in the day. A jury convicted him of
escape in the third degree. Cady argues that the State failed to prove that he
committed this act in King County, as required by the law of the case in the jury
instructions. We agree and reverse and remand for the trial court to dismiss with
prejudice.
FACTS
Cady faced a felony charge in King County Superior Court and was released
from jail, but the court imposed electronic home detention without bail. Cady was to
carry out this home detention at his residence in Edmonds. Home detention required
Citations and pincites are based on the Westlaw online version of the cited material. 84149-1-I/2
Cady to wear a “transmitter” around his ankle, which sent electronic signals to a
“monitor” that remained stationary within his home. Cady signed a form acknowledging
the conditions of conduct for persons ordered by King County Superior Court into EHD
and agreed to abide by them. 1 The detention required Cady to stay “within the four
walls” of his home unless he was given permission to leave for a court appearance or
other “legitimate” reason. Cady was given permission to leave his home on February
12, 2020 for a court appearance in King County Superior Court by his King County Jail
Corrections Division caseworker, Steve Kekoa Jaber. The permission required him to
be back at his home by 5 p.m. that day.
The next morning, Jaber received an alert that Cady’s transmitter had not
returned to his home by 5 p.m. the previous day. Jaber attempted to call Cady at the
number Cady had provided when he began home detention, but found the phone was
disconnected. Jaber attempted to call at least one other phone number associated with
Cady but was unable to reach him. Jaber did not attempt to locate Cady at Cady’s
1 The following is a summary of the conditions: 1. You shall commit no crimes. 2. You shall not use controlled substances without a valid prescription and shall not consume alcohol beginning from the date of this order. 3. You shall attend all court ordered therapy and treatment. 4. You shall attend work or school. 5. You shall be on time when reporting to meetings with [King County Department of Adult and Juvenile Detention (DAJD)] staff. 6. You must arrange for the employer to directly mail your wages to the DAJD caseworker. 7. You must obtain pre-approval to work overtime. 8. You shall not forge a document or provide false information to DAJD staff. 9. You shall maintain an active, primary telephone line with long distance service. 10. You must not remove the EHD monitoring equipment that was placed on your person or in your home. 11. You must comply with the curfew and curfew conditions set by DAJD staff. 12. You must obtain permission from DAJD staff prior to making a change in your residence. 13. You will be removed from EHD and placed in WER if you receive three written warnings in a 30 day period for being less than 60 minutes late in violation of conditions 5 and 11 above.
2 84149-1-I/3
home or take any additional investigative steps to locate Cady. Jaber completed a
report and forwarded it to Garren Clark, a criminal investigator with the King County
Department of Adult and Juvenile Detention. Clark conducted no investigation of
Jaber’s report before filing Clark’s own report and statement of probable cause with the
prosecutor.
Cady was charged by information with escape in the second degree and theft in
the second degree based on the fact that his electronic home detention transmitter was
not detected at his home by the monitor. The State subsequently dismissed the theft
charge. Cady proceeded to trial on the escape charge. At trial, the State initially
submitted a proposed jury instruction for the lesser included offense of escape in the
third degree, before withdrawing its proposal. The defense requested that the jury be
instructed on the lesser included offense and the court agreed. The defense submitted
the same instruction that the State had previously submitted. Both parties were sent
copies of the jury instructions to review the night before they were finalized. The next
day, prior to finalizing the instructions, the State did not make any objections to the
proposed instructions. The jury was instructed that if they did not find Cady guilty of
escape in the second degree they should consider whether he was guilty of the lesser
included offense of escape in the third degree. Cady was convicted of escape in the
third degree.
Cady appeals.
DISCUSSION
Cady argues that because the State failed to object to the addition of an
unnecessary element in the to-convict instruction for escape in the third degree, that the
3 84149-1-I/4
act of escape occurred in King County, it became the law of the case and the State was
required to prove the element beyond a reasonable doubt.
Washington’s “law of the case” doctrine “derives from . . . common law.”
Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005), and “is an established
doctrine with roots reaching back to the earliest days of statehood.” State v. Hickman,
135 Wn.2d 97, 101, 954 P.2d 900 (1998). In criminal cases, where additional elements
are included in a jury instruction on the elements of the crime and not objected to, the
State is required to prove those elements even if they are not included in the statute.
State v. Johnson, 188 Wn.2d 742, 754, 399 P.3d 507 (2017).
In this case, the State failed to object to the inclusion of an unnecessary element
in Instruction No. 11, the to-convict instruction for escape in the third degree. The
instruction read
To convict the defendant of the crime of escape in the third degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about February 12, 2020, the defendant knowingly escaped from custody or knowingly violated the terms of an electronic home monitoring program; and
(2) That this act occurred in King County of the State of Washington.[2]
Under Hickman and Johnson, the element became the law of the case and the State
was required to prove beyond a reasonable doubt that Cady committed the act of
escape in King County. The instructions also defined “custody” as “restraint pursuant to
an order of a court.”
Cady contends that the State failed to provide sufficient evidence that the act
2 The to-convict instruction for the charge of escape in the second degree required the jury to find the act occurred in the State of Washington.
4 84149-1-I/5
occurred in King County. We agree.
On appeal, a defendant may assign error to elements added under the law of the
case doctrine. Hickman, 135 Wn.2d at 102 (citing State v. Ng, 110 Wn.2d 32, 39, 750
P.2d 632 (1988)). Such an assignment may include the sufficiency of the evidence of
the added element. Id. at 102 (citing State v. Barringer, 32 Wn. App. 882, 887-88, 650
P.2d 1129 (1982)). Evidence is sufficient to support a criminal conviction if, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94
Wn.2d 216, 220-22, 616 P.2d 628 (1980)). “A sufficiency challenge admits the truth of
the State’s evidence and accepts the reasonable inferences to be made from it.” State
v. O’Neal, 159 Wn.2d 500, 505, 150 P.3d 1121 (2007). “Direct evidence is not required
to uphold a jury’s verdict; circumstantial evidence can be sufficient.” Id. at 506.
Dismissal with prejudice is required when there is insufficient evidence to sustain a
charged offense. State v. Loos, 14 Wn. App. 2d 748, 766, 473 P.3d 1229 (2020) (citing
State v. Devitt, 152 Wn. App. 907, 913, 218 P.3d 647 (2009)).
In this case, the jury was presented with evidence that Cady faced felony
charges in King County and as a condition of pretrial release would be placed on
electronic home monitoring at his home in Edmonds. The jury received court
documents indicating that Cady had a court date on February 12, 2020, and that a
bench warrant was issued for him on February 13. 3 No evidence was admitted as to
3 Notably, the jury did not find Cady guilty of escape in the second degree where they would have had to find beyond a reasonable doubt that Cady, on or about February 12, 2020, had been charged with a felony, escaped from custody, knew that his actions would result in
5 84149-1-I/6
whether Cady appeared for his court hearing on February 12 or the basis of why a
warrant was issued on February 13. At trial, the State emphasized the contents of
exhibit 3, the admitted clerk’s minute entry for a motion hearing on February 13. The
document indicated that the court granted the State’s motion for issuance of a bench
warrant and a prosecutor was present, but the defendant was “not present.” During
closing, the State argued that Cady did not show up to his court hearing. 4 However,
February 13 was the State’s motion request for a warrant not Cady’s February 12
scheduled court hearing. Though a jury possibly could infer the warrant issued because
Cady did not appear at his court day the previous day, the jury also could have inferred
that the warrant issued because Cady did not return to his home in Edmonds as
required. The jury also received Cady’s signed conditions of custody.
The device alerted Cady’s caseworker at the King County Jail that Cady had not
returned to his home in Edmonds by the curfew permitted for him to attend a court
appearance on February 12. The caseworker was unable to reach Cady by phone and
did not receive any communications from Cady. Neither the caseworker nor the
investigator conducted any further investigation. There was no testimony regarding the
county in which Cady’s home was located. In fact, the jury sent an inquiry during
deliberations asking “What county is the following address a part of?” alongside Cady’s
home address. The State presented no evidence that Cady knowingly escaped from
leaving or remaining absent from confinement without authorization, and that this act occurred in the State of Washington. 4 Cady objected on the basis “that’s not the evidence” and the court overruled the objection. Because the prosecutor also said “He turned off service on his phone. He was unable to be located” immediately after saying Cady “didn’t even show up to his court hearing”, it is not clear as to whether the objection was directed to one or both statements. Cady does not assign error to the court’s ruling on appeal.
6 84149-1-I/7
custody or violated the terms of an electronic home monitoring program in King County.
In Hickman, the State similarly included the unnecessary element of venue in the
jury instructions and failed to prove it beyond a reasonable doubt. There, the State
agreed to jury instructions requiring the Snohomish County venue to be proved as an
element of the crime. Hickman, 135 Wn.2d at 101. Hickman had purchased a car in
Washington State and left it with a friend while he traveled to Hawaii. Id. at 100.
Hickman agreed to let two friends “steal” his car so he could file a report with his
insurance company to obtain the balance of the loan on the car. Id. From Hawaii,
Hickman called and filed an insurance claim with his insurance company located in
Kent. Id. At his trial on charges of insurance fraud, the only evidence of venue was
testimony that the vehicle had been located by law enforcement on a rural road in
Snohomish County. Id. The Supreme Court reversed the conviction, finding that when
Hickman had “allegedly called his insurance company to submit the fraudulent claim, he
was in Hawaii while his insurance company was in King County” and concluding that
“such evidence simply does not demonstrate Hickman knowingly presented or caused
to be presented a fraudulent insurance claim in Snohomish County.” Id. at 105-06.
The State argues that sufficient evidence supports the conviction because it
showed a King County Superior Court judge signed the order authorizing EHD, and that
Jaber testified that being on King County’s EHD is basically a continuation of
incarceration. This shows Cady was in custody in King County and, thus, the State
argues, it supports the jury’s conclusion that Cady committed the act of escape in King
County. We disagree. This evidence may, arguably, establish that Cady was in King
County “custody,” but does not establish that when he escaped from that custody, the
7 84149-1-I/8
criminal act, it occurred in King County.
The State also argues that Cady knowingly violated the terms of an electronic
monitoring program while in King County custody by failing to maintain a phone number
provided to King County. Again, the only evidence of a location where Cady was to
maintain a phone line was in the house in Edmonds. The record is devoid of evidence
of Cady’s act of failing to maintain a phone line in King County.
No rational trier of fact could have found that Cady knowingly escaped from
custody or violated the terms of an electronic home monitoring program in King County
where there was no evidence that the criminal act occurred in King County.
We reverse and remand to the trial court to dismiss with prejudice.
WE CONCUR: