FILED OCTOBER 15, 2020 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. 37023-2-III ) Respondent, ) ) v. ) OPINION PUBLISHED ) IN PART ZACHARY P. BERGSTROM, ) ) Appellant. )
LAWRENCE-BERREY, J. — Zachary Bergstrom appeals his convictions for three
counts of bail jumping and one count of escape from community custody. The argument
he raises that we deem worthy of publishing is whether he was denied his due process
right of having the jury instructed on every element of the three bail jumping charges.
We hold that the pattern instruction given by the trial court failed to instruct the jury on
every element of bail jumping, but the error was harmless beyond a reasonable doubt. In
so holding, we decline to follow State v. Hart, 195 Wn. App. 449, 381 P.3d 142 (2016).
In the unpublished portion of this opinion, we reverse Bergstrom’s conviction on the
January 12, 2018 bail jumping count due to ineffective assistance of counsel. We
otherwise affirm. No. 37023-2-III State v. Bergstrom
FACTS
The State originally charged Zachary Bergstrom with one count of possession of a
controlled substance. At Bergstrom’s September 22, 2017 initial court appearance, the
trial court set bail at $2,500, advised Bergstrom he was required to appear at all court
dates, and set Bergstrom’s arraignment for October 4, 2017. After his arraignment,
Bergstrom secured a $2,500 surety bond and was released from jail.
Three failures to appear (bail jumping)
On November 3, 2017, the trial court entered a scheduling order, setting a pretrial
conference for January 12, 2018, at 10:30 a.m. Bergstrom and his attorney signed the
order, acknowledging their approval of the date and time. Bergstrom failed to appear at
the pretrial conference. The trial court later issued a bench warrant for Bergstrom’s
arrest.
On February 28, 2018, the trial court entered a second scheduling order setting a
pretrial conference for May 4, 2018. Bergstrom and his attorney signed the order,
acknowledging their approval of the date and time.
On April 5, 2018, the trial court entered an order releasing Bergstrom on April 10
for a drug evaluation. The order also required Bergstrom to appear for drug court on
April 11 at 3:00 p.m. and again on April 18 at 3:00 p.m. Bergstrom and his attorney
2 No. 37023-2-III State v. Bergstrom
signed the order. Bergstrom failed to appear for drug court on April 18, and the drug
court entered an order authorizing a bench warrant. Bergstrom also failed to appear for
his May 4, 2018 pretrial conference. The trial court later issued a bench warrant.
Escape from community custody
While out of custody, Bergstrom was under community supervision and was
required to regularly report in person to Officer Jeremy Wilson. Officer Wilson directed
Bergstrom to report in person to him on April 17, 2018, and gave Bergstrom a card with
the appointment date and time on the back. Bergstrom failed to report on that date, or any
other dates, until he was arrested on other charges.
Trial
The State amended the original possession charge by adding three counts of bail
jumping and one count of escape from community custody. At trial, the State called two
deputy court clerks to substantiate the bail jumping charges. Through them, the State
offered several certified court records to buttress their testimony that Bergstrom failed to
appear in court as ordered on January 12, 2018, April 18, 2018, and May 4, 2018. The
State also called Officer Wilson, who substantiated the escape from community custody
charge.
3 No. 37023-2-III State v. Bergstrom
Bergstrom testified on his own behalf. He did not deny he knew of the court dates
he missed nor did he claim it was someone else’s signature on the certified court records.
Instead, he testified he failed to appear at the January 12, 2018 hearing because he was in
a hospital at the time. According to Bergstrom, he contacted his bonding company while
in the hospital and, a day or two later, he went to the bonding company with papers
showing he had been in the hospital. Bergstrom testified that despite these papers, the
bonding company surrendered him to the jail.
After both sides presented their cases, the trial court instructed the jury. Bergstrom
did not object to any of the court’s instructions. The jury returned a verdict of not guilty
on the charge of possession of a controlled substance and guilty on all other charges. The
trial court entered its judgment and sentence, and Bergstrom timely appealed.
ANALYSIS
A. DUE PROCESS CHALLENGE TO BAIL JUMPING TO-CONVICT INSTRUCTIONS
Bergstrom argues the trial court’s three bail jumping to-convict instructions
violated his right to due process because the instructions relieved the State of its burden to
prove each element of the charges. We agree, but conclude the error was harmless
beyond a reasonable doubt.
4 No. 37023-2-III State v. Bergstrom
To understand Bergstrom’s argument, we must compare the elements of bail
jumping with the trial court’s bail jumping to-convict instructions.
To convict a defendant of bail jumping, the State must prove beyond a reasonable
doubt that the defendant (1) was held for, charged with, or convicted of a particular
crime, (2) was released by court order or admitted to bail with the requirement of a
subsequent personal appearance, and (3) knowingly failed to appear as required. State v.
Williams, 162 Wn.2d 177, 183-84, 170 P.3d 30 (2007); RCW 9A.76.170(1).
Compare those elements with the three bail jumping to-convict instructions given
by the trial court:
(1) That on or about January 12, 2018, the defendant failed to appear before a court; (2) That the defendant was charged with possession of a controlled substance, a crime under RCW 69.50.4013(1), a class C felony; (3) That the defendant had been admitted to bail with the knowledge of the requirement of a subsequent personal appearance before that court; and (4) That any of these acts occurred in the State of Washington.
CP at 148 (Instruction 14).
(1) That on or about April 18, 2018, the defendant failed to appear before a court; (2) That the defendant was charged with possession of a controlled substance, a crime under RCW 69.50.4013(1), a class C felony; (3) That the defendant had been released by court order with knowledge of the requirement of a subsequent personal appearance before that court; and
5 No. 37023-2-III State v. Bergstrom
(4) That any of these acts occurred in the State of Washington.
CP at 150 (Instruction 16).
(1) That on or about May 04, 2018, the defendant failed to appear before a court; (2) That the defendant was charged with Possession of a Controlled Substance, a crime under RCW 69.50.4013(1), a class C felony; (3) That the defendant had been released by court order with knowledge of the requirement of a subsequent personal appearance before that court; and (4) That any of these acts occurred in the State of Washington.
CP at 152 (Instruction 18).
The three instructions were patterned from 11A Washington Practice: Pattern Jury
Instructions: Criminal 120.41, at 570 (4th ed. 2016).
Bergstrom argues the bail jumping to-convict instructions relieved the State of its
burden of proving he knowingly failed to appear as required. He contends the
instructions allowed him to be convicted even if he was not given notice of the specific
court dates he allegedly missed. The State argues that we should refuse to review this
unpreserved claim of error. We disagree.
Unpreserved claims of manifest error involving a constitutional right are
reviewable. RAP 2.5(a)(3). Bergstrom raises such a claim. First, Bergstrom’s claim
actually involves a constitutional right. A trial court’s failure to instruct the jury as to
6 No. 37023-2-III State v. Bergstrom
every element of the crime charged violates due process. State v. Aumick, 126 Wn.2d
422, 429, 894 P.2d 1325 (1995).
Second, the claimed error is manifest. An error is manifest if there is actual
prejudice—meaning a plausible showing by the appellant that the asserted error had
practical and identifiable consequences at trial. State v. Irby, 187 Wn. App. 183, 193, 347
P.3d 1103 (2015). To determine whether this standard is met, “the appellate court must
place itself in the shoes of the trial court to ascertain whether, given what the trial court
knew at that time, the court could have corrected the error.” State v. O’Hara, 167 Wn.2d
91, 100, 217 P.3d 756 (2009). “If the trial court could not have foreseen the potential
error or the record on appeal does not contain sufficient facts to review the claim, the
alleged error is not manifest.” State v. Davis, 175 Wn.2d 287, 344, 290 P.3d 43 (2012).
Here, if the to-convict instructions given did not require the State to prove that Bergstrom
knowingly failed to appear as required, the trial court reasonably should have known the
instructions were erroneous and could have corrected the error by giving appropriate to-
convict instructions.
A review of the bail jumping to-convict instructions makes it apparent the
instructions did not require the State to prove that Bergstrom knowingly failed to appear
as required. The first element in the to-convict instruction required the State to prove that
7 No. 37023-2-III State v. Bergstrom
Bergstrom failed to appear on the dates alleged in the particular counts. But no element
in the to-convict instruction required the State to prove Bergstrom knew he was required
to appear on the dates alleged in the particular counts. The knowledge element in
RCW 9A.76.170(1) requires the State to prove that the defendant was given notice of the
required court dates. Williams, 162 Wn.2d at 184; see also State v. Fredrick, 123 Wn.
App. 347, 353, 97 P.3d 47 (2004); State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947
(2004).
The State urges us to follow Hart, 195 Wn. App. 449. There, Division Two of this
court held that an instruction similar to the one given here correctly stated the law.
Division Two concluded that the third part of the instruction, “‘knowledge of the
requirement of a subsequent personal appearance before the court,’” was sufficient. Id.
at 456 (second emphasis added). We disagree. A subsequent court appearance means
“any” subsequent court appearance. That is, a defendant could receive notice to appear
on May 10—a subsequent court appearance. If the defendant failed to appear on May 17,
a date he did not know he had to appear, he could nevertheless be convicted because he
received notice to appear on May 10.
8 No. 37023-2-III State v. Bergstrom
Because the to-convict instructions did not require the State to prove an element of
bail jumping—that Bergstrom knowingly failed to appear as required—we conclude the
trial court violated Bergstrom’s right to due process.1
However, jury instructions that omit an element of the crime charged are subject to
harmless error analysis. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002). An
instruction that omits an element is harmless error if, beyond a reasonable doubt, the error
did not contribute to the verdict. Id. For instance, if the omitted element is supported by
uncontroverted evidence, the error is harmless. Id.
Here, the uncontroverted evidence established that Bergstrom received notice he
was required to attend court on January 12, 2018, April 18, 2018, and May 4, 2018. We
conclude the trial court’s instructional errors were harmless beyond a reasonable doubt.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
1 Our concurring colleague says this reading is strained. But it is what the instructions literally say. Trial courts, rather than resorting to the pattern instruction that the jury may misunderstand, should instruct the jury using the elements as set forth in Williams, 162 Wn.2d at 183-84. Trial courts should add the charged date after the third Williams element and include the jurisdictional element as the fourth element.
9 No. 37023-2-III State v. Bergstrom
B. UNCHARGED ALTERNATIVE MEANS
Bergstrom claims the trial court violated his constitutional right to notice of
charges against him by instructing the jury on an alternative means of committing escape
from community custody, which was not charged in the information.2
The Washington Constitution guarantees a defendant the right to be given notice
of the charges against him. WASH. CONST. art. I, § 22. To that end, when a statute
provides multiple alternate means of committing a specific crime, the defendant has the
right to have notice of the means of committing the offense the State is accusing him of.
In re Pers. Restraint of Brockie, 178 Wn.2d 532, 536, 309 P.3d 498 (2013). We conclude
Bergstrom waived this argument by failing to object below.
An appellate court may refuse to review any claim of error that was not raised in
the trial court. RAP 2.5(a). This rule encourages parties to make timely objections, gives
2 RCW 72.09.310 provides in relevant part: An inmate in community custody who willfully discontinues making himself or herself available to the department for supervision by making his or her whereabouts unknown or by failing to maintain contact with the department as directed by the community corrections officer shall be deemed an escapee and fugitive from justice . . . . (Emphasis added.) Here, the State charged Bergstrom with escape from community custody by alleging he “willfully discontinue[d] making himself . . . available to the department for supervision by making his . . . whereabouts unknown.” CP at 131. But the trial court instructed the jury a person is guilty of escape if he “fail[ed] to maintain contact with the department as directed by the community corrections officer.” CP at 156.
10 No. 37023-2-III State v. Bergstrom
the trial judge an opportunity to address an issue before it becomes an error on appeal,
and promotes the important policies of economy and finality. O’Hara, 167 Wn.2d at 98.
As noted above, some unpreserved claims of error may be reviewed, such as a
claim of “manifest error affecting a constitutional right.” RAP 2.5(a)(3). “Manifest,”
within the meaning of this rule, requires a showing of actual prejudice. O’Hara, 167
Wn.2d at 99. To demonstrate actual prejudice, the appellant must make a plausible
showing that the asserted error had practical and identifiable consequences in the trial of
the case. Id. In determining whether the error was identifiable, the trial record must be
sufficient to determine the merits of the claim. Id. In addition, the appellant must
establish the error was reasonably obvious to the trial court, given what it knew at the
time. Id. at 100; State v. Kalebaugh, 183 Wn.2d 578, 588, 355 P.3d 253 (2015)
(Gonzalez, J., concurring).
Here, Bergstrom fails to argue that this claim is one of manifest error. We do not
think it is. Both parties disagree whether escape from community custody is an
alternative means crime and acknowledge the question has yet to be answered in our
appellate courts. We decline to review the claim of error because the error, if any,
certainly was not reasonably obvious to the trial court.
11 No. 37023-2-III State v. Bergstrom
C. INSUFFICIENT EVIDENCE
Bergstrom contends the evidence was insufficient to sustain the convictions on the
three counts of bail jumping. He argues his signature on the court records, showing he
had personal knowledge of the hearing dates, was unauthenticated and should not have
been admitted. He argues that because this was the only evidence he had personal
knowledge, the evidence was insufficient. We disagree.
When reviewing a challenge to sufficiency of the evidence, this court looks at
whether, in the light most favorable to the State, any rational trier of fact could have
found the defendant guilty beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,
201, 829 P.2d 1068 (1992). All reasonable inferences must be drawn in favor of the State
and interpreted strongly against the defendant. Id. Necessarily, an allegation of
insufficient evidence admits the truth of the State’s evidence and all inferences that can
be drawn from said evidence. Id.
Certified court records are admissible. RCW 5.44.010.3 Here, the pertinent
certified court records bore signatures above the line labeled defendant’s signature and
above the line labeled attorney for defendant. A rational trier of fact could have found
3 Former RCW 5.44.010 (1997) provides: “The records and proceedings of any court of the United States, or any state or territory, shall be admissible in evidence in all cases in this state when duly certified . . . .”
12 No. 37023-2-III State v. Bergstrom
that the defendant actually signed these records and, thus, had notice of the court dates.
First, Bergstrom did not deny these documents bore his signature. Second, if an imposter
signed the documents, defense counsel would not have also signed them. We conclude
substantial evidence supports Bergstrom’s three bail jumping convictions.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Bergstrom contends his defense counsel was ineffective for not objecting to the
certified court records and for not proposing an affirmative defense to bail jumping. We
disagree in part.
This court reviews claims of ineffective assistance of counsel de novo. State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). For claims of ineffective
assistance, a defendant must show both deficient performance from defense counsel and
resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). To show defense counsel’s performance was deficient, the defendant
must show it fell below the objective standard of reasonableness. State v. Stenson, 132
Wn.2d 668, 705, 940 P.2d 1239 (1997). To show prejudice, the defendant must show
there is a reasonable probability counsel’s deficient performance affected the outcome of
the proceedings. State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015). A reasonable
probability “‘is a probability sufficient to undermine confidence in the outcome.’”
13 No. 37023-2-III State v. Bergstrom
State v. Crawford, 159 Wn.2d 86, 100, 147 P.3d 1288 (2006) (quoting Strickland, 466
U.S. at 694).
Defense counsel did not perform deficiently by failing to object to the certified
court records. As noted above, these documents were admissible.
But we do agree that defense counsel performed deficiently by failing to offer a
jury instruction on the affirmative defense to bail jumping. RCW 9A.76.170(2) provides
defendants with an affirmative defense to bail jumping in the event “uncontrollable
circumstances prevented the person from appearing or surrendering . . . [and] the person
appeared or surrendered as soon as such circumstances ceased to exist.” Here, Bergstrom
testified he was in the hospital on January 12, 2018, and he stayed with a friend after he
was discharged because he still was very ill. He testified he met with the bond company a
day or two after being discharged to show documentary proof he was in the hospital, and
the bonding company surrendered him to the jail. This testimony, if believed, warranted
an instruction on the affirmative defense.
Counsel’s deficient performance was prejudicial. His failure to request an
instruction on the available defense undermines our confidence in the verdict on this
count of bail jumping. First, the State did not offer any evidence to dispute Bergstrom’s
claim he was in the hospital on January 12, 2018. Second, the jury presumably found
14 No. 37023-2-III State v. Bergstrom
Bergstrom credible because it found him not guilty on the original charge of possession of
a controlled substance. We, therefore, reverse Bergstrom's conviction on this bail
jumping count.
Remand for resentencing.
Lawrence-Berrey, J.
I CONCUR:
15 No. 37023-2-III
KORSMO, A.CJ. (concurring)-Although I agree with the result of the majority
opinion, I do not agree with its reasoning concerning the bail jump instruction or with its
criticism of State v. Hart, 195 Wn. App. 449, 381 P.3d 142 (2016). 1 The pattern
elements instruction for bail jumping correctly reflects the statute, even if the elements
are stated in a different order, and Hart faithfully does so. There is no problem here, but
merely a disagreement about the placement of the "knowledge" modifier.
Hart is the simplest point, so I will start there. The majority criticizes Hart for
stating one of the elements as "knowledge of the requirement of a subsequent personal
appearance." Majority at 8 (quoting Hart, 195 Wn. App. at 456 (second emphasis
added). That quote is a faithful recitation of the opening line ofRCW 9A.76.170(1):
"Any person having been released by court order or admitted to bail with knowledge of
the requirement of a subsequent court appearance .... " If the majority has a problem
with that line, it should take it up with the legislature. Division Two of this court did not
err.
1 I also note that appellant's alternative means argument on the escape from community custody charge is without merit. The majority prudently finds that the issue is not manifest error, but I would go further. RCW 72.09.310 establishes a single crime of escape by one who "willfully discontinues making himself or herself available to the department for supervision." It then defines that offense as including both those who never report to the department and those who begin and then fail to maintain contact. Appellant's argument simply repeats the discredited approach of treating the definitions of a crime as overriding the legislature's description of the offense. There is only one means of committing escape from community custody. See State v. Barboza-Cortes, 194 Wn.2d 639,451 P.3d 707 (2019); State v. Sandholm, 184 Wn.2d 726, 364 P.3d 87 (2015). No. 37023-2-III State v. Bergstrom--concurrence
Prior to the amendment in 2001, the bail jumping statute had required proof that
one "knowingly fails to appear as required." Former 9A.76.170(1) (1983). The
amendment changed the knowledge requirement to specify instead proof of "knowledge
of the requirement of a subsequent appearance before any court of this state .... " LA ws
OF 2001, ch. 264, § 3. In other words, the amendment changed the element to reflect
proof of knowledge of the need to appear instead of establishing the mindset behind the
failure to appear. 2
The pattern instruction properly sets out these commands, as illustrated by the
relevant elements of the instruction used in this case:
( 1) That on or about January 12, 2018, the defendant failed to appear before a court;
(2) That the defendant had been admitted to bail with knowledge of the requirement of a subsequent personal appearance before that court;
Clerk's Papers at 148 (Instruction 14).
Mr. Bergstrom contends that the instruction was deficient in divorcing the date of
the offense from the knowledge of appearance before the court element, arguing that he
could be convicted of a crime just because he knew that he had some court appearance on
some future day. His reading is strained. In context, the instruction properly told the jury
2 As explained in an earlier Division Two opinion, the change eliminated the "I forgot" defense. State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004).
2 No. 37023-2-III State v. Bergstrom-concurrence
that defendant committed the crime on January 12, 2018, when he failed to appear in
court with knowledge of the requirement to appear. The third element perhaps could be
clarified, maybe by again inserting the violation date, or by restating the element as
"knowledge of the requirement to appear before the court." While such changes would
eliminate Mr. Bergstrom's argument, they are not necessary.
The pattern instruction sufficiently conveys the elements of the offense in the
statutory language. It is correct. Accordingly, I join in the judgment of the court.
~J.