State v. Clowes

104 Wash. App. 935
CourtCourt of Appeals of Washington
DecidedFebruary 15, 2001
DocketNo. 25325-9-II
StatusPublished
Cited by38 cases

This text of 104 Wash. App. 935 (State v. Clowes) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clowes, 104 Wash. App. 935 (Wash. Ct. App. 2001).

Opinion

Seinfeld, J.

Kyle D. Clowes appeals his convictions for interfering with the reporting of domestic violence and for violating a no-contact order. Clowes contends that the charging information and jury instructions were defective. We agree and, thus, reverse one conviction and dismiss the other.

FACTS

On May 29, 1999, Tiffany Thomas had an argument with Clowes, the father of her youngest child. Thomas later told the police that Clowes had spit in her face three times and slapped her in the mouth.

During the argument, Clowes disconnected the phone to prevent Thomas from using it. In addition, when Thomas made several attempts to leave, Clowes blocked her way. And when Thomas told her daughter to go next door, thereby suggesting that the girl call the police, Clowes stood in front of the child and said, “she didn’t need to call the cops because if you do, your dad will go to jail.” Report of Proceedings at 30.

At the time of the incident, there was a no-contact order in effect between Thomas and Clowes. Clowes told the police that he believed but was not sure that a no-contact order was in effect.

The State charged Clowes by information with felony violation of a no-contact order in violation of RCW 10.99.050, count I, and with interfering with the reporting of domestic violence, RCW 9A.36.150, count II. Thomas testified at trial that Clowes had accidentally hit her as he walked past her.

The jury found Clowes guilty of both counts but also found, by special verdict, that the conduct constituting the [940]*940no-contact order violation was not an assault.1 Clowes appeals both convictions.

ANALYSIS

I. Interfering With Reporting of Domestic Violence

A. The Information

Clowes argues that count II of the information, which charges him with interfering with domestic violence reporting, is defective because it does not specify the underlying domestic violence crime or allege that he committed the crime against a family or household member. The State does not dispute that count II, viewed in isolation, is incomplete. Rather, it argues that under the liberal construction doctrine, we should consider count II in conjunction with count I, which describes both the crime of domestic violence mentioned in count II and identifies the victim as a household member.

Although an appellant may challenge a charging document’s failure to include all the essential elements of the crime for the first time on appeal, we liberally construe the document in favor of its validity. State v. Davis, 119 Wn.2d 657, 661, 835 P.2d 1039 (1992); State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). We first determine whether the “necessary facts appear in any form, or by fair construction can ... be found [ ] in the charging document” and, if so, whether the inartful language resulted in a lack of notice that caused actual prejudice. Kjorsvik, 117 Wn.2d at 105-06.

The charging document must include all essential elements of the crime to give the accused notice of the charge. Kjorsvik, 117 Wn.2d at 101-02; see also State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995). This essential elements rule also requires that the information [941]*941“allege facts supporting every element of the offense, in addition to adequately identifying the crime charged.” State v. Leach, 113 Wn.2d 679, 689, 782 P.2d 552 (1989) (emphasis omitted). But the charging document need not contain the exact statutory language if words “conveying the same meaning and import are used.” Kjorsvik, 117 Wn.2d at 108-09; Leach, 113 Wn.2d at 686, 689.

Merely reciting the statutory language may not be sufficient unless the statute defines the offense with certainty. Kjorsvik, 117 Wn.2d at 98-99; Leach, 113 Wn.2d at 686, 688. Here, count II of the information states in part:

That said defendant, KYLE D. CLOWES, in the County of Mason, State of Washington, on or about the 29th day of May, 1999, did commit a crime of Domestic Violence and prevented or attempted to prevent the victim of or a witness to that Domestic Violence crime from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official, contrary to RCW 9A.36.150Ü

Clerk’s Papers (CP) at 40. RCW 9A.36.150, in part, defines this offense:

(1) A person commits the crime of interfering with the reporting of domestic violence if the person:
(a) Commits a crime of domestic violence, as defined in RCW 10.99.020;[2] and
(b) Prevents or attempts to prevent the victim of or a witness to that domestic violence crime from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official.
(2) Commission of a crime of domestic violence under subsection (1) of this section is a necessary element of the crime of interfering with the reporting of domestic violence.

[942]*942Count II does not specify the underlying domestic violence crime or the identity of the victim. Although count I contains those details, this does not cure the defect in count II.3 As we have previously ruled, we will not fill voids in a defective count with facts located elsewhere in the information. State v. Gill, 103 Wn. App. 435, 442, 13 P.3d 646 (2000). Here, as in Gill, there is no basis for the State’s assertion that “elements can be plucked out of one count in a charging document and dropped into another.” 103 Wn. App. at 442. Thus, we view count II in isolation.

Because Clowes challenges the sufficiency of the information for the first time on appeal, we construe it liberally. Kjorsvik, 117 Wn.2d at 102. Nonetheless, where there is no reference to the identity of the victim or to the underlying domestic violence crime, we must conclude that the information lacks essential elements. Consequently, we need not address prejudice. Gill, 103 Wn. App. at 442; see also Kjorsvik, 117 Wn.2d at 105-06. The remedy is dismissal without prejudice to recharge and retry the defendant. State v. Simon, 120 Wn.2d 196, 199, 840 P.2d 172 (1992); State v. Green, 101 Wn. App. 885, 891,

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Bluebook (online)
104 Wash. App. 935, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clowes-washctapp-2001.