State v. Green

101 Wash. App. 885
Court of Appeals of Washington·Decided August 11, 2000·No. No. 24265-6-II·Published·Cited by 18 cases

Opinions

Armstrong, C.J.

Christopher Green appeals a felony bail jumping conviction. RCW 9A.76.170. In a post-conviction challenge, Green argues that neither the information charging him nor the “to convict” jury instruction contained all of the elements of bail jumping because the underlying crime was never specified. In State v. Ibsen, 98 Wn. App. 214, 989 R2d 1184 (1999), we held that the underlying offense of a bail jumping charge is an essential element of the crime. Thus, even liberally construed, the information charging Green omitted an element of bail jumping. We reverse and dismiss without prejudice.

FACTS

Christopher Green was charged with one count of bail jumping. RCW 9A.76.170. The amended information stated:

That said defendant, CHRISTOPHER B. GREEN, in the County of Mason, State of Washington, on or about the 16th day of July, 1998, and/or on or about the 24th day of July, 1998, did commit BAIL JUMPING, in that said defendant did knowingly fail to appear as required after having been released by court order or admitted to bail with the requirement of a subsequent [888]*888personal appearance before a court of this state, TO WIT: failed to appear for omnibus hearing and/or pretrial after being released on bail in Mason County Superior Court Cause No. 98-1-00123-2, contrary to RCW 9A.76.170, and against the peace and dignity of the State of Washington.

Mason County Superior Court cause number 98-1-00123-2 referred to a case in which Green was charged with residential burglary and theft in the second degree. Both under- lying crimes are felonies. RCW 9A.52.025(2), RCW 9A.56.040(2).

At trial, the parties stipulated1 that Green was the defendant in cause number 98-1-00123-2 and that he signed the court documents pertaining to that cause number. Green first raised the issue of the information’s sufficiency during his sentencing hearing.

ANALYSIS

The bail jumping statute provides:

(1) Any person having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before any court of this state, and who knowingly fails to appear as required is guilty of bail jumping.
(2) Bail jumping is:
(a) A class A felony if the person was held for, charged with, or convicted of murder in the first degree;
(b) A class B felony if the person was held for, charged with, or convicted of a class A felony other than murder in the first degree;
[889]*889(c) A class C felony if the person was held for, charged with, or convicted of a class B or class C felony;
(d) A misdemeanor if the person was held for, charged with, or convicted of a gross misdemeanor or misdemeanor.

RCW 9A.76.170.

The parties differ as to whether the class of bail jumping, dictated by the underlying crime, is an essential element of the crime. Green argues that the information did not apprise him of the class of bail jumping under RCW 9A.76.170(2). By omitting any reference to RCW 9A.76.170-(2), Green continues, he was never informed of the crime he was “held for, charged with, or convicted of.” The State argues that the cause number was sufficient to put Green on notice because it told him that he failed to appear in Mason County Superior Court. The State also argues that the underlying crime is relevant only to sentencing and the sentencing court could determine the underlying charges by referencing the cause number. But the State fails to note the ruling in Ibsen, 98 Wn. App. 214, which supports Green’s position.

An information must contain “[a]ll essential elements of a crime.” State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). This enables the defendant to prepare a defense. Kjorsvik, 117 Wn.2d at 101-02. Whether the information is construed under a liberal construction or a strict construction standard depends on when the information is first challenged. Kjorsvik, 117 Wn.2d at 103. Here, Green did not challenge the information until after he was convicted, hence a liberal construction standard is used. Kjorsvik, 117 Wn.2d at 102.

An information will be upheld on appeal under the liberal construction rule, if “an apparently missing element... [may] be fairly implied from language within the charging document.” Kjorsvik, 117 Wn.2d at 104. The test is: “(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she [890]*890was nonetheless actually prejudiced by the inartful language which caused a lack of notice?” Kjorsvik, 117 Wn.2d at 105-06. Nevertheless, a liberal reading cannot cure an information that “cannot be construed to give notice of or to contain in some manner the essential elements of a crime.” State v. Campbell, 125 Wn.2d 797, 802, 888 P.2d 1185 (1995).

In Ibsen, we held that the underlying offense is an essential element of bail jumping.2 The information in Ibsen alleged:

The defendant, in the County of Cowlitz, State of Washington, on or about October 02,1997, having been admitted to bail with the requirement of a subsequent personal appearance before Cowlitz County Superior Court, a court of the State of Washington, did knowingly fail to appear as required contrary to RCW 9A.76.170(1) and against the peace and dignity of the State of Washington.

Ibsen, 98 Wn. App. at 215. We found that the charging document contained the elements found in subsection one of the bail jumping statute, but it did not address the second subsection. Ibsen, 98 Wn. App. at 217. The informa[891]*891tion in Ibsen, like the one here, told the defendant where he failed to appear. And we held the information insufficient under both a liberal and a strict construction. Ibsen, 98 Wn. App. at 218.

The only difference between the Ibsen information and the information here is that Green was told the superior court cause number of the underlying charge.

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State v. Green, 101 Wash. App. 885 (Wash. Ct. App. 2000).

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