State v. Strong

785 P.2d 464, 56 Wash. App. 715, 1990 Wash. App. LEXIS 54

• Court: Court of Appeals of Washington
• Decided: January 24, 1990
• Docket: 11179-9-II
• Status: Published

Opinions

Alexander, C.J.

Robert Strong appeals his conviction for first degree robbery, contending that the information was fatally defective because it failed to allege the common law element of intent to deprive the victim of his property. We find that the information was sufficient to meet constitutional requirements and affirm.

Strong was convicted of taking money from Adrian Richard at gunpoint. The information charged:

That ROBERT DONALD STRONG and WILLIE LEE MC KINNEY, in Pierce County, Washington, on or about the 22nd day of January, 1987, did unlawfully and feloniously take personal property from the person or in the presence of Adrian Richard, against such person's will by use or threatened use of immediate force, violence, or fear of injury to Adrian Richard, and in the commission thereof, or in immediate flight therefrom, the defendant or his accomplice was armed with a deadly weapon, to-wit: a firearm, that being a deadly weapon as defined in RCW 9.94A.125, and adding additional time to the presumptive sentence . . ..

Strong made no objection to the information below, but he contends that he may raise the issue for the first time here under the authority of RAP 2.5(a)(3), which allows review of manifest error affecting a constitutional right. There is no such error here, however.

Not every defect in an information rises to the level of a constitutional error. In State v. Holt, 104 Wn.2d 315, 320, 704 P.2d 1189 (1985), the court held that

[t]he omission of any statutory element of a crime in the charging document is a constitutional defect which may result in dismissal of the criminal charges. [State v. Bonds, 98 Wn.2d 1, 16, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983)]; see also In re Richard, 75 Wn.2d 208, 449 P.2d 809 (1969); Seattle v. Morrow, 45 Wn.2d 27, 273 P.2d 238 (1954); Seattle v. Jordan, 134 Wash. 30, 235 P. 6 (1925). Conversely, if the information states each statutory element of a crime, but is vague as to some other matter significant to the defense, a bill of particulars is capable of correcting that defect. In that event, a defendant is not entitled to challenge the information on appeal if he failed to request the bill of particulars at an earlier time.

See also State v. Thomas, 73 Wn.2d 729, 730-31, 440 P.2d 488 (1968). This rule was further clarified in State v. Leach, 113 Wn.2d 679, 782 P.2d 552 (1989), in which the court said that the "essential elements" rule does not necessarily require that every element of the crime be listed so long as the charging document alleges facts supporting every element of the offense and adequately identifies the crime charged. Leach, 113 Wn.2d at 689. The information here stated each of the statutory elements of robbery and it included facts which supported the element of intent. Had Strong had any confusion about why the taking of money from Richard was unlawful, he could have requested that the information be made more definite and certain. He did not, and he has missed his opportunity to do so.

Strong argues that omission of an implied element is also a constitutional defect. However, we find that the information was sufficient to meet due process requirements. The constitutional right violated by an inadequate information is the right of an accused to be informed of the nature and cause of the accusation against him, guaranteed by the sixth amendment to the United States Constitution, and the state constitution, article 1, section 22. See State v. Bergeron, 105 Wn.2d 1, 18, 711 P.2d 1000 (1985); State v. Newson, 8 Wn. App. 534, 536, 507 P.2d 893 (1973). When this issue is raised for the first time on appeal, the court should test the information's sufficiency by a stricter standard than if the question had been raised first below. Under these circumstances, the courts have held that the information is immune from attack unless it is so obviously defective as not to charge the offense by any reasonable construction. State v. Smith, 49 Wn. App. 596, 598, 744 (1987), review denied, 110 Wn.2d 1007 (1988). That is not the case here.

The omission of any statutory element of a crime is a constitutional defect which may result in dismissal of criminal charges. Holt, 104 Wn.2d at 320. The obvious reason for the requirement that the elements be set forth in the information is that an information which does not include the statutory elements does not state a crime. See State v. Leach, 53 Wn. App. 322, 329, 766 P.2d 1116 (1989). However, by definition, a complaint stated in the language of a statute defining a crime states a crime. See State v. Thomas, 73 Wn.2d at 731. A mental state which is an implied element of the crime as defined by statute is also an implicit part of the charge. Where there is a well established rule implying the requisite mental state as an element of the crime, its omission from the information is of no significance. See State v. Bower, 28 Wn. App. 704, 707 n.2, 626 P.2d 39 (1981). Thus, an information need not allege implied elements of the crime if it follows the language of the statute and is sufficient to apprise the accused with reasonable certainty of the nature of the accusation. See Smith, 49 Wn. App. at 599 (holding that the court-implied element of knowledge was not a necessary part of an information charging possession of stolen property);¹ State v. Bower, supra (information charging the defendant with preventing a prison guard from performing his duties need not include the element of intent); State v. Orsborn, 28 Wn. App. 111, 114, 626 P.2d 980 (1980) (information charging negligent homicide need not include requirement that the victim's death be a proximate result of the injuries received in the accident), review denied, 97 Wn.2d 1012 (1982).²

The statutory elements of robbery are (1) a taking of personal property; (2) from the person or in one's presence; (3) by the use or threatened use of force, or violence, or fear of injury; (4) such force or fear being used to obtain or retain the property. See State v. Allen, 94 Wn.2d 860, 863, 621 P.2d 143 (1980); RCW 9A.56.190.³ Here, the information included all of the statutory elements of the crime. It followed the language of the statute and it clearly notified Strong that he was accused of taking personal property from Adrian Richards by force or threat. That was enough to enable him to prepare his defense, and that is all that was required. State v. Grant, 89 Wn.2d 678, 686, 575 P.2d 210 (1978).

The judgment is affirmed.

Worswick, J., concurs.

1 The dissent contends that Smith can be distinguished because the information employed a term of art, which was defined elsewhere in the statute to include the element of knowledge. However, the significance of the definition was in its validation of the use of the term of art. Earlier case law has held that some terms of art are merely conclusions of law and do not sufficiently notify a defendant of the nature of the charge unless accompanied by a statutory definition. See State v. Heath, 57 Wash. 246, 106 P.2d 756 (1910) (involving use of the term "assault").

2 State v. Hall, 54 Wash. 142, 102 P. 888 (1909), on which the dissent relies, does not mandate a contrary result. It did not address the issue raised here. Other cases which have considered robbery charges have upheld informations which did not allege intent. See State v. Baker, 69 Wash. 589, 125 P. 1016 (1912) (question was whether sufficient acts had been alleged to constitute an attempt); State v. Smith, 40 Wash. 615, 82 P. 918 (1905) (information did not say property taken was carried away); State v. Johnson, 19 Wash. 410, 53 P. 667 (1898) (insufficient description of property stolen).

While none of these cases involved the question of intent, at least one of these courts implied that it would not approve the language if it were deficient in any material respect. The Smith court relied upon the affirmance of similar informations by other courts, involving different challenges to the information. Although the precise issue had not been discussed by those other courts, the Smith court said such an omission would not have escaped their attention, had it been deemed material. 40 Wash. at 617-18.

3 RCW 9A.56.190 states:

"A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear."