State v. Pry, 96599-4

• Decision Date: 21 November 2019
• Docket Number: No. 96599-4,96599-4
• Citation: 452 P.3d 536
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Robert Lee PRY, Robert Lavalle Davis, and Arnold Mafnas Cruz, Respondents.

452 P.3d 536

STATE of Washington, Petitioner,

v.Robert Lee PRY, Robert Lavalle Davis, and Arnold Mafnas Cruz, Respondents.

No. 96599-4

Supreme Court of Washington.

Argued June 25, 2019

Filed November 21, 2019

Randall Avery Sutton, Kitsap County Prosecutor's Office, 614 Division Street, Port Orchard, WA 98366-4614, for Petitioner.

Lila Jane Silverstein, Attorney at Law, 15 Comstock Street, Seattle, WA 98109-3212, Marie Jean Trombley, Attorney at Law, P.O. Box 829, Graham, WA 98338-0829, Gregory Charles Link, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-1683, for Respondents.

Jennifer M. Winkler, Nielsen, Broman & Koch, PLLC, 1908 E. Madison Street, Seattle, WA 98122-2842, for Defendant.

Wiggins, J.

¶ 1 At issue in this case is whether the information charging Arnold Cruz¹ with rendering criminal assistance is constitutionally sufficient—specifically, whether the charging document must include additional statutory elements from RCW 9A.76.050. We hold that because section .050 provides essential elements for rendering criminal assistance and Cruz’s information lacked those elements, the information is constitutionally deficient. Accordingly, we affirm the Court of Appeals, dismiss the charge of rendering criminal assistance without prejudice, and remand Cruz’s case to the trial court for further proceedings consistent with this opinion.

BACKGROUND

¶ 2 On a December day in 2015, two men severely beat and killed 89-year-old Robert Archie Hood. The two men—Robert Pry and Robert Davis—forced their way into Hood’s home, tied him up, and beat and robbed him. Worried that law enforcement would discover Hood’s body, Pry and Davis contacted Cruz for assistance. Cruz was not involved in the murder or robbery of Hood’s home. He became involved only after these events occurred.

¶ 3 Sometime later, Hood’s caretaker visited Hood’s home and, after noticing that. Hood was gone and someone had rifled through the house, alerted the police. Hood’s body was eventually discovered stuffed in a blue plastic barrel. The police released Cruz’s name to the press as a person of interest, and Cruz surrendered himself to law enforcement.

¶ 4 The State charged Cruz by information. Originally, Cruz was charged only with first degree rendering criminal assistance (count 1). Months later, the State filed an amended information adding a second count: concealing a deceased body (count 2). For count 1, the amended information specified:

On or about or between December 17, 2015 and December 30, 2015, in the County of Kitsap, State of Washington, the above-named Defendant, rendered criminal assistance to a person who had committed or was being sought for any class A felony; contrary to the Revised Code of Washington 9A.76.070(1).

( MAXIMUM PENALTY —Ten (10) years imprisonment and/or a $20,000 fine pursuant to RCW 9A.76.070(2)(a) and RCW 9A.20.021(1)(b), plus restitution and assessments.)

....

Special Allegation—Aggravating Circumstance—Lack of Remorse

AND FURTHERMORE , the Defendant demonstrated or displayed an egregious lack of remorse, contrary to RCW 9.94A.535(3)(q).

Special Allegation—Aggravating Circumstance—Impact on Persons Other than Victim

AND FURTHERMORE , the offense involved a destructive and foreseeable impact on persons other than the victim, contrary to RCW 9.94A.535(3)(r).

Clerk’s Papers (CP) at 578-79. For count 2, the information stated:

On or about or between December 17, 2015 and December 30, 2015, in the County of Kitsap, State of Washington, the above-named Defendant, not having been authorized by the Kitsap County Coroner or his or her deputies, did remove the body of a deceased person (1) not claimed by a relative or friend; and/or (2) who came to his or her death by reason of violence or from unnatural causes; and/or (3) where there existed reasonable grounds for the belief that such death had been caused by unlawful means at the hands of another; and/or (4) to any undertaking rooms or elsewhere; and/or (5) and direct, aid or abet such taking; and/or (6) and in any way conceal the body of a deceased person for the purpose of taking the same to any undertaking rooms or elsewhere; contrary to Revised Code of Washington 68.50.050.

( MAXIMUM PENALTY —Three hundred sixty-four (364) days in jail or $1,000 fine, or both, pursuant to RCW 68.50.050, plus restitution, assessments and court costs.)

CP at 579. Cruz was convicted of both count 1 and count 2; the jury found him not guilty of any aggravating circumstance.² Cruz pleaded guilty to drug possession and bail jumping in another case. The State asked the court to run these earlier offenses and his convictions related to Hood consecutively, making the sentences exceptional. The court agreed, sentencing Cruz to a total of 151 months in prison.

¶ 5 On appeal, Cruz argued for the first time that the State’s charging document was constitutionally deficient for failing to set forth all the essential elements of rendering criminal assistance. State v. Pry, No. 77930-3-I, slip op. at 3, 43, 2018 WL 5984146 (Wash. Ct. App. Nov. 13, 2018) (unpublished), http://www.courts.wa.qov/opinion/ pdf/779303.PDF.³ The Court of Appeals agreed. Id. In an unpublished opinion, the court reversed Cruz’s conviction and remanded the case for dismissal without prejudice. Id. at 43. The court declined to address Cruz’s argument concerning the 151-month exceptional sentence. Id. The State sought limited review of the court’s decision reversing Cruz’s conviction. We granted the petition. State v. Davis, 192 Wash.2d 1022, 435 P.3d 288 (2019).

ANALYSIS

¶ 6 Cruz argues that the Court of Appeals properly reversed his conviction because the information omitted essential elements of the crime of rendering criminal assistance. Cruz contends that RCW 9A.76.050 contains the required essential elements and their lack of inclusion in his charging document renders it constitutionally deficient. The State counters that section .050 is merely definitional and need not be included in the information. Furthermore, the State contends, even if the information listed "vague" elements of the crime, Cruz was not prejudiced because the probable cause statement included with the information gave him adequate notice of the charges. For the following reasons, we agree with Cruz.

I. An information must include all essential elements of the crime to be constitutionally sufficient

¶ 7 Accused persons have the constitutional right to know the charges against them. U.S. CONST . amend. VI ; WASH . CONST . art. I, § 22. "Pursuant to this right, ‘[t]he accused ... has a constitutional right to be apprised of the nature and cause of the accusation against him. ... This doctrine is elementary and of universal application, and is founded on the plainest principle of justice.’ " State v. Gehrke, 193 Wash.2d 1, 6, 434 P.3d 522 (2019) (lead opinion) (first and third alterations in original) (quoting State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894) ). The State gives notice of charges by information, which "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." CrR 2.1(a)(1). An offense is not properly charged unless the information sets forth every essential statutory and nonstatutory element of the crime. State v. Kjorsvik, 117 Wash.2d 93, 97, 812 P.2d 86 (1991) ; State v. Vangerpen, 125 Wash.2d 782, 787, 888 P.2d 1177 (1995).

¶ 8 An "essential element is one whose specification is necessary to establish the very illegality of the behavior" charged. State v. Johnson, 119 Wash.2d 143, 147, 829 P.2d 1078 (1992) (citing United States v. Cina, 699 F.2d 853, 859 (7th Cir. 1983) ). The primary purpose of the essential element rule is "to apprise the accused of the charges against him or her and to allow the defendant to prepare a defense." Vangerpen, 125 Wash.2d at 787, 888 P.2d 1177. While the information need not restate the precise language of the essential elements of a crime, the information must do more than merely name the offense and list the elements—it must allege the particular facts supporting them. State v. Nonog, 169 Wash.2d 220, 226, 237 P.3d 250 (2010) (citing State v. Leach, 113 Wash.2d 679, 688, 782 P.2d 552 (1989) ); see also State v. Royse, 66 Wash.2d 552, 557, 403 P.2d 838 (1965). We may look to other counts charged when assessing whether the information appropriately gave the defendant notice. Nonog, 169 Wash.2d at 227-28, 237 P.3d 250. Failure to allege each element means the information is insufficient to charge a crime and must be dismissed. Vangerpen, 125 Wash.2d at 788, 888 P.2d 1177. A charging document is not required to define essential elements. State v. Johnson, 180 Wash.2d 295, 302, 325 P.3d 135 (2014).

¶ 9 When, as in this case, a charging document is challenged for the first time on appeal, we construe it liberally. State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000). But, " ‘[i]f the document cannot be construed to give notice of or to contain in some manner the essential elements of a crime, the most liberal reading cannot cure it.’ " Id. at 425, 998 P.2d 296 (alteration in original) (internal quotation marks omitted) (quoting State v. Moavenzadeh, 135 Wash.2d 359, 363, 956 P.2d 1097 (1998) ).

¶ 10 Reviewing courts use a two-pronged test to resolve challenges to the sufficiency of evidence: (1) do the necessary facts appear in any form, or by fair construction can they be found, on the face of the charging document and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language that caused a lack of notice? Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86. Under the first prong of Kjorsvik, courts may examine other charged counts when assessing whether an information gave a defendant appropriate notice. Nonog, 169 Wash.2d at 226, 237 P.3d 250. We do not look past the face of the document—and therefore do not examine items such as statements of probable cause—until the second prong in K...