State Of Wash. v. Nonog

• Decision Date: 22 July 2010
• Docket Number: No. 82094-5.,82094-5.
• Citation: 237 P.3d 250,169 Wash.2d 220
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Cipriano Bahit NONOG, Petitioner.

169 Wash.2d 220

237 P.3d 250

STATE of Washington, Respondent,

v.Cipriano Bahit NONOG, Petitioner.

No. 82094-5.

Supreme Court of Washington,En Banc.

Argued Feb. 25, 2010.

Decided July 22, 2010.

Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Petitioner.

Brian Martin McDonald, King County Prosecutor's Office, Seattle, WA, for Respondent.

STEPHENS, J.

¶ 1 This case concerns whether the information charging the defendant with interfering with the reporting of domestic violence under RCW 9A.36.150 was constitutionally sufficient. The count charging interfering with reporting did not specify the underlying domestic violence crime, but alleged that the defendant “committed a crime of domestic violence as defined by RCW 10.99.020” on a certain day. Clerk's Papers (CP) at 11. Two other counts in the information charged specific domestic violence crimes occurring the same day. We hold that the information, when liberally construed, was sufficient because it reasonably apprised the defendant that the underlying domestic violence crimes were those alleged elsewhere in the information. We therefore affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2 The King County Superior Court issued a no contact order barring Cipriano Bahit Nonog from contact with Nanette Estandian. State v. Nonog, 145 Wash.App. 802, 804-05, 187 P.3d 335 (2008). On March 30, 2006, Estandian came home with a friend to find Nonog inside her house. She tried to phone the police, but Nonog grabbed her cell phone and threw it against the wall. Estandian had to use her friend's cell phone to call 911. Over the next two weeks, Estandian called the police on two occasions to report that Nonog had again entered her home without permission. Id. at 805-06, 187 P.3d 335.

¶ 3 The State charged Nonog with five offenses: (I) felony violation of the no contact order on March 30, 2006; (II) residential burglary-domestic violence on March 30, 2006; (III) felony violation of the no contact order on April 8, 2006; (IV) interfering with domestic violence reporting on March 30, 2006; and (V) felony violation of the no contact order on April 16, 2006. CP at 10-12. Count IV of the information read as follows:

And I, Norm Maleng, Prosecuting Attorney aforesaid further do accuse CIPRIANO BAHIT NONOG of the crime of Interfering with Domestic Violence Reporting, a crime of the same or similar character and based on the same conduct as another crime charged herein, which crimes were part of a common scheme or plan and which crimes were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the other, committed as follows:

That the defendant CIPRIANO BAHIT NONOG in King County, Washington on or about March 30, 2006, having committed a crime of domestic violence as defined by RCW 10.99.020, did intentionally prevent or attempt to prevent Nanette Estandian, the victim of that crime, from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official;

Contrary to RCW 9A.36.150, and against the peace and dignity of the State of Washington.

Id. at 11-12. Nonog did not request a bill of particulars. At trial the jury convicted Nonog only of the three counts arising from March 30, 2006 (counts I, II, and IV). Nonog, 145 Wash.App. at 806, 187 P.3d 335.

¶ 4 On appeal, Nonog argued for the first time that count IV was constitutionally defective because it did not allege all of the elements of the crime of interfering with domestic violence reporting. ¹ Specifically, count IV did not specify the underlying domestic violence crime that the victim attempted to report. Because the information did not set forth the specific domestic violence crime, Nonog argued that his conviction on count IV must be reversed. A Division Two case, State v. Clowes, 104 Wash.App. 935, 942, 18 P.3d 596 (2001), supports this contention.

¶ 5 Rejecting Nonog's argument, the Court of Appeals expressly disagreed with Clowes and adopted the view of Division Three in State v. Laramie, 141 Wash.App. 332, 339-40, 169 P.3d 859 (2007), which likewise rejected Clowes. Nonog, 145 Wash.App. at 809-10, 187 P.3d 335. The court held that count IV contained all of the statutory elements, and that the supporting facts giving constitutional notice of the underlying domestic violence crime could reasonably be inferred from the information as a whole. It affirmed Nonog's conviction.

¶ 6 Nonog sought review based on a conflict within the Court of Appeals. We granted review at 165 Wash.2d 1027, 203 P.3d 379 (2009).

ANALYSIS

¶ 7 Nonog challenges the sufficiency of count IV of the information, which alleges interfering with domestic violence reporting in violation of RCW 9A.36.150. ² This statute provides:

(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; 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.

RCW 9A.36.150.

¶ 8 The accused in a criminal case enjoys a constitutional right to notice of the alleged crime the State intends to prove. Wash. Const. art. I, § 22 (“In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him ....”); accord U.S. Const. amend. VI. This notice is formally given in the information. See CrR 2.1(a)(1) (“[T]he information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.”).

¶ 9 The information must allege every element of the charged offense. State v. Vangerpen, 125 Wash.2d 782, 787, 888 P.2d 1177 (1995). The law imposes this requirement so “that the accused may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense.” State v. Leach, 113 Wash.2d 679, 688, 782 P.2d 552 (1989). Failure to allege each element means that the information is insufficient to charge a crime, and so must be dismissed. ³ Vangerpen, 125 Wash.2d at 788, 795, 888 P.2d 1177. By long standing precedent, the defendant may bring a constitutional challenge to the information at any time before final judgment. City of Seattle v. Jordan, 134 Wash. 30, 34, 235 P. 6 (1925); accord State v. Holt, 104 Wash.2d 315, 321, 704 P.2d 1189 (1985) (citing Jordan ).

¶ 10 The elements need not be alleged in the exact words of the statute so long as the information alleges the elements of the crime in terms equivalent to or more specific than those of the statute. Leach, 113 Wash.2d at 686, 689, 782 P.2d 552. More than merely listing the elements, the information must allege the particular facts supporting them. Id. at 688, 782 P.2d 552. The requirement is to charge in language that will “apprise an accused person with reasonable certainty of the nature of the accusation.” Id. at 686, 782 P.2d 552. Failure to provide the facts “ ‘necessary to a plain, concise and definite statement’ ” of the offense renders the information deficient. See id. at 690, 782 P.2d 552 (quoting JCrR 204(a)).

¶ 11 Our review of count IV involves a consideration of the information as a whole. In State v. Kjorsvik, 117 Wash.2d 93, 105-08, 812 P.2d 86 (1991), we adopted a liberal construction rule when considering challenges to the information raised for the first time on appeal. Liberal construction balances the defendant's right to notice against the risk of what Professor Wayne R. LaFave termed “sandbagging”-that is, that a defendant might keep quiet about defects in the information only to challenge them after the State has rested and can no longer amend it. Id. at 103, ⁴ 106, 108, 812 P.2d 86. When a defendant challenges the information for the first time on appeal, we determine if the elements “appear in any form, or by fair construction can they be found, in the charging document.” Id. at 105, 812 P.2d 86. We read the information as a whole, according to common sense and including facts that are implied, to see if it “reasonably apprise[s] an accused of the elements of the crime charged.” Id. at 109, 812 P.2d 86. If it does, the defendant may prevail only if he can show that the unartful charging language actually prejudiced him. Id. at 106, 812 P.2d 86.

¶ 12 Kjorsvik and some later cases considered only the count charging the crime at issue. See id. at 96, 812 P.2d 86 (single count information); State v. Tunney, 129 Wash.2d 336, 338, 917 P.2d 95 (1996) (same); State v. Davis, 119 Wash.2d 657, 662, 835 P.2d 1039 (1992) (considering only one count of a multicount information); State v. Simon, 120 Wash.2d 196, 197-98, 840 P.2d 172 (1992) (single count information); State v. Hopper, 118 Wash.2d 151, 154, 822 P.2d 775 (1992) (considering only one count of a multicount information). However, nothing in Kjorsvik's language suggests that review of the charging document “as a whole” is limited to review of the specific count at issue. See Kjorsvik, 117 Wash.2d at 109, 812 P.2d 86 (“[T]he question ... is whether all the words used would reasonably apprise an accused of the elements of the crime charged.” (emphasis added)). Consequently, we have looked at the other counts in the information to determine if the count at issue is constitutionally sufficient. See State v. Valdobinos, 122 Wash.2d 270, 286, 858 P.2d 199 (1993) (holding that counts charging intent to deliver and conspiracy to deliver cocaine reasonably apprised the defendant of the “knowledge” element of an unlawful delivery charge in another count). In Valdobinos, we deemed it appropriate to “examin...