State v. Bergstrom

• Decision Date: 15 October 2020
• Docket Number: No. 37023-2-III,37023-2-III
• Citation: 474 P.3d 578,15 Wash. App. 2d 92
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Zachary P. BERGSTROM, Appellant.

15 Wash.App.2d 92

474 P.3d 578

STATE of Washington, Respondent,

v.Zachary P. BERGSTROM, Appellant.

No. 37023-2-III

Court of Appeals of Washington, Division 3.

FILED OCTOBER 15, 2020

OPINION PUBLISHED IN PART

Lawrence-Berrey, J. ¶1 Zachary Bergstrom appeals his convictions for three counts of bail jumping and one count of escape from community custody. The argument he raises that we deem worthy of publishing is whether he was denied his due process right of having the jury instructed on every element of the three bail jumping charges. We hold that the pattern instruction given by the trial court failed to instruct the jury on every element of bail jumping, but the error was harmless beyond a reasonable doubt. In so holding, we decline to follow State v. Hart , 195 Wash. App. 449, 381 P.3d 142 (2016). In the unpublished portion of this opinion, we reverse Bergstrom's conviction on the January 12, 2018 bail jumping count due to ineffective assistance of counsel. We otherwise affirm.

FACTS

¶2 The State originally charged Zachary Bergstrom with one count of possession of a controlled substance. At Bergstrom's September 22, 2017 initial court appearance, the trial court set bail at $2,500, advised Bergstrom he was required to appear at all court dates, and set Bergstrom's arraignment for October 4, 2017. After his arraignment, Bergstrom secured a $2,500 surety bond and was released from jail.

Three failures to appear (bail jumping)

¶3 On November 3, 2017, the trial court entered a scheduling order, setting a pretrial conference for January 12, 2018, at 10:30 a.m. Bergstrom and his attorney signed the order, acknowledging their approval of the date and time. Bergstrom failed to appear at the pretrial conference. The trial court later issued a bench warrant for Bergstrom's arrest.

¶4 On February 28, 2018, the trial court entered a second scheduling order setting a pretrial conference for May 4, 2018. Bergstrom and his attorney signed the order, acknowledging their approval of the date and time.

¶5 On April 5, 2018, the trial court entered an order releasing Bergstrom on April 10 for a drug evaluation. The order also required Bergstrom to appear for drug court on April 11 at 3:00 p.m. and again on April 18 at 3:00 p.m. Bergstrom and his attorney signed the order. Bergstrom failed to appear for drug court on April 18, and the drug court entered an order authorizing a bench warrant. Bergstrom also failed to appear for his May 4, 2018 pretrial conference. The trial court later issued a bench warrant.

Escape from community custody

¶6 While out of custody, Bergstrom was under community supervision and was required to regularly report in person to Officer Jeremy Wilson. Officer Wilson directed Bergstrom to report in person to him on April 17, 2018, and gave Bergstrom a card with the appointment date and time on the back. Bergstrom failed to report on that date, or any other dates, until he was arrested on other charges.

Trial

¶7 The State amended the original possession charge by adding three counts of bail jumping and one count of escape from community custody. At trial, the State called two deputy court clerks to substantiate the bail jumping charges. Through them, the State offered several certified court records to buttress their testimony that Bergstrom failed to appear in court as ordered on January 12, 2018, April 18, 2018, and May 4, 2018. The State also called Officer Wilson, who substantiated the escape from community custody charge.

¶8 Bergstrom testified on his own behalf. He did not deny he knew of the court dates he missed nor did he claim it was someone else's signature on the certified court records. Instead, he testified he failed to appear at the January 12, 2018 hearing because he was in a hospital at the time. According to Bergstrom, he contacted his bonding company while in the hospital and, a day or two later, he went to the bonding company with papers showing he had been in the hospital. Bergstrom testified that despite these papers, the bonding company surrendered him to the jail.

¶9 After both sides presented their cases, the trial court instructed the jury. Bergstrom did not object to any of the court's instructions. The jury returned a verdict of not guilty on the charge of possession of a controlled substance and guilty on all other charges. The trial court entered its judgment and sentence, and Bergstrom timely appealed.

ANALYSIS

A. DUE PROCESS CHALLENGE TO BAIL JUMPING TO-CONVICT INSTRUCTIONS

¶10 Bergstrom argues the trial court's three bail jumping to-convict instructions violated his right to due process because the instructions relieved the State of its burden to prove each element of the charges. We agree, but conclude the error was harmless beyond a reasonable doubt.

¶11 To understand Bergstrom's argument, we must compare the elements of bail jumping with the trial court's bail jumping to-convict instructions.

¶12 To convict a defendant of bail jumping, the State must prove beyond a reasonable doubt that the defendant (1) was held for, charged with, or convicted of a particular crime, (2) was released by court order or admitted to bail with the requirement of a subsequent personal appearance, and (3) knowingly failed to appear as required. State v. Williams , 162 Wash.2d 177, 183-84, 170 P.3d 30 (2007) ; RCW 9A.76.170(1).

¶13 Compare those elements with the three bail jumping to-convict instructions given by the trial court:

(1) That on or about January 12, 2018, the defendant failed to appear before a court;

(2) That the defendant was charged with possession of a controlled substance, a crime under RCW 69.50.4013(1), a class C felony;

(3) That the defendant had been admitted to bail with the knowledge of the requirement of a subsequent personal appearance before that court; and

(4) That any of these acts occurred in the State of Washington.

CP at 148 (Instruction 14).

(1) That on or about April 18, 2018, the defendant failed to appear before a court;

(2) That the defendant was charged with possession of a controlled substance, a crime under RCW 69.50.4013(1), a class C felony;

(3) That the defendant had been released by court order with knowledge of the requirement of a subsequent personal appearance before that court; and

(4) That any of these acts occurred in the State of Washington.

CP at 150 (Instruction 16).

(1) That on or about May 04, 2018, the defendant failed to appear before a court;

(2) That the defendant was charged with Possession of a Controlled Substance, a crime under RCW 69.50.4013(1), a class C felony; (3) That the defendant had been released by court order with knowledge of the requirement of a subsequent personal appearance before that court; and

(4) That any of these acts occurred in the State of Washington.

CP at 152 (Instruction 18).

¶14 The three instructions were patterned from 11A Washington Practice: Pattern Jury Instructions: Criminal 120.41, at 570 (4th ed. 2016).

¶15 Bergstrom argues the bail jumping to-convict instructions relieved the State of its burden of proving he knowingly failed to appear as required. He contends the instructions allowed him to be convicted even if he was not given notice of the specific court dates he allegedly missed. The State argues that we should refuse to review this unpreserved claim of error. We disagree.

¶16 Unpreserved claims of manifest error involving a constitutional right are reviewable. RAP 2.5(a)(3). Bergstrom raises such a claim. First, Bergstrom's claim actually involves a constitutional right. A trial court's failure to instruct the jury as to every element of the crime charged violates due process. State v. Aumick , 126 Wash.2d 422, 429, 894 P.2d 1325 (1995).

¶17 Second, the claimed error is manifest. An error is manifest if there is actual prejudice—meaning a plausible showing by the appellant that the asserted error had practical and identifiable consequences at trial. State v. Irby , 187 Wash. App. 183, 193, 347 P.3d 1103 (2015). To determine whether this standard is met, "the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error." State v. O'Hara , 167 Wash.2d 91, 100, 217 P.3d 756 (2009). "If the trial court could not have foreseen the potential error or the record on appeal does not contain sufficient facts to review the claim, the alleged error is not manifest." State v. Davis , 175 Wash.2d 287, 344, 290 P.3d 43 (2012). Here, if the to-convict instructions given did not require the State to prove that Bergstrom knowingly failed to appear as required, the trial court reasonably should have known the instructions were erroneous and could have corrected the error by giving appropriate to-convict instructions.

¶18 A review of the bail jumping to-convict instructions makes it apparent the instructions did not require the State to prove that Bergstrom knowingly failed to appear as required. The first element in the to-convict instruction required the State to prove that Bergstrom failed to appear on the dates alleged in the particular counts. But no element in the to-convict instruction required the State to prove Bergstrom knew he was required to appear on the dates alleged in the particular counts. The knowledge element in RCW 9A.76.170(1) requires the State to prove that the defendant was given notice of the required court dates. Williams , 162 Wash.2d at 184, 170 P.3d 30 ; see also State v. Fredrick , 123 Wash. App. 347, 353, 97 P.3d 47 (2004) ; State v. Carver , 122 Wash. App. 300, 306, 93 P.3d 947 (2004).

¶19 The State urges us to follow Hart , 195 Wash. App. 449, 381 P.3d 142. There, Division Two of this court held that an instruction similar to the one given here correctly stated the law. Division Two concluded that the third part of the instruction, " ‘knowledge of the requirement of a subsequent personal appearance before the court,’ " was sufficient. Id. at 456, 381 P.3d 142 (second emphasis added). We disagree...