State v. Graham

• Decision Date: 18 February 1992
• Docket Number: 26532-6-I,Nos. 24861-8-,s. 24861-8-
• Citation: 824 P.2d 502,64 Wn.App. 305
• Parties: STATE of Washington, Respondent, v. Daniel R. GRAHAM, Appellant. STATE of Washington, Respondent, v. Quentin ERVIN, Appellant.
• Court: Washington Court of Appeals

Page 305

64 Wn.App. 305

824 P.2d 502

STATE of Washington, Respondent, v. Daniel R. GRAHAM, Appellant.

STATE of Washington, Respondent, v. Quentin ERVIN, Appellant.

Nos. 24861-8-I, 26532-6-I.

Court of Appeals of Washington Division 1.

Feb. 18, 1992.

Washington Appellate Defenders, Suzanne Lee Elliott, Seattle, for appellants.

Norm Maleng, King County Pros. Atty., John E. Bell, Deputy, Seattle, for respondent.

PER CURIAM.

The appellants in these consolidated appeals challenge the sufficiency of the robbery informations filed against them. We affirm Ervin's conviction and deny Graham's motion to modify a commissioner's ruling affirming his conviction.

Ervin was charged in juvenile court with second degree robbery. The information alleged in pertinent part as follows:

That the respondent ... did unlawfully take personal property, to-wit: a leather jacket, from the person and in the presence of Mark Leen, against his will, by the use or threatened use of immediate force, violence and fear of injury to such person or his property....

The court found Ervin guilty as charged.

Graham also was charged with second degree robbery. The information in his case alleged in pertinent part as follows:

That the defendant ... did unlawfully take personal property, to-wit: lawful United States currency, from the person and in the presence of Micheline Handley, against her will, by the use or threatened use of immediate force, violence and fear of injury to such person or her property....

The jury found Graham guilty as charged.

Both Ervin and Graham contend for the first time on appeal that the informations in their cases were fatally defective because they failed to allege a nonstatutory element of the offense of robbery, i.e., that the victim had ownership or dominion and control over the property taken. We disagree.

All essential elements of an alleged crime, whether statutory or nonstatutory, "must be included in the charging document in order to afford the accused notice of the nature of the allegations so that a defense can be properly prepared." State v. Kjorsvik, 117 Wash.2d 93, 102, 812 P.2d 86 (1991). If, as here, the sufficiency of a charging document is not challenged until after the verdict, the charging document "will be more liberally construed in favor of validity...." Kjorsvik, at 102, 812 P.2d 86. The test for the sufficiency of charging documents challenged for the first time on appeal is as follows:

(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 was nonetheless actually prejudiced by the inartful language which caused a lack of notice?

Kjorsvik, at 105-06, 812 P.2d 86. When applying this test to nonstatutory elements, it is not fatal to an information that the exact words of the case law element are not used; rather, "the question ... is whether all the words used would reasonably apprise an accused of the elements of the crime charged." Kjorsvik, at 109, 812 P.2d 86. Applying this test to the charging documents at issue here, we conclude that the informations were sufficient.

One of the elements of robbery which must be alleged in the information is that ownership of the property taken was in some person other than the defendant. See generally State v. Dengel, 24 Wash. 49, 63 P. 1104 (1901); State v. Morgan, 31 Wash. 226, 71 P. 723 (1903); State v. Hall, 54 Wash. 142, 102 P. 888 (1909); State v. Rowan, 84 Wash. 158, 146 P. 374 (1915); State v. Steele, 150 Wash. 466, 273 P. 742 (1929); State v. Jefferson, 74 Wash.2d 787, 446 P.2d 971 (1968). Ervin and Graham's informations did not expressly allege this element. Nevertheless, under the first prong of Kjorsvik's liberal construction test, the informations sufficiently alleged this element because they alleged that Ervin and Graham "unlawfully" took personal property "from the person" of their victims. An allegation that the defendant "unlawfully" took personal property implies that the defendant had no legal claim to the property, ¹ and that ownership was in some person other than the defendant. Also, the allegation that the property was taken "from the person" of the victim indicates that the victim had actual possession of, and thus dominion and control over, the property taken. The ownership element of robbery is satisfied if the victim had actual physical possession of the property taken. State v. Latham, 35 Wash.App. 862, 865, 670 P.2d 689 (1983), review denied, 102 Wash.2d 1018 (1984); 4 C. Torcia, Wharton's Criminal Law § 482 (1981); W. LaFave & A. Scott, ICriminal Law § 94 at 693 (1972); 67 Am.Jur.2d, Robbery § 16 at 68-69 (1985). As noted in Latham, "[a] robbery may ... occur when a person is in possession of property without any legally recognizable claim thereto. Anyone having a right to possession superior to that of the robbery defendant is deemed to be the owner as against that defendant." Latham 35 Wash.App. at 865-66, 670 P.2d 689.

Thus, a liberal and fair construction of the language in the informations shows that Ervin and Graham were reasonably apprised of the allegation that the property they took belonged to someone other than themselves. ² The Washington cases cited by appellants are inapposite because they predate the advent of the liberal construction rule announced in Kjorsvik.

Ervin and Graham also have not satisfied the second prong of the liberal construction test because they have not shown actual prejudice resulting from any inartful language in the informations. In fact, they have advanced no argument whatsoever regarding prejudice. Considering that Ervin's defense at trial had nothing to do with ownership of the property, ³ it is difficult to see how he could have been prejudiced by any inartful wording in the information. Likewise, since Graham's defense at trial was based solely on identification, the vagueness of the information could not have prejudiced his defense.

Ervin also argues that the information...