State v. Kirwin, No. 28972-9-III

• Court: Court of Appeals of Washington
• Writing for the Court: Korsmo
• Docket Number: No. 28972-9-III
• Parties: State of Washington v. Jennifer L. Kirwin (Dissent)
• Decision Date: 23 February 2012

State of Washington
v.
Jennifer L. Kirwin (Dissent)

No. 28972-9-III

Court of Appeals of Washington

Filed: February 23, 2012

Korsmo, A.C.J. (dissenting) — This court should focus on the sufficiency of the evidence to support the jury's verdict rather than render an advisory opinion about a theory that the jury did not consider. The instructional theory is the normal focus for an appellate court's sufficiency review of a jury verdict; it also is how we address comparable errors in civil cases. This approach also is consistent with the cases addressing the closely analogous situation of improper amendments to the charging document during trial. For these reasons I dissent from the majority's approach to this case.

Moreover, there was sufficient evidence adduced to support either theory of custodial interference. This case must be retried because the jury was instructed on the elements of the wrong offense. Accordingly, I would reverse and remand this case for a new trial with correct instructions.¹

Erroneous Elements Instruction

The majority correctly identifies the problem with the elements instruction in this case. The State charged Ms. Kirwin with violating RCW 9A.40.060(1)(c), which defines custodial interference in terms of a relative depriving a guardian of physical custody by

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taking the children out of state. Clerk's Papers (CP) at 1-2. However, the elements instruction informed the jury that it was to decide if the mother deprived her ex-husband of his visitation time with the children under the parenting plan by taking them out of state, which constitutes a violation of RCW 9A.40.060(2)(c). CP at 36 (Instruction 6).

The state and federal constitutions require that an accused be informed of the charges he or she must face at trial. Const. art. I, § 22;² Sixth Amendment.³ Because of the centrality of this notice to the ability to defend, it is error to instruct the jury on uncharged offenses or uncharged alternative theories. E.g., State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942); State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003). The error can be harmless if other instructions define the crime in a manner that leaves only the charged alternative before the jury. Severns, 13 Wn.2d at 549; Chino, 117 Wn. App. at 540.

That is not the circumstance here. The crime of first degree custodial interference was defined for the jury consistent with the elements instruction. CP at 35 (Instruction 5). Thus, Ms. Kirwin was tried on a theory of the case that she was not informed about by the charging document. Since the definitional instruction supported the new theory,

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the error was not harmless. Severns, 13 Wn.2d 542; Chino, 117 Wn. App. 531. She is entitled to a new trial.

Focus of Sufficiency Review

This typical resolution would normally be the end of the discussion. However, instead of seeking a new trial, Ms. Kirwin wants the charges dismissed due to alleged insufficiency of the evidence to support the theory stated in the charging document. She provides no authority in support of her argument, which is a question of first impression. Her theory is not consistent with the reason appellate courts conduct sufficiency review, nor is it consistent with the treatment of this error in untimely amendment cases or in civil cases.

Purpose of Review. The United States Supreme Court first applied the proof beyond a reasonable doubt standard in criminal cases to the states in In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). One of the ensuing questions was the standard to be applied to adjudge state compliance with Winship, an issue addressed in Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). There the court determined that federal courts would look to see if the state verdict was supported by evidence sufficient to prove each element of the crime beyond a reasonable doubt. Id. at 324.

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Unsurprising, the Washington Supreme Court then adopted the same standard for reviewing the sufficiency of the evidence to support a jury verdict in State v. Green, 94 Wn.2d 216, 220-222, 616 P.2d 628 (1980). The courts of this state have uniformly applied that standard ever since to review verdicts reached by juries and judges.

Neither the Washington Supreme Court nor the United States Supreme Court has weighed in on the problem of a variance between the charging document and the jury instructions in a criminal case. The latter court once dealt with the situation where the defendants had argued on appeal that their conviction under section 2 of an Arkansas statute was invalid because the evidence was insufficient; the Arkansas Supreme Court upheld the convictions because the evidence supported a conviction under section 1 of the statute. Cole v. Arkansas, 333 U.S. 196, 197-201, 92 L. Ed. 644, 68 S. Ct. 514 (1948). The United States Supreme Court promptly reversed and remanded, finding that because the defendants had been charged and convicted under section 2 of the statute, they had a due process right to have their challenges to a section 2 conviction heard. Id. at 201-202. The court ruled:

To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.

Id. at 202.

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One could argue from this quote that the United States Supreme Court would believe that the current issue should be analyzed from the standpoint of what the jury decided rather than what the charging document said. However, Cole is easily distinguished for the same reason that the cases cited by the majority are distinguishable—all of the cases involved fact patterns where the defendant was charged and the jury instructed on the same crime. In none of those cases was there a variance between the charged crime and the one in the instructions given the jury. Thus, there is no governing authority on this issue.

We should begin our review by recalling our function here. In the case of verdicts, as discussed above, an appellate court applies the Green standard to see if there was a factual basis for the trier-of-fact returning the verdict it did. That should be our focus here. Ms. Kirwin presents no reason justifying abandonment of our traditional focus on the jury's verdict, let alone changing that focus to the charging document.

Analogous Cases. There also is persuasive authority suggesting that review of the verdict, not the charge, is the appropriate focus. Like the majority, I find analogous support from the cases involving amendments to the charging document during trial....