State v. Kjorsvik

Decision Date20 June 1991
Docket NumberNo. 57492-8,57492-8
Citation117 Wn.2d 93,812 P.2d 86
PartiesSTATE of Washington, Respondent, v. Nicholas KJORSVIK, Petitioner.
CourtWashington Supreme Court
Dawn Monroe of Washington Appellate Defender Association, for petitioner

Norm Maleng, Pros. Atty., Theresa L. Fricke, Senior Appellate Atty., and Peter Goldman, Deputy, for respondent.

Eric J. Nielsen on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae for petitioner.

Seth R. Dawson, Pros. Atty., for Snohomish County, and Seth Aaron Fine, Deputy, on behalf of Washington Association of Pros. Attys., amicus curiae for respondent.

ANDERSEN, Justice.


This case deals with the issue of whether criminal charging documents must contain all the essential elements of the crime charged or only those elements which are actually set out in the statute defining the crime. The case also concerns the related issue of what is the proper appellate standard of review when a challenge to a charging document is first raised on appeal.

Nicholas Kjorsvik, the defendant herein, was accused by information of having committed first degree robbery. The information stated in relevant part:

I, ..., Prosecuting Attorney for King County ... accuse Nicholas Jay Kjorsvik and Michael Marcelouse, and each of them, of the crime of robbery in the first degree, committed as follows:

That the defendants, Nicholas Jay Kjorsvik and Michael Marcelouse, and each of them, in King County, Washington, on or about July 1, 1988 did unlawfully take personal property, to-wit: lawful United States currency from the person and in the presence of Chris V. Balls, against his will, by the use or threatened use of immediate force, violence and fear of injury to such person or his property and in the commission of and in immediate flight therefrom the defendants were armed with and displayed what appeared to be a deadly weapon, to-wit: a knife;

Contrary to RCW 9A.56.200(1)(a)(b) and 9A.56.190, and against the peace and dignity of the state of Washington.

And I, ..., Prosecuting Attorney for King County, ... further do accuse the defendant at said time of being armed with a deadly weapon, to-wit: a knife, under the authority of RCW 9.94A.125.

The certificate for determination of probable cause indicated that the defendant and a companion entered a Winchell's Donut Shop at about midnight on July 1, 1988 and that the defendant held a knife to the baker's throat and both men said "this is a robbery". After the baker slammed the cash register drawer on the defendant's hand, both men fled the scene with cash from the till drawer.

At trial, the baker identified the defendant as one of the men who had robbed him. The defendant's defense was that he was not one of the persons who robbed the shop. The jury found the defendant guilty of robbery in the first degree and found by special verdict that he was armed with a deadly weapon at the time of the crime.

On appeal, the defendant challenged his conviction on the basis that the information was insufficient because it omitted the common law intent element of robbery. The Court of Appeals commissioner found Division Two's decision in State v. Strong, 56 Wash.App. 715, 785 P.2d 464, review denied, 114 Wash.2d 1022, 792 P.2d 533 (1990) dispositive of the challenge to the information and affirmed the conviction. The Court of This case presents two important issues for disposition.

                Appeals declined to modify the commissioner's ruling.   The defendant[812 P.2d 88]  sought and was granted review in this court

ISSUE ONE. Must a charging document, such as an information, indictment or criminal complaint, 1 include the common law elements of a crime as well as the statutory elements in order to apprise the accused of the nature of the charges against the accused?

ISSUE TWO. What is the proper standard of review when a challenge to an information is first raised on appeal, and did the information which tracked the language of the robbery statute give the defendant adequate notice of the elements of the charge against him in this case?



CONCLUSION. All essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him.

This conclusion is based on constitutional law and court rule. Const. art. 1, § 22 (amend. 10) provides in part:

In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him, ...

U.S. Const. amend. 6 provides in part:

In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation; ...

CrR 2.1(b) provides in part that

the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.

Although our robbery statute, RCW 9A.56.190, does not include an intent element, 2 our settled case law is clear that "intent to steal" is an essential element of the crime of robbery. 3 At issue is whether this nonstatutory element should have been included in the information in order to fully inform the defendant of the accusation made against him.

In the case of State v. Leach, 113 Wash.2d 679, 689, 782 P.2d 552 (1989), we recently stated that "the 'essential elements' rule requires that a charging document allege facts supporting every element of the offense, in addition to adequately identifying the crime charged". This core holding of Leach requires that the defendant be apprised of the elements of the crime charged and the conduct of the defendant which is alleged to have constituted that crime. Leach explains that merely reciting the statutory elements of the crime charged may not be sufficient.

Because statutory language may not necessarily define a charge sufficiently to apprise an accused with reasonable certainty of the nature of the accusation against that person, to the end that the accused may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense, mere recitation of the statutory language in the charging document may be inadequate.

Leach, 113 Wash.2d at 688, 782 P.2d 552. We have recently reiterated that it is sufficient to charge in the language of a statute if the statute defines the offense with certainty. 4

We recognize that different divisions of our Court of Appeals are divided on the issue of whether nonstatutory essential elements of a crime need to be included in the charging document. A number of cases hold that nonstatutory elements of the charged crime need not be included in the charging document. 5 However, a number of other decisions of the Court of Appeals have held that all essential elements, common law as well as statutory, must be included in the charging document. 6

There is also a significant split of authority among the federal circuits concerning the necessity of charging nonstatutory elements. 7 The United States Supreme Court held in Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974) (citing United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)) as follows: 8

It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as "those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished."

Some of the foremost legal scholars in this field agree that all of the essential elements of a crime must be set forth in a charging document. 1 C. Wright, Federal Practice § 125, at 369-77 (2d ed. 1982) states:

If the statute omits an essential element of the offense, or includes it only by implication, then pleading the statutory language will not suffice, and the omitted element must be alleged directly and with certainty....

. . . . .

If knowledge or intent are not an element of a particular crime, then of course they need not be pleaded. An indictment or information is defective, however, in failing to allege these elements if they are expressly contained in the statute and criminal intent is an element of some crimes though not mentioned in the statute.

(Footnotes omitted.) 2 W. LaFave & J. Israel, Criminal Procedure § 19.2, at 448-52 (1984) notes that

indictments have been held invalid for failing to allege the element of intent even though the statute was cited and that element was either included in the statute or apparent from decisions interpreting the statute....

. . . . .

... If the statute omits an essential element, such as mens rea, then that element must be added to the pleading.

2 C. Torcia, Wharton on Criminal Procedure § 238, at 69 (13th ed. 1990) states that

[t]he constitutional right of the accused "to be informed of the nature and cause of the accusation" against him requires that every material element of the offense be charged with definiteness and certainty.

The primary goal of the "essential elements" rule is to give notice to an accused of the nature of the crime that he or she must be prepared to defend against. 9 In Leach, 10 we noted that defendants are entitled to be fully informed of the nature of the accusations against them so that they can prepare an adequate defense. 11

It is neither reasonable nor logical to hold that a statutory element of a crime is constitutionally required in a charging document, but that an essential court-imposed element of the crime is not required, in light of the fact that the primary purpose of such a document is to supply the accused with notice of the charge that he or she must be prepared to meet. Statutory elements are, of course, easier to ascertain since the statutes are usually cited in the charging document, whereas court-imposed elements must be discovered through at least cursory legal research. This court has stated that defe...

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