State v. Leach, No. 21893-0-I

• Court: Court of Appeals of Washington
• Writing for the Court: SWANSON; GROSSE; WILLIAMS
• Citation: 766 P.2d 1116,53 Wn.App. 322
• Parties: STATE of Washington, Respondent, v. Duncan LEACH, Appellant.
• Docket Number: No. 21893-0-I
• Decision Date: 23 January 1989

Page 322

53 Wn.App. 322 766 P.2d 1116 STATE of Washington, Respondent,
v.
Duncan LEACH, Appellant. No. 21893-0-I. Court of Appeals of Washington,
Division 1. Jan. 23, 1989.

[766 P.2d 1117]

Page 323

Norm Maleng, Pros. Atty., and Scott Peterson, Deputy Pros. Atty., Seattle, for the State.

Suzanne Elliott, of Associated Counsel for Accused, Seattle, for Duncan Leach.

SWANSON, Judge.

The State of Washington appeals from a superior court decision reversing respondent Leach's public indecency conviction because the district court complaint failed to set forth the statutory elements of the charged crime. We affirm.

On July 8, 1986, at about 9:45 a.m., Susan Pannell and her 11-year-old daughter were sitting in a parked car near 144th and Petrovsky in Seattle when they observed a man come out of a nearby building, lean against the door, and begin masturbating. While masturbating, the man looked directly at Ms. Pannell and her daughter. Pannell subsequently identified respondent Leach from a photo montage.

Page 324

Leach was charged in Renton District Court with public indecency pursuant to former RCW 9A.88.010. ¹ The complaint, which was prepared by the investigating officer and signed by the prosecuting attorney, provided in pertinent part:

The undersigned certifies and says [Duncan Leach ] ... Violation Date 7/8/86 Time 9:45 a.m. Location 14410 SE Petrovsky ... did then and there commit each of the following offenses/infractions ... RCW 9A.88.010 Public Indecency (see case). ²

On October 16, 1986, when the parties appeared for trial, the State maintained that the charge was a gross misdemeanor pursuant to former RCW 9A.88.010(2). After examining the discovery information, the trial court concluded that the charge was subject to a bill of particulars and ruled that the State could proceed under either portion of the statute. The State then moved to amend the charge to a gross misdemeanor.

After Leach stipulated to the facts contained in the police reports, the trial court found him guilty as charged. Upon appeal, the superior court reversed, finding that

[t]he State failed to state every statutory element of the charge of public indecency, RCW 9A.88.010, in the complaint filed against appellant. Thus, the complaint is constitutionally defective and the charge against appellant must be dismissed pursuant to the reasoning in State v. Holt, 104 Wash.2d 315, 704 P.2d 1189 (1985).

The State appeals from this ruling.

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In State v. Holt, 104 Wash.2d 315, 704 P.2d 1189 (1985), our supreme court reiterated the long-standing rule that

[t]he omission of any statutory element of a crime in the charging document is a constitutional defect which may result in dismissal of the criminal charges.

(Emphasis in original.) Holt, at 320, 704 P.2d 1189; see also State v. Bonds, 98 Wash.2d 1, 16, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 112 (1983). A charging document fails to state an offense if it omits a specified element of a statutory crime. State v. Ashker, 11 Wash.App. 423, 426, 523 P.2d 949 (1974), overruled on other grounds in State v. Braithwaite, 92 Wash.2d 624, 600 P.2d 1260 (1979). A charging document is not entitled to a favorable presumption regarding its sufficiency. State v. Moser, 41 Wash.2d 29, 31, 246 P.2d 1101 (1952).

[766 P.2d 1118] In Holt, the defendant was convicted of selling obscene materials. On appeal, he argued that the information was constitutionally defective because it omitted two statutory elements pertaining to knowledge. Our supreme court agreed and ordered the charges dismissed. The court first noted that a defendant is permitted to challenge an information that fails to state an offense at any time, including for the first time on appeal. Holt, 104 Wash.2d at 321, 704 P.2d 1189. Moreover, a defendant is not required to request a bill of particulars "nor to take any other action to preserve his right to challenge the constitutionality of the information on appeal." (Italics ours.) Holt, at 322-23, 704 P.2d 1189.

The State does not argue that the complaint charging Leach sets forth the statutory elements of public indecency or that the complaint can, by any reasonable construction, be found to charge an offense. See State v. Smith, 49 Wash.App. 596, 598, 744 P.2d 1096 (1987), review denied, 110 Wash.2d 1007 (1988). Nor does the State seriously maintain that the Holt rule is completely inapplicable to charging documents filed in district court. Rather, the State urges this court to adopt a rule that a defendant charged by complaint, unlike a defendant charged by information, forfeits the right to challenge a constitutionally defective

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charging instrument by not raising the issue at trial. Given the history and rationale of the Holt rule, however, we are constrained to affirm the superior court.

Generally, two types of challenges are raised to the specificity of criminal charges:

First, a criminal charge may be so vague as to fail to state any offense whatsoever. In this event, the charge is constitutionally defective and subject to dismissal. Secondly, a criminal charge may state an offense but yet be so vague with regard to particulars as to render it subject to a timely motion for a more definite statement. In this event the charge is not subject to dismissal unless the prosecuting officials refuse to comply with an order calling for greater particularity.

(Citations omitted.) In re Richard, 75 Wash.2d 208, 211, 449 P.2d 809 (1969). A third type of challenge involves defects of form. See Seattle v. Jordan, 134 Wash. 30, 34, 235 P. 6 (1925). Objections to defects of form are also waived if not timely raised. See Seattle v. Jackson, 70 Wash.2d 733, 425 P.2d 385 (1967) (defendant waived objection to unauthorized signature); State v. Taylor, 196 Wash. 37, 81 P.2d 853 (1938) (contention that amended information invalid because not sworn to cannot be raised for the first time on appeal).

Although the superior court cited Holt in...