State v. Phillips

• Decision Date: 21 January 2000
• Docket Number: No. 22885-8-II.,22885-8-II.
• Citation: 991 P.2d 1195,98 Wash.App. 936
• Parties: STATE of Washington, Respondent, v. Nicki Allen PHILLIPS, Appellant.
• Court: Washington Court of Appeals

991 P.2d 1195

98 Wash.App. 936

STATE of Washington, Respondent, v. Nicki Allen PHILLIPS, Appellant.

No. 22885-8-II.

Court of Appeals of Washington, Division 2.

January 21, 2000.

Lise Ellner, Dept. of Assigned Counsel (Court Appointed), Tacoma, for Appellant.

Kathleen Proctor, Pierce County Deputy Pros. Atty., Tacoma, for Respondent.

SEINFELD, J.

Nicki Allen Phillips did not challenge the information charging him with robbery in the first degree until after the State had rested its case, a time when the State was precluded from amending the information. Consequently, we construe the information liberally and find that it adequately advised Phillips that the crime included, as essential elements, (1) that he used or threatened to use force or fear to obtain or retain the stolen property; and (2) that the stolen property belonged to someone other than the defendant. Further, because Phillips was not prejudiced by the information's inartful language, we affirm.

FACTS

After two women stole a purse from Diane Hargadine, she and another woman chased the robbers, who escaped by car. Later, Hargadine and other witnesses identified Phillips as the driver of the car, and said that he pointed a gun at both pursuing women.

The State charged Phillips with one count of robbery in the first degree while armed with a firearm, RCW 9A.56.190, .200(1)(a)(b), RCW 9A.08.020. The information stated in pertinent part:

I, JOHN W. LADENBURG, Prosecuting Attorney for Pierce County, in the name and by the authority of the State of Washington, do accuse NICKI ALLEN PHILLIPS of the crime of ROBBERY IN THE FIRST DEGREE, committed as follows:

That NICKI ALLEN PHILLIPS, acting as an accomplice, in Pierce County, Washington, on or about the 31st day of October, 1997, did unlawfully and feloniously take personal property with intent to steal from the person or in the presence of Diane Hargadine, against such person's will by use or threatened use of immediate force, violence, or fear of injury to Diane Hargadine, and in the commission thereof, or in immediate flight therefrom, the defendant and/or an accomplice was armed with a deadly weapon or displayed what appeared to be a firearm or other deadly weapon, to-wit: a handgun contrary to RCW 9A.56.190, 9A.56.200(1)(a)(b) and 9A.08.020, and against the peace and dignity of the State of Washington.

After both sides rested, Phillips challenged the sufficiency of the charging document and moved to dismiss the case. He argued that the information failed to allege that he took property belonging to another person. The State then moved to amend the information to add that element. Phillips opposed the motion to amend the information and, in addition, argued that the information omitted the element of the use of force or fear to obtain or retain the allegedly stolen property. The trial court denied both the motion to dismiss and the motion to amend the information. The jury then convicted Phillips as charged.

On appeal, Phillips claims that the information omitted two elements of first degree robbery: (1) the statutory element of the use or threatened use of force or fear to obtain or retain possession of stolen property; and (2) the nonstatutory element of property belonging to a person other than the defendant.

I. STANDARD OF REVIEW

The Sixth Amendment to the United States Constitution and article I, section 22 (amend.10) of the Washington Constitution require that a charging document include all essential elements of a crime, statutory and nonstatutory, so as to inform the defendant of the charges against him and to allow him to prepare his defense. State v. Hopper, 118 Wash.2d 151, 155, 822 P.2d 775 (1992); State v. Kjorsvik, 117 Wash.2d 93, 101-02, 812 P.2d 86 (1991); State v. Ralph, 85 Wash.App. 82, 84, 930 P.2d 1235 (1997). An information that fails to state an offense on its face is unconstitutional and must be dismissed. State v. Leach, 113 Wash.2d 679, 686-87, 782 P.2d 552 (1989).

When a defendant challenges the sufficiency of a charging document, the standard of review we apply depends upon the timing of the challenge. Ralph, 85 Wash. App. at 84, 930 P.2d 1235. If a defendant challenges the sufficiency of an information after verdict, we construe the document liberally, asking whether: (1) 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, 117 Wash.2d at 105-06, 812 P.2d 86. But where there has been a challenge to the charging document "at or before trial," we construe the information strictly. State v. Vangerpen, 125 Wash.2d 782, 788, 888 P.2d 1177 (1995); State v. Johnson, 119 Wash.2d 143, 150, 829 P.2d 1078 (1992); Kjorsvik, 117 Wash.2d at 103, 812 P.2d 86; Ralph, 85 Wash.App. at 85, 930 P.2d 1235. The strict standard of construction constitutes a "bright line rule mandating dismissal" when a charging document omits an essential element of the crime. Johnson, 119 Wash.2d at 150, 829 P.2d 1078; see also Ralph, 85 Wash.App. at 85,

930 P.2d 1235. Because a charging document containing such a defect is unconstitutional, the reviewing court must dismiss the charge "without prejudice to the State's ability to refile the charges." Ralph, 85 Wash.App. at 86,

930 P.2d 1235.

The differing standards discourage "what Professor LaFave has described as `sandbagging,'" a "defense practice wherein the defendant recognizes a defect in the charging document but foregoes raising it before trial when a successful objection would usually result only in an amendment of the pleading." Kjorsvik, 117 Wash.2d at 103, 812 P.2d 86 (citing 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 19.2, at 442 & n. 36 (1984)). Although the trial court must strictly construe an information challenged before or during trial, unless there is substantial prejudice to the defendant, the State may amend the information to correct the defect at any time before the State rests its case. Vangerpen, 125 Wash.2d at 789, 888 P.2d 1177; CrR 2.1(d). But after the State has rested, it may not amend an information "unless the amendment is to a lesser degree of the same crime or a lesser included offense." Vangerpen, 125 Wash.2d at 789, 888 P.2d 1177 (citing State v. Pelkey, 109 Wash.2d 484, 491, 745 P.2d 854 (1987)). This prohibition extends to the amendment of informations omitting essential elements of the charged crime because an information lacking such elements "succeed[s] in charging no crime at all." Vangerpen, 125 Wash.2d at 795, 888 P.2d 1177; see also State v. Hull, 83 Wash.App. 786, 802, 924 P.2d 375 (1996)

.

Here, the amendment sought by the State would not have resulted in a lesser degree of the same crime or a lesser-included offense. Vangerpen, 125 Wash.2d at 789, 888 P.2d 1177; Pelkey, 109 Wash.2d at 491,745 P.2d 854. Consequently, under Vangerpen, the trial court could not have granted the State's motion to amend the information; if it found the information defective, it could only have dismissed the case without prejudice to the State's right to recharge Phillips. Vangerpen, 125 Wash.2d at 792-93,888 P.2d 1177.

Thus, the interplay between the Vangerpen/Johnson/Kjorsvik pre-verdict language and the Vangerpen/Pelkey restrictions on amendments creates judicial gridlock where there is a challenge to the information after the State rests. If the reference to pre- and post-verdict is read as controlling law, once Phillips challenged the information, even if it could pass liberal scrutiny, there was nothing either the State or the court could do to avoid the expensive, wasteful dismissal of the case without prejudice. This is exactly the type of situation that concerned the Kjorsvik court; it invites the defendant, aware of a constitutionally defective information, to wait until the State rests before raising his or her challenge.

We do not believe this outcome is consistent with the policies running through all the above cases; i.e., that the trial court should strictly construe the information during the time when, assuming no substantial prejudice to the defendant, it has the ability to grant an amendment to cure any defect. On the other hand, the court is to liberally construe the information when the only other available remedy is dismissal. We share the concern mentioned by Justice Brachtenbach in his concurrence in Leach, 113 Wash.2d at 700, 782 P.2d 552: "I am disturbed, however, by the possibility that a defendant may be well aware at the outset of the proceedings that the charging document fails to state a crime, and yet maintain silence until appeal."

Nor do we believe that the Vangerpen or Johnson courts intended this result. Although both opinions contain language suggesting that "verdict" is the critical time at which the standard of review shifts from strict to liberal, this shifting standard was not essential to the outcome in either case. The defendants in Johnson raised their challenges before trial. In justifying the strict construction standard, the Johnson court noted that the prosecution could move under CrR 2.1 to amend the information "at any time prior to the final verdict, as long as substantial rights of the defendant are not prejudiced." 119 Wash.2d at 150, 829 P.2d 1078. And in Vangerpen, although the defendant did not challenge the information until both sides had rested, there was no dispute as to the insufficiency of the information under either standard. Thus, the selection of the appropriate standard was unnecessary to decide the case. Vangerpen, 125 Wash.2d at 788, 888 P.2d 1177.

Thus, it appears that the references to the time of verdict in Vangerpen and Johnson are dicta. Because use of strict construction at a time when neither the court nor the State can cure the defect, notwithstanding the absence of prejudice to the defendant, invites tardy...