State v. Simon
| Decision Date | 19 November 1992 |
| Docket Number | No. 59196-2,59196-2 |
| Citation | 840 P.2d 172,120 Wn.2d 196 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Gregory SIMON, Respondent. |
Norm Maleng, King County Prosecutor, Peter R. Goldman, Deputy, Seattle, for petitioner.
Washington Appellate Defender Ass'n, Theresa Bridget Doyle, Colleen E. O'Connor, Seattle, for respondent.
The State seeks review of a Court of Appeals decision partially dismissing an information charging Gregory Simon with first degree promotion of prostitution. The State contends that the information adequately charged commission of the crime by means of knowingly promoting the prostitution of a person under 18, and that, in any event, the proper remedy for an inadequate information is not outright dismissal of the charge. We grant review and affirm in part and reverse in part.
On February 22, 1990, the King County prosecutor filed an information charging Gregory Simon with first degree promotion of prostitution, alleging that Simon "did knowingly advance and profit from the prostitution of Bobbie J. Bartol, a person who was less than 18 years old," in violation of RCW 9A.88.070(1)(b). 1 One day before trial, the prosecutor amended the information to charge both this means of committing first degree promotion of prostitution and the means requiring the use of threat or force. Specifically, the amended information alleged that Simon
did knowingly advance and profit by compelling Bobbie J. Bartol by threat and force to engage in prostitution; and did advance and profit from the prostitution of Bobbie Bartol, a person who was less than 18 years old;
Contrary to RCW 9A.88.070(1)(a) and (b), and against the peace and dignity of the state of Washington.
At trial, Simon did not object to the adequacy of the amended information, and both the State and the defense understood that, with regard to the second means of committing the crime, the State had the burden of proving that Simon knew Bobbie Bartall was under 18.
A jury found Simon guilty. On appeal, Simon argued for the first time that the amended information was defective as to the second means of promoting prostitution because it failed to allege that Simon knew Bartall was under 18. The Court of Appeals agreed and dismissed that portion of the information.
Simon also argued on appeal that there was insufficient evidence that he promoted prostitution by use of threat or force. The Court of Appeals determined that the evidence supported that means, but, because the court could not determine whether the jury was unanimous as to that means, it remanded for a new trial. The court also rendered holdings on two evidentiary arguments raised by Simon, finding one of them to have merit. State v. Simon, 64 Wash.App. 948, 831 P.2d 139 (1991).
A charging document is constitutionally adequate only if all essential elements of a crime, statutory and nonstatutory, are included in the document so as to apprise 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, 97, 812 P.2d 86 (1991). Where, as here, a charging document is challenged for the first time on review, however, the document is liberally construed in favor of validity. Kjorsvik, at 105, 812 P.2d 86.
The State concedes that knowledge that the prostitute was under 18 is a necessary element of the second means of committing first degree promotion of prostitution. Accord State v. Shipp, 93 Wash.2d 510, 519, 610 P.2d 1322 (1980). The information, however, alleged that Simon "did knowingly advance and profit by compelling Bobbie J. Bartol by threat and force to engage in prostitution; and did advance and profit from the prostitution of Bobbie Bartol, a person who was less than 18 years old." (Emphasis added.) The...
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