State v. Strong

• Decision Date: 24 January 1990
• Docket Number: No. 11179-9-II,11179-9-II
• Citation: 56 Wn.App. 715,785 P.2d 464
• Parties: The STATE of Washington, Respondent, v. Robert STRONG, Appellant.
• Court: Washington Court of Appeals

Page 715

56 Wn.App. 715

785 P.2d 464

The STATE of Washington, Respondent, v. Robert STRONG, Appellant.

No. 11179-9-II.

Court of Appeals of Washington Division 2.

Jan. 24, 1990.

Dianna L. Carlson-Lobrie (Court-appointed), Lacey, for appellant.

Carolyn Williamson, Deputy Pros. Atty., Tacoma, for respondent.

ALEXANDER, Chief Judge.

Robert Strong appeals his conviction for first degree robbery, contending that the information was fatally defective because it failed to allege the common law element of intent to deprive the victim of his property. We find that the information was sufficient to meet constitutional requirements and affirm.

Strong was convicted of taking money from Adrian Richard at gunpoint. The information charged:

That ROBERT DONALD STRONG and WILLIE LEE MC KINNEY, in Pierce County, Washington, on or about the 22nd day of January, 1987, did unlawfully and feloniously take personal property from the person or in the presence of Adrian Richard, against such person's will by use or threatened use of immediate force, violence, or fear of injury to Adrian Richard, and in the commission thereof, or in immediate flight therefrom, the defendant or his accomplice was armed with a deadly weapon, to-wit: a firearm, that being a deadly weapon as defined in RCW 9.94A.125, and adding additional time to the presumptive sentence ...

Strong made no objection to the information below, but he contends that he may raise the issue for the first time here under the authority of RAP 2.5(a)(3), which allows review of manifest error affecting a constitutional right. There is no such error here, however.

Not every defect in an information rises to the level of a constitutional error. In State v. Holt, 104 Wash.2d 315, 320, 704 P.2d 1189 (1985), the court held that

... the 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. [State v.] Bonds [98 Wash.2d 1] at 16 [653 P.2d 1024 (1982) ]; see also In re Richard, 75 Wn.2d 208, 449 P.2d 809 (1969); Seattle v. Morrow, 45 Wn.2d 27, 273 P.2d 238 (1954); Seattle v Jordan, 134 Wash. 30, 235 P. 6 (1925). Conversely, if the information states each statutory element of a crime, but is vague as to some other matter significant to the defense, a bill of particulars is capable of correcting that defect. In that event, a defendant is not entitled to challenge the information on appeal if he failed to request the bill of particulars at an earlier time. (Italics original.)

See also State v. Thomas, 73 Wash.2d 729, 730-31, 440 P.2d 488 (1968). This rule was further clarified in State v. Leach, 113 Wash.2d 679, 782 P.2d 552 (1989), in which the court said that the "essential elements" rule does not necessarily require that every element of the crime be listed so long as the charging document alleges facts supporting every element of the offense and adequately identifies the crime charged. Leach, 113 Wash.2d at 689, 782 P.2d 552. The information here stated each of the statutory elements of robbery and it included facts which supported the element of intent. Had Strong had any confusion about why the taking of money from Richard was unlawful, he could have requested that the information be made more definite and certain. He did not, and he has missed his opportunity to do so.

Strong argues that omission of an implied element is also a constitutional defect. However, we find that the information was sufficient to meet due process requirements. The constitutional right violated by an inadequate information is the right of an accused to be informed of the nature and cause of the accusation against him, guaranteed by the Sixth Amendment to the United States Constitution, and the state constitution, Art. I, § 22. See State v. Bergeron, 105 Wash.2d 1, 18, 711 P.2d 1000 (1985); State v. Newson, 8 Wash.App. 534, 536, 507 P.2d 893 (1973). When this issue is raised for the first time on appeal, the court should test the information's sufficiency by a stricter standard than if the question had been raised first below. Under these circumstances, the courts have held that the information is immune from attack unless it is so obviously defective as not to charge the offense by any reasonable construction. State v. Smith, 49 Wash.App. 596, 598, 744 P.2d 1096 (1987), review denied, 110 Wash.2d 1007 (1988). That is not the case here.

The omission of any statutory element of a crime is a constitutional defect which may result in dismissal of criminal charges. Holt, 104 Wash.2d at 320, 704 P.2d 1189. The obvious reason for the requirement that the elements be set forth in the information is that an information which does not include the statutory elements does not state a crime. See State v. Leach, 53 Wash.App. 322, 329, 766 P.2d 1116 (1989). However, by definition, a complaint stated in the language of a statute defining a crime, states a crime. See State v. Thomas, 73 Wash.2d at 731, 440 P.2d 488. A mental state which is an implied element of the crime as defined by statute is also an implicit part of the charge. Where there is a well-established rule implying the requisite mental state as an element of the crime, its omission from the information is of no significance. See State v. Bower, 28 Wash.App. 704, 707, n. 2, 626 P.2d 39 (1981). Thus, an information need not allege implied elements of the crime if it follows the language of the statute and is sufficient to apprise the accused with reasonable certainty of the nature of the accusation. See Smith, 49 Wash.App. at 599, 744 P.2d 1096 (holding that the court implied element of knowledge was not a necessary part of an information charging possession of stolen property); ¹ State v. Bower, supra (information charging the defendant with preventing a prison guard from performing his duties need not include the element of intent), and State v. Orsborn, 28 Wash.App. 111, 114, 626 P.2d 980 (1980), review denied, 97 Wash.2d 1012 (1982) (information charging negligent homicide need not include requirement that the victim's death be a proximate result of the injuries received in the accident). ²

The statutory elements of robbery are (1) a taking of personal property; (2) from the person or in one's presence; (3) by the use or threatened use of force, or violence, or fear or injury; (4) such force or fear being used to obtain or retain the property. See State v. Allen, 94 Wash.2d 860, 863, 621 P.2d 143 (1980); RCW 9A.56.190. ³ Here, the information included all of the statutory elements of the crime. It followed the language of the statute and it clearly notified Strong that he was accused of taking personal property from Adrian Richards by force or threat. That was enough to enable him to prepare his defense, and that is all that was required. State v. Grant, 89 Wash.2d 678, 686, 575 P.2d 210 (1978).

The judgment is affirmed.

WORSWICK, J., concurs.

PETRICH, J., dissents.

PETRICH, Judge (dissenting).

I dissent.

The majority's reasoning is flawed by its failure to distinguish between an information that charges a crime but is so vague and indefinite that the accused is not on notice as to what he must defend and an information that does not allege acts which are proscribed by law. In the former, the right to be informed of the nature and cause of the accusation is implicated. This right is guaranteed by the Sixth Amendment, made applicable to the states by the Fourteenth Amendment, In re Gault, 387 U.S. 1, 60, 87 S.Ct. 1428, 1460, 18 L.Ed.2d 527 (1967), and Art. 1, § 22 of the state constitution. The latter, which I characterize as the "elements" factor of an offense, simply stands for the proposition that one does not stand accused of a crime if the information does not allege all of the essential elements of the crime.

We are not here concerned with an information that, while charging a crime, is so vague and indefinite that the accused is unaware of what he must meet at trial. We are concerned with an information that does not charge an offense at all because of the lack of a specific element of a criminal offense.

The sufficiency of criminal pleadings is generally tested by the following requirements:

1. inclusion of the elements of the offense;

2. providing adequate notice as to the charge; and

3. providing protection against double jeopardy.

2 W. LaFave and J. Israel, Criminal Procedure § 19.2(b) (1984).

The distinction between the elements and notice requirement of a charging document was well stated by Division One of this Court when it stated The constitutional principle is generally formulated in terms of due process, i.e., an accused's right to be informed with reasonable certainty of the nature of the charges in order to prepare a defense and to plead a judgment as a bar to any further prosecution for the same offense. See State v. Royse, 66 Wn.2d 552, 557, 403 P.2d 838 (1965); State v. Ackles, 8 Wash. 462, 36 P. 597 (1894); Const. art. 1, § 22 (amend 10).

Given the harsh consequences of a violation, however, it is evident that the essential elements rule constitutes a category sui generis and rests on principles other than notice alone. Even in situations where the notice function has been satisfied, i.e., the defendant has actual notice of the elements of the charged crime and has not been prejudiced at trial by the defective charging document, the Holt [State v. Holt, 104 Wash.2d 315, 704 P.2d 1189 (1985) ] rule mandates automatic dismissal.

State v. Leach, 53 Wash.App. 322, 328-29, 766 P.2d 1116, aff'd by State v. Leach, 113 Wash.2d 679, 782 P.2d 552 (1989) (public indecency conviction reversed for failure to include an statutory element of the offense).

The majority does not dispute, nor can it, that intent to deprive the victim of the property taken is a necessary element of the crime of robbery. State v. Byers, 136 Wash. 620, 622, 241 P. 9 (1925); State v. Faucett, 22 Wash.App. 869, 871, 593 P.2d 559 (1979)....