State v. Sullivan, 33142–3–III

Decision Date13 October 2016
Docket NumberNo. 33142–3–III,33142–3–III
Citation196 Wash.App. 314,382 P.3d 736
CourtWashington Court of Appeals
Parties State of Washington, Respondent, v. Evan Wayne Sullivan, Appellant.

Todd V. Harms, Attorney at Law, 503 Knight St., Ste. A, Richland, WA, 99352–4257, Roger J. Peven, Law Office of Roger J. Peven, 1403 W. Broadway Ave., Spokane, WA, 99201–1901, for Appellant.

Andrew Kelvin Miller, Emily Kay Sullivan, Terry Jay Bloor, Benton County Prosecutor's Office, 7122 W. Okanogan Pl., Bldg. A, Kennewick, WA, 99336–2359, for Respondent.

Lawrence–Berrey, A.C.J.

The liberal standard for reviewing the sufficiency of a charging document applies when a defendant challenges the document after the State rests its case. In so holding, we join Division Two of this court and depart from Division One.

¶2 But even applying the liberal standard, as the State requests, we conclude that the State's charging document was constitutionally defective. We therefore reverse Evan Sullivan's conviction for second degree assault of a child and dismiss the charge without prejudice to the right of the State to recharge in a manner consistent with this opinion.


¶3 The State charged Mr. Sullivan with second degree assault of a child. Prior to trial, the State amended the information twice. The second amended information alleged Mr. Sullivan was 18 years of age or older, the victim was under the age of 13, and in violation of RCW 9A.36.130(1)(a) and RCW 9A.36.021(1)(a), Mr. Sullivan, with intent to assault the victim, “did assault said child and thereby inflicted substantial bodily harm.” Clerk's Papers (CP) at 9. The word “recklessly” was omitted prior to the word “inflicted.”

Several times during his opening statement, Mr. Sullivan argued the State had the burden of proving he recklessly caused the child's injuries. He argued the jury could not conclude beyond a reasonable doubt that the injuries were caused recklessly, which he stated was an essential element the State must prove.

¶5 The State presented its case and then rested. Mr. Sullivan then moved to dismiss the charge on the grounds that the information failed to include the essential element of recklessness in the information. The trial court determined that the word “reckless” did not need to be in the information for Mr. Sullivan to be on notice of the crime charged and have sufficient ability to defend the case. It therefore denied Mr. Sullivan's motion.

¶6 Mr. Sullivan called one witness, then rested. The trial court instructed the jury and the parties presented closing arguments.

¶7 The jury found Mr. Sullivan guilty of second degree assault of a child. Prior to sentencing, Mr. Sullivan again moved the trial court to reverse his conviction on the grounds that the information failed to allege the essential element of recklessness. This time the trial court determined that recklessness was an essential element of second degree assault of a child, due to the number of ways a person can commit second degree assault. Because of the timing of Mr. Sullivan's original motion to dismiss, the trial court construed the information liberally. The trial court agreed with Mr. Sullivan that it could not infer the essential element of recklessness from the State's information, even applying the liberal standard. However, the trial court concluded that Mr. Sullivan was not prejudiced by the missing element of recklessness, given that he referenced the State's burden of proving recklessness in his opening statement. On that basis, the trial court denied Mr. Sullivan's posttrial motion.

Mr. Sullivan appeals.


¶9 Mr. Sullivan argues that the second amended information was constitutionally defective because it failed to allege all the essential elements of second degree assault of a child. Specifically, he contends it omitted the statutory element of “recklessly.”

¶10 Criminal defendants have the constitutional right to know “the nature and cause of the accusation” against them. U.S. CONST . amend. VI ; WASH . CONST . art. I, § 22. To be constitutionally sufficient, a charging document must include all essential elements of a crime, statutory and nonstatutory, so as to inform a criminal defendant of the charges and to allow the defendant to prepare a defense. State v. Kjorsvik , 117 Wash.2d 93, 97, 101, 812 P.2d 86 (1991). A charging document that omits an essential element of the charged crime is constitutionally defective and must be dismissed without prejudice. State v. Johnson , 180 Wash.2d 295, 300–01, 325 P.3d 135 (2014). ‘An essential element is one whose specification is necessary to establish the very illegality of the behavior charged.’ State v. Zillyette , 178 Wash.2d 153, 158, 307 P.3d 712 (2013) (internal quotation marks omitted) (quoting State v. Ward , 148 Wash.2d 803, 811, 64 P.3d 640 (2003) ).

We review the constitutional adequacy of a charging document de novo. State v. Goss , 186 Wash.2d 372, 375–76, 378 P.3d 154, 157 (2016).


¶11 Mr. Sullivan and the State dispute whether this court must apply a strict or a liberal standard in reviewing the constitutional adequacy of the second information. Mr. Sullivan asks this court to strictly construe the charging document because he challenged it immediately after the State rested, while the State argues for the liberal standard.

The reason for this dispute is because the law is unsettled as to which standard applies when a defendant challenges the charging document after the State rests but before the jury reaches a verdict.

¶12 Two separate review standards exist for evaluating the constitutional adequacy of a charging document. The first is the liberal standard, under which a court has ‘considerable leeway to imply the necessary allegations from the language of the charging document.’ State v. Taylor , 140 Wash.2d 229, 237, 996 P.2d 571 (2000) (quoting Kjorsvik , 117 Wash.2d at 104, 812 P.2d 86 ). The second is the strict standard, which constitutes a “bright line rule mandating dismissal” when a charging document omits an essential element of the crime. State v. Johnson , 119 Wash.2d 143, 150, 829 P.2d 1078 (1992).

¶13 ‘The standard of review for evaluating the sufficiency of a charging document is determined by the time at which the motion challenging its sufficiency is made.’ State v. Borrero , 147 Wash.2d 353, 360, 58 P.3d 245 (2002) (quoting Taylor , 140 Wash.2d at 237, 996 P.2d 571 ). In Kjorsvik, the Washington Supreme Court first examined the question of whether courts should apply a different standard of review when a defendant challenges a charging document for the first time on appeal. See Kjorsvik , 117 Wash.2d at 103, 812 P.2d 86. The Kjorsvik court held that [c]harging documents which are not challenged until after the verdict will be more liberally construed in favor of validity than those challenged before or during trial.” Id. at 102, 812 P.2d 86. The court reasoned that without this rule the defendant has no incentive to timely make such a challenge since it might only result in an amendment or a dismissal potentially followed by a refiling of the charge. Id. at 103, 812 P.2d 86. The court further reasoned that using a more liberal standard of review would discourage “sandbagging”—where the defendant recognizes a defect in the information but forgoes raising it before trial when a successful objection would result only in the State amending the information.1 Id.

¶14 The Washington Supreme Court has never expressly considered what standard of review applies when a defendant challenges a charging document after the State rests but before the jury reaches a verdict. But it has at least implicitly held that the strict standard applies in this situation. In State v. Vangerpen, the defendant challenged the information after the defense rested and the court expressly rejected the liberal standard of review because “the sufficiency of the information was challenged prior to verdict.” 125 Wash.2d 782, 788, 888 P.2d 1177 (1995). Similarly, in Borrero, the defendant challenged the information immediately after the State rested and the court applied the strict standard, given that he challenged the information prior to verdict.2 Borrero , 147 Wash.2d at 357, 360, 58 P.3d 245.

¶15 The Washington Court of Appeals is split on what standard of review applies when a defendant challenges a charging document after the State rests but before the jury reaches a verdict. Division One of this court has adopted the strict standard in this situation, reasoning that the State would be at liberty to refile a complete charge, and the defendant has not taken advantage of a ‘free verdict.’

State v. Chaten , 84 Wash.App. 85, 87, 925 P.2d 631 (1996). Division One has further reasoned that applying a liberal standard in this situation was “implicitly rejected by the Supreme Court in State v. Vangerpen. Id. ; accord State v. Thanh Dong Tang , 77 Wash.App. 644, 647, 893 P.2d 646 (1995) (“Here [Mr.] Tang moved to dismiss at the close of the State's case and we are therefore required to strictly construe the information pursuant to Vangerpen.”).

¶16 Division Two has reached the opposite conclusion. See State v. Phillips , 98 Wash.App. 936, 991 P.2d 1195 (2000). The Phillips court reasoned that the State generally may not amend the information after it rests, and therefore the rule should be that courts strictly construe the information when the State can still amend it and liberally construe the information when the only remedy is dismissal. Id. at 941–42, 991 P.2d 1195. The court then reasoned that Vangerpen did not control because the information was insufficient under either standard, so therefore the Vangerpen court's application of the strict standard was nonbinding dicta. Id. at 942, 991 P.2d 1195. Citing Phillips, Division Two has reaffirmed this approach. See State v. Kiliona–Garramone , 166 Wash.App. 16, 23, 267 P.3d 426 (2011).

¶17 ...

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