Opinion
No. 23303-7-II.
Filed: May 26, 2000.
Appeal from Superior Court of Thurston County, No. 98-1-00404-9, Hon. Christine A. Pomeroy, 05/15/1998, Judgment or order under review.
Thomas E. Doyle, Attorney At Law, for appellant(s).
Robert A. Lund, Thurston Co Dep Pros Atty, for respondent(s).
Michael Tresenriter appeals from convictions of burglary in the first degree while armed with a deadly weapon, nine counts of theft of a firearm, and possession of stolen property in the second degree. The charges were based upon the burglary of a home in which firearms and valuable Samurai sword decorations were stolen. Tresenriter contends that the information was constitutionally deficient and that he was convicted of an uncharged alternative means. Because the information is defective, we reverse and dismiss without prejudice.
FACTS
Robert Rezanka's house was burglarized in June 1997. Ten operational firearms were taken from a safe, as well as Manuki figurines made of gold and silver and used to decorate the hilt of a Samurai sword. Two co-conspirators testified that Tresenriter participated in the burglary. During a search of Tresenriter's motorhome, police recovered some of the stolen property.
Tresenriter was charged with burglary in the first degree while armed with a deadly weapon, ten counts of theft of a firearm, and possession of stolen property.
ANALYSIS
The amended information charged Tresenriter with:
BURGLARY IN THE FIRST DEGREE WHILE ARMED WITH A DEADLY WEAPON, RCW 9A.52.020 RCW 9.94A.125 310
In that the defendant, MICHAEL JAY TRESENRITER, in the County of Thurston, State of Washington, on or about June 23, 1997, with intent to commit a crime against a person therein, as a principle or as an accomplice, entered or remained unlawfully in a building at 5633 Waldrick Road Olympia WA, and while in the building was armed with a deadly weapon. It is further alleged that the defendant was armed with a deadly weapon, to-wit: a firearm.
(Emphasis added.)
But, jury instruction 8, to which neither party objected, stated:
A person commits the crime of burglary in the first degree when he or she enters or remains unlawfully in a building with the intent to commit a crime against a person or property therein and if, in entering or while in the building, or in immediate flight therefrom, that person or an accomplice in the crime is armed with a deadly weapon.
(Emphasis added.)
Tresenriter asserts that the manner of committing a crime, whether against a person or against property, is an element of the crime and so must be stated in the information. He argues that the information charged only one means of committing the crime of burglary, i.e., with intent to commit a crime against a person. Thus, according to Tresenriter, the court erred in allowing the jury to consider the alternative means, i.e., with intent to commit a crime against property. The remedy, according to Tresenriter, is dismissal with prejudice. Citing State v. Hescock, 98 Wn. App. 600, 989 P.2d 1251 (1999), Tresenriter further argued at oral argument that to allow the State to prosecute him for the uncharged alternative means violates double jeopardy principles. The State contends that under the rule of liberal construction the information gave Tresenriter notice of the charges. Specifically, the State argues that the allegations of theft and possession of stolen property gave notice to Tresenriter that he was charged with committing the burglary with intent to commit crimes against property.
A jury instruction is generally presumed prejudicial unless the error was harmless. State v. Bray, 52 Wn. App. 30, 34-35, 756 P.2d 1332 (1988) (error was not harmless where defendant was charged with one alternative means of committing forgery and the instructions allowed the jury to convict defendant of a crime not charged); State v. Severns, 13 Wn.2d 542, 125 P.2d 659 (1942) (holding it was error to permit jury to consider two statutory means of committing crime when only one of the alternatives was charged in the information). But under State v. Kjorsvik, 117 Wn.2d 93, 105-106, 812 P.2d 86 (1991), the issue of prejudice is addressed only if the `necessary facts appear in any form, or by fair construction can they be found, in the charging document.' Tresenriter also relies on State v. Doogan, 82 Wn. App. 185, 917 P.2d 155 (1996), but in Doogan prejudice under Bray was analyzed under the prejudice prong of ineffective assistance of counsel.
Generally, a charging document must contain `{a}ll essential elements of a crime' so as to give the defendant notice of the charges and allow the defendant to prepare a defense. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). But the standard of review depends on when the charging document is challenged. Kjorsvik, 117 Wn.2d at 103. When, as here, the defendant challenges the charging document for the first time on appeal, we liberally construe the document in favor of validity. Kjorsvik, 117 Wn.2d at 105. This encourages defendants who recognize a charging defect to raise an objection when the defect can be cured by amendment. Kjorsvik, 117 Wn.2d at 103.
Under the liberal construction rule, `even if there is an apparently missing element, {if} it may be able to be fairly implied from language within the charging document,' then the charging document will be upheld on appeal. Kjorsvik, 117 Wn.2d at 104. Thus, we look at the entire information to determine if it contains the necessary allegations. Kjorsvik, 117 Wn.2d at 104. The test is:
`(1) do 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 Wn.2d at 105-106.
Here, even if liberally construed, the information is deficient. The State alleged that Tresenriter burgled Rezanka's house with intent to commit a crime against person. In the firearms charges, the State alleged:
In that the defendant, MICHAEL JAY TRESENRITER, in the County of Thurston, State of Washington, on or about June 23, 1997, as a principal or as an accomplice pursuant to RCW 9A.08.020, did commit a theft of or possess, sell, or deliver a stolen firearm regardless of value, to-wit: {name of specific firearm}.
But nothing in the information connects the burglary with the firearm thefts except the date. If the information alleged that the thefts occurred at the burgled residence or that the same victim was involved, we could construe the information to give adequate notice to Tresenriter. But it is entirely possible that the State was charging Tresenriter with separate crimes committed on the same day. We hold that the information is inadequate, even liberally construed, to give notice to Tresenriter of the crimes charged. Because the information fails the first prong of Kjorsvik, we need not consider the second prong, i.e., whether Tresenriter was actually prejudiced. Kjorsvik, 117 Wn.2d at 111; City of Auburn v. Brooke, 119 Wn.2d 623, 638, 836 P.2d 212 (1992); State v. Moavenzadeh, 135 Wn.2d 359, 956 P.2d 1097 (1998); but see State v. Williamson, 84 Wn. App. 37, 45, 924 P.2d 960 (1996) (information did not satisfy first prong of Kjorsvik and prejudice was presumed).
We turn then to the question of whether Tresenriter is entitled to dismissal with or without prejudice. Under a Kjorsvik analysis, the remedy is clearly dismissal without prejudice. Brooke, 119 Wn.2d at 638. The State, by not charging the alternative means of committing a burglary, i.e., with intent to commit a crime against property, did not provide Tresenriter with the necessary notice. Thus, the information was constitutionally defective. And the remedy for an insufficient information is reversal without prejudice. State v. Vangerpen, 125 Wn.2d 782, 792-93, 888 P.2d 1177 (1995). Tresenriter maintains, however, that our recent decision in Hescock compels a dismissal with prejudice. We disagree.
In Hescock, a juvenile was charged with forgery by two alternative means:
(1) altering the document himself; or (2) possessing an altered document with knowledge that it was altered.
Hescock, 98 Wn. App. at 603.
The juvenile court found the juvenile guilty under the first alternative. But on appeal, the State conceded that the evidence was insufficient to prove that the juvenile had altered the check. The State asked that we remand for the juvenile court to consider whether the juvenile was guilty under the second alternative. We held that to do so would violate the double jeopardy clause. Hescock, 98 Wn. App. at 611.
We reasoned, in part, that the juvenile court's adjudication of guilt under the first alternative was an implied finding that the other alternative had not been proved. Hescock, 98 Wn. App. at 606. Thus, to remand for further proceedings on the second alternative would subject the juvenile to again face a charge on which he had been impliedly acquitted.
The critical difference here is that Tresenriter was never charged with the alternative of committing a burglary with intent to commit a crime against property. Accordingly, his conviction of one count does not imply a rejection of this uncharged count. Rather, conviction of a crime not charged is a nullity and a defendant so convicted has never been in jeopardy. State v. Corrado, 81 Wn. App. 640, 915 P.2d 1121 (1996) (double jeopardy did not bar the retrial of defendant convicted of attempted second degree murder without a filed information); State v. Corrado, 78 Wn. App. 612, 898 P.2d 860 (1995) (because the State failed to file any information against defendant, the trial court lacked jurisdiction, and its judgment and sentence were void).
Reversed and dismissed without prejudice.
ARMSTRONG, C.J.
We concur: HOUGHTON, J., BRIDGEWATER, J.