Opinion
No. 62957-3-I.
January 19, 2010.
Appeal from a judgment of the Superior Court for King County, No. 07-1-10485-9, Michael Heavey, J., entered January 12, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler, C.J., and Cox, J.
Evidence is sufficient to prove the identity of a person charged with bail jumping where it is tried along with the underlying offense and the State presents evidence that the person named in court documents is the same person who failed to appear and is on trial. We reject Cynthia Nelson's contention that the State did not prove beyond a reasonable doubt that she was the person who failed to appear as required for two court hearings. We also reject her contention, raised for the first time on appeal, that the information was inadequate because it did not include the name of the underlying offense, possession of methamphetamine. And any error in failing to include the name of the underlying offense in the to-convict instruction was harmless. We affirm.
FACTS
On September 18, 2007, the State charged Cynthia Nelson with possession of methamphetamine. The charge arose from an incident on May 3, 2007, when Officer Tim MacDonald stopped a vehicle in which Nelson was a passenger. During the months leading up to trial, Nelson twice failed to appear for scheduled hearings despite having been present at the preceding hearing and having signed orders acknowledging notice of the upcoming hearing and the requirement that she be present. On September 16, 2008, the State filed an amended information adding two counts of bail jumping based on Nelson's failures to appear on February 1, 2008 and May 9, 2008.
A jury acquitted Nelson of the possession charge and convicted her of both counts of bail jumping. Nelson appeals.
ANALYSIS
I. Sufficiency of the Evidence of Identity
Nelson first contends that the State failed to prove she was the person who signed the orders setting future court dates and then knowingly failed to appear.
When reviewing a challenge to the sufficiency of the evidence, this court must determine whether, after examining the facts in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. Circumstantial evidence is equally reliable as direct evidence.
State v. Joy, 121 Wn.2d 333, 338-39, 851 P.2d 654 (1993); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
A person is guilty of bail jumping if he or she fails to appear as required, after having been released by court order or admitted to bail, with knowledge of the requirement of a subsequent personal appearance before a court. The State's burden includes proving that the person on trial is the same person who earlier failed to appear. When criminal liability depends on the accused being the person to whom a document pertains, as with bail jumping and escape, the State must do more than authenticate and admit documentary evidence; it must prove that the person named in the documents is the same person who failed to appear and is on trial. The State can meet this burden in multiple ways, including evidence of booking photographs, booking fingerprints, eyewitness identification and distinctive personal information.
State v. Huber, 129 Wn. App. 499, 502, 119 P.3d 388 (2005); see State v. Brezillac, 19 Wn. App. 11, 12, 573 P.2d 1343 (1978).
Huber, 129 Wn. App. at 502.
Huber, 129 Wn. App. at 503.
In State v. Huber, the State charged the defendant with violating a protection order and witness tampering. The defendant was ordered to appear at a hearing, but failed to do so. A bench warrant was issued, and the defendant was charged with bail jumping, which was tried separately from the other charges. The State introduced certified copies of four documents: an information charging the defendant with violating a protection order and witness tampering; a court order requiring the defendant to appear on a certain date; the clerk's minutes showing the defendant failed to appear; and a bench warrant. No other evidence of identity was presented. On appeal the court reversed the bail jumping conviction, noting that the State could not prove identity simply by showing that the names on the relevant documents matched the name of the defendant. Rather the State was required to show, by evidence independent of the record, that the person named in the documents is the defendant in the present action.
129 Wn. App. 499, 119 P.3d 388 (2005).
Huber, 129 Wn. App. at 502.
Huber, 129 Wn. App. at 502.
Here, the State offered and the court admitted certified copies of six court orders with Nelson's signature, four of which provided notice of future hearing dates and informed her that the failure to appear could result in additional criminal charges. In addition, the clerk's office supervisor at the Regional Justice Center identified each of the court documents, testified that the case name and cause number was the same on each one, noted Cynthia Nelson's signature on six documents, and identified documents showing Nelson's failure to appear on February 1, 2008 and May 9, 2008 and the bench warrants the court issued. The documents show the same name, Cynthia Nelson, and the same cause number on the information charging the underlying possession offense.
Moreover, unlike Huber, Nelson's possession of methamphetamine charge was tried along with the bail jumping charges. Officer MacDonald testified that when he stopped the vehicle in May 2007, the passenger identified herself as Cynthia M. Nelson and gave her birth date. A check of licensing records produced a record for Nelson. Officer MacDonald took a photograph of Nelson before she left the scene, and he testified that the Cynthia Nelson in court was the same person as the Cynthia Nelson in the photograph. The photograph was admitted as an exhibit. Nelson's defense to the possession of methamphetamine charge was that the State failed to prove she had actual or constructive possession of the backpack containing methamphetamine. She did not dispute that she was the same Cynthia Nelson charged with possession of methamphetamine. Viewing the evidence and reasonable inferences in the light most favorable to the State, there is sufficient evidence from which a rational trier of fact could find Nelson guilty beyond a reasonable doubt of bail jumping.
See Brezillac, 19 Wn. App. at 13-14 (a solid connection to some counts, which are tied to other counts, can constitute independent evidence that all counts relate to the same person).
II. Adequacy of the Information
Nelson contends that her bail jumping convictions must be reversed because the amended information lacked an essential element of the offense, the name of the particular underlying offense. She challenges the adequacy of the amended information for the first time on appeal.
To be constitutionally adequate, a charging document must include all essential elements of the alleged crime and must adequately identify the crime charged. The purpose of the rule is to give the accused proper notice of the nature of the crime charged so that he or she can prepare an adequate defense.
State v. Williams, 162 Wn.2d 177, 183, 170 P.3d 30 (2007).
Williams, 162 Wn.2d at 183; State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991).
Bail jumping is defined in RCW 9A.76.170. Subsection (1) defines the offense, and subsection (3) defines the penalty classes of bail jumping based on the penalty class of the underlying offense. The elements of bail jumping are that the defendant: "`(1) was held for, charged with, or convicted of a particular crime; (2) was released by court order or admitted to bail with the requirement of a subsequent personal appearance; and, (3) knowingly failed to appear as required.'"
Williams, 162 Wn.2d at 184; State v. Gonzalez-Lopez, 132 Wn. App. 622, 629, 132 P.2d 1128 (2006).
Williams, 162 Wn.2d at 183-84 (quoting State v. Pope, 100 Wn. App. 624, 627, 999 P.2d 51 (2000) (emphasis in original)).
The amended information here charged Nelson with violating RCW 69.50.4013 (count 1):
I, [prosecuting attorney], do accuse CYNTHIA MARIE NELSON of the crime of Violation of the Uniform Controlled Substances Act, committed as follows:
That the defendant CYNTHIA MARIE NELSON in King County, Washington, on or about May 3, 2007, unlawfully and feloniously did possess Methamphetamine, a controlled substance[.]
Theamended information also charged Nelson with violating RCW 9A.76.170 (count 2):
I, [prosecuting attorney], further do accuse CYNTHIA MARIE NELSON of the crime of Bail Jumping, based on a series of acts connected together with another crime charged herein, committed as follows:
That the defendant CYNTHIA MARIE NELSON in King County, Washington, on or about May 9, 2008, being charged with a Class C felony and with knowledge of the requirement of a subsequent personal appearance before the court, did fail to appear[.]
Theamended information charged a second count of bail jumping with identical language except for the date Nelson failed to appear (count 3).
Nelson contends that the amended information did not adequately notify her of the essential elements of bail jumping because it did not include the name of the particular underlying offense, and instead included only the penalty classification of the underlying offense.
We review a challenge to the adequacy of a charging document de novo. When a charging document is challenged for the first time on appeal, it must be construed liberally. The words in the charging document are read as a whole, construed with common sense, and include facts necessarily implied. In applying this liberal construction standard, we ask two questions: "`(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 the lack of notice?'"
Williams, 162 Wn.2d at 182.
Williams, 162 Wn.2d at 185; Kjorsvik, 117 Wn.2d at 105.
Kjorsvik, 117 Wn.2d at 109.
Williams, 162 Wn.2d at 185 (quoting Kjorsvik, 117 Wn.2d at 105-06).
Washington courts have invalidated a number of charging documents for failure to allege the particular underlying offense. In State v. Williams, the court considered the opposite problem, where the charging document identified the particular underlying offense, "unlawful possession of a controlled substance, a . . . felony," but did not include the penalty classification. Following this court's decision in State v. Gonzalez-Lopez, the Williams court held that the penalty classification of bail jumping is not an essential element of the offense and is not necessary for a charging document to be sufficient. Applying the liberal construction Kjorsvik standard, the court reasoned that because the information twice referenced a felony charge, Williams received proper notice. In addition, considering other circumstances of the charging process, Williams suffered no actual prejudice.
See State v. Green, 101 Wn. App. 885, 888, 6 P.3d 53 (2000) (information charged only cause number of underlying offense); Pope, 100 Wn. App. at 629-30 (information charged only that defendant failed to appear "regarding a felony matter") (emphasis omitted); State v. Ibsen, 98 Wn. App. 214, 215, 989 P.2d 1184 (1999) (underlying offense omitted altogether).
162 Wn.2d 177, 182 n. 1, 185, 170 P.3d 30 (2007).
132 Wn. App. 622, 636, 132 P.2d 1128 (2006).
Williams, 162 Wn.2d at 186.
Williams, 162 Wn.2d at 186.
The same is true here. Count 1 of the amended information identified possession of methamphetamine as a felony, and counts 2 and 3 identified bail jumping as a class C felony. Liberally construed, read as a whole, and construed with common sense, the amended information adequately identified the crime charged and informed Nelson of the elements of bail jumping such that she received sufficient notice to prepare a defense.
State v. Spiers, 119 Wn. App. 85, 91, 79 P.3d 30 (2003) (liberally construed, information that expressly stated the defendant failed to appear after being charged with a class B or C felony, was sufficient); see Gonzalez-Lopez, 132 Wn. App. at 633 (pleading either the underlying offense or the class of the underlying offense would be sufficient to apprise defendant of aggravated sentencing possibility).
III. To-Convict Instruction
Related to her challenge to the adequacy of the information, Nelson contends that her right to due process was violated because the jury instructions omitted an essential element of bail jumping, the name of the particular underlying offense.
As set forth above, the elements of bail jumping are that the defendant: "`(1) was held for, charged with, or convicted of a particular crime; (2) was released by court order or admitted to bail with the requirement of a subsequent personal appearance; and, (3) knowingly failed to appear as required.'"
Williams, 162 Wn.2d at 183-84 (quoting Pope, 100 Wn. App. at 627).
The jury was instructed that to convict Nelson of bail jumping, it must find each of the following elements proved beyond a reasonable doubt:
(1) That on or about the 9th of May, 2008, the defendant knowingly failed to appear before a court;
(2) That the defendant was charged with a Class C Felony;
(3) That the defendant had been released by court order or admitted to bail with the requirement of a subsequent personal appearance before that court; and
(4) That the acts occurred in the State of Washington.
Theto-convict instruction for the other count of bail jumping was identical except for the date.
The State must prove every element of an offense beyond a reasonable doubt and jury instructions must not relieve the State of its burden to prove every element. "A to-convict instruction must include all of the elements of a crime because it is the touchstone that a jury must use to determine guilt or innocence."
Williams, 162 Wn.2d at 186-87.
In Williams, in holding that the classification of the underlying offense is not an essential element of bail jumping, the court stated that "a simple identification" of the crime charged is sufficient. Nelson contends that Williams requires the to-convict instruction to identify the name of the particular crime and that including only the classification of the underlying crime is insufficient. The State contends that Nelson reads Williams too narrowly and that identifying the underlying crime by its class is sufficient, where another instruction informs the jury that the particular underlying offense is within the identified penalty classification. Nelson responds that case law requires that all elements of an offense be found in the to-convict instruction. We need not resolve this question because we conclude that any error in the to-convict instruction was harmless. "[N]ot every omission or misstatement in a jury instruction relieves the State of its burden." A constitutional error is harmless when it appears beyond a reasonable doubt that the alleged error did not contribute to the verdict. Applied to an omitted element in a jury instruction, an error is harmless if the element is supported by uncontroverted evidence.
Williams, 162 Wn.2d at 188.
Williams, 162 Wn.2d at 186-87; State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002).
State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002).
Brown, 147 Wn.2d at 341 (citing Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L Ed. 2d 35 (1999)).
Brown, 147 Wn.2d at 347.
Here, the bail jumping to-convict instructions required the jury to find that Nelson had been charged with a class C felony. A separate instruction informed the jury that possession of methamphetamine is a class C felony. No evidence was presented as to any other controlled substance or any other class C felony. In order to convict Nelson of bail jumping, the jury necessarily had to find beyond a reasonable doubt that she had been charged with a class C felony and that the particular class C felony was possession of methamphetamine. Any error in the to-convict instruction in omitting the particular offense Nelson was charged with was harmless.
Affirmed.
WE concur.