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Washington v. Tunney

filed: May 30, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
BARRY MICHAEL TUNNEY, PETITIONER.



Appeal from Superior Court, King (92-1-06522-0) County; Honorable Patricia Aitken, Judge. Judgment Date: 2-16-93.

Johnson, J., Durham, C.j., Dolliver, Smith, Guy, Talmadge, J.j., concurring. Madsen, J. (dissenting by separate opinion), Alexander, Sanders, J.j., dissenting.

Author: Johnson

En Banc

JOHNSON, J. -- Barry M. Tunney was convicted of third degree assault of a police officer in King County. He challenges the sufficiency of the information for the first time on appeal, arguing it was defective because the Prosecutor omitted the necessary common law element that Mr. Tunney knew his victim was a police officer performing his official duties. The Court of Appeals affirmed the conviction, State v. Tunney, 77 Wash. App. 929, 895 P.2d 13 (1995), and we granted review. We hold the element that Mr. Tunney

knew the victim was a police officer can be fairly implied from the information, and Mr. Tunney was not prejudiced by the failure of the Prosecutor to plainly state the knowledge element. We affirm.

While in uniform and on foot patrol in the Pike Place Market area of Seattle, Officers Shelton and Williams observed Mr. Tunney yell at a woman and shove her into a wall. They approached Mr. Tunney, who had a bottle of wine in hand, and Officer Shelton requested his identification. When Mr. Tunney reached for his identification, Officer Shelton observed what turned out to be an ice pick in the inside pocket of his jacket. Officer Shelton grabbed Mr. Tunney's arm to prevent him from reaching the ice pick. Mr. Tunney punched Officer Shelton in the arm in response, and a struggle ensued during which Mr. Tunney struck Officer Shelton in the face. Mr. Tunney managed to break away from the officers but was apprehended moments later.

The King County Prosecuting Attorney charged Mr. Tunney with assault in the third degree, RCW 9A.36.031(1)(g).*fn1 The charge stated:

That the defendant BARRY MICHAEL TUNNEY in King County, Washington on or about October 2, 1992, did assault Officer David Shelton of the Seattle Police Department, a law enforcement officer who was performing official duties at the time of the assault;

Contrary to RCW 9A.36.031(1)(g), and against the peace and dignity of the State of Washington.

Clerk's Papers at 15. In addition to the statutory elements of RCW 9A.36.031(1)(g), the Court of Appeals has held that knowledge the victim is a police officer performing

his or her official duties is an essential element of the crime. State v. Allen, 67 Wash. App. 824, 827, 840 P.2d 905 (1992). The Prosecutor omitted knowledge of the victim's status from the charge.

Mr. Tunney was convicted and sentenced to 22 months' confinement. His only defense at trial was the stop was unlawful. He has raised the sufficiency of the information for the first time on appeal.

The issue of whether knowledge the victim is a police officer is an essential element of the crime is not before us. RAP 13.7(b).*fn2 Assuming knowledge the victim is a police officer is an essential element of the crime, the issue is whether the information is constitutionally defective because that element was omitted.

The Sixth Amendment*fn3 and Const. art. I, § 22 (amend. 10)*fn4 require inclusion in the charging document of the essential elements, statutory and otherwise, of the crime charged so as to apprise the defendant of the charges against him and to allow him to prepare his defense. State v. Kjorsvik, 117 Wash. 2d 93, 97, 812 P.2d 86 (1991); State v. Hopper, 118 Wash. 2d 151, 155, 822 P.2d 775 (1992). In Kjorsvik we abandoned the traditional analysis applied under Const. art. I, § 22 (amend. 10) and adopted

an analysis consistent with the federal standard of review for sufficiency of information challenges raised for the first time on appeal. That analysis requires us to determine whether the information is sufficient by asking: (1) do the necessary elements appear in any form, or by fair construction can they be found, in the information; and, if so, (2) can the defendant show he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice. Kjorsvik, 117 Wash. 2d at 105-06. The first prong requires at least some language in the information giving notice of the missing element. Kjorsvik, 117 Wash. 2d at 106.

IS OVERSTRUCK IN THE SOURCE.)

We have applied the "fair construction" rule in two recent cases. In Hopper, the information charged second degree assault but omitted the statutory element of "knowingly." Hopper, ...


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