Argued January 21, 2014.
Appeal from King County Superior Court. No. 09-1-04159-4. Honorable Michael J. Heavey.
Daniel T. Satterberg, Prosecuting Attorney, and James M. Whisman, Deputy, for petitioner.
Casey Grannis (of Nielsen Broman & Koch PLLC ), for respondent.
AUTHOR: Justice Susan Owens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice C.W. Johnson, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Steven C. Gonzá lez, James M. J.M. Johnson, Justice Pro Tem.; AUTHOR:Justice Sheryl Gordon McCloud. WE CONCUR: Justice Charles K. Wiggins.
[180 Wn.2d 298] Owens, J. -- J.C.
¶ 1 Johnson  was convicted of five crimes related to several days of ongoing domestic violence against his wife. We review two holdings by the Court of Appeals. First, the Court of Appeals overturned Johnson's unlawful imprisonment conviction because the State did not include the definition of " restrain" in the information charging him with the crime. We reverse the Court of Appeals and reinstate Johnson's conviction because charging documents need contain only the essential elements of a crime, not related definitions. Second, the Court of Appeals agreed with Johnson that it was error to give a jury instruction on the generic definition of " reckless" for the charge of assault in the second degree but held that his counsel was not ineffective for proposing it because no court had yet ruled on the issue. On this issue, we affirm the Court of Appeals but for a different reason. It is not error to instruct the jury on the generic definition of " reckless" as long as the jury is also given a " to convict" instruction that lists every element of the crime the State needs to prove in order to convict the defendant, including the charge-specific language for " reckless."
¶ 2 A jury convicted Johnson for acts of domestic violence against his wife, J.J.  For three days Johnson kept J.J. in their apartment under his control. Johnson would not let her get dressed while inside, and she only went out of the apartment accompanied by him. At times, Johnson used his [180 Wn.2d 299] 130-pound rottweiler to restrain her movements. J.J. testified that he kept a knife and an ice pick near the bed to intimidate her. J.J. also testified that she did not feel free to leave, in part, because he threatened to hurt her children from a previous marriage.
¶ 3 During those three days, Johnson severely injured J.J. He choked her on multiple occasions. J.J. testified that he also hit her with rocks and allowed his rottweiler to bite her. J.J. also testified that he grabbed her and slammed her down so that she hit her
neck. Johnson admitted at trial that he " shoved her hard" and she fell and hit her head. Report of Proceedings (Dec. 14, 2010) at 33-34.
¶ 4 J.J. finally escaped after Johnson threatened to kill her by suffocating her with duct tape. J.J. ran from the house in her underwear when he turned his back on her, and found help from a neighbor. J.J. received treatment for her injuries, which included dog bites, bruises, and severe swelling--especially around her face and throat.
¶ 5 The State charged Johnson with five crimes, including unlawful imprisonment and second degree assault for intentionally assaulting another and thereby recklessly inflicting substantial bodily harm. The jury convicted Johnson on all counts and Johnson appealed. The Court of Appeals held that the information for the unlawful imprisonment charge was insufficient because it left out the definition of " restrain." State v. Johnson, 172 Wn.App. 112, 136-40, 297 P.3d 710 (2012). The court also held that the jury instruction defining " reckless" for the assault charge improperly lowered the State's burden of proof, but defense counsel was not deficient for proposing it. Id. at 133. We granted review of those two issues only. State v. Johnson, 178 Wn.2d 1001, 308 P.3d 642 (2013).
¶ 6 1. Was the information for the unlawful imprisonment charge sufficient even though it did not include the definition of " restrain?"
[180 Wn.2d 300] ¶ 7 2. Did defense counsel provide ineffective assistance by proposing a definition of " reckless" in the jury instructions that did not include charge-specific language when the " to convict" instruction included the specific language?
STANDARD OF REVIEW
¶ 8 Johnson challenges the sufficiency of the information on constitutional grounds. " We review allegations of constitutional violations de novo." State v. Siers, 174 Wn.2d 269, 273-74, 274 P.3d 358 (2012). He also challenges the jury instructions in his case. " We review jury instructions de novo." State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).
1. The Information Was Constitutionally Sufficient
¶ 9 In criminal cases, the accused has the constitutional right to know the charges against them. U.S. Const. amend. VI; Wash. Const. art. I, § 22. The State formally gives notice of the charges in the information, also known as the charging document. See CrR 2.1(a)(1) (" [T]he information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." ).
¶ 10 The information is constitutionally sufficient " only if all essential elements of a crime, statutory and nonstatutory, are included in the document." State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995). " 'An essential element is one whose specification is necessary to establish the very illegality of the behavior charged.'" State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal quotation marks omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)). This essential elements rule exists " to apprise the accused of the charges against him or her and to allow the defendant to prepare a defense." Vangerpen, 125 Wn.2d at 787. If the State fails to [180 Wn.2d 301] allege every essential element, ...