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State v. Holcomb

Court of Appeals of Washington, Division 1

August 7, 2017

STATE OF WASHINGTON, Respondent,
v.
JOHN ALLEN HOLCOMB, Appellant.

          Dwyer, J.

         John Holcomb appeals from the judgment entered on a jury's verdict convicting him of one count of interfering with the reporting of domestic violence. On appeal, Holcomb challenges the constitutional adequacy of the information charging him with this offense.

         We conclude that the information was deficient because, notwithstanding a liberal construction, the information did not reasonably apprise Holcomb of the actual underlying domestic violence crime that the State alleged that he committed-assault in the fourth degree-thereby failing to inform Holcomb of a necessary and particular fact supporting an essential element of the charged interference crime.[1] Accordingly, we reverse the judgment of guilt with orders to the trial court to dismiss the case without prejudice.[2]

         I

         During the evening of September 15, 2015, Shaunna Holcomb came home and began to argue with her husband, John Holcomb. In response, Holcomb[3] pushed Shaunna out of the room in which the quarrel began. As they continued to argue, Holcomb grabbed Shaunna firmly by the arms. Shaunna broke free from Holcomb's grasp and attempted to use her cellular phone to contact 911. Holcomb tried to take the cellular phone away from her and he eventually pulled the phone out of her hand and threw it against a wall.

         Shaunna then struck Holcomb on the back of his head. He responded by grabbing her around the neck in a choke hold. Shaunna began to lose consciousness and Holcomb released her. Shaunna fled outside and continued trying to contact the police. She ultimately succeeded in contacting 911.

         The State, upon amended information, charged Holcomb with two offenses: one count of assault in the second degree (assault by strangulation) and one count of interfering with the reporting of domestic violence.

         At trial, after the conclusion of the testimony, the State proposed that the jury be instructed on the crime of assault in the fourth degree as the underlying crime for the interference charge. Defense counsel objected on the ground that the assault in the fourth degree instruction would be confusing to the jury because it was an instruction on an uncharged crime.

         In response, the prosecutor brought to the trial court's attention a "note on use" from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 36.57, at 688-89 (3d ed. 2008) (WPIC), regarding the manner of issuing jury instructions for the crime of interfering with the reporting of domestic violence when the predicate domestic violence offense is not separately charged. The WPIC note reads, "For the rare case in which the underlying domestic violence offense is not being tried along with this offense, an instruction should be drafted setting forth the elements of the underlying domestic violence offense." WPIC 36.57.

         The trial court overruled defense counsel's objection and issued a to-convict instruction identifying assault in the fourth degree as the underlying domestic violence crime for the interference charge. The to-convict instruction for the interference charge did not identify the assault in the second degree charge as the underlying domestic violence crime.

         The jury returned a verdict acquitting Holcomb of the assault in the second degree charge but finding Holcomb guilty of interfering with the reporting of domestic violence.

         After the jury rendered its verdict, Holcomb filed a post trial motion to arrest the judgment asserting that the amended information did not charge a crime and that insufficient evidence supported the jury's verdict, pursuant to CrR 7.4(a)(2), (3).[4] The trial court denied Holcomb's motion and entered judgment on the jury's verdict.

         Holcomb now appeals.

         II

         Holcomb contends that the information was deficient because, notwithstanding a liberal construction, the information failed to include a necessary and particular fact supporting an essential element of the charged crime of interfering with the reporting of domestic violence. This is so, he asserts, because the information did not specifically identify that the predicate domestic violence offense for the charged interference crime was assault in the fourth degree. Holcomb is correct.

         A

         We first address whether commission of a specific domestic violence crime is an essential element of the interference crime codified at RCW 9A.36.150.[5]

         As codified, the crime of interfering with the reporting of domestic violence reads:

(1) A person commits the crime of interfering with the reporting of domestic violence if the person:
(a) Commits a crime of domestic violence, as defined in RCW 10.99.020; and
(b) Prevents or attempts to prevent the victim of or a witness to that domestic violence crime from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official.
(2) Commission of a crime of domestic violence under subsection (1) of this section is a necessary element of the crime of interfering with the reporting of domestic violence.

RCW 9A.36.150 (emphasis added).

         Thus, an essential element of the interference charge is commission of a specific crime of domestic violence as defined in RCW 10.99.020. We know this because our legislature-in addition to setting forth the essential elements of the crime in subsections (1)(a) and (1)(b)-further emphasized in subsection (2) that commission of a domestic violence crime pursuant to subsection (1) is a necessary element. Turning to subsection (1), we note that the interference crime requires that the State prove the commission of a domestic violence crime as defined in RCW 10.99.020.

         Continuing on to RCW 10.99.020, the statute sets forth 23 distinct domestic violence crimes, including several offenses with distinct degrees of culpability. That RCW 10.99.020 sets forth numerous offenses with distinct degrees is significant. It indicates that the legislature intended that a specific crime of domestic violence be elected, alleged, and proved.[6] Indeed, we cannot conceive that the legislature intended that a criminal defendant be left to prepare a defense against the interference charge without notice as to which of the 23 wide-ranging offenses set forth in RCW 10.99.020 is the predicate domestic violence offense that the State alleges was committed.

         Thus, RCW 9A.36.150 requires, as an essential element, that the State elect, allege, and prove that one of the specific crimes defined in RCW 10.99.020 (rather than broadly and generally asserting that some one of the 23 domestic violence crimes listed in RCW 10.99.020) was committed. In this way, an essential-and necessary-element of RCW 9A.36.150 is proof of the commission of a specific domestic violence crime.

         B

         Holcomb contends that the State's amended information is deficient because, in charging the interference count, it failed to set forth the specific domestic violence offense that served as the predicate offense. He is correct.

         In a criminal prosecution, the accused has a constitutional right to be informed of the charge the accused is to meet at trial.[7] State v. Pelkey. 109 Wn.2d 484, 487, 745 P.2d 854 (1987). For that reason, the charging document must include all essential elements of a crime in order to apprise the accused of the charges and facilitate the preparation of a defense. State v. Pineda-Pineda. 154 Wn.App. 653, 670, 226 P.3d 164 (2010) (citing State v. Vangerpen. 125 Wn.2d 782, 787, 888 P.2d 1177 (1995)). This includes the necessary and particular "supporting facts giving constitutional notice of each element. State v. Nonog. 169 Wn.2d 220, 225, 237 P.3d 250 (2010). "More than merely listing the elements, the information must allege the particular facts supporting them." Nonog. 169 Wn.2d at 226 (citing State v. Leach. 113 Wn.2d 679, 688, 782 P.2d 552 (1989)).

         An essential element of RCW 9A.36.150 is proof of the commission of a specific domestic violence crime as defined in RCW 10.99.020. Therefore, to satisfy the constitutional requirement that a criminal defendant be apprised of that with which he is being charged, an information alleging the crime of interfering with the reporting of domestic violence must set forth the specific underlying domestic violence crime that serves as the predicate offense (rather than a broad claim that a crime of domestic violence was committed). Indeed, as our Supreme Court in Nonog assumed and as we now decide, "to be constitutionally sufficient, the information as a whole needed to reasonably apprise [the defendant] of the underlying crime." 169 Wn.2d at 229 (citing State v. Kjorsvik. 117 Wn.2d 93');">117 Wn.2d 93, 109-11, 812 P.2d 86 (1991)).

         Here, the State's amended information charged Holcomb with one count of assault in the second degree and one count of interfering with the reporting of domestic ...


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