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.
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. Accordingly, we reverse the judgment of
guilt with orders to the trial court to dismiss the case
the evening of September 15, 2015, Shaunna Holcomb came home
and began to argue with her husband, John Holcomb. In
response, Holcomb 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.
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.
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.
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
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."
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
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.
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). The trial court denied Holcomb's
motion and entered judgment on the jury's verdict.
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
first address whether commission of a specific domestic
violence crime is an essential element of the interference
crime codified at RCW 9A.36.150.
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
(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).
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.
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. 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.
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.
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.
criminal prosecution, the accused has a constitutional right
to be informed of the charge the accused is to meet at
trial. 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
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)).
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 ...