State v. Ferro , 64 Wash. App. 195 ( 1992 )

Coleman, J.

(dissenting) — I agree that the expression "See notes" does not, in itself, serve to incorporate by reference an identifiable document into the complaint. However, in my judgment that is not dispositive. "See notes" puts the defendant on notice that other documents exist which further explain the complaint. This conclusion is consistent with the essential elements rule, whose basic premise is one of notice rather than jurisdiction. As discussed in State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991)

[t]he primary goal of the "essential elements" rule is to give notice to an accused of the nature of the crime that he or she must be prepared to defend against. In Leach, we noted that defendants are entitled to be fully informed of the nature of the accusations against them so that they can prepare an adequate defense.

(Footnotes omitted.)

In this case, Ferro does not contend that he never received the offense report and the follow-up documents, including the witness statement, prior to trial. He does not contend that the documents failed to explain the complaint. He does not even contend that the documents were not attached to the complaint. In this connection, he merely asserts that there is no proof that they were attached. Instead, he argues that the rules do not permit incorporation by reference and that the sufficiency of the complaint must be judged on its face.

It is undisputed that the notes contained the necessary information to satisfy the essential elements rule. Under these circumstances, dismissing the complaint is unjustified when all of the information needed to prepare a defense was readily available to the accused. Dismissal is particularly disturbing when, as in this case, the appellant has challenged the complaint for the first time on appeal.

Ferro easily could have requested that the "notes" be produced. If the notes had not been produced or were insufficient when produced, he could have alleged an insufficient complaint and sought dismissal before the trial court. Because Ferro did not do so and because he first raised this issue on appeal, I would hold that the absence of any showing of prejudice is fatal to his claim and affirm the Superior Court.