State v. Borrero ( 2002 )

Madsen, J.

(concurring in part) — I agree with Justice Sanders that under a strict construction review, the word attempt does not adequately describe the essential “substantial step” element. Even if the majority is correct that attempt somehow conveys a substantial step, the information is nevertheless insufficient because it fails to allege any facts that would constitute a substantial step. In State v. Leach, 113 Wn.2d 679, 782 P.2d 552 (1989), this court recognized that there are two requirements that must be met for an information to satisfy due process: (1) the charging document must allege the legal elements of the charged crime, and (2) it must allege sufficient facts to support every element of the crime charged. Id. at 688. In Leach, we cited with approval Leonard v. Territory of Wash., 2 Wash. Terr. 381, 392, 7 P. 872 (1885), which set forth the requirements of “the essential elements rule [that] has always been the rule in this state.” State v. Leach, 53 Wn. App. 322, 326, 766 P.2d 1116 (1989).

“Under our laws an indictment must be direct and certain, both as regards the crime charged and as regards the particular circumstances thereof, when they are necessary to constitute a complete crime.”

Leach, 113 Wn.2d at 688 (quoting Leonard, 2 Wash. Terr, at 392).

Because the information in this case fails to expressly list the legal element of substantial step, undisputedly an element of attempted murder, and fails to allege any factual circumstances that would support the element of a substantial step, I would reverse and dismiss the attempted murder charge without prejudice.

As to the accomplice liability instruction, I agree with Justice Ireland that the error is harmless in this case because the trial court clarified the defect in its response to the jury inquiry. I would affirm the first degree kidnapping conviction.

Johnson, J., concurs with Madsen, J.