State v. Bergstrom ( 2022 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE JANUARY 27, 2022
SUPREME COURT, STATE OF WASHINGTON
JANUARY 27, 2022
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, )
) No. 99347-5
Petitioner, )
v. ) En Banc
)
ZACHARY P. BERGSTROM, )
) Filed: January 27, 2022
Respondent and
)
Cross-Petitioner.
)
WHITENER, J.—In 2017, Zachary Bergstrom was charged with possession
of a controlled substance. He was later released on bail. For various reasons, among
them, hospitalization, tardiness, and struggles with drug addiction and homelessness,
Mr. Bergstrom missed three required court dates. Because of Mr. Bergstrom’s
failures to appear (FTAs), the State charged him with three counts of bail jumping.
The jury acquitted Mr. Bergstrom of the underlying possession charge but convicted
him of three counts of bail jumping under former RCW 9A.76.170 (2001) (the bail
jumping statute).
State v. Bergstrom (Zachary P.), No. 99347-5
On appeal, Mr. Bergstrom argued that (1) the to-convict jury instructions were
constitutionally infirm because they omitted an essential element, that is, that he
failed to appear “as required,” (2) the State’s evidence that Mr. Bergstrom knew of
the required court dates was “equivocal” and therefore insufficient on two counts of
bail jumping, and (3) defense counsel’s failures to object to certain evidence and to
request an affirmative defense instruction amounted to ineffective assistance of
counsel. The Court of Appeals affirmed in part and reversed in part, agreeing that
the to-convict jury instructions were deficient but on the alternate ground that “the
to-convict instructions did not require the State to prove an element of bail
jumping—that Bergstrom knowingly failed to appear as required.” State v.
Bergstrom, 15 Wn. App. 2d 92, 100, 474 P.3d 578 (2020) (published in part). The
court nonetheless determined the error was harmless because “the uncontroverted
evidence established that Bergstrom received notice he was required to attend court
on January 12, 2018, April 18, 2018, and May 4, 2018,” and he therefore knowingly
failed to appear on those dates. Id. In the unpublished portion of its opinion, the court
reversed Mr. Bergstrom’s bail jumping conviction for his FTA on January 12, 2018
due to ineffective assistance of counsel.
We reverse in part because “knowingly failed to appear” was not an element
of the 2001 bail jumping statute in effect at the time of Mr. Bergstrom’s FTAs
because the legislature amended the bail jumping statute in 2001 to expressly replace
2
State v. Bergstrom (Zachary P.), No. 99347-5
this language with the broader knowledge requirement, “knowledge of the
requirement of a subsequent personal appearance before any court of this state.” 1
H.B. 1227, 57th Leg., Reg. Sess. (Wash. 2001). Despite omission of the phrase “as
required,” the to-convict jury instructions, as a whole, informed the jury of each
essential element of bail jumping and were, therefore, constitutionally sound. We
otherwise affirm the Court of Appeals because the evidence that Mr. Bergstrom had
knowledge of the April 18, 2018 court date was sufficient to convict. 2
This case prompts us to address the judiciary’s role as a fair and impartial
body and its obligation to engender confidence in our legal system. Under our Code
of Judicial Conduct, judges and court officers are obligated to promote justice and
uphold the rule of law. 3 It is critical that our courts be cognizant of the clarity and
accessibility of court communications and orders, especially when dealing with
parties experiencing trauma or who are in crisis, such as those coping with poverty,
drug addiction, and homelessness.
1
We take this opportunity to clarify that “knowingly failed to appear” was not an element under
the bail jumping statute in effect from 2001 to 2020, thereby abrogating two of our prior opinions,
State v. Williams, 162 Wn.2d 177, 170 P.3d 30 (2007), and State v. Coucil, 170 Wn.2d 704, 245
P.3d 222 (2010), to the extent they treat a knowing FTA as an essential element of bail jumping
for offenses committed under the 2001 statute.
2
As discussed below, Mr. Bergstrom conceded at oral argument that he was not renewing his
sufficiency challenge on count 4 (May 4, 2018 FTA). Wash. Supreme Court oral argument, State
v. Bergstrom, No. 99347-5 (Sept. 23, 2021), at 20 min., 29 sec., video recording by TVW,
Washington State’s Public Affairs Network, http://www.tvw.org. Our sufficiency analysis,
therefore, focuses on count 3, Mr. Bergstrom’s FTA before the drug court on April 18, 2018.
3
See CJC 1.2 (judges must promote public confidence in judiciary), 2.12 (judges must compel
others under their supervision to also promote public confidence in judiciary).
3
State v. Bergstrom (Zachary P.), No. 99347-5
FACTS AND PROCEDURAL HISTORY
In September 2017, Mr. Bergstrom was charged with possession of a
controlled substance. Over the course of approximately five months, Mr. Bergstrom
failed to appear at his three court dates on January 12, 2018, April 18, 2018, and
May 4, 2018 (together the three court dates). During this time, Mr. Bergstrom
struggled with drug addiction and homelessness. See 1 Verbatim Report of
Proceedings (July 9, 2019) (VRP) at 243-48, 263.
1. Releases from Custody and FTAs
On September 22, 2017, at Mr. Bergstrom’s initial bail hearing, a judge
granted bail on several conditions, including that Mr. Bergstrom appear at all court
dates, maintain contact with his attorney, and abide by all court orders and conditions
of supervision. Approximately two and a half weeks later, Mr. Bergstrom was
released on bail. Nearly one month after his release, on November 3, 2017, Mr.
Bergstrom returned to court for a pretrial conference, after which the court issued a
scheduling order setting a subsequent pretrial conference for January 12, 2018 (the
November scheduling order). Mr. Bergstrom failed to appear on January 12, 2018.
He explained at trial that he was absent because he was in the hospital on that day.
Though the precise timeline is unclear, Mr. Bergstrom stated that he voluntarily
contacted his attorney and bond company a few days after he left the hospital
because he “kn[e]w that [he] had missed a court date.” VRP at 237-39. The bond
4
State v. Bergstrom (Zachary P.), No. 99347-5
company effected a bond surrender, and Mr. Bergstrom returned to jail. Four days
after this first FTA, a bench warrant issued for Mr. Bergstrom’s arrest. 4
On February 28, 2018, the trial court issued a scheduling order setting a new
pretrial conference for May 4, 2018 (the February scheduling order). Mr. Bergstrom
remained in custody at the Geiger Corrections Center. Approximately one month
later, on April 10, 2018, Mr. Bergstrom was released by court order for a 14-day
evaluation period to determine whether he would be admitted to the drug court
program. According to written conditions of release, he was required to appear
before the drug court at 3:00 p.m. on April 11, 2018 and April 18, 2018 (the April
release order). Mr. Bergstrom failed to appear at the designated time on April 18,
2018, and a bench warrant issued for his arrest that day. Mr. Bergstrom testified that
he arrived “late” to court on April 18, 2018 but that he spoke with a court employee
who said the court would try to reschedule with him. VRP at 241-42. A Department
of Corrections record admitted at trial corroborated his testimony, showing that a
judicial assistant sent an e-mail to the drug court officer to explain that Mr.
Bergstrom arrived late “and she told him to be back at 10:00 a.m.” Id. at 208, 242.
There is no further communication apparent on the record that relates to this or any
rescheduled hearing. Mr. Bergstrom’s case remained on the criminal docket.
4
This bench warrant was quashed on January 18, 2018.
5
State v. Bergstrom (Zachary P.), No. 99347-5
Approximately two and a half weeks after his FTA before the drug court, Mr.
Bergstrom failed to appear for his pretrial conference on May 4, 2018, which had
been set a full two months prior in the February scheduling order. A new bench
warrant issued for his arrest that day. Mr. Bergstrom testified that he “was not aware
of” this pretrial conference because, at that time, he struggled to remain in contact
with his attorneys and parole officer—he was homeless, had no phone, and was
using drugs. Id. at 244-48.
Mr. Bergstrom was arrested approximately one month later on new drug and
firearm charges, none of which are relevant to the petition before this court. Because
of his FTAs, the State added three counts of bail jumping to Mr. Bergstrom’s
charges.
2. Jury Trial
The State’s case on the bail jumping charges relied heavily on certified court
documents and testimony from court employees to establish that Mr. Bergstrom
knew he was required to appear in court and that he failed to do so on the three court
dates. Two deputy clerks testified that Mr. Bergstrom was on the docket but did not
appear at the required times on each of the three court dates. The November
scheduling order and February scheduling order were signed by both Mr. Bergstrom
and his attorney and stated in all capital letters that Mr. Bergstrom was required to
appear for all court dates “or a warrant for arrest may be issued.” Exs. 3, 7; see VRP
6
State v. Bergstrom (Zachary P.), No. 99347-5
at 169, 175. The April release order, also signed by Mr. Bergstrom and his attorney,
mandated Mr. Bergstrom’s presence on April 18, 2018 “to formalize his . . .
participation in or to opt out of the [drug court] program.” Ex. 8, at 2. This order also
stated that the precise court time was “subject to change” and that “Pioneer[5] will
advise you of the correct court time.” Id. Mr. Bergstrom conceded at trial that the
aforementioned orders were each signed in a space designated for his signature. VRP
at 257-58. 6
The jury members were provided the following to-convict jury instructions on
each count of bail jumping:
(1) That on or about [date],[7] the defendant failed to appear before a
court;
(2) That the defendant was charged with possession of a controlled
substance, a crime under RCW 69.50.4013(1), a class C felony;
(3) That the defendant had been [admitted to bail (or) released by court
order][8] with knowledge of the requirement of a subsequent personal
appearance before that court; and
(4) That any of these acts occurred in the State of Washington.
Clerk’s Papers (CP) at 148, 150, 152; VRP at 275-77. These instructions mirrored
the 11A Washington Practice: Washington Pattern Jury Instructions: Criminal (4th
5
Pioneer Center East is a drug rehabilitation center in Spokane. VRP at 245.
6
Although Mr. Bergstrom questioned whether the signature on the November scheduling order
was his, which related to his FTA on January 12, 2018, that FTA is not the subject of this appeal,
and he did not contest the signatures on the other scheduling orders.
7
Each of the three instructions specified one of the three court dates, January 12, 2018, April 18,
2018, or May 4, 2018, as applicable.
8
Each of the three instructions employed one option or the other, as applicable to the specific
count.
7
State v. Bergstrom (Zachary P.), No. 99347-5
ed. 2016) (WPIC), and Mr. Bergstrom’s defense counsel did not object to them at
trial. 9 The jury acquitted Mr. Bergstrom of the underlying drug possession charge
but found him guilty of three counts of bail jumping.
3. Appeal
Division Three of the Court of Appeals held that the to-convict jury
instructions improperly relieved the State of its burden to prove that Mr. Bergstrom
“knowingly failed to appear as required” because “no element in the to-convict
instruction required the State to prove Bergstrom knew he was required to appear on
the dates alleged in the particular counts.” Bergstrom, 15 Wn. App. 2d at 99. The
court declined to follow State v. Hart, a prior Division Two opinion, which held that
9
For comparison, in 2018, the WPIC defined the crime of bail jumping as follows:
“A person commits the crime of bail jumping when he or she [fails to appear]
[or] [fails to surrender] as required after having been released by court order or
admitted to bail with knowledge of the requirement [of a subsequent personal
appearance before a court] [or] [to report to a correctional facility for service of
sentence.]”
WPIC 120.40, at 569 (alterations in original). The WPIC provided the following to-convict
instructions:
To convict the defendant of the crime of bail jumping, each of the following
elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant failed [to appear before a court] [or]
[to surrender for service of sentence];
(2) That the defendant [was being held for] [or] [was charged with] [or] [had
been convicted of] [(fill in crime)] [a crime under RCW (fill in statute)] [a class A
felony] [a class B or C felony] [a gross misdemeanor or misdemeanor];
(3) That the defendant had been released by court order [or admitted to bail]
with knowledge of [the requirement of a subsequent personal appearance before
that court] [or] [the requirement to report to a correctional facility for service of
sentence]; and
(4) That any of these acts occurred in the [State of Washington] [City of
________] [County of ________].
WPIC 120.41, at 570 (alterations in original).
8
State v. Bergstrom (Zachary P.), No. 99347-5
the instruction “knowledge of the requirement of a subsequent personal appearance
before that court” satisfied the “as required” element of bail jumping. 195 Wn. App.
449, 456, 381 P.3d 142 (2016), abrogated on other grounds by State v. Burns, 193
Wn.2d 190, 438 P.3d 1183 (2019). The Court of Appeals reasoned that the phrase
“[a] subsequent court appearance” could mean “‘any’ subsequent court appearance,”
which could have allowed the jury to convict Mr. Bergstrom of bail jumping for any
date, regardless of whether he knew he was required to appear, so long as he knew
of some subsequent court date at the time of his release. Bergstrom, 15 Wn. App. 2d
at 99-100.
The court held that the error was nonetheless harmless in light of the State’s
“uncontroverted evidence” that Mr. Bergstrom actually received notice of the three
court dates. Id. at 100. In an unpublished portion of the opinion, the court reversed
Mr. Bergstrom’s conviction on the first count of bail jumping due to ineffective
assistance of counsel for “failing to offer a jury instruction on the affirmative defense
to bail jumping” in light of Mr. Bergstrom’s hospitalization on January 12, 2018.
Bergstrom, No. 37023-2-III, slip op. (unpublished portion) at 14,
https://www.courts.wa.gov/opinions/pdf/370232_pub.pdf. The court affirmed his
other convictions. Bergstrom, 15 Wn. App. 2d at 94.
The concurrence questioned the majority’s reasoning, stressing that the phrase
“knowingly failed to appear as required” was a vestige of an older version of the bail
9
State v. Bergstrom (Zachary P.), No. 99347-5
jumping statute and that a 2001 amendment explicitly had altered the knowledge
modifier “to reflect proof of knowledge of the need to appear instead of establishing
the mindset behind the failure to appear.” Id. at 100-01 (Korsmo, J., concurring).
The concurrence noted that the WPIC, the to-convict jury instructions, and Hart
were faithful to the version of the bail jumping statute in effect in 2018, and proposed
that the court “merely . . . disagree[d] about the placement of the ‘knowledge’
modifier.” Id. at 101-02 (Korsmo, J., concurring).
The State now requests that this court reverse in part the Court of Appeals to
the extent that it directs all courts to instruct juries on the bail jumping elements as
set forth in State v. Williams, 162 Wn.2d 177, 170 P.3d 30 (2007). 10 Mr. Bergstrom
10
We think it prudent to briefly address the unusual procedural posture of this appeal, where the
State has petitioned for review of a ruling that was ostensibly in its favor. Only “aggrieved” parties
may appeal under RAP 3.1, and parties generally are not considered “aggrieved” by a favorable
decision. Randy Reynolds & Assocs. v. Harmon, 193 Wn.2d 143, 150, 437 P.3d 677 (2019); see
Paich v. N. Pac. Ry. Co., 88 Wash. 163, 165-66, 152 P. 719 (1915) (party not “aggrieved” because
final judgment “afforded respondent all relief it asked and that could possibly have been granted
to it”); see also City of Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 685, 743 P.2d 793 (1987)
(party not aggrieved simply because it would have preferred court to affirm on statutory, as
opposed to constitutional, grounds). However, appeals are permissible “to correct errors
injuriously affecting the appellant.” Elterich v. Arndt, 175 Wash. 562, 564, 27 P.2d 1102 (1933).
Because the Court of Appeals has imposed on the State an improper burden to prove an element
that did not exist in the 2001 bail jumping statute, as discussed infra, the State is “aggrieved”
within the meaning of RAP 3.1. Randy Reynolds & Assocs., 193 Wn.2d at 150 (“‘[f]or a party to
be aggrieved, the decision must . . . impose on a party a burden or obligation’” (first alteration in
original) (quoting In re Parentage of X.T.L., No. 31335-2-III, slip op. at 17 (Wash. Ct. App. Aug.
19, 2014) (unpublished), https://www.courts.wa.gov/opinions/pdf/313352.unp.pdf); Elterich, 175
Wash. at 563 (aggrieved party “has a substantial interest in the subject matter of the litigation”);
see also State v. A.M.R., 147 Wn.2d 91, 95, 51 P.3d 790 (2002) (State was aggrieved under RCW
13.04.033 by erroneous order limiting restitution to victims’ out-of-pocket expenses because of its
“interests in accountability and restitution in juvenile cases.”).
10
State v. Bergstrom (Zachary P.), No. 99347-5
renews his challenges that (1) omitting “as required” from the to-convict jury
instructions was equivalent to omitting an essential element of bail jumping, (2) the
evidence was insufficient to convict on the April 18, 2018 bail jumping charge, 11
and (3) the State did not satisfy its burden to prove that the omission of “as required”
from the to-convict jury instructions was harmless beyond a reasonable doubt with
respect to Mr. Bergstrom’s FTA on May 4, 2018.
ISSUES
1. Were the to-convict jury instructions for Mr. Bergstrom’s bail jumping
charges constitutionally deficient because they omitted the phrase “as required?”
2. Was the evidence sufficient to convict Mr. Bergstrom of bail jumping
on April 18, 2018?
ANALYSIS
I. Sufficiency of the To-Convict Jury Instructions
A. Standard of Review
This court reviews questions of statutory construction as well as the
sufficiency of to-convict jury instructions de novo. State v. Mills, 154 Wn.2d 1, 7,
11
Although initially challenged in his petition for review, Mr. Bergstrom conceded at oral
argument that the evidence was sufficient to convict him of bail jumping on May 4, 2018. Wash.
Supreme Court oral argument, State v. Bergstrom, No. 99347-5 (Sept. 23, 2021), at 20 min., 29
sec., video recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org.
11
State v. Bergstrom (Zachary P.), No. 99347-5
109 P.3d 415 (2005); State v. Roggenkamp, 153 Wn.2d 614, 621, 106 P.3d 196(2005).
B. Elements of the Bail Jumping Statute
The bail jumping statute has undergone three substantive amendments since
its passage in 1975. The chart below illustrates the two amendments relevant to this
petition with their differences underlined.
RCW 9A.76.170 (1983 version) RCW 9A.76.170 (2001 version)
“Any person having been released by “Any person having been released by
court order or admitted to bail with the court order or admitted to bail with
requirement of a subsequent personal knowledge of the requirement of a
appearance before any court of this subsequent personal appearance before
state, and who knowingly fails to any court of this state . . . and who fails
appear as required is guilty of bail to appear . . . as required is guilty of bail
jumping.” jumping.”
During the time period relevant to Bergstrom’s FTAs, September 2017
through May 2018, the 2001 bail jumping statute applied. RCW 10.01.040 (statute
in effect at time of criminal violation applies “unless a contrary intention is expressly
declared in the amendatory . . . act”); State v. Schmidt, 143 Wn.2d 658, 673-74, 23
P.3d 462 (2001) (“it is the law in effect at the time a criminal offense is actually
committed that controls disposition of the case”). A legislative report on the 2001
amendment explained that “[t]he element of knowledge in the crime is changed:
instead of requiring a person to knowingly fail to appear in order to be convicted of
bail jumping, the act requires the person to have knowledge of the requirement to
12
State v. Bergstrom (Zachary P.), No. 99347-5
appear before a court.” FINAL B. REP. ON H.B. 1227, at 2-3, 57th Leg., Reg. Sess.
(Wash. 2001).
Since the 2001 amendment, this court and the Court of Appeals have supplied
conflicting definitions of bail jumping elements. In two opinions, both issued after
the 2001 amendment, this court articulated the elements of bail jumping to include
proof that a defendant knowingly failed to appear. State v. Coucil, 170 Wn.2d 704,
708, 711, 245 P.3d 222 (2010) (holding penalty classification of underlying charge
determines penalty classification of bail jumping offense); Williams, 162 Wn.2d at
184, 188 (holding classification of underlying offense is not essential element of bail
jumping). In the instant case, the Court of Appeals echoed the language in Williams,
despite the fact that Williams relied on an earlier bail jumping case using elements
from the 1983 version of the statute. 162 Wn.2d at 183-84 (quoting State v. Pope,
100 Wn. App. 624, 627, 999 P.2d 51 (2000)). The court directed that all “[t]rial
courts, rather than resorting to the pattern instruction that the jury may
misunderstand, should instruct the jury using the elements as set forth in Williams.”
Bergstrom, 15 Wn. App. 2d at 100 n.1.
No binding authority has yet decided the precise issue on appeal. See In re
Stockwell, 179 Wn.2d 588, 600, 316 P.3d 1007 (2014) (“‘Where the literal words of
a court opinion appear to control an issue, but where the court did not in fact address
or consider the issue, the ruling is not dispositive and may be reexamined without
13
State v. Bergstrom (Zachary P.), No. 99347-5
violating stare decisis in the same court.’” (quoting ETCO, Inc. v. Dep’t of Labor &
Indus., 66 Wn. App. 302, 307, 831 P.2d 1133 (1992))). We find most persuasive
various cases promulgated by Division Two of the Court of Appeals, which have
directly addressed the distinct knowledge modifiers in the 1983 and 2001 versions
of the bail jumping statute and have most consistently defined bail jumping elements
that conform to the 2001 version of the statute. For example, in State v. Carver, the
court compared the 1983 and 2001 knowledge provisions, holding that the State
must prove the defendant “was given notice of his court date—not that he had
knowledge of this date every day thereafter.” 122 Wn. App. 300, 303 & n.1, 306, 93
P.3d 947 (2004) (precluding “I forgot” as defense to bail jumping). Later, in State v.
Cardwell, the court held that “[i]n order to meet the knowledge requirement of the
[bail jumping] statute, the State is required to prove that a defendant has been given
notice of the required court dates.” 155 Wn. App. 41, 47, 226 P.3d 243 (2010),
adhered to on remand, noted at 166 Wn. App. 1011 (2012). Other decisions after
2001 from Division One and Division Two have articulated the essential elements
of bail jumping according to the Cardwell formulation. See State v. Anderson, 3 Wn.
App. 2d 67, 69, 70, 413 P.3d 1065 (2018); State v. Coleman, 155 Wn. App. 951,
964, 231 P.3d 212 (2010); State v. Downing, 122 Wn. App. 185, 192 & n.4, 93 P.3d
900 (2004); see also State v. Gonzalez-Lopez, 132 Wn. App. 622, 629, 638, 132 P.3d
1128 (2006) (despite to-convict instructions at trial using “knowingly failed to
14
State v. Bergstrom (Zachary P.), No. 99347-5
appear as required,” court applied knowledge modifier to subsequent requirement to
appear in its recitation of bail jumping elements).
Further, the plain text of the 2001 version of the bail jumping statute reveals
a legislative intent to require proof that a defendant received notice (i.e., he had
knowledge) of the requirement that he must appear in court at a later date, and not
that it was a knowing FTA. Carver, 122 Wn. App. at 303 & n.1, 306; see State v.
Varga, 151 Wn.2d 179, 191, 194-95, 86 P.3d 139 (2004) (legislature effectively
overrules judiciary by amending statutes and applying them prospectively). The
legislature said as much when the 2001 version of the bail jumping statute was
passed. FINAL B. REP. ON H.B. 1227, at 2-3.
We reject the interpretation of the bail jumping elements proposed by the
Court of Appeals for two reasons. First, the court proposes a literal reading of the
bail jumping statute that would lead to an absurd result—that a defendant could be
convicted even if he did not know he was required to appear in court on a specific
date—and which, in the court’s view, justifies implying the element of “knowingly
failed to appear.” See Bergstrom, 15 Wn. App. 2d at 100; see also State v. Yishmael,
195 Wn.2d 155, 173, 456 P.3d 1172 (2020) (courts may “supplement the statutory
law to define terms or even to articulate implied elements” as necessary). To adhere
to established principles of statutory interpretation, we are reluctant to accept literal
readings with such “strained consequences,” especially when they do not align with
15
State v. Bergstrom (Zachary P.), No. 99347-5
the statute’s purpose and plain meaning of its text. State v. Fjermestad, 114 Wn.2d
828, 835, 791 P.2d 897 (1990). The court’s interpretation denies one such purpose
of the bail jumping statute, RCW 9A.04.020(1)(b), “[t]o safeguard conduct that is
without culpability from condemnation as criminal.” See RCW 9A.04.020(2) (“The
provisions of this title shall be construed according to the fair import of their terms
but when the language is susceptible of differing constructions it shall be interpreted
to further the general purposes stated in this title.”). Second, the court exceeds its
authority by implying an element that expressly contradicts the legislature’s intent
to broaden the knowledge requirement by removing “knowingly failed to appear” in
2001. FINAL B. REP. ON H.B. 1227, at 2-3; see State v. Bradshaw, 152 Wn.2d 528,
534-35, 98 P.3d 1190 (2004) (declining to imply mens rea element found in model
uniform act where legislature deleted that language in possession statute); see also
State v. Blake, 197 Wn.2d 170, 176, 481 P.3d 521 (2021) (“As we have held for
nearly 40 years, ‘if the legislature had intended [a particular mens rea] to be an
element of the crime . . . it would have put the requirement in the act.’” (second
alteration in original) (quoting State v. Cleppe, 96 Wn.2d 373, 380, 635 P.2d 435(1981))). The State cannot be required to prove elements that did not exist at the time
the alleged crime was committed.
16
State v. Bergstrom (Zachary P.), No. 99347-5
C. Sufficiency of the To-Convict Jury Instructions
To satisfy due process, to-convict jury instructions must instruct the jury on
every essential element of the crime. Williams, 162 Wn.2d at 183, 186-87; State v.
Aumick, 126 Wn.2d 422, 429-30, 894 P.2d 1325 (1995). That does not mean,
however, that to-convict jury instructions must present elements verbatim from a
statute; rather, they must “allow counsel to argue their theory of the case, . . . not
[be] misleading, and when read as a whole properly inform the trier of fact of the
applicable law.” Anderson, 3 Wn. App. 2d at 69-70 (quoting State v. Knutz, 161 Wn.
App. 395, 403, 253 P.3d 437 (2011)). The to-convict jury instructions here echoed
the WPIC and 2001 version of the bail jumping statute, but the instructions also, as
Mr. Bergstrom points out, excluded the phrase “as required.” Mr. Bergstrom
considers this equivalent to omitting an essential element. 12 Mr. Bergstrom contends
that this omission allowed the jury to convict based on essentially innocent conduct
(i.e., an FTA without knowledge of the requirement to appear), impermissibly
making bail jumping appear to be a strict liability crime. 13
12
Mr. Bergstrom states that the alleged ambiguity in the statute is exacerbated by use of the text
“a court” instead of “the court.” We disagree. The text “a court” mirrors the bail jumping statute
and WPIC. The to-convict jury instructions provided that the jury had to find that Mr. Bergstrom
had knowledge of the requirement to appear before “that court”; this element conveys that both
the requirement to appear and the FTA relate to the same court.
13
As discussed at oral argument, Mr. Bergstrom does not argue that the bail jumping statute is a
strict liability crime. Wash. Supreme Court oral argument, State v. Bergstrom, No. 99347-5 (Sept.
23, 2021), at 29 min., 54 sec., video recording by TVW, Washington State’s Public Affairs
Network, http://www.tvw.org.
17
State v. Bergstrom (Zachary P.), No. 99347-5
Though the Court of Appeals properly noted that the to-convict jury
instructions could have been clearer, for instance, by reinserting the charged date
after the third element, see Bergstrom, 15 Wn. App. 2d at 100 n.1, they were not
deficient under the 2001 bail jumping statute.
Implicit in the phrase “failed to appear as required” is, first, the understanding
that the parties—the court and Mr. Bergstrom—stipulated that Mr. Bergstrom’s
appearance before the court at a certain date and time was required and, second, that
Mr. Bergstrom did not comply with that stipulation. See WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1929 (2002) (defining “require” to mean “to demand
as necessary or essential (as on general principles or in order to comply with or
satisfy some regulation)” and “to impose a compulsion or command upon”); see also
BLACK’S LAW DICTIONARY 1561 (11th ed. 2019) (defining “requirement” as
“something legally imposed, called for, or demanded; an imperative command”).
The to-convict jury instructions plainly set forth each date upon which Mr.
Bergstrom failed to appear. Specification of these dates served no purpose other than
to establish that Mr. Bergstrom’s presence was, in fact, required on those dates. Had
the dates not been specified, then his argument would be more persuasive that such
an instruction would permit conviction for an FTA on any date regardless of whether
that date was stipulated on a scheduling order, release order, or other form of notice.
However, the date in the to-convict jury instructions established a nexus between
18
State v. Bergstrom (Zachary P.), No. 99347-5
Mr. Bergstrom’s FTA before a court “as required” and his knowledge of the
requirement of his appearance before that court on that required date. See Anderson,
3 Wn. App. 2d at 69-72; see also Bergstrom, 15 Wn. App. 2d at 102 (Korsmo, J.,
concurring).
Accordingly, the to-convict jury instructions encompassed the “as required”
provision, they properly instructed the jury on every essential element of bail
jumping, and were, therefore, constitutionally sound. See Aumick, 126 Wn.2d at 429-
30. Substitution of a specific date for “as required,” an arguably less informative
phrase, did not prevent Mr. Bergstrom from having his day in court, see State v.
Bonner, 53 Wn.2d 575, 587, 335 P.2d 462 (1959); State v. Manussier, 129 Wn.2d
652, 692, 921 P.2d 473 (1996) (Madsen, J., dissenting), nor did it suggest to the jury
that bail jumping is a strict liability crime; the knowledge requirement is unaffected
by specification of the date. The Court of Appeals erred in determining that
“knowingly failed to appear” was an element of the bail jumping statute and in
directing courts to instruct juries according to the elements set forth in Williams.
Because there was no error in the to-convict jury instructions, this court does not
reach Mr. Bergstrom’s harmless error argument relating to his FTA on May 4, 2018.
19
State v. Bergstrom (Zachary P.), No. 99347-5
II. Sufficiency of the Evidence for FTA on April 18, 2018
A. Standard of Review
This court reviews sufficiency of the evidence challenges to determine
whether “any rational trier of fact, viewing the evidence in a light most favorable to
the state, could find the essential elements of the charged crime beyond a reasonable
doubt.” 14 State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). “In
claiming insufficient evidence, the defendant necessarily admits the truth of the
State’s evidence and all reasonable inferences that can be drawn from it.” State v.
Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014). The court defers to the jury on
issues of “conflicting testimony[, credibility of witnesses,] and evaluating the
persuasiveness of the evidence.” Id.; State v. Thomas, 150 Wn.2d 821, 874-75, 83
P.3d 970 (2004).
B. Sufficiency of the Evidence
At the outset, we note that there are certain aspects of Mr. Bergstrom’s case
that prompt concern regarding the judiciary’s role as a fair and impartial body and
14
Though not relevant to our analysis, we note that the Court of Appeals articulated an incorrect
“substantial evidence” standard of review to Mr. Bergstrom’s sufficiency challenge. See
Bergstrom, No. 37023-2-III, slip op. (unpublished portion) at 13. The proper standard is set forth
in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). State v. Vasquez,
178 Wn.2d 1, 6, 309 P.3d 318 (2013) (“We have rejected a substantial evidence standard in
determining the sufficiency of the evidence because it does not require proof beyond a reasonable
doubt.”); State v. Green, 94 Wn.2d 216, 220-21, 222, 616 P.2d 628 (1980) (plurality opinion)
(“The . . . ‘substantial evidence’ rule of review cannot be equated with Jackson’s ‘reasonable
doubt’ rule.”).
20
State v. Bergstrom (Zachary P.), No. 99347-5
its concomitant duty to engender confidence in our legal system. It is critical that our
courts be cognizant of the hardships many people have in accessing our courts, and
it is imperative that our expectations are clear in our court communications and court
orders, especially when dealing with parties experiencing trauma or who are in crisis.
Mr. Bergstrom’s struggles with addiction and homelessness were manifest
throughout this case. In fact, the trial court’s judgment and sentence memorandum
noted that Mr. Bergstrom “has a chemical dependency that has contributed to the
offense(s).” CP at 203, 221.
Mr. Bergstrom alleges that certain ambiguities undermined the sufficiency of
the evidence used to prove that he knew of the April 18, 2018 court date. Mr.
Bergstrom asserts that the April release order, which set the April 18, 2018 court
date, was ambiguous because of provisions that explained that his court time was
“subject to change” and that “Pioneer will advise you of the correct court time.” Ex.
8, at 2. This language was not “equivocal” evidence. Cf. State v. Vasquez, 178 Wn.2d
1, 14, 15, 309 P.3d 318 (2013) (defendant’s admission to possession of forged
documents was equivocal evidence of “intent to injure or defraud”). The April
release order used mandatory language, namely, that Mr. Bergstrom “shall attend
. . . Drug Court review until accepted into the program,” with the caveat that the
precise time of his appearance was “subject to change.” Ex. 8, at 2 (emphasis added).
This language conveyed that Mr. Bergstrom’s acceptance into the program was
21
State v. Bergstrom (Zachary P.), No. 99347-5
contingent only upon his compliance with certain conditions, including appearing
on April 18, 2018. This language does not support the inferences that Mr. Bergstrom
lacked the requisite knowledge that his appearance before the drug court was
mandatory, or that the date of his appearance was “contingent” generally, as he
suggests. Cf. Cardwell, 155 Wn. App. at 47 (defendant’s “obligation to appear was
contingent on the State’s filing criminal charges” within designated time frame).
Based on (1) the fact that the April release order was signed in a space designated
for Mr. Bergstrom, 15 (2) the testimony by a deputy clerk that Mr. Bergstrom was on
the docket for April 18, 2018, and (3) the issuance of a bench warrant on April 18,
2018, the evidence was sufficient to permit any rational jury to find that Mr.
Bergstrom received notice (and thus had knowledge) of the scheduled date and time
of his drug court appearance, to find that the date and time did not change, and to
infer that he received no information that would excuse his appearance. Homan, 181
Wn.2d at 106.
15
Although Mr. Bergstrom emphasized that the signature on the April release order (along with
the signatures on the November scheduling order and February scheduling order) was not
authenticated by any witnesses, he conceded at oral argument that he was not challenging the
admissibility of the order as a certified record pursuant to RCW 5.44.010. Wash. Supreme Court
oral argument, State v. Bergstrom, No. 99347-5 (Sept. 23, 2021), at 25 min., 46 sec., video
recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org. This court
defers to the jury regarding the weight attributable to the April release order. See Homan, 181
Wn.2d at 106. Necessarily, Mr. Bergstrom admits that the April release order was signed in a space
designated for him. Id. Any rational jury could infer that the signature therefore belonged to Mr.
Bergstrom and that he therefore knew of the court dates specified therein. Id.; Longshore, 141
Wn.2d at 420-21.
22
State v. Bergstrom (Zachary P.), No. 99347-5
Our courts should acknowledge that keeping track of multiple court dates and
times, especially when they involve two different court dockets, would be difficult
enough for any sober, housed, and connected individual. Mr. Bergstrom, by his own
admission, met none of those descriptions at the time of his FTAs. Moreover, he
missed the April 18, 2018 court date by arriving a matter of hours, perhaps just
minutes late. See VRP at 208, 241-42. Deputy clerk witnesses testified that “[i]t was
common” for people to arrive late and that “[t]ypically a [new] scheduling order
would be signed, and the order . . . authorizing [a] bench warrant would be shredded,
disposed of.” Id. at 180, 192. Despite the judicial assistant’s message regarding Mr.
Bergstrom’s late arrival on April 18, 2018, it seems Mr. Bergstrom was the victim
of a miscommunication between court employees and, so, did not receive the benefit
of leniency normally accorded late arrivals.
Further, it would not necessarily be clear to an average person that they still
would be required to appear in criminal court (on a date scheduled nearly two months
prior) when they had been assured that the drug court would try to reschedule with
them. See id. at 241-42. 16
16
Although not ultimately relevant to the sufficiency issue, Mr. Bergstrom was penalized again on
May 4, 2018 for apparently failing to keep track of his upcoming court dates, all while he was
homeless, isolated, and struggling with drug addiction. VRP at 244-48.
23
State v. Bergstrom (Zachary P.), No. 99347-5
We have recognized “the disproportionate effect that criminalizing FTAs has
on persons of lower socioeconomic classes.” 17 State v. Slater, 197 Wn.2d 660, 674,
486 P.3d 873 (2021). Likewise, we have noted that the legislature, in its 2020
amendment to the bail jumping statute, began to move away from criminalization by
allowing timely motions to quash to effectively nullify criminal liability for an FTA.
Id.; see RCW 9A.76.170(1)(b)(ii)(A). Mr. Bergstrom did not have the benefit of this
amended language, though it likely could have been a viable option for at least one
(if not all three) of his FTAs. The bail jumping statute may yet be wielded to punish
people who miss court not because of willful disobedience of a court order but by
reasons of indigence, struggles with mental health, homelessness, and drug
addiction. Slater, 197 Wn.2d at 674-76.
Though it ultimately does not change our analysis, we acknowledge that the
“subject to change” and “Pioneer” language in the April release order could have
been confusing. Our courts are capable of implementing simple, yet effective
measures to help avert FTAs, such as featuring more prominently all required court
dates, making explicitly clear that said dates are mandatory unless defendants
receive notice to the contrary, and, in the event of a temporary suspension of
proceedings on one docket (or even the possible appearance of a suspension), issuing
17
Though Mr. Bergstrom notes in his supplemental briefing that the bail jumping statute has a
disproportionate impact on indigent people and people of color, he does not argue that the statute
is unconstitutional on its face or as applied to him.
24
State v. Bergstrom (Zachary P.), No. 99347-5
subsequent notices to confirm that previously scheduled court dates are still in effect.
See, e.g., Crime Lab Finds Behavioral Nudges Improve Court Attendance in NYC,
UCHICAGO NEWS (Jan. 26, 2018), https://news.uchicago.edu/story/crime-lab-finds-
behavioral-nudges-improve-court-attendance-nyc (study in New York City showed
redesigning court summonses to emphasize court date, time, and location, as well as
sending text message reminders, decreased FTA rates by 36 percent)
[https://perma.cc/B4SH-L6BY]. Our courts should be encouraged to help avert court
absences and these attendant financial and emotional costs. See Aleksandrea E.
Johnson, Decriminalizing Non-Appearance in Washington State, 18 SEATTLE J. FOR
SOC. JUST. 433, 468 (2018) (discussing toll of incarceration, warrant enforcement,
fines, and increased hearings for defendants with FTAs).
Mr. Bergstrom’s arguments regarding the ambiguity of the “subject to
change” and Pioneer provisions, the confusing nature of the drug court proceedings,
and his struggles to maintain contact with his attorney, while sympathetic, do not
undercut the State’s evidence that Mr. Bergstrom knew of each of the three court
dates. Mr. Bergstrom did not argue that the signature on the April release order was
not his, nor did he argue that the order failed to provide notice of the April 18, 2018
court date. We affirm the court’s ruling on the sufficiency of the evidence.
25
State v. Bergstrom (Zachary P.), No. 99347-5
CONCLUSION
We affirm the Court of Appeals in part and reverse in part. We affirm that the
evidence was sufficient to convict Mr. Bergstrom of bail jumping on April 18, 2018.
We reverse the Court of Appeals’ holding that the to-convict jury instructions were
constitutionally deficient for failing to require proof of a knowing FTA. The
legislature expressly removed “knowingly failed to appear” as a bail jumping
element in 2001. Because specification of the dates in the to-convict jury instructions
established a nexus between Mr. Bergstrom’s knowledge of the required court dates
and his failure to appear “as required” on those dates, we hold that the to-convict
instructions were constitutionally sound and did not violate Mr. Bergstrom’s due
process rights. Courts are hereby instructed to disregard the directive to include
“knowingly failed to appear” in to-convict jury instructions for offenses falling
under former RCW 9A.76.170 (2001). Because there was no error in the to-convict
instructions, we do not address harmless error.
26
State v. Bergstrom (Zachary P.), No. 99347-5
WE CONCUR.
Johnson, J. - RESULT ONLY
27
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
No. 99347-5
GORDON McCLOUD, J. (concurring)—I fully agree with the majority’s
resolution of the issues presented. I write separately only because I disagree with
its discussion of whether these issues are properly before this court.
The majority asserts that the State was an “aggrieved party” and that we can
therefore reach the issues that it raised. Majority at 10 n.10. I disagree that the
State is an “aggrieved party” on the claims for which it sought review. But we
must address the State’s arguments because they are certainly responsive to
Zachary Bergstrom’s “Answer to Petition for Review and Cross-Petition” (Cross-
Petition) (even though the State’s arguments were filed first).
I. The State was not an “aggrieved party” as to the issues for which it
sought review under RAP 3.1
The Rules of Appellate Procedure state that “[o]nly an aggrieved party may
seek review by the appellate court.” RAP 3.1 (emphasis added).
That rule does not define “aggrieved party.” But this court has long held that
a party is “aggrieved” when the decision adversely affects “‘that party’s property
or pecuniary rights, or a personal right, or impose on a party a burden or
obligation.’” Randy Reynolds & Assocs. v. Harmon, 193 Wn.2d 143, 150, 437 P.3d
677 (2019) (quoting In re Parentage of X.T.L., No. 31335-2-III, slip op. at 17
1
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
(Wash. Ct. App. Aug. 19, 2014) (unpublished),
https://www.courts.wa.gov/opinions/pdf/313352.unp.pdf); State ex rel. Simeon v.
Superior Court, 20 Wn.2d 88, 90, 145 P.2d 1017 (1944).
It is not enough for a party to be “hurt in his feelings” or to be disappointed
in the judgment. Simeon, 20 Wn.2d at 90. Most notably for this case, we have
clearly stated that “[a] party is not aggrieved by a favorable decision and cannot
properly appeal from such a decision.” Randy Reynolds, 193 Wn.2d at 150 (citing
Paich v. N. Pac. Ry. Co., 88 Wash. 163, 165-66, 152 P. 719 (1915)); State v.
Taylor, 150 Wn.2d 599, 603, 80 P.3d 605 (2003). And just as critically, we have
always held that a party is not “aggrieved” merely because that party disagrees
with the reasoning the court used to come to its decision. City of Tacoma v.
Taxpayers of Tacoma, 108 Wn.2d 679, 685, 743 P.2d 793 (1987) (on appeal party
asked court to affirm on statutory grounds not on the constitutional grounds that
the trial court did—party was not “aggrieved”).
I believe that the majority’s footnote 10 departs from these rules. The
majority states that “appeals are permissible ‘to correct errors injuriously affecting
the appellant.’” Majority at 10 n.10 (quoting Elterich v. Arndt, 175 Wash. 562,
564, 27 P.2d 1102 (1933)). The majority reasons that the State was aggrieved in
this case (on the issues on which it sought review) and the State therefore had the
2
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
right to seek review on those issues because the Court of Appeals “imposed on the
State an improper burden to prove an element that did not exist in the 2001 bail
jumping statute.” Id.; former RCW 9A.76.170(1) (2001). In other words, the
majority concludes that the injury to the State was the way that the Court of
Appeals interpreted the 2001 bail jumping statute. See State v. Bergstrom, 15 Wn.
App. 2d 92, 96-100, 474 P.3d 578 (2020) (published in part).
But the appellate court’s discussion of the bail jumping statute was part of an
issue on which the State prevailed. And under our controlling case law, a
prevailing party does not have the right to appeal simply because it dislikes the
way that a court reached its conclusion. Taxpayers, 108 Wn.2d at 685.
To be sure, the majority is correct that the procedural posture of this case is
complicated. Majority at 10 n.10. But as I read the Court of Appeals’ decision, that
court determined that the jury instructions were incorrect but that the error was
harmless—so that court ultimately upheld Bergstrom’s convictions. 1 Bergstrom, 15
Wn. App. 2d at 99-100. That means that the State prevailed in the Court of
1
In the unpublished portion of its decision, the Court of Appeals reversed one of
Bergstrom’s convictions based on ineffective assistance of counsel. Bergstrom, No.
37032-2-III, slip op. (unpublished portion) at 13-14,
https://www.courts.wa.gov/opinions/pdf/370232_pub.pdf. But the State did not seek
review of that decision. Pet. for Review at 1.
3
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
Appeals on all counts which were affirmed but just did not like the route the court
took—harmless error—to reach that decision.
And at the risk of being repetitive, a party is not aggrieved by a favorable
decision or because of disagreement with the reasoning of the court. Randy
Reynolds, 193 Wn.2d at 150; Taxpayers, 108 Wn.2d at 685. These are not the kind
of pecuniary, personal, or property rights that amount to the State being
“aggrieved.” Randy Reynolds, 193 Wn.2d at 150; Elterich, 175 Wash. at 564 (“The
damage or grievance which entitled a party to a writ of error or an appeal, within
this rule, must be a direct and positive one, effected by the judgment concluding
and acting upon his rights; and such damage must be by the record, and not in
consequence of it.”).
The majority’s interpretation of RAP 3.1 therefore expands the rule beyond
its intended scope and far beyond our prior precedent. E.g., Randy Reynolds, 193
Wn.2d at 151 (“A party is not aggrieved by a favorable decision and cannot
properly appeal from it. . . . Inconvenience alone is not sufficient under RAP 3.1.”
(citing Paich, 88 Wash. at 165-66; Elterich, 175 Wash. at 563-64)). I respectfully
disagree with that approach.
4
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
II. Bergstrom was an “aggrieved party,” and the issues that the State raised
should be addressed as responses to the issues presented in Bergstrom’s
cross petition
While the State was not an aggrieved party (within the meaning of RAP 3.1)
as to the claims on which it sought review, Bergstrom certainly was: the Court of
Appeals ruled that the jury instruction was deficient, but it nevertheless affirmed
two of his bail jumping convictions due to harmless error. Bergstrom, 15 Wn. App.
2d at 100. This is clearly the kind of unfavorable decision that causes a party to be
“aggrieved”—Bergstrom’s property, pecuniary, and personal rights are impacted
by this adverse decision. Randy Reynolds, 193 Wn.2d at 150. In other words,
Bergstrom lost.
But after the State filed its petition for review in this court, Bergstrom filed a
cross petition. His cross petition urged this court to overturn the Court of Appeals’
holdings that harmless error saved the convictions on counts III and IV and that
sufficient evidence supported the conviction on count III. Cross-Pet. at 4.
Bergstrom did not address whether the State was an aggrieved party (and of
course, neither did the State). We then granted review of both the petition and the
cross petition, without mentioning the potential RAP 3.1 issue.
The RAPs, however, compel us to pay attention to that detail. My review of
those rules convinces me that the State did not have the right to file its petition for
5
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
review; but the State clearly has the right to respond to the issues presented by
Bergstrom, the aggrieved party. RAP 13.4(d) (detailing procedures for answers and
replies to petitions).
As discussed below, the issues argued by the State can reasonably be
interpreted as a response to Bergstrom’s harmless error argument, even though the
State’s arguments were filed first. I therefore join the majority in concluding that
we should address those issues.
But we should address them under RAP 13.4(d). I do not think we should
expand the definition of “aggrieved” to do so.
A. Bergstrom sought review of both a harmless error issue and a
sufficiency of evidence issue
The first issue that Bergstrom presented was whether the State had shown
that the error in the “to convict” instructions on bail jumping was harmless beyond
a reasonable doubt on counts III and IV. 2 Cross-Pet. at 1. As the majority explains,
the Court of Appeals held that that jury instruction violated due process because it
relieved the State of its burden to prove that “‘Bergstrom knew he was required to
2
The specific issue was framed in Bergstrom’s cross petition: “Constitutional
error requires reversal unless the state can prove harmlessness beyond a reasonable
doubt. Does the giving of a to-convict instruction relieving the state of its Due Process
burden to prove each element of Bail Jumping beyond a reasonable doubt require reversal
of Mr. Bergstrom’s convictions for Counts III and IV when the evidence on the relevant
issue was far from uncontroverted at trial?” Cross-Pet. at 1.
6
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
appear on the dates alleged in the particular counts.’” Majority at 8 (quoting
Bergstrom, 15 Wn. App. 2d at 99). However, the court went on to affirm counts III
and IV of Bergstrom’s conviction because the convictions were supported by
“uncontroverted evidence” that Bergstrom did have knowledge of the specific
court dates. Id. at 100. Bergstrom argued that the “[f]ailure to instruct the jury
regarding a necessary element of an offense is not harmless error unless the court
is able to conclude that the erroneous instruction ‘in no way affected the outcome
of the case’” and that the appellate court erred in drawing that conclusion in this
case. Cross-Pet. at 6 (quoting State v. Smith, 131 Wn.2d 258, 264, 930 P.2d 917(1997)).
The second issue that Bergstrom presented was insufficiency of the evidence
on count III. 3 Id. at 12. Bergstrom argued that the evidence did not support a
finding that Bergstrom was really required to appear on the court date at issue. Id.
at 14-15.
3
The specific issue was framed in Bergstrom’s cross petition: “In order to convict
for bail jumping, the state must prove beyond a reasonable doubt that the accused was
given notice of a required court date and later failed to appear on that date. Did the state
present insufficient evidence to convict Mr. Bergstrom of Count III when the evidence
showed only that a tentative hearing date had been set and that he would be advised of
‘the correct court time’ later?” Cross-Pet. at 1.
7
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
B. The State presented two issues related to how the Court of Appeals
interpreted the jury instructions—these issues relate to Bergstrom’s
harmless error argument
The first issue presented in the State’s petition for review was that the Court
of Appeals’ decision conflicted with a decision of Division Two of the Court of
Appeals: State v. Hart. 4 Pet. for Review at 4. The State explained that Division
Two held that the bail jumping jury instruction did not need to include “as
required” and that the language in the Washington Pattern Jury Instructions:
Criminal (WPIC) 5 sufficed. Id. In contrast, Division Three in Bergstrom’s case
held that the WPIC did need to include that language—and that the failure to
include it relieved the State of the burden of proving that the defendant had
knowledge of the next specific required court date, not just knowledge of “any”
subsequent court appearance. Id. at 5.
4
195 Wn. App. 449, 381 P.3d 142 (2016), abrogated on other grounds by State v.
Burns, 193 Wn.2d 190, 438 P.3d 1183 (2019). The specific issue was framed in the
State’s petition: “Is review appropriate under RAP 13.4(b)(2) where the Bergstrom
decision conflicts with a published decision of another division of the Court of Appeals?”
Pet. for Review at 1.
5
11A WASHINGTON PRACTICE: PATTERN JURY INSTRUCTIONS: CRIMINAL 120.41,
at 570 (4th ed. 2016).
8
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
The State’s second issue is essentially an extension of the first in that it
argues that the split in the two divisions of the Court of Appeals creates a clear
need for statutory interpretation and therefore this case is of substantial public
importance. 6 Id. at 6; RAP 13.4(b)(4) (a substantial public interest is a
consideration that weighs in favor of this court accepting review). The State thus
petitioned for review of the requirements of the bail jumping jury instructions, and
ultimately, the State argues that we should endorse Division Two’s interpretation
of those requirements over Division Three’s. Id. at 9.
I read those arguments—which admittedly were made in a petition for
review that preceded the cross petition—as nevertheless responsive to Bergstrom’s
harmless error arguments. The Court of Appeals held that the jury instructions
were deficient but that Bergstrom’s convictions on counts III and IV survived
because the error was harmless. Bergstrom argued that the error was not harmless.
The State essentially argues that no harmless error analysis is necessary at all
because the jury instructions were correct. The State’s argument is a logical
response to Bergstrom’s harmless error claim.
6
The specific issue was framed in the State’s petition: “Is review appropriate
under RAP 13.4(b)(4) where the decision below involves a matter of statutory
interpretation and the manner in which Washington trial courts should instruct juries on
the elements of bail jumping, both issues of substantial public importance?” Pet. for
Review at 1.
9
State v. Bergstrom (Zachary P.), No. 99347-5
(Gordon McCloud, J., concurring)
For that reason—and that reason alone—this court can address the issues
raised in the State’s petition for review.
III. Conclusion
I agree with the majority’s reasoning and conclusion on the merits of this
case.
I disagree, however, with its expansion of RAP 3.1. The State was not an
aggrieved party, within the meaning of that rule, on the claims for which it sought
review. But Bergstrom was. And Bergstrom raised issues in his cross petition to
which the State’s arguments (in its petition for review) respond. The issues raised
by the State are therefore properly considered by this court under RAP 13.4.
I therefore respectfully concur in all portions of the majority’s opinion, with
the exception of footnote 10.
10