State v. Hickman , 135 Wash. 2d 97 ( 1998 )

Sanders, J.

We review a Court of Appeals decision affirming petitioner’s conviction for insurance fraud. The issue is whether venue of the crime becomes an element for the State to prove under the “law of the case” doctrine when it is given to the jury without objection in the “to convict” instruction, and if so, whether the State proved venue here.

We conclude elements in the “to convict” instruction not objected to become the “law of the case” which the State must prove beyond a reasonable doubt to prevail. By acquiescing to jury instructions which included venue as a necessary element to convict, even though it really is not an element, the State assumed the burden of proving venue; it however failed to do so. The conviction is reversed and the charges are dismissed with prejudice.

Facts

James D. Hickman was tried for insurance fraud¹ in Snohomish County Superior Court. The information charged Hickman with presenting, or causing to be presented, in Snohomish County, a false or fraudulent insurance claim.

Trial testimony reveals that 23-year-old Hickman purchased an expensive 1990 Ford Mustang following high school graduation. Some time thereafter Hickman moved to Hawaii and left the car in Washington with a friend. The location where Hickman left the car was not adduced at trial.

After Hickman had been in Hawaii for some time, two acquaintances from Washington contacted him while vacationing there and proposed they fake a theft of Hickman’s car for financial gain. According to these individuals, who traded immunity for testimony, Hickman finally agreed to have them “steal” his car. After their return they “stole” the car and sold it for parts. Hickman’s friend who was caring for the car called the police to report the car stolen. Hickman called his insurance company, located in Kent, King County, Washington, from Hawaii to file a claim on his car. The insurance company paid the balance on the loan.

While the trial was held in Snohomish County, the only two references to Snohomish County were made by the Snohomish County Sheriff, who testified that he received a call reporting the car stolen “off Logan Road” without specification as to the Logan Road location, and by the sheriff’s deputy who testified he located the stripped car hulk on a rural road in Snohomish County. That was the extent of the evidence regarding Snohomish County. With that, the State charged Hickman by information with committing the crime of insurance fraud “in Snohomish County, Washington” (Clerk’s Papers (CP) at 55), and agreed to jury instructions which required Snohomish County venue to be proved as an element of the crime.

The to convict instruction provided:

To convict the defendant of the crime of Insurance Fraud, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That the defendant, James Hickman, on or about the 1st day of July, 1992, to the 31st of August, 1992, did knowingly present or cause to be presented a false or fraudulent claim or any proof in support of such a claim, for the payment of a loss under a contract of insurance; and

(2) That the false or fraudulent claim was made in the excess of One Thousand Five Hundred Dollars ($1,500); and

(3) That the act occurred in Snohomish County, Washington.

CP at 33 (Instruction No. 6) (emphasis added).

Following deliberations the jury returned a guilty verdict. At sentencing the court imposed 80 hours’ community service and 12 months’ community supervision with restitution to follow.

Hickman appealed, arguing the State assumed the burden to prove Snohomish County venue but failed to do so. The Court of Appeals rejected Hickman’s claim and affirmed. State v. Hickman, 84 Wn. App. 646, 929 P.2d 1155 (1997). We granted review. State v. Hickman, 132 Wn.2d 1006, 940 P.2d 653 (1997).

Law of the Case

The law of the case is an established doctrine with roots reaching back to the earliest days of statehood.² Under the doctrine jury instructions not objected to become the law of the case. State v. Hames, 74 Wn.2d 721, 725, 446 P.2d 344 (1968) (“ ‘The foregoing instructions were not excepted to and therefore, became the law of the case.’ ”) (quoting State v. Leohner, 69 Wn.2d 131, 134, 417 P.2d 368 (1966)); State v. Salas, 127 Wn.2d 173, 182, 897 P.2d 1246 (1995) (“[I]f no exception is taken to jury instructions, those instructions become the law of the case.”). In criminal cases, the State assumes the burden of proving otherwise unnecessary elements of the offense when such added elements are included without objection in the “to convict” instruction. State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 (1995) (“Added elements become the law of the case . . . when they are included in instructions to the jury.”) (citing State v. Hobbs, 71 Wn. App. 419, 423, 859 P.2d 73 (1993); State v. Rivas, 49 Wn. App. 677, 683, 746 P.2d 312 (1987)). See also State v. Barringer, 32 Wn. App. 882, 887-88, 650 P.2d 1129 (1982) (“Although the charging statute . . . did not require reference to [the added element], by including that reference in the information and in the instructions, it became the law of the case and the State had the burden of proving it.”) (citing State v. Worland, 20 Wn. App. 559, 565-66, 582 P.2d 539 (1978)), overruled in part on other grounds by State v. Monson, 113 Wn.2d 833, 849-50, 784 P.2d 485 (1989).

On appeal, a defendant may assign error to elements added under the law of the case doctrine. State v. Ng, 110 Wn.2d 32, 39, 750 P.2d 632 (1988) (because the State failed to object to the jury instructions they “are the law of the case and we will consider error predicated on them.” (citations omitted)). Such assignment of error may include a challenge to the sufficiency of evidence of the added element. Barringer, 32 Wn. App. at 887-88; Schatz v. Heimbigner, 82 Wash. 589, 590, 144 P. 901 (1914) (“These alleged errors are not available to the appellants, because they are at cross purposes with the instructions of the court to which no error has been assigned. There is but one question open to them; that is, Is there sufficient evidence to sustain the verdict under the instructions of the court?”); Tonkovich v. Department of Labor & Indus., 31 Wn.2d 220, 225, 195 P.2d 638 (1948) (“It is the approved rule in this state that the parties are bound by the law laid down by the court in its instructions where, as here, the charge is approved by counsel for each party, no objections or exceptions thereto having been made at any stage. In such case, the sufficiency of the evidence to sustain the verdict is to be determined by the application of the instructions ”) ³

When determining whether there is sufficient evidence to prove the added element, the reviewing court inquires “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). If the reviewing court finds insufficient evidence to prove the added element, reversal is required. Lee, 128 Wn.2d at 164; Hobbs, 71 Wn. App. at 425. Retrial following reversal for insufficient evidence is “unequivocally prohibited” and dismissal is the remedy. State v. Hardesty, 129 Wn.2d 303, 309, 915 P.2d 1080 (1996) (“The double jeopardy clause of the Fifth Amendment to the U.S. Constitution protects against a second prosecution for the same offense, after acquittal, conviction, or a reversal for lack of sufficient evidence.”) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)).

Hickman relies on State v. Hobbs, 71 Wn. App. 419, 423, 859 P.2d 73 (1993) as dispositive in his favor. In Hobbs the State acquiesced to adding venue of the crime as an added element in the “to convict” instruction. Id. at 420. The court applied the law of the case doctrine and concluded that while “[vjenue is not an element of the crime,” once it is given to the jury as an instruction it becomes an added element which “the State assumes the burden of proving.” Id. at 423 (citing State v. Worland, 20 Wn. App. 559, 566, 582 P.2d 539 (1978); State v. Hawthorne, 48 Wn. App. 23, 27, 737 P.2d 717 (1987)). Because the State failed to prove venue, defendant’s conviction was reversed.⁴

The same division of the Court of Appeals which decided Hobbs now declines to follow that ruling, concluding this court rejected Hobbs in State v. Dent, 123 Wn.2d 467, 869 P.2d 392 (1994). Hickman, 84 Wn. App. at 653. But we did not and Hobbs remains good law.⁵ In Dent, defendants were convicted of conspiring to commit first degree murder. On appeal they argued venue of the crime should have been included as an element in the “to convict” instruction. Dent, 123 Wn.2d at 479. We simply held while the state constitution requires trial in the county where the crime was committed,⁶ venue is not an element of the offense. Id.’’ We then noted defendants’ failure to request the desired instruction or object to those actually given waives any objection on appeal as “[i]t is elementary that timely exceptions [to proposed jury instructions], before the reading of the instructions to the jury, are necessary . . . Id.⁷ We concluded that because venue was not requested by the defendant, and because it is not otherwise a necessary element of murder, there was no error. Id. at 478-79.

Dent enunciated two rules: (1) venue is not a necessary element of conspiracy to commit murder; and (2) the parties will be bound by the instructions given at trial unless they timely object at trial. Dent is in harmony with Hobbs and all precedent on the law of the case doctrine. Indeed, Dent upholds law of the case by stressing that the parties must object to jury instructions before they are given on penalty of forfeiture of such objection. We hold the law of the case applies with equal force when the added element is venue.

The State asks, in the alternative, the law of the case doctrine be abandoned. However, we note the law of the case doctrine benefits the system by encouraging trial counsel to review all jury instructions to ensure their propriety before the instructions are given to the jury. Moreover, the doctrine is well established by multiple precedent and is encapsulated in criminal rule CrR 6.15(c), which requires all objections to jury instructions be made before the instructions are given to the jury. The State’s offer is one we can refuse.

Here the State acquiesced to jury instructions which included venue as an additional element. Accordingly, venue became an element for the State to prove in order to prevail. The doctrine applies here and the Court of Appeals erred by not so recognizing.

The only remaining question is whether the State proved the added element of venue. Insurance fraud is defined as to “knowingly present or cause to be presented a false or fraudulent claim . . . .” CP at 33 (Jury Instruction No. 6). Thus, the inquiry is whether the State offered sufficient evidence that Hickman presented or caused to be presented a false insurance claim in Snohomish County. When Hickman allegedly called his insurance company to submit the fraudulent claim, he was in Hawaii while his insurance company was in King County. The relevant reference to Snohomish County was the Snohomish County Sheriffs testimony that he had been called, following the theft of the vehicle, to an address “off Logan Road.” Even assuming Logan Road is somewhere in Snohomish County and only in Snohomish County, such evidence simply does not demonstrate Hickman knowingly presented or caused to be presented a fraudulent insurance claim in Snohomish County. We reverse and dismiss.

Smith, Johnson, Madsen, and Alexander, JJ., concur.

1 RCW 48.30.230, making insurance fraud a crime, provides:

Any person, who, knowing it to be such:

(1) Presents, or causes to be presented, a false or fraudulent claim, or any proof in support of such a claim, for the payment of a loss under a contract of insurance; or

(2) Prepares, makes, or subscribes any false or fraudulent account, certificate, affidavit, or proof of loss, or other document or writing, with intent that it be presented or used in support of such a claim, is guilty of a gross misdemeanor, or if such claim is in excess of one thousand five hundred dollars, of a class C felony.

2 In 1896, this court held “whether the instruction in question was rightfully or wrongfully given, it was binding and conclusive upon the jury, and constitutes upon this hearing the law of the case . . . .” Pepperall v. City Park Transit Co., 15 Wash. 176, 180, 45 P. 743, 46 P. 407 (1896). In 1917, this court declared the law of the case doctrine to be “so well established that the assembling of the cases is unnecessary.” Peters v. Union Gap Irrig. Dist., 98 Wash. 412, 413, 167 P. 1085 (1917).

3 The State asserts that Hickman may not challenge sufficiency of the evidence for the first time on appeal. This argument is without merit. Appeal is the first time sufficiency of evidence may realistically be raised. Further, this court has recently affirmed that a defendant may raise sufficiency of the evidence for the first time on appeal. State v. Alvarez, 128 Wn.2d 1, 9, 904 P.2d 754 (1995).

4 interestingly, the court in Hobbs reversed for insufficient evidence and then remanded for retrial. 71 Wn. App. at 425. Defendant did not seek review of the remand order, and it remains to be explained how a court can, consistent with Hardesty, reverse for insufficient evidence and not dismiss.

5 indeed, in State v. Lee, a unanimous opinion issued one year after Dent, this court relied on Hobbs in upholding law of the case. State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 (1995) (“Added elements become the law of the case . . . when they are included in instructions to the jury.”) (citing Hobbs, 71 Wn. App. at 423).

6 Constitution article I, section 22 (amendment 10) provides the defendant the right “to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed . . .

7 (Citing State v. Marino, 100 Wn.2d 719, 727, 674 P.2d 171 (1984) (“ ‘The venue must be proved by the plaintiff but it need not be proved beyond a reasonable doubt; it is sufficient if venue can be reasonably inferred from the facts and circumstances ....’” (quoting 11 Washington Pattern Jury Instructions: Criminal 4.21 cmt.)).