State Of Washington v. Justin Seabolt ( 2014 )

COURT OF APPEALS
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IN THE COURT OF APPEALS OF THE STATE OF WAs T °° GTL N
DIVISION II' ``-
TY
STATE OF WASHINGTON, No. 44665 -1 - II
Respondent, UNPUBLISHED OPINION
v.
JUSTIN J. SEABOLT,
Appellant.
BJORGEN, J.— Justin Seabolt appeals from his conviction for bail jumping and from the
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sentence the trial court imposed. He argues that the trial court ( 1) erred in the to- convict .
instruction it gave and (2) made a scrivener' s error as to a term of community custody. The State
concedes the second error. We affirm Seabolt' s conviction and remand for correction of his
sentence. 2
On August 30, 2012, the State charged Seabolt with unlawful possession of
methamphetamine. Seabolt was present in court for a pretrial hearing on November 20, 2012,
and was given notice of another hearing set for December 10, 2012. He did not appear in the
courtroom on December 10, 2012. The State amended its information to add a charge of bail
jumping. As to the bail jumping charge, the State proposed the following instructions:
Possession of a Controlled Substance ( methamphetamine) is a class B or
class C felony.
To convict the defendant of the crime of Bail Jumping as charged in Count
II, each of the following elements of the crime must be proved beyond a
reasonable doubt-
1
He does not appeal from his conviction for unlawful possession of methamphetamine.
2
A commissioner of this court initially considered Seabolt' s appeal as a motion on the merits
under RAP 18. 14 and then transferred it to a panel of judges.
No. 44665 -1 - II
1) That on or about December 10, 2012, the defendant failed to appear before
a court;
2) That the defendant was charged with a class B or class C felony;
3) That the defendant had been released by court order with knowledge of the
requirement of a subsequent personal appearance before that court; and
4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty to
return a verdict of not guilty.
Clerk' s Papers ( CP) at 47 -48 ( footnotes omitted).
Seabolt did not object to the to- convict instruction, but he did object to a State' s motion
in limine for the trial court to take judicial notice that unlawful possession of methamphetamine
is a class B or class C felony. The court did not grant the motion in limine but did give the
State' s proposed instructions.
The jury found Seabolt guilty as charged. The trial court imposed concurrent 6 -month
terms of confinement, to be served in the Kitsap County Jail. It also checked a box ordering
Seabolt, as an offender " sentenced to the custody of f]
D[ epartment] 0 [ C[ orrections] ( total term
of confinement 12+ months or more)" t1 months of community custody CP at 98:
First, Seabolt argues that the trial court erred in giving the to- convict instruction as to the
bail jumping charge.3 He contends that the classification of the underlying crime for which he
had been charged is not an essential element of the crime of bail jumping, but that the particular
underlying crime is an essential element of the crime of bail jumping. State v. Williams, 162
Wash. 2d 177, 183 -85, 170 P.3d 30 ( 2007); State v. Pope, 100 Wash. App. 624, 627, 999 P.2d 51
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The failure to include an essential element of a crime in a to- convict instruction is an error that
can be raised for the first time on appeal. State v. Mills, 154 Wash. 2d 1, 6, 109 P.3d 415 ( 2005).
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No. 44665 -1 - II
2000). Because the to- convict instruction did not contain the essential element of requiring the
jury to find that he had been charged with the underlying crime of unlawful possession of
controlled substances, Seabolt contends that his conviction must be reversed. The State responds
that Williams and Pope are distinguishable and that having the jury find that the underlying
crime is a class B or class C felony is sufficient.
In Williams, the bail jumping to- convict instruction required the jury to find that the
defendant had been charged with possession of a controlled substance but did not require the jury
to find that that crime was a class B or class C felony. 162 Wash. 2d at 186 -87. The Washington
State Supreme Court held that while the classification of the crime was relevant to the
punishment to be imposed upon a conviction for bail jumping, the classification of the crime was
not an essential element of the crime of bail jumping, such that it needed to be included in the to-
convict instruction. Williams, 162 Wash. 2d at 188. It held that " a simple identification of the
alleged crime is sufficient." Williams, 162 Wash. 2d at 188.
In Pope, the bail jumping to- convict instruction required the jury to find that the
defendant was under " the requirement of a subsequent personal appearance before that court
regarding a felony matter" but did not further define the term " a felony matter." 100 Wash. App.
at 629 ( emphasis in original). This court held that an essential element of the crime of bail
jumping " is that the defendant was held for, charged with, or convicted of a particular crime" and
that reference to " a felony matter" was insufficient. Pope, 100 Wash. App. at 629 -30.
Read together, it appears that Williams and Pope make the specification of the underlying
alleged crime an essential element of the crime of bail jumping. As such, the court erred in
instructing Seabolt' s jury that it need only find that he had been charged with a class B or class C
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No. 44665 -1 - II
felony. But we conclude that the error is harmless. A constitutional error is harmless when it
appears beyond a reasonable doubt that the alleged error did not contribute to the verdict. State
v. Brown, 147 Wash. 2d 330, 341, 58 P.3d 889 ( 2002). The omission of an essential element from a
to- convict instruction is harmless if the element is supported by uncontroverted evidence.
Brown, 147 Wash. 2d at 347. Here, the bail jumping to- convict instruction required the jury to find
that Seabolt had been charged with a class B or class C felony. A separate instruction informed
the jury that possession of controlled substances ( methamphetamine) is a class B or class C
felony. No evidence was presented as to any other controlled substance or any other class B or
class C felony. In order to convict Seabolt of bail jumping, the jury necessarily had to find
beyond a reasonable doubt that he had been charged with a class B or class C felony and that the
particular class B or class C felony was possession of methamphetamine. Any error in the to-
convict instruction in omitting the particular crime Seabolt was charged with was harmless.
Second, Seabolt argues that the trial court committed a scrivener' s error by checking the
box that ordered him to serve a 12 -month term of community custody because he had been
sentenced to serve 12 or more months in the Department of Corrections, when in fact he had
been sentenced to serve only 6 months in the Kitsap County Jail. The State concedes that the
court checked the incorrect box. We accept the State' s concession and remand for correction of
the scrivener' s error.
We affirm Seabolt' s conviction but remand for correction of his sentence.
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No. 44665 -1 - II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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