State of Washington v. Shelby Leigh Gibson ( 2020 )

FILED
JANUARY 30, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36185-3-III
)
Petitioner, )
)
v. ) UNPUBLISHED OPINION
)
SHELBY LEIGH GIBSON, )
)
Respondent. )
FEARING, J. — The State appeals the dismissal of a district court citation charging
Shelby Gibson with the crime of assault in the fourth degree without the citation alleging
that Gibson committed the assault with intent. Because the citation also omitted any
allegation as to the underlying acts committed by Gibson, we affirm.
FACTS
On appeal, the parties dispute only the adequacy of the charging document. The
underlying facts of the alleged crime lack relevance.
PROCEDURE
The State of Washington charged Shelby Gibson in district court with one count of
assault in the fourth degree. Stevens County Sheriff Deputy Travis Feldner issued the
citation charging Gibson. The citation alleged that Gibson violated statute “9A.36.041”
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State v. Gibson
and further alleged that Gibson “DID THEN AND THERE COMMIT EACH OF THE
FOLLOWING OFFENSES[:] ASSAULT 4TH DEGREE.” District Court Clerk’s Papers
(DCP) at 6 (capitalization in original).
The district court conducted a jury trial. At the close of Shelby Gibson’s case, she
moved to dismiss the charge because the terse charging document violated her
constitutional rights. Gibson claimed the document did not include all the elements of
assault and, therefore, did not properly inform her of the crime charged. The State
disagreed. In the alternative, the State asked to file a substituted complaint.
The trial court granted the motion to dismiss. In her oral ruling, the district court
stated the reason for finding the citation deficient:
[F]ailure of charging document, in that the state did not file a
substitute complaint prior to resting their case and the citation did not
include an essential element of the crime charge.
DCP at 5. On September 25, 2017, the district court entered findings of fact and
conclusions of law. In conclusion of law 3, the court wrote:
3.9 The criminal citation in the case at hand does not contain any
information regarding the element of assaulting another or of intent and is
constitutionally deficient.
DCP at 4.
The State appealed the dismissal of the charges against Shelby Gibson to the
superior court. The superior court affirmed the district court on the basis that common
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law requires that the citation include the word “intent” and the citation lacked the word.
LAW AND ANALYSIS
On appeal, the State contends that the document charging Shelby Gibson of assault
in the fourth degree did not need to explicitly state the element of “intent” in order to
survive constitutional challenge. The State emphasizes that even laypeople commonly
understand that the term “assault” means an intentional act such that the citation gave
Gibson sufficient notice of the elements of the charge.
Federal and state law require that a defendant know the nature of the crime with
which he or she is charged. The United States Constitution, Amendment VI declares, in
part:
In all criminal prosecutions, the accused shall . . . be informed of the
nature and cause of the accusation.
The Washington Constitution, Article I, section 22 (amendment 10) reads:
In criminal prosecutions the accused shall have the right . . . to
demand the nature and cause of the accusation against him.
Washington State follows the essential elements rule which demands that the
instrument charging a defendant with a crime contains sufficient information regarding
the charges against him or her. The essential elements rule applies to all charging
documents, and, therefore, district court citations must include all essential elements of
the crime charged. Auburn v. Brooke, 119 Wash. 2d 623, 627, 836 P.2d 212 (1992). Under
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State v. Gibson
the rule, a charging document passes constitutional scrutiny only if the document includes
all essential elements of a crime, statutory and nonstatutory, so as to apprise the accused
of the charges against him or her and to allow the defendant to prepare a defense. State v.
Taylor, 140 Wash. 2d 229, 235, 996 P.2d 571 (2000); State v. Vangerpen, 125 Wash. 2d 782,
787, 888 P.2d 1177 (1995). The charging document need not state the statutory elements
of the offense in the precise language employed in the statute, and instead may use words
conveying the same meaning and import as the statutory language. State v. Taylor, 140
Wash. 2d at 235-36.
The State cited Shelby Gibson with fourth degree assault. RCW 9A.36.041
spartanly defines the crime:
(1) A person is guilty of assault in the fourth degree if, under
circumstances not amounting to assault in the first, second, or third degree,
or custodial assault, he or she assaults another.
Because the Washington criminal code does not define the term “assault,” Washington
law borrows from the common law for the word’s definition. State v. Elmi, 166 Wash. 2d
209, 215, 207 P.3d 439 (2009). Washington recognizes three definitions of assault: (1) an
unlawful touching; (2) an attempt with unlawful force to inflict bodily injury on another,
tending to accomplish it; and (3) putting another in apprehension of harm. State v. Elmi,
166 Wash. 2d at 215. Fourth degree assault requires intent. State v. Davis, 119 Wash. 2d 657,
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662, 835 P.2d 1039 (1992). But the State argues that the word “assault” imports the
essential element of an intentional mens rea.
This division of the Court of Appeals applies a liberal standard for reviewing a
charging document after the State rests. State v. Sullivan, 196 Wash. App. 314, 382 P.3d
736 (2016). This standard requires satisfaction of two prongs: (1) do the necessary
elements of the crime appear in any form, or by fair construction can they be found in the
information, and, if so, (2) can the accused nevertheless show he or she suffered actual
prejudice by the unartful language. State v. Kjorsvik, 117 Wash. 2d 93, 105-06, 812 P.2d 86
(1991); State v. Sullivan, 196 Wash. App. 314 at 322-23. Still, if the citation lacks an
express rendering of the charged crime’s elements or if the reader cannot fairly imply the
elements, the court presumes prejudice and dismisses the charges. State v. Sullivan, 196
Wash. App. 314, 323, 382 P.3d 736 (2016).
Another rule grows from the two-prong test. The charging instrument fails to
impart satisfactory notice to the accused if the instrument omits the essential elements of
a crime in such a way that the accused lacks notice of both the illegal conduct and the
crime charged. State v. Taylor, 140 Wash. 2d 229, 236-37, 996 P.2d 571 (2000). We reject
the State’s contention that Shelby Gibson’s citation survives constitutional challenge
because the citation gives no notice of the alleged illegal conduct even though one could
read the crime’s element of intent into the citation.
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Washington courts have held that charges of various degrees of assault need not
include the word “intent” or “intentional.” State v. Taylor, 140 Wash. 2d 229, 996 P.2d 571
(2000); State v. Davis, 119 Wash. 2d 657, 835 P.2d 1039 (1992); State v. Hopper, 118
Wash. 2d 151, 822 P.2d 775 (1992); State v. Chaten, 84 Wash. App. 85, 925 P.2d 631 (1996).
In so holding, the courts adopted the reasoning that the average person understands that
an assault entails intentional action and that dictionaries define “assault” as an intentional
act. The courts rejected the respective defendants’ argument that some degrees of assault
entail unintentional conduct such that the accused needs to know the mens rea of the
assault charged. The courts rested on the consistent interpretation of assault as an
intentional act.
We consider State v. Taylor, 140 Wash. 2d 229, 996 P.2d 571 (2000); State v. Davis,
119 Wash. 2d 657, 835 P.2d 1039 (1992); State v. Hopper, 118 Wash. 2d 151, 822 P.2d 775
(1992); State v. Chaten, 84 Wash. App. 85, 925 P.2d 631 (1996) distinguishable. The
Supreme Court, in State v. Taylor, observed the information alleged that the accused,
Cassandra Taylor, assaulted the victim by “pushing, kicking and punching the victim in
the face.” 140 Wash. 2d at 242. The factual allegations, according to the court, pictured
intentional conduct. Thus, when constructing the information as a whole, the language
gave Taylor notice that the State charged her with an intentional crime. Taylor had filed a
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notice of special defense claiming self-defense, which filing confirmed her knowledge of
being charged with an intentional assault.
In State v. Davis, the State charged Darvil Davis with second and fourth degree
assault. The information charged:
That the defendant Darvil [sic] Davis, in King County, Washington,
on or about August 1, 1988, did assault Darlynn Ferguson;
Contrary to RCW 9A.36.041, and against the peace and dignity of
the state of Washington.
State v. Davis, 119 Wash. 2d at 662 (alteration in original). The high court found the
charging document sufficient. The Supreme Court observed that the information did not
merely include the name of the offense. The information used ordinary and concise
language that Davis “did assault Darlynn Ferguson.” State v. Davis, 119 Wash. 2d at 662.
Davis would understand that assaulting his girlfriend entailed an intentional act.
In State v. Hopper, 118 Wash. 2d 151, 822 P.2d 775 (1992), the State charged Steven
Hopper with second degree assault on a law enforcement officer. The crime requires
proof of use of a dangerous weapon, but lowers the mens rea to “knowingly.” The
information alleged:
That the defendant . . . did assault Officer D. Shelton . . . with a
deadly [sic] weapon, and other instrument or thing likely to produce bodily
harm, to-wit: a flashlight.
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State v. Hopper, 118 Wash. 2d at 154 (alteration in original). The court found the language
in the information demonstrated a sufficient description of the conduct allegedly
committed by the accused.
In all of the Supreme Court decisions, the court ruled that the word "assault"
conveyed the element "intent" in the context of describing the act done by the accused,
not simply by naming the crime charged. Shelby Gibson's citation failed to include any
description of conduct relating to intent or assault of another. The citation did not
identify any victim. The citation did not describe any of the conduct that allegedly
comprised the assault.
CONCLUSION
We affirm the dismissal of the citation against Shelby Gibson.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
I CONCUR:
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KORSMO, J. (dissenting) — The questions presented by this appeal have
previously been answered by our appellate courts. Each reviewing court has found a
different reason to reject the citation filed in this case. Each rationale fails under our case
law. The trial court ruling should be reversed and this case remanded for retrial.
Before turning to those problems, a critical point is to note what all of us agree on.
A charging document filed in this state must contain all of the essential elements of the
crime. E.g., State v. Leach, 113 Wash. 2d 679, 694-695, 782 P.2d 552 (1989). However,
the cases analyzing essential elements challenges frequently turn on the factual
expression of those elements in the particular charging document at issue. That is not a
concern when dealing with cases charged by citation. It is the failure to appreciate the
distinction that leads me to dissent.
The majority opinion recognized the errors made by the lower courts, but created
its own error by relying on cases construing the factual sufficiency of prosecutor-filed
charging documents rather than turning to the cases dealing with the adequacy of
citations. The rules governing citation forms are different from those governing
complaints and informations. By relying on the wrong case law, the majority opinion
needlessly conflicts with multiple opinions.
No. 36185-3-III
State v. Gibson—Dissent
Unlike lawyer-generated charging documents, citations typically are issued by law
enforcement officers. CrRLJ 2.1(b)(1). In order to release someone without need of
booking him or her into jail and an ensuing first court appearance, an officer can issue a
citation that advises the suspect of the charges and secures his/her promise to appear in
court. Id. The benefits of this “catch and release” policy to both the offender and the
court are clear. But one trade-off is that non-lawyers are left the task of charging the
offense and must do so on a court-prescribed form. Id. The Washington Supreme Court
recognized that citation forms need not provide factual descriptions of the conduct
because the offender is at the scene and is knowledgeable about the incident. Leach, 113
Wash. 2d at 694, 698. As stated there:
Complaints must be more detailed since they are issued by a prosecutor
who was not present at the scene . . . . Citations, however, are generally
issued by law enforcement officers who have personal contact with
defendants at the scene. Defendants charged by citation are necessarily
aware of the particular incidents for which officers are charging them.
They presumably know the facts underlying their charges. . . . Differing
procedures and requirements for charging by complaint and by citation and
notice do not violate due process and equal protection rights.
Id. at 698 (italics in original).
The Leach distinction between the factual sufficiency required in a prosecutor-
initiated charging document and the lack of need for factual discussion in a citation has
long been recognized. Auburn v. Brooke, 119 Wash. 2d 623, 633-634, 836 P.2d 212 (1992);
State v. Plano, 67 Wash. App. 674, 676-677, 838 P.2d 1145 (1992). It also continues in the
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rules governing district court charging. The current rule permitting charging by citation
does not require any factual allegations. See CrRLJ 2.1(b)(3). The majority’s decision to
the contrary conflicts with Leach and Brooke and their progeny, as well as with the
current (and former) district court criminal rules.
The superior court in its RALJ appeal review, found that the implied element of
“intent” was omitted from the citation form. The majority correctly rejects this argument.
The word “assault” conveys the intent element. State v. Davis, 119 Wash. 2d 657, 663, 835
P.2d 1039 (1992); State v. Hopper, 118 Wash. 2d 151, 158, 822 P.2d 775 (1992).
The district court judge, while also asserting that “intent” was missing from the
citation, primarily relied on the absence of the purported element that the defendant
assaults “another.” The majority likewise includes this missing “element” in its
conclusion. However, this court previously rejected that argument in Plano. There the
defendant argued that the identity of the victim was an essential element of a citation. 67
Wash. App. at 675. In a per curiam opinion, this court disagreed, ultimately concluding
that the defendant had “failed to persuade this court that the name of the alleged victim is
a statutory element of the crime of assault in the fourth degree.” Id. at 679. The
majority’s opinion directly conflicts with Plano on this point.
The victim’s name is merely the expression of the statutory phrase “assaults
another” and is the object of the transitive verb, “assault.” If, as the district court judge
reasoned, “another” was an essential element of assault, then Plano is incorrect because
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either “another” or the name of the other person needed to be included in the citation to
fulfill that function. But, as Leach and Plano teach, factual allegations need not be
included in a citation. The district court judge, however, was required to follow Plano
and the majority ought to at least explain why it is not doing so if it intends to change the
law governing citations.
While I am probably more nostalgic than most people, I cannot claim that this
unnecessary detour into 1980s district court charging document history has been an
enjoyable return to my youth. More on point is George Santayana’s observation that
those “who cannot remember the past are doomed to repeat it.” GEORGE SANTAYANA,
THE LIFE OF REASON: REASON IN COMMON SENSE 284 (1905).
I fear that is what happened here. Fourth degree assault is one of the few criminal
offenses that can be properly charged by citation on the forms prescribed by our court.
Since nearly every other misdemeanor offense must be charged by complaint, prosecutors
typically supersede citations with complaints once they become involved in a case. It is
best practice to do so in all cases in order to avoid having to respond to requests for bills
of particular, CrRLJ 2.4(e), and to hone a case for trial. That should have been done here
once the judge inquired about whether the case was proceeding under the citation, if for
no reason other than to have avoided multiple layers of appeal.
However, that practice was not followed here and did not need to be. “Fourth
degree assault” properly alleges the essential elements of that crime when charged by
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citation since no factual statement is needed. The majority's opinion conflicts with
Leach, 113 Wash. 2d 679, Brooke, 119 Wash. 2d 623 and Plano, 67 Wash. App. 674, as well as
with other cases following those. Accordingly, I dissent.
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