Opinion
No. 64678-8-I.
Filed: March 14, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-1-04444-5, Regina S. Cahan, J., entered December 21, 2009.
Affirmed by unpublished opinion per Becker, J., concurred in by Dwyer, C.J., and Ellington, J.
Darren John Elkey was convicted of felony telephone harassment. For the first time on appeal, he challenges the sufficiency of the charging document, arguing that it did not inform him that the element of the intent to harass must occur at the initiation of the phone call. Because a commonsense reading of the charging document necessarily implies that the intent must be formed at the initiation of the call, we affirm.
According to a police report, Elkey called a woman with whom he had an on-and-off dating relationship and left a number of threatening voice mails. The State charged Elkey with felony telephone harassment — domestic violence.
The relevant portion of the telephone harassment statute provides that "Every person who, with intent to harass, intimidate, torment or embarrass any other person, shall make a telephone call to such other person . . . threatening to inflict injury on the person or property of the person called or any member of his or her family or household . . . is guilty." RCW 9.61.230(1)(c).
The information filed against Elkey was consistent with the statutory language:
That the defendant DARREN JOHN ELKEY in King County, Washington, on or about June 10, 2009, with intent to harass, intimidate, and torment another person, did make a telephone call to Kelley Gabryshak-Reyes, threatening to inflict injury on the person or property of Kelley Gabryshak-Reyes, or to any member of that person's family or household; and the defendant had previously been convicted of Assault in the 4th Degree, a crime of harassment as defined in RCW 9A.46.060, with the same victim or member of the victim's family or household.
(Emphasis added.) The crime of telephone harassment requires proof that the defendant formed the intent to harass the victim at the time the defendant initiates the call to the victim. State v. Lilyblad, 163 Wn.2d 1, 13, 177 P.3d 686 (2008). Elkey argues the information is deficient because it did not explicitly state the requirement that the intent be formed at the initiation of the telephone call.
Because Elkey challenges the sufficiency of the charging document for the first time on appeal, we construe it liberally in favor of validity. State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). Under the first prong of the Kjorsvik test, we ask if the necessary elements appear in any form, or can by fair construction be found, in the charging document. Kjorsvik, 117 Wn.2d at 105-06. Words in a charging document are read as a whole, construed according to common sense, and include facts which are necessarily implied. Failure to use the exact words of a case law element is not fatal so long as the words used would reasonably apprise an accused of the essential elements of the charge. Kjorsvik, 117 Wn.2d at 109.
As our Supreme Court reasoned in Lilyblad, the telephone harassment statute is unambiguous and under a plain reading of the statute, the intent must be formed at the initiation of the phone call. Lilyblad, 163 Wn.2d at 6, 12. In making this determination, the court found important the order of the statutory language:
The statutory language supports this conclusion. The subordinate clause "with intent to harass, intimidate, torment or embarrass any other person" is inserted between, and completes the meaning of, the main clause "[e]very person who . . . shall make a telephone call to such other person." RCW 9.61.230(1). The conduct of making a telephone call, therefore, must include the intent to harass.
Lilyblad, 163 Wn.2d at 9 (alternations in original). The charge against Elkey contains language virtually identical to the statute and in the same order. It follows that the charge adequately informs a reader who has common sense that the intent must be formed at the initiation of the phone call. See State v. Meneses, 169 Wn.2d 586, 592 n. 2, 238 P.3d 495 (2010) ("No magic words encapsulating Lilyblad's mens rea requirement are necessary, so long as the instructions as a whole apprise the jury of it."); State v. Sloan, 149 Wn. App. 736, 741, 205 P.3d 172, review denied, 220 P.3d 783 (2009).
We conclude the information adequately set forth the requirement that Elkey formed the intent to harass at the time he initiated the call.
Affirmed.