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State v. Hitchcock

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1041 (Wash. Ct. App. 2007)

Opinion

No. 55695-9-I.

March 19, 2007.

Appeal from a judgment of the Superior Court for Whatcom County, No. 03-1-00205-7, Charles R. Snyder, J., entered January 20, 2005.

Counsel for Appellant(s), Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA.

Counsel for Respondent(s), Royce Scott Buckingham, Attorney at Law, Whatcom Co Prosc Atty Ofc, 311 Grand Ave, Bellingham, WA.

Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA.


Reversed by unpublished per curiam opinion.


The law of the case doctrine does not apply to an issue that this court did not consider in an appeal before remand. When an information charging felony harassment fails to include the essential element that the victim was in reasonable fear, the resulting conviction must be reversed and dismissed without prejudice. Because the information in this case lacked the reasonable fear element, we reverse William Hitchcock's conviction and dismiss without prejudice.

FACTS

After an argument with his father, William Hitchcock kicked in the door of his parents' house and broke the headlamps of his father's vehicle. Hitchcock's mother called the police, who arrested Hitchcock for malicious mischief. In the police car on the way to the police station, Hitchcock said that as soon as he got out of jail, he was going to go straight back to his parents' house and deal with his father once and for all. Hitchcock also said that he was going to put a bullet in his father's brain. The police officer relayed these statements to Hitchcock's father, who expressed concern about what Hitchcock might do when he got out, and said that his son had never threatened to kill him before and that the threats should be taken seriously. The State charged Hitchcock with one count of malicious mischief and one count of harassment. After a stipulated facts trial, the court found Hitchcock guilty as charged. Hitchcock appeals.

RAISING VALIDITY OF INFORMATION FOR FIRST TIME ON APPEAL

For the first time in this, his second appeal, Hitchcock raises the issue of the adequacy of the information to set out all the essential elements of harassment. The State argues that the law of the case doctrine precludes Hitchcock from raising this issue now because he did not raise it earlier.

"In its most common form, the law of the case doctrine stands for the proposition that once there is an appellate holding enunciating a principle of law, that holding will be followed in subsequent stages of the same litigation." Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005), rev. denied 155 Wn.2d 1002 (2005). RAP 2.5(c) formalized several restrictions on the doctrine, stating that

[t]he appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review.

"By using the term `may,' RAP 2.5(c) is written in discretionary, rather than mandatory, terms [and] [t]he plain language of the rule affords appellate courts discretion in its application." Roberson, 156 Wn.2d at 41-42. (citation omitted.)

Because there has been no ruling on this issue in this case for this court to follow, and because the issue involves a constitutional right, justice would best be served by considering in this second appeal the issue of Hitchcock's right to be informed of the essential elements of the charged crime, we conclude that the law of the case doctrine does not preclude us from addressing the issue.

SUFFICIENCY OF INFORMATION

Hitchcock contends that the information failed to include the essential elements that the threat was a true threat and that the victim was in reasonable fear that the threat would be carried out. In order to be constitutionally sufficient, an information must include all the essential elements of the crime charged, both statutory and nonstatutory. State v. Kjorsvik, 117 Wn.2d 93, 97-98, 812 P.2d 86 (1991). When a defendant challenges an information for the first time on appeal, we construe it more liberally in favor of validity than a court considering the issue in a challenge at trial. Kjorsvik, 117 Wn.2d at 102.

The State concedes and we agree that the information was deficient because it failed to include the element that the victim was in reasonable fear that the threat to kill would be carried out. Reasonable fear is an essential element of felony harassment. State v. Mills, 154 Wn.2d 1, 109 P.3d 415 (2005) The information failed to allege any facts indicating that Hitchcock's father was in reasonable fear that Hitchcock would carry out his threat, and nothing in the information allows us to fairly imply such facts. Accordingly, we reverse and dismiss without prejudice. It is not necessary to reach Hitchcock's other arguments.

CONCLUSION

Reversed and dismissed without prejudice.


Summaries of

State v. Hitchcock

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1041 (Wash. Ct. App. 2007)
Case details for

State v. Hitchcock

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. WILLIAM A. HITCHCOCK, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 19, 2007

Citations

137 Wn. App. 1041 (Wash. Ct. App. 2007)
137 Wash. App. 1041