Opinion
No. 37423-4-II.
May 5, 2009.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-8-00233-2, Tracy Loiacono Mitchell, J. Pro Tem., entered February 12, 2008.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ.
UNPUBLISHED OPINION
I.A.O. appeals his custodial assault conviction adjudicated by the Lewis County juvenile court on February 12, 2008, a little less than one month before he turned 18. He argues that the information failed to allege that the victim was performing official duties at the time of the assault, an essential element of RCW 9A.36.100(1)(a). The State concedes that the information failed to allege this essential element and was constitutionally defective. We accept the State's concession, reverse I.A.O.'s custodial assault conviction and remand to the superior court with directions that it dismiss the charge without prejudice.
DISCUSSION
On September 7, 2007, I.A.O. was an inmate at Green Hill School, a juvenile corrections facility, working in the central kitchen. When security officer Brad Browning ordered I.A.O. to return to his cell for not following orders, an altercation ensued. The State charged I.A.O. with custodial assault in violation of RCW 9A.36.100(1)(a) as follows:
The respondent, [I.A.O.], in Lewis County, State of Washington, on or about September 7, 2007, did intentionally assault a staff member at Green Hill Training School, a juvenile corrections institution, to-wit: did assault Bradley Browning, a staff member of Green Hill School, contrary to RCW 9A.36.100(1)(a) and against the peace and dignity of the State of Washington.
Clerks Papers at 27.
The Lewis County juvenile court found I.A.O. guilty as charged.
I.A.O. appeals this conviction, arguing that the charging document was defective because it failed to allege that Browning was performing his official duties at the time of the assault, an essential element of the crime of custodial assault, and that he is entitled to vacation of his conviction and dismissal of the charge without prejudice. We agree.
I.A.O. raises his challenge to the sufficiency of the information for the first time on appeal, arguing that the information was constitutionally deficient because it did not give him proper notice of the essential elements of the offense with which he was charged, a requirement under both the state and federal constitutions. Although I.A.O. did not challenge the sufficiency of the information below, such error is a manifest error of constitutional magnitude that may be raised for the first time on appeal. RAP 2.5(a); State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991).
The charging document or information must contain all essential elements of a crime. Kjorsvik, 117 Wn.2d at 101.
Under RCW 9A.36.100(1)(a), a person is guilty of custodial assault when he "[a]ssaults a full or part-time staff member or volunteer, any educational personnel, any personal service provider, or any vendor or agent thereof at any juvenile corrections institution or local juvenile detention facilities who was performing official duties at the time of the assault" (emphasis added).
If, as here, the constitutionality of a charging document is challenged after verdict, we construe it liberally, asking whether (1) the necessary facts appear in any form or, by fair construction, can they be found in the charging document and, if so, (2) can the defendant show that he or she was prejudiced by the inartful language which caused a lack of notice. Kjorsvik, 117 Wn.2d at 105-06. The first prong of the test requires that we examine the face of the charging document. The document must contain some language giving an indication of the missing element. Kjorsvik, 117 Wn.2d at 106. We address Kjorsvik's prejudice prong only if the charging document contains some language relating to the element at issue. City of Auburn v. Brooke, 119 Wn.2d 623, 636, 836 P.2d 212 (1992).
Here, construing I.A.O.'s information liberally, we find no indication of the official duties element. Therefore, we accept the State's concession of error and reverse I.A.O.'s conviction for custodial assault.
The parties agree that the proper remedy for this violation is dismissal without prejudice. Accordingly, we reverse I.A.O.'s custodial assault conviction and remand to the Lewis County Superior Court with directions that it dismiss the custodial assault charge without prejudice.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and HUNT, J. concur.