Opinion
Nos. 29882-1-II, 30814-2-II.
Filed: April 13, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 02-1-01582-8. Judgment or order under review. Date filed: 01/09/2003. Judge signing: Hon. Richard D Hicks.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
A jury convicted Rodney Jackson of two counts of violating a no-contact order and one count of witness tampering. Jackson appeals, claiming that a State's witness offered improper opinion testimony as to Jackson's guilt, the charging document was defective, the court issued erroneous jury instructions, Jackson's counsel was ineffective, and the witness tampering conviction was based on an uncharged alternative means. Because the State correctly concedes that Jackson's witness tampering conviction must be reversed, we affirm in part and reverse in part and remand to the trial court for further proceedings.
Because we reverse Jackson's tampering conviction, the arguments in Jackson's personal restraint petition are moot.
FACTS
In June 2001, Jackson and Charisa Keys began a romantic relationship. By February 2002, the relationship had deteriorated and Keys sought an order for protection, which prohibited Jackson from having any contact with Keys. On October 31, 2002, while the order was still in effect, Jackson placed a collect call from the Thurston County Jail to Keys, asking if he could `talk to [the couples'] son' who was born on July 9, 2002. Report of Proceedings (RP) (December 2, 2002) at 120. On November 7, 2002, with the restraining order still in effect, Jackson placed another collect call to Keys, asking her to `plead the 5th Amendment and not get him in trouble' during his upcoming trial for violating the no-contact order. RP (December 2, 2002) at 121.
In its third amended information, the State charged Jackson with three counts of violating a no-contact order and two counts of tampering with a witness. The jury returned a guilty verdict for two counts of violating a no-contact order and one count of witness tampering for the November 7, 2002 phone call. Jackson appeals.
ANALYSIS Violation of the No-Contact Order
Jackson claims that the document charging him with violating a no-contact order was defective because it referred to the incorrect statutory cite and failed to include the element that Jackson `[knew] of the existence of the no-contact order.' We construe a charging document challenged for the first time on appeal liberally in favor of validity. State v. Kjorsvik, 117 Wn.2d 93, 105, 812 P.2d 86 (1991). We apply a two-prong test to determine the sufficiency of a charging document: (1) [D]o 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 nonetheless actually prejudiced by the inartful language which caused a lack of notice?
Kjorsvik, 117 Wn.2d at 105-06. Jackson acknowledges that the charging document was challenged for the first time on appeal; thus, we construe it liberally in favor of validity.
Jackson claims that the charging document incorrectly cited to the `penalties statute,' RCW 26.50.110, and not the statute that establishes the crime of violating a no-contact order, RCW 10.99.050. `Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice.' CrR 2.1(a)(1); see also State v. Hopper, 118 Wn.2d 151, 159-60, 822 P.2d 775 (1992); State v. Snapp, 119 Wn. App. 614, 622-23, 82 P.3d 252 (2004). Technical defects, such as an erroneous statutory citation, do not require reversal if the defendant does not show that the error affected his or her ability to mount a defense. City of Bellingham v. Struthers, 109 Wn. App. 864, 867-68, 38 P.3d 1021 (2001), review denied, 146 Wn.2d 1019 (2002). Here, the charging document clearly stated the offense for which Jackson was charged. And RCW 26.50.110, the statute referred to in the charging document, refers to orders granted under chapter 10.99 RCW. RCW 26.50.110(5). But Jackson does not show how the charging document's citation error hindered his ability to present a defense, thus, Jackson failed to show prejudice.
Jackson does claim that the erroneous citation required him to prepare a defense against the claim that he `willfully contacted' another person, as opposed to `willfully disobey(ing) an Order Prohibiting Contact.' But we note that, under either of the quoted elements above, the State is necessarily required to prove that Jackson willfully contacted the victim in violation of the court order prohibiting him from doing so. Construing the charging document liberally, we therefore find the document sufficient.
We next consider Jackson's argument that the charging document lacks an element of the charged offense, namely that Jackson `[knew] of the existence of the no-contact order.' Br. of Appellant at 14-15. The offense of violating a no-contact order under RCW 10.99.050 requires three essential elements: `the willful contact with another; the prohibition of such contact by a valid no-contact order; and the defendant's knowledge of the no-contact order.' State v. Clowes, 104 Wn. App. 935, 944, 18 P.3d 596 (2001); see also RCW 26.50.110(1) (requiring that the `respondent or person to be restrained knows of the order'). Jackson challenges the language of Counts II and III, which both state that `the defendant . . ., while having two or more previous convictions for violation of an order prohibiting contact, did willfully disobey an Order Prohibiting Contact . . . with Charisa C. Keys, his ex-girlfriend.' Clerk's Papers (CP) at 12-13. As noted above, because Jackson challenges the charging document for the first time on appeal, we construe the language liberally in favor of validity. See Kjorsvik, 117 Wn.2d at 105. When liberally construed, a charging document is sufficient if it contains some language from which notice of each element can be found. State v. Marcum, 116 Wn. App. 526, 534, 66 P.3d 690 (2003). Here, the phrase `willfully disobeyed' necessarily means that the defendant must know of the existence of the no-contact order before the defendant can `willfully disobey' it. Moreover, the term `willfully' is the functional equivalent to the term `knowingly.' Snapp, 119 Wn. App. at 621; State v. Robbins, 15 Wn. App. 108, 113, 547 P.2d 288, review denied, 87 Wn.2d 1012 (1976). Thus, under a liberal construction standard, the charging document's language sufficiently apprised Jackson of the element that he knew the existence of the no-contact order prohibiting him from contacting Keys and that he willfully disobeyed the order.
Witness Tampering
Jackson next challenges Count V of the charging document, which charges Jackson of `attempt[ing] to induce a witness . . . to testify falsely or, without right or privilege to do so, to withhold any testimony.' CP at 13. Jackson claims that the jury instructions allowed Jackson to be convicted under an uncharged alternative: that Jackson induced the witness Keys to `absent herself from any official proceeding or withhold from a law enforcement agency information from which she had relevant to a criminal investigation.' CP at 70. The State correctly concedes this error.
The jury acquitted Jackson of witness tampering as charged in Count IV.
When the charging document alleges a statutory alternative means of committing a crime, it is error to instruct the jury on uncharged alternatives, regardless of the strength of the trial evidence. State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003). It is error to instruct on an alternative means not alleged in the information. Chino, 117 Wn. App. at 540. Even so, the error may be harmless if the other instructions clearly and specifically define the charged crime. Chino, 117 Wn. App. at 540. But here Instruction Nos. 10, 11, and 12 also set forth the uncharged statutory alternative, which was inducing the witness to `[a]bsent himself or herself from such proceedings.' RCW 9A.72.120(1)(b). The charging document alleged only that Jackson either `induce[d Keys] . . . to testify falsely or . . . withhold any testimony.' CP at 13.
Thus, the jury could have convicted Jackson under the uncharged alternative that he induced Keys to absent herself from the proceedings. Reversal and remand for a new trial on the crime of witness tampering as charged is necessary here. Chino, 117 Wn. App. at 541.
Jackson also argues that his counsel was ineffective for failing to object to these instructions, that the trial court erred by not giving a unanimity instruction on the alternative means of committing a crime, and that Detective Weiss offered improper opinion testimony of Jackson's guilt on the witness tampering charge. Because we accepted the State's concession of error and reversed the witness tampering conviction, these arguments are moot.
Finally, Jackson argues that the cumulative error doctrine requires reversing all of his convictions. The cumulative error doctrine applies `when there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial.' State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). We have found that the trial court's errors require reversal of Jackson's witness tampering conviction. But these errors do not affect Jackson's other convictions for violating no-contact orders.
In his statement of additional grounds, Jackson argues that because his no-contact conviction and tampering conviction constituted the `same criminal conduct,' the trial court improperly counted both of these offenses toward his offender score. Because we reverse Jackson's tampering conviction, this argument too is moot.
We affirm Jackson's convictions for violating a no-contact order in Counts II and III, but reverse Jackson's conviction for tampering with a witness in Count V and remand for a new trial on that charge.
See note 1, supra.
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.
SEINFELD, J. and ARMSTRONG, J., concur.