Opinion
No. 31317-1-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 03-8-00889-7. Judgment or order under review. Date filed: 12/17/2003. Judge signing: Hon. Anna M. Laurie.
Counsel for Appellant(s), Catherine E. Glinski, Attorney at Law, PO Box 761, Manchester, WA 98353-0761.
Counsel for Respondent(s), Todd Layton Dowell, Kitsap County Prosecutors Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Anthony Nudo appeals from an adjudication of guilt on one count of third degree theft, arguing insufficiency of the charging document. He raises additional arguments in a Statement of Additional Grounds (SAG). We agree that the charging document is deficient and reverse and remand.
FACTS
Then 17-year-old James Hull and his friends attended the Viking Fest in Poulsbo. Nudo also attended the festival. During the festival, Nudo came up behind Hull and took Hull's white baseball hat off his head. When Hull asked for it back, Nudo returned it.
Later in the evening, Nudo took the hat for a second time. Hull again asked for the hat back, but this time, Nudo failed to return it. Instead, he and his friends tossed the hat around. Hull chased after Nudo, but lost sight of him and was unable to get the hat back. Hull then contacted the Poulsbo Police, who told him to `buy another $5 hat.' Report of Proceedings at 9.
About 30 minutes later, Hull returned to his car where he found his hat (in lieu of returning it directly to Hull, Nudo put the hat on Hull's car). Because the hat was wet, Hull threw it away.
Nudo claimed the entire incident was a joke and that he never intended to keep the hat. At trial both Hull and his friend testified that they thought Nudo was joking around at least part of the time. The court adjudicated Nudo guilty of third degree theft, finding that Nudo took the hat without permission and did so with the intent to deprive Hull of the hat. It stated that regardless of whether Nudo was joking, when Hull asked for the hat back and Nudo failed to comply, he committed theft.
Nudo appeals. ANALYSIS Charging Document
Nudo argues deficiency of the charging document. He asserts that the court determined guilt under RCW 9A.56.050 and former RCW 9A.56.020 (2002). But, the charging document did not include subsection (a) of the third degree theft statute, which requires that the misappropriated property not exceed $250 in value. RCW 9A.56.050(1).
RCW 9A.56.050 reads in relevant part: `(1) A person is guilty of theft in the third degree if he or she commits theft of property or services which (a) does not exceed two hundred and fifty dollars in value. . . . (2) Theft in the third degree is a gross misdemeanor.'
Former RCW 9A.56.020 reads in relevant part: (1) ``Theft' means: (a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services.'
The information reads:
On or about May 16, 2003, in the County of Kitsap, State of Washington, the above-named Respondent did commit theft of property or services by wrongfully obtaining or exerting unauthorized control over the property or services of another, to-wit: James Hull, or the value thereof, with intent to deprive that person of such property or services; contrary to Revised Code of Washington 9A.56.050(1) and 9A.56.020.
Clerk's Papers at 1.
In all criminal prosecutions, the accused has the right to be informed of the nature and cause of the accusation. U.S. Const. amend. 6. A charging document must be written in a manner that enables a person to know what is intended in the case. State v. Campbell, 125 Wn.2d 797, 801, 888 P.2d 1185 (1995) (citing RCW 10.37.050(6)). And it must include all of the essential elements of the crime. State v. Moavenzadeh, 135 Wn.2d 359, 362, 956 P.2d 1097 (1998). But it is not necessary to use the exact words of the statute as long as the charging document conveys the same meaning. Moavenzadeh, 135 Wn.2d at 362 (citing State v. Kjorsvik, 117 Wn.2d 98, 108, 812 P.2d 86 (1991)).
Where, as here, a defendant seeks to challenge a charging document after the verdict, we apply a liberal standard in favor of the document's validity. See, e.g., Kjorsvik, 117 Wn.2d at 103. We ask 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 nonetheless actually prejudiced by the inartful language which caused a lack of notice?'' State v. Phillips, 98 Wn. App. 936, 940, 991 P.2d 1195 (2000) (quoting Kjorsvik, 117 Wn.2d at 105-06). We also note that the lack of the property value element in the information renders the charges constitutionally invalid. Moavenzadeh, 135 Wn.2d at 364.
The State argues that the value element was included in the charging documents through the words `or the value thereof.' Respondent's Brief at 1. We disagree.
One element of third degree theft is that the value of the misappropriated property not to exceed $250. It cannot be construed simply from the words `value thereof.' The statute is specific in its dollar amount and the word `value' does nothing to indicate that specific amount. Without the dollar amount, the degree of theft is unknown and the defendant does not have notice of precisely what he is charged with.
The charging information insufficiently apprised Nudo of the crime charged. The remedy is reversal without prejudice to the State's refiling of the charges in a properly worded information. See State v. Simon, 120 Wn.2d 196, 199, 840 P.2d 172 (1992) (reversed in part without prejudice due to an insufficient charging document).
SAG Sufficiency of the Evidence
In his SAG, Nudo raises two arguments. We address only his sufficiency argument because if the evidence is insufficient the remedy is reversal with prejudice. Hull contends that there is not evidence that he intended to deprive Hull of the hat.
We do not address his ineffective assistance of counsel claim.
State v. Turner, 103 Wn. App. 515, 520, 13 P.3d 234 (2000) (insufficiency of evidence mandates dismissal with prejudice).
In a claim of insufficiency of evidence at trial, we review the evidence in the light most favorable to the State to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).
According to the statute, theft means to `wrongfully obtain or exert unauthorized control over the property or services of another . . . with intent to deprive him or her of such property.' RCW 9A.56.020. `Deprive' means `to take away: remove, destroy.' Webster's Third New International Dictionary 606 (1976). Intent to permanently deprive is not an element of theft. State v. Komok, 113 Wn.2d 810, 811, 783 P.2d 1061 (1989). Thus, the issue is whether Nudo intended to take the hat and not whether he intended to keep the hat.
Nudo admitted that he refused to return the hat when Hull asked for it. Instead, he held onto it for a period of time before returning it to Hull's car. This alone indicates that he intended to take the hat from Hull, even if it was only for a short period. The trial court did not err in finding sufficient evidence of Nudo's intent to deprive Hull of the hat.
Reversed and remanded for dismissal without prejudice to refiling.
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.
ARMSTRONG, J. and HUNT, J., Concur.