Opinion
Nos. 25765-7-III; 25839-4-III.
January 24, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-02349-9, Neal Q. Rielly, J., entered December 12, 2006, together with a petition for relief from personal restraint.
Judgment affirmed and petition dismissed by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Stephens, J. Pro Tem.
Ardis Wilson failed to appear on the charge of escape from community custody, a class C felony, and was convicted of bail jumping. On appeal, Mr. Wilson contends: (1) the trial court erred by issuing an erroneous "to convict" instruction that omitted an essential element of bail jumping; and (2) there was insufficient evidence to support his conviction. Mr. Wilson also raises several issues in his personal restraint petition. This court consolidated the direct appeal and the personal restraint petition. We affirm the bail jumping conviction and dismiss the personal restraint petition.
FACTS
Mr. Wilson was arraigned on the charge of escape from community custody and then released pending trial. Pursuant to a scheduling order, Mr. Wilson was required to attend a pretrial conference on June 2, 2006, and the trial on June 12. The scheduling order signed by Mr. Wilson stated that failure to appear at the scheduled court dates could result in a warrant being issued for his arrest.
Mr. Wilson, however, did not appear at the June 2 pretrial conference. A bench warrant was issued and Mr. Wilson was arrested on June 15.
Before the trial began, defense counsel proposed a stipulation "that no mention be made of the underlying charge" of escape from community custody except that it was a "Class C felony." Report of Proceedings (RP) at 3. Defense counsel requested that "any opportunity for the — where the charge would be inserted, we would ask that `Class C' felony be inserted." RP at 3.
The trial court accepted the defense's stipulation, stating:
It seems real clear to me that, if the jury hears that his underlying charge was Escape from Community Custody and this case of Bail Jumping sounds so very familiar, that that would clearly be prejudicial to the defendant's case. So, we won't do that. But, to the extent the State needs to provide any written documentation that's part of that, I would still allow that subject to any other rules of evidence but just delete those words.
I think it's important, too, then, when I read this Information to them, I would just read "having been charged with a Class C felony in the Superior Court of the State of Washington" instead of reading that it would be the Escape from Community Custody.
RP at 3-4. The court asked if this was acceptable to the defense and the prosecution, and both parties agreed.
The court also agreed to substitute the language "class C felony" in place of "escape from community custody" on the copies of the State's exhibits that were provided to the jury. Finally, as part of the stipulation agreement, the parties agreed to instruct their witnesses not to specifically mention the crime of escape from community custody, and instead to use the language "class C felony" in their testimony.
At trial, Denise Hoover, a court clerk, provided testimony as to scheduling orders, requirements for pretrial conferences, bench warrants, various court procedures, and the significance of failure to appear. Four exhibits were admitted, including certified copies of the: (1) scheduling order, (2) motion for bench warrant, (3) order for bench warrant, and (4) bench warrant.
Mr. Wilson testified at trial. He admitted that he did not appear at the pretrial conference, but stated that his absence was due to the recent birth of his son on May 27, 2006. Testimony provided by Mr. Wilson's court-appointed counsel, Alan Rossi, also shows that Mr. Wilson did not attend his pretrial conference.
The trial court proposed jury instructions. Neither the State nor the defense stated any exceptions or objections to the instructions. The jury was instructed on the elements of bail jumping in instruction 6, which provided:
INSTRUCTION NO. 6
To convict the defendant of the crime of bail jumping, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 2nd day of June, 2006, the defendant knowingly failed to appear before a court;
(2) That the defendant was charged with a Class C Felony;
(3) That the defendant had been released by court order or admitted to bail with the requirement of a subsequent personal appearance before that court; and
(4) That the acts occurred in the State of Washington, City of Spokane, County of Spokane.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Clerk's Papers (CP) at 45 (emphasis added).
On November 14, 2006, the jury found Mr. Wilson guilty of bail jumping. Mr. Wilson appeals.
ANALYSIS
To Convict Instruction. On appeal, this court reviews instructional errors de novo. State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995). A jury instruction must correctly state the applicable law. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). "Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law." State v. Irons, 101 Wn. App. 544, 549, 4 P.3d 174 (2000). The court evaluates each instruction in the context of the instructions as a whole. State v. Benn, 120 Wn.2d 631, 654-55, 845 P.2d 289 (1993).
Both the United States and Washington constitutions require that the jury be instructed on all essential elements of the crime charged. State v. Van Tuyl, 132 Wn. App. 750, 758, 133 P.3d 955 (2006) (citing U.S. Const. amend. VI ; Const. art. I, §§ 22). Importantly, an instruction which purports to list all of the elements of a crime must in fact do so. State v. Emmanuel, 42 Wn.2d 799, 819, 259 P.2d 845 (1953).
A jury instruction which omits an essential element of a crime relieves the State of its burden of proving each element of the crime charged beyond a reasonable doubt and is a violation of due process. State v. Davis, 27 Wn. App. 498, 506, 618 P.2d 1034 (1980). Therefore, the omission of an element from that instruction is of sufficient constitutional magnitude to warrant review when raised for the first time on appeal. State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005) (quoting State v. Mills, 116 Wn. App. 106, 110, 64 P.3d 1253 (2003)).
Significantly, harmless error analysis does not apply where an essential element of the crime has been omitted. State v. Pope, 100 Wn. App. 624, 630, 999 P.2d 51 (2000). In addition, the failure to instruct the jury on an element of an offense is considered automatic reversible error. State v. Smith, 131 Wn.2d 258, 265, 930 P.2d 917 (1997).
Jury instruction 6 required the jury to find beyond a reasonable doubt that Mr. Wilson was charged only with a "Class C Felony," rather than the specific underlying offense of "escape from community custody."
CP at 45.
Mr. Wilson contends that the "to convict" instruction omitted an element of the charge. Relying on Pope and State v. Gonzalez-Lopez, 132 Wn. App. 622, 132 P.3d 1128 (2006), Mr. Wilson argues that specification of the underlying offense is an essential element of the crime of bail jumping. Stated another way, Mr. Wilson claims that one of the elements of bail jumping is that the defendant was held for, charged with, or convicted of a particular crime. This position is consistent with 11A Washington Practice: Washington Pattern Jury Instructions Criminal: 120.41 (2d ed. 1994), the bail jumping elements instruction.
Here, however, the invited error doctrine precludes our review of this issue. "`Under the invited error doctrine, a defendant may not request that instructions be given to the jury and then complain upon appeal that the instructions are constitutionally infirm.'" State v. Rodriguez, 121 Wn. App. 180, 184, 87 P.3d 1201 (2004) (quoting State v. Aho, 137 Wn.2d 736, 744-45, 975 P.2d 512 (1999)). The purpose of the doctrine is to "prohibit? a party from setting up an error at trial and then complaining of it on appeal." State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984). The Washington Supreme Court has held that the invited error doctrine is a "`strict rule' to be applied in every situation where the defendant's actions at least in part cause the error." State v. Summers, 107 Wn. App. 373, 381-82, 28 P.3d 780 (2001) (quoting State v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999)).
This doctrine has been applied in cases where a criminal defendant challenges a jury instruction on the basis that the instruction relieved the prosecution of its burden to prove every element of the crime charged and where a "to convict" instruction omitted an essential element of the crime. See Summers, 107 Wn. App. at 380-82 (trial court failed to include an essential element in a "to convict" instruction).
At trial, Mr. Wilson proposed a stipulated agreement, in which he requested that the court insert the language "Class C felony" in place of the underlying charge "Escape from Community Custody" where there was "any opportunity" to do so. RP at 3. As a direct result, the trial court issued a jury instruction on the elements of bail jumping consistent with this agreement. Thus, Mr. Wilson invited any error.
Sufficiency of the Evidence. Mr. Wilson contends that there was insufficient evidence to support his conviction, arguing that the State failed to introduce any evidence at trial that he was charged with a "class C felony" at the time he failed to appear at a pretrial conference.
Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). Importantly, "when the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).
Mr. Wilson argues that the State failed to prove element two of the court's jury instruction 6: "That the defendant was charged with a Class C Felony." CP at 45. But this element was satisfied by the testimony of the witnesses and the exhibits admitted at trial.
Moreover, the waiver doctrine has application in the present case. "Under the waiver doctrine, once a defendant enters into a stipulation, he or she waives the right to require the government to prove its case on the stipulated element." State v. Stevens, 137 Wn. App. 460, 466, 153 P.3d 903 (2007).
Mr. Wilson stipulated that he was charged with a class C felony. As a result of entering into the stipulation, Mr. Wilson waived his right to assert that the State had the burden to present evidence to the jury on the stipulated element. State v. Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006), review denied, 160 Wn.2d 1015 (2007).
PERSONAL RESTRAINT PETITION
Mr. Wilson filed a personal restraint petition (PRP) which we consolidated with his direct appeal.
To obtain relief through a PRP, Mr. Wilson must show that he was actually and substantially prejudiced by a violation of his constitutional rights or by a fundamental error of law. See In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990).
If a petitioner raises a constitutional issue, this court has three options: (1) if the petitioner fails to meet his threshold burden of showing actual prejudice arising from the constitutional error, the petition must be dismissed; (2) if the petitioner makes a prima facie showing of actual prejudice, but the court cannot determine the merits of the contention solely on the record, remand for a hearing on the merits or a reference hearing is required; or (3) if this court is convinced that the petitioner has proven actual prejudicial error, the petition must be granted. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992) (quoting In re Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983)).
Mr. Wilson contends RCW 9A.76.170(3) prescribes different punishments for the same act committed under the same circumstances, in violation of the equal protection clauses of the United States and Washington Constitutions.
The Washington bail jumping statute provides that
[a]ny person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state, or of the requirement to report to a correctional facility for service of sentence, and who fails to appear or who fails to surrender for service of sentence as required is guilty of bail jumping.
RCW 9A.76.170 defines the degree and penalty for the offense:
(3) Bail jumping is:
(a) A class A felony if the person was held for, charged with, or convicted of murder in the first degree;
(b) A class B felony if the person was held for, charged with, or convicted of a class A felony other than murder in the first degree;
(c) A class C felony if the person was held for, charged with, or convicted of a class B or class C felony;
(d) A misdemeanor if the person was held for, charged with, or convicted of a gross misdemeanor or misdemeanor.
Mr. Wilson's failure to appear on June 2, 2006, at his pretrial conference constituted the crime of bail jumping. RCW 9A.76.170(3) does not prescribe different punishments for the same act committed under the same circumstances. Nor is the punishment arbitrary. Bail jumping is assigned a particular criminal classification depending on the underlying crime for which the defendant was to appear in court. See RCW 9A.76.170(3). Here, Mr. Wilson was charged with, and found guilty of, felony bail jumping because he failed to appear at a mandatory court hearing on a felony charge — escape from community custody.
Mr. Wilson has not sustained his burden of proving a constitutional error that resulted in actual prejudice or an error of law that resulted in a miscarriage of justice. Cook, 114 Wn.2d at 813.
Mr. Wilson next contends that all crimes are crimes in commerce. Mr. Wilson is mistaken. His brief consists of bare allegations and his citation to authority does not support his argument. Further, Mr. Wilson does not allege, or prove, any error or resulting prejudice. Accordingly, this court will not consider this argument.
Mr. Wilson also raises multiple, unrelated issues in ground three of his petition. We conclude that his arguments are without merit.
Accordingly, we affirm Mr. Wilson's conviction and dismiss his PRP.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Sweeney, C.J.
Stephens, J. Pro Tem.