State Of Washington v. John A. Holcomb ( 2017 )

COURT OF APP:--Au: T
STATE CF
2017 AUG -7 AN 6: 58
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) DIVISION ONE
Respondent, )
) No. 75245-6-I
v. )
) OPINION PUBLISHED IN PART
JOHN ALLEN HOLCOMB, )
)
Appellant. ) FILED: August 7, 2017
)
DWYER, J. — John Holcomb appeals from the judgment entered on a
jury's verdict convicting him of one count of interfering with the reporting of
domestic violence. On appeal, Holcomb challenges the constitutional adequacy
of the information charging him with this offense.
We conclude that the information was deficient because, notwithstanding
a liberal construction, the information did not reasonably apprise Holcomb of the
actual underlying domestic violence crime that the State alleged that he
committed—assault in the fourth degree—thereby failing to inform Holcomb of a
necessary and particular fact supporting an essential element of the charged
interference crime.' Accordingly, we reverse the judgment of guilt with orders to
the trial court to dismiss the case without prejudice.2
1 See State v. Nonoq, 169 Wash. 2d 220, 225-26, 237 P.3d 250(2010).
2 Holcomb raises additional arguments that are resolved in the unpublished portion of this
opinion.
No. 75245-6-1/2
During the evening of September 15, 2015, Shaunna Holcomb came
home and began to argue with her husband, John Holcomb. In response,
Holcomb3 pushed Shaunna out of the room in which the quarrel began. As they
continued to argue, Holcomb grabbed Shaunna firmly by the arms. Shaunna
broke free from Holcomb's grasp and attempted to use her cellular phone to
contact 911. Holcomb tried to take the cellular phone away from her and he
eventually pulled the phone out of her hand and threw it against a wall.
Shaunna then struck Holcomb on the back of his head. He responded by
grabbing her around the neck in a choke hold. Shaunna began to lose
consciousness and Holcomb released her. Shaunna fled outside and continued
trying to contact the police. She ultimately succeeded in contacting 911.
The State, upon amended information, charged Holcomb with two
offenses: one count of assault in the second degree (assault by strangulation)
and one count of interfering with the reporting of domestic violence.
At trial, after the conclusion of the testimony, the State proposed that the
jury be instructed on the crime of assault in the fourth degree as the underlying
crime for the interference charge. Defense counsel objected on the ground that
the assault in the fourth degree instruction would be confusing to the jury
because it was an instruction on an uncharged crime.
In response, the prosecutor brought to the trial court's attention a "note on
use" from 11 Washington Practice: Washington Pattern Jury Instructions:
3 When this opinion refers to Holcomb, it refers to John Holcomb.
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No. 75245-6-1/3
Criminal 36.57, at 688-89(3d ed. 2008)(WPIC), regarding the manner of issuing
jury instructions for the crime of interfering with the reporting of domestic violence
when the predicate domestic violence offense is not separately charged. The
WPIC note reads, "For the rare case in which the underlying domestic violence
offense is not being tried along with this offense, an instruction should be drafted
setting forth the elements of the underlying domestic violence offense." WPIC
36.57.
The trial court overruled defense counsel's objection and issued a to-
convict instruction identifying assault in the fourth degree as the underlying
domestic violence crime for the interference charge. The to-convict instruction
for the interference charge did not identify the assault in the second degree
charge as the underlying domestic violence crime.
The jury returned a verdict acquitting Holcomb of the assault in the second
degree charge but finding Holcomb guilty of interfering with the reporting of
domestic violence.
After the jury rendered its verdict, Holcomb filed a posttrial motion to arrest
the judgment asserting that the amended information did not charge a crime and
that insufficient evidence supported the jury's verdict, pursuant to CrR 7.4(a)(2),
(3).4 The trial court denied Holcomb's motion and entered judgment on the jury's
verdict.
4 CrR 7.4(a) reads, in pertinent part:
Arrest of Judgments. Judgment may be arrested on the motion of the
defendant for the following causes:...(2)the indictment or information does not
charge a crime; or(3) insufficiency of the proof of a material element of the
crime.
3
No. 75245-6-1/4
Holcomb now appeals.
11
Holcomb contends that the information was deficient because,
notwithstanding a liberal construction, the information failed to include a
necessary and particular fact supporting an essential element of the charged
crime of interfering with the reporting of domestic violence. This is so, he
asserts, because the information did not specifically identify that the predicate
domestic violence offense for the charged interference crime was assault in the
fourth degree. Holcomb is correct.
A
We first address whether commission of a specific domestic violence
crime is an essential element of the interference crime codified at RCW
9A.36.150.5
6 Our Supreme Court in Nonoq, 169 Wash. 2d 220, heard argument regarding whether
RCW 9A.36.150 required that a charging document set forth the specific underlying domestic
violence crime—rather than a generalized reference that a "crime of domestic violence, as
defined in RCW 10.99.020" was committed. However, the court declined to reach a decision on
this issue:
We need not decide whether the statutory text quoted in count IV,"having
committed a crime of domestic violence as defined in RCW 10.99.020," CP at 11-
12, is always constitutionally sufficient to apprise a defendant of the nature of the
charge against him. We need only decide whether Nonog's information, as a
whole, made it clear that the crimes alleged to have occurred on March 30, 2006
in counts I and II were the domestic violence crimes referenced in count IV....
... In considering this question, we will place Nonog's argument in its
best light and assume, without deciding, that the underlying domestic violence
crime is an element of the interfering with reporting offense. This means that, to
be constitutionally sufficient, the information as a whole needed to reasonably
apprise Nonog of the underlying crime. See [State v. 1Kjorsvik, 117 Wn.2d
[93, 1109-111, 812 P.2d 86 (1991)].
Nonog, 169 Wash. 2d at 228-29.
In order to decide the matter before us, we must resolve this question.
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No. 75245-6-1/5
As codified, the crime of interfering with the reporting of domestic violence
reads:
(1) A person commits the crime of interfering with the reporting of
domestic violence if the person:
(a) Commits a crime of domestic violence, as defined in
RCW 10.99.020; and
(b) Prevents or attempts to prevent the victim of or a witness
to that domestic violence crime from calling a 911 emergency
communication system, obtaining medical assistance, or making a
report to any law enforcement official.
(2) Commission of a crime of domestic violence under
subsection (1) of this section is a necessary element of the crime of
interfering with the reporting of domestic violence.
RCW 9A.36.150(emphasis added).
Thus, an essential element of the interference charge is commission of a
specific crime of domestic violence as defined in RCW 10.99.020. We know this
because our legislature—in addition to setting forth the essential elements of the
crime in subsections (1)(a) and (1)(b)—further emphasized in subsection (2) that
commission of a domestic violence crime pursuant to subsection (1) is a
necessary element. Turning to subsection (1), we note that the interference
crime requires that the State prove the commission of a domestic violence crime
as defined in RCW 10.99.020.
Continuing on to RCW 10.99.020, the statute sets forth 23 distinct
domestic violence crimes, including several offenses with distinct degrees of
culpability. That RCW 10.99.020 sets forth numerous offenses with distinct
degrees is significant. It indicates that the legislature intended that a specific
5
No. 75245-6-1/6
crime of domestic violence be elected, alleged, and proved.6 Indeed, we cannot
conceive that the legislature intended that a criminal defendant be left to prepare
a defense against the interference charge without notice as to which of the 23
wide-ranging offenses set forth in RCW 10.99.020 is the predicate domestic
violence offense that the State alleges was committed.
Thus, RCW 9A.36.150 requires, as an essential element, that the State
elect, allege, and prove that one of the specific crimes defined in RCW 10.99.020
(rather than broadly and generally asserting that some one of the 23 domestic
violence crimes listed in RCW 10.99.020) was committed. In this way, an
essential—and necessary—element of RCW 9A.36.150 is proof of the
commission of a specific domestic violence crime.
B
Holcomb contends that the State's amended information is deficient
because, in charging the interference count, it failed to set forth the specific
domestic violence offense that served as the predicate offense. He is correct.
In a criminal prosecution, the accused has a constitutional right to be
informed of the charge the accused is to meet at tria1.7 State v. Pe!key, 109
6 The proof required for the interference offense regarding commission of a crime is,
accordingly, unlike that required by some other criminal liability theories, such as accomplice
liability, wherein only the "general crime"("homicide," "assault," "kidnapping," etc.) must be
established (e.g., intent to commit murder), rather than the specific degree of the crime (e.g.,
murder in the first degree). See In re Pers. Restraint of Sarausad, 109 Wash. App. 824, 834-36, 39
P.3d 308(2001)(discussing State v. Cronin, 142 Wash. 2d 568, 14 P.3d 752(2000); State v.
Roberts, 142 Wash. 2d 471, 14 P.3d 713(2000)).
By contrast, the interference crime herein references RCW 10.99.020(5), which does not
set forth generic crimes in its list of domestic violence crimes but, rather, sets forth crimes with
regard to superior and inferior degrees (e.g., assault in the first degree, assault in the second
degree, etc.).
7 WASH. CONST. art I, § 22 ("In criminal prosecutions the accused shall have the right .. .
to demand the nature and cause of the accusation against him.").
-6 -
No. 75245-6-1/7
Wn.2d 484, 487, 745 P.2d 854 (1987). For that reason, the charging document
must include all essential elements of a crime in order to apprise the accused of
the charges and facilitate the preparation of a defense. State v. Pineda-Pineda,
154 Wash. App. 653, 670, 226 P.3d 164(2010)(citing State v. Vangerpen, 125
Wash. 2d 782, 787, 888 P.2d 1177 (1995)). This includes the necessary and
particular "supporting facts giving constitutional notice of" each element. State v.
Nonoq, 169 Wash. 2d 220, 225, 237 P.3d 250(2010). "More than merely listing the
elements, the information must allege the particular facts supporting them."
Nonoq, 169 Wash. 2d at 226 (citing State v. Leach, 113 Wash. 2d 679, 688, 782 P.2d
552(1989)).
An essential element of RCW 9A.36.150 is proof of the commission of a
specific domestic violence crime as defined in RCW 10.99.020. Therefore, to
satisfy the constitutional requirement that a criminal defendant be apprised of
that with which he is being charged, an information alleging the crime of
interfering with the reporting of domestic violence must set forth the specific
underlying domestic violence crime that serves as the predicate offense (rather
than a broad claim that a crime of domestic violence was committed). Indeed, as
our Supreme Court in Nonoq assumed and as we now decide, "to be
constitutionally sufficient, the information as a whole needed to reasonably
apprise [the defendant] of the underlying crime." 169 Wash. 2d at 229 (citing State
v. Korsvik, 117 Wash. 2d 93, 109-11, 812 P.2d 86 (1991)).
7
No. 75245-6-1/8
Here, the State's amended information charged Holcomb with one count
of assault in the second degree and one count of interfering with the reporting of
domestic violence. The amended information read, in pertinent part:
COUNT I
Assault in the Second Degree — Strangulation or Suffocation
DV — RCW 9A.36.021(1)(g) and RCW 10.99.020 — Class B
Felony
On or about September 15, 2015, in the County of Skagit,
State of Washington, the above-named Defendant did intentionally
assault another person, to wit: Shaunna Marie Holcomb, by
strangulation or suffocation, contrary to Revised Code of
Washington 9A.36.021(1)(g); AND FURTHERMORE,the
defendant did the [sic] commit the above crime against a
family or household member, contrary to Revised Code of
Washington 10.99.020.
....
COUNT II
Interfering With Reporting Domestic Violence — RCW
9A.36.150(1) — Gross Misdemeanor
On or about September 15, 2015, in the County of Skagit,
State of Washington, the above-named Defendant did commit a
crime of domestic violence as defined in RCW 10.99.020 and did
prevent or attempt to prevent the victim of or a witness to that
domestic violence crime from calling a 911 emergency
communication system, obtaining medical assistance, or making a
report to any law enforcement official; contrary to Revised Code of
Washington 9A.36.150(1).
(Emphasis added.) The State did not charge Holcomb with assault in the fourth
degree.
The State contends that our Supreme Court's opinion in Nonog militates in
its favor. In Nonog, after assuming—without deciding—that the information
therein needed to reasonably apprise the defendant of the underlying domestic
violence crime, the court held that the information met that standard:
From [count IV], Nonog had clear notice that he was
accused of committing a crime of domestic violence on March 30,
2006. Furthermore, count IV stated that the crime was "of the
8
No. 75245-6-1/9
same or similar character and based on the same conduct as
another crime charged" in the information. [CP] at 11. Reviewing
the information as a whole, one can reasonably discover that
Nonog was charged with two other crimes occurring on March 30,
2006, each of which had the term "domestic violence" in the
boldface title of the offense. See id. at 10-11. Under Kiorsvik's
liberal construction test, the information reasonably apprised Nonog
of the domestic violence crimes underlying the interfering with
reporting charge in count IV.
Nonog, 169 Wn.2d at 229(emphasis added).
Holcomb counters that Nonoci can be distinguished from his case. This is
so, Holcomb avers, because the information herein did not reasonably apprise
him that assault in the fourth degree was the underlying domestic violence crime
to be proved. Holcomb is correct.
Because Holcomb raised this issue for the first time after the jury
announced its verdicts, we liberally construe the information as a whole. Pineda-
Pineda, 154 Wash. App. at 670. Pursuant to this reading, the information apprised
Holcomb either that assault in the second degree was the underlying domestic
violence crime for the interfering with the reporting of domestic violence charge
or that no specific crime was alleged as the underlying crime. The information
set forth, as count II, the interference charge and identified the commission of a
domestic violence offense as "Defendant did commit a crime of domestic
violence as defined in RCW 10.99.020." The only other charged crime set forth
anywhere in the amended information was assault in the second degree, as set
forth in count I.
The count setting forth the assault in the second degree offense
referenced a crime of domestic violence. The amended information
9
No. 75245-6-1/10
emphasized—in bolded typeface—that the victim of the charge of assault in the
second degree was a family or household member, in violation of RCW
10.99.020.8 The amended information further identified that the underlying act
for the assault charge occurred on September 15, 2015—the same day on which
the information alleged that the interference crime, charged in count II, occurred.
When the assault charge is read in conjunction with the interference
charge, the information could be construed so as to apprise Holcomb that the
charge of assault in the second degree, alleged in count 1, formed the basis of
the domestic violence offense element of the interference charge, alleged in
count II.
But this was not the State's theory of the case and was not the allegation
made against Holcomb. Unlike in Nonog, the underlying domestic violence crime
for the interference charge alleged and argued at trial was not the other charged
offense (assault in the second degree) but, rather, was an uncharged offense
(assault in the fourth degree). At trial, the State presented evidence in support of
assault in the fourth degree as the predicate crime. In addition, at the State's
urging, the trial court instructed the jury that, to convict Holcomb of the charge of
interfering with the reporting of domestic violence, it must find that he committed
the underlying offense of assault in the fourth degree. Significantly, the to-
convict instruction did not allow the jury to convict Holcomb of the interference
8 Assault in the second degree, when perpetrated against a family or household member,
qualifies as a domestic violence offense. RCW 10.99.020(5)(b).
- 10-
No. 75245-6-1/11
charge by finding that he committed assault in the second degree as the
predicate crime.
In this way, the information did not reasonably apprise Holcomb of the
actual underlying crime that the State alleged that he committed—assault in the
fourth degree—thereby failing to inform Holcomb of an essential element of the
charged interference crime. Indeed, by not formally alleging assault in the fourth
degree as the underlying offense but yet presenting testimony on, arguing to the
jury about, and urging the court to instruct the jury on assault in the fourth
degree, the State prejudiced Holcomb's ability to defend himself at trial.
It is clear that the State tried and argued assault in the fourth degree as
the underlying domestic violence offense. But the information did not set forth
assault in the fourth degree as the predicate crime. Even when reviewing the
State's amended information in the light most favorable to the government, it is
deficient.9
"A deficient complaint or information is dismissed without prejudice to the
State's ability to refile charges, subject to the statute of limitations." Nonoq, 169
Wash. 2d at 226 n.3 (citing State v. Quismundo, 164 Wash. 2d 499, 503-04, 192 P.3d
342(2008)).
Accordingly, we reverse the judgment of guilt with instructions to the trial
court to dismiss the charge without prejudice.1°
9 The State claims that Holcomb cannot now challenge the information because he did
not request a bill of particulars. In Nonog, the Supreme Court specifically rejected this argument.
169 Wash. 2d at 225 n.2.
10 Double jeopardy does not bar the filing of a new information predicated upon assault in
the fourth degree as the underlying offense. This is so because the State presented sufficient
evidence of the commission of this crime at trial.
No. 75245-6-1/12
The remainder of this opinion has no precedential value. Therefore, it will
be filed for public record in accordance with the rules governing unpublished
opinions. See RCW 2.06.040.
Ill
Holcomb next contends that there was insufficient evidence presented at
trial to support his conviction of interfering with the reporting of domestic
violence. This is so, he contends, because the jury was not instructed to
consider the single means of interference by preventing or attempting to prevent
the victim from contacting 911 and because the State failed to present sufficient
evidence to support the remaining alternative means on which the jury was
instructed. Holcomb is wrong.
In Washington, a criminal defendant is entitled to a unanimous jury verdict.
WASH. CONST. art. I, § 21; State v. Woodlyn, 188 Wash. 2d 157, 162-63, 392 P.3d
1062(2017)(citing State v. Ortega-Martinez, 124 Wash. 2d 702, 707, 881 P.2d 231
(1994)).
This right may also include the right to a unanimous jury
determination as to the means by which the defendant committed
the crime when the defendant is charged with (and the jury is
instructed on) an alternative means crime. In reviewing this type of
challenge, courts apply the rule that when there is sufficient
evidence to support each of the alternative means of committing
the crime, express jury unanimity as to which means is not
required. If, however, there is insufficient evidence to support any
means, a particularized expression of jury unanimity is required.
State v. Owens, 180 Wash. 2d 90, 95, 323 P.3d 1030(2014). This right is not
boundless, however, because
[w]hen there is sufficient evidence to support each alternative
means, Washington defendants do not enjoy a recognized right to
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No. 75245-6-1/13
express unanimity. In Arndt, this court declared that defendants
have no right to unanimity as to means so long as all means
alleged are (1)supported by sufficient evidence and (2)"'not
repugnant" to one another. 87 Wn.2d [374,] 378-79[, 553 P.2d
1328(1976)](quoting State v. Kosanke, 23 Wash. 2d 211, 213, 160
P.2d 541 (1945)). Sandholm most recently restated this general
rule: "In alternative means cases, where the criminal offense can be
committed in more than one way, we have announced a rule that
an expression of jury unanimity is not required provided each
alternative means presented to the jury is supported by sufficient
evidence." 184 Wn.2d [726,]732 [, 364 P.3d 87 (2015)].
Woodlvn, 188 Wash. 2d at 164.
The court in Woodlvn also emphasized that which the jury unanimity
inquiry is not. In Woodlvn, the court addressed whether there was a
particularized expression of jury unanimity when no unanimity instruction was
given but sufficient facts were adduced at trial to support one alternative means
and no evidence was adduced concerning another alternative means. 188
Wash. 2d at 165. The court expressly rejected that notion, calling it "[a] post hoc
review of the record" and concluding that it "does not allow an appellate court to
see into the minds of jurors" and, therefore,"does not dispel the possibility that
the jury might have convicted based on insufficient evidence." Woodlyn, 188
Wash. 2d at 166. "Indeed," the court continued,
given that the trial court instructed the jury in this case on two
alternative means, CP at 72-73, it would be reasonable for the
jurors to think that either alternative represented a viable path to
conviction. Suppl. Br. of Pet'r at 15(" 'If the judge tells a jury that
they may find the defendant guilty on a theory that is factually
unsupported .. . , the jurors understandably might believe that
there must be evidence to support that theory.' "(quoting
Commonwealth v. Plunkett, 422 Mass. 634,639-40, 664 N.E.2d
833(1996))). Absent some form of colloquy or explicit instruction,
we cannot assume that every member of the jury relied solely on
the supported alternative.
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No. 75245-6-1/14
Woodlyn, 188 Wash. 2d at 166.
In State v. Nonog, 145 Wash. App. 802, 812-13, 187 P.3d 335(2008), aff'd,
169 Wash. 2d 220, 237 P.3d 250(2010), we determined that the statute herein,
RCW 9A.36.150, sets forth an alternative means crime. We concluded that the
interference statute set forth three alternative means by which a person may
commit the element of interfering with reporting, by preventing or attempting to
prevent the victim from: calling a 911 emergency communication system,
obtaining medical assistance, or making a report to any law enforcement official.
Nonog, 145 Wash. App. at 813. We explained:
The variations in RCW 9A.36.150(1) are in the conduct of
the would-be reporter rather than in the conduct of the interferer,
but they are not merely descriptive or definitional of essential terms.
The variations are themselves essential terms. The statute is
structured similarly to RCW 9A.72.120, the statute that defines the
crime of "tampering with a witness." Tampering may be committed
by inducing a witness to testify falsely, to be absent from official
proceedings, or to withhold information from a law enforcement
agency. RCW 9A.72.120. Witness tampering is regarded as an
alternative means crime. State v. Fleming, 140 Wash. App. 132, 135-
37, 170 P.3d 50 (2007). Interfering with reporting of a crime of
domestic violence must similarly be regarded as an alternative
means crime because the statute does not criminalize all acts that
might appear to constitute interfering with the reporting of domestic
violence. Interference is culpable only when a victim or witness is
trying to report the crime to a particular entity.
Nonog, 145 Wash. App. at 812-13.
Here, the jury was instructed on two of the alternative means set forth in
RCW 9A.36.150—that Holcomb prevented or attempted to prevent Shaunna
from (1) contacting 911 and (2) making a report to a police officer.
At trial, Shaunna testified:
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No. 75245-6-1/15
At some point -- I had no idea when I picked up my phone,
but at some point I realized I had my phone in my hand. So / tried
to dial 911 and he saw what I was doing and then tried to get my
phone.
And so I tried to get away from him, and because of the way
he was standing, the only way I could go was to my left, which was
down our hallway and into our bedroom.
And when we got in there, I was on the far side of the room
trying to just stay away from him, and he was still yelling at me and
I -- then he tried to take my phone again. And at one point he was
pulling it from my hand and then he got it and he threw it against
the wall.
(Emphasis added.) Later, after Shaunna testified that Holcomb had strangled
her and that she had lost consciousness, she continued:
Once I got up, I got my phone and I tried to get out of the
house. I did get out of the house and 1 was out front and / was still
trying to call the police.
And he came -- he followed me out of the house and was
reaching around me to get the phone. And I was -- I was able to
keep it away from him and managed to dial 911. And from the
point that I was able to connect to 911, he stopped and he let me
go.
(Emphasis added.)
A reasonable jury could conclude from Shaunna's testimony that she was
attempting to call 911 as well as make a report of domestic violence to the police.
She initially testified to trying to call 911, despite Holcomb's interference, and
she later testified that she was "still trying to call the police." That Shaunna
testified that she was still attempting to use her cellular phone to contact the
police implies that, when she initially attempted to contact 911 prior to the
strangulation, she was, at a minimum, trying to make a report to a police officer.
Consequently, viewed in the light most favorable to the State, Owens, 180 Wash. 2d
at 99 (citing State v. Franco, 96 Wash. 2d 816, 823,639 P.2d 1320 (1982)),
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No. 75245-6-1/16
Shaunna's testimony satisfied both of the alternative means on which the jury
was instructed." There was no error.
IV
Holcomb next asserts that double jeopardy bars a retrial on the
interference charge. This is so, Holcomb asserts, because the Supreme Court's
analysis in Nonoq necessarily demands that assault in the second degree—the
only domestic violence crime actually mentioned in the information—be deemed,
as a matter of law, to have been the underlying offense for the interference
charge. From this premise, Holcomb argues that the law forces the State to
accept this construction of the information. And, given that Holcomb was found
not guilty of the assault in the second degree charge, Holcomb further avers, he
must—as a matter of law—be deemed acquitted of the interference charge.
Thus, Holcomb concludes, double jeopardy bars a retrial on the interference
charge.
He is wrong. In Nonog, the prosecutor tried and argued the case such
that it was clear that the domestic violence charges specifically alleged in the
information were the predicate crimes for the interference charge therein. The
State was not forced by the Supreme Court to adopt that construction—instead,
11 The Washington Supreme Court in Nonoq declined to decide the question of whether
RCW 9A.36.150 is an alternative means statute, stating in a footnote that "Nonog raised other
claims in the Court of Appeals but the only issue here is the sufficiency of the information." 169
Wash. 2d at 224 n.1.
We are uncertain as to the continued efficacy of our analysis in Nonog on this question,
given our Supreme Court's recent opinions in Owens, 180 Wash. 2d at 95-99, and State v. Peterson,
168 Wash. 2d 763, 769-71, 230 P.3d 588(2010), both of which were filed after our opinion in Nonoq.
Nevertheless, we do not resolve this question both because the State did not assign error
to the trial court's instructions on this issue and because the issue was not briefed to us. Should
the State choose to refile charges against Holcomb, we do not view the law of the case doctrine
as barring litigation on this issue.
- 16 -
No. 75245-6-1/17
the State argued for such a construction, as it reflected how the trial had actually
played out.
Not so here.
Nonoq makes clear that dismissal without prejudice is the appropriate
remedy for a deficient information. 169 Wash. 2d at 226 n.3 (citing Quismundo, 164
Wash. 2d at 503-04). Nothing in that case requires the State to be bound to a
construction of an incomplete information that does not accord with its actual
theory of culpability and the manner in which it tried and argued the case.
Holcomb's claim fails.12
Reversed with instructions to dismiss without prejudice.
We concur:
I 4
12 In his appellate briefing, Holcomb assigns error to the trial court's denial of his motion
to arrest the judgment However, he does not offer legal authority or analysis to support this
alleged error. Accordingly, we do not consider it.
Holcomb also argues that mandatory joinder rules make it too late for the State to
"charge another crime." In so doing, he completely misses the point. Only one crime is at
issue—interfering with the reporting of domestic violence. Adding a particular and necessary fact
to the information (that assault in the fourth degree is the underlying domestic violence crime that
the State will seek to prove was committed) does not charge an additional—or different—crime.
There is no joinder—mandatory or otherwise.
Because of the manner in which we resolve this appeal, we need not address any of the
other issues raised in the briefing.
-17-