No. 20747-1-IIIThe Court of Appeals of Washington, Division Three. Panel Ten.
Filed: February 4, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County Docket No: 00-1-00151-1 Judgment or order under review Date filed: 12/21/2001
Counsel for Appellant(s), Kevin Lee Holt, Attorney at Law, 7502 W Deschutes Pl, Kennewick, WA 99336-7719.
Counsel for Respondent(s), Terry Jay Bloor, Attorney at Law, Benton Co Pros Office, 7320 W Quinault Ave, Kennewick, WA 99336-7665.
KATO, J.
Lisa Ann Budde appeals her convictions for manufacture and possession of methamphetamine and bail jumping. She contends the trial court should have dismissed the bail jumping charge because the information was insufficient. She also contends the court should have arrested judgment on guilty verdicts for the remaining counts. We affirm.
An undercover officer and an informant went to the Kennewick home of John and Lisa Budde on February 10, 2000. The officer remained in the car while Ms. Budde led the informant to a shed where Mr. Budde was located. Mr. Budde waved at the officer to come to the shed, and they discussed Mr. Budde’s need for lithium batteries to cook methamphetamine. The officer told Mr. Budde he could provide batteries, and Mr. Budde gave the officer a plastic baggie containing methamphetamine in return. Ms. Budde then complained to her husband that he was `giving away her shit.’ Report of Proceedings (RP) at 115.
During a search of the property on February 18, 2000, officers found various evidence that methamphetamine had been produced there in the past. Ms. Budde was charged with one count of manufacturing a controlled substance. She did not appear for at least two scheduled court appearances. Three days before trial, the State filed an amended information charging her with one count each of manufacturing, delivering, and possessing methamphetamine. In addition, Count IV of the amended information alleged:
That the said LINDA ANN BUDDE in the County of Benton, State of Washington, on or about the 31st day of March, 2000, and/or April 5, 2000,[1] in violation of RCW 9A.76.170(1), having been admitted to bail with the requirement of a subsequent personal appearance before BENTON COUNTY SUPERIOR COURT, a court of the State of Washington, after being charged with a class B or C felony did knowingly fail to appear as required, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Washington.
Clerk’s Papers (CP) at 191.
At trial, Ms. Budde presented the testimony of family members and others who stated Mr. Budde had physically and emotionally abused her. In addition, Karil Klingbeil, a retired University of Washington professor, testified as an expert on battered woman’s syndrome. She testified:
A. I feel that [Ms. Budde] suffers from Post Traumatic Stress symptoms as a result of being a battered woman involved in the Battered Woman’s Syndrome.
Q. And do you believe that affects her legal capacity? A. Yes.
Q. Why?
A. Because it clinically rendered her with an inability — or let me say it this way — a diminished capacity in understanding what was going on in the situation with the manufacture of drugs. It renders her with diminished capacity in assessing the danger to which she and her children lived, although she was beginning to get it pretty clear with daily abuse that it was headed downhill very fast; in other words, her perception of reality is different than if she were not subject to abuse.
RP at 281.
The court instructed the jury on the defense of duress. It also instructed the jury that it could consider mental illness or disorder in determining whether Ms. Budde had the capacity to form knowledge to commit the crimes.
After closing arguments, defense counsel moved to dismiss the bail jumping count, arguing the information was insufficient. The court did not rule on the motion at the time. The jury later found Ms. Budde guilty of bail jumping, possession of a controlled substance, possession of a controlled substance (as a lesser included offense of delivery), and manufacture of a controlled substance.
The court denied defense counsel’s motion to set aside the verdicts, but it delayed a decision on the motion to dismiss the bail jumping count.
In a memorandum decision, the court later concluded the information was sufficient.
The first issue is whether Count IV of the amended information included all of the elements of the crime of bail jumping. To satisfy the Sixth Amendment and article I, section 22 (amendment 10) of the Washington Constitution, a charging document must include all essential elements of a crime. State v. Taylor, 140 Wn.2d 229, 236, 996 P.2d 571 (2000). When the information is challenged before the verdict (as it was in this case), its language is strictly construed. Id. at 237.
At the time of the events at issue here, the bail jumping statute provided:
(1) Any person having been released by court order or admitted to bail with the requirement of a subsequent personal appearance before any court of this state, and who knowingly fails to appear as required is guilty of bail jumping.
(2) 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.
Former RCW 9A.76.170 (1983).[2]
Here, Count IV included all of the elements contained in subsection (1). However, Ms. Budde contends the language was insufficient because it failed to identify the underlying offense for which she was admitted to bail. She relies on a pair of Division Two cases in which bail jumping charges were dismissed because they failed to specifically identify the underlying crimes. See State v. Green, 101 Wn. App. 885, 6 P.3d 53
(2000), review denied, 142 Wn.2d 1018 (2001); State v. Ibsen, 98 Wn. App. 214, 989 P.2d 1184 (1999). The reasoning in both cases was that the defendants were insufficiently notified of the class or degree of bail jumping with which they were being charged. Green, 101 Wn.2d at 889-91; Ibsen, 98 Wn.2d at 217.
It is true that the court in Ibsen and Green stated broadly that the underlying offense is an essential element of the crime of bail jumping Green, 101 Wn.2d at 890; Ibsen, 98 Wn.2d at 217-18. However, in both cases it was the charging documents’ failure to refer to subsection (2) of the bail jumping statute that rendered them insufficient: ‘[S]ubsection two is important. It defines the degree and therefore the penalty for bail jumping.’ Ibsen, 98 Wn.2d at 217.
Here, the amended information did not expressly identify the underlying crime, but it followed the language of subsection (2) and thus unambiguously notified Ms. Budde that she was being charged with a class C felony. The amended information was sufficient.
The second issue is whether the court erred in denying Ms. Budde’s motion to set aside the guilty verdicts. A motion for arrest of judgment under CrR 7.4(a) challenges the sufficiency of the State’s evidence State v. Pleasant, 38 Wn. App. 78, 80, 684 P.2d 761, review denied sub nom., State v. Hubbs, 103 Wn.2d 1006, 690 P.2d 1174 (1984). The only question is whether, assuming the truth of the State’s evidence, the proof is legally sufficient to support the jury’s finding. Id.
Ms. Budde contends her motion should have been granted in light of the unrebutted evidence that she suffered from battered woman’s syndrome, which raises the defense of duress. State v. Williams, 132 Wn.2d 248, 258-59, 937 P.2d 1052 (1997); see RCW 9A.16.060(1). However, the State does not have the burden of disproving a claim of duress. Williams, 132 Wn.2d at 259 n. 3; State v. Riker, 123 Wn.2d 351, 366 n. 6, 869 P.2d 43
(1994). Duress is an affirmative defense that the defendant must prove by a preponderance of the evidence. Riker, 123 Wn.2d at 368-69.
Also, it is the function of the jury to weigh the evidence and determine the credibility of witnesses. State v. Jeannotte, 133 Wn.2d 847, 853, 947 P.2d 1192 (1997). The jury also is free to accept or reject an expert’s opinion. State v. Moon, 45 Wn. App. 692, 698, 726 P.2d 1263
(1986). Here, it was the jury’s rule to evaluate the testimony of Ms. Klingbeil and the lay witnesses to determine whether Ms. Budde had proven duress. The jury concluded she had not. There was no basis for overturning the jury’s verdict.
The convictions are affirmed.
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.
BROWN, C.J. and KURTZ, J., concur.