STATE v. JONES, 49199-7-I (Wash.App. 6-9-2003)

STATE OF WASHINGTON, Respondent, v. WILLIAM HENRY JONES, Appellant, and DONALD TERRY WILLIAMS, and each of them, Defendant.

No. 49199-7-IThe Court of Appeals of Washington, Division One.
Filed: June 9, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County Docket No: 01-1-05458-5 Judgment or order under review Date filed: 08/29/2001

Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.

Jennifer L Dobson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.

Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Rebecca Mara Vasquez, Attorney at Law, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

APPELWICK, J.

William Jones was arrested after selling cocaine to an undercover police officer outside a North Seattle motel. The State charged him with delivering cocaine within 1,000 feet of a school bus stop.[1] The State presented evidence at trial that the Seattle School District had designated a bus stop approximately 620 feet from where Jones delivered cocaine. Jones appeals the school bus stop enhancement imposed following his conviction, contending that the information was constitutionally deficient because it omitted an essential element.[2] He also argues the enhancement violates due process notice requirements.[3] We affirm, finding that the charging language fairly implies the necessary elements of the enhancement, and that Jones had fair notice of the bus stop’s location.

A charging document that fails to set forth an essential element is fatally flawed and must be dismissed.[4] But Jones did not challenge the information below, which requires us to apply a liberal construction.[5] We inquire whether the necessary elements appear in the charging document in any form, or whether they can be found by fair construction. All the charging language should be read as a whole and construed according to common sense.[6] Missing elements may be implied if other language supports such a result.[7] If an element can be found, dismissal is not required unless the defendant was prejudiced by the unclear charging language.[8] RCW 69.50.435(a)(3) provides for an enhanced sentence if the defendant delivers drugs “[w]ithin one thousand feet of a school bus route stop designated by the school district.”[9]
In contrast, the information here accuses Jones, “at said time of being within 1,000 feet of a school bus route stop, to-wit: at North 88th Street and Midvale Avenue North, under the authority of RCW 69.50.435(a).”[10] Although it fails to mention school district designation, the information refers to the area as a “school” bus stop. This denotes official school involvement in establishing the stop. Moreover, it is commonly understood that school districts manage the operation of buses, including the locations where children are picked up and dropped off. A reasonable reading of the phrase is that a district had taken steps to designate the bus stop. Viewed for the first time on appeal, the information fairly implies the essential elements of the enhancement and is thus constitutionally sufficient.

Jones also asserts that the enhancement violated due process because he was not given fair warning of the bus stop’s location. Although due process does not require actual knowledge of all that a criminal statute proscribes, the government must provide a readily available means by which a person of ordinary intelligence can determine what conduct is illegal.[11] Here, a Seattle school transportation supervisor testified that the District kept information on its bus stops on file at the school district office. Consequently, we can infer that members of the public could contact the office to find out there was a bus stop at the intersection of North 88th Street and Midvale Avenue North.[12] This, combined with Jones’s ability to learn of the stop by observing school children, provided fair notice that selling drugs in the area would result in higher penalties.[13] The enhancement comports with due process.

We affirm.

COX and BAKER, JJ., concur.

[1] RCW 69.50.401(d); RCW 69.50.435(a).
[2] See State v. Phillips, 98 Wn. App. 936, 939, 991 P.2d 1195
(2000) (“The Sixth Amendment to the United States Constitution and article I, section 22 (amend.10) of the Washington Constitution require that a charging document include all essential elements of a crime, statutory and nonstatutory, so as to inform the defendant of the charges against him and to allow him to prepare his defense.” (Citations omitted.)).
[3] See State v. Becker, 132 Wn.2d 54, 61-62, 935 P.2d 1321 (1997).
[4] State v. McCarty, 140 Wn.2d 420, 428, 998 P.2d 296 (2000).
[5] State v. Kjorsvik, 117 Wn.2d 93, 105, 812 P.2d 86 (1991).
[6] Kjorsvik, 117 Wn.2d at 109.
[7] State v. Hopper, 118 Wn.2d 151, 156, 822 P.2d 775 (1992).
[8] Kjorsvik, 117 Wn.2d at 105-06; Hopper, 118 Wn.2d at 155.
[9] (Emphasis added.) RCW 69.50.435(a)(3); State v. Sanchez, 104 Wn. App. 976, 17 P.3d 1275 (2001).
[10] CP 6.
[11] Becker, 132 Wn.2d at 63.
[12] State v. Coria, 120 Wn.2d 156, 167, 839 P.2d 890 (1992) (bus stop enhancement provides fair notice if defendant can contact school or the transportation director to discern a stop’s location); see also State v. Johnson, No. 43625-2-I, slip op. at 12 (Wash.Ct.App. May 13, 2003) (testimony regarding records of designated bus stops kept at school district office supports inference that defendant could contact district to discern location of stops).
[13] Coria, 120 Wn.2d at 167 (gathering of school children to wait for buses can provide means of discerning location of bus stops).