No. 21292-1-III.The Court of Appeals of Washington, Division Three. Panel Five.
Filed: September 30, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 02-8-00175-0. Judgment or order under review. Date filed: 06/12/2002.
Counsel for Appellant(s), James Edward Egan, Attorney at Law, 315 W Kennewick Ave, Kennewick, WA 99336-3827.
Kenneth Eugene Jr Wright (Appearing Pro Se), #683280, c/o Green Hill Training School, 375 S.W. 11th St., Chehalis, WA 98532.
Counsel for Respondent(s), Tamara Ann Taylor, Benton Co Prosecuting Atty Ofc, 7320 W Quinault Ave, Kennewick, WA 99336-7665.
SCHULTHEIS, J.
Kenneth Wright Jr. was found guilty in a juvenile disposition of attempted first degree robbery. For the first time on appeal, he contends the information was deficient because it did not contain the specific elements of the crime. We find that the information contains all the necessary elements, and affirm.
Facts
Very early on the morning of March 11, 2002, Robert Cravens was riding his bicycle home from a Richland bowling alley when he was confronted by three juvenile males. One of the boys grabbed Mr. Cravens’s handlebars and demanded money. When Mr. Cravens stated that he had no money, the same boy pulled a black pistol out of his pants and demanded Mr. Cravens’s wallet. Mr. Cravens dropped his bicycle and ran to a nearby supermarket, where he obtained assistance. The boys ran away and hid. Officers with a canine unit eventually found Mr. Wright and the two other boys. Mr. Wright led the officers to two black BB gun pistols the boys had thrown into a garbage can.
Mr. Wright was charged by information with one count of attempted first degree robbery as follows:
COMES NOW, ANDY MILLER, Prosecuting Attorney for Benton County, State of Washington, and by this his Information accuses KENNETH EUGENE WRIGHT JR. of the crime(s) of ATTEMPTED ROBBERY IN THE FIRST DEGREE, RCW 9A.28.020(1), RCW 9A.56.190 and 9A.56.200(1)(b) committed as follows, to-wit: That the said KENNETH EUGENE WRIGHT, JR. in the County of Benton, State of Washington, on or about the 11th day of March, 2002, in violation of RCW 9A.28.020(1), RCW 9A.56.190 and 9A.56.200(1)(b), with intent to commit the crime of Robbery in the First Degree, committed an act, to-wit: pulled out a gun and asked Robert Cravens for his wallet, which was a substantial step toward that crime, 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 117.
At the adjudicative hearing, the two other boys testified that Mr. Wright was the one who pulled out the BB gun and demanded money from Mr. Cravens. Although Mr. Cravens, who is mentally challenged, could not identify Mr. Wright at the hearing and could not remember many details, he generally described his assailant as having dark hair, wearing dark clothes and a cap, and as being tall. When he was apprehended, Mr. Wright met this description, except that his hair was not dark. The juvenile court judge found that although the two other boys were not entirely credible, circumstances indicated they had not had an opportunity to fabricate their stories. Concluding that Mr. Wright made a substantial step toward robbery in the first degree by pulling out a gun and demanding Mr. Cravens’s wallet, and that Mr. Wright had the intent to commit the crime, the juvenile court found him guilty. He was sentenced in the standard range to 103-129 weeks in a juvenile detention facility.
Sufficiency of the Information
A charging document must contain all essential elements of the charged crime, whether statutory or nonstatutory, so as to inform the defendant of the charges against him or her and to allow him or her to prepare a defense. State v. Borrero, 147 Wn.2d 353, 359, 58 P.3d 245 (2002); State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991); State v. Bacani, 79 Wn. App. 701, 703, 902 P.2d 184 (1995). When the sufficiency of the charging document is challenged for the first time on appeal, its language is “liberally construed in favor of validity.” Borrero, 147 Wn.2d at 360 (quoting Kjorsvik, 117 Wn.2d at 102). This liberal standard prevents sandbagging, a defense tactic that foregoes challenging a defective information before or during trial, when a successful objection might result in only an amendment to the information. Kjorsvik, 117 Wn.2d at 103.
To determine the sufficiency of an information challenged for the first time on appeal, we ask (1) whether the necessary elements appear in any form or can be found by fair construction in the information; and, if so, (2) whether the defendant was nonetheless actually prejudiced by the information’s inartful language. Kjorsvik, 117 Wn.2d at 105-06; State v. Ralph, 85 Wn. App. 82, 84-85, 930 P.2d 1235 (1997). In this case, the information charged Mr. Wright with attempted first degree robbery. To charge attempt, the State must allege that (1) with intent to commit a specific crime, (2) the defendant did any act that was a substantial step toward the commission of that crime. RCW 9A.28.020(1); State v. Bencivenga, 137 Wn.2d 703, 707, 974 P.2d 832 (1999). An act constitutes a substantial step if it is strongly corroborative of the defendant’s purpose to commit the crime. Borrero, 147 Wn.2d at 362.
The crime in this case is described in former RCW 9A.56.200(1)(b) (1975), which provides in part that a person is guilty of first degree robbery if in the commission of a robbery he or she displays what appears to be a firearm or another deadly weapon. Robbery is further defined by statute as the unlawful taking of personal property from another person against the person’s will `by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.’ RCW 9A.56.190. One additional nonstatutory element of robbery is that someone other than the defendant had a possessory interest in the property taken. Bacani, 79 Wn. App. at 704. Another nonstatutory essential element of robbery is the intent to steal. Kjorsvik, 117 Wn.2d at 110.
Mr. Wright contends the information charging him with attempted first degree robbery fails to include the essential elements of (1) intent to steal; (2) attempt to take property belonging to someone other than himself; (3) attempt to take against Mr. Cravens’s will, through the threatened use of immediate force; and (4) commission of the crime while armed with a deadly weapon or displaying what appears to be a firearm. Reasonable construction of the charging language under the Kjorsvik liberalized standard supplies each of these elements.
I. Intent to steal. The information states that Mr. Wright acted `with intent to commit the crime of Robbery in the First Degree.’ CP at 117. It further defines this act as pulling out a gun and asking Mr. Cravens for his wallet. A commonsense reading of this language is that Mr. Wright was charged with pulling out the gun and demanding personal property from Mr. Cravens, with the design to commit first degree robbery. See Kjorsvik, 117 Wn.2d at 110-11 (reading language as a whole and in a commonsense manner, found intent to steal in the allegation that defendant unlawfully, by use or threatened use of force, and against victim’s will, took property while armed with a deadly weapon). To paraphrase Kjorsvik, 117 Wn.2d at 110, it is hard to understand how Mr. Wright could commit these acts `with intent to commit the crime of Robbery in the First Degree’ without intending to steal. Liberally construing this language in favor of its validity, we find adequate notice to Mr. Wright of this essential element.
II. Property belonging to someone other than Mr. Wright. Citing Bacani, 79 Wn. App. at 704, Mr. Wright contends the information fails to specify that the wallet belonged to someone other than himself. Rather than apply the strict construction standard of Bacani, we apply the more liberal test of this nonstatutory element found in State v. Graham, 64 Wn. App. 305, 308, 824 P.2d 502 (1992). Graham held that the allegation that the defendant unlawfully took personal property `from the person’ of the victims implied that the defendant had no legal claim to the property. Id. This language also indicated that the victims had actual possession of the property taken. Id. By alleging that Mr. Wright pulled out a gun and `asked Robert Cravens for his wallet,’ the information clearly implies that Mr. Wright had no legal claim to the wallet, that the wallet belonged to Mr. Cravens, and that Mr. Cravens had actual physical possession of the wallet. In other words, the allegations gave Mr. Wright sufficient notice that he was charged with attempting to take something that did not belong to him.
III. Taking against the victim’s will, through threatened use of force. These essential elements of robbery, RCW 9A.56.190, are indicated by the allegations that Mr. Wright pulled out a gun and asked for Mr. Cravens’s wallet. The fact that Mr. Wright displayed a gun when he demanded the wallet suggests that he did not expect Mr. Cravens to hand over the wallet willingly, and that he used the gun to force Mr. Cravens to comply. A liberal and fair construction of the language suggests that Mr. Wright was reasonably apprised that he was charged with attempting to take Mr. Cravens’s wallet by the threatened use of force.
IV. Commission of the crime while armed with a deadly weapon or displaying what appeared to be a firearm. Mr. Wright contends the information is defective in alleging that he `pulled out a gun’ because a BB gun does not constitute a deadly weapon or a firearm, citing RCW 9A.04.110(6)[1] and RCW 9.41.010(1).[2] In setting out its allegations, the information cites former RCW 9A.56.200(1)(b), which defines first degree robbery as a robbery committed while displaying what appears to be a firearm or other deadly weapon. Mere citation of the proper statute is not sufficient to apprise the defendant of all essential elements of a crime. Borrero, 147 Wn.2d at 361. Under the liberal standard of construction, however, we look to all the language on the face of the document to determine whether the necessary facts can be reasonably found in any form. Kjorsvik, 117 Wn.2d at 105-06.
Although a BB gun is not a firearm and consequently not a deadly weapon per se for purposes of the first degree robbery statute, it may constitute a deadly weapon depending on the circumstances in which it is used or threatened to be used. State v. Taylor, 97 Wn. App. 123, 126, 982 P.2d 687 (1999) (quoting RCW 9A.04.110(6)). In this case the BB gun presented what appeared to be a direct, serious threat of harm. A fair construction of the allegations in the information indicates that Mr. Wright was on notice that he could face either of two alternatives of the first degree robbery statute: commission of a robbery while armed with a deadly weapon (former RCW 9A.56.200(1)(a)) or while displaying what appears to be a firearm or other deadly weapon (former RCW 9A.56.200(1)(b)). Under the liberal construction for charging documents challenged for the first time on appeal, Mr. Wright had sufficient notice of the essential elements of the crime charged.
V. Prejudice. Even if all essential elements can be found by fair construction in the information, the document may be defective if its inartful language actually prejudices the defendant. Kjorsvik, 117 Wn.2d at 105-06. Mr. Wright contends he was prejudiced. Noting that the information does not clearly indicate that he was charged with displaying what appeared to be a firearm, he contends he might `very well have been relying upon the fact that the State could not prove that he pulled a gun on the victim.’ Appellant’s Br. at 11. As the State points out, however, Mr. Wright never argued at trial that the gun was not a firearm. His entire defense was that he was not the one who had the gun. Consequently, Mr. Wright cannot show that he was actually prejudiced by the inartful language of the information. See Graham, 64 Wn. App. at 309
(when the defense at trial has nothing to do with the alleged defect in the information, it is not likely that the defendant was prejudiced by inartful language).
Because Mr. Wright fails to satisfy either prong of Kjorsvik’s liberal construction test, his challenge to the language of the charging document must likewise fail.
Affirmed.
A majority of the panel has determined that 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.