    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                         No. 70602-1-1
                      Respondent,
                                                         DIVISION ONE
               v.
                                                         UNPUBLISHED OPINION
 DAVID MICHAEL JOHNSON,

                      Appellant.                         FILED: September 22, 2014


      Appelwick, J. — Johnson appeals his conviction for felony harassment of a

criminal justice participant. He argues that his charging document omitted an essential

element of the crime. We affirm.

                                          FACTS


       The State charged Johnson with two counts of felony harassment of a criminal

justice participant in violation of RCW 9A.46.020(1) and (2)(b). The charging document

stated as follows:

       HARASSMENT, committed as follows: That the defendant, on or about the
       11th day of August, 2011, without lawful authority, knowingly threatened to
       cause bodily injury to another and maliciously to do any other act which was
       intended to substantially harm another with respect to his or her physical
       health and safety and the person threatened was a criminal justice
       participant, to-wit: [victims' names], who were performing theirofficial duties
       at the time the threat was made, and the defendant's words or conduct did
       place such criminal justice participants in fear that the threat would be
       carried out, and a reasonable criminal justice participant would have been
       in fear under all the circumstances that the threat would be carried out;
       proscribed by RCW 9A.46.020(1) and (2)(b), a felony.
       The jury found Johnson guilty on both counts. Johnson appeals.

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No. 70602-1-1/2




                                       DISCUSSION


       We review challenges to the sufficiency of a charging document de novo. State v.

Williams. 162 Wn.2d 177, 182, 170 P.3d 30 (2007). To be constitutionally adequate, a

charging document must include all essential elements of the crime. State v. Kjorsvik,

117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). The primary purpose of this rule is to give

defendants sufficient notice of the charges against them so they can prepare an adequate

defense. ]d at 101. Where, as here, the appellant challenges a charging document for

the first time on appeal, we construe the document liberally, in favor of its validity, jd. at

103.


       A person is guilty of harassment if, without lawful authority, the person knowingly

threatens to "cause bodily injury immediately or in the future to the person threatened or

to any other person." RCW 9A.46.020(1)(a)(i). Harassment is elevated from a gross

misdemeanor to a felony if any of the following apply:

       (i) The person has previously been convicted in this or any other state of
       any crime of harassment, as defined in RCW9A.46.060, of the same victim
       or members of the victim's family or household or any person specifically
       named in a no-contact or no-harassment order; (ii) the person harasses
       another person under subsection (1)(a)(i) of this section by threatening to
       kill the person threatened or any other person; (iii) the person harasses a
       criminal justice participant who is performing his or her official duties at the
       time the threat is made; or (iv) the person harasses a criminal justice
       participant because of an action taken or decision made by the criminal
       justice participant during the performance of his or her official duties. For
       the purposes of (b)(iii) and (iv) of this subsection, the fear from the threat
       must be a fear that a reasonable criminal justice participant would have
       under all the circumstances. Threatening words do not constitute
       harassment if it is apparent to the criminal justice participant that the person
       does not have the present and future ability to carry out the threat.

RCW 9A.46.020(2)(b) (emphasis added).
No. 70602-1-1/3


       Johnson argues that his charging document was insufficient, because it omits the

essential element that "itwas not apparent to the criminal justice participant that [Johnson]

lacked the present and future ability to carry out the threat." The State counters that the

charging document encompasses that element with the language that "a reasonable

criminal justice participant would have been in fear under all the circumstances that the

threat would be carried out." Johnson disputes that the two phrases bear the same

meaning.1 He maintains that whether a victim perceives the ability to carry out a threat is

different than whether a victim feels fear from the threat.

       We agree with the State. The charging document language states that a victim

must reasonably fear that the threat will be carried out. The statutory language provides

that a victim's fear is not reasonable if it is apparent the threat cannot be carried out.

RCW 9A.46.020(2)(b). The statutory language is not an element to be proved. It is stated

in the negative and, ifdemonstrated, negates the element of reasonable fear.

       Johnson further alleges that the charging document "expresses futurity" with the

phrase "'the threat would be carried out.'" (Emphasis added.) Accordingly, he asserts,

the charging document does not encompass the requirement that it be apparent Johnson

had the present ability to carry out the threat. This is a strained interpretation inconsistent

with our liberal construction of the charging document. See Kiorsvik, 117 Wn.2d at 103.

A threat inherently precedes the act of carrying out that threat. The phrase "would be

carried out" reflects this intrinsic timeline.




      1 In disputing the State's position, Johnson argues that it "renders the [statutory]
language superfluous." Despite this characterization, the thrust of his argument is that
the two phrases have distinct meanings.
No. 70602-1-1/4


       Finally, Johnson notes that the "to convict" instruction mirrors the statutory

language. This seems to imply that jury instructions reflect the language that must appear

in a charging document. But, as the State observes, "'the purpose of jury instructions is

to instruct the jury on the applicable law, so they must necessarily contain more complete

and precise statements of the law than are required in an information or charging

document.'" State v. Benitez. 175 Wn. App. 116, 124-25, 302 P.3d 877 (2013) (internal

quotation marks omitted) (quoting State v. Rivas, 168 Wn. App. 882, 891-92, 278 P.3d

686 (2012), review denied. 176 Wn.2d 1007, 297 P.3d 68 (2013)).

       The charging documentgave Johnson adequate notice ofthe charges against him.

We affirm.




WE CONCUR:




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