                                                                    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 Wn.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       2 Holcomb      raises additional arguments that are resolved in the unpublished portion of this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.


                                              - 2-
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 Wn.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 Wn.2d at 228-29.
         In order to decide the matter before us, we must resolve this question.


                                             -4-
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 Wn. App. 824, 834-36, 39
P.3d 308(2001)(discussing State v. Cronin, 142 Wn.2d 568, 14 P.3d 752(2000); State v.
Roberts, 142 Wn.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 Wn. App. 653, 670, 226 P.3d 164(2010)(citing State v. Vangerpen, 125

Wn.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 Wn.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 Wn.2d at 226 (citing State v. Leach, 113 Wn.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 Wn.2d at 229 (citing State

v. Korsvik, 117 Wn.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 Wn. 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

Wn.2d at 226 n.3 (citing State v. Quismundo, 164 Wn.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 Wn.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 Wn.2d 157, 162-63, 392 P.3d

1062(2017)(citing State v. Ortega-Martinez, 124 Wn.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 Wn.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


                                        - 12-
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 Wn.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 Wn.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

Wn.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

Wn.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.



                                       -13-
No. 75245-6-1/14


Woodlyn, 188 Wn.2d at 166.

       In State v. Nonog, 145 Wn. App. 802, 812-13, 187 P.3d 335(2008), aff'd,

169 Wn.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 Wn. 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 Wn. 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 Wn. 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:




                                       - 14 -
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 Wn.2d

at 99 (citing State v. Franco, 96 Wn.2d 816, 823,639 P.2d 1320 (1982)),



                                        -15-
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
Wn.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 Wn.2d at 95-99, and State v. Peterson,
168 Wn.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 Wn.2d at 226 n.3 (citing Quismundo, 164

Wn.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.


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