 /
       F'rt:E"'
       IN CLERKS OFFICE          '
11JPREME COURT, STAlE Cl' WASHINGTON
                         lj '   16
                                                                    ·Supreme cOurt Clerk ·




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,

                                       Petitioner,   NO. 92060-5

                    v.
                                                     ENBANC
CLIFFORD MELYIN PORTER, JR.,
                                                     Filed _-=:J-=-UL=-._1_4_2_~_16_
                                       Respondent.



         STEPHENS, J.-The State challenges a Court of Appeals decision reversing

Clifford Porter's conviction for possession of a stolen motor vehicle. At issue is

whether an information charging possession of a stolen motor vehicle must allege

that the defendant withheld or appropriated the vehicle for the use of a person other

than the true owner.

         Applying a liberal construction, we hold that the charging document

adequately captured the essential elements of the crime of possession of a stolen

motor vehicle. The information referenced the applicable criminal statutes and
State v. Porter (Clifford Melvin, Jr.), 92060-5




stated that Porter "did unlawfully and feloniously knowingly possess a stolen motor

vehicle." Clerk's Papers (CP) at l. The State was not required to include language

specifying that Porter withheld the vehicle from the true owner, as such language

merely defines and limits the scope of the crime of possession of a stolen motor

vehicle. State v. Johnson, 180 Wn.2d 295, 302, 325 P.3d 135 (2014) ("The State

need not include definitions of elements in the information."). We reinstate Porter's

conviction and remand to the Court of Appeals to address his remaining issues on

appeal.

                                    BACKGROUND

       Pursuant to a search warrant, police discovered portions of a stolen vehicle on

Porter's property.     The State subsequently charged Porter by information with

unlawful possession of a stolen motor vehicle, stating

       [t]hat CLIFFORD MELVIN PORTER, JR., in the State ofWashington,
       on or about the 27th day of August, 2011, did unlawfully and
       feloniously knowingly possess a stolen motor vehicle, lmowing that it
       had been stolen, contrary to RCW 9A.56.068 and 9A.56.140, and
       against the peace and dignity of the State of Washington.

CP at 1.

       At the close of trial, the jury convicted Porter as charged. On appeal, Porter

argued for the first time that his conviction should be overturned because the

charging document was constitutionally deficient for failing to allege that Porter

withheld or appropriated the vehicle from the true owner. Suppl. Br. of Appellant

at 2-6. Relying on its decision in State v. Satterthwaite, 186 Wn. App. 359, 344 P.3d



                                             -2-
State v. Porter (Clifford Melvin, Jr.), 92060-5




738 (2015), issued while Porter's appeal was pending, the Court of Appeals held that

this language constitutes an essential element of the crime, and reversed Porter's

conviction. State v. Porter, noted at 188 Wn. App. 1051 (2015). We granted review.

State v. Porter, 184 Wn.2d 1026, 364 P.3d 119 (2016).

                                       ANALYSIS

       Porter argues that his conviction should be overturned because the charging

document omitted an essential element ofthe offense of possession of a stolen motor

vehicle: RCW 9A.56.140(1 )'s provision stating that possession means to "'withhold

or appropriate [stolen property] to the use of any person other than the true owner or

person entitled thereto."' Suppl. Br. ofResp't at 4 (quoting RCW 9A.56.140(1)).

The State contends the information need not include the "withhold or appropriate"

language because it merely defines the essential element of possession and is not

itself an essential element. Suppl. Br. of Pet'r at 4-8. For the reasons explained

below, we conclude the State has the better argument.

     The Charging Document Captured All Essential Elements of the Crime of
                 Unlawful Possession of a Stolen Motor Vehicle

       Individuals charged with crimes have the constitutional right to know the

charges against them. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. The State

formally gives notice of the charges by information, which "shall be a plain, concise

and definite written statement of the essential facts constituting the offense charged."

CrR 2.1(a)(l).




                                             -3-
State v. Porter (Clifford Melvin, Jr.), 92060-5




       The information is constitutionally sufficient "only if all essential elements of

a c1ime, statutory and nonstatutory, are included in the document." State v.

Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995). "'An essential element is

one whose specification is necessary to establish the very illegality of the behavior

charged."' State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal

quotation marks omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P .3d 640

(2003)). "Words in a charging document are read as a whole, construed according

to common sense, and include facts which are necessarily implied."             State v.

Kjorsvik, 117 Wn.2d 93, 109, 812 P.2d 86 (1991). When, as here, the information

is challenged for the first time on appeal, the charging document will be construed

"quite liberally." State v. Hopper, 118 Wn.2d 151, 156, 822 P.2d 775 (1992); see

also State v. McCarty, 140 Wn.2d 420, 435, 998 P.2d 296 (2000).

       The primary purpose of the essential element rule is "to apprise the accused

of the charges against him or her and to allow the defendant to prepare a defense."

Vangerpen, 125 Wn.2d at 787. A secondary purpose for the essential element rule

is to bar "'any subsequent prosecution for the same offense."' State v. Nonog, 169

Wn.2d 220,226, 237 P.3d 250 (2010) (quoting State v. Leach, 113 Wn.2d 679, 688,

782 P.2d 552 (1989)). If the State fails to allege every essential element, then the

information is insufficient and the charge must be dismissed without prejudice. I d.

at 226 n.3.

       Porter was charged with unlawful possession of a stolen motor vehicle under

RCW 9A.56.068. That statute reads, "A person is guilty of possession of a stolen


                                             -4-
State v. Porter (Clifford Melvin, Jr.), 92060-5




vehicle if he or she possess [possesses] a stolen motor vehicle." RCW 9A.56.068(1)

(alteration in original). Porter argues that the information is deficient because it does

not contain the statutory definition of"possess." Suppl. Br. ofResp't at 4-5. Under

RCW 9A.56.140(1), '"[p]ossessing stolen property' means knowingly to receive,

retain, possess, conceal, or dispose of stolen property knowing that it has been stolen

and to withhold or appropriate the same to the use of any person other than the true

owner or person entitled thereto." At issue is whether RCW 9A.56.140(1) merely

defines the essential element of "possession" or instead provides an additional

essential element the State must allege when charging a criminal defendant with

possession of a stolen motor vehicle.

       In reversing Porter's conviction for possession of a stolen motor vehicle, the

Court of Appeals relied on Satterthwaite, 186 Wn. App. 359, which addressed the

identical issue presented in this case. In Satterthwaite, the Court of Appeals held

that RCW 9A.56.140(1) constituted an essential element of possession of a stolen

motor vehicle-rather than a definition of an essential element-because

withholding the stolen property from the owner is what ultimately makes possessing

the stolen vehicle illegal. !d. at 365. Otherwise, the Court of Appeals reasoned, the

law would not differentiate between "a person attempting to return known stolen

property and a person choosing to keep, use, or dispose of known stolen property."

!d. at 364. The Court of Appeals therefore held that '"withhold or appropriate'" is

an essential element ofRCW 9A.56.068 because it establishes the very illegality of

the act. !d. at 365.


                                             -5-
State v. Porter (Clifford Melvin, Jr.), 92060-5




        The State argues Satterthwaite is inconsistent with Johnson. Suppl. Br. of

Pet'r at 8. We agree. In Johnson, this court clarified the difference between an

essential element and a definition of an element, holding that the "State need not

include definitions of elements in the information." 180 Wn.2d at 302. In Johnson,

the defendant was charged with unlawful imprisonment. I d. at 301. The information

read:

               "And I, Daniel T. Satterberg, Prosecuting Attorney aforesaid further
        do accuse J.C. JOHNSON of the crime of Unlawful Imprisonment -
        Domestic Violence, based on a series of acts connected together with another
        crime charged herein, committed as follows:
               "That the defendant J.C. JOHNSON in King County, Washington,
        during a period of time intervening between May 4, 2009 through May 6,
        2009, did knowingly restrain [J.J.], a human being;
               "Contrary to RCW 9A.40.040, and against the peace and dignity of
        the State of Washington."

Id. (alteration in original). The defendant challenged the information, arguing it was

constitutionally insufficient for not including the definition of "restrain." I d. at 301-

02. Finding the charging document sufficient, this court held that the State was not

required to include definitions of elements and that it was enough for the State to

allege all of the essential elements found in the unlawful imprisonment statute. I d.

        Under our analysis in Johnson, the information charging Porter with unlawful

possession of a stolen vehicle passes constitutional muster. Contrary to Porter's

argument, the State was not required to include the definition of"possess." Like the

definition of "restrain," the definition of "possess" defines and limits the scope of

the essential elements of the crime of unlawful possession of a stolen motor vehicle.



                                             -6-
State v. Porter (Clifford Melvin, Jr.), 92060-5




the essential elements of the crime of unlawful possession of a stolen motor vehicle.

See also State v. Allen, 176 Wn.2d 611, 626-30, 294 P.3d 679 (2013) (upholding an

information charging felony harassment as constitutional when it did not articulate

the constitutional limitation that only true threats may be charged because the "true

threat" concept merely defines and limits the scope of the essential threat element in

the harassment statute).

       When liberally construed as required under Kjorsvik, the charging document

clearly put Porter on notice that possessing a stolen vehicle was illegal, which is the

primary purpose of the essential element rule. Vangerpen, 125 Wn.2d at 787. The

charging document also alleged that Porter knowingly possessed property he knew

to be stolen, and it referenced RCW 9A.56.140, which provides the applicable

definition of "possess." Though "[m]erely citing to the proper statute and naming

the offense is insufficient to charge a crime unless the name of the offense apprises

the defendant of all of the essential elements of the crime," here the information

sufficiently articulated the essential elements of the crime for which Porter was

charged, making further elaboration of what it means to unlawfully possess stolen

property unnecessary. !d. While it certainly could have been more elaborate, the

information was constitutionally sufficient. The Court of Appeals erred by vacating

Porter's conviction.

       Because the Court of Appeals relied on Satterthwaite, we take this opportunity

to disapprove that decision. Satterthwaite is erroneously premised on the notion that

the illegality of the conduct proscribed in RCW 9A.56.068 is withholding a stolen


                                             -7-
State v. Porter (Clifford Melvin, Jr.), 92060-5




motor vehicle from the true owner. But that is contrary to RCW 9A.56.068's plain

terms. Under RCW 9A.56.068, a "person is guilty of possession of a stolen vehicle

if he or she ... [possesses] a stolen motor vehicle." RCW 9A.56.068(1) (second

alteration in original). The fact that "possession" is more precisely defined in a way

that might vindicate someone who unwittingly possesses the stolen property and thus

does not withhold it from the true owner does not add to the essential elements of

RCW 9A.56.068. Instead, it limits and defines the scope of the essential element,

which the State is not required to allege under Johnson.

       To support his argument that the definition of"possess" is an essential element

of the crime for which he is charged, Porter points to the fact that the jury instructions

at trial contained that definition.     Suppl. Br. of Resp't at 6-7. Porter cites no

authority-binding, persuasive, or otherwise--to support his argument that charging

documents must mirror pattern to-convict jury instructions. And for good reason:

charging documents and jury instructions serve very different purposes.              Jury

instructions "allow[] each party to argue its theory of the case" and "must convey to

the jury that the State bears the burden of proving every essential element of a

criminal offense beyond a reasonable doubt." State v. Bennett, 161 Wn.2d 303, 307,

165 P.3d 1241 (2007) (citing Victor v. Nebraska, 511 U.S. 1, 5-6, 114 S. Ct. 1239,

127 L. Ed. 2d 583 (1994)). Charging documents serve to put the defendant on notice

of the crime against him. Vangerpen, 125 Wn.2d at 787.

       Finally, Porter's reliance on State v. Moavenzadeh, 135 Wn.2d 359, 956 P.2d

1097 (1998), and State v. McKinsey, 116 Wn.2d 911, 810 P.2d 907 (1991), is


                                             -8-
State v. Porter (Clifford Melvin, Jr.), 92060-5




misplaced. In Moavenzadeh, this court reversed a defendant's conviction when an

information charging three counts of first degree possession of stolen property

"contain[ed] no language which c[ ould] fairly be read to allege that [the defendant]

knew the property was stolen." 135 Wn.2d at 363. Overruling prior cases, the court

held that the knowledge element of possession of stolen property is an essential

element. Id. at 363-64. Here, the charging document clearly put Porter on notice

that he was being charged for "possess[ing] a stolen motor vehicle, knowing that it

had been stolen." CP at 1. Further elaboration of how a person may "possess" stolen

property was unnecessary. And although this court in McKinsey included the words

"withhold or appropriate" in setting out the elements of the crime that must be

proved, it did not announce them as essential elements of the crime for charging

purposes. 116 Wn.2d at 913. Instead, the issue in McKinsey was whether possession

of stolen property is a crime of dishonesty admissible for impeachment purposes.

Id. at 912. McKinsey does not undercut the clear holding in Johnson recognizing

that not all aspects of proof that are necessary at trial constitute essential elements

that must be included in the information. Johnson, 180 Wn.2d at 301-02.

                                     CONCLUSION

       Liberally construed, the charging document included all essential elements of

the crime of possession of a stolen motor vehicle. The State was not required to

include the definitional element of "possess" to properly charge Porter.

Accordingly, we reinstate Porter's conviction for unlawful possession of a stolen




                                             -9-
State v. Porter (Clifford Melvin, Jr.), 92060-5




motor vehicle and remand to the Court of Appeals to address Porter's remaining

claims.




                                            -10-
State v. Porter (Clifford Melvin, Jr.), 92060-5




WE CONCUR:




                                             11
