                                                                       FILED
                                                                   JANUARY 30, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )          No. 36185-3-III
                                             )
                     Petitioner,             )
                                             )
       v.                                    )          UNPUBLISHED OPINION
                                             )
SHELBY LEIGH GIBSON,                         )
                                             )
                     Respondent.             )

       FEARING, J. — The State appeals the dismissal of a district court citation charging

Shelby Gibson with the crime of assault in the fourth degree without the citation alleging

that Gibson committed the assault with intent. Because the citation also omitted any

allegation as to the underlying acts committed by Gibson, we affirm.

                                         FACTS

       On appeal, the parties dispute only the adequacy of the charging document. The

underlying facts of the alleged crime lack relevance.

                                      PROCEDURE

       The State of Washington charged Shelby Gibson in district court with one count of

assault in the fourth degree. Stevens County Sheriff Deputy Travis Feldner issued the

citation charging Gibson. The citation alleged that Gibson violated statute “9A.36.041”
No. 36185-3-III
State v. Gibson


and further alleged that Gibson “DID THEN AND THERE COMMIT EACH OF THE

FOLLOWING OFFENSES[:] ASSAULT 4TH DEGREE.” District Court Clerk’s Papers

(DCP) at 6 (capitalization in original).

       The district court conducted a jury trial. At the close of Shelby Gibson’s case, she

moved to dismiss the charge because the terse charging document violated her

constitutional rights. Gibson claimed the document did not include all the elements of

assault and, therefore, did not properly inform her of the crime charged. The State

disagreed. In the alternative, the State asked to file a substituted complaint.

       The trial court granted the motion to dismiss. In her oral ruling, the district court

stated the reason for finding the citation deficient:

              [F]ailure of charging document, in that the state did not file a
       substitute complaint prior to resting their case and the citation did not
       include an essential element of the crime charge.

DCP at 5. On September 25, 2017, the district court entered findings of fact and

conclusions of law. In conclusion of law 3, the court wrote:

              3.9    The criminal citation in the case at hand does not contain any
       information regarding the element of assaulting another or of intent and is
       constitutionally deficient.

DCP at 4.

       The State appealed the dismissal of the charges against Shelby Gibson to the

superior court. The superior court affirmed the district court on the basis that common

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State v. Gibson


law requires that the citation include the word “intent” and the citation lacked the word.

                                   LAW AND ANALYSIS

        On appeal, the State contends that the document charging Shelby Gibson of assault

in the fourth degree did not need to explicitly state the element of “intent” in order to

survive constitutional challenge. The State emphasizes that even laypeople commonly

understand that the term “assault” means an intentional act such that the citation gave

Gibson sufficient notice of the elements of the charge.

        Federal and state law require that a defendant know the nature of the crime with

which he or she is charged. The United States Constitution, Amendment VI declares, in

part:

               In all criminal prosecutions, the accused shall . . . be informed of the
        nature and cause of the accusation.

The Washington Constitution, Article I, section 22 (amendment 10) reads:

             In criminal prosecutions the accused shall have the right . . . to
        demand the nature and cause of the accusation against him.

        Washington State follows the essential elements rule which demands that the

instrument charging a defendant with a crime contains sufficient information regarding

the charges against him or her. The essential elements rule applies to all charging

documents, and, therefore, district court citations must include all essential elements of

the crime charged. Auburn v. Brooke, 119 Wn.2d 623, 627, 836 P.2d 212 (1992). Under

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No. 36185-3-III
State v. Gibson


the rule, a charging document passes constitutional scrutiny only if the document includes

all essential elements of a crime, statutory and nonstatutory, so as to apprise the accused

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

Taylor, 140 Wn.2d 229, 235, 996 P.2d 571 (2000); State v. Vangerpen, 125 Wn.2d 782,

787, 888 P.2d 1177 (1995). The charging document need not state the statutory elements

of the offense in the precise language employed in the statute, and instead may use words

conveying the same meaning and import as the statutory language. State v. Taylor, 140

Wn.2d at 235-36.

       The State cited Shelby Gibson with fourth degree assault. RCW 9A.36.041

spartanly defines the crime:

              (1) A person is guilty of assault in the fourth degree if, under
       circumstances not amounting to assault in the first, second, or third degree,
       or custodial assault, he or she assaults another.

Because the Washington criminal code does not define the term “assault,” Washington

law borrows from the common law for the word’s definition. State v. Elmi, 166 Wn.2d

209, 215, 207 P.3d 439 (2009). Washington recognizes three definitions of assault: (1) an

unlawful touching; (2) an attempt with unlawful force to inflict bodily injury on another,

tending to accomplish it; and (3) putting another in apprehension of harm. State v. Elmi,

166 Wn.2d at 215. Fourth degree assault requires intent. State v. Davis, 119 Wn.2d 657,



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State v. Gibson


662, 835 P.2d 1039 (1992). But the State argues that the word “assault” imports the

essential element of an intentional mens rea.

       This division of the Court of Appeals applies a liberal standard for reviewing a

charging document after the State rests. State v. Sullivan, 196 Wn. App. 314, 382 P.3d

736 (2016). This standard requires satisfaction of two prongs: (1) do the necessary

elements of the crime appear in any form, or by fair construction can they be found in the

information, and, if so, (2) can the accused nevertheless show he or she suffered actual

prejudice by the unartful language. State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d 86

(1991); State v. Sullivan, 196 Wn. App. 314 at 322-23. Still, if the citation lacks an

express rendering of the charged crime’s elements or if the reader cannot fairly imply the

elements, the court presumes prejudice and dismisses the charges. State v. Sullivan, 196

Wn. App. 314, 323, 382 P.3d 736 (2016).

       Another rule grows from the two-prong test. The charging instrument fails to

impart satisfactory notice to the accused if the instrument omits the essential elements of

a crime in such a way that the accused lacks notice of both the illegal conduct and the

crime charged. State v. Taylor, 140 Wn.2d 229, 236-37, 996 P.2d 571 (2000). We reject

the State’s contention that Shelby Gibson’s citation survives constitutional challenge

because the citation gives no notice of the alleged illegal conduct even though one could

read the crime’s element of intent into the citation.

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No. 36185-3-III
State v. Gibson


       Washington courts have held that charges of various degrees of assault need not

include the word “intent” or “intentional.” State v. Taylor, 140 Wn.2d 229, 996 P.2d 571

(2000); State v. Davis, 119 Wn.2d 657, 835 P.2d 1039 (1992); State v. Hopper, 118

Wn.2d 151, 822 P.2d 775 (1992); State v. Chaten, 84 Wn. App. 85, 925 P.2d 631 (1996).

In so holding, the courts adopted the reasoning that the average person understands that

an assault entails intentional action and that dictionaries define “assault” as an intentional

act. The courts rejected the respective defendants’ argument that some degrees of assault

entail unintentional conduct such that the accused needs to know the mens rea of the

assault charged. The courts rested on the consistent interpretation of assault as an

intentional act.

       We consider State v. Taylor, 140 Wn.2d 229, 996 P.2d 571 (2000); State v. Davis,

119 Wn.2d 657, 835 P.2d 1039 (1992); State v. Hopper, 118 Wn.2d 151, 822 P.2d 775

(1992); State v. Chaten, 84 Wn. App. 85, 925 P.2d 631 (1996) distinguishable. The

Supreme Court, in State v. Taylor, observed the information alleged that the accused,

Cassandra Taylor, assaulted the victim by “pushing, kicking and punching the victim in

the face.” 140 Wn.2d at 242. The factual allegations, according to the court, pictured

intentional conduct. Thus, when constructing the information as a whole, the language

gave Taylor notice that the State charged her with an intentional crime. Taylor had filed a



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No. 36185-3-III
State v. Gibson


notice of special defense claiming self-defense, which filing confirmed her knowledge of

being charged with an intentional assault.

       In State v. Davis, the State charged Darvil Davis with second and fourth degree

assault. The information charged:

               That the defendant Darvil [sic] Davis, in King County, Washington,
       on or about August 1, 1988, did assault Darlynn Ferguson;
               Contrary to RCW 9A.36.041, and against the peace and dignity of
       the state of Washington.

State v. Davis, 119 Wn.2d at 662 (alteration in original). The high court found the

charging document sufficient. The Supreme Court observed that the information did not

merely include the name of the offense. The information used ordinary and concise

language that Davis “did assault Darlynn Ferguson.” State v. Davis, 119 Wn.2d at 662.

Davis would understand that assaulting his girlfriend entailed an intentional act.

       In State v. Hopper, 118 Wn.2d 151, 822 P.2d 775 (1992), the State charged Steven

Hopper with second degree assault on a law enforcement officer. The crime requires

proof of use of a dangerous weapon, but lowers the mens rea to “knowingly.” The

information alleged:

              That the defendant . . . did assault Officer D. Shelton . . . with a
       deadly [sic] weapon, and other instrument or thing likely to produce bodily
       harm, to-wit: a flashlight.




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No. 36185-3-III
State v. Gibson


State v. Hopper, 118 Wn.2d at 154 (alteration in original). The court found the language

in the information demonstrated a sufficient description of the conduct allegedly

committed by the accused.

       In all of the Supreme Court decisions, the court ruled that the word "assault"

conveyed the element "intent" in the context of describing the act done by the accused,

not simply by naming the crime charged. Shelby Gibson's citation failed to include any

description of conduct relating to intent or assault of another. The citation did not

identify any victim. The citation did not describe any of the conduct that allegedly

comprised the assault.

                                      CONCLUSION

      We affirm the dismissal of the citation against Shelby Gibson.

      A majority of the panel has determined 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.




I CONCUR:




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                                        No. 36185-3-III

       KORSMO, J. (dissenting) — The questions presented by this appeal have

previously been answered by our appellate courts. Each reviewing court has found a

different reason to reject the citation filed in this case. Each rationale fails under our case

law. The trial court ruling should be reversed and this case remanded for retrial.

       Before turning to those problems, a critical point is to note what all of us agree on.

A charging document filed in this state must contain all of the essential elements of the

crime. E.g., State v. Leach, 113 Wn.2d 679, 694-695, 782 P.2d 552 (1989). However,

the cases analyzing essential elements challenges frequently turn on the factual

expression of those elements in the particular charging document at issue. That is not a

concern when dealing with cases charged by citation. It is the failure to appreciate the

distinction that leads me to dissent.

       The majority opinion recognized the errors made by the lower courts, but created

its own error by relying on cases construing the factual sufficiency of prosecutor-filed

charging documents rather than turning to the cases dealing with the adequacy of

citations. The rules governing citation forms are different from those governing

complaints and informations. By relying on the wrong case law, the majority opinion

needlessly conflicts with multiple opinions.
No. 36185-3-III
State v. Gibson—Dissent


       Unlike lawyer-generated charging documents, citations typically are issued by law

enforcement officers. CrRLJ 2.1(b)(1). In order to release someone without need of

booking him or her into jail and an ensuing first court appearance, an officer can issue a

citation that advises the suspect of the charges and secures his/her promise to appear in

court. Id. The benefits of this “catch and release” policy to both the offender and the

court are clear. But one trade-off is that non-lawyers are left the task of charging the

offense and must do so on a court-prescribed form. Id. The Washington Supreme Court

recognized that citation forms need not provide factual descriptions of the conduct

because the offender is at the scene and is knowledgeable about the incident. Leach, 113

Wn.2d at 694, 698. As stated there:

       Complaints must be more detailed since they are issued by a prosecutor
       who was not present at the scene . . . . Citations, however, are generally
       issued by law enforcement officers who have personal contact with
       defendants at the scene. Defendants charged by citation are necessarily
       aware of the particular incidents for which officers are charging them.
       They presumably know the facts underlying their charges. . . . Differing
       procedures and requirements for charging by complaint and by citation and
       notice do not violate due process and equal protection rights.

Id. at 698 (italics in original).

       The Leach distinction between the factual sufficiency required in a prosecutor-

initiated charging document and the lack of need for factual discussion in a citation has

long been recognized. Auburn v. Brooke, 119 Wn.2d 623, 633-634, 836 P.2d 212 (1992);

State v. Plano, 67 Wn. App. 674, 676-677, 838 P.2d 1145 (1992). It also continues in the


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No. 36185-3-III
State v. Gibson—Dissent


rules governing district court charging. The current rule permitting charging by citation

does not require any factual allegations. See CrRLJ 2.1(b)(3). The majority’s decision to

the contrary conflicts with Leach and Brooke and their progeny, as well as with the

current (and former) district court criminal rules.

       The superior court in its RALJ appeal review, found that the implied element of

“intent” was omitted from the citation form. The majority correctly rejects this argument.

The word “assault” conveys the intent element. State v. Davis, 119 Wn.2d 657, 663, 835

P.2d 1039 (1992); State v. Hopper, 118 Wn.2d 151, 158, 822 P.2d 775 (1992).

       The district court judge, while also asserting that “intent” was missing from the

citation, primarily relied on the absence of the purported element that the defendant

assaults “another.” The majority likewise includes this missing “element” in its

conclusion. However, this court previously rejected that argument in Plano. There the

defendant argued that the identity of the victim was an essential element of a citation. 67

Wn. App. at 675. In a per curiam opinion, this court disagreed, ultimately concluding

that the defendant had “failed to persuade this court that the name of the alleged victim is

a statutory element of the crime of assault in the fourth degree.” Id. at 679. The

majority’s opinion directly conflicts with Plano on this point.

       The victim’s name is merely the expression of the statutory phrase “assaults

another” and is the object of the transitive verb, “assault.” If, as the district court judge

reasoned, “another” was an essential element of assault, then Plano is incorrect because

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No. 36185-3-III
State v. Gibson—Dissent


either “another” or the name of the other person needed to be included in the citation to

fulfill that function. But, as Leach and Plano teach, factual allegations need not be

included in a citation. The district court judge, however, was required to follow Plano

and the majority ought to at least explain why it is not doing so if it intends to change the

law governing citations.

       While I am probably more nostalgic than most people, I cannot claim that this

unnecessary detour into 1980s district court charging document history has been an

enjoyable return to my youth. More on point is George Santayana’s observation that

those “who cannot remember the past are doomed to repeat it.” GEORGE SANTAYANA,

THE LIFE OF REASON: REASON IN COMMON SENSE 284 (1905).

       I fear that is what happened here. Fourth degree assault is one of the few criminal

offenses that can be properly charged by citation on the forms prescribed by our court.

Since nearly every other misdemeanor offense must be charged by complaint, prosecutors

typically supersede citations with complaints once they become involved in a case. It is

best practice to do so in all cases in order to avoid having to respond to requests for bills

of particular, CrRLJ 2.4(e), and to hone a case for trial. That should have been done here

once the judge inquired about whether the case was proceeding under the citation, if for

no reason other than to have avoided multiple layers of appeal.

       However, that practice was not followed here and did not need to be. “Fourth

degree assault” properly alleges the essential elements of that crime when charged by

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State v. Gibson-Dissent


citation since no factual statement is needed. The majority's opinion conflicts with

Leach, 113 Wn.2d 679, Brooke, 119 Wn.2d 623 and Plano, 67 Wn. App. 674, as well as

with other cases following those. Accordingly, I dissent.




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