                                                                FILED 

                                                             MARCH 14,2013 

                                                       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. 30344-6-III
                                             )
                    Respondent and           )
                    Cross-Appellant,         )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
DOUGLAS JAMES CONNER,                        )

                                             )

                    Appellant.               )


      KULIK,   J. - Douglas James Conner was convicted of attempted first degree

assault with three deadly weapon enhancements. In this second appeal, Mr. Conner

challenges the imposition of the sentencing enhancements. He contends that his charging

information failed to give him notice of the State's intent to pursue the deadly weapon

enhancements. But the charging information specifically identified the deadly weapon as

a frrearm. We affirm the deadly weapon enhancements.
No. 30344-6-III
State v. Conner


                                         FACTS

       In 2003, Mr. Conner was charged with first degree assault after Mr. Conner

pointed a firearm at police. At the time of the offense, Mr. Conner was suffering from

lower back pain and pain medication withdrawaL In addition to the one count of first

degree assault, the charging information contained a section entitled "notice of deadly

weapon allegation." Clerk's Papers (CP) at 1-2. The allegation asserted that Mr. Conner

was armed with a deadly weapon during the commission of his crime of first degree

assault, in violation ofRCW 9.94A.125. The allegation described the deadly weapon as a

handgun.

       On the date of trial, the State filed a second amended information charging Mr.

Conner with attempted first degree assault. The information included three "notice of

deadly weapon allegation[s]." CP at 558-59. One allegation indicated the deadly weapon

was a handgun, another allegation indicated a revolver, and the third allegation did not

specify the weapon.

      A jury found Mr. Conner guilty of attempted first degree assault. The jury

answered affirmatively on all three special verdict forms, indicating that Mr. Conner was

armed with three separate firearms during the commission of the crime. The trial court

sentenced Mr. Conner to a total of249.75 months for the attempted assault, which


                                             2

No.30344-6-II1
State v. Conner


included 180 months of imprisonment for the sentencing enhancements. The judgment

and sentence indicated the finding of a special verdict for use of a deadly weapon other

than a firearm.

       Mr. Conner appealed. This court affirmed his conviction, but remanded his case

for resentencing within the statutory maximum for attempted first degree assault. State v.

Conner, noted at 134 Wn. App. 1057,2006 WL 2578281.

       On remand, Mr. Conner argued for the first time that the sentencing enhancements

should be removed. He contended that the charging documents did not provide him

notice that he could be sentenced under the firearm enhancement.

       The sentencing court adjusted Mr. Conner's sentence so it did not exceed the

statutory maximum, in accordance with the instructions on remand. Additionally, the

court concluded that the second amended information met the due process notice

requirements for the sentencing enhancements because the information referred to the

possession of deadly weapons and the definitional statute ofRCW 9.94A.l25. The trial

court concluded that the judgment and sentence should reflect three 12-month deadly

weapon enhancements.




                                            3

No. 30344-6-111
State v. Conner


       Mr. Conner appeals the imposition of the three 12-month deadly weapon

enhancements. Mr. Conner contends that the charging information failed to put him on

notice that the State intended to pursue a deadly weapon enhanced sentence.

                                        ANALYSIS

       An information or charging document that is not challenged until after a verdict

has been issued will be liberally construed in favor of validity. State v. Kjorsvik, 117

Wn.2d 93, 105,812 P.2d 86 (1991).

       Due process requires that the State give a defendant pretrial notice of the charge

against him with all of the necessary elements of the charge. In re Pers. Restraint of

Benavidez, 160 Wn. App. 165,171,246 P.3d 842 (2011). A sentencing enhancement is

considered an element of the offense and also requires adequate notice. Id.

       "Generally, an indictment or information must be worded so that a person of

common understanding will know what acts constitute the criminal offense." Id. at 170

(citing RCW 10.37.052). The charging document need not use the exact words of the

relevant statute, but is sufficient if the words conveying the same meaning are used to

give reasonable notice to the defendant of the charge. Kjorsvik, 117 Wn.2d at 97.

       The two-prong standard for postverdict review of a charging document requires

the court to examine (1) whether there is "at least some language in the information


                                             4

No.30344-6-III
State v. Conner


giving notice of the allegedly missing element(s)," and (2) ifthe language is unclear,

whether the defendant demonstrated that "actual prejudice resulted from inartful or vague

language." Kjorsvik, 117 Wn.2d at 106.

       In criminal cases where there has been a special allegation and evidence

establishing that the defendant was armed with a deadly weapon at the time of the

commission of the crime, RCW 9.94A.825 allows a jury to find by special verdict

whether or not the defendant "was armed with a deadly weapon at the time of the

commission of the crime." A pistol, revolver, or any other firearm is included in the term

deadly weapon for purposes of the deadly weapon special verdict. RCW 9.94A.825.

      Mr. Conner contends that the language in the information fails to clearly give

notice of the deadly weapon enhancement because the information cites RCW 9.94A.125,

a statute that was not in existence when he was sentenced. He also contends that the

deadly weapon language could be construed to pertain to the first degree assault statute.

       Mr. Conner's contentions fail. It is clear from the language in the information that

the State intended to pursue a deadly weapon enhancement. Both the first information

and the second amended information have separate sections entitled "notice of deadly

weapon allegation." These sections clearly inform Mr. Conner that the State intended to

pursue a deadly weapon enhancement. Also, the language ofthe allegation states that Mr.


                                             5

No. 30344-6-III
State v. Conner


Conner was armed with a deadly weapon in the commission of his crime, which mirrors

the statutory language for the deadly weapon special verdict and indicates that the

allegation is separate from the commission of his crime.

      Admittedly, the information referenced RCW 9.94A.l25, a citation not in effect

when Mr. Conner was charged. However, this error is not fatal. Previously,

RCW 9.94A.l25 referred to the deadly weapon special verdict definition, but the statute

had been recodified as RCW 9.94A.602 at the time that Mr. Conner was charged. LAWS

OF 2001,   ch. 10, § 6 (later recodified as RCW 9.94A.825 under LAWS OF 2009, ch. 28,

§ 41). The language of the deadly weapon special verdict statute remained the same after

recodification, and this language authorized a deadly weapon special verdict. See

Benavidez, 160 Wn. App. at 171-72. Thus, the charging document alerted Mr. Conner to

the State's intention to charge him with a deadly weapon enhancement.

       Mr. Conner contends that he was prejudiced as a result of the defective charging

because the trial court ultimately gave a jury instruction regarding a firearm enhancement
                    .
instead of a deadly weapon enhancement.

      Mr. Conner fails to demonstrate prejudice from the firearm instruction. First, the

charging document specifically identified the deadly weapon as a type of firearm,

notifYing Mr. Conner that he would need to mount a defense against this specific


                                             6

No. 30344-6-III
State v. Conner


allegation of having a firearm. Second, the use of the firearm instruction did not affect

the imposition of the deadly weapon enhancement. "A deadly weapon verdict is any

verdict or finding made in compliance with the procedures of former RCW 9.94A.125

that determines that the defendant \lsed an item that former RCW 9.94A.125 defined as a

'deadly weapon.'" In re Pers. Restraint a/Cruze, 169 Wn.2d 422, 434,237 P.3d 274

(2010). The deadly weapon special verdict expressly defines firearms as deadly weapons.

Therefore, the jury's firearm verdict was a deadly weapon verdict and supported the

imposition of the deadly weapon enhancement. See id. Mr. Conner fails to show how the

trial court's use of the firearm instruction resulted in prejudice.

       In sum, Mr. Conner was sufficiently advised that he needed to defend against the

deadly weapon enhancements. The language in the information was not vague or

ambiguous. Furthermore, Mr. Conner fails to demonstrate prejudice by any alleged

ambiguity.

       The trial court did not err by imposing three consecutive 12-month sentences for

the deadly weapon enhancements. The information gave Mr. Conner notice that the State

would pursue the enhancements. We affirm the deadly weapon enhancements.




                                               7

No. 30344-6-111
State v. Conner


      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.


                                          Kulik,J.

WE CONCUR:




                                             ~t
                                             I
Brown, J.                                 Korsmo, C.J.




                                            8

