                                                                        FILED
                                                                    JANUARY 19, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill

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

STATE OF WASHINGTON,                          )
                                              )         No. 32960-7-111
                     Respondent,              )
                                              )
      v.                                      )
                                              )         UNPUBLISHED OPINION
GENE A. CAMARATA,                             )
                                              )
                     Appellant.               )

       SIDDOWAY, J. - By virtue of to-convict instructions proposed by the State, the

"law of the case" in prosecuting Gene Camarata for voter and candidate fraud required

the State to prove beyond a reasonable doubt that Mr. Camarata provided false

information in Kittitas County, Washington. Yet a good deal of the State's own evidence

suggested that Mr. Camarata, who was homeless, transmitted the information from

outside Kittitas County, to either Thurston or Spokane counties, and that the information

was only relayed thereafter to Kittitas County. Because reasonable jurors could not

conclude beyond a reasonable doubt from the evidence presented that Mr. Camarata

provided false information in Kittitas County, his convictions are reversed and we

remand with directions to dismiss the charges.

                    FACTS AND PROCEDURAL BACKGROUND

       In April and May 2012, Gene Camarata called the Kittitas County Auditor's office

30 to 50 times with questions about registering to vote so he could run for a political
I

    No. 32960-7-111
    State v. Camarata


    office. He generally spoke with Susan Higginbotham, the county's election supervisor,

    who had known Mr. Camarata for many years from his contacts with the office. He

    asked Ms. Higginbotham about school district and precinct committee officer positions

    that might be up for election.

           Ms. Higginbotham told Mr. Camarata during the course of their conversations that

    he needed to reside in Kittitas County to run for office there, and he told her of two

    addresses in Ellensburg that he might use to run for office: 1001 East Eighth Avenue, unit

    4, and Ellensburg Chevrolet, where he sometimes slept in a boat. Ms. Higginbotham

    knew the Eighth Avenue address to be for an apartment complex where Mr. Camarata

    once lived but that no longer existed at that location. On at least one occasion during

    their conversations in the spring of 2012 she asked Mr. Camarata ifhe was even in

    Ellensburg, but he would not reveal his whereabouts to her.

           On May 17, 2012, Mr. Camarata registered to vote online, using the Washington

    Secretary of State's MyVote website. He then called Ms. Higginbotham to see if his

    registration had gone through. She searched the voter database and saw that it had. She

    also saw that the online voter registration form Mr. Camarata submitted electronically

    that day listed his residential address as "1001 E. 8th Ave., (#4) ELLENSBURG WA

    98926," and his mailing address as "General Delivery Ellensburg WA 98926." Ex. 2-A.

    Mr. Camarata had signed the voter oath by using a signature that the MyVote website

    imports from a voter registrant's driver's license.

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No. 32960-7-111
State v. Camarata


       Ms. Higginbotham later checked the Washington Election Information website

and determined Mr. Camarata had filed a declaration of candidacy for precinct committee

officer for the county's 22nd precinct as a Democrat on May 18, 2012. The declaration

of candidacy imported "1001 E. 8th Ave., (#4)" from his online voter registration form as

his residential address. Ex. 3-B.

       The county prosecutor notified the Kittitas County Sheriffs Office of possible

election fraud by Mr. Camarata in June 2012, and a detective, Darren Higashiyama, was

assigned to investigate. He spoke with Mr. Camarata at that time, who told the detective

he had been living in buses in Yakima. Yakima is in Yakima County, not Kittitas

County. As part of his investigation, the detective attempted to send Mr. Camarata letters

to the general delivery, Ellensburg mailing address he had provided and to "1001 E. 8th

Ave. #4." Both were returned by the Ellensburg post office.

       In October 2012, Mr. Camarata sent Detective Higashiyama two letters that bore a

return address of "General Delivery, Ellensburg," but that were postmarked from

Portland, Oregon.

       In May 2013, the State of Washington charged Mr. Camarata with one count of

violation of the voter registration law contrary to RCW 29A.84.130(1), and one count of

providing false information on a declaration of candidacy in violation ofRCW

29A.84.3 l l(l). Both are class C felonies. The case proceeded to a jury trial.




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No. 32960-7-III
State v. Camarata


       At trial, the State called both the Kittitas County auditor and an information

specialist from the Secretary of State's Office in Olympia to testify about the MyVote

website operated by the secretary of state. The State's evidence established that the

secretary of state's office maintains two databases supporting the conduct of elections: a

voter registration database and a Washington election information database. Online voter

registration is available to anyone who is eligible to vote in Washington and who has a

driver's license or identification card (ID) issued by the Washington Department of

Licensing.

       The prosecutor had the election information specialist demonstrate online voter

registration to the jury. The information specialist explained that after confirming

citizenship status and age on the MyVote website, a voter registrant is required to enter a

residential address so the voter can be tied to the proper precinct. He testified that a

homeless registrant can enter a nontraditional address in the residential address field,

describing as best they can where they reside, even (by way of example) under a bridge.

The online registration form allows an individual to put down a separate mailing address

in the event they do not receive mail at their residence or prefer to receive their mail

somewhere else.

       The election information specialist testified that once all of the required

information has been entered by a voter registrant using the MyVote website, a review

page appears, enabling the registrant to edit any errors. The bottom of the form contains

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No. 32960-7-III
State v. Camarata


an oath that states "I declare that the facts on this voter registration form are true. . . . I

will have lived at this address in Washington for at least thirty days immediately before

the next election at which I vote." Ex. 1-B. The MyVote website imports a voter

registrant's Washington driver's license or ID card signature to the online voter

registration form. In order to complete the online registration process, the registrant must

affirmatively check boxes attesting to the voter's oath, and authorizing importation of the

voter's signature. According to the Kittitas County auditor, once the registration is

completed, the information is "forwarded" by the secretary of state to the county

auditor's office and voter database, "notif{ying]" the county of the new voter information.

Report of Proceedings (RP) (Nov. 24, 2014) at 51-52.

       The prosecutor also had the election information specialist describe for the jury

how a candidate can complete an online declaration of candidacy with the Secretary of

State's Office. The candidate provides name and date of birth information, which then

imports the registrant's residential address from the voter's online voter registration form.

The website.will then show certain elective offices based on the candidate's residence

address, or the candidate can look at all county elective offices. The candidate selects the

office for which he or she wants to declare candidacy, and enters his or her name as it

will appear on the ballot. Before an individual can submit the declaration, the candidate

must declare that the information is true and "that I am a registered voter residing at the

residential address and precinct listed above." Ex. 1-C.

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No. 32960-7-111
State v. Camarata


       The State presented evidence that Mr. Camarata had lived at 1001 East Eighth

Avenue, unit 4, in Ellensburg from at least 2001 to 2008, and had earlier provided that

address in registering to vote. It presented evidence that in 2008, Kittitas County

acquired the property at 1001 East Eighth Avenue, which it used for police and fire

department training exercises. During a fire department training exercise in December

2008, the apartment building at 1001 East Eighth A venue was burned to the ground. The

jury was presented with evidence that by the May 2012 time frame of Mr. Camarata's

online voter registration, 1001 East Eighth A venue was an unpaved vacant lot, sometimes

used for overflow and recreational vehicle (RV) parking by the Kittitas County

fairgrounds.

       Detective Higashiyama testified that by 2012, Mr. Camarata was itinerant and had

no permanent address. During the detective's testimony, he identified and the court

admitted a photograph of a driver's license issued to Mr. Camarata in December 2010

that included the address of the Red Apple Motel in Yakima as Mr. Camarata's residence.

Detective Higashiyama testified he had known Mr. Camarata to be found in motels in

Pasco and a mission in Multnomah County, Oregon, and had personally met Mr.

Camarata at motels in Yakima and Pasco.

      The court's to-convict jury instructions for the voter registration and candidate

fraud crimes both indicated (consistent with the jury instructions proposed by the State)

that in order to convict Mr. Camarata, the State must prove beyond a reasonable doubt

                                             6
No. 32960-7-III
State v. Camarata


that Mr. Camarata had provided false information "in Kittitas County, Washington."

Clerk's Papers (CP) at 62, 64. Specifically, jury instruction 6 stated in relevant part,

             To convict the defendant of the crime of Violation of Voter Registration
       Law, the State of Washington must have proved beyond a reasonable doubt that:
               (1) On or about May 17, 2012, in Kittitas County, Washington, the
       defendant knowingly provided false information on an application for voter
       registration.

CP at 62 (emphasis added). Jury instruction 8 stated in relevant part,

             To convict the defendant of the crime of Providing False Information on
       Declaration of Candidacy, the State of Washington must have proved beyond a
       reasonable doubt that:
             (1) On or about May 18, 2012, in Kittitas County, Washington, the
       defendant knowingly provided false information on his declaration of candidacy.

CP at 64 (emphasis added).

       The State did not offer evidence as to where Mr. Camarata was when he used the

online voter registration or declaration of candidacy systems. Detective Higashiyama

admitted when cross-examined that he was unable to determine what Internet Protocol

(IP) address was used to submit Mr. Camarata's online voter registration form and

declaration of candidacy.

       The State's evidence had established that the secretary of state's voter and

candidate databases are physically located on the servers of the digital archives in

Cheney, which is in Spokane County. Like the county auditor, who testified that voter

information is "forwarded" to the county from the secretary of state's system, the election



                                              7
No. 32960-7-III
State v. Camarata


information specialist described the secretary of state's My Vote website system as

"sending" voter registration information to counties, to be imported into their systems;

elsewhere, he described the county's information as "com[ing] down" from the secretary

of state's system. RP (Nov. 24, 2014) at 52, 167, 169-70.

       At the close of the State's case, Mr. Camarata's lawyer moved for a directed

verdict on the basis that the State had not met its burden of proof, specifically including

its failure to prove that Mr. Camarata provided the false information in Kittitas County.

The motion was denied.

       During deliberations, the jury sent the following written inquiry to the trial court:

       Please give some clarification on [jury instruction 6.] (1) Did Gene need to
       be in Kittitas? Or, (2) was the crime in Kittitas County[?] (Physically)

CP at 82. The trial court responded: "Please refer to, and follow, the instructions you

were provided." Id.

       The jury found Mr. Camarata guilty as charged. He unsuccessfully moved for a

judgment notwithstanding the verdict on the renewed ground that the State failed to prove

beyond a reasonable doubt that the false information had been provided in Kittitas

County. The trial court reasoned that Mr. Camarata waived any improper venue and that

there was sufficient evidence to prove by a preponderance of the evidence, which the

court deemed to be the proper standard of proof, that he was physically in Kittitas County

when he registered online. It imposed three months' confinement for Mr. Camarata, but



                                              8
No. 32960-7-111
State v. Camarata


granted credit for time served which resulted in Mr. Camarata's immediate release. Mr.

Camarata appeals.

                                        ANALYSIS

       Mr. Camarata makes five assignments of error, but we find his challenge to the

sufficiency of the evidence to establish that he provided false information in Kittitas

County, Washington to be dispositive. 1

       Venue is neither an element of a crime nor a matter of jurisdiction, but is a

constitutional right guaranteed under the Washington Constitution. 12 ROYCE A.

FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE§ 1601,

at 348 (3d ed. 2004). As relevant, article 1, section 22 of the Washington Constitution

provides:

       In criminal prosecutions the accused shall have the right ... to have a
       speedy public trial by an impartial jury of the county in which the offense is
       charged to have been committed.

The constitutional right may be waived by failing to object to improper venue. State v.

Dent, 123 Wn.2d 467, 479-80, 869 P.2d 392 (1994). When venue is at issue, it need only



       1
         Mr. Camarata's other assignments of error are that (1) the evidence was
insufficient to prove that he knowingly provided a false address on his voter registration
form and knowingly provided false information on his declaration of candidacy, (2) the
prosecutor committed misconduct by misstating the law during closing arguments, (3) the
trial court violated his public trial right by conducting peremptory challenges at sidebar,
and (4) the trial court erred by excusing a juror who had previously been convicted of a
felony without inquiring into whether the juror's civil rights had been restored.

                                             9
No. 32960-7-111
State v. Camarata


be proved by a preponderance of the evidence. Id. at 480.

       Mr. Camarata's argument has never been that venue was improper. He has

consistently argued, instead, that by unnecessarily including an allegation that his crimes

were committed in Kittitas County in the to-convict instructions, the State was required to

prove that contention beyond a reasonable doubt. "[J]ury instructions not objected to

become the law of the case." State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).

Under this doctrine, "the State assumes the burden of proving otherwise unnecessary

elements of the offense when such added elements are included without objection in the

'to convict' instruction." Id.; State v. Hobbs, 71 Wn. App. 419,423,859 P.2d 73 (1993)

(the law of the case doctrine binds the State to prove additional elements included in

accepted jury instructions it proposed).

                      I. Hickman remains controlling Washington law

       Following the original briefing of this matter and while our opinion was in

process, Division One of our court filed State v. Tyler, 195 Wn. App. 385, 396, 382 P.3d

699 (2016), in which it held that Hickman is no longer good law following the United

States Supreme Court's decision in Musacchio v. United States,_ U.S._, 136 S. Ct.

709, 193 L. Ed. 2d 639 (2016). We invited supplemental briefing by the parties and

respectfully disagree with Tyler.

       In Musacchio, the Supreme Court-focusing on sufficiency review as required by

due process-held that a "reviewing court considers only the 'legal' question 'whether,

                                            10
No. 32960-7-111
State v. Camarata


after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.'"

136 S. Ct. at 715 (quoting Jackson v. Virginia, 443 U.S. 307,319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979)).

          The Fifth Circuit Court of Appeals had analyzed sufficiency review as involving

an additional gloss under the federal law of the case doctrine when a jury instruction

erroneously adds an element not required for the charge. In that event, the Fifth Circuit

explained (subject to an exception not relevant here) "erroneously heightened jury

instructions generally become the binding 'law of the case' on appeal." Id. at 714 (citing

United States v. Musacchio, 590 Fed. App'x. 359, 362 (5th Cir. 2014), aff'd, _         U.S.

_ , 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016)). This was error, the Supreme Court held,

because the federal law of the case doctrine "does not bear on how to assess a sufficiency

challenge when a jury convicts a defendant after being instructed-without an objection

by the Government-on all charged elements of a crime plus an additional element." Id.

at 716.

          The United States Supreme Court is the final word on federal common law, of

course, but it was not speaking, nor could it, to the law of the case doctrine under

Washington common law. In Washington, the law of the case doctrine does bear on how

to assess a sufficiency challenge in such circumstances. We quote at length from




                                              11
I
,.


     No. 32960-7-III
     State v. Camarata


     Hickman, including its internal citations, to underscore how well settled Washington

     common law is on this score:

           The law of the case is an established doctrine with roots reaching back to
           the earliest days of statehood. Under the doctrine jury instructions not
           objected to become the law of the case. Stat~ v. Hames, 74 Wn.2d 721,
           725, 446 P.2d 344 (1968) ('" The foregoing instructions were not excepted
           to and therefore, became the law of the case."') (quoting State v. Leohner,
           69 Wn.2d 131, 134, 417 P.2d 368 (1966)); State v. Salas, 127 Wn.2d 173,
           182,897 P.2d 1246 (1995) ("[I]fno exception is taken to jury instructions,
           those instructions become the law of the case."). In criminal cases, the
           State assumes the burden of proving otherwise unnecessary elements of the
           offense when such added elements are included without objection in the "to
           convict" instruction. State v. Lee, 128 Wn.2d 151,159,904 P.2d 1143
           (1995) ("Added elements become the law of the case ... when they are
           included in instructions to the jury.") (citing State v. Hobbs, 71 Wn. App.
           419,423, 859 P.2d 73 (1993); State v. Rivas, 49 Wn. App. 677, 683, 746
           P.2d 312 (1987)). See also State v. Barringer, 32 Wn. App. 882, 887-88,
           650 P.2d 1129 (1982) ("Although the charging statute ... did not require
           reference to [the added element], by including that reference in the
           information and in the instructions, it became the law of the case and the
           State had the burden of proving it.") (citing State v. Worland, 20 Wn. App.
           559, 565-66, 582 P.2d 539 (1978)), overruled in part on other grounds by .
           State v. Monson, 113 Wn.2d 833, 849-50, 784 P.2d 485 (1989).
                   On appeal, a defendant may assign error to elements added under the
           law of the case doctrine. State v. Ng, 110 Wn.2d 32, 39, 750 P.2d 632
           ( 1988) (because the State failed to object to the jury instructions they "are
           the law of the case and we will consider error predicated on them."
           (citations omitted)). Such assignment of error may include a challenge to
           the sufficiency of evidence of the added element. Barringer, 32 Wn. App.
           at 887-88; Schatz v. Heimbigner, 82 Wash. 589, 590, 144 P. 901 (1914)
           ("These alleged errors are not available to the appellants, because they are
           at cross purposes with the instructions of the court to which no error has
           been assigned. There is but one question open to them; that is, Is there
           sufficient evidence to sustain the verdict under the instructions of the
           court?"); Tonkovich v. Department of Labor & Indus., 31 Wn.2d 220, 225,
           195 P.2d 638 (1948) ("It is the approved rule in this state that the parties are
           bound by the law laid down by the court in its instructions where, as here,

                                                 12
Ij
1
I    No. 32960-7-111


II   State v. Camarata


            the charge is approved by counsel for each party, no objections or
I           exceptions thereto having been made at any stage. In such case, the
Ii          sufficiency of the evidence to sustain the verdict is to be determined by the
            application of the instructions .... ").
I
I    135 Wn.2d at 101-03 (alterations in original) (footnotes omitted).


I
i
I
            Washington's law of the case doctrine serves to avoid prejudice to the parties and

     ensure that the appellate courts review a case under the same law considered by the jury.

II   State v. Calvin, 176 Wn. App. 1, 22, 316 P.3d 496 (2013). The common vantage point is
!
     particularly important in a case like this, where the additional element was not the result

     of a scrivener's error but was consciously believed by the State to be a required proof,

     and the defense made strategic trial decisions knowing that the State would undertake to

     prove it. See id. at 23 (discussing Hobbs, 71 Wn. App. 419).

                                   II. Sufficiency of the evidence

            Accordingly, "We review the sufficiency of the evidence in light of the

     instructions given." MiUies v. LandAmerica Transnation, 185 Wn.2d 302,313,372 P.3d

     111 (2016).

            "' The test for determining the sufficiency of the evidence is whether, after

     viewing the evidence in the light most favorable to the State, any rational trier of fact

     could have found guilt beyond a reasonable doubt.'" State v. Witherspoon, 180 Wn.2d

     875, 883, 329 P.3d 888 (2014) (quoting State v. Salinas, 119 Wn.2d 192,201, 829 P.2d

     1068 (1992)). A criminal defendant's claim of insufficient evidence admits the truth of


                                                  13
No. 32960-7-111
State v. Camarata


the State's evidence and'" all inferences that reasonably can be drawn [from it]."' State

v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015) (alteration in original) (quoting

Salinas, 119 Wn.2d at 201 ).

       In denying the motion for judgment notwithstanding the verdict, the trial court

applied a preponderance of the evidence standard. Finding some evidence that Mr.

Camarata was in Kittitas County at the time he registered online (such as his use of a

"General Delivery, Ellensburg" address and his mention to Ms. Higginbotham that he had

been sleeping in a boat at Ellensburg Chevrolet) the court concluded that reasonable

jurors could have found that evidence, however limited, to be sufficient. But the court's

application of a preponderance standard was in error, because Mr. Camarata was not

challenging venue, he was holding the State to its burden of proving all elements stated in

the to-convict instructions. The applicable standard is proof beyond a reasonable doubt.

       There was too much evidence that Mr. Camarata was often not in Kittitas County

for a rational jury to find beyond a reasonable doubt that he was there on May 17 and 18,

2012. His most recent driver's license placed him in Yakima County. His June 2012

conversation with Detective Higashiyama placed him in Yakima County. His October

2012 conversation with the detective placed him in Portland, Oregon. The detective

testified that he had known Mr. Camarata to sometimes live in Pasco (Franklin County),

sometimes in Yakima County, and sometimes in Multnomah County, Oregon. The State

focused most of its trial energies on establishing that Mr. Camarata was not living on

                                            14
I
I
    No. 32960-7-III
    State v. Camarata


    Eighth Avenue in Ellensburg in 2012. And Ms. Higginbotham testified that in her

    conversations with Mr. Camarata in the spring of 2012, he refused to tell her where he

    was-circumstantial evidence that he was not in Kittitas County. Applying the proper

    standard of proof, the evidence was insufficient to establish that Mr. Camarata was

    physically present in Kittitas County when he provided the false information.

           While Mr. Camarata focuses solely on his physical location, the State argues that

    the jury could reasonably find that the information was received in Kittitas County. The

    act of "providing information" implicates two locations: the location of the person

    providing the information and the location of the person to whom it is provided. We

    need not decide whether this is the most reasonable reading of the jury instructions,

    however, because it does not help the State. The evidence presented was that by using

    the website, Mr. Camarata was providing information to the secretary of state, in either

    Thurston County or Spokane County, not Kittitas County. Even the prosecutor stated in

    closing argument:

          [I]f you really want to get technical about it and think about it, it actually
          goes to the Secretary of State website in Olympia in Thurston County and
          then ultimately is funneled here as we learned through the testimony here in
          Kittitas County.

    RP (Nov. 25 & 26, 2014) at 90. Finally, the dissent touches upon, and the concurrence

    examines, whether Mr. Camarata could "knowingly provide false information in Kittitas

    County, Washington" by conveying false electronic information to Spokane or Thurston



                                                15
I   No. 32960-7-111
    State v. Camarata


    county that was then either retrieved by a Kittitas County user or transmitted to a Kittitas

    Count user by a third party. Importantly, we need not approach this as a question of

    statutory construction to be applied in other cases. The prosecutor now agrees that it was

    a mistake to include location as an element of the election offenses. We never expect to

    see this instructional issue again. We need only decide whether, in this case, the State's

    evidence was sufficient to prove that Mr. Camarata knowingly provided false information

    in Kittitas County on May 17 and 18, 2012.

           As the concurring opinion demonstrates, it is not clear even from the full

    transcribed trial record whether, when or how electronic information received by the

    Secretary of State is affirmatively forwarded to counties, or if that information is simply

    accessible by county election personnel. If the State's evidence fell short of showing

    when or how that ordinarily occurs, then it necessarily fell short of proving beyond a

    reasonable doubt that Mr. Camarata knew when and how it would occur when he

    completed his voter application and declaration of candidacy on the Secretary of State's

    website.

           As Mr. Camarata points out, he "does not argue that the law or the Legislature

    requires the State to prove he was present in Kittitas County when he submitted his

    applications ... [b ]ut, the plain language of the jury instructions requires [that] proof."

    Reply Br. at 5. The evidence is insufficient to prove that additional element of the "law




                                                  16
No. 32960-7-111
State v. Camarata


of this case." We reverse the convictions and remand with directions to dismiss the

charges.

      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:




                                            17
                                          No. 32960-7-III

           FEARING, C.J. (concurring)-! concur in the conclusion of the astute lead author

    that the law of the case doctrine, as applied to jury instructions, remains the law in

    Washington State, at least until the Washington Supreme Court overrules State v.

    Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998). Therefore, the State needed to prove

    beyond a reasonable doubt that Gene Camarata committed the charged crimes in Kittitas

    County. I also concur in the lead author's decision to dismiss the charges against Gene

    Camarata.

           I pen a concurring opinion because I disagree with the reasoning employed by the

    lead author. The lead author concludes that insufficient evidence supports a jury

    determination that Gene Camarata committed the crimes in Kittitas County. The lead

    author notes that the State presented no information as to where Camarata sat when he

    completed the electronic voter registration and candidate application forms, Camarata

    sent the forms to Thurston or Spokane County, and any arrival ofCamarata's false

    information in Kittitas County was indirect. The dissenting author concludes that the

    State presented sufficient evidence to convict because Kittitas County received the false

    information. I am unable to agree with either the lead author or the dissenting author,




I
No. 32960-7-111
State v. Camarata


because we lack legal guidelines to assist in determining the situs of the crimes of

providing a false statement when registering to vote and when applying as a candidate for

office. Neither author cites any authority, let alone Washington law, that demarcates the

locus of the crimes. To answer this question, I would need to review foreign law and,

even then, I might only be guessing as to the correct answer to the question.

       My uncertainty as to resolving this appeal begs a critical question. If I, as an

appellate judge, need to spend hours of legal research to ascertain the county of the

crimes and still arrive at a debatable answer, how could a jury of laypeople decide

whether Gene Camarata committed the alleged offenses in Kittitas County? Along these

lines, the jury instructions failed to intelligently notify the jurors as to how to decide

whether Camarata committed the crimes in Kittitas County. The jurors were left to guess

and to construct the law when resolving whether to convict Camarata. For these reasons,

I would resolve the appeal on the ground that the jury instructions were unduly vague.

       Gene Camarata did not object to the jury instructions. Therefore, we cannot

reverse the case on unreliable jury instructions unless the instructions were

unconstitutional and any error in instructing the jury was manifest constitutional error. I

consider the opaque instructions to be an obvious constitutional mistake.

       Jury instruction 6 told the Camarata jury: "To convict the defendant of the crime

of [v]iolation of [v]oter [r]egistration [l]aw, the State of Washington must have proved

beyond a reasonable doubt that[,] ... [o]n or about May 17, 2012, in Kittitas County,

Washington, the defendant knowingly provided false information on an application for

                                               2
No. 32960-7-III
State v. Camarata


voter registration." Clerk's Papers (CP) at 62 (emphasis added). Jury instruction 8

informed the jury: "To convict the defendant of the crime of Providing False Information

on [a] Declaration of Candidacy, the State of Washington must have proved beyond a

reasonable doubt that[,] ... [o]n or about May 18, 2012, in Kittitas County, Washington,

the defendant knowingly provided false information on his declaration of candidacy."

CP at 64 (emphasis added). The jurors were given no standards or principles of law to

determine whether the crime was committed in Kittitas County.

       Gene Camarata likely sat outside Kittitas County when he completed and sent by

e-mail the voter registration and candidate registration forms to the Washington secretary

of state's office in Thurston or Spokane County. The jury, as the trier of fact, could have

discussed and resolved the location of Camarata at the time he sent the applications to the

secretary of state's website. Nevertheless, the jury would then need to speculate as to

whether one commits a crime in a named county when he pressed a computer's send

button in another county to propel the information to a third county.

       The use of the Internet raises new questions as to the location or locations of

crimes, particularly when the Internet, at the half speed of light, spreads false information

to the ends of the earth. The jury instructions failed to notify the jury as to whether a

crime of providing false information by the Internet occurs at the location of the

dispatcher, the location of a server to which authorities download the information, the

location of where a viewer sees the false information, two of the three, or all three. The

jury instructions did not inform the jury as to whether the crimes charged could be

                                              3
I

i   No. 32960-7-111
    State v. Camarata


    committed in more than one county or whether the jury had to isolate one county as the

    sole location of the crimes.

           The lead author emphasizes that Gene Camarata sent the false information to a

    secretary of state server in Spokane County or Thurston County and the secretary of

    state's server is the official database of voter registration. Nevertheless, this analysis fails

    to note that somehow officials in Kittitas County viewed the false information. Also,

    Gene Camarata probably expected the information to be seen in Kittitas County. Still the

    jury needed to speculate as to whether someone's anticipated view of the information in

    Kittitas County constituted the crime of knowingly providing false information in the

    county.

           Some testimony suggests that Kittitas County downloaded the information on its

    own database or stored the information on one of its computers. Kittitas County Auditor

    Jerry Pettit testified that, once a person, who lives in Kittitas County, registers at the

    secretary of state's website, the secretary of state's database forwards the information to

    Kittitas County for its database. Pettit also testified that the secretary of state's computer

    system sends Kittitas County an electronic submission on the day that a Kittitas County

    voter registers. Camarata' s registration "moved forward" to the Kittitas County database.

    Deputy Auditor Susan Higginbotham stated that exhibit 3A is the online submittal of

    Gene Camarata for his voter registration that Kittitas County received through its election

    management system. These facts may suggest that the crime was committed in Kittitas

    County, but the jury was not informed whether downloading the false information onto a

                                                   4
No. 32960-7-III
State v. Camarata


computer located in Kittitas County supports a verdict that the crime was committed in

Kittitas County.

       Other testimony suggests that Kittitas County never downloaded any information

onto a county computer. Susan Higginbotham testified that, on May 17, 2012, she found

that Camarata registered to vote at 1001 East Eighth, No. 4. She did not explicitly

indicate how she "found" the information. Higginbotham testified that, before finding

the information, she checked with the voter registration database and with the

Washington elections information database. The jury was left to guess whether

Higginbotham referred to the secretary of state's voter registration database or a Kittitas

County voter registration database.

       In later testimony, Susan Higginbotham declared that, after Gene Camarata called

her to determine if his voter registration had "gone through," she accessed and searched

the secretary of state's database, not the Kittitas County database, by using her

credentials. Exhibit 2A, Gene Camarata's voter registration application, and exhibit 2B,

the result of Susan Higginbotham's search for information about Camarata's voter

registration, came from the State of Washington database, not the Kittitas County

database. RP 109.

       Exhibit 3B is a screen print of Gene Camarata's declaration of candidacy from the

election information system for precinct committee officer of precinct 22 as a Democrat

submitted on May 18, 2012. In testimony of Jerry Pettit and Nicholas Pharris, the



                                             5
No. 32960-7-III
State v. Camarata


election information system is a secretary of state's database. One may wonder why a

screenshot of a State database was needed if Kittitas County downloaded the information.

       According to secretary of state employee Nicholas Pharris, county auditors and

election staff may use an internet based interface and sign into the secretary of state's

voter registration database and perform transactions there. Each county has an election

management system which maintains its voter records and connects over the web to the

voter registration database, which sends new registrations and updates to registrations.

       Nicholas Pharris also testified that exhibit 2A and 2B, information on Gene

Camarata's voter registration, was sent to the county for input into the county's voter

registration system. Yet, he also stated that Kittitas County could "look" at the

information, as if county officials are still accessing the secretary of state site.

       Nicholas Pharris identified exhibit 3, the exhibit concerning Gene Camarata's

declaration of candidacy, as coming from the secretary of state's Washington election

information database that stores information on jurisdictions and the offices and

candidates who file for the offices. Pharris stated that the Kittitas County auditor "could

view and look at" this information through use of a password. Report of Proceedings

(RP) (Nov. 24, 2014) at 170. This testimony might suggest that the declaration of

candidacy was never downloaded onto a Kittitas County computer. Nevertheless, the

jury was given no guidelines as to whether the location of any download could be the site

of the crime.



                                               6
No. 32960-7-III
State v. Camarata


       Nicholas Pharris testified that the voter registration database compiled by the

secretary of state, by statute, is the official list of voters in Washington. Perhaps then the

possible downloading of any information in Kittitas County was of no importance and

could not justify a finding that a crime was committed in Kittitas County. But the jury

was never informed by the trial court as to what facts could justify a conclusion that the

crime was committed in Kittitas County.

       Perhaps my questions about what happened during the handling of Gene

Camarata's voter and candidate applications foster nitpicky, unimportant distinctions.

But the jury did not know what factors were important or unimportant in determining the

site of crimes.

       Our dissenting judge relies on venue and jurisdiction cases to conclude that facts

support a finding that Gene Camarata committed the crimes in Kittitas County. United

States v. Angotti, 105 F.3d 539 (9th Cir. 1997) and State v. Woolverton, 284 Kan. 59, 159

P.3d 985 (2007). The dissenter, however, forwards no decisions in which the State

needed to prove, as an element of the crime, the location of the crime. The venue cases

aid to a limited extent because, to show venue and jurisdiction, the State must show the

situs, in part, of the crime. Nevertheless, the State must show venue or jurisdiction only

by a preponderance of the evidence. In the State's case against Camarata, the State

needed to show location of the crime in Kittitas County beyond a reasonable doubt.

       A Texas court, in Sepulveda v. State, 729 S.W.2d 954 (Tex. App. 1987),

concluded that the county in which a voter registration applicant delivers the application

                                              7
No. 32960-7-III
State v. Camarata


constitutes the proper venue to prosecute the crime. Nevertheless, Esther Sepulveda

submitted a registration card for Bernabe Luna, who incidentally was dead, to the Nueces

County Voter Registration Department. The reviewing court summarily rejected

Sepulveda's argument that Nueces County was not proper venue, since Sepulveda

physically presented the registration card to authorities in Nueces County. So Sepulveda

lacks relevance in addition to being a venue decision. Even assuming the Texas decision

to be the law in Washington concerning the location of the crime, the jury was never

informed of the law.

       Even if the jurors arrived at the same factual conclusions, the jury needed to draw

a legal conclusion from those facts as to whether Gene Camarata committed the crimes in

Kittitas County. To convict Camarata, the jury necessarily rendered the legal

determination that the indirect sending of false information through the Internet into a

county or the viewing of false information on a computer in a county means the crime

was committed in that county. To render the guilty verdict, the jury essentially became

the determiner of the law. Judges, not jurors are to be the arbiters of the law. Art. IV,§

16, Washington Constitution.

       The jury was in fact confused as to what rules to follow when determining the

situs of the charged offenses. The jury wrote to the trial court:

              [P]lease give some clarification on Rule Oury instruction] 6 ... [(1)]
       [D]id Gene need to be in Kittitas; or, [(2)] was the crime in Kittitas County
       physically.

RP (Nov. 26, 2014) at 197. In response, the trial court gave no assistance to the jury.

                                              8
f
I    No. 32960-7-111

I
'I
     State v. Camarata


II          Washington requires that a jury instruction must properly inform the jury of the

I    applicable law. Crossen v. Skagit County, 100 Wn.2d 355,360, 669 P.2d 1244 (1983).
I
I    This principle presupposes that the jury can understand, through the jury instruction, the

     status of the law. At least one case mentions the need for some specificity in a jury

I
I
     instruction. Gammon v. Clark Equip. Co., 104 Wn.2d 613,617, 707 P.2d 685 (1985).

     Another case directs the court to determine whether more specific or clarifying

     instructions are necessary to guard against misleading the jury. Roberts v. Goerig, 68

     Wn.2d 442,455,413 P.2d 626 (1966). No Washington case, however, holds that a jury

     instruction lacked specificity, let alone was unconstitutionally vague.

            The void for vagueness doctrine is typically applied to the wording of statutes.

     Nevertheless, the jury instruction in this case effectively acted as a statute. The

     instruction became the law or statute of the case.

            Foreign decisions support a rule that a jury instruction may be unconstitutionally

     vague. In Jackson v. State, 648 So. 2d 85, 88 (Fla. 1994), the court held that the language

     of "cold, calculated and premediated" in a jury instruction was unconstitutionally vague.

     The court held, however, that the defendant had waived any error by not objecting to the

     jury instruction at trial. In Sloan v. Delo, 54 F.3d 1371, 1378 (8th Cir. 1995), the court

     held a jury instruction using the phrase "depravity of mind" to be unconstitutionally

     vague. The court, however, ruled the error to be harmless. In Lara v. State, 699 So. 2d

     616 (Fla. 1997), the court found a jury instruction to be unconstitutionally vague and

     harmful. It vacated a death sentence. In Rogers v. McDaniel, 793 F .3d 1036 (9th Cir.

                                                   9
No. 32960-7-III
State v. Camarata


2015), our home federal circuit found a jury instruction in a criminal case

unconstitutionally vague.

       All of the foreign cases involving a vague jury instruction entail capital

punishment offenses, and many rely primarily on the Eighth Amendment to the federal

constitution. Nevertheless, none of the cases limit the void for vagueness doctrine to a

death sentence.

       Gene Camarata does not assign error to the vagueness of a jury instruction. RAP

12.l(b) asks that we seek input from the parties on a question we raise on our own before

resolving the appeal on that new basis. I asked our reviewing panel that we send a letter

to counsel and direct them to address whether the jury instructions were too vague for the

jury to determine if Gene Camarata committed the charged crimes in Kittitas County and

to examine whether any vague jury instructions constituted manifest constitutional error.

Understandably, because other members of the panel decide the case on other grounds,

my request was denied.

       On the one hand, if a reviewing court finds insufficient evidence to convict the

appellant of the crimes charged, the appeals court dismisses the charges. State v. Teal,

152 Wn.2d 333, 337-38, 96 P.3d 974 (2004). On the other hand, an instructional error

typically leads to a reversal and remand for a new trial. State v. Brown, 147 Wn.2d 330,

349, 58 P.3d 889 (2002); State v. Cronin, 142 Wn.2d 568, 582, 14 P.3d 752 (2000).

Although the error I identify can be classified as an instructional error, I would dismiss

the charges rather than remand for a new trial. In any remand, the State should not be

                                             10
No. 32960-7-III
State v. Camarata


free to omit the reference to Kittitas County in the jury instructions, because the State

would essentially be amending the charges or altering the law of the case in a second

trial. The State might clarify, in the jury instructions, what evidence or guidelines the

jury should review when determining if the crimes occurred in Kittitas County.

Nevertheless, Washington law is not developed sufficiently to provide these guidelines.

The instructional error cannot readily be fixed. Therefore, dismissal remains the more

apt remedy.




                                             11
                                       No. 32960-7-III

       PENNELL, J. (dissenting) -    We are confronted with the question of where

information is located when it is provided electronically. In the present context, the verb

"to provide" is transitive. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1827

(1993). It contemplates both a subject (the provider) and an object (the recipient). Id.

When it comes to electronic transmission, information can be provided from one location

and received in another. In such circumstances, it stands to reason that the offense of

providing false information will often encompass more than one location.

       The State offered no information about Mr. Camarata's location at the time he

submitted his false voter registration and declaration of candidacy. As a result, the situs

of his offense cannot be established by looking to where Mr. Camarata's false

information was initiated. But this does not end the matter. Because the act of providing

electronic information can extend to more than one location, this case instead turns on

whether the State satisfied its self-imposed burden of proving the information was

received in Kittitas County. I believe it did.

       Technically, computer-generated information is received by a series oflocations,

such as cell phone towers, routers, and servers. Testimony at trial suggested the data

generated by Mr. Camarata's online voter registration and declaration of candidacy

traveled over a series of internet connectors to a server in Cheney, Washington. Unless it

was downloaded onto a computer hard drive, Mr. Camarata's information was never

physically located in either Olympia or Kittitas County. Technically speaking, Mr.
No. 32960-7-III
State v. Camarata


Camarata's data was only physically provided to a data center in Cheney, which is

located in Spokane County, Washington.

       Analyzing the location of digital information in technical terms can lead to

surprising results, especially in the context of increasingly popular cloud computing and

remote data storage. For example, had the Secretary of State's Office contracted with a

private cloud service provider with out-of-state servers, a technical approach to the

location of digital information could lead to the curious result that the State of

Washington might not have territorial jurisdiction over a fraudulent voter registration

application. Fortunately, there is a simpler, nontechnical solution to this problem.

       In common parlance, people are considered the senders and recipients of

information, not servers or routers. Mr. Camarata was the sender of the information at

issue in this case, not his computer or cell phone. Likewise, the recipient was the person

or entity Mr. Camarata's information was intended to influence, not a server or web page

manager. See United States v. Angotti, 105 F.3d 539,543 (9th Cir. 1997) ("the act of

making a communication continues until the communication is received by the person or

persons whom it is intended to affect or influence"); State v. Woolverton, 284 Kan. 59,

70, 159 P.3d 985 (2007) (act of communicating a threat involves both speaking and

perceiving, jurisdiction may be exercised over either component). Mr. Camarata

undoubtedly intended his information to impact people in the Kittitas County Auditor's

Office. Indeed, he called Kittitas County prior to sending the information and then

                                              2
No. 32960-7-III
State v. Camarata


immediately afterward in order to make sure it had gone through. He never called

Cheney or Olympia. Mr. Camarata's information traveled to its intended target and

impacted the individuals in the Kittitas County Auditor's Office who processed his voter

registration. This connection was sufficient to satisfy the court's jury instructions. See

State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998) (situs for false insurance claim

was in county where insurance company taking action located, not in county of alleged

theft).

          Because the evidence showed Mr. Camarata provided a false voter registration and

declaration of candidacy to individuals in the Kittitas County Auditor's Office, I would

hold the State produced sufficient evidence to comport with the jury instructions.

Furthermore, because the act of providing electronic information can extend to more than

one location, the prosecutor did not engage in misconduct by arguing the State need not

prove Mr. Camarata's physical location in order to satisfy its burden of proof.

          Mr. Camarata makes several additional claims of error. None are sufficient to

warrant reversal. Because Mr. Camarata listed a fictitious residential unit, 1001 E. 8th

Ave. #4, on his voter registration, the State presented sufficient evidence that Mr.

Camarata knew his voter registration oath was false. Mr. Camarata's public trial rights

were not violated when the court conducted peremptory challenges at sidebar. State v.

Love, 183 Wn.2d 598, 605-07, 354 P.3d 841 (2015), cert. denied, 136 S. Ct. 1524 (2016).

Finally, because Mr. Camarata's counsel acquiesced in the dismissal of a prospective

                                              3
No. 32960-7-111
State v. Camarata


juror with an apparent felony, he waived appellate review of whether the dismissal was

proper. State v. Cleary, 166 Wn. App. 43, 49, 269 P.3d 367 (2012).

       Mr. Camarata utilized the secretary of state's voter registration website to provide

a false voter registration application to Kittitas County. His conviction should be

affirmed. I respectfully dissent.



                                             Pennell, J.




                                             4
