                                                                                                FILED
                                                                                        COURT OF APPEALS
                                                                                            DIVISION 11
                                                                                    2015 1AR 10
                                                                                                AN 8: 36
                                                                                        T
                                                                                                    SHINGION
                                                                                    BY

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                          DIVISION II

    STATE OF WASHINGTON,                                             No. 45732 -6 -II


                                 Respondent,


          v.




    JAMIE C. SATTERTHWAITE,                                     PUBLISHED OPINION


                                 Appellant.


         WORSWICK, J. —    Jamie Satterthwaite appeals her conviction for possession of a stolen


motor vehicle,'   arguing the charging document was constitutionally deficient for failure to

include RCW 9A. 56. 140( 1)' s term that the defendant must " withhold or appropriate [ possessed


stolen property] to the use of any person other than the true owner or person entitled thereto."

We hold as a matter of first impression that " withhold or appropriate" is an essential element of

RCW 9A.56. 068' s possession of a stolen motor vehicle. Because the necessary facts of RCW

9A.56. 068' s " withhold or appropriate" element do not appear in any form, nor by fair

construction can they be found, in the charging document, we reverse Satterthwaite' s conviction

and remand for further proceedings.




1
    RCW 9A. 56. 068.
No. 45732 -6 -II


                                                            FACTS


             The State charged Jamie Satterthwaite with possession of a stolen motor vehicle and bail


jumping. 2 The third amended information stated the following about the possession of a stolen

motor vehicle count:


                                                                                                 8th
             In the   County     of   Mason, State   of   Washington,     on or about      the         day of April,
             2013, the above -named defendant, JAMIE C. SATTERTHWAITE, did commit
             POSSESSION OF A STOLEN MOTOR VEHICLE, a Class B Felony, in that said
             defendant did knowingly possess a stolen vehicle, to wit: 1988 Chevrolet S - 10, WA
             License Number 624 -XMK,              belonging       to   Fred Anderson,       contrary to RCW
             9A.56.068 and against the peace and dignity of the State of Washington.

Clerk'   s   Papers ( CP)   at   53. Satterthwaite did not object to this charging document below.


             A jury found Satterthwaite guilty of possession of a stolen motor vehicle and bail

jumping. Satterthwaite appeals.

                                                          ANALYSIS


             Satterthwaite argues for the first time on appeal that the charging document was

constitutionally deficient because it omitted an essential element of the offense of possession of a

stolen motor vehicle:          RCW 9A.56. 140( 1)'        s term requiring that the defendant " withhold or

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

person entitled        thereto."      The State argues it need not include RCW 9A.56. 140( 1)' s " withhold or

appropriate" term because the term is a definition of an essential element, rather than an essential


element itself. We agree with Satterthwaite.




2
    RCW 9A.76. 170. The bail             jumping   count    is   not germane   to this   appeal.
No. 45732 -6 -II



I. STANDARD OF REVIEW FOR CHARGING DOCUMENTS CHALLENGED THE FIRST TIME ON APPEAL


           We review a charging document' s adequacy de novo. State v. Johnson, 180 Wn.2d 295,

300, 325 P. 3d 135 ( 2014). "[            A] charging document is constitutionally adequate only if all

essential elements of a crime, statutory and nonstatutory, are included in the document so as to

apprise the accused of the charges against him or her and to allow the defendant to prepare a


defense."     State      v.   Vangerpen, 125 Wn.2d 782, 787, 888 P. 2d 1177 ( 1995). " 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).


           Where a defendant challenges the charging document' s sufficiency for the first time on

appeal, we construe the document liberally and will find it sufficient if the necessary elements

appear in any form, or by fair construction may be found, on the document' s face. State v.

McCarty, 140         Wn.2d 420, 425, 998 P. 2d 296 ( 2000). But if the document cannot be construed to


give notice of or to contain in some manner the essential elements of an offense, the document is

insufficient,    and even        the   most   liberal reading   cannot cure    it. 140 Wn.2d at 425.


           After Satterthwaite' s opening brief, but before the State' s response brief, our Supreme

Court decided Johnson.                 180 Wn.2d at 295. In Johnson, the charging document charged Johnson

with " Unlawful          Imprisonment— Domestic             Violence" and alleged Johnson " did knowingly

restrain [ J. J.],   a   human    being."     180 Wn.2d    at   301 (   alteration   in   original).   In holding the

charging document was not deficient, the Court rejected Johnson' s argument that the charging

document       must      include the statutory definition        of "restrain."      180 Wn.2d at 301 -02. It held the


State did not need to include definitions of elements, and it was enough that the State alleged all

of   the   essential elements          found in the   unlawful   imprisonment        statute.    180 Wn.2d    at   302. The
No. 45732 -6 -II



Court   explained: "'      An essential element is one whose specification is necessary to establish the

very   illegality    of   the behavior   charged. ' 180 Wn.2d at 300 ( quoting State v. Zillyette, 178

Wn.2d 153, 158, 307 P. 3d 712 ( 2013)).            Conversely, a definition of an element " defines and
limits the    scope of' an element.        180 Wn.2d at 302.


                 II. CHAPTER 9A.56 RCW' S POSSESSION OF STOLEN PROPERTY OFFENSES


            Multiple possession of stolen property offenses fall under chapter 9A.56 RCW. RCW

9A.56. 068( 1) states:


            A person is guilty of possession of a stolen vehicle if he or she possess [ possesses]
            a stolen motor vehicle.



RCW 9A.56. 140( 1) states:


             Possessing 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 ofany person other than the true owner or person
            entitled thereto.


 Emphasis       added.)     RCW 9A.56.068( 1) implicitly incorporates RCW 9A.56. 140( 1)' s terms

because the terms apply to other possession of stolen property offenses in the same chapter and

provide the mens rea element of the offense of possession of a stolen motor vehicle. See 11A

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 77.21 at 178

 3d   ed.   2008);   State v. Hayes, 164 Wn. App. 459, 479 -80, 262 P. 3d 538 ( 2011).

                          III. " WITHHOLD OR APPROPRIATE" AS AN ESSENTIAL ELEMENT


            We hold that     under   Johnson' s framework, " withhold or appropriate" is an essential


element of chapter          9A. 56 RCW' s    possession of stolen   property   offenses.   The test for whether a


term is an essential element of an offense is whether the term' s specification is necessary to




                                                           4
No. 45732 -6 -II



establish the very illegality of the behavior charged, rather than a term that defines and limits the

elements' scope. Johnson, 180 Wn.2d at 300, 302.


          It is the withholding or appropriation of a stolen item of property to the use of someone

other than the owner that ultimately makes the possession illegal, thus differentiating between a

person attempting to return known stolen property and a person choosing to keep, use, or dispose

of known stolen property. Thus, RCW 9A.56. 140( 1)' s " withhold or appropriate" is a term

whose specification is necessary to establish the very illegality of the behavior charged in chapter

9A.56 RCW' s possession of stolen property offenses, rather than a term that defines and limits

the elements' scope. Therefore, even though RCW 9A.56. 140( 1)' s " withhold or appropriate"


purports   to define the meaning   of "[ p]   ossessing   stolen   property," RCW 9A.56. 140( 1)' s


 withhold or appropriate" is an essential element of chapter 9A.56 RCW' s possession of stolen

property offenses, including RCW 9A.56. 068' s possession of a stolen motor vehicle. See

Johnson, 180 Wn.2d at 300, 302.


          This holding is consistent with decisions on closely related issues. In State v. McKinsey,

our Supreme Court reviewed the statutory elements of possession of stolen property offenses

under chapter 9A.56 RCW to determine whether first degree possession of stolen property was

an offense of   dishonesty   admissible under     ER 609( a)( 2).     116 Wn.2d 911, 913, 810 P. 2d 907


 1991).    In doing so, the court emphasized the importance of RCW 9A.56. 140( 1)' s " withhold or

appropriate" as an element of    first degree    possession of stolen     property. 116 Wn.2d   at    913. In


State v. Khlee, while not addressing the issue, we cited to RCW 9A.56. 140( 1) and RCW

9A.56. 310( 4) to note that chapter 9A.56 RCW " includes appropriation as an element of the


offense of   knowingly   possessing   a stolen   firearm."    106 Wn. App. 21, 25, 22 P. 3d 1264 ( 2001).



                                                          5
No. 45732 -6 -II



                    IV. THE CHARGING DOCUMENT IN SATTERTHWAITE' S CASE


       Here, the charging document stated Satterthwaite committed " possession of a stolen

motor vehicle"   because   she "   did   knowingly   possess a stolen vehicle ...   belonging to Fred

Anderson, contrary to RCW 9A. 56. 068."          CP   at   53.   The charging document did not mention

withholding or appropriating the stolen vehicle to the use of a person other than the owner, and

did not cite RCW 9A.56. 140. Thus, the necessary facts of "withhold or appropriate" do not

appear in any form, nor by fair construction can they be found, in the charging document.

        Withhold or appropriate" is an essential element of possession of a stolen motor vehicle


because it is the withholding or appropriation of a stolen motor vehicle to the use of someone

other than the owner that ultimately makes the possession illegal, differentiating between the

person attempting to return a known stolen motor vehicle and the person choosing to keep, use,

or dispose of a known stolen motor vehicle. Because the necessary facts of the essential element

of "withhold or appropriate" do not appear in any form, nor by fair construction can they be

found, in the charging document, the charging document was insufficient. Accordingly, we

reverse Satterthwaite' s conviction for possession of a stolen motor vehicle and remand for

further proceedings.




                                                                         1{
 We concur:
                                                                               Worswick, J.   Cl....




                                                           6
