                                                                                          Filed
                                                                                    Washington State
                                                                                    Court of Appeals
                                                                                     Division Two

                                                                                 November 24, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                    DIVISION II
 STATE OF WASHINGTON,                                              No. 47290-2-II

                               Respondent,

        v.

 JOSHUA JAMES MULLENS,                                      UNPUBLISHED OPINION

                               Appellant.

       MAXA, J.—Joshua Mullens appeals his conviction for possession of a stolen motor

vehicle. He argues that the information was deficient because it failed to include an

essential element of the charged crime: withholding or appropriating the stolen vehicle to

the use of someone other than the true owner. We agree. Accordingly, we reverse Mullens’

conviction and dismiss the charge against him without prejudice.

                                         FACTS

       In October 2014, the State charged Mullens with possession of a stolen vehicle.

The information stated that Mullens “did unlawfully and feloniously knowingly possess a

stolen motor vehicle, knowing that it had been stolen, contrary to RCW 9A.56.068 and

RCW 9A.56.140.” Mullens did not challenge the sufficiency of the charging document at

trial. The jury found Mullens guilty of possession of a stolen vehicle. Mullens appeals.
No. 47290-2-II


                                        ANALYSIS

A.     ESSENTIAL ELEMENTS RULE

       A charging document is constitutionally sufficient only if it includes all the

“essential elements” of a crime. State v. Johnson, 180 Wn.2d 295, 300, 325 P.3d 135

(2014). The purpose of the essential elements rule is to give notice to the accused of the

charges and to allow him or her to prepare a defense. Id. The test for identifying an

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

establish the illegality of the behavior charged. Id. Essential elements include only those

facts that must be proved beyond a reasonable doubt to convict a defendant of the

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

       If the State fails to allege every essential element, then the information is

insufficient and the charge must be dismissed without prejudice. Johnson, 180 Wn.2d at

300-01.

B.     ESSENTIAL ELEMENTS OF POSSESSION OF A STOLEN VEHICLE

       RCW 9A.56.068(1) states that a person is guilty of possession of a stolen vehicle if

he or she possesses a stolen motor vehicle. RCW 9A.56.140(1) states that “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

of any person other than the true owner or person entitled thereto.”

       In State v. Satterthwaite, this court held that withholding or appropriating the

stolen vehicle to the use of someone other than the true owner is an essential element of

possession of a stolen vehicle. 186 Wn. App. 359, 364-65, 344 P.3d 738 (2015). Here,




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No. 47290-2-II


the information charging Mullens did not allege that he withheld or appropriated the

stolen vehicle. Therefore, under Satterthwaite the information is deficient.

       The State claims that Satterthwaite was wrongly decided. Br. of Resp. at 2. The

State argues that the “withhold or appropriate” language is part of the definition of

“possess,” and that under Johnson, 180 Wn.2d at 302, the information need not include

definitions of essential elements. Br. of Resp. at 3. However, the court in Satterthwaite

expressly discussed Johnson and held that the “withhold or appropriate” language is not

merely a definition of possess, but ultimately determines whether possession is illegal

under certain circumstances. Satterthwaite, 186 Wn. App. at 364. The court concluded

that even though the “withhold or appropriate” language is contained in RCW

9.A56.140(1), which purports to define the meaning of possessing stolen property, that

language states an essential element of possession of a stolen motor vehicle. Id.

       The State also notes that it has petitioned the Supreme Court for review in State v.

Porter, noted at 188 Wn. App. 1051, 2015 WL 4252605, an unpublished case in which

this court followed Satterthwaite and held that the “withhold or appropriate” language

states an essential element of possession of a stolen motor vehicle. Br. of Resp. at 3-4.

The State requests that we stay this case until the Supreme Court decides whether to

accept review of Porter and issues a decision in that case. Br. of Resp. at 4. However,

we see no reason to delay our decision in this case.

       We apply Satterthwaite and hold that withholding or appropriating the stolen

vehicle to the use of someone other than the true owner is an essential element of

possession of a stolen vehicle. Because the information here did not contain an allegation




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No. 47290-2-II


of that element, we reverse Mullens’ conviction and dismiss the charge against him

without prejudice.

       A majority of the panel having determined that this opinion will not be printed in

the Washington Appellate Reports, but will be filed for public record in accordance with

RCW 2.06.040, it is so ordered.



                                                  MAXA, J.

 We concur:




WORSWICK, P.J.




SUTTON, J.




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