                                                                                                COURT OF APPEALS
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      IN THE COURT OF APPEALS OF THE STATE OF                                               WAs                  T °° GTL   N
                                                    DIVISION II' `-
                                                                                                            TY
STATE OF WASHINGTON,                                                              No. 44665 -1 - II


                                     Respondent,                           UNPUBLISHED OPINION


         v.



JUSTIN J. SEABOLT,


                                     Appellant.


         BJORGEN, J.—         Justin Seabolt appeals from his conviction for bail jumping and from the
                                            1
sentence the trial court         imposed.         He   argues   that the trial court ( 1)    erred in the to- convict .


instruction it gave and (2) made a scrivener' s error as to a term of community custody. The State

concedes      the   second error.    We affirm Seabolt' s conviction and remand for correction of his

sentence. 2

         On     August     30,    2012,     the    State     charged   Seabolt    with      unlawful    possession     of


methamphetamine.          Seabolt was present in court for a pretrial hearing on November 20, 2012,

and was given notice of another           hearing      set   for December 10, 2012.         He did not appear in the


courtroom on        December 10, 2012.            The State amended its information to add a charge of bail


jumping. As to the bail jumping charge, the State proposed the following instructions:

                    Possession of a Controlled Substance ( methamphetamine) is a class B or
          class C felony.
                  To convict the defendant of the crime of Bail Jumping as charged in Count
          II, each of the following elements of the crime must be proved beyond a
          reasonable doubt-




1
    He does not appeal from his conviction for unlawful possession of methamphetamine.

2
    A commissioner of this court initially considered Seabolt' s appeal as a motion on the merits
under RAP 18. 14        and   then transferred it to     a panel of judges.
No. 44665 -1 - II



           1)         That on or about December 10, 2012, the defendant failed to appear before
         a court;

           2)         That the defendant was charged with a class B or class C felony;
           3)         That the defendant had been released by court order with knowledge of the
         requirement of a subsequent personal appearance before that court; and
           4)         That the acts occurred in the State of Washington.
                      If you find from the evidence that each of these elements has been proved
         beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                On the other hand, if, after weighing all of the evidence, you have a
         reasonable doubt as to any one of these elements, then it will be your duty to
         return a verdict of not guilty.


Clerk' s Papers ( CP) at 47 -48 ( footnotes omitted).


          Seabolt did not object to the to- convict instruction, but he did object to a State' s motion


in limine for the trial court to take judicial notice that unlawful possession of methamphetamine


is   a class    B    or class     C   felony. The court did not grant the motion in limine but did give the

State' s proposed instructions.


          The       jury   found Seabolt guilty          as charged.      The trial court imposed concurrent 6 -month


terms    of confinement,              to be   served   in the   Kitsap County      Jail.    It also checked a box ordering

Seabolt,    as an offender " sentenced             to the custody       of                   f]
                                                                             D[ epartment] 0 [ C[ orrections]    (   total term


of   confinement 12+             months   or more)"     t1 months of community custody CP at 98:

          First, Seabolt argues that the trial court erred in giving the to- convict instruction as to the

bail jumping charge.3 He contends that the classification of the underlying crime for which he

had been charged is not an essential element of the crime of bail jumping, but that the particular

underlying          crime   is   an essential    element of      the    crime of   bail    jumping.   State v. Williams, 162


Wn.2d 177, 183 -85, 170 P. 3d 30 ( 2007);                       State v. Pope, 100 Wn. App. 624, 627, 999 P. 2d 51



3
 The failure to include an essential element of a crime in a to- convict instruction is an error that
can be raised for the first time on appeal. State v. Mills, 154 Wn.2d 1, 6, 109 P. 3d 415 ( 2005).

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No. 44665 -1 - II



 2000).      Because the to- convict instruction did not contain the essential element of requiring the

jury to find that he had been charged with the underlying crime of unlawful possession of

controlled substances, Seabolt contends that his conviction must be reversed. The State responds


that Williams and Pope are distinguishable and that having the jury find that the underlying

crime is a class B or class C felony is sufficient.

          In Williams, the bail jumping to- convict instruction required the jury to find that the

defendant had been charged with possession of a controlled substance but did not require the jury

to   find that that      crime was a class     B   or class   C   felony.   162 Wn.2d    at   186 -87.   The Washington


State Supreme Court held that while the classification of the crime was relevant to the


punishment to be imposed upon a conviction for bail jumping, the classification of the crime was

not an essential element of the crime of bail jumping, such that it needed to be included in the to-

convict      instruction.        Williams, 162 Wn.2d        at    188.   It held that " a simple identification of the


alleged crime       is   sufficient."    Williams, 162 Wn.2d at 188.


          In Pope,        the bail jumping to- convict instruction required the jury to find that the

defendant was under " the requirement of a subsequent personal appearance before that court


regarding      a   felony   matter"     but did   not   further define the term " a    felony   matter."   100 Wn. App.

at   629 (   emphasis       in   original).   This court held that an essential element of the crime of bail


jumping " is that the defendant was held for, charged with, or convicted of a particular crime" and

that reference to " a felony matter" was insufficient. Pope, 100 Wn. App. at 629 -30.

          Read together, it appears that Williams and Pope make the specification of the underlying

alleged crime        an essential       element of      the crime of     bail   jumping. As such, the court erred in

instructing Seabolt' s jury that it need only find that he had been charged with a class B or class C


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No. 44665 -1 - II



felony.     But   we conclude          that the error   is harmless.   A constitutional error is harmless when it


appears beyond a reasonable doubt that the alleged error did not contribute to the verdict. State

v.   Brown, 147 Wn.2d 330, 341, 58 P. 3d 889 ( 2002). The omission of an essential element from a


to- convict instruction is harmless if the element is supported by uncontroverted evidence.

Brown, 147 Wn.2d           at   347.    Here, the bail jumping to- convict instruction required the jury to find

that Seabolt had been charged with a class B or class C felony. A separate instruction informed

the jury that possession of controlled substances ( methamphetamine) is a class B or class C

felony. No evidence was presented as to any other controlled substance or any other class B or

class   C   felony. In order to convict Seabolt of bail jumping, the jury necessarily had to find

beyond a reasonable doubt that he had been charged with a class B or class C felony and that the

particular class    B     or class     C   felony   was possession of methamphetamine.          Any error in the to-

convict instruction in omitting the particular crime Seabolt was charged with was harmless.

            Second, Seabolt argues that the trial court committed a scrivener' s error by checking the

box that ordered him to serve a 12 -month term of community custody because he had been

sentenced to serve 12 or more months in the Department of Corrections, when in fact he had

been    sentenced    to   serve    only 6    months     in the   Kitsap County   Jail.   The State concedes that the


court checked      the incorrect        box. We accept the State' s concession and remand for correction of


the scrivener' s error.


            We affirm Seabolt' s conviction but remand for correction of his sentence.




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No. 44665 -1 - II



        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.




We concur:




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