       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                 )         No. 79117-6-I
                                          )
                      Respondent,         )         DIVISION ONE
                                          )
               v.                         )         UNPUBLISHED OPINION
                                          )
 TIMOTHY MANNON GEISEN,                   )
                                          )
                      Appellant.          )
                                          )         FILED: March 30, 2020

       HAZELRIGG, J. — Timothy M. Geisen was convicted as charged of bribery

and misdemeanor driving under the influence after a jury trial. Geisen challenges

the sufficiency of the charging document as to both counts for the first time on

appeal as manifest constitutional error. He further argues that his counsel was

ineffective based on failure to seek specific language in the voluntary intoxication

instruction. We find that the charging document sufficiently put Geisen on notice

as to the crimes alleged and his counsel was not ineffective. Accordingly, we

affirm, but, based on the State’s concession, remand for correction of the judgment

and sentence to remove the interest accrual provision on legal financial

obligations.


                                      FACTS

       On the evening of June 19, 2018, Edmonds Police Officer Sierra Swartz

noticed a pickup truck swerving as it drove in front of her, crossing the center line
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a number of times. Swartz activated her emergency lights and pulled the truck

over. The driver in the truck was Timothy Geisen. As Swartz approached, Geisen

opened his door. During her contact with him, Swartz smelled a strong odor of

alcohol on Geisen’s breath and observed that he had bloodshot eyes and slurred

speech.

       Swartz asked Geisen how much he had been drinking, to which he replied

a few beers. In an unsolicited statement, Geisen further admitted that he knew he

should not be driving. He asked the officer if she was going to take him in and she

responded by asking for his license, registration, and insurance. Geisen reached

into his center console and pulled out two $100 bills and asked the officer, “[w]ill

this take care of this?” Swartz replied that it wouldn’t and continued asking for

identification.

       The officer then asked Geisen to perform standardized field sobriety tests

(SFSTs) and he agreed. The horizontal gaze nystagmus and walk-and-turn tests

were administered, but Geisen refused the one-leg stand due to complaints of back

pain. Swartz placed Geisen under arrest based on probable cause developed via

her observations and the SFSTs. A second officer, Samuel Gagner, searched

Geisen incident to arrest and handed Swartz the inventory. Swartz counted $495

contained in a wallet—one of the items recovered from Geisen. As it was being

counted by Swartz, Geisen stated “150 of that could have been yours if you would

have let me go.”




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       Geisen was charged with bribery and gross misdemeanor driving under the

influence.   After trial, a jury convicted Geisen on both counts. Geisen timely

appealed.


                                      ANALYSIS

I.     Sufficiency of the Charging Document

       Geisen argues for the first time on appeal that the charging document failed

to specify sufficient facts of both the charge of bribery and driving under the

influence. Geisen did not present this argument at the trial court, but it is properly

raised for the first time on appeal under RAP 2.5(a)(3) as manifest constitutional

error. State v. Leach, 113 Wn.2d 679, 691, 782 P.2d 552 (1989) (abrogated on

other grounds by State v. Pry, 194 Wn.2d 745, 452 P.3d 536 (2019)). Leach made

clear that challenges to the sufficiency of the charging document implicate due

process and thereby may be raised for the first time under RAP 2.5(A)(3). Id.

Challenges to the sufficiency of the charging document are reviewed de novo.

State v. Zillyette, 178 Wn.2d 153, 161-63, 307 P.3d 712 (2013).

       In a criminal case, the accused has a constitutional right to know the

charges against them. U. S. Const. amend. VI; Wash. Const. art. I § 22. The

information is constitutionally sufficient “only if all the essential elements of a crime,

statutory and nonstatutory, are included in the document.” State v. Vangerpen, 125

Wn.2d 782, 787, 888 P.2d 1177 (1995). “[I]t is sufficient to charge in the language

of a statute if the statute defines the offense with certainty.” State v. Kjorsvik, 117

Wn.2d 93, 99, 812 P.2d 86 (1991) (emphasis omitted). “[D]efendants should not

have to search for the rules or regulations they are accused of violating.” Id. at 101.


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If “a charging document is challenged for the first time on appeal, we construe it

liberally.” Pry, 194 Wn.2d at 752. The review for necessary facts is restrained to

the four corners of the charging document. Id.

      In the present case, the specificity requirements for a charging document

were met as to both charges. The language in the information was as follows:

      Count 1: BRIBERY, committed as follows:
      That the defendant, on or about the 19th day of June, 2018, with
      corrupt intent to secure a particular result in a particular matter
      involving the exercise of a public servant’s vote, opinion, judgment,
      exercise of discretion, and other action in his/her official capacity, did
      offer, confer, and agree to confer a pecuniary benefit upon, a public
      servant; proscribed by RCW 9A.68.010(1)(a), a felony.

      Count 2: DRIVING WHILE UNDER THE INFLUENCE OF
                INTOXICATING LIQUOR AND/OR ANY DRUG (DUI),
                committed as follows:
      That the defendant, in Snohomish County, Washington on or about
      the 19th day of June, 2018, did drive a vehicle, while the defendant
      was under the influence of or affected by intoxicating liquor,
      marijuana, or any drug; proscribed by RCW 46.61.502(5), a gross
      misdemeanor.

The charging document is sufficient as to both counts; the statements under each

listed count include all essential elements of each of the named crimes.

      As to the felony bribery charge in count one, RCW 9A.68.010(1)(a) reads:

      (1) A person is guilty of bribery if:
      (a) With the intent to secure a particular result in a particular matter
      involving the exercise of the public servant’s vote, opinion, judgment,
      exercise of discretion, or other action in his or her official capacity,
      he or she offers, confers, or agrees to confer any pecuniary benefit
      upon such public servant.

All essential elements of the bribery statute are included in the information.

Further, the information supplements that statutory language by including the date

of the allegation and, more importantly, specifying the mental state for the bribery


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charge as “corrupt intent,” which is not set out in the statute, but has been

developed through case law. See State v. O’Neil, 103 Wn.2d 853, 859, 700 P.2d

711 (1985).


       The statute for misdemeanor driving under the influence, RCW

46.61.502(1), states:

       1) A person is guilty of driving while under the influence of
       intoxicating liquor, marijuana, or any drug if the person drives a
       vehicle within this state:
       (a) And the person has, within two hours after driving, an alcohol
       concentration of 0.08 or higher as shown by analysis of the person’s
       breath or blood made under RCW 46.61.506; or
       (b) The person has, within two hours after driving, a THC
       concentration of 5.00 or higher as shown by analysis of the person’s
       blood made under RCW 46.61.506; or
       (c) While the person is under the influence of or affected by
       intoxicating liquor, marijuana, or any drug; or
       (d) While the person is under the combined influence of or affected
       by intoxicating liquor, marijuana, and any drug.

As to the driving under the influence charge, the information is also specific as to

all essential elements.     Though the charging document does not include

subsections (a), (b) or (d) from the statute, these were not relevant to Geisen’s

case since the State focused on proving the case under subsection (c), commonly

referred to as the “affected by” prong. Again, the State supplemented the statutory

language by including the date and county of the alleged criminal conduct. As to

this charge, the information was also constitutionally sufficient.

       Geisen relies on two cases that are not relevant here. The first, City of

Seattle v. Termain, addresses a charging document for violating a domestic

violence order, however the information did not identify the order which was

alleged to have been violated. 124 Wn. App. 798, 803, 103 P.3d 209 (2004). This


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court held that the document was insufficient based on the omission of that specific

fact, or any other facts sufficient to apprise the defendant of the actions giving rise

to criminal charges. Id. at 806. The court stated that the charging document was

“awkwardly worded and vague” and further described it as “gobbledygook.” Id. The

information, standing alone, did not establish that any order was currently in place

that restricted the defendant’s conduct. Alternatively, if the defendant had more

than one active order restricting contact with different parties, it would have been

difficult to determine the criminal conduct alleged based on the charging instrument

alone.

         That is not the case here as it is clear from the information both what Geisen

was being charged with and the particular conduct he was alleged to have

engaged in that constitutes each crime. Though Geisen advances the argument

that the information should provide specificity as to each fact alleged, this is not a

requirement of the case law, nor is it required by statute.

         The other case Geisen cites is from 1892 and involved our supreme court

addressing early codification of common law causes of action, ensuring that the

statutes provide sufficient specificity. See State v. Carey, 4 Wash. 424, 30 P. 729

(1892). Carey involved an indictment for practicing medicine without a license. Id.

at 430. However, the charging instrument did not provide sufficient detail regarding

the conduct the charged individual was alleged to have engaged in due to the

vagueness of the statutory language. Id. at 431-32. The Supreme Court’s analysis

included the concern that the charging language was purely statutory and the

defendant needed to be put on notice as to what conduct the state believed




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constituted the unlawful practice of medicine. Id. 432-34.          This case is not

analogous since the language in the charging document here is not vague enough

to warrant the concerns raised in Carey. Furthermore, as this court has previously

noted, the modern precedential value of Carey is questionable given the numerous

“legal developments such as discovery and an indigent’s right to state-appointed

counsel” that have evolved since 1892. State v. Davis, 60 Wn. App. 813, 818 n.4,

808 P.2d 167 (1991).

       In a recent opinion, the Supreme Court directed that

       [r]eviewing courts use a two-pronged test to resolve challenges to
       the sufficiency of evidence: (1) do the necessary facts appear in any
       form, or by fair construction can they be found, on the face of the
       charging document and, if so, (2) can the defendant show that he or
       she was nonetheless actually prejudiced by the inartful language that
       caused a lack of notice?

Pry, 194 Wn.2d at 752-53; See also Zillyette, 178 Wn.2 at 162.

       As to the prong of the first test, “we look solely to the face of the information

to determine if the essential elements of the crime appear in any form, or by fair

construction, in the charging document.” Zillyette, 178 Wn.2d at 162. Here, as

discussed above, the first prong of this test is met; the necessary facts, those of

the essential elements, are contained within the charging document. Recently, the

Supreme Court held that a charging document that primarily recited the language

from the statute sufficiently advised the defendant as to the nature and elements

of the criminal accusation. See State v. Merritt, 193 Wn.2d 70, 74-75, 434 P.3d

1016 (2019). Merritt involved a mortgage fraud charge that was more factually

complex than either of the charges at issue here, yet recitation of the statute was

sufficient.



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       When we look to the second prong, whether Geisen can show actual

prejudice, it is clear from this record that he cannot. Geisen argues that he is at

risk of double jeopardy because the charging document is not specific enough so

as to avoid a second charge for the same conduct. This, however, is speculative

and does not demonstrate actual prejudice. As the State argued in its briefing,

double jeopardy is a much more complex question that can only be resolved by a

deeper inquiry than merely looking to the charging document. Further, the fact

that defense counsel didn’t seek a Bill of Particulars at the trial court suggests that

they understood which actions and circumstances gave rise to the charges. See

CrR 2.1(c). There is nothing in the record before us to suggest Geisen’s trial

counsel was unclear about the changes or concerns about a risk of double

jeopardy.

       The charging document, standing alone, provided all essential elements of

the crime which constitute the necessary facts, such that Geisen was informed of

what he was being charged with as to both count one, felony bribery, and count

two, misdemeanor driving under the influence.          Additionally, Geisen fails to

demonstrate actual prejudice resulting from the language of the charging

instrument.


II.    Ineffective Assistance of Counsel

       Geisen next argues that he was deprived of effective assistance of counsel

due to his attorney’s failure to request specific language in the voluntary

intoxication instruction. For Geisen to prevail on a claim of ineffective assistance

of counsel, he must show both deficient performance by his attorney and resulting



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prejudice. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011).

“[P]erformance is deficient if ‘it falls below an objective standard of

reasonableness.’” Id. at 33 (quoting Strickland v. Washington, 466 U.S. 688, 104

S. Ct. 2052 (1984)). A showing of prejudice requires a reasonable probability that,

but for the deficient performance, the outcome of the proceeding would have been

different. State v. Estes, 188 Wn.2d. 450, 458, 395 P.3d 1045 (2017). “Courts

engage in a strong presumption counsel’s representation was effective.” State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Judicial review of how

counsel handled an individual’s case must be highly deferential. Strickland, 466

U.S. at 689.

       Geisen’s argument emphasizes that his trial counsel did not request specific

“corrupt intent” language in the voluntary intoxication jury instruction. However,

defense counsel did seek, and obtained, the standard voluntary intoxication

instruction regarding intent as follows: “[n]o act committed by a person while in a

state of voluntary intoxication is less criminal by reason of that condition. However,

evidence of intoxication may be considered in determining whether the defendant

acted with intent.”

       “Jury instructions are sufficient if they are supported by substantial

evidence, allow the parties to argue their theories of the case, and when read as

a whole properly inform the jury of the applicable law.” State v. Clausing, 147

Wn.2d 620, 626, 56 P.3d 550 (2002). The “to convict” instruction provided to the

jury properly identified the mens rea element of bribery as “corrupt intent,” so, as

a whole, jurors were properly informed as to the applicable law in Geisen’s case.



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This instruction was sufficient to allow defense counsel to argue their theory of the

case. Defense counsel in closing argued the following: “[n]ow, Instruction 11 tells

you that the intoxication can go into whether he had—he acted with intent. Now,

the State keeps saying acted with intent, but the WPIC actually says with corrupt

intent. Not just intent, but a corrupt intent that day.” Geisen fails to establish

deficient performance.

       Additionally, defense counsel’s choice to not propose a modified voluntary

intoxication instruction which utilized the phrase “corrupt intent” could have been

for any number of strategic reasons. Defense counsel may be cautious about

proposing a non-standard jury instruction, determining that use of standard

instructions is a strategically safer choice in a particular case. See State v. Studd,

137 Wn.2d 533, 547-48, 973 P.2d 1049 (1999). Further, as the State pointed out

at oral argument, asking for the language proposed by Geisen on appeal might

have prompted the prosecutor to ask for a defining instruction for the term corrupt

intent which may have been even narrower than what the jury considered it to be.

In light of the strong presumption that counsel was effective, and the number of

legitimate tactical reasons to decline to pursue specific language in the involuntary

intoxication instruction, Geisen fails to demonstrate deficient performance by

counsel, which ends our inquiry.


III.   Interest on Legal Financial Obligations

       Finally, Geisen argues that the interest accrual provision in his judgment

and sentence is improper.       The State concedes this point.       We accept the




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concession. We affirm Geisen’s convictions, but remand only for the trial court to

strike the interest provision from the judgment and sentence.

      Affirmed, remanded in part.




WE CONCUR:




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