                                                                          FILED
                                                                        APRIL 2, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 35428-8-III
                       Respondent,            )
                                              )
          v.                                  )
                                              )
JAMIE LYNNE HUGDAHL,                          )         UNPUBLISHED OPINION
                                              )
                       Appellant.             )

          KORSMO, J. — Jamie Hugdahl appeals from jury verdicts determining that she

delivered controlled substances on four occasions while within 1,000 feet of a school bus

stop. Concluding that the jury instructions were proper and that the charging documents,

liberally construed, provided adequate notice of the school bus stop enhancement, we

affirm.

                                           FACTS

          The multiple charging documents filed against Ms. Hugdahl consistently alleged

that she committed the four drug deliveries within 1,000 feet of a “school bus route.”

Clerk’s Papers (CP) at 58-59. She never challenged any of the charging documents, but

did assert a defense of entrapment. CP at 32. The court instructed the jury on the
No. 35428-8-III
State v. Hugdahl


defense; the instruction told jurors that they must find the defendant not guilty if she

established the existence of entrapment by a preponderance of the evidence. CP at 34.

       Consistent with the pattern jury instructions, each of the four elements instructions

told jurors that if they found the respective elements proved beyond a reasonable doubt,

“it will be your duty to return a verdict of guilty.” CP at 23-26. The four special verdict

forms directed the jury to answer yes or no whether the drug deliveries occurred within

1,000 feet of a “school bus route stop.” CP at 51, 53, 55, 57.

       The jury convicted Ms. Hugdahl as charged and answered “yes” on each of the

four special verdicts. CP at 51-57. The court imposed standard range sentences of 64

months that included a 24 month enhancement due to the special verdicts. Ms. Hugdahl

timely appealed to this court. A panel considered her appeal without hearing argument.

                                        ANALYSIS

       Ms. Hugdahl contends that the elements instructions were flawed by failure to

cross-reference the entrapment instruction, that her counsel was ineffective for not

challenging the elements instructions, and that the charging document did not inform her

that the enhancement applied only to a school bus route “stop.” Treating the first two

issues as one contention, we first address the elements instruction before turning to the

challenge of the charging document.




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State v. Hugdahl


       Elements Instruction

       Ms. Hugdahl argues that because the standard elements instructions did not

mention her affirmative defense, they conflicted with the entrapment instruction and were

invalid. She also argues that her attorney performed deficiently by failing to challenge

the instruction.

       This challenge was waived by failure to present it to the trial court. RAP 2.5(a);

State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). RAP 2.5(a)(3) permits a party

to raise initially on appeal a claim of “manifest error affecting a constitutional right.”

This authority is permissive; an appellate court will refuse to consider such issues if the

record is not sufficient to permit review of the claim. State v. McFarland, 127 Wn.2d

322, 899 P.2d 1251 (1995). If the record is not adequate to review the claim, it is not

“manifest” within the meaning of the rule. Id. at 333.

       The failure to challenge a jury instruction is a classic instance of waiver. Scott,

110 Wn.2d at 689-691. Due process requires only that the jury properly be instructed on

the elements of the offense and on the State’s burden to prove the case beyond a

reasonable doubt. Id. at 690. That was done here. The allegation that the separate

entrapment instruction conflicted with the elements instructions is not preserved for

review.

       Anticipating this result, Ms. Hugdahl contends that her counsel performed

deficiently by not objecting to the instructions. To prevail on such a claim, she would

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State v. Hugdahl


have to show both that her attorney erred so significantly that he failed to live up to the

standards of the profession and that the error prejudiced her. Strickland v. Washington,

466 U.S. 668, 688-692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McFarland, 127

Wn.2d at 334-335. The entrapment instruction informed the jury on what it must do if it

determined that Ms. Hugdahl was entrapped into committing the offenses, while the

elements instructions told the jurors what to do if the State proved its case beyond a

reasonable doubt or if it failed to do so. They did not conflict. Although it may have

been simpler to combine some aspects of the instructions into one instruction, no

authority requires such action. Ms. Hugdahl has not established that her attorney erred.

        She also has not established that she was prejudiced from this alleged error. The

jury was instructed on her defense and told to return not guilty verdicts if it found that she

had been entrapped. She was able to argue her theory of the case. The jury could easily

harmonize the entrapment and elements instructions. There has been no demonstration of

harm.

        Ms. Hugdahl failed to establish that her counsel performed deficiently.

        Charging of Enhancements

        Ms. Hugdahl also argues that the charging documents were defective by

incorrectly stating the enhancement applicable to her charges. The deficiency in the

charging document actually gave her more notice than was necessary. Liberally

construed, the final amended information did provide constitutionally adequate notice.

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No. 35428-8-III
State v. Hugdahl


       RCW 69.50.435(1)(c) provides a sentence enhancement for drug delivery offenses

committed within 1,000 feet of a school bus route stop.1 The charging documents,

however, consistently alleged that Ms. Hugdahl committed the four offenses within 1,000

feet of a school bus route and made no mention of the bus stop. The jury was properly

instructed that it needed to determine if the offenses occurred within 1,000 feet of a bus

route stop.

       Ms. Hugdahl did not challenge the enhancement until this appeal. In that

circumstance, well settled standards govern our review. “All essential elements of a

crime, statutory or otherwise, must be included in a charging document in order to afford

notice to an accused of the nature and cause of the accusation against him.” State v.

Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). When challenged for the first time after

a verdict has been returned, courts will liberally construe the document to see if the

necessary facts can be found. If not, the charge will be dismissed without prejudice.

Even if the charge is stated, a defendant who shows prejudice from “inartful” pleading

also receives a dismissal of charges without prejudice. Id. at 105-106. The initial

question to be answered is whether “the necessary facts appear in any form, or by fair

construction can they be found, in the charging document.” Id. at 105. The liberal




       This enhancement adds 24 months to the offender’s sentence range. RCW
       1

9.94A.533(6).

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No. 35428-8-III
State v. Hugdahl


construction standard for belated challenges is designed to discourage “sandbagging” by

withholding a challenge that could otherwise be timely remedied. Id. at 103.

       We believe that the necessary facts are found in the charging document if we

liberally construe that document.2 The numerous informations repeatedly advised Ms.

Hugdahl that she was alleged to have committed the four deliveries within 1,000 feet of a

school bus route in violation of RCW 69.50.435. Bus routes have bus stops; a bus stop is

part of a bus route. Advising a defendant that the crimes were committed within 1,000

feet of a bus route necessarily included any bus stops along that route. Liberally

construed, a bus route includes a bus stop.

       The record also does not disclose any prejudice to Ms. Hugdahl from the inartful

language. The relationship between the location of the drug deliveries and the bus stop

was not at issue in the case. The entirety of the defense closing argument related to the

entrapment defense. No issues were raised about what the defendant was alleged to have

done or where she did it, nor were any concerns argued about the State’s case. There is

no suggestion she did not understand about the enhancement or its application to the case.

The issue simply was not a concern for the defense at trial.




       2
        We have reached the same result with related charging document challenges to
the school bus route stop enhancement in a series of unpublished cases. E.g., State v.
Moore, noted at 145 Wn. App. 1038 (2008); State v. Hopwood, noted at 138 Wn. App.
1009 (2007); State v. Jones, noted at 117 Wn. App. 1016 (2003); see GR 14.1.

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No. 35428-8-III
State v. Hugdahl


      The error in omitting the word "stop" from the charging document was not of such

significance that it deprived Ms. Hugdahl of notice of the enhancement the prosecutor

was seeking, nor has she demonstrated that she was prejudiced by the error. For both

reasons, her belated challenge to the charging document is without merit.

      Affirmed.

      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.




I CONCUR:




      Pennell, J.




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                                     No. 35428-8-III

       LAWRENCE-BERREY, CJ. (dissenting) -The majority errs by rejecting Jamie

Hugdahl's postverdict challenge to the charging document. Because the necessary facts

do not appear by fair construction in the charging document, I dissent.

       "All essential elements of a crime, statutory or otherwise, must be included in a

charging document in order to afford notice to an accused of the nature and cause of the

accusation against him." State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). The

majority correctly notes, when a defendant's first challenge to the charging document is

postverdict, courts liberally construe the document to see if the necessary facts can be

found or fairly implied. And if not, the charges-or in this case the enhancements-will

be dismissed without prejudice. Dismissal is required, and the defendant is not required

to additionally establish prejudice. This is because prejudice is presumed when the

necessary facts cannot be found or fairly implied in the charging document. State v.

McCarty, 140 Wn.2d 420, 425-26, 998 P.2d 296 (2000) (citing Kjorsvik, 117 Wn.2d at

105-06).

      Here, the charging document alleged that all four controlled substance deliveries

committed by Ms. Hugdahl occurred "within one thousand feet of a school bus route

designated by the school district in violation of [RCW] 69.50.435[(l)(c)]." Clerk's
No. 35428-8-III
State v. Hugdahl


Papers at 5 8-59. But a person who delivers controlled substances within 1,000 feet of a

designated school bus route does not violate the statutory aggravator. Instead, the

statutory aggravator is violated when a person delivers controlled substances within 1,000

feet of a designated school bus route stop. The majority commits a logical fallacy by

equating a bus route with a bus route stop. A bus route is not a bus route stop. A person

can be within 1,000 feet of a bus route and still be one mile from a bus route stop.

Because a bus route is not a bus route stop, I dissent.




                                                  Lawrence-B�rrey, C.J.   4,
                                                                                  c..}




                                              2
