                                                           2015 JUN 29 aHI0=3o




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                     No. 70904-6-1


                      Respondent,                        DIVISION ONE

               v.



ALAN JOHN NORD,                                          UNPUBLISHED

                      Appellant.                         FILED: June 29, 2015




       Cox, J. —Alan Nord appeals his judgment and sentence for unlawful

possession of a controlled substance and resisting arrest. He claims to have

been prejudiced by the jury's discovery of a cell phone in a backpack that had

been admitted into evidence. He also claims that the State committed pretrial

misconduct under CrR 8.3. Finally, he claims that the information fails to contain

essential elements of the charge for resisting arrest.

       We assume, without deciding, that the cell phone the jury discovered

during its deliberations, which was in a backpack that the trial court properly

admitted into evidence, is extrinsic evidence. Nevertheless, there is no

reasonable ground to believe that Nord was prejudiced by the jury's discovery.

Other evidence admitted at trial connected Nord to the backpack. Nord's
No. 70904-6-1/2



misconduct claim is not persuasive. However, the information fails to allege all

the essential elements of the resisting arrest charge.

       We affirm Nord's conviction of unlawful possession of a controlled

substance and accept the State's proper concession that the information fails to

state all the essential elements of resisting arrest. We remand for dismissal,

without prejudice, of the resisting arrest charge.

       The State charged Nord with unlawful possession of a controlled

substance and resisting arrest.

       At trial, a police officer testified that he saw Nord driving a car with two

passengers. He observed Nord exit the car and engage in what appeared to be

a drug transaction. The officer and his partner then approached Nord and asked

for his identification. Nord told the officer that his identification was inside his

backpack, in the car he had been driving. While the officer went to the car, Nord

ran away. Police did not apprehend him at that time.

       The officer went to the car Nord had been driving and asked the two

passengers in the car to pass him the backpack that Nord had mentioned. They

did not.


       A drug dog arrived on the scene and alerted to the possible presence of

drugs in the car. The officer instructed the two passengers in the car to exit the

vehicle and to take all of their property with them. They did so. Neither took the

backpack, which remained in the car after the police impounded the car.

       After obtaining a search warrant, the officer who testified at trial searched

the car and the backpack. Inside the backpack, he found a small safe, which
No. 70904-6-1/3


contained methamphetamine and drug paraphernalia. The officer also testified

that the backpack contained a knife and a laptop. He further testified that the

backpack might have contained other personal effects, but could not remember

specifically what they were.

       Police later located Nord. When they attempted to arrest him, he resisted.

The resisting arrest charge arose from this incident.

       On June 17, 2013, the parties were scheduled to present pretrial motions

and begin the trial. But after a CrR 3.5 hearing, the State decided to subpoena

an additional witness. The same public defender's office represented both Nord

and this witness, creating a potential conflict of interest. The court granted a

continuance based on this conflict. Nord did not object to the continuance.

Before the continuance, Nord's CrR 3.3 speedy trial expiration date was on July

17.1

       The parties resolved the potential conflict of interest by June 27. Nord

never moved to set his trial date before the CrR 3.3 speedy trial expiration.

Although Nord's trial did not begin until August 5, this was due to additional good

cause continuances.

       On August 5, Nord moved to dismiss the case, alleging that the State had

mismanaged the case by subpoenaing the additional witness. According to this

motion, the State's actions forced Nord to give up his right to a speedy trial. The

court denied the motion, and trial began that day.




       1 CrR 3.3(b)(5), (e)(3).
No. 70904-6-1/4



         During trial, the State introduced and the court admitted into evidence

several exhibits. They included the backpack where the police discovered the

methamphetamine on which the possession of a controlled substance charge

was based. When the State offered the backpack into evidence, Nord stated that

he had no objection.

         The State also offered other items into evidence, including a knife and a

safe that had been inside the backpack. From our review of the record, it

appears that there likely were other items in the backpack when the court

admitted it into evidence. But it is unclear to us why neither the State nor Nord

was aware that the backpack also contained a cell phone when the court

admitted the backpack.

         While the jury deliberated, it appears that it discovered a cell phone in the

backpack. The jury sent the court a question. The question read, "When

reviewing items from backpack, there is a cell phone. Can we use as evidence?

[sic]"

         The court asked both counsel for their views on how to answer the

question. The State urged the court to answer in the affirmative. Nord

disagreed, urging the court to answer in the negative. The court agreed with the

State and answered "yes" to the jury's question.

         Shortly thereafter, the jury returned its verdict, convicting Nord on both

counts.


         Nord appeals.
No. 70904-6-1/5


                              EXTRINSIC EVIDENCE

       Nord argues that the cell phone was extrinsic evidence because it was

unknown that it was inside the backpack when the court admitted the backpack

into evidence. Based on this assertion, he claims he was prejudiced by the jury's

discovery of the cell phone during its deliberations. We hold that it is

unnecessary to decide whether the cell phone was extrinsic evidence.

Assuming, without deciding, that it was, there is no reasonable ground to believe

Nord was prejudiced by the discovery.

       "'[Ejxtrinsic evidence is defined as information that is outside all the

evidence admitted at trial.'"2 Such "'evidence is improper because it is not

subject to objection, cross-examination, explanation or rebuttal.'"3

       Washington courts apply "'the long-standing rule'" that "'consideration of

any material by a jury not properly admitted as evidence vitiates a verdict when

there is a reasonable ground to believe that the defendant may have been

prejudiced.'"4 This is an objective inquiry.5 We consider "whether the extrinsic




       2 State v. Pete, 152 Wn.2d 546, 552, 98 P.3d 803 (2004) (emphasis
omitted) (internal quotation marks omitted) (quoting State v. Balisok, 123 Wn.2d
114, 118, 866P.2d631 (1994)).

       3 id. at 553 (internal quotation marks omitted) (quoting Balisok, 123 Wn.2d
at 118).

       4 In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 705, 286 P.3d 673
(2012) (quoting Pete, 152 Wn.2d at 555 n.4).

       5 State v. Boling, 131 Wn. App. 329, 332, 127 P.3d 740 (2006).
No. 70904-6-1/6


evidence could have affected the jury's determinations," not the "subjective

thought process of the jurors."6

       Here, it is implicit in Nord's argument that the cell phone contained

information that could have linked him to the backpack where police discovered

the drugs. Also implicit in this argument is that information on the cell phone was

accessible to the jury when it discovered the cell phone during deliberations.

Because no one made a record about either of these points when the issue

arose below, there is nothing in this record to substantiate either point.

       We note that it is unclear to us whether the cell phone qualifies as

extrinsic evidence. That is because this case differs from the extrinsic evidence


cases that we have considered. Those cases typically involve either accidentally

giving the jury exhibits that were marked but not admitted,7 or misconduct by the

jury.8 Here, in contrast, the cell phone remained in the backpack because

neither party thoroughly examined it before the court properly admitted the

backpack into evidence.

       But we need not decide whether the cell phone is extrinsic evidence. It is

clear that what the cell phone inside the backpack may have contained was




       6 jU at 332-33.

      7 See, e.g., Pete, 152 Wn.2d at 550-52; State v. Rinkes, 70 Wn.2d 854,
859-62, 425 P.2d 658 (1967).

       8 See, e.g., State v. Fry, 153 Wn. App. 235, 238-39, 220 P.3d 1245
(2009); State v. Johnson, 137 Wn. App. 862, 866, 155 P.3d 183 (2007).
No. 70904-6-1/7


never "subject to objection, cross-examination, explanation or rebuttal."9 That is

because neither the parties nor the court was aware of it when the court properly

admitted the backpack. Thus, in an abundance of caution, we assume without

deciding that the cell phone should be treated as extrinsic evidence.

Accordingly, the question becomes whether there is a reasonable ground to

believe that Nord was prejudiced by the jury's discovery of the cell phone.

       We conclude that there are no reasonable grounds to believe that Nord

was prejudiced by the jury's discovery.

       The State had a strong case against Nord. Before the stop, officers had

seen Nord engage in a "hand to hand" transaction typical of drug sale. Nord was

also the one who first indicated to the officer questioning him that his

identification was in a backpack in the car he had been driving. The only

backpack remaining in the car after the other occupants left it contained the

drugs serving as the basis for the unlawful possession charge. This was

sufficient to show that Nord either owned the backpack or had possession of it

when driving the car.

       Other evidence corroborates Nord's tie to the backpack and the drugs

found in it. When the passengers were told to take their belongings and leave

the car, neither took the backpack.

       And significantly, Nord fled the scene. When the officer who approached

Nord at the stop asked him about identification, Nord stated that his identification



       9 Pete, 152 Wn.2d at 553 (internal quotation marks omitted) (quoting
Balisok, 123 Wn.2d at 118).
No. 70904-6-1/8


was in a backpack in the car. After pacing nervously outside the car, Nord fled

while the officer went to retrieve the backpack. Doing so under these

circumstances is evidence of guilt.10

       Thus, because the State presented strong evidence linking Nord to the

backpack, there is no reasonable ground to believe that he was prejudiced by the

jury's discovery of the cell phone.

       Nevertheless, Nord argues that he was prejudiced by the jury's discovery

of the cell phone in the backpack during deliberations for several reasons. But

his arguments are speculative and unpersuasive.

       First, Nord argues that the jury could have found information on the cell

phone that linked him to the backpack. But this record does not establish

whether the jury actually found information on the cell phone that was prejudicial

to him during its deliberations. To the extent that he concedes, for purposes of

appeal only, that the cell phone was his, this is still insufficient to show prejudice

in view of the other evidence to tie him to the backpack that we previously

discussed.

       Second, Nord argues that the evidence against him was weak. He argues

that he was not the registered owner of the car and that the backpack could have

belonged to one of the passengers. But the charge did not require establishing

that he was the registered owner of the car. And the assertion that the backpack

belonged to one of the other passengers is unpersuasive since they were told to



       10 See State v. McDaniel, 155 Wn. App. 829, 853-54, 230 P.3d 245
(2010).


                                               8
No. 70904-6-1/9


take their belongings when they were told they could go and none took the

backpack.

       Third, Nord argues that the officer did not find his identification in the

backpack. Although this is true, it misses the point. Nord identified the backpack

as the place where his identification could be found, establishing his link to the

backpack. That identification was not actually found is not dispositive.

       Fourth, he argues that his flight from the scene could have been for other

reasons. We agree. But that does not overcome the fact that the jury could also

have found that his flight was evidence of guilt for the drug charge in this case.

       Fifth, Nord argues that other items inside the backpack could have

prejudiced him. Statements by the prosecutor and the officer who searched the

backpack indicate that it may have contained a laptop computer. But when

Nord's appellate counsel examined the backpack, it did not contain a laptop.

Nord argues that if the laptop was inside the backpack, the jury may have been

able to turn it on and find additional information connecting Nord to the backpack.

       But this argument is wholly speculative. In order to find prejudice, the

court would have to assume that the laptop was in the backpack, the jury found

the laptop, the jury was able to turn on the laptop and obtain access to

information it contained, and information on the laptop linked Nord to the

backpack. The record fails to establish any of this.

       Finally, Nord argues that the prosecutor committed misconduct by

intentionally submitting extrinsic evidence to the jury. He argues that this court
No. 70904-6-1/10


should not allow "parties to effectively sneak in 'evidence' through [containers.]"

This is not a fair reading of this record, and we reject the argument.

       There simply is no evidence that the prosecutor tried to "sneak in"

evidence to the jury. Rather, it appears from a fair reading of the record that the

prosecutor did not thoroughly examine the backpack before offering it into

evidence. The prosecutor stated, and we have no reason to doubt, that "I

haven't examined the contents [of the backpack], but it was obvious that it was

not empty."11

       We need not address whether "it was obvious that [the backpack] was not

empty" when offered into evidence. The record is clear that neither counsel

thoroughly examined the backpack before the court admitted it.

       In sum, the jury's discovery of the cell phone in the backpack during

deliberations did not prejudice Nord.

                                        CrR 8.3


       Nord argues that the State committed misconduct under CrR 8.3 by

waiting until the day of trial before subpoenaing a witness, "forcpng] Nord to

choose between conflict free counsel and his [CrR 3.3] right to a speedy trial."

We disagree.

       Under CrR 8.3(b), "The court, in the furtherance of justice, after notice and

hearing, may dismiss any criminal prosecution due to arbitrary action or




       11 Report of Proceedings (August 7, 2013) at 325.

                                             10
No. 70904-6-1/11


governmental misconduct when there has been prejudice to the rights of the

accused which materially affect the accused's right to a fair trial."

            There are two requirements for a dismissal under this rule. First, the

"defendant must show arbitrary action or governmental misconduct."12 Second,

the defendant must show "prejudice affecting the defendant's right to a fair

trial."13

            Under this analysis, forcing the defendant to waive CrR 3.3 speedy trial

rights is prejudice.14 In State v. Michielli, the State initially charged the defendant

with a single count of theft, with a potential sentencing range from 0 to 60 days.15

Three business days before trial, the prosecutor amended the information to add

four new charges, with a potential sentencing range from 15 to 20 months.16 The

additional charges were not based on new information.17 The supreme court

held that the "[defendant was prejudiced in that he was forced to waive his

speedy trial right and ask for a continuance to prepare for the surprise charges

brought three business days before the scheduled trial."18




            12 State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997).

            13 lU at 240.

            14 l± at 244.

            15 132 Wn.2d 229, 233, 937 P.2d 587 (1997).

            16 jd,

            17 lU at 243.

            18 jd, at 244.

                                                 11
No. 70904-6-1/12



      This court reviews "[a] court's power to dismiss charges" under CrR 8.3 for

abuse of discretion.19

       Here, the court did not abuse its discretion by denying Nord's motion

under CrR 8.3. The prosecutor's request for a continuance was not misconduct,

and Nord did not suffer prejudice.

      When the prosecutor sought a continuance, he noted that he had been

unaware of some of the facts elicited at the CrR 3.5 hearing. And in light of these

facts, he decided to subpoena an additional witness.

       Nord now argues that the prosecutor should not have learned anything

new at the hearing, because only the State's witnesses testified. But Nord did

not make this argument at the time. Additionally, Nord had initially agreed to

plead guilty in both this case and an unrelated case. But at the plea hearing on

June 6, 2013, which was shortly before the scheduled trial, Nord changed his

mind and decided to go to trial. Both of Nord's cases were scheduled to go to

trial within a week of each other. And the same prosecutor was handling both

cases. Thus, even if the prosecutor was not as prepared for trial as normal, it

does not indicate that he mismanaged the case so severely that it constituted

misconduct.


       Additionally, Nord cannot show prejudice. The conflict created by

subpoenaing the witness had been resolved by June 27, 10 days after the State

moved for the continuance. Before the continuance, Nord's speedy trial

expiration date was on July 17. His trial did not begin before this date because



       19 ]d, at 240.
                                            12
No. 70904-6-1/13


his other trial was set for July 8 and his counsel was unavailable on July 15.

Although trial did not begin until August 5, this was due to additional good cause

continuances. Thus, the delay caused by the State's initial continuance was

minimal, and Nord cannot show prejudice.

       Nord argues that this case resembles Michielli. But the present case is

distinguishable. First, in Michielli, the prosecutor filed four additional charges

without learning any new facts.20 In the present case, the prosecutor sought a

short continuance after discovering additional facts. Additionally, the defendant

in Michielli suffered much greater prejudice—four new charges that increased his

potential sentencing range from 0 to 60 days to 15 to 20 months.21 Thus,

Michielli is not analogous to Nord's case.

       Nord also argues that the court abused its discretion by granting the State

a continuance on the day of trial.

       But Nord failed to object to the continuance. On appeal, he argues that

the court abused its discretion "[bjecause the conflict was speculative and the

State inexcusably delayed in deciding" to subpoena the additional witness. But

Nord did not make these arguments when the State sought the initial

continuance. At trial, when the court asked Nord's attorney about the proposed

continuance, he replied only by stating that the conflict of interest put Nord in "a

difficult position" and reiterating that Nord would prefer to have new counsel.




       20 ]dL at 243.

       21 Id. at 233.


                                              13
No. 70904-6-1/14


Accordingly, we conclude that Nord failed to preserve this issue for appeal, and

we do not address it further.

                   SUFFICIENCY OF CHARGING DOCUMENT

       Nord argues that the information for his charge of resisting arrest is

insufficient. We agree.

       Charging documents must include "all essential elements of a crime,

statutory and non-statutory."22 Essential elements are "'those facts that must be

proved beyond a reasonable doubt to convict a defendant of the charged

crime.'"23

       When the defendant does not challenge the charging document until after

the verdict, courts "more liberally construe[] [the document] in favor of validity."24

"Under this rule of liberal construction, even if there is an apparently missing

element, it may be able to be fairly implied from language within the charging

document."25

       Under this rule, courts apply a two-prong test: "(1) do the necessary facts

appear in any form, or by fair construction can they be found, in the charging




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

       23 State v. Zillvette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal
quotation marks omitted) (quoting State v. Powell, 167 Wn.2d 672, 683, 223 P.3d
493 (2009)).

       24 State v. Kiorsvik, 117Wn.2d93, 102, 812 P.2d 86 (1991).

       25 Id. at 104.


                                              14
No. 70904-6-1/15


document; and, if so, (2) can the defendant show that he or she was nonetheless

actually prejudiced by the inartful language which caused a lack of notice?"26

       Under the first prong, the essential question is "whether all the words used

would reasonably apprise an accused of the elements of the crime charged."27

       The remedy for a conviction based on a defective information is dismissal

without prejudice.28

       Here, the State properly concedes that the information did not appraise

Nord of all of the essential elements of resisting arrest, even under the post-

verdict standard of review.

       Under RCW 9A.76.040, "A person is guilty of resisting arrest if he or she

intentionally prevents or attempts to prevent a peace officer from lawfully

arresting him or her."

       Under the plain text of RCW 9A.76.040, both intentional resistance and a

lawful arrest are essential elements. Here, the information charging Nord alleged

that he "did prevent or attempt to prevent a police officer from arresting him."

Thus, the information did not allege that the resistance was intentional or that the

arrest was lawful. This is fatal.




       26 \± at 105-06.

       27 ]d at 109.

       28 Vangerpen, 125 Wn.2d at 792-93.


                                             15
No. 70904-6-1/16


       Because the information does not reasonably appraise Nord of all

essential elements of resisting arrest, the proper remedy is to remand to the trial

court for dismissal, without prejudice, of this charge.

       We affirm the conviction for possession of a controlled substance. We

remand to the trial court for dismissal, without prejudice, of the resisting arrest

charge.
                                                           CaxxX
WE CONCUR:




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