                                                              This opinion was
     IN CLCmCS OPPICB                                        ^ filed for record
tWROE COURT,8TOE OFWHSHMerOM                              atjfftm-on
I DATE i§B 2 7 20201
                                                             Susan L. Carlson
       CHIEF JUSUKS                                        Supreme Court Clerk




   IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                            No. 97148-0
                      Respondent,

      V.                                    En Banc


JAMIE LYNNE HUGDAHL,

                      Petitioner.
                                            Filed         FEB 2 7 2020

      JOHNSON,J.—This case concerns the adequacy of a charging document in

alleging statutory sentence enhancements for delivering controlled substances

within a protected zone under ROW 69.50.435(l)(c). The statutory sentence

enhancement under ROW 69.50.435(l)(c) applies where a delivery of a controlled

substance occurs within 1,000 feet of a school bus route stop. Jamie Hugdahl's

information alleged that she delivered controlled substances "within one thousand

feet of a school bus route.'" Clerk's Papers(CP)at 58, 59(emphasis added).

Hugdahl first challenged the adequacy ofthe information on appeal, and a divided
State V. Hugdahl, No 97148-0


Court of Appeals affirmed finding that the information provided constitutionally

adequate notice of the enhancement. We reverse and find that the charging

document omitted the facts necessary to charge the statutory enhancement. We

vacate the sentencing enhancement and remand for resentencing.

                      FACTS AND PROCEDURAL HISTORY


      In January 2017, Hugdahl was the target oftwo controlled drug buys

executed by a confidential informant in the vicinity of a Safeway parking lot in

Ellensburg, Washington. Hugdahl was subsequently charged by an information

filed on March 16, 2017, which was amended twice. All three versions ofthe

information alleged four counts of delivery of a controlled substance in violation of

RCW 69.50.401(1). Count I was based on the first delivery of heroin. Counts II,

III, and IV arose out of the second delivery involving methamphetamine,

alprazolam, and ecstasy.

       The second information did not allege any sentence enhancements. The first

and final information included with each count:


      AGGRAVATING CIRCUMSTANCES: The State of Washington
      further alleges that the defendant did violate RCW 69.50.401 by
      manufacturing, selling, delivering, or possessing with the intent to
       manufacture, sell, or deliver a controlled substance listed under that
      subsection by selling for profit any controlled substance or counterfeit
      substance classified in schedule I, RCW 69.50.204, except leaves and
      flowering tops of marihuana, to a person within one thousand feet of a
      school bus route designated by the school district in violation of
      69.50.435.
State V. Hugdahl, No 97148-0



CP at 1, 2, 58, 59(emphasis added).

       A jury convicted Hugdahl offour counts of delivering a controlled substance

and found by special verdicts that the crimes occurred "within one thousand feet of

a school bus route stop." CP at 51, 53, 55, 57. Based on the jury's finding, Hugdahl

was sentenced to a total of64 months of confinement, which included a 24-month

enhancement under RCW 69.50.435(l)(c) for the deliveries occurring within a

protected zone.

       Hugdahl first challenged the constitutional adequacy of the information on

appeal, contending that the omission ofthe word "stop" rendered the information

deficient in providing her notice of the sentence enhancement. The Court of

Appeals applied the well-established rule from State v. Kjorsvik, 117 Wn.2d 93,

105-06, 812 P.2d 86(1991), but disagreed on its application. The Court of Appeals

majority affirmed the jury's finding and held that the information gave Hugdahl

adequate notice ofthe bus stop enhancement because "[ajdvising a defendant that

the crimes were committed within 1,000 feet of a bus route necessarily include[s]

any bus stops along that route." State v. Hugdahl, No. 35428-8-III, slip op. at 6

(Wash. Ct. App. Apr. 2, 2019)(unpublished),

https://www.courts.wa.gov/opinions/pdf/354288_unp.pdf. The Court of Appeals

dissent concluded that the necessary facts did not appear in the information

because a bus route is not equivalent to a bus stop. Hugdahl, No. 35428-8-III, slip
State V. Hugdahl, No 97148-0



op. at 2(dissent)("[A] person who delivers controlled substances within 1,000 feet

of a designated school bus route does not violate the statutory aggravator....[T]he

statutory aggravator is violated when a person delivers controlled substances

within 1,000 feet of a designated school bus route stop."").

       Hugdahl petitioned for review on the sole issue of whether the omission of

the word "stop" rendered the information constitutionally deficient in charging her

with the statutory enhancement.^ We granted review. State v. Hugdahl, 193 Wn.2d

1036,447 P.3d543 (2019).

                                          ANALYSIS


       In a criminal case, the accused enjoys a constitutional right to notice of"the

nature and cause ofthe accusation against [her]." Wash. Const, art. I, § 22. The

information is constitutionally adequate only if it sets forth all essential elements of

the crime, statutory or otherwise, and the particular facts supporting them. The

State bears this burden and failure to set forth the required elements and facts

renders the information deficient in charging the crime. State v. Nonog, 169 Wn.2d

220, 226, 237 P.3d 250 (2010).

       Prosecutors must set forth their intent to seek enhanced penalties in the

information. State v. Recuenco, 163 Wn.2d 428,434-35, 180 P.3d 1276(2008)



       * Hugdahl does not challenge the substantive underlying convictions for delivery of a
controlled substance. The only issue before this court is the constitutional adequacy ofthe
statutory enhancement charges.
State V. Hugdahl, No 97148-0


(citing State v. Crawford, 159 Wn.2d 86, 94, 147 P.3d 1288 (2006)). Sentencing

enhancements must be alleged in the infonnation because they increase the

sentence beyond the prescribed statutory maximum. Recuenco, 163 Wn.2d at 434.

The RCW 69.50.435(l)(c)^ enhancement authorizes the court to double the penalty

for a violation of RCW 69.50.401 (delivery of a controlled substance) and

increases the standard sentence range by 24 months, RCW 9.94A.533(6). Since the

enhancement subjects defendants to increased penalties for the underlying crime of

delivery of a controlled substance, it must be charged in the information.

       The inquiry is the same whether the charge at issue is a statutory

enhancement or a substantive crime. When analyzing a challenge to a charging

document the focus is on the adequacy of the information, not on the evidence,

testimony, or jury findings. See State v. McCarty, 140 Wn.2d 420,427, 998 P.2d

296 (2000). Our cases establish that the inquiry is not whether the error is harmless


       ^ RCW 69.50.435 states in relevant part: "(1) Any person who violates RCW 69.50.401
by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or
deliver a controlled substance listed under RCW 69.50.401 or who violates RCW 69.50.410 by
selling for profit any controlled substance or counterfeit substance classified in schedule I, RCW
69.50.204, except leaves and flowering tops of marihuana to a person:
       "(a) In a school;
       "(b) On a school bus;
       "(c) Within one thousand feet of a school bus route stop designated by the school district;

       "(j)... may be punished by a fine of up to twice the fine otherwise authorized by this
chapter, but not including twice the fine authorized by RCW 69.50.406, or by imprisonment of
up to twice the imprisonment otherwise authorized by this chapter, but not including twice the
imprisonment authorized by RCW 69.50.406, or by both such fine and imprisonment. The
provisions ofthis section shall not operate to more than double the fine or imprisonment
otherwise authorized by this chapter for an offense."(Emphasis added.)
State V. Hugdahl, No 97148-0


but whether the State satisfied its burden by including the necessary facts in the

charging document. See State v. Zillyette, 178 Wn.2d 153, 162-63, 307 P.3d 712

(2013); Nonog, 169 Wn.2d at 226.

      In this postconviction challenge to a charging document, we apply the

Kjorsvik analysis. We construe the information liberally and evaluate two prongs:

(1) whether "the necessary facts appear in any form, or by fair construction ... in

the charging 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." Kjorsvik, 117 Wn.2d at 105-06. Where the necessary facts are not found or

fairly implied, prejudice is presumed and we need not reach the second prong.

Even the most liberal reading cannot cure a charging document that does not give

notice of or contain the essential elements of a crime. Zillyette, 178 Wn.2d at 162.

       This case implicates only the first Kjorsvik prong. We must determine

whether the necessary facts appear in any form or by fair construction on the face

of the charging document. Kjorsvik, 117 Wn.2d at 105. When the information fails

to use the exact statutory language, the question is whether all the words used

would reasonably apprise the defendant ofthe elements of the crime charged. We

read the words in the information "as a whole, construed according to common

sense, and include facts which are necessarily implied." Kjorsvik, 117 Wn.2d at

109. Historically, it has not been necessary to use the exact words of the statute in
State V. Hugdahl, No 97148-0


the information so long as the words used equivalently or more extensively signify

the words ofthe statute.^ State v. Leach, 113 Wn.2d 679, 686, 782 P.2d 552

(1989). This rule still applies ^osX-Kjorsvik\ the information must allege the

elements "in terms equivalent to or more specific than those of the statute." Nonog,

169 Wn.2dat226.


       Where the charging language is equivalent to the statutory language, we

have held that the missing statutory element is necessarily implied. In McCarty, we

held that only the precise definition of"a simple conspiracy—an agreement

between two or more people to commit a crime" could be necessarily implied from

the term "unlawfully conspire" in the information. 140 Wn.2d at 427. We reasoned

that the additional fact needed to allege a conspiracy of delivering a controlled

substance—that a third party acted outside the incident of delivery—could not be

implied because it went beyond the definition of"conspire."

       In a similar vein, Zillyette evidences that a missing necessary fact cannot be

implied from charging language that is broad and overinclusive. In Zillyette,

neither the necessary fact of the identity of the controlled substance nor the


       ^ The dissent eautions that Leach misstates the rule ofState v. Knowlton: the information
is suffieient if"words conveying the same meaning and import are employed." 11 Wash. 512,
518, 39 P. 966(1895). BvA Leach and the subsequent cases, Nonog and Zillyette, are consistent
with Knowlton's rule because more specific language necessarily conveys only the "same
meaning and import." Whereas, broader language conveys more than the particular meaning and
poses the problem of being overinclusive. The preference for specificity also arises from the
recognition that in some instances even the "mere recitation of the statutory language in the
charging document may he inadequate." Leach, 113 Wn.2d at 688.
State V. Hugdahl, No 97148-0



schedule it falls under could be implied from the information broadly alleging that

the defendant'"unlawfully deliver[ed] a controlled substance ... in violation of

RCW 69.50.401."' 178 Wn.2d at 163 (alterations in original). The drug at issue,

methadone, could generally fall within the controlled substance category, yet

alleging the category alone was insufficient. Zillyette, 178 Wn.2d at 160. It was

overinclusive encompassing both criminal and noncriminal behavior because not

all controlled substances can be the basis of a controlled substances homicide.

       Under RCW 69.50.435(l)(c), a sentencing enhancement may be imposed

where a delivery of a controlled substance occurs "[wjithin one thousand feet of a

school bus route stop designated by the school district." The statute defines

"school bus route stop" as "a school bus stop as designated by a school district."

RCW 69.50.435(6)(c)(emphasis added). But based on the statutory definition, the

particular fact necessary to charge the enhancement is whether the delivery

occurred within 1,000 feet of a school bus stop—not a school bus route. See

Nonog, 169 Wn.2d at 226 (stating the information must allege "the particular facts

supporting [the elements ofthe crime]"). Here, the information alleged that the

delivery occurred "within one thousand feet of a school bus route."" CP at 58, 59

(emphasis added).

       Despite the omission ofthe word "stop," the information could be adequate

if the fact is necessarily implied from the charging language. Kjorsvik, 117 Wn.2d
State V. Hugdahl, No 97148-0



at 109. While a stop is a part of a bus route, to provide adequate notice an

information must use language that is equivalent to or more specific than the

statute. Nonog, 169 Wn.2d at 226. Language of greater specificity is sufficient, but

not always required. The opposite occurred here. The information language,"bus

route," is broader than the statutory language,"bus stop." A bus route is not

equivalent to a bus stop. Nor is the term "bus route" more specific than the defined

term in the statute, "school bus stop as designated by a school district." RCW

69.50.435(6)(c). Further, similar to the allegation in Zillyette, the allegation of the

delivery occurring near a "bus route" is overinclusive. As the Court of Appeals

dissent correctly reasoned, there are areas along the route that are not designated

bus stops. A violation occurring within 1,000 feet of those areas would not

necessarily be subject to the enhancement."^

       We hold that the information fails the first Kjorsvik prong. The necessary

fact of the delivery occurring within 1,000 feet of a school bus stop cannot be

fairly found or implied from the allegation that the violation occurred within the

1,000 feet of a bus route. The State failed to charge a sentence enhancement.

       The State contends that despite the omission, Hugdahl was reasonably

apprised ofthe enhancement because(1)the proper jury instructions were given.



       ^ The dissent would permit the information to provide more than the statute requires.
Dissent at 4. But this interpretation glosses over the critical danger oflanguage that is
overinclusive, subjecting innocent conduct to heightened punishment.
State V. Hugdahl, No 97148-0


(2)the statutory citation was included in the information,(3) Hugdahl cross-

examined a witness about a bus route stop,^ and (4) no bill of particulars was

requested. Resp't's Reply to Pet. for Review at 9-13. This argument disregards that

Kjorsvik's focus is on the charging document and contravenes our cases, which

have continuously rejected these arguments. Under the first prong ofKjorsvik, the

State may not substitute the inquiry on the adequacy of the charges with a review

akin to harmless error. The State cannot rely on trial testimony,jury instructions,

or the failure to request a bill of particulars to cure a charging deficiency. State v.

Holt, 104 Wn.2d 315, 321-22, 704 P.2d 1189(1985); seeMcCarty, 140 Wn.2d at

427. The State bears the responsibility of notifying the defendant ofthe particular

facts supporting the criminal accusation. Nonog, 169 Wn.2d at 225-26. The State

cannot satisfy this obligation by mere inclusion ofthe numerical citation, otherwise

the burden would be unfairly shifted to the accused and the constitutional

requirements of article II, section 22 would be diminished. Zillyette, 178 Wn.2d at

162-63. If we agreed with such an argument, it would undermine the State's

responsibility to specify the charges prior to trial.




       ^ At trial, the State introduced a witness from the Ellensburg School District
transportation department to testify about the designated bus route stop within close proximity to
the site of Hugdahl's delivery.


                                                10
State V. Hugdahl, No 97148-0


                                 CONCLUSION


       We reverse the Court of Appeals, vacate the 24-month sentence

enhancement, and remand to the trial court for resentencing.




                                                                        z




WE CONCUR:




                                                                       9-^




                                        11
State V. Hugdahl(Jamie L.)




                                        No. 97148-0



       MADSEN,J.(dissenting)—Jamie Hugdahl's information stated that she was

charged with delivering controlled substances within the protected area of school bus

stops. Specifically, the State charged Hugdahl with sentencing enhancements for

delivering controlled substances "within [1,000] feet of a school bus route." Clerk's

Papers(CP)at 59. But the information did not contain the word "school bus route stop"

as set out in RCW 69.50.435(l)(c). The majority reasons that bus stops are distinct from

bus routes, and thus the information is deficient for omitting the word "stop." Majority at

2, 8. I disagree.

       Our ease law directs us to read charging documents liberally and in favor of

validity when, as here, they are challenged for the first time on appeal. State v. Kjorsvik,

117 Wn.2d 93, 102, 812 P.2d 86 (1991). We read these documents according to common

sense, including facts that are implied, in order to determine if it "'reasonably apprise[s]

an accused of the elements of the crime charged.'" State v. Nonog, 169 Wn.2d 220, 226-

27, 237 P.3d 250(2010)(alteration in original)(quoting Kjorsvik, 117 Wn.2d at 109).

And, even ''missing elements may be implied if the language supports such a result."

State V. Hopper, 118 Wn.2d 151, 156, 822 P.2d 775 (1992)(emphasis added). This is

just such a case.
No. 97148-0
Madsen, J., dissenting


       School bus stops are included in school bus stop routes. A school bus stops along

a designated route to pick up or drop off school children. A stop is part-and-parcel to a

route. The necessary term "stop" is thus fairly implied on the face ofthe information.

See Kjorsvik, 117 Wn.2d at 104. Because this fact is implied in the term "school bus

route," when construed liberally and in favor of validity, the information reasonably

apprised Hugdahl of the sentencing enhancement. Id. at 109; Nonog, 169 Wn.2d at 227.

This is a commonsense reading of a charging document that, while imperfect, nonetheless

provided notice of the sentencing enhancement.

       The majority reasons that because a school bus route is broader than a bus stop,

the language is not equivalent to or more specific than RCW 69.50.435(6)(c), as required

by Nonog, 169 Wn.2d at 226. Majority at 9. Yet, we may properly imply a missing

element if the language supports it, as it does here. See Hopper, 118 Wn.2d at 156. After

implying the omitted word "stop," the language in Hugdahl's information would at least

equivalently track the language ofRCW 69.50.435(6)(c). The majority does not consider

this outcome, concluding instead that an information that does not use verbatim statutory

language must use language that is "equivalent to or more specific than the statute."

Majority at 9(emphasis omitted). We outlined this "equivalent to or more specific than"

rule first in Leach and cited an early case as direct support for it: State v. Knowlton, 11

Wash. 512, 518, 39 P. 966 (1895). Knowlton states the rule slightly differently: "it is not

necessary to use in an information the precise words of the statute, provided words

conveying the same meaning and import are employed; and indeed the statute expressly
No. 97148-0
 Madsen, J., dissenting


so provides." Id.(emphasis added); see also State v. Moser, 41 Wn.2d 29, 31, 246 P.2d

 1101 (1952)(reciting the same language from Knowlton). Knowlton supports Leach's

statement that nonstatutory language must be equivalent to statutory language but does

 not require that language to be more extensive than the words in the statute. Leach's

"more specific than" requirement is simply not supported by Knowlton.

        Indeed, such a rule cannot be the requirement. First, Leach paraphrases Knowlton,

 and its characterization is not supported by the language of that opinion: conveying the

same meaning and import is not equivalent—let alone analogous—to conveying a more

specific meaning. Leach plainly requires more than Knowlton, yet provides no other

source of authority in support. Second, requiring more specificity than statutory language

cannot be reconciled with our decision in KJorsvik. There, we explained that it is not

fatal that exact words of an element are not used in a charging document; the question is

whether all the words used would reasonably apprise an accused ofthe charged crime.

117 Wn.2d at 109. Knowlton's equal import and meaning rule accomplishes this

purpose; Leach's more specific requirement requires more.' I would hold that Knowlton




'The majority dismisses this critique, stating that Leach and subsequent cases comport with
Knowlton because more specific language "necessarily conveys only the 'same meaning and
import.' Whereas, broader language conveys more than the particular meaning and poses the
problem of being overinclusive." Majority at 7 n.3. The majority's reasoning misses the point.
Knowlton requires nonstatutory language to convey the same meaning and import as a statute.
Consequently, an information can satisfy Knowlton by containing more specific language. But
recognizing a circumstance that satisfies a requirement does not transform that circumstance into
the requirement. Unfortunately, repeating the incorrect requirement from Leach, as the majority
does here, makes the same mistake Leach and later cases have made: implicitly moving the goal
posts. In the end, more specific language is sufficient, but it is not necessary.
No. 97148-0
Madsen, J., dissenting


is the correct statement of the law and recognize that Leach's, characterization is a

misstatement of the case on which it relies. We should reaffirm Knowlton and cases


correctly citing it, such as Moser, 41 Wn.2d at 31.

       The majority relies on Leach's incorrect more-specific-than requirement. See

Majority at 9. But even under this burdensome rule, Hugdahl's charging document

passes muster. By using school bus routes as opposed to school bus route stops, the

information actually provided more information than RCW 69.50.435 requires.

       The lack of the word "stop" did not unfairly burden Hugdahl with locating the

relevant code and determining which enhancement applied. See City ofAuburn v.

Brooke, 119 Wn.2d 623, 634-35, 836 P.2d 212(1992). The information did not simply

reference RCW 69.50.435, it included a bolded heading notifying Hugdahl of the

aggravating circumstances enhancement, and largely tracked the statutory language. CP

at 58, 59("within [1,000] feet of a school bus route designated by the school district in

violation of[RCW]69.50.435.").

       Moreover, Hugdahl was not prejudiced by the imperfect information. Kjorsvik,

117 Wn.2d at 105-06 (if necessary facts appear or can be found in a charging documents,

the defendant must show he or she was actually prejudiced by the inartful language

causing lack of notice). At trial, her attorney challenged the State's witness from the

Bllensburg School District regarding the locations in the city not within 1,000 feet of a

school bus stop and how the distance between stops is measured. 2 Jury Trial
No. 97148-0
Madsen, J., dissenting


Proceedings at 200-01. Hugdahl was aware of the enhancement and carmot show

prejudice from the lack of a single word in the information.

       Because I would hold that the charging document adequately notified Hugdahl of

the sentencing enhancement when construed with common sense and in favor of validity,

I respectfully dissent.
No. 97148-0
Madsen, J., dissenting
