 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
                                                 No. 73358-3-1
                     Respondent,
                                                 DIVISION ONE •
              V.
                                                 UNPUBLISHED OPINION
SAMUEL NEGUSE REZENE,
                                                                                        :Z)CA
                    Appellant.                   FILED: April 3, 2017           C...)
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      TRICKEY, A.C.J. — Samuel Rezene appeals his conviction of attempting to
elude a pursuing police vehicle. Rezene argues that his charging information I

omitted an essential element of the crime and thereby violated his right to due

process. Because the information was sufficient to infer the method officers used

to signal Rezene, the alleged missing element, we affirm.

                                      FACTS

       On April 22, 2014, at approximately 1:00 a.m., Rezene saw several Seattle

Police Department officers in marked police vehicles while he was standing by his

vehicle. Upon seeing the police officers, Rezene entered his vehicle and began to

drive away. The police followed Rezene. Rezene increased his speed, and '

Detective Robert Thomas employed his police vehicle's lights and sirens. Officers

observed Rezene's car running through at least one red traffic light and traveling

at speeds between 70 and 1,00 m.p.h. in speed zones of 30 to 35 m.p.h.

      The State charged Rezene with attempting to elude a pursuing police

vehicle. Rezene waived his right to a jury trial. Following a bench trial, the trial'

court concluded that the State had proved each essential element of attempting to

elude a pursuing police vehicle and found Rezene guilty.
 No. 73358-3-1 /2

        Rezene appeals.

                                      ANALYSIS

                          Charging Information Sufficiency

        Rezene argues for the first time on appeal that his charging information

 omitted an essential element of the crime of attempting to elude a police vehicle.

 Specifically, Rezene argues that the information failed to notify him that the offense

 requires that the police signal to stop be made by "'hand, voice, emergency light,

 or siren." Rezene's charging information contained sufficient facts to infer the

 method officers used to signal Rezene. Accordingly, it was not deficient.

        A charging document must include all essential elements of a crime to

 adequately notify a defendant of the alleged charges. State v. Zillyette, 178 Wn.2d

 153, 158, 307 P.3d 712(2013); U.S. CONST. amend. VI; WASH. CONST. art. I, § 22.

 Citation to the correct statute in the information, even if the statute contains each

 essential element, is insufficient. State v. Naillieux, 158 Wn. App. 630, 645, 241

 P.3d 1280 (2010).

        "Essential elements" include only those facts that establish the illegality of

 the behavior charged and must be proved beyond a reasonable doubt to convict a
                                                                                          ,1

 defendant of the charged crime. State v. Ring, 191 Wn. App. 787, 790, 364 P.3d

 853(2015).

        Where the adequacy of a charging information is challenged for the first,

 time on appeal, the reviewing court asks:"(1) do the necessary facts appear in any I

 form, or by fair construction can they be found, in the charging document; and, if



'Br. of Appellant at 2-4 (quoting RCW 46.61.024(1)).
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No. 73358-3-1 /3

so,(2)can the defendant show that he or she was nonetheless actually prejudiced

by the inartful language which caused a lack of notice?" State v. Kiorsvik, 117

Wn.2d 93, 105-06, 812 P.2d 86(1991).

      If the essential elements can neither be found nor fairly implied in the

charging document, this court presumes prejudice and reverses without further

inquiry. Naillieux, 158 Wn. App. at 643. When the charging information implies

the essential elements and the defendant does; not argue he was actually

prejudiced by the charging information's language, the information is deemed

constitutionally sufficient. State v. Nonoq, 169 Wn.2d 220, 231, 237 P.3d 250

(2010).

      An appellate court reviews the sufficiency of a charging document de novo.

State v. Williams, 133 Wn. App. 714, 717, 136 P.3d 792(2006).

      Attempting to elude a police vehicle occurs when

      [a]ny driver of a motor vehicle who willfully fails or refuses to
      immediately bring his or her vehicle to a stop and who drives his or
      her vehicle in a reckless manner while attempting to elude a pursuing
      police vehicle, after being given a visual or audible signal to bring the
      vehicle to a stop, shall be guilty of a class C felony. The signal given
      by the police officer may be by hand, voice, emergency light, or siren.
      The officer giving such a signal shall be in uniform and the vehicle
      shall be equipped with lights and sirens.

RCW 46.61.024(1).

      In State v. Pittman, a case decided by Division Two of the Court of Appeals,

the court held that the method by which police officers signal to stop is not an

essential element of the crime of attempting to elude a police vehicle. 185 Wn.

App. 614, 618, 341 P.3d 1024, review denied, 184 Wn.2d 1021, 361 P.3d 746

(2015). Rezene requests that we decline to follow Division Two's reasoning in

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No. 73358-3-1/4

Pittman. 185 Wn. App. at 618. The State urges us to adopt Pittman. We do not

need to decide whether Pittman was correctly decided to resolve the present case.

Even assuming that the manner of signaling used by officers is an essential

element of the offense, Rezene's charging information was constitutionally

sufficient.

         Rezene was charged by information reading:

         That [Rezene,] . . . while driving a motor vehicle and having been
         given a visual and audible signal by a uniformed police officer to bring
         the vehicle to a stop, willfully failed and refused to immediately stop
         and drove the vehicle in a reckless manner while attempting to elude
         a pursuing police vehicle that was equipped with lights and sirens;

         Contrary to RCW 46.61.024.[2]

         Rezene challenges the sufficiency of his charging information for the first

time on appeal. Therefore, the charging information is not deficient if it fairly

implies a missing element. Here, the charging information contained sufficient

facts to fairly imply the method the officers used to signal Rezene to bring his

vehicle to a stop.

         The statute states that two methods an officer may use to signal are by

emergency light or siren. RCW 46.61.024(1). The information states that Rezene

was given "a visual and audible signal" by a uniformed police officer. It then states

that Rezene eluded a pursuing police vehicle that was equipped with lights and

sirens. It is a reasonable inference from the charging information that the visual

and audible signal was accomplished using the police vehicle's lights and sirens.




2   Clerk's Papers at 1.
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No. 73358-3-1 /5

       Rezene does not argue on appeal that he was actually prejudiced by the

challenged language of the charging information. Accordingly, under Korsvik and

Nonog, we conclude that Rezene's charging information was constitutionally

sufficient.

                                  Appellate Costs

       Rezene requests that no costs be awarded on appeal. Appellate costs are

generally awarded to the substantially prevailing party on review. RAP 14.2.

However, when a trial court makes a finding of indigency, that finding remains

throughout review "unless the commissioner or clerk determines by

preponderance of the evidence that the offender's financial circumstances have

significantly improved since the last determination of indigency." RAP 14.2.

       Here, Rezene was allowed to proceed as an indigent party on appeal based

on a finding of poverty. If the State has evidence indicating that Rezene's financial

circumstances have significantly improved since the trial court's finding, it may file

a motion for costs with the commissioner.

       Affirmed.




WE CONCUR:




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