                                                                                                         FACED
                                                                                                 COURT OFAPPEALS
    IN THE COURT OF APPEALS OF THE STATE OF WASHING '
                                                                                            2015   Al"
                                                                                                         28   AIM 8. 25
                                             DIVISION II
                                                                                        S
 STATE OF WASHINGTON,                                                    No. 46363 -6 -II
                                                                                            rl

                                    Respondent,


        V.



 JOHN ANTHONY CHACON II,                                           UNPUBLISHED OPE




       MELNICK, J. —       John Anthony Chacon II appeals his convictions of malicious harassment,

assault in the fourth degree, and burglary in the second degree, arguing that the charging document

was constitutionally deficient, that one of the trial court' s preliminary instructions to the jury was

erroneous, and that the trial court' s imposition of attorney fees as part of his legal financial

obligations (   LFOs)   violated   his Sixth Amendment   rights.   We hold that the charging document

sets forth the essential elements of Chacon' s offenses, that the trial court' s preliminary instruction

did not amount to constitutional error, and that Chacon waived the right to challenge his LFOs by

not objecting to them during sentencing. We affirm the convictions and sentence.

                                                  FACTS


        On March 7, 2014, Chacon entered a Centralia coffee shop where Tessa Alberts worked.

He ordered. milk and a biscotti from her. The interaction between Alberts and Chacon was cordial;

they have mutual friends in common. Chacon took his order and walked to the back of the shop.

        Several months earlier, shop owner Justin Page had told Chacon to leave the coffee shop

and never return. When Page saw Chacon on March 7, he told Chacon to leave immediately. After

Chacon requested a to -go cup for his milk, Page walked up to the counter to get the cup and Chacon

followed. When Chacon         received   the cup, his demeanor   changed.   He   said   something   and   threw
46363 -6 -II




a crumpled piece of paper that hit Alberts in the chest. Chacon' s behavior shocked the customers

in line.

           Alberts   picked   up the   paper and opened      it.   It showed a photograph of a dead African


American man hanging by a noose. Alberts, the only person of color in the shop at the time, was

stunned and upset.




           The State charged Chacon, by second amended information, with malicious harassment,

assault    in the fourth degree,   and   burglary   in the second degree.     The information described the


harassment and assault charges as follows:


                                                     Count I
                                        MALICIOUS HARASSMENT


                     On or about the 7th day of March, 2014, in the County of Lewis, State of
           Washington, the above- named defendant, because of his or her perception of a
           person' s race, color, religion, ancestry, national origin, gender, sexual orientation,
           or mental, physical, or sensory handicap, did maliciously and intentionally ( 1)

           cause physical injury to that person or another person, and/or (3). threaten a specific
           person or group of persons, and place that person or members of the specific group
           of persons in reasonable fear of harm to person or property, and made the threat in
           a context, or under such circumstances, wherein a reasonable person would foresee
           that the statement would be interpreted as a serious expression of intention to carry
           out the threat; contrary to the Revised Code of Washington 9A.36.080.



                                                     Count II
                                 ASSAULT IN THE FOURTH DEGREE


                  On or about March 7, 2014, in the County of Lewis, State of Washington,
           the above- named defendant did intentionally assault another person; contrary to
           Revised Code of Washington 9A.36. 041( 1).


Clerk' s Papers ( CP) at 3.


           After swearing in the jury, the trial court gave some oral preliminary instructions that began

with these statements:




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46363 -6 -II




                     First, don' t   jump     to         By definition there are at least two sides
                                                   conclusions.

         to every      case.
                               Listen carefully to all the evidence before starting to draw your
         conclusions.



Report   of   Proceedings      at    11.   The court provided several additional instructions, some of which


explained the presumption of innocence, the State' s burden of proving the elements of each crime

beyond a reasonable doubt, and the definition of reasonable doubt. The court also informed the


jury that Chacon was not required to introduce evidence.

         Alberts and Page testified to the facts set forth above, and Chacon testified that he had


never   been told he       could not return         to the coffee shop.     Chacon admitted that he became upset


when Page told him to leave and that he thought he was being discriminated against because he

was homeless. Chacon added that he took a picture he had found elsewhere and threw it at Alberts

because he wanted to show her what discrimination looks like.


         The jury found Chacon guilty as charged, and the trial court imposed a sentence of 13

months as well as LFOs that included $ 1, 800 in attorney fees. Chacon appeals his convictions and

his LFOs.


                                                           ANALYSIS


I.       CHARGING DOCUMENT


         Chacon contends that his charging document was constitutionally deficient because it

failed to include critical facts; specifically, the name of the malicious harassment victim and the.

assault victim.       We   review      this   challenge    de   novo.   State v. Williams, 162 Wn.2d 177, 182, 170


P. 3d 30 ( 2007).


         An information must contain all essential elements of a crime to give the accused proper .


notice of     the crime    charged so       that   he   can prepare an adequate   defense. Williams, 162 Wn.2d at


183; State     v.   Kjorsvik, 117 Wn.2d 93, 101, 812 P. 2d 86 ( 1991).              To satisfy this requirement, the




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46363 -6 -II




information must allege every element of the charged offense and the facts supporting the

elements. State v. Nonog, 169 Wn.2d 220, 226, 237 P. 3d 250 ( 2010).

            We distinguish. between charging documents that are constitutionally deficient and those

that   are    merely     vague.       State    v.   Leach, 113 Wn.2d 679, 686- 87, 782 P. 2d 552 ( 1989).                     A


constitutionally deficient information is subject to dismissal for failure to state an offense by

omitting allegations of the essential elements constituting the offense charged. Leach, 113 Wn.2d

at   686- 87.      An information that states each statutory. element of a crime, but is vague as to some

other matter, may be corrected under a bill of particulars. Leach, 113 Wn.2d at 687. A defendant

may not challenge an information for vagueness on appeal if he did not request a bill of particulars

at trial. Leach, 113 Wn.2d at 687.


            When a charging document is challenged for the first time on appeal, as it is here, we must

construe      it   liberally   in favor   of   its validity. Kjorsvik, 117 Wn.2d            at   105.   In applying this liberal

construction standard, we read the words in the charging document as a whole and consider

whether the necessary facts appear in any form. Williams, 162 Wn.2d at 185; Kjorsvik, 117 Wn.2d

at   109.    If they do,       we   consider   whether     the   defendant      was "`   nonetheless actually prejudiced by

the inartful language            which caused         a   lack   of notice."'     Williams, 162 Wn.2d at 185 ( quoting

Kjorsvik, 117 Wn.2d at 105- 06).


             An information may rely on the language of a statute if the statute defines the offense with

certainty. Leach, 113 Wn.2d at 686. There is no additional requirement that the State allege facts

beyond those that support the elements or that the State describe the facts with great specificity.

State v.. Winings, 126 Wn. App. 75, 85, 107 P. 3d 141 ( 2005).

             The information in this case charged in the language of the malicious harassment and

assault statutes. It alleged that on or about March 7, 2014, Chacon acted because of his perception




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46363 -6 -II



 of a person' s race [ or] color," and            threatened "      a specific person or        group   of persons."    CP at 2;


RCW 9A. 36. 080. It              alleged   further that Chacon " did      intentionally       assault another person."      CP at


3; RCW 9A.36. 041( 1).              This language sufficiently apprised Chacon of the elements of the charged

crimes and the conduct that constituted those crimes.


          Chacon complains that the failure to identify the specific victim of the malicious

harassment     and       the   assault rendered     the information       vague and      indefinite. But criminal statutes


that   protect a    particular class of persons          do   not require    that the   particular victim    be   named.         See


City   of Seattle    v.   Termain, 124 Wn.        App.   798, 805, 103 P. 3d 209 ( 2004) ( because violation of no -


contact order is committed only by contact with particular person or location, such facts must be

included in information). None of the statutes under which Chacon was charged requires a specific


victim. Accordingly, if he did not know who the victim was, Chacon could have requested a bill

of particulars.          See State    v.   Plano, 67 Wn.       App:     674, 678- 80, 838 P. 2d 1145 ( 1992) (          name of




assault victim was not essential element and could have been provided by bill of particulars).

          Having found that the information contained all of the essential elements, we would

normally proceed to the second prong ofthe Kjorsvik test to ask whether vague or inartful language
prejudiced     the defendant.              117 Wn.2d    at   106.   But Chacon has not argued that he was actually

prejudiced.     Because Chacon' s information included all essential elements, we need not address


this prong. See Termain; 124 Wn. App. at 803 ( if charging document fails essential elements test,

prejudice    test   is    not reached).      The information provided Chacon sufficient notice of the charged


offenses and his allegation of vagueness is waived.


II.       PRELIMINARY JURY INSTRUCTION


          Chacon          next    challenges    the trial    court' s   preliminary instruction to the         jury    that "[   b] y

definition there          are at   least two    sides   to every    case."    RP   at   11.    Chacon argues that with this




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46363 -6 -II




statement, the trial court infringed on his due process right to a fair trial by leading the jury to

expect something from the defense and subtly shifting the burden of proof. Chacon did not object

to this instruction during trial but argues that he may challenge it for the first time on appeal

because the instruction constitutes manifest constitutional error. RAP 2. 5( a).


          We generally will not consider an issue that the defendant did not raise in the trial court.

RAP 2. 5(      a);   State    v.   O' Hara, 167 Wn.2d 91, 97- 98, 217 P. 3d 756 ( 2009).                        An exception to this


rule exists     for   manifest errors      that   affect a constitutional right.          RAP 2. 5(      a)(   3).    To fall within this

exception, the defendant must identify. a constitutional error and show how the alleged error

actually affected his or her rights at trial. State v. Kirkman, 159 Wn.2d 918, 926- 27, 155 P. 3d 125
 2007).    After determining that the error is of constitutional magnitude, we must determine whether

it is   manifest.      O' Hara, 167 Wn.2d          at   99. " Manifest" under RAP 2. 5( a)( 3) requires a showing of


actual prejudice unless structural error occurred. State v. Koss, 181 Wn.2d 493, 503 n. 6, 334 P. 3d

1042 ( 2014).


           Our Supreme Court recently examined whether a different preliminary instruction .

constituted manifest constitutional error.                  State   v.    Kalebaugh, _           P. 3d _,            2015 WL 4136540.


At issue was a preliminary oral instruction that added language to the standard instruction on
reasonable           doubt.        Kalebaugh, 2015 WL 4136540, * 3 (                  citing 11 WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4. 01,                                     at   85 ( 3d   ed.    2008) ( WPIC)).      The


Kalebaugh court held that because the trial court misstated the law regarding reasonable doubt, it

would review           the instruction     under a manifest constitutional error standard.                           2015 WL 4136540,


  3.     The    court    ultimately held, however, that the                 error   was    harmless.           Kalebaugh, 2015 WL


4136540, * 3.




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46363 -6 -II



            The oral instruction challenged here does not compare to the instruction at issue in

Kalebaugh.           The trial court' s initial statement that there are two sides to every case was simply

part of the court' s general directive to the jury to keep an open mind. Moreover, it was followed

by oral and written instructions that accurately conveyed the State' s burden of proof and the

definition of reasonable doubt. The court also informed the jury that Chacon was not required to

introduce any evidence and had no burden of proving that a reasonable doubt existed.

            When viewed as a whole, the trial court' s instructions accurately informed the jury of the

standards     that   governed   its determinations. See State v. Bennett, 161 Wn.2d 303, 307, 165 P. 3d


1241 ( 2007) (       we review instructions as a whole in determining whether the court accurately

informed the jury        of the applicable     law).   We see nothing in the challenged preliminary instruction

that triggers a claim of constitutional error and consider this issue waived.

III.        LEGAL FINANCIAL OBLIGATIONS


            Finally, Chacon argues that the trial court violated his Sixth Amendment right to the

assistance of counsel by ordering him to pay attorney fees without inquiring into his ability to pay.

Chacon did not challenge the assessment of these fees or any of his other LFOs during sentencing

but argues that he may do so for the first time on appeal.

            Chacon' s judgment and sentence states that the trial court considered his. ability to pay the

LFOs imposed. Chacon did not challenge this language or his LFOs during sentencing, so he may

not    do   so on appeal.   State   v.   Lyle, _   P. 3d _,   2015 WL 4156773,    at *   1 ( citing State v. Blazina,

174 Wn.       App.    906, 911, 301 P. 3d 492 ( 2013),        remanded, 182 Wn.2d 827, 344 P. 3d 680 ( 2015)

 affirming Court of Appeals' exercise of discretion to refuse to address issue raised for the first

time on appeal, but exercising its own discretion to reach the issue and remand to trial court for

further     proceedings).    Our decision in Blazina, issued before Chacon' s sentencing, provided notice




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that the failure to object to LFOs during sentencing waives a related claim of error on appeal. 174

Wn.   App.   at   911.   As our supreme court noted, an appellate court may use its discretion to reach

unpreserved claims of error.       Blazina, 182 Wn.2d   at   830. We decline to exercise such discretion


here, noting that our Supreme Court has rejected the claim of constitutional error that Chacon

attempts to raise. State v. Blank, 131 Wn.2d 230, 239- 42, 930 P. 2d 1213 ( 1997).


        We affirm the judgment and sentence.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




                                                                       0-00-. - ` _
                                                                   Melnick, J.


I concur:




        Johanson, C. J.
46363 -6 -II




           BJORGEN, J. ( concurring) —   For the reasons set out in my dissent in State v. Lyle,

P. 3d _,     No. 46101 -3 -II, 2015 WL 4156773 ( Wash. Ct. App.      July   10, 2015), I would reach


John Chacon' s legal financial obligations' challenge, even though he did not raise it during

sentencing. However, the majority in Lyle, a published decision, reached a contrary conclusion.

Lyle,        P. 3d ,   No. 46101 -3 -II, 2015 WL 4156773 ( Wash. Ct.        App. July   10, 2015). Unless


Lyle is overturned or its bases questioned by subsequent case law, I shall observe its result under

principles of stare decisis. Therefore, I concur in this decision with the reservation here

expressed.




                                                   BJC . GEN...




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