                                                                                                    COURT OF   APEALS
                                                                                                         DIVISION II

                                                                                                2815 APR 28     AM 8: 38

    IN THE COURT OF APPEALS OF THE STATE OF WASHI14W . '                                                       SHINGTON

                                                                                                    BY
                                                    DIVISION II

 STATE OF WASHINGTON,                                                           No. 46335 -1 - II


                                         Respondent,


           v.

                                                                        UNPUBLISHED OPINION
 QUINTIN ANTONIO DUBLIN,


                                         Appellant.


         MAxA, J. — Quintin Dublin appeals his convictions for two counts of second degree


criminal mistreatment. The State concedes that the charging documents were defective. We

accept the concession, and we reverse and dismiss Dublin' s second degree criminal mistreatment

convictions without prejudice.



                                                        FACTS


         On November 7, 2013, the State charged Dublin with two counts of second degree

abandonment of a dependent person, two counts of second degree criminal mistreatment, and


two counts of reckless endangerment. The information for the criminal mistreatment charges


alleged that Dublin " recklessly create[ d] an imminent and substantial risk of death or great

bodily harm," but did not allege that he did so by withholding any of the basic necessities of life.

Clerk' s Papers at 2. The State filed an amended information dismissing the two reckless

endangerment counts, which contained the same allegations for the criminal mistreatment

charges.



         After a bench trial, the trial court convicted Dublin on the two criminal mistreatment


counts   but    acquitted   him   on   the two   abandonment counts.   Dublin   appeals.
46335 -1 - II



                                                      ANALYSIS


          Dublin argues that the information and amended information were defective for failing to

include essential elements of the crime of criminal mistreatment, as defined by RCW

9A.42. 030( 1).    The State concedes that the charging documents were defective, and we agree.

          An information must state all the essential elements of a crime in order to give notice to


the   accused of   the   nature of   the   charges.   State v. Zillyette, 178 Wn.2d 153, 158, 307 P. 3d 712

 2013).   An essential element is one that is necessary to establish the very illegality of the behavior

charged. Id.


          RCW 9A.42. 030( 1) states that a parent or other person with responsibility for a child is

guilty of criminal mistreatment in the second degree if he or she recklessly " either ( a) creates an

imminent and substantial risk of death or great bodily harm, or (b) causes substantial bodily harm

by withholding     any   of   the basic   necessities of   life."   In State v. McGary, we held that the phrase

 by withholding any of the basic necessities of life" applies to both subsection ( a) and subsection

 b). 122 Wn.      App.   308, 312 -17, 93 P. 3d 941 ( 2004). As a result, we further held that an


information alleging second degree criminal mistreatment based on recklessly creating an

imminent and substantial risk of death or great bodily harm must include the " by withholding"

element. Id. at 318.


          Here, because the information and amended information omitted the " by withholding"

element, the State admits that the information was defective under McGary. The parties also

agree that pursuant to McGary, there is presumed prejudice to Dublin, requiring reversal and

dismissal of Dublin' s convictions without prejudice. Id.




                                                             2
46335 -1 - II




         We hold that under McGary, the information and amended information were defective.

Accordingly, we reverse the second degree criminal mistreatment convictions and dismiss them

without prejudice. McGary, 122 Wn. App. at 318.

         Dublin also argues that the State presented insufficient evidence to convict him of


criminal mistreatment. Because we are reversing his convictions based on the defective charging

documents, we need not reach this argument. McGary, 122 Wn. App. at 318 ( declining to

address sufficiency of the evidence because " the State never validly charged McGary with

second   degree   criminal mistreatment ");   see also State v. Rodgers, 146 Wn.2d 55, 58 -59, 43 P. 3d


1 ( 2002).


         We reverse and dismiss Dublin' s convictions for second degree criminal mistreatment


without prejudice.




         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.




We   concur:
