Mr. Admire was charged with and convicted of a felony violation of a no contact order (‘NCO’) and resisting arrest. On appeal, Mr. Admire claimed for the first time that the criminal complaint (“Information”) was constitutionally defective because it omitted an essential element of the crime he allegedly committed. Division III agreed and reversed his NCO conviction. However, the remand for dismissal was “without prejudice.” Since the only missing element was that Mr. Admire acted “knowingly,” the State could easily fix the error. In part, the Information alleged:
That the defendant Murphy Admire, in the County of Klickitat, State of Washington, on or about August 7, 2023, did commit the crime of Violation of Domestic Violence No Contact Order by having knowledge that the Benton County District Court has previously issued a no contact order, under RCW 10.99, and did violate the terms of said order by coming within, or knowingly remaining within, a specified distance of a location, a protected party’s person, or a protected party’s vehicle….
Omitting an essential element in an Information is of constitutional magnitude and subject to de novo review on appeal. The Information does not have to restate the precise statutory language of the essential elements of a crime, but the Information must name the offense, list the elements, and “allege the particular facts supporting.” State v. Pry, 194 Wn.2d 745, 752 (2019). The Information must “state both statutory and nonstatutory essential elements.” State v. McCarly, 140 Wn.2d 420, 425 (2000). The “two prong test” for evaluating the sufficiency of an Information is (1) whether the necessary facts appear in any form, or by fair construction can they be found in the charging document, and, if so (2) whether the defendant can show that he was nonetheless actually prejudiced by the inartful language which caused a lack of notice.
Mr. Admire successfully demonstrating a constitutional defect because the Information did not include the essential mens rea (‘state of mind’) element (that he knowingly violated a provision of the NCO). The State claimed Mr. Admire was not prejudiced and that the necessary elements were fairly implied.
Division III held that even when “liberally” construed in the State’s favor (the de novo standard), the “knowingly” element could not be imputed in Mr. Admire’s matter because “knowingly” did not precede the language “did violate the terms of said order” in the Information. Mr. Admire could knowingly remain within a specified distance of location without knowingly doing so in violation of the order. Since the necessary element could not be found or fairly implied, prejudice is presumed. State v. Kiorsuik 117 Wn.2d 93, 105-06 (1991).
Since Mr. Admire focused his appeal efforts on the Felony NCO, with good reason, as he got 60 months in prison, Division III upheld the resisting arrest conviction. This writer believes the State can easily repair Mr. Admire’s Information, and charge him in a way that will pass constitutional review.