### FILED 

## COURT OFAPPEALS DIVISION II 2015 

### MAY 19 

### PI 9 :06 ST TE NA NGTOH BY IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

STATE OF WASHINGTON,

v. THOMAS D. GIBSON, DIVISION II
Respondent,

Appellant. No. 46362 - 8 -II

UNPUBLISHED OPINION

LEE, J. — 

### Thomas D. Gibson appeals from his conviction for failing to register as a sex offender, arguing that the information failed to allege all ofthe essential elements ofthe crime. The State concedes that the information was defective but contends that the error was harmless. Rejecting the claim of harmless error, we reverse Gibson' s conviction and remand for further proceedings.' 

### The information charging Gibson with failing to register as a sex offender lacked an allegationthathe knowingly failed to register. He was convicted, but,forreasons unrelated to this appeal, the trial court granted him a new trial. In both trials, the to-convict instructions did include 

### the elementthat Gibson knowingly failed to register.



### 1 A commissioner ofthis court initially considered Dublin's appeal as amotion on the merits under RAP 18. 14 and then transferred it to a panel.No. 46362 - 8 -II 

### Gibson argues that by omitting an allegation that he knowingly failed to register as a sex offender, the information failed to allege an essential element ofthe crime, rendering it defective 

### and requiring the reversal ofhis conviction. State v. Kjorsvik, 117 Wn.2d 93, 105 -06, 812 P.2d 86 1991). The State concedes that the information was defective because it omitted the element of knowledge from the allegation that Gibson failed to report to the sheriff as require. However, the State argues that the error is harmless because the to-convict instruction from his first trial, which 

### included the element ofknowingly failingto register,put him on notice ofthat element before his second trial. State v. Hopper, 118 Wn.2d 151, 157 -59, 822 P.2d 775 ( 1992). 

### We rejected the application of harmless error to a very similar situation in which an information omitted an essential element of the crime, the to-convict instruction contained the
omitted element and the defendant went through a second trial. See State v. Courneya, 132 Wn. App. 347, 352 -

55, 131 P. 3d 343, review denied, 158 Wn.2d 1023 ( 2006). In Courneya, we held: 

### O]ur Supreme Court has specifically stated that properjury instructions cannot cure a defective information.... [ A]nd federal courts have strictly applied the rule. 

### Without amendment ofthe charging documents,the sufficiency ofother sources of 

### the elements ofthe crime, such as thejury instructions, asthe State urges here, .. . have all been rejected ifthe information itselfdoes not include all essential elements ofthe crime. 

### 132 Wn.App. at 354. 

### And rejecting the State' s argument that the to-convict instruction from the first trial put Courneya on notice ofthe omitted element before the second trial, we held: 

### Despite the arguable satisfaction here ofthe notice policy explained in Kjorsvik, allowing such exceptions would soon eclipse the rule and likely erode the notice 

### requirement entirely or embroil the courts and litigants in endless disputes about whether and when proper notice ofthe charged crime' s elements were given to the 

### defendant. Accordingly,we rejectthe State' s invitationto begin eroding Kjorsvik's bright - line rule that requires the information to advise the defendant of every essential element ofthe charged crime. 132 Wn.App. at 355. 2No. 46362 - 8 -II 

### Applying Courneya, we reverse Gibson's conviction and remand for furtherproceedings. Because we reverse Gibson' s conviction on this ground, we need not address Gibson' s contentions raised in his Statement ofAdditional Grounds. 

### 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:
Johanson, C., .

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