FILED

COURT OF APPEALS

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UNPUBLISHED OPINION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 of the essential elements of the 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

allegation that he knowingly failed to register. He was convicted, but, for reasons unrelated to this

appeal, the trial court granted him a new trial. In both trials, the to- convict instructions did include

the element that Gibson knowingly failed to register. 

1 A commissioner of this court initially considered Dublin' s appeal as a motion 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 of the crime, rendering it defective

and requiring the reversal of his 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 of knowingly failing to 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 proper jury instructions cannot

cure a defective information.... [ A]nd federal courts have strictly applied the rule. 

Without amendment ofthe charging documents, the sufficiency of other sources of

the elements of the crime, such as the jury instructions, as the State urges here, .. . 

have all been rejected ifthe information itself does not include all essential elements

of the 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 of the 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 of the charged crime' s elements were given to the

defendant. Accordingly, we reject the State' s invitation to begin eroding Kjorsvik' s

bright -line rule that requires the information to advise the defendant of every

essential element of the charged crime. 

132 Wn. App. at 355. 

2
No. 46362 -8 -II

Applying Courneya, we reverse Gibson' s conviction and remand for further proceedings. 

Because we reverse Gibson' s conviction on this ground, we need not address Gibson' s contentions

raised in his Statement of Additional 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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