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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Appellant,

 v.

THOMAS OSCAR CADY,

Respondent.

 No. 84149-1-I

 DIVISION ONE

UNPUBLISHED OPINION

COBURN, J. — While on pretrial electronic home detention (EHD) in Edmonds, 

Snohomish County, Thomas Oscar Cady failed to return home by curfew after a 

scheduled court hearing in King County earlier in the day. A jury convicted him of 

escape in the third degree. Cady argues that the State failed to prove that he 

committed this act in King County, as required by the law of the case in the jury 

instructions. We agree and reverse and remand for the trial court to dismiss with 

prejudice.

FACTS

Cady faced a felony charge in King County Superior Court and was released 

from jail, but the court imposed electronic home detention without bail. Cady was to 

carry out this home detention at his residence in Edmonds. Home detention required 
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Cady to wear a “transmitter” around his ankle, which sent electronic signals to a 

“monitor” that remained stationary within his home. Cady signed a form acknowledging 

the conditions of conduct for persons ordered by King County Superior Court into EHD 

and agreed to abide by them.1 The detention required Cady to stay “within the four 

walls” of his home unless he was given permission to leave for a court appearance or 

other “legitimate” reason. Cady was given permission to leave his home on February 

12, 2020 for a court appearance in King County Superior Court by his King County Jail 

Corrections Division caseworker, Steve Kekoa Jaber. The permission required him to 

be back at his home by 5 p.m. that day. 

The next morning, Jaber received an alert that Cady’s transmitter had not 

returned to his home by 5 p.m. the previous day. Jaber attempted to call Cady at the 

number Cady had provided when he began home detention, but found the phone was 

disconnected. Jaber attempted to call at least one other phone number associated with 

Cady but was unable to reach him. Jaber did not attempt to locate Cady at Cady’s 

 1 The following is a summary of the conditions:

1. You shall commit no crimes. 

2. You shall not use controlled substances without a valid prescription and shall not 

consume alcohol beginning from the date of this order.

3. You shall attend all court ordered therapy and treatment. 

4. You shall attend work or school. 

5. You shall be on time when reporting to meetings with [King County Department of Adult 

and Juvenile Detention (DAJD)] staff.

6. You must arrange for the employer to directly mail your wages to the DAJD caseworker.

7. You must obtain pre-approval to work overtime.

8. You shall not forge a document or provide false information to DAJD staff.

9. You shall maintain an active, primary telephone line with long distance service.

10. You must not remove the EHD monitoring equipment that was placed on your person or 

in your home.

11. You must comply with the curfew and curfew conditions set by DAJD staff.

12. You must obtain permission from DAJD staff prior to making a change in your residence.

13. You will be removed from EHD and placed in WER if you receive three written warnings 

in a 30 day period for being less than 60 minutes late in violation of conditions 5 and 11 

above. 
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home or take any additional investigative steps to locate Cady. Jaber completed a 

report and forwarded it to Garren Clark, a criminal investigator with the King County 

Department of Adult and Juvenile Detention. Clark conducted no investigation of 

Jaber’s report before filing Clark’s own report and statement of probable cause with the 

prosecutor. 

Cady was charged by information with escape in the second degree and theft in 

the second degree based on the fact that his electronic home detention transmitter was 

not detected at his home by the monitor. The State subsequently dismissed the theft 

charge. Cady proceeded to trial on the escape charge. At trial, the State initially 

submitted a proposed jury instruction for the lesser included offense of escape in the 

third degree, before withdrawing its proposal. The defense requested that the jury be 

instructed on the lesser included offense and the court agreed. The defense submitted 

the same instruction that the State had previously submitted. Both parties were sent 

copies of the jury instructions to review the night before they were finalized. The next 

day, prior to finalizing the instructions, the State did not make any objections to the 

proposed instructions. The jury was instructed that if they did not find Cady guilty of 

escape in the second degree they should consider whether he was guilty of the lesser

included offense of escape in the third degree. Cady was convicted of escape in the 

third degree. 

Cady appeals.

DISCUSSION

Cady argues that because the State failed to object to the addition of an 

unnecessary element in the to-convict instruction for escape in the third degree, that the 
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act of escape occurred in King County, it became the law of the case and the State was 

required to prove the element beyond a reasonable doubt. 

Washington’s “law of the case” doctrine “derives from . . . common law.” 

Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005), and “is an established 

doctrine with roots reaching back to the earliest days of statehood.” State v. Hickman, 

135 Wn.2d 97, 101, 954 P.2d 900 (1998). In criminal cases, where additional elements 

are included in a jury instruction on the elements of the crime and not objected to, the 

State is required to prove those elements even if they are not included in the statute. 

State v. Johnson, 188 Wn.2d 742, 754, 399 P.3d 507 (2017).

In this case, the State failed to object to the inclusion of an unnecessary element 

in Instruction No. 11, the to-convict instruction for escape in the third degree. The 

instruction read

To convict the defendant of the crime of escape in the third degree, each of the 

following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about February 12, 2020, the defendant knowingly escaped 

from custody or knowingly violated the terms of an electronic home 

monitoring program; and

(2) That this act occurred in King County of the State of Washington.[2]

Under Hickman and Johnson, the element became the law of the case and the State 

was required to prove beyond a reasonable doubt that Cady committed the act of 

escape in King County. The instructions also defined “custody” as “restraint pursuant to 

an order of a court.” 

Cady contends that the State failed to provide sufficient evidence that the act 

 2 The to-convict instruction for the charge of escape in the second degree required the 

jury to find the act occurred in the State of Washington. 
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occurred in King County. We agree.

On appeal, a defendant may assign error to elements added under the law of the 

case doctrine. Hickman, 135 Wn.2d at 102 (citing State v. Ng, 110 Wn.2d 32, 39, 750 

P.2d 632 (1988)). Such an assignment may include the sufficiency of the evidence of 

the added element. Id. at 102 (citing State v. Barringer, 32 Wn. App. 882, 887-88, 650 

P.2d 1129 (1982)). Evidence is sufficient to support a criminal conviction if, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt. 

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 

Wn.2d 216, 220-22, 616 P.2d 628 (1980)). “A sufficiency challenge admits the truth of 

the State’s evidence and accepts the reasonable inferences to be made from it.” State 

v. O’Neal, 159 Wn.2d 500, 505, 150 P.3d 1121 (2007). “Direct evidence is not required 

to uphold a jury’s verdict; circumstantial evidence can be sufficient.” Id. at 506. 

Dismissal with prejudice is required when there is insufficient evidence to sustain a 

charged offense. State v. Loos, 14 Wn. App. 2d 748, 766, 473 P.3d 1229 (2020) (citing 

State v. Devitt, 152 Wn. App. 907, 913, 218 P.3d 647 (2009)).

In this case, the jury was presented with evidence that Cady faced felony 

charges in King County and as a condition of pretrial release would be placed on 

electronic home monitoring at his home in Edmonds. The jury received court 

documents indicating that Cady had a court date on February 12, 2020, and that a 

bench warrant was issued for him on February 13.3 No evidence was admitted as to 

 3 Notably, the jury did not find Cady guilty of escape in the second degree where they 

would have had to find beyond a reasonable doubt that Cady, on or about February 12, 2020, 

had been charged with a felony, escaped from custody, knew that his actions would result in 
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whether Cady appeared for his court hearing on February 12 or the basis of why a 

warrant was issued on February 13. At trial, the State emphasized the contents of 

exhibit 3, the admitted clerk’s minute entry for a motion hearing on February 13. The 

document indicated that the court granted the State’s motion for issuance of a bench 

warrant and a prosecutor was present, but the defendant was “not present.” During 

closing, the State argued that Cady did not show up to his court hearing.4 However, 

February 13 was the State’s motion request for a warrant not Cady’s February 12

scheduled court hearing. Though a jury possibly could infer the warrant issued because 

Cady did not appear at his court day the previous day, the jury also could have inferred 

that the warrant issued because Cady did not return to his home in Edmonds as 

required. The jury also received Cady’s signed conditions of custody. 

The device alerted Cady’s caseworker at the King County Jail that Cady had not 

returned to his home in Edmonds by the curfew permitted for him to attend a court 

appearance on February 12. The caseworker was unable to reach Cady by phone and 

did not receive any communications from Cady. Neither the caseworker nor the 

investigator conducted any further investigation. There was no testimony regarding the 

county in which Cady’s home was located. In fact, the jury sent an inquiry during 

deliberations asking “What county is the following address a part of?” alongside Cady’s 

home address. The State presented no evidence that Cady knowingly escaped from 

 

leaving or remaining absent from confinement without authorization, and that this act occurred 

in the State of Washington.

4 Cady objected on the basis “that’s not the evidence” and the court overruled the 

objection. Because the prosecutor also said “He turned off service on his phone. He was 

unable to be located” immediately after saying Cady “didn’t even show up to his court hearing”,

it is not clear as to whether the objection was directed to one or both statements. Cady does 

not assign error to the court’s ruling on appeal.
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custody or violated the terms of an electronic home monitoring program in King County.

In Hickman, the State similarly included the unnecessary element of venue in the 

jury instructions and failed to prove it beyond a reasonable doubt. There, the State 

agreed to jury instructions requiring the Snohomish County venue to be proved as an 

element of the crime. Hickman, 135 Wn.2d at 101. Hickman had purchased a car in 

Washington State and left it with a friend while he traveled to Hawaii. Id. at 100. 

Hickman agreed to let two friends “steal” his car so he could file a report with his 

insurance company to obtain the balance of the loan on the car. Id. From Hawaii, 

Hickman called and filed an insurance claim with his insurance company located in 

Kent. Id. At his trial on charges of insurance fraud, the only evidence of venue was 

testimony that the vehicle had been located by law enforcement on a rural road in 

Snohomish County. Id. The Supreme Court reversed the conviction, finding that when 

Hickman had “allegedly called his insurance company to submit the fraudulent claim, he 

was in Hawaii while his insurance company was in King County” and concluding that 

“such evidence simply does not demonstrate Hickman knowingly presented or caused 

to be presented a fraudulent insurance claim in Snohomish County.” Id. at 105-06.

The State argues that sufficient evidence supports the conviction because it 

showed a King County Superior Court judge signed the order authorizing EHD, and that 

Jaber testified that being on King County’s EHD is basically a continuation of 

incarceration. This shows Cady was in custody in King County and, thus, the State 

argues, it supports the jury’s conclusion that Cady committed the act of escape in King 

County. We disagree. This evidence may, arguably, establish that Cady was in King 

County “custody,” but does not establish that when he escaped from that custody, the 
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criminal act, it occurred in King County.

The State also argues that Cady knowingly violated the terms of an electronic 

monitoring program while in King County custody by failing to maintain a phone number 

provided to King County. Again, the only evidence of a location where Cady was to 

maintain a phone line was in the house in Edmonds. The record is devoid of evidence 

of Cady’s act of failing to maintain a phone line in King County.

No rational trier of fact could have found that Cady knowingly escaped from 

custody or violated the terms of an electronic home monitoring program in King County 

where there was no evidence that the criminal act occurred in King County. 

We reverse and remand to the trial court to dismiss with prejudice.

WE CONCUR: