IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. WILLIAM BRUCE JONES, Appellant. No. 70034-1-1 DIVISION ONE

UNPUBLISHED FILED: December 15. 2014


### Cox, J. —"[A]n accused has a protectedright, under our state and federal charters, to be informed ofthe criminalcharge against himso he will be able to 

### prepare andmounta defense attrial."1 Here, William Bruce Jones challenges hisconvictionforpromoting prostitution in the second degree on the basis of his claim that the charging document isconstitutionally deficient. Specifically, he claims the second amended information on which the State based its claims at 

### trial "affirmatively misadvised him oftheelements" and chargedhimwith merely attempting to advance theprostitution ofthe person namedin theinformation. Because this amended information fails to put forth with clarityevery material 

### element of the charge ofpromoting prostitution in the second degree, and

State v. McCartv, 140 Wn.2d 420, 425, 998 P.2d 296 (2000).No. 70034-1-1/2 

### because itdoes not properly informJones ofthe nature ofthe charge against him, we agree and reverse. The factual basis for this case arises from the interactions between Jones and two young women, E.J. and T.M. The details ofthose interactions are not 

### material to our discussion and disposition of this case. It is sufficientto saythat the State initially charged Jones with Promoting Prostitution inthe Second Degree in connection with E.J., one ofthe two women. Under RCW 9A.88.080(1): A person is guilty ofpromoting prostitution inthe second degree if he or she knowingly: (a) Profits from prostitution; or (b) Advances prostitution. Consistentwith this statute, the State's initial information, involving only E.J., alleged: Thatthe defendantWILLIAM BRUCE JONES in King County, Washington, during a period oftime intervening between July 28, 2012 through July 31,2012, did knowingly advance and 

### profit fromtheprostitution of[E.J.].[2] Two months later, the State amended the information to increase the severity ofthe charge involving E.J. to Promoting Prostitution inthe First Degree. Atthe same time, the State added a second count charging Promoting Prostitution inthe Second Degree in connection with T.M., the otherwoman. This amended information stated in relevant part as follows:



### 2Clerk's Papers at 1 (emphasis added).No. 70034-1-1/3 

### Thatthe defendantWILLIAM BRUCE JONES in King County, Washington, during a period of time intervening between July 31, 2012 through August 3, 2012, did knowinglyattemptto 

### advance theprostitution of[T.M.].[3] Two months later, the State again amended the information. This second 

### amended information reflects the charges for which Jones was eventuallytried. This time, with regard to T.M., the State charged Jones incount II with Promoting Prostitution inthe Second Degree, alleging he "did knowingly attemptto 

### advance theprostitution of[T.M.]."4 This mirrored the allegation inthe first amended information. Following the State's case-in-chiefat trial, Jones moved to dismiss both counts for insufficient evidence. The court denied the motion. Thejury acquitted Jones on count Iand convicted him on count II. Thus, the only conviction before
us is that for promoting prostitution inthe second degree with regard to T.M. Jones appeals. SUFFICIENCY OF CHARGING DOCUMENT Jones argues, for the first time on appeal, that the amended information charging him with promoting prostitution inthe second degree was constitutionally deficient. We agree. "[A]n accused has a protected right, under our state and federal charters, to be informed ofthe criminal charge against him so he willbe able to prepare



### 3jd. at 8 (emphasis added). 4]d. at 11 (emphasis added).No. 70034-1-1/4 

### and mount a defense at trial."5 The SixthAmendment requires that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be informed ofthe nature and cause ofthe accusation
. .. ."6 Likewise, our state constitution requires that "[i]n criminal prosecutions the accused shall have the right... to 

### demand the nature and cause ofthe accusation against him .
.. ."7 "Every material element ofthe charge, along with all essential supporting 

### facts, must be put forth withclarity."8 "[A] charging document satisfies these constitutional principles only if itstates all the essential elements ofthe crime 

### charged, both statutory and nonstatutory."9 If a charging document is challenged for the first time on appeal, this court construes itliberally and finds itsufficient "ifthe necessary elements appear in 

### any form, or by fair construction may be found, on the face of the document."10 But "'[i]fthe document cannot be construed to give notice of or to contain insome
manner the essential elements of a crime, the most liberal reading cannot cure jt "Mi

5 McCartv, 140 Wn.2d at 425. 6 U.S. Const, amend. VI. 

### 7Const, art. I, § 22. 8 McCartv. 140 Wn.2d at 425. 9ld, 

### 10jd, (citing State v. Kiorsvik, 117 Wn.2d 93, 105, 812 P.2d 86 (1991). 11 Id. (alteration in original) (internal quotation marks omitted) (quoting State v. Moavenzadeh, 135 Wn.2d 359, 363, 956 P.2d 1097 (1998)).No. 70034-1-1/5 

### A liberal reading involves the two-prong test setforth inState v. Kjorsvik: "(1) do the necessary elements appear inany form, or by fair construction can they be found, inthe information, and ifso (2) can the defendant show he or she


### was actually prejudiced by the inartful language."12 Ifthe necessary elements
are not found or fairly implied, we presume prejudice and reverse without 

### reaching the question of prejudice.13 Underthe first prong, "Words in a charging document are read as a whole, construed according to common sense, and include facts which are necessarily 

### implied."14 "[I]thas neverbeen necessary to use the exactwords of a statute in a charging document; it is sufficient ifwords conveying the same meaning and 

### import are used."15 The question "iswhether allthe words used would 

### reasonably apprise an accused of the elements of the crime charged."16 The second prong looks to whetherthe defendant "actually received 

### notice of the charges he or she must have been prepared to defend against."17 "It is possible that other circumstances ofthe charging process can reasonably 

### inform the defendant in a timelymanner of the nature of the charges."18

12 Id. (citing Kjorsvik. 117 Wn.2d at 105-06). 13Id 14Kjorsvik, 117 Wn.2d at 109. 

### 15jd, at 108. 16jd, at 109. 17 ]d, at 106. 18jd, 5No. 70034-1-1/6 

### "Thepurpose of this 'essential elements' rule is to give notice of the nature and cause ofan accusation againstthe accused so that a defense can be 

### prepared."19 "The ruleensures that the accused is apprised 'with reasonable certainty ofthe nature ofthe accusation.'"20 

### We review de novo the adequacy of a charging document.21 Here, the second amended information read: 

### And I, Daniel T. Satterberg, Prosecuting Attorney aforesaid further do accuse WILLIAM BRUCE JONES ofthe crime of Promoting Prostitution in the Second Degree
. . . committed as follows: Thatthe defendantWILLIAM BRUCE JONES in King 

### County, Washington, during a period of time intervening between July 31, 2012 through August 3, 2012, did knowingly attemptto advance theprostitution of [T.M.]; Contrary to RCW 9A.88.080(1)(b), and against the peace 

### and dignity ofthe State ofWashington.1221 Jones challenges the adequacy ofthis charging document for the first time
on appeal. Thus, the more liberal standard of review stated in Kjorsvik applies. Under RCW 9A.88.080(1 )(b), a person is guilty of promoting prostitution in the second degree ifhe or she knowingly "advances prostitution." Accordingly, the issue presented inthis case is whetherthe addition ofthe word "attempt" before the words "to advance the prostitution of [T.M.]" inthe charging document renders itconstitutionally deficient. 19 State v. Campbell, 125 Wn.2d 797, 801, 888 P.2d 1185 (1995). 

### 20 \± (quoting State v. Leach. 113 Wn.2d 679, 688, 782 P.2d 552 (1989)). 21 State v. Johnson. 180 Wn.2d 295, 300, 325 P.3d 135 (2014). 

### 22 Clerk's Papers at 10-11 (emphasis added).No. 70034-1-1/7 Unlike the typical challenge to a charging document, this case is based on the addition of a word—attempt—to the charging document. Thus, this is a case of surplusage rather than omission of a word or words stating the essential elements of a charge. But counsel inthis case have not presented us with any authority indicating that our analysis should be any different in a case involving this type ofsurplusage. And we have found no such relevant authority. Accordingly, the question presented is whetherJones was given proper notice ofthe nature and cause ofthe accusation against him so that a defense could be prepared. 

### We conclude thatthis charging document does not "put forth with clarity" 

### every material elementofthe charge due to the addition ofthe word "attempt" in 

### the second part of the charging document.23 A charging document is sufficientif 

### words "conveying the same meaning and import" are used.24 Butthe words "attemptto advance prostitution" do notconveythe same meaning and importas "advance prostitution." Rather, the charging documentconveys thatthe 

### promoting prostitution charge occurred by virtue ofthe attemptto advance prostitution. The addition ofthe word "attempt" is especially important inthis case 

### because the word "attempt" has independent legal significance—a substantial

23 See McCartv. 140 Wn.2d at 425. 24 Kjorsvik, 117 Wn.2d at 108.No. 70034-1-1/8 

### step.25 Thus, the surplusage alone is not the fatal error. Rather, it is the significance ofthis word in the context ofthis information that is the problem. We further conclude that the charging document does not apprise Jones 

### "'with reasonable certainty ofthe nature of the accusation.'"26 The plain words of the first part ofthe amended information charge Jones with Promoting Prostitution inthe Second Degree. But the remaining words in the amended information plainly charge him with an "attemptto advance theprostitution" of 

### T.M.27 Thus, the plain words ofthe charging document state two fundamentally different crimes. The first part charges promoting prostitution. And the second part charges an attemptto advance prostitution. 

### In reaching this conclusion, we see a useful analogy inState v. Smith.28 Inthat case, Shelley Sue Smith argued that the to-convict instruction used to 

### convict her of the conspiracy charge in her case was constitutionallydefective.29 The instruction required thejury to find that Smith "agreed with [others] to engage 

### in . . . the performance ofconduct constituting the crime ofConspiracy to Commit 

### Murder inthe First Degree[.]"30 The supreme court agreed thatthe instruction

25 See State v. Borrero, 97 Wn. App. 101, 106, 982 P.2d 1187(1999). 26 See Campbell. 125 Wn.2d at 801 (quoting Leach, 113 Wn.2d at 688). 

### 27 (Emphasis added.) 28 131 Wn.2d 258, 930 P.2d 917 (1997)). 

### 29 Id, at 262. 

### 30 ]d. (alterations in original) (internal quotation marks omitted).

8No. 70034-1-1/9



### was plainlydefective.31 It did so because the instruction "described the even more inchoate crime ofconspiracyto commit conspiracyto commit murder."32 It reversed Smith's conviction and remanded for a new trial on the conspiracy 

### charge.33 The error inthis charging document is substantially similar. Itdescribes the even more inchoate crime ofattempting to advance prostitution. We conclude that Smith provides a helpful parallel, because itinvokes many ofthe same principles applicable to charging documents. Like a charging document, a to-convict instruction must contain all the essential elements ofthe crime, and an appellate court should not look to other documents to supply the 

### missing information.34 Likewise, the purpose of this rule is to give proper notice to a defendant ofwhat charges are being made.35 This is akin to giving a jury legal instruction on what itmust use to convict. The fact that Smith involved a jury instruction, not a charging document, is not a material distinction for purposes of our analysis here. 

### Insum, the charging document in this case is constitutionally deficient because it fails to put forth with clarity every material element and fails to give 

### proper notice ofthe charge so that a defense can be prepared. Consequently, a

31 IdL 32 Id, 33 Id at 266. 34 See State v. Emmanuel. 42 Wn.2d 799, 819-20, 259 P.2d 845 (1953). 35Campbell. 125 Wn.2d at 801.No. 70034-1-1/10 prejudice analysis is not necessary, because "'[i]fthe document cannot be construed to give notice of or to contain in some mannerthe essential elements 

### of a crime, the most liberal reading cannotcure it.'"36 The State presents several arguments thatthe charging document is sufficient. We are not persuaded by any ofthem. The State argues that "inthis context, the addition ofthe superfluous word 

### 'attempt' does not renderthe information constitutionally deficient."37 It points out that one ofthe statutory definitions of "advances prostitution" is "engages in any 

### other conduct designed to institute, aid, or facilitate an act or enterprise of 

### prostitution."38 And itcites State v. Cann. where the supreme court examined this statutory language and determined that "an attempt is covered underthe 

### language used."39 Thus, the State argues that because attempted activities can constitute advancing prostitution, the essential elements are fairly implied. 

### A plain reading ofthe amended information refutes this. The State's argument essentially requires thatwe read the charging documentto say that Jones "knowingly attempted to attemptto advance prostitution." Even with this substituted definition, one that brings with itsome lack of clarity of its own, the

36 McCartv. 140 Wn.2d at425 (alteration inoriginal) (internal quotation marks omitted) (quoting Moavenzadeh, 135 Wn.2d at 363). 37 Brief of Respondent at 16. 

### 38 Jdk at 17-18 (quoting RCW 9A.88.060(1)). 39 92 Wn.2d 193, 198, 595 P.2d 912 (1979)).

10No. 70034-1-1/11 

### State nevertheless failed to put forth with clarity every material element, and it charged Jones with a lesser inchoate crime. The State cites two cases for the proposition that the word "attempt" in a 

### charging document encompasses the requirement of a "substantial step."40 While this is true, the State fails to explain how this negates the adverse effect of the additional word "attempt" inthe charging document. We see nothing to convince us, under the circumstances ofthis case, that the addition ofthis word had no effect. The State also argues that the "charged crime was clearly designated as 

### the completed offense of'Promoting Prostitution inthe Second Degree.'"41 And it points outthat the charging document does not reference RCW 9A.28.020—the 

### statute for criminal attempt.42 But "[m]erely citing to the proper statute and naming the offense is insufficientto charge a crime unless the name ofthe offense apprises the 

### defendant of all ofthe essential elements ofthe crime."43 And more importantly, the State provides no authority that failing to cite to the criminal attempt statute
overcomes misadvising Jones ofthe essential elements and the failure to put forth with clarity the essential elements. 

### 40 Brief ofRespondent at 16-17 (citing State v. Rhode, 63 Wn. App. 630, 636, 821 P.2d 492 (1991), review denied. 118 Wn.2d 1022 (1992); State v. Borrero, 147 Wn.2d 353, 363, 58 P.3d 245 (2002)). 

### 41 Id, at 16. 42 id, 43 State v. Vanqerpen, 125 Wn.2d 782, 787, 888 P.2d 1177(1995).

11No. 70034-1-1/12 Finally, the State argues that Jones could have requested a bill of particulars and that his failure to do so means that he has waived any argument that the information is vague with regards to the term "advanced prostitution." But "Washington courts have repeatedly distinguished informations which are 

### constitutionally deficient and those which are merely vague."44 Because we conclude that this charging document is constitutionally deficient, we reject this argument. In sum, a plain reading ofthe charging document supports Jones's postverdict challenge to the amended information inthis case. The addition ofmere surplusage, alone, does not constitute the defect here. It is the significance of the word—attempt—thatfails to putforth with clarity every material element of the charge ofpromoting prostitution inthe second degree and does not properly inform Jones ofthe nature ofthe charge against him. The only remaining question is what remedy controls. 

### The proper remedy for a conviction based on a defective information is 

### dismissal without prejudice.45 We have not been presented with any argument thatthis remedy is inappropriate inthis case. Because we reverse on the basis ofthe deficient charging document, we need not address the remaining arguments that Johnson advances inthis appeal.

44 State v. Noltie, 116 Wn.2d 831, 843, 809 P.2d 190(1991). 45Vanqerpen, 125 Wn.2d at 792-93.

12No. 70034-1-1/13 We reverse and dismiss without prejudice. 

# &X\,JWE CONCUR: 

# ML

13