2015 JUN 29 aHI0=3o

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

v. ALAN JOHN NORD,Appellant. No. 70904-6-1 DIVISION ONE

UNPUBLISHED FILED: June 29, 2015
Cox, J. —Alan Nord appeals his judgment and sentence for unlawful possession of a controlled substance and resisting arrest. He claims to have 

### been prejudiced by thejury's discovery of a cell phone in a backpackthat had been admitted into evidence. He also claims that the State committed pretrial 

### misconduct under CrR 8.3. Finally, he claims thatthe information fails to contain essential elements ofthe charge for resisting arrest. We assume, without deciding, that the cell phone thejury discovered 

### during itsdeliberations, whichwas in a backpackthatthe trial court properly admitted into evidence, is extrinsic evidence. Nevertheless, there is no 

### reasonable ground to believe that Nordwas prejudiced bythejury's discovery. Other evidence admitted at trial connected Nord to the backpack. Nord'sNo. 70904-6-1/2 

### misconductclaim is not persuasive. However, the information fails to allegeall the essential elements of the resisting arrest charge. We affirm Nord's conviction of unlawful possession of a controlled 

### substance and acceptthe State's proper concession thatthe information fails to state allthe essential elements ofresisting arrest. We remand for dismissal, without prejudice, ofthe resisting arrest charge. The State charged Nord with unlawful possession of a controlled substance and resisting arrest. At trial, a police officertestified that he saw Nord driving a carwith two passengers. He observed Nord exit the car and engage in what appeared to be
a drug transaction. The officer and his partnerthen approached Nord and asked for his identification. Nord told the officer that his identification was inside his backpack, inthe car he had been driving. While the officer wentto the car, Nord
ran away. Police did not apprehend him at that time. The officerwent to the car Nord had been driving and asked the two 

### passengers inthe carto pass himthe backpackthat Nord had mentioned. They did not. 

### A drug dog arrived on the scene and alerted to the possible presence of drugs in the car. The officer instructed the two passengers in the carto exit the vehicle and to take all oftheir property with them. They did so. Neithertook the 

### backpack, which remained inthe car afterthe police impounded the car. 

### After obtaining a search warrant, the officer who testified at trialsearched the car and the backpack. Inside the backpack, he found a small safe, whichNo. 70904-6-1/3 

### contained methamphetamine and drug paraphernalia. The officeralso testified thatthe backpack contained a knife and a laptop. He further testified thatthe backpack might have contained other personal effects, but could not remember specifically what they were. 

### Police later located Nord. When they attempted to arrest him, he resisted. The resisting arrest charge arose from this incident. On June 17, 2013, the parties were scheduled to present pretrial motions and begin the trial. But after a CrR 3.5 hearing, the State decided to subpoena
an additional witness. The same public defender's office represented both Nord and this witness, creating a potential conflict of interest. The court granted a continuance based on this conflict. Nord did not object to the continuance. Before the continuance, Nord's CrR 3.3 speedy trial expiration date was on July 17.1 The parties resolved the potential conflict ofinterest by June 27. Nord
never moved to set his trial date before the CrR 3.3 speedy trial expiration. 

### Although Nord's trial did not begin untilAugust 5, this was due to additional good

cause continuances. 

### On August 5, Nord moved to dismiss the case, alleging thatthe State had 

### mismanaged the case by subpoenaing the additional witness. According to this motion, the State's actions forced Nord to give up his right to a speedy trial. The court denied the motion, and trial began that day.

1CrR 3.3(b)(5), (e)(3).No. 70904-6-1/4 During trial, the State introduced and the court admitted into evidence several exhibits. They included the backpackwhere the police discovered the methamphetamine on which the possession of a controlled substance charge
was based. When the State offered the backpack into evidence, Nord stated that he had no objection. The State also offered other items into evidence, including a knife and a safe that had been inside the backpack. From our review ofthe record, it appears that there likely were other items inthe backpack when the court admitted it into evidence. But it is unclearto us why neitherthe State nor Nord
was aware that the backpack also contained a cell phone when the court admitted the backpack. 

### Whilethejurydeliberated, itappears that itdiscovered a cell phone in the backpack. Thejury sentthe court a question. The question read, "When 

### reviewing items from backpack, there is a cell phone. Can we use as evidence? [sic]" The court asked both counsel for their views on how to answer the 

### question. The State urged the court to answer in the affirmative. Nord 

### disagreed, urging the court to answer in the negative. The courtagreed with the State and answered "yes" to thejury's question. 

### Shortlythereafter, the jury returned its verdict, convictingNord on both
counts.Nord appeals.No. 70904-6-1/5
EXTRINSIC EVIDENCE Nord argues thatthe cell phone was extrinsic evidence because itwas 

### unknown that itwas inside the backpackwhen the court admitted the backpack into evidence. Based on this assertion, he claims he was prejudiced bythejury's discovery ofthe cell phone during its deliberations. We hold that it is unnecessary to decide whetherthe cell phone was extrinsic evidence. Assuming, without deciding, that itwas, there is no reasonable ground to believe Nord was prejudiced by the discovery. "'[Ejxtrinsic evidence is defined as information that is outside all the 

### evidence admitted at trial.'"2 Such "'evidence is improper because it is not subjectto objection, cross-examination, explanation or rebuttal.'"3 Washington courts apply "'the long-standing rule'" that "'consideration of any material by a jury not properly admitted as evidence vitiates a verdictwhen there is a reasonable ground to believe that the defendant may have been 

### prejudiced.'"4 This is an objective inquiry.5 We consider "whetherthe extrinsic

2State v. Pete, 152 Wn.2d 546, 552, 98 P.3d 803 (2004) (emphasis 

### omitted) (internal quotation marks omitted) (quoting State v. Balisok, 123 Wn.2d 114, 118, 866P.2d631 (1994)). 3id. at 553 (internal quotation marks omitted) (quoting Balisok, 123 Wn.2d at 118). 4 In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 705, 286 P.3d 673 (2012) (quoting Pete, 152 Wn.2d at 555 n.4). 5State v. Boling, 131 Wn. App. 329, 332, 127 P.3d 740 (2006).No. 70904-6-1/6 

### evidence could have affected thejury's determinations," notthe "subjective thought process ofthejurors."6 Here, it is implicit in Nord's argumentthat the cell phone contained information that could have linked him to the backpackwhere police discovered the drugs. Also implicit inthis argument is that information on the cell phone was accessible to thejury when itdiscovered the cell phone during deliberations. Because no one made a record about either ofthese points when the issue
arose below, there is nothing in this record to substantiate either point. We note that it is unclear to us whether the cell phone qualifies as extrinsic evidence. That is because this case differs from the extrinsic evidence cases that we have considered. Those cases typically involve either accidentally 

### givingthejuryexhibits thatwere marked but not admitted,7 or misconduct bythe 

### jury.8 Here, incontrast, the cellphone remained in the backpack because neither party thoroughly examined itbefore the court properly admitted the backpack into evidence. But we need not decide whetherthe cell phone is extrinsic evidence. It is clearthatwhatthe cell phone inside the backpack may have contained was

6jU at 332-33. 7 See, e.g., Pete, 152 Wn.2d at 550-52; State v. Rinkes, 70 Wn.2d 854, 859-62, 425 P.2d 658 (1967). 8See, e.g., State v. Fry, 153 Wn. App. 235, 238-39, 220 P.3d 1245 

### (2009); State v. Johnson, 137 Wn. App. 862, 866, 155 P.3d 183 (2007).No. 70904-6-1/7


### never "subjectto objection, cross-examination, explanation or rebuttal."9 That is because neitherthe parties nor the court was aware of itwhen the court properly admitted the backpack. Thus, in an abundance of caution, we assume without deciding that the cell phone should be treated as extrinsic evidence. Accordingly, the question becomes whetherthere is a reasonable ground to believe that Nord was prejudiced by thejury's discovery ofthe cell phone. We conclude thatthere are no reasonable grounds to believe that Nord
was prejudiced by thejury's discovery. The State had a strong case against Nord. Before the stop, officers had
seen Nord engage in a "hand to hand" transaction typical ofdrug sale. Nord was also the one who first indicated to the officerquestioning him that his identification was in a backpack inthe car he had been driving. The only 

### backpack remaining inthe car afterthe otheroccupants left itcontained the 

### drugs serving as the basis forthe unlawfulpossession charge. This was sufficientto show that Nord eitherowned the backpack or had possession of it when driving the car. Other evidence corroborates Nord's tie to the backpack and the drugs 

### found init. When the passengers were told to take their belongings and leave the car, neithertook the backpack. 

### Andsignificantly, Nord fled the scene. When the officerwho approached Nord at the stop asked himabout identification, Nordstated that his identification
9Pete, 152 Wn.2d at 553 (internal quotation marks omitted) (quoting Balisok, 123 Wn.2d at 118).No. 70904-6-1/8 

### was in a backpack in the car. After pacing nervously outside the car, Nord fled while the officerwentto retrieve the backpack. Doing so underthese circumstances is evidence ofguilt.10 Thus, because the State presented strong evidence linking Nord to the backpack, there is no reasonable ground to believe that he was prejudiced bythe jury's discovery ofthe cell phone. Nevertheless, Nord argues that he was prejudiced by thejury's discovery ofthe cell phone inthe backpack during deliberations for several reasons. But his arguments are speculative and unpersuasive. First, Nord argues thatthejury could have found information on the cell phone that linked him to the backpack. But this record does not establish 

### whetherthejury actually found information on the cell phone that was prejudicial 

### to him during its deliberations. To the extentthat he concedes, for purposes of appeal only, thatthe cell phone was his, this is still insufficient to show prejudice inview ofthe other evidence to tie him to the backpackthatwe previously discussed. 

### Second, Nord argues thatthe evidence against himwas weak. He argues 

### that he was notthe registered owner ofthe carand thatthe backpack could have 

### belonged to one of the passengers. But the charge did not require establishing that he was the registered owner of the car. And the assertion thatthe backpack 

### belonged to one of the other passengers isunpersuasive since they were told to
10 See State v. McDaniel, 155 Wn. App. 829, 853-54, 230 P.3d 245 (2010).
8No. 70904-6-1/9 

### take their belongings when they were told they could go and none took the backpack. Third, Nord argues that the officer did notfind his identification inthe 

### backpack. Although this is true, itmisses the point. Nord identifiedthe backpack
as the place where his identification could be found, establishing his link to the backpack. That identification was not actually found is not dispositive. Fourth, he argues that his flight from the scene could have been for other
reasons. We agree. But that does not overcome the fact that thejury could also have found that his flight was evidence of guilt for the drug charge inthis case. Fifth, Nord argues that other items inside the backpack could have prejudiced him. Statements by the prosecutor and the officerwho searched the backpack indicate that itmay have contained a laptop computer. Butwhen 

### Nord's appellate counsel examined the backpack, it did not contain a laptop. Nord argues that ifthe laptop was inside the backpack, thejury may have been able to turn it on and find additional information connecting Nord to the backpack. 

### But this argument is whollyspeculative. Inorderto findprejudice, the courtwould have to assume thatthe laptop was inthe backpack, thejury found the laptop, thejurywas able to turn on the laptop and obtain access to information itcontained, and information on the laptop linked Nord to the 

### backpack. The record fails to establish any of this. 

### Finally, Nordargues that the prosecutorcommitted misconduct by intentionally submitting extrinsic evidence to the jury. He argues that this courtNo. 70904-6-1/10 

### should not allow "parties to effectively sneak in 'evidence' through [containers.]" This is not a fair reading of this record, and we rejectthe argument. There simply is no evidence that the prosecutortried to "sneak in" evidence to thejury. Rather, itappears from a fair reading ofthe record that the prosecutor did notthoroughly examine the backpack before offering it into evidence. The prosecutor stated, and we have no reason to doubt, that "I haven't examined the contents [ofthe backpack], but itwas obvious that itwas 

### not empty."11 We need not address whether "itwas obvious that [the backpack] was not empty" when offered into evidence. The record is clearthat neither counsel thoroughly examined the backpack before the court admitted it. 

### Insum, thejury's discovery ofthe cell phone inthe backpack during deliberations did not prejudice Nord. CrR 8.3 

### Nord argues thatthe State committed misconduct under CrR 8.3 by 

### waiting until the day of trialbefore subpoenaing a witness, "forcpng] Nord to choose between conflict free counsel and his [CrR 3.3] right to a speedy trial." We disagree. 

### Under CrR 8.3(b), "The court, in the furtherance of justice, after notice and hearing, may dismiss any criminalprosecution due to arbitrary action or

11 Report ofProceedings (August 7, 2013) at 325.
10No. 70904-6-1/11 governmental misconductwhen there has been prejudice to the rights ofthe accused which materially affectthe accused's right to a fair trial." There are two requirements for a dismissal underthis rule. First, the 

### "defendant must show arbitrary action or governmental misconduct."12 Second, the defendant must show "prejudice affecting the defendant's right to a fair trial."13Underthis analysis, forcing the defendant to waive CrR 3.3 speedy trial 

### rights is prejudice.14 InState v. Michielli, the State initially charged the defendant 

### with a single count of theft, with a potential sentencing range from 0 to 60 days.15 Three business days before trial, the prosecutor amended the information to add 

### four new charges, with a potentialsentencing range from 15 to 20 months.16 The additional charges were not based on new information.17 The supreme court held thatthe "[defendantwas prejudiced inthat he was forced to waive his 

### speedy trial rightand ask for a continuance to prepareforthe surprise charges 

### brought three business days before the scheduled trial."18

12 State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997). 13 lU at 240. 14 l± at 244. 15 132 Wn.2d 229, 233, 937 P.2d 587 (1997). 16jd, 17 lU at 243. 18jd, at 244.
11No. 70904-6-1/12 This court reviews "[a] court's powerto dismiss charges" under CrR 8.3 for abuse ofdiscretion.19 Here, the court did not abuse its discretion by denying Nord's motion under CrR 8.3. The prosecutor's request for a continuance was not misconduct, and Nord did not suffer prejudice. When the prosecutor sought a continuance, he noted that he had been
unaware of some ofthe facts elicited atthe CrR 3.5 hearing. And in light ofthese facts, he decided to subpoena an additional witness. Nord now argues that the prosecutor should not have learned anything
new at the hearing, because only the State's witnesses testified. But Nord did not make this argument at the time. Additionally, Nord had initiallyagreed to 

### plead guilty in both this case and an unrelated case. But at the plea hearing on June 6, 2013, which was shortly before the scheduled trial, Nord changed his 

### mind and decided to go to trial. Both ofNord's cases were scheduled to go to trial within a week ofeach other. And the same prosecutorwas handling both


### cases. Thus, even ifthe prosecutorwas not as prepared for trial as normal, it 

### does not indicate that he mismanaged the case so severely that itconstituted misconduct. 

### Additionally, Nordcannot show prejudice. The conflictcreated by 

### subpoenaing the witness had been resolved byJune 27, 10days after the State moved for the continuance. Before the continuance, Nord's speedy trial 

### expiration date was on July 17. His trial did not begin before this date because

19 ]d, at 240. 12No. 70904-6-1/13 his othertrial was setfor July 8 and his counsel was unavailable on July 15. Although trial did not begin untilAugust 5, this was due to additional good cause continuances. Thus, the delay caused by the State's initial continuance was minimal, and Nord cannot show prejudice. Nord argues that this case resembles Michielli. But the present case is distinguishable. First, in Michielli, the prosecutorfiled four additional charges 

### without learning any new facts.20 In the presentcase, the prosecutorsought a short continuance afterdiscovering additional facts. Additionally, the defendant in Michiellisuffered much greater prejudice—four new charges that increased his 

### potential sentencing range from 0 to 60 days to 15 to 20 months.21 Thus, Michielli is not analogous to Nord's case. 

### Nord also argues thatthe court abused its discretion by granting the State
a continuance on the day of trial. 

### But Nord failed to objectto the continuance. On appeal, he argues that the court abused its discretion "[bjecause the conflict was speculative and the 

### State inexcusably delayed in deciding" to subpoena the additional witness. But Nord did not make these arguments when the State soughtthe initial continuance. At trial, when the court asked Nord's attorney about the proposed 

### continuance, he replied only bystating that the conflict ofinterest put Nord in "a difficult position" and reiterating that Nord would prefer to have new counsel.

20 ]dL at 243. 21 Id. at 233.
13No. 70904-6-1/14 

### Accordingly, we conclude that Nord failed to preserve this issue for appeal, and

we do not address it further. SUFFICIENCY OF CHARGING DOCUMENT 

### Nord argues thatthe information for his charge ofresisting arrest is insufficient. We agree. Charging documents must include "allessential elements of a crime, 

### statutory and non-statutory."22 Essential elements are "'thosefacts that must be proved beyond a reasonable doubt to convict a defendant ofthe charged crime.'"23 When the defendant does not challenge the charging document until after 

### the verdict, courts "more liberally construe[] [the document] in favor ofvalidity."24 "Underthis rule of liberal construction, even ifthere is an apparently missing 

### element, itmay be able to be fairly implied from language withinthe charging document."25 Underthis rule, courts apply a two-prong test: "(1) do the necessary facts 

### appear inany form, or by fair construction can they be found, inthe charging

22 State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177(1995). 23 State v. Zillvette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal 

### quotation marks omitted) (quoting State v. Powell, 167 Wn.2d 672, 683, 223 P.3d 493 (2009)). 24 State v. Kiorsvik, 117Wn.2d93, 102, 812 P.2d 86 (1991). 25 Id. at 104.
14No. 70904-6-1/15 

### document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced bythe inartful language which caused a lack of notice?"26 Underthe first prong, the essential question is "whether allthe words used 

### would reasonably apprise an accused of the elements ofthe crime charged."27 The remedy for a conviction based on a defective information is dismissal 

### without prejudice.28 Here, the State properly concedes that the information did not appraise Nord of all ofthe essential elements of resisting arrest, even underthe postverdict standard of review. Under RCW 9A.76.040, "Aperson is guilty of resisting arrest ifhe or she intentionally prevents or attempts to prevent a peace officerfrom lawfully arresting him or her." Underthe plain text of RCW 9A.76.040, both intentional resistance and a lawful arrest are essential elements. Here, the information charging Nord alleged 

### that he "didprevent or attemptto prevent a police officer from arresting him." Thus, the information did not allege thatthe resistance was intentional orthatthe
arrest was lawful. This is fatal.

26 \± at 105-06. 

### 27 ]d at 109. 28Vangerpen, 125 Wn.2d at 792-93.
15No. 70904-6-1/16 Because the information does not reasonably appraise Nord of all essential elements ofresisting arrest, the proper remedy is to remand to the trial courtfor dismissal, without prejudice, ofthis charge. We affirm the conviction for possession of a controlled substance. We remand to the trial court for dismissal, without prejudice, ofthe resisting arrest charge. 

# CaxxX

WE CONCUR: 

# ~~*T7;c^tv) j-* y^y^e^CAy

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