IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

KOLTEN ANDREW DEAN SMITH,

Appellant.

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No. 39307-1-III

Consolidated with

No. 39308-9-III

UNPUBLISHED OPINION

COONEY, J. — Kolten Smith was convicted of two counts of unlawful possession 

of a firearm in the second degree stemming from two different cases. The cases were 

consolidated for appeal. On appeal Mr. Smith argues that the informations were 

defective because they failed to allege that he “knowingly” possessed the firearms. We 

disagree and affirm. 

BACKGROUND

Mr. Smith was charged with, among other crimes, two counts of unlawful 

possession of a firearm in the second degree resulting from two separate events. The 

cases were consolidated for purposes of this appeal. Mr. Smith had previously been 

convicted of a “serious offense” in the State of Washington and was therefore prohibited 

from possessing firearms. 

FILED

MAY 16, 2024

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 39307-1-III; No. 39308-9-III

State v. Smith

2

UNLAWFUL POSSESSION OF THE .357 CALIBER REVOLVER 

(CASE NO. 21-1-00085-33)

On April 1, 2021, Sergeant Randall Russell and Deputy Ryan Taylor were 

dispatched to a burglary at a home located on Buck Creek Road in Stevens County, 

Washington. While processing the scene, Sergeant Russell and Deputy Taylor observed 

a burgundy Volvo drive by toward the closed end of the road. Sergeant Russell observed 

that the driver of the Volvo matched the description of the burglary suspect. The driver 

of the vehicle turned out to be Mr. Smith. Mr. Smith was detained and a search of his 

vehicle yielded a .357 caliber revolver. 

Mr. Smith was charged with attempted residential burglary, unlawful possession 

of a firearm in the second degree, possession of stolen property in the third degree, and 

driving while license suspended or revoked in the second degree. For the unlawful 

possession of a firearm charge, the information read:

COUNT 2

By way of this Information, the Prosecuting Attorney accuses you of 

the crime of Unlawful Possession of a Firearm in the Second Degree,

Count 2, which is a violation of RCW 9.41.040(2)(a)(i) and (b), the 

maximum penalty for which is 5 yrs. imprisonment and/or $10,000 fine, 

plus restitution, assessments and court costs, in that the said Kolten Andrew 

Dean Smith in the County of Stevens, State of Washington, on or about 

April 1, 2021, having previously been convicted or found not guilty by 

reason of insanity in this state or elsewhere of any felony not specifically 

listed as prohibiting firearm possession, or a domestic violence crime, or 

violation of the provisions of a protection order or no-contact order 

restraining or excluding him from a residence, did unlawfully own, have in 

his possession or control a firearm, to-wit: a .357 caliber revolver; 
No. 39307-1-III; No. 39308-9-III

State v. Smith

3

Contrary to RCW 9.41.040(2)(a)(i) and (b), and against the peace 

and dignity of the State of Washington.

Clerk’s Papers (CP) at 7. Before the trial court, Mr. Smith did not challenge the 

sufficiency of the information.

Following trial, a jury acquitted Mr. Smith of the charges of possessing stolen 

property and residential burglary but found him guilty of the lesser included offense of 

criminal trespass. The jury also found Mr. Smith guilty of unlawful possession of a 

firearm in the second degree. The charge of driving while license suspended was 

dismissed on the State’s motion. 

UNLAWFUL POSSESSION OF THE .45 CALIBER PISTOL 

(CASE NO. 21-1-00227-33)

On October 28, 2021, Deputy John Knight was dispatched to the Loon Lake Gas 

and Grocery to look for Mr. Smith, who had an outstanding warrant for his arrest. 

Deputy Knight identified Mr. Smith in the store and told him to stop. In response, Mr. 

Smith ran to the back exit of the store and Deputy Knight gave chase. Deputy Knight 

was eventually able to catch up with Mr. Smith and push him to the ground to effectuate 

an arrest. Once Deputy Knight gained control of Mr. Smith, he asked Mr. Smith if he 

had any weapons. Mr. Smith responded, “[Y]es, it’s under my jacket, that’s what I was 

trying to get to.” Rep. of Proc. (RP) at 788. Deputy Knight unzipped Mr. Smith’s jacket 

and discovered he was wearing a shoulder holster that contained a 1911 .45 caliber pistol. 
No. 39307-1-III; No. 39308-9-III

State v. Smith

4

Mr. Smith was charged with unlawful possession of a firearm in the second 

degree, obstructing a law enforcement officer, possession of a stolen motor vehicle, three 

counts of possessing stolen property in the second degree, and identity theft in the second 

degree. For the unlawful possession of a firearm charge, the information read: 

COUNT 1

By way of this Information, the Prosecuting Attorney accuses you of 

the crime of Unlawful Possession of a Firearm in the Second Degree, 

Count 1, the maximum penalty for which is 5 yrs. imprisonment and/or 

$10,000 fine, plus restitution, assessments and court costs, in that the said 

Kolten Andrew Dean Smith in the County of Stevens, State of Washington, 

on or about October 28, 2021, having previously been convicted or found 

not guilty by reason of insanity in this state or elsewhere of any felony not 

specifically listed as prohibiting firearm possession, or a domestic violence 

crime, or violation of the provisions of a protection order or no-contact 

order restraining or excluding him / her from a residence, did unlawfully 

own, have in her [sic] possession or control a firearm, to-wit: a .45 caliber 

pistol; 

Contrary to RCW 9.41.040(2)(a)(i) and (b), and against the peace 

and dignity of the State of Washington.

CP at 413. Before the trial court, Mr. Smith did not challenge the sufficiency of 

the information.

Following trial, a jury found Mr. Smith guilty of unlawful possession of a firearm 

in the second degree, obstructing a law enforcement officer, and three counts of 

possession of stolen property. The jury was unable to reach a unanimous verdict on the 

possession of a stolen vehicle charge and the identity theft charge. 

Mr. Smith appeals. 
No. 39307-1-III; No. 39308-9-III

State v. Smith

5

ANALYSIS

On appeal Mr. Smith argues that the informations were constitutionally defective 

because they failed to apprise him of the knowledge element of the crime of unlawful 

possession of a firearm in the second degree. We disagree. 

An information is constitutionally defective if it fails to list the essential elements 

of the crime. State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013). An essential 

element is one whose specification is necessary to establish the illegality of the behavior 

charged. Id. Requiring the State to list the essential elements in the information protects 

the defendant’s right to notice of the nature of the criminal accusation, guaranteed by the 

Sixth Amendment to the United States Constitution and article I, section 22 of the 

Washington Constitution. Id. We review the constitutional adequacy of a charging 

document de novo. State v. Goss, 186 Wn.2d 372, 375-76, 378 P.3d 154 (2016).

A defendant may raise an objection to the charging document at any time, but 

there is a presumption in favor of the validity of the charging documents when the 

challenge is made for the first time on appeal. State v. Canela, 199 Wn.2d 321, 328, 505 

P.3d 1166 (2022). When, as here, a charging document is challenged for the first time on 

appeal, we construe it liberally. State v. McCarty, 140 Wn.2d 420, 425, 998 P.2d 296 

(2000). Under the liberal standard, this court has “considerable leeway to imply the 
No. 39307-1-III; No. 39308-9-III

State v. Smith

6

necessary allegations from the language of the charging document.” State v. Kjorsvik,

117 Wn.2d 93, 104, 812 P.2d 86 (1991).

We use a two-pronged test to resolve challenges to the sufficiency of the charging 

document: “(1) do the necessary facts appear in any form, or by fair construction can they 

be found, in the charging document; and, if so, (2) can the defendant show that he or she 

was nonetheless actually prejudiced by the inartful language which caused a lack of 

notice?” Id. at 105-06. 

Under the first prong, we look solely to the face of the charging document. Id. at 

106. “Words in a charging document are read as a whole, construed according to 

common sense, and include facts which are necessarily implied.” Id. at 109. A charging 

document satisfies the first prong if it includes the essential elements of the offense even 

if it does not contain the exact statutory language. State v. Hopper, 118 Wn.2d 151, 156, 

822 P.2d 775 (1992). Further, missing elements may be implied if the language of the 

information supports such a result. Id. However, “[i]f the document cannot be construed 

to give notice of or to contain in some manner the essential elements of a crime, the most 

liberal reading cannot cure it.” State v. Campbell, 125 Wn.2d 797, 802, 888 P.2d 1185 

(1995).

If the necessary elements are not found or fairly implied in the information, 

prejudice is presumed and we reverse without reaching the second prong and the question 

of prejudice. Zillyette, 178 Wn.2d at 163; State v. Pry, 194 Wn.2d 745, 753, 452 P.3d 
No. 39307-1-III; No. 39308-9-III

State v. Smith

7

536 (2019). However, if the necessary elements appear in any form in the information, or 

by fair construction can be found in the information, then a defendant who can 

demonstrate actual prejudice is entitled to have their conviction reversed. Campbell, 125 

Wn.2d at 802.

NECESSARY ELEMENTS OF THE CRIME

RCW 9.41.040(2)(a) defines unlawful possession of a firearm in the second degree 

as: 

A person, whether an adult or juvenile, is guilty of the crime of 

unlawful possession of a firearm in the second degree, if the person does 

not qualify under subsection (1) of this section for the crime of unlawful 

possession of a firearm in the first degree and the person owns, accesses, 

has in the person’s custody, control, or possession, or receives any firearm:

(i) After having previously been convicted or found not guilty by 

reason of insanity in this state or elsewhere of [a]ny . . . felony not 

specifically listed as prohibiting firearm possession under subsection (1) of 

this section.

Additionally, our Supreme Court has held that knowledge is an essential element of 

unlawful possession of a firearm. State v. Anderson, 141 Wn.2d 357, 366-67, 5 P.3d 

1247 (2000). 

In State v. Krajeski we held that the phrase “‘unlawfully and feloniously’” 

adequately conveyed the “guilty knowledge” element of unlawful possession of a 

firearm. 104 Wn. App. 377, 386, 16 P.3d 69 (2001) (quoting State v. Nieblas-Duarte, 55 

Wn. App. 376, 378, 380-82, 777 P.2d 583 (1989)). In Krajeski, the information stated, in 

part, the defendant “did unlawfully and feloniously own, have in his possession, or under 
No. 39307-1-III; No. 39308-9-III

State v. Smith

8

his control a firearm.” Id. at 382 (emphasis added). The Krajeski court noted that, “It 

has long been the law in Washington that the phrase ‘unlawfully and willfully’ in an 

information sufficiently alleges criminal knowledge.” Id. at 386 n.3. In State v. Cuble

we came to the same conclusion. 109 Wn. App. 362, 367-68, 35 P.3d 404 (2001). 

Contrariwise, in State v. Marcum, the information accused Mr. Marcum of:

COUNT I: UNLAWFUL POSSESSION OF A FIREARM IN THE FIRST 

DEGREE, RCW 9.41.040(1)(a); . . . committed as follows, to-wit:

That [he] . . . did own or have in his/her possession or control a 

firearm, to-wit: [described] after having been convicted [of a serious 

offense]. . . . 

116 Wn. App. 526, 533, 66 P.3d 690 (2003) (alterations in original). In Marcum we held 

that the information was deficient because the knowledge element did not appear “in the 

body of the information.” Id. at 535. Instead, the description of the act allegedly 

constituting the crime stated Mr. Marcum, “‘in violation of RCW 9.41.040(1)(a), did own 

or have in his/her possession or control a firearm.’” Id. There, we reasoned that the 

State could not “rely on the statutory language for the information because the statute is 

silent on knowledge as an element.” Id. at 534-35. Marcum specifically distinguished 

the information at issue from those in Cuble and Krajeski where the knowledge element 

could be inferred by the phrase “‘unlawfully and feloniously.’” Id. (quoting Cuble, 109 

Wn. App. at 368).
No. 39307-1-III; No. 39308-9-III

State v. Smith

9

Here, the informations at issue are comparable to those in Krajeski and Cuble 

rather than the information in Marcum. Both informations stated, in relevant part: 

“Kolten Andrew Dean Smith . . . did unlawfully own, have in his possession or control a 

firearm.” CP at 7, 413 (emphasis added). The word “unlawfully” sufficiently alleged 

criminal knowledge. 

Mr. Smith points to State v. Level where we held that inclusion of the word 

“‘unlawfully’” in the information was not sufficient to allege “‘knowledge.’” 19 Wn.

App. 2d 56, 61-62, 493 P.3d 1230 (2021). However, Level is distinguishable from Cuble 

because it specifically dealt with the knowledge element of possession of stolen property, 

not unlawful possession of a firearm. Id. at 61. As the Level court recognized:

[T]he adverb ‘unlawfully’ can convey a mental state element . . . when 

permitted by common sense inferences. Thus, where the mental state 

required for an offense is straightforward or where the facts alleged in the 

charge would be hard to accomplish without the defendant holding the 

required mental state, the requisite mental state may be inferred under a 

liberal standard of review. 

Id. at 61-62. Thus, Level is unpersuasive. 

In presuming the validity of the informations and in construing them liberally due 

to the absence of an objection below, the informations were sufficient to give Mr. Smith 

notice of the nature of the criminal accusations. 
No. 39307-1-III; No. 39308-9-III

State v. Smith

10

PREJUDICE

Mr. Smith fails to address the issue of prejudice in his briefing. Even had we 

decided the first issue in his favor, we would be required to affirm his convictions due to 

his failure to show that the imprecise language in the informations prejudiced him.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

Cooney, J.

WE CONCUR:

Lawrence-Berrey, C.J.

Pennell, J.