### FILED JANUARY 

### 19, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,


### v. GENE A. CAMARATA, Appellant. ) ) ) ) ) ) ) ) ) No. 32960-7-111

UNPUBLISHED OPINION

SIDDOWAY, 

### J.

- Byvirtue ofto-convict instructions proposedbythe State, the "law ofthe case" in prosecuting Gene Camarata for voter and candidate fraud required the State to prove beyond a reasonable doubt that Mr. Camarataprovided false information in Kittitas County, Washington. Yet a good deal ofthe State's own evidence suggestedthatMr. Camarata, who was homeless, transmittedthe information from outside Kittitas County, to either Thurston or Spokane counties, and thatthe information
was only relayedthereafterto Kittitas County. Because reasonablejurors could not conclude beyond a reasonable doubt from the evidence presented that Mr. Camarata provided false information in Kittitas County, his convictions are reversed and we remand with directions to dismiss the charges. FACTS AND PROCEDURAL BACKGROUND InApril and May 2012, Gene Camarata called the Kittitas County Auditor's office 30 to 50 times with questions about registering to vote so he couldrun for a political

# I

No. 32960-7-111 State v. Camarata
office. He generally spoke with Susan Higginbotham, the county's election supervisor, who had known Mr. Camarata for many years from his contacts with the office. He asked Ms. Higginbotham about school district and precinct committee officerpositions that might be up for election. Ms. Higginbotham told Mr. Camarata during the course oftheir conversations that he needed to reside in Kittitas County to run for office there, and he told her oftwo addresses in Ellensburg that he might use to run for office: 1001 East Eighth Avenue, unit 4, and Ellensburg Chevrolet, where he sometimes slept in a boat. Ms. Higginbotham knew the Eighth Avenue address to be for an apartment complex where Mr. Camarata
once lived butthat no longer existed at that location. On at least one occasion during their conversations in the spring of2012 she asked Mr. Camarata ifhe was even in Ellensburg, but he would not reveal his whereabouts to her. On May 17, 2012, Mr. Camarata registered to vote online, using the Washington Secretary ofState's MyVote website. He then called Ms. Higginbotham to see ifhis registration had gone through. She searchedthe voter database and saw that it had. She also sawthat the online voterregistration form Mr. Camarata submitted electronically that day listed his residential address as "1001 E. 8th Ave., (#4) ELLENSBURG WA 98926," and his mailing address as "General Delivery Ellensburg WA 98926." Ex. 2-A. Mr. Camarata had signedthe voter oath by using a signature that the MyVote website imports from a voterregistrant's driver's license. 2No. 32960-7-111 State v. Camarata
Ms. Higginbotham later checked the Washington Election Information website and determined Mr. Camaratahad filed a declaration ofcandidacy for precinct committee officer for the county's 22nd precinct as a Democrat on May 18, 2012. The declaration ofcandidacy imported "1001 E. 8th Ave., (#4)" from his online voter registration form as his residential address. Ex. 3-B. The county prosecutor notified the Kittitas County Sheriffs Office ofpossible election fraud by Mr. Camarata in June 2012, and a detective, Darren Higashiyama, was assigned to investigate. He spoke with Mr. Camarata at that time, who told the detective he had been living in buses in Yakima. Yakima is in Yakima County, not Kittitas County. As part ofhis investigation, the detective attempted to send Mr. Camarata letters to the general delivery, Ellensburg mailing address he had provided and to "1001 E. 8th Ave. #4." Both were returned by the Ellensburg post office. In October 2012, Mr. Camarata sent Detective Higashiyama two letters that bore a return address of"General Delivery, Ellensburg," but that were postmarked from Portland, Oregon. In May 2013, the State ofWashington charged Mr. Camarata with one count of violation ofthe voter registration law contrary to RCW 29A.84.130(1), and one count of providing false information on a declaration ofcandidacy in violation ofRCW 29A.84.3l l(l). Both are class C felonies. The case proceeded to ajurytrial.

3No. 32960-7-III State v. Camarata
Attrial, the State called both the Kittitas County auditor and an information specialist from the Secretary ofState's Office in Olympia to testify about the MyVote website operated by the secretary ofstate. The State's evidence established that the secretary ofstate's office maintains two databases supporting the conduct ofelections: a voter registration database and a Washington election information database. Online voter registration is available to anyone who is eligible to vote in Washington and who has a driver's license or identification card (ID) issued by the Washington Department of Licensing. The prosecutorhad the election information specialist demonstrate online voter registration to thejury. The information specialist explained that after confirming citizenship status and age on the MyVote website, a voter registrant is required to enter a residential address so the voter can be tied to the properprecinct. He testified that a homeless registrant can enter a nontraditional address in the residential address field, describing as best they can where they reside, even (by way ofexample) under a bridge. The online registration form allows an individual to put down a separate mailing address in the event they do not receive mail at their residence or preferto receive their mail somewhere else. The election information specialist testified that once all ofthe required information has been entered by a voter registrant using the MyVote website, a review page appears, enabling the registrant to edit any errors. The bottom ofthe form contains 4No. 32960-7-III State v. Camarata

an oath that states "I declare that the facts on this voter registration form are true. . . . I will have lived at this address in Washington for at least thirty days immediately before the next election at which I vote." Ex. 1-B. The MyVote website imports a voter registrant's Washington driver's license or ID card signature to the online voter registration form. In orderto complete the online registration process, the registrant must affirmatively check boxes attesting to the voter's oath, and authorizing importation ofthe voter's signature. According to the Kittitas County auditor, once the registration is completed, the information is "forwarded" by the secretary ofstate to the county auditor's office and voter database, "notif{ying]" the county ofthe new voter information. Report ofProceedings (RP) (Nov. 24, 2014) at 51-52. The prosecutor also had the election information specialist describe for thejury how a candidate can complete an online declaration ofcandidacy with the Secretary of State's Office. The candidate provides name and date ofbirth information, which then imports the registrant's residential address from the voter's online voter registration form. The website.will then show certain elective offices based on the candidate's residence address, or the candidate can look at all county elective offices. The candidate selects the office for which he or she wants to declare candidacy, and enters his orher name as it will appear on the ballot. Before an individual can submit the declaration, the candidate must declare that the information is true and "that I am a registered voter residing at the residential address and precinct listed above." Ex. 1-C. 5No. 32960-7-111 State v. Camarata
The State presented evidence that Mr. Camarata had lived at 1001 EastEighth Avenue, unit 4, in Ellensburg from at least 2001 to 2008, and hadearlierprovided that address in registering to vote. Itpresented evidence that in 2008, Kittitas County acquired the property at 1001 East Eighth Avenue, which it used for police and fire department training exercises. During a fire department training exercise in December 2008, the apartment building at 1001 East Eighth Avenue was burnedto the ground. The jury was presentedwith evidence that by the May 2012 time frame ofMr. Camarata's online voterregistration, 1001 EastEighthAvenue was an unpaved vacant lot, sometimes used for overflow and recreational vehicle (RV) parking by the Kittitas County fairgrounds. Detective Higashiyama testified that by 2012, Mr. Camaratawas itinerant and had
no permanent address. During the detective's testimony, he identified and the court admitted a photograph ofa driver's license issued to Mr. Camarata in December 2010 that included the address ofthe Red Apple Motel in Yakima as Mr. Camarata's residence. Detective Higashiyama testified he had known Mr. Camaratato be found in motels in Pasco and a mission in Multnomah County, Oregon, and had personally metMr. Camarata at motels in Yakima and Pasco. The court's to-convictjury instructions for the voterregistration and candidate fraud crimes both indicated (consistent with thejury instructions proposed by the State) that in order to convict Mr. Camarata, the State mustprove beyond a reasonable doubt 6No. 32960-7-III State v. Camarata
that Mr. Camaratahad provided false information "in Kittitas County, Washington." Clerk's Papers (CP) at 62, 64. Specifically,jury instruction 6 stated in relevantpart, To convict the defendant ofthe crime ofViolation ofVoter Registration Law, the State ofWashington must have proved beyond a reasonable doubt that: (1) On or about May 17, 2012, in Kittitas County, Washington, the defendant knowingly provided false information on an application for voter registration. CP at 62 (emphasis added). Jury instruction 8 stated in relevant part, To convict the defendant ofthe crime ofProviding False Information on Declaration ofCandidacy, the State ofWashington must have proved beyond a reasonable doubt that: (1) On or about May 18, 2012, in Kittitas County, Washington, the defendant knowingly provided false information on his declaration ofcandidacy. CP at 64 (emphasis added). The State did not offer evidence as to where Mr. Camarata was when he used the online voter registration or declaration ofcandidacy systems. Detective Higashiyama admitted when cross-examined that he was unable to determine what Internet Protocol (IP) address was used to submit Mr. Camarata's online voter registration form and declaration ofcandidacy. The State's evidence had established that the secretary ofstate's voter and candidate databases are physically located on the servers ofthe digital archives in Cheney, which is in Spokane County. Like the county auditor, who testified that voter information is "forwarded" to the county from the secretary ofstate's system, the election

7No. 32960-7-III State v. Camarata
information specialist described the secretary ofstate's My Vote website system as "sending" voterregistration information to counties, to be imported into their systems; elsewhere, he described the county's information as "com[ing] down" from the secretary ofstate's system. RP (Nov. 24, 2014) at 52, 167, 169-70. Atthe close ofthe State's case, Mr. Camarata's lawyer moved for a directed verdict onthe basis that the State had not met its burden ofproof, specifically including its failure to prove that Mr. Camarataprovided the false information in Kittitas County. The motion was denied. During deliberations, thejury sent the following written inquiry to the trial court: Please give some clarification on [jury instruction 6.] (1) Did Gene need to be in Kittitas? Or, (2) was the crime in Kittitas County[?] (Physically) CP at 82. The trial courtresponded: "Please refer to, and follow, the instructions you
were provided." Id. Thejury found Mr. Camarata guilty as charged. He unsuccessfully moved for a judgment notwithstanding the verdict on the renewed ground that the State failed to prove beyond a reasonable doubt that the false information had been provided in Kittitas County. The trial court reasoned that Mr. Camaratawaived any improper venue and that there was sufficient evidence to prove by a preponderance ofthe evidence, which the court deemed to be the proper standard ofproof, that he was physically in Kittitas County when he registered online. 

### It imposed three months' confinement for Mr. Camarata, but
8No. 32960-7-111 State v. Camarata granted credit for time served which resulted in Mr. Camarata's immediate release. Mr. Camarata appeals. ANALYSIS Mr. Camarata makes five assignments oferror, but we find his challenge to the sufficiency ofthe evidence to establish that he provided false information in Kittitas County, Washington to be dispositive. 1 Venue is neither an element ofa crime nor a matter of jurisdiction, but is a constitutional right guaranteed under the Washington Constitution. 12 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE§ 1601, at 348 (3d ed. 2004). As relevant, article 1, section 22 ofthe Washington Constitution provides: In criminal prosecutions the accused shall have the right
...to have a speedypublic trial by an impartialjury ofthe county in whichthe offense is chargedto have been committed. The constitutional right may be waived by failing to objectto improper venue. State v. Dent, 123 Wn.2d 467, 479-80, 869 P.2d 392 (1994). When venue is at issue, it need only

1Mr. Camarata's other assignments oferror are that (1) the evidence was insufficient to prove that he knowingly provided a false address on his voterregistration form and knowingly provided false information on his declaration ofcandidacy, (2) the prosecutor committed misconduct by misstating the law during closing arguments, (3) the trial court violated his public trial right by conductingperemptory challenges at sidebar, and (4) the trial court erred by excusing ajurorwho had previously been convicted ofa felony without inquiring into whetherthejuror's civil rights had been restored. 9No. 32960-7-111 State v. Camarata
be proved by a preponderance ofthe evidence. Id. at 480. Mr. Camarata's argument has never been that venue was improper. He has consistently argued, instead, that by unnecessarily including an allegation that his crimes
were committed in Kittitas County in the to-convict instructions, the State was required to prove that contention beyond a reasonable doubt. "[J]ury instructions not objected to become the law ofthe case." State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). Underthis doctrine, "the State assumes the burden ofproving otherwise unnecessary elements ofthe offense when such added elements are included without objection in the 'to convict' instruction." Id.; State v. Hobbs, 71 Wn. App. 419,423,859 P.2d 73 (1993) (the law ofthe case doctrine binds the State to prove additional elements included in acceptedjury instructions it proposed). I. Hickman remains controlling Washington law Following the original briefing ofthis matter and while our opinion was in process, Division One ofour court filed State v. Tyler, 195 Wn. App. 385, 396, 382 P.3d 699 (2016), in which it held thatHickman is no longer good law following the United States Supreme Court's decision in Musacchio v. UnitedStates,_U.S._, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016). We invited supplemental briefing by the parties and respectfully disagree with Tyler. In Musacchio, the Supreme Court-focusing on sufficiency review as required by due process-heldthat a "reviewing court considers only the 'legal' question 'whether, 10No. 32960-7-111 State v. Camarata
after viewing the evidence in the light most favorable to the prosecution, any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt.'" 136 S. Ct. at 715 (quotingJackson v. Virginia, 443 U.S. 307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The Fifth Circuit Court ofAppeals had analyzed sufficiency review as involving
an additional gloss underthe federal law ofthe case doctrine when ajury instruction erroneously adds an element not required for the charge. In that event, the Fifth Circuit explained (subject to an exception not relevant here) "erroneously heightenedjury instructions generally become the binding 'law ofthe case' on appeal." Id. at 714 (citing UnitedStates v. Musacchio, 590 Fed. App'x. 359, 362 (5th Cir. 2014), aff'd,
_ U.S.

_, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016)). This was error, the Supreme Court held, because the federal law ofthe case doctrine "does not bear on how to assess a sufficiency challenge when ajury convicts a defendant after being instructed-without an objection by the Government-on all charged elements ofa crime plus an additional element." Id. at 716.The United States Supreme Court is the final word on federal common law, of course, but it was not speaking, nor could it, to the law ofthe case doctrine under Washington common law. In Washington, the law ofthe case doctrine does bear on how to assess a sufficiency challenge in such circumstances. We quote at length from

11

# I

,. No. 32960-7-III State v. Camarata Hickman, including its internal citations, to underscore how well settled Washington
common law is on this score: The law ofthe case is an established doctrine with roots reaching backto the earliest days ofstatehood. Under the doctrinejury instructions not objected to become the law ofthe case. Stat~ v. Hames, 74 Wn.2d 721, 725, 446 P.2d 344 (1968) ('"The foregoing instructions were not excepted to and therefore, became the law ofthe case."') (quoting State v. Leohner, 69 Wn.2d 131, 134, 417 P.2d 368 (1966)); State v. Salas, 127 Wn.2d 173, 182,897 P.2d 1246 (1995) ("[I]fno exception is taken tojury instructions, those instructions become the law ofthe case."). In criminal cases, the State assumes the burden ofproving otherwise unnecessary elements ofthe offense when such added elements are included without objection in the "to convict" instruction. State v. Lee, 128 Wn.2d 151,159,904 P.2d 1143 (1995) ("Added elements become the law ofthe case ... when they are included in instructions to thejury.") (citing State v. Hobbs, 71 Wn. App. 419,423, 859 P.2d 73 (1993); State v. Rivas, 49 Wn. App. 677, 683, 746 P.2d 312 (1987)). See also State v. Barringer, 32 Wn. App. 882, 887-88, 650 P.2d 1129 (1982) ("Although the charging statute ... did not require reference to [the added element], by including that reference in the information and in the instructions, it became the law ofthe case and the State had the burden ofproving it.") (citing State v. Worland, 20 Wn. App. 559, 565-66, 582 P.2d 539 (1978)), overruled inparton othergrounds by
. State v. Monson, 113 Wn.2d 833, 849-50, 784 P.2d 485 (1989). On appeal, a defendant may assign error to elements added under the law ofthe case doctrine. State v. Ng, 110 Wn.2d 32, 39, 750 P.2d 632 (1988) (because the State failed to object to thejury instructions they "are the law ofthe case and we will consider error predicated on them." (citations omitted)). Such assignment oferror may include a challenge to the sufficiency ofevidence ofthe added element. Barringer, 32 Wn. App. at 887-88; Schatz v. Heimbigner, 82 Wash. 589, 590, 144 P. 901 (1914) ("These alleged errors are not available to the appellants, because they are at cross purposes with the instructions ofthe court to which no error has been assigned. There is but one question open to them; that is, Is there sufficient evidence

### to sustain the verdict under the instructions ofthe court?"); Tonkovich v. Department of Labor &Indus., 31 Wn.2d 220, 225, 195 P.2d 638 (1948) ("It is the approved rule in this state that the parties are bound by the law laid down by the court in its instructions where, as here, 12

# I j 1 

# I 

# I I I I i 

## I 

# I 

# I i I 

# I I ! No. 32960-7-111 State v. Camarata
the charge is approved by counsel for each party, no objections or exceptions thereto having been made at any stage. In such case, the sufficiency ofthe evidence to sustain the verdict is to be determined by the application ofthe instructions
...."). 135 Wn.2d at 101-03 (alterations in original) (footnotes omitted). Washington's law ofthe case doctrine serves to avoid prejudice to the parties and
ensure that the appellate courts review a case under the same law considered by thejury. State v. Calvin, 176 Wn. App. 1, 22, 316 P.3d 496 (2013). The common vantage point is particularly important in a case like this, where the additional elementwas not the result ofa scrivener's error but was consciously believed by the State to be a required proof, and the defense made strategic trial decisions knowing that the State would undertake to prove it. See id. at 23 (discussing Hobbs, 71 Wn. App. 419). II. Sufficiency ofthe evidence Accordingly, "We review the sufficiency ofthe evidence in light ofthe instructions given." MiUies v. LandAmerica Transnation, 185 Wn.2d 302,313,372P.3d 111 (2016). "'The test for determining the sufficiency ofthe evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier offact could have found guilt beyond a reasonable doubt.'" State v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888 (2014) (quoting State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992)). A criminal defendant's claim ofinsufficient evidence admits the truth of
13No. 32960-7-111 State v. Camarata
the State's evidence and'"all inferences that reasonably can be drawn [from it]."' State
v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015) (alteration in original) (quoting Salinas, 119 Wn.2d at 201). In denying the motion forjudgment notwithstanding the verdict, the trial court applied a preponderance ofthe evidence standard. Finding some evidence that Mr. Camarata was in Kittitas County at the time he registered online (such as his use ofa "General Delivery, Ellensburg" address and his mention to Ms. Higginbotham that he had been sleeping in a boat at Ellensburg Chevrolet) the court concluded that reasonable jurors could have found that evidence, however limited, to be sufficient. Butthe court's application ofa preponderance standard was in error, because Mr. Camaratawas not challenging venue, he was holding the State to its burden ofproving all elements stated in the to-convict instructions. The applicable standard is proofbeyond a reasonable doubt. There was too much evidence that Mr. Camarata was often not in Kittitas County for a rationaljuryto find beyond a reasonable doubt that he was there on May 17 and 18, 2012. His most recent driver's license placed him in Yakima County. His June 2012 conversation with Detective Higashiyama placed him in Yakima County. His October 2012 conversation with the detective placed him in Portland, Oregon. The detective testified that he had known Mr. Camarata to sometimes live in Pasco (Franklin County), sometimes in Yakima County, and sometimes in Multnomah County, Oregon. The State focused most ofits trial energies on establishing that Mr. Camarata was not living on 14

# I I No. 32960-7-III State v. Camarata Eighth Avenue in Ellensburg in 2012. And Ms. Higginbotham testified that in her conversations with Mr. Camarata in the spring of2012, he refused to tell her where he was-circumstantial evidence that he was not in Kittitas County. Applying the proper standard ofproof, the evidence was insufficient to establish that Mr. Camarata was physically present in Kittitas County when he providedthe false information. While Mr. Camarata focuses solely on his physical location, the State argues that thejury could reasonably find that the information was received in Kittitas County. The act of"providing information" implicates two locations: the location ofthe person providing the information and the location ofthe person to whom it is provided. We need not decide whether this is the most reasonable reading ofthejury instructions, however, because it does not help the State. The evidence presented was that by using the website, Mr. Camaratawas providing information to the secretary ofstate, in either Thurston County or Spokane County, not Kittitas County. Even the prosecutor stated in closing argument: [I]fyou really want to get technical about it and think about it, it actually goes to the Secretary ofState website in Olympia in Thurston County and then ultimately is funneled here as we learned through the testimony here in Kittitas County. RP (Nov. 25 & 26, 2014) at 90. Finally, the dissent touches upon, and the concurrence examines, whether Mr. Camarata could "knowinglyprovide false information in Kittitas County, Washington" by conveying false electronic information to Spokane or Thurston
15

# I

No. 32960-7-111 State v. Camarata county that was then eitherretrieved by a Kittitas County user ortransmitted to a Kittitas Count user by a third party. Importantly, we need not approach this as a question of statutory construction to be applied in other cases. Theprosecutor now agrees that it was
a mistake to include location as an element ofthe election offenses. We never expect to
see this instructional issue again. We need only decide whether, in this case, the State's evidence was sufficient to prove that Mr. Camarataknowingly provided false information in Kittitas County on May 

### 17 and 

### 18, 2012. As the concurring opinion demonstrates, it is not clear even from the full transcribed trial record whether, when or how electronic information received by the Secretary ofState is affirmatively forwarded to counties, or ifthat information is simply accessible by county election personnel. Ifthe State's evidence fell short ofshowing when or howthat ordinarily occurs, then it necessarily fell short ofproving beyond a reasonable doubt thatMr. Camarata knew when and how it would occur whenhe completed his voter application and declaration ofcandidacy on the Secretary ofState's website. As Mr. Camaratapoints out, he "does not argue that the law or the Legislature requires the State to prove he was present in Kittitas County when he submittedhis applications
... [b]ut, the plain language ofthejury instructions requires [that] proof." Reply Br. at 5. The evidence is insufficient to prove that additional element ofthe "law



### 16

### No. 32960-7-111 State v. Camarata
ofthis case." We reverse the convictions and remand with directions to dismiss the charges. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 

### 2.06.040:

17

# I ' No. 32960-7-III FEARING, C.J. (concurring)-! concurin the conclusion ofthe astute lead author thatthe law ofthe case doctrine, as applied tojury instructions, remains the law in Washington State, at leastuntil the Washington Supreme Court overrules State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998). Therefore, the State needed to prove beyond a reasonable doubtthat Gene Camarata committedthe charged crimes in Kittitas County. I also concur inthe lead author's decisionto dismiss the charges against Gene Camarata. I pen a concurring opinionbecause I disagree with the reasoning employedby the lead author. The lead author concludes that insufficient evidence supports ajury determinationthat Gene Camarata committedthe crimes in Kittitas County. The lead author notes thatthe State presented no information as to where Camarata satwhen he completedthe electronic voterregistration and candidate application forms, Camarata sent the forms to Thurston or Spokane County, and any arrival ofCamarata's false information in Kittitas County was indirect. The dissenting author concludes that the Statepresented sufficient evidence to convict because Kittitas County received the false information. I am unable to agree with eitherthe lead author orthe dissenting author,

### No. 32960-7-111 State v. Camarata
because we lack legal guidelines to assist in determiningthe situs ofthe crimes of providing a false statementwhen registering to vote and when applying as a candidate for office. Neither author cites any authority, let alone Washington law, that demarcates the locus ofthe crimes. To answerthis question, I would needto review foreign law and,
eventhen, I might only be guessing as to the correct answerto the question. Myuncertainty as toresolving this appeal begs a critical question. IfI, as an appellatejudge, need to spend hours oflegal researchto ascertain the county ofthe crimes and still arrive at a debatable answer, how could ajuryoflaypeople decide whether Gene Camarata committedthe alleged offenses in Kittitas County? Along these lines, thejury instructions failed to intelligently notify thejurors as to how to decide whether Camarata committedthe crimes in Kittitas County. Thejurors were leftto guess and to constructthe law when resolving whetherto convict Camarata. Forthese reasons, I wouldresolve the appeal onthe groundthatthejuryinstructions were unduly vague. Gene Camarata did not objectto thejury instructions. Therefore, we cannot
reverse the case on unreliablejury instructions unless the instructions were unconstitutional and any error in instructing thejurywas manifest constitutional error. I considerthe opaque instructions to be an obvious constitutional mistake. Jury instruction 6 told the Camaratajury: "To convictthe defendant ofthe crime of[ v]iolation of[ v]oter [ r]egistration [l]aw, the State ofWashington must have proved beyond a reasonable doubt that[,]
... [o]n or aboutMay 17, 2012, in Kittitas County, Washington, the defendant knowinglyprovided false information on an application for 2

### No. 32960-7-III 

### State 

### v. Camarata

voterregistration." Clerk's Papers (CP) at 62 (emphasis added). Jury instruction 8 informedthejury: "To convictthe defendant ofthe crime ofProvidingFalse Information
on [a] Declaration ofCandidacy, the State ofWashington must have provedbeyond a reasonable doubt that[,]
... [o]n or about May 18, 2012, in Kittitas County, Washington, the defendantknowingly provided false information onhis declaration ofcandidacy." CP at 64 (emphasis added). Thejurors were given no standards orprinciples oflawto determine whetherthe crime was committed in Kittitas County. Gene Camarata likely sat outside Kittitas County when he completed and sentby e-mail the voterregistration and candidate registration forms to the Washington secretary ofstate's office in Thurston or Spokane County. Thejury, as the trier offact, could have discussed and resolved the location ofCamarata at the time he sent the applications to the secretary ofstate's website. Nevertheless, thejurywould thenneed to speculate as to whether one commits a crime in a named county when he pressed a computer's send button in another county to propel the information to a third county. The use ofthe Internet raises new questions as to the location or locations of crimes, particularly whenthe Internet, at the halfspeed oflight, spreads false information to the ends ofthe earth. Thejuryinstructions failed to notify thejury as to whether a crime ofproviding false information by the Internet occurs at the location ofthe dispatcher, the location ofa serverto which authorities download the information, the location ofwhere a viewer sees the false information, two ofthe three, or all three. The juryinstructions did not inform thejury as to whetherthe crimes charged could be 3I 

# i No. 32960-7-111 State v. Camarata
committed in more than one county orwhetherthejuryhadto isolate one county as the sole location ofthe crimes. The lead author emphasizes that Gene Camarata sent the false informationto a secretary ofstate server in Spokane County or Thurston County and the secretary of state's server is the official database ofvoterregistration. Nevertheless, this analysis fails to note that somehow officials in Kittitas County viewedthe false information. Also, Gene Camarataprobably expected the informationto be seen in Kittitas County. Still the juryneeded to speculate as to whether someone's anticipatedview ofthe information in Kittitas County constitutedthe crime ofknowingly providing false information in the county. Some testimony suggests that Kittitas County downloadedthe information on its
own database or stored the information on one ofits computers. Kittitas County Auditor Jerry Pettittestified that, once a person, who lives in Kittitas County, registers at the secretary ofstate's website, the secretary ofstate's database forwards the information to Kittitas County for its database. Pettit also testified thatthe secretary ofstate's computer system sends Kittitas County an electronic submission on the day that a Kittitas County voterregisters. Camarata's registration "moved forward" to the Kittitas County database. Deputy Auditor Susan Higginbotham statedthat exhibit 3Ais the online submittal of Gene Camarata for his voter registration that Kittitas County received through its election management system. These facts may suggestthat the crime was committed in Kittitas County, butthejurywas not informedwhether downloading the false information onto a 4

### No. 32960-7-III 

### State v. Camarata
computer located in Kittitas County supports a verdict thatthe crime was committed in Kittitas County. Othertestimony suggests that Kittitas County never downloaded any information onto a county computer. Susan Higginbothamtestified that, on May 17, 2012, she found that Camarataregisteredto vote at 1001 EastEighth, No. 4. She did not explicitly indicate how she "found"the information. Higginbotham testified that, before finding the information, she checkedwiththe voter registration database and withthe Washington elections information database. Thejurywas leftto guess whether Higginbotham referredto the secretary ofstate's voter registration database or a Kittitas County voterregistration database. In latertestimony, Susan Higginbotham declaredthat, after Gene Camarata called herto determine ifhis voterregistration had "gone through," she accessed and searched the secretary ofstate's database, notthe Kittitas County database, by using her credentials. Exhibit 2A, Gene Camarata's voterregistration application, and exhibit 2B, the result ofSusan Higginbotham's search for information about Camarata's voter registration, came from the State ofWashington database, not the Kittitas County database. RP 109. Exhibit 3B is a screen print ofGene Camarata's declaration ofcandidacy from the election information system for precinct committee officer ofprecinct 22 as a Democrat submitted on May 18, 2012. In testimony ofJerry Pettit and Nicholas Pharris, the


### 5

### No. 32960-7-III 

### State v. Camarata
election information system is a secretary ofstate's database. One may wonderwhy a screenshot ofa State database was needed ifKittitas County downloaded the information. Accordingto secretary ofstate employee Nicholas Pharris, county auditors and election staffmayuse an internetbased interface and sign into the secretary ofstate's voterregistration database andperform transactions there. Each county has an election management system which maintains its voterrecords and connects overthe web to the voterregistration database, which sends newregistrations andupdates to registrations. Nicholas Pharris also testified that exhibit 2A and 2B, information on Gene Camarata's voterregistration, was sentto the county for input into the county's voter registration system. Yet, he also stated that Kittitas County could "look" atthe information, as ifcounty officials are still accessing the secretary ofstate site. Nicholas Pharris identified exhibit 3, the exhibit concerning Gene Camarata's declaration ofcandidacy, as coming from the secretary ofstate's Washington election information database that stores information onjurisdictions and the offices and candidates who file for the offices. Pharris statedthatthe Kittitas County auditor "could view and look at" this information through use ofapassword. Report ofProceedings (RP) (Nov. 24, 2014) at 170. This testimony might suggestthat the declaration of candidacy was never downloaded onto a Kittitas County computer. Nevertheless, the jurywas given no guidelines as to whetherthe location ofany download couldbethe site ofthe crime.
6

### No. 32960-7-III 

### State v. Camarata
Nicholas Pharris testified that the voter registration database compiledby the secretary ofstate, by statute, is the official list ofvoters in Washington. Perhaps then the possible downloading ofany information in Kittitas County was ofno importance and could notjustify a finding that a crime was committed in Kittitas County. Butthejury
was never informed by the trial court as to what facts couldjustify a conclusionthatthe crime was committed in Kittitas County. Perhaps my questions aboutwhathappened during the handling ofGene Camarata'svoter and candidate applications foster nitpicky, unimportant distinctions. Butthejury did notknow what factors were important or unimportant in determining the site ofcrimes. Our dissentingjudgerelies on venue andjurisdiction cases to conclude that facts support a finding that Gene Camarata committed the crimes in Kittitas County. United States v. Angotti, 105 F.3d 539 (9th Cir. 1997) and State v. Woolverton, 284 Kan. 59, 159 P.3d 985 (2007). The dissenter, however, forwards no decisions in which the State neededto prove, as an element ofthe crime, the location ofthe crime. The venue cases aid to a limited extent because, to show venue andjurisdiction, the State must showthe situs, in part, ofthe crime. Nevertheless, the State must show venue orjurisdiction only by a preponderance ofthe evidence. Inthe State's case against Camarata, the State needed to show location ofthe crime in Kittitas County beyond a reasonable doubt. A Texas court, inSepulveda v. State, 729 S.W.2d 954 (Tex. App. 1987), concludedthatthe county in which a voter registration applicant delivers the application 

### 7

### No. 32960-7-III State v. Camarata
constitutes the propervenuetoprosecutethe crime. Nevertheless, Esther Sepulveda submitted a registration card for Bernabe Luna, who incidentally was dead, tothe Nueces County VoterRegistration Department. The reviewing court summarily rejected Sepulveda's argument thatNueces County was notpropervenue, since Sepulveda physicallypresentedthe registration cardto authorities inNueces County. So Sepulveda lacks relevance in additionto being a venue decision. Even assuming the Texas decision tobethe law in Washington concerningthe location ofthe crime, thejurywas never informed ofthe law. Even ifthejurors arrived atthe same factual conclusions, thejuryneeded to draw
a legal conclusion from those facts as to whether Gene Camarata committedthe crimes in Kittitas County. To convict Camarata, thejurynecessarily rendered the legal determinationthat the indirect sending offalse information through the Internet into a county orthe viewing offalse information on a computerin a county means the crime
was committed inthat county. Torenderthe guilty verdict, thejury essentiallybecame the determiner ofthe law. Judges, notjurors are to bethe arbiters ofthe law. Art. IV,§ 16, Washington Constitution. Thejurywas in fact confused as to whatrules to follow when determining the situs ofthe charged offenses. Thejurywrote tothe trial court: [P]lease give some clarification onRule Oury instruction] 6
... [(1)] [D]id Gene need to be in Kittitas; or, [(2)] was the crime in Kittitas County physically. RP (Nov. 26, 2014) at 197. Inresponse, thetrial court gave no assistance to thejury. 8

## f 

# I 

# I
'I 

# I I 

# I I 

# I 

# I

I 

### No. 32960-7-111 State v. Camarata Washingtonrequires that ajury instruction mustproperly informthejury ofthe applicable law. 

### Crossen v. Skagit County, 100 Wn.2d 355,360, 669 P.2d 1244 (1983). This principlepresupposes thatthejury canunderstand, through thejury instruction, the status ofthe law. At least one case mentions the need for some specificity in ajury instruction. 

### Gammon v. ClarkEquip. Co., 104 Wn.2d 613,617, 707 P.2d 685 (1985). Another case directs the courtto determine whethermore specific or clarifying instructions are necessary to guard against misleadingthejury. 

### Roberts v. Goerig, 68 Wn.2d442,455,413 P.2d 626 (1966). No Washington case, however, holds that ajury instruction lacked specificity, let alone was unconstitutionally vague. Thevoid for vagueness doctrine is typically applied tothe wording ofstatutes. Nevertheless, thejuryinstruction in this case effectively acted as a statute. The instruction becamethe law or statute ofthe case. Foreign decisions support a rule that ajury instruction may be unconstitutionally vague. In

### Jackson v. State, 648 So. 2d 85, 88 (Fla. 1994), the courtheldthatthe language of"cold, calculated andpremediated" in ajury instruction was unconstitutionallyvague. The court held, however, thatthe defendant had waived any errorby not objectingto the jury instruction attrial. In

### Sloan v. Delo, 54 F.3d 1371, 1378 (8th Cir. 1995), the court held ajury instruction using thephrase "depravity ofmind"tobe unconstitutionally vague. The court, however, ruledthe errorto be harmless. In

### Lara v. State, 699 So. 2d 616 (Fla. 1997), the court found ajury instructionto be unconstitutionally vague and harmful. Itvacated a death sentence. In

### Rogers v. McDaniel, 793 F.3d 1036 (9th Cir. 9

### No. 32960-7-III State v. Camarata 2015), ourhome federal circuit found ajury instruction in a criminal case unconstitutionally vague. All ofthe foreign cases involving a vaguejuryinstruction entail capital punishment offenses, and many relyprimarily on the EighthAmendment to the federal constitution. Nevertheless, none ofthe cases limitthe void for vagueness doctrine to a death sentence. Gene Camarata does not assign errorto the vagueness ofajuryinstruction. RAP 12.l(b) asks that we seek input from the parties on a question we raise on our ownbefore resolving the appeal on thatnew basis. I asked ourreviewingpanel thatwe send a letter to counsel and directthem to address whether thejuryinstructions were too vague for the juryto determine ifGene Camarata committedthe charged crimes in Kittitas County and to examine whether any vaguejuryinstructions constituted manifest constitutional error. Understandably, because othermembers ofthe panel decide the case on other grounds, my request was denied. Onthe one hand, ifa reviewing court finds insufficient evidence to convictthe appellant ofthe crimes charged, the appeals court dismisses the charges. 

### State v. Teal, 152 Wn.2d 333, 337-38, 96 P.3d 974 (2004). Onthe otherhand, an instructional error typically leads to a reversal and remand for a newtrial. 

### State v. Brown, 147 Wn.2d 330, 349, 58 P.3d 889 (2002); 

### State v. Cronin, 142 Wn.2d 568, 582, 14 P.3d 752 (2000). Although the error I identify canbe classified as an instructional error, I would dismiss the charges ratherthan remand for a newtrial. In any remand, the State should not be 

### 10

### No. 32960-7-III 

### State v. Camarata
free to omitthereference to Kittitas County inthejury instructions, because the State would essentially be amendingthe charges or alteringthe law ofthe case in a second trial. The State might clarify, inthejury instructions, what evidence orguidelines the jury shouldreviewwhen determining ifthe crimes occurred in Kittitas County. Nevertheless, Washington law is not developed sufficiently toprovide these guidelines. The instructional error cannotreadily be fixed. Therefore, dismissal remains the more aptremedy.



### 11No. 32960-7-III PENNELL, J. (dissenting)

- We are confronted with the question ofwhere information is located when it is provided electronically. Inthe present context, the verb "toprovide" is transitive. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1827 (1993). 

### It contemplates both a subject (the provider) and an object (the recipient). 

### Id. When it comes to electronic transmission, information can beprovided from one location and received in another. In such circumstances, it stands to reason that the offense of providing false information will often encompass more than one location. The State offered no information about Mr. Camarata's location at the time he submitted his false voterregistration and declaration ofcandidacy. As a result, the situs ofhis offense cannot be established by looking to where Mr. Camarata's false information was initiated. Butthis does not end the matter. Because the act ofproviding electronic information can extend to more than one location, this case instead turns on whether the State satisfied its self-imposed burden ofproving the information was received in Kittitas County. I believe it did. Technically, computer-generated information is received by a series oflocations, such as cell phone towers, routers, and servers. Testimony at trial suggested the data generated by Mr. Camarata's online voter registration and declaration ofcandidacy traveled over a series ofinternet connectors to a server in Cheney, Washington. Unless it
was downloaded onto a computerhard drive, Mr. Camarata's information was never physically located in either Olympia or Kittitas County. Technically speaking, 

### Mr.No. 32960-7-III State v. Camarata
Camarata's data was only physically provided to a data center in Cheney, which is located in Spokane County, Washington. Analyzing the location ofdigital information in technical terms can lead to surprising results, especially in the context ofincreasingly popular cloud computing and remote data storage. For example, had the Secretary ofState's Office contracted with a private cloud service provider with out-of-state servers, a technical approach to the location ofdigital information could lead to the curious result that the State of Washington might not have territorialjurisdiction over a fraudulent voter registration application. Fortunately, there is a simpler, nontechnical solution to this problem. In common parlance, people are considered the senders and recipients of information, not servers or routers. Mr. Camarata was the sender ofthe information at issue in this case, not his computer or cell phone. Likewise, the recipient was the person
or entity Mr. Camarata's information was intended to influence, not a server or web page manager. See UnitedStates v. Angotti, 105 F.3d 539,543 (9th Cir. 1997) ("the act of making a communication continues until the communication is received by the person or persons whom it is intended to affect or influence"); State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007) (act ofcommunicating a threat involves both speaking and perceiving,jurisdiction may be exercised over either component). Mr. Camarata undoubtedly intended his information to impact people in the Kittitas County Auditor's Office. Indeed, he called Kittitas County prior to sending the information and then 2No. 32960-7-III State v. Camarata immediately afterward in order to make sure it had gone through. He never called Cheney or Olympia. Mr. Camarata's information traveled to its intended target and impacted the individuals in the Kittitas County Auditor's Office who processedhis voter registration. This connection was sufficient to satisfy the court'sjury instructions. See State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998) (situs for false insurance claim
was in county where insurance company taking action located, not in county ofalleged theft). Because the evidence showed Mr. Camarataprovided a false voter registration and declaration ofcandidacy to individuals in the Kittitas County Auditor's Office, I would hold the State produced sufficient evidence to comport with thejury instructions. Furthermore, because the act ofproviding electronic information can extend to more than
one location, the prosecutor did not engage in misconduct by arguing the State need not prove Mr. Camarata's physical location in order to satisfy its burden ofproof. Mr. Camarata makes several additional claims oferror. None are sufficient to warrant reversal. Because Mr. Camarata listed a fictitious residential unit, 1001 E. 8th Ave. #4, on his voterregistration, the State presented sufficient evidence that Mr. Camarataknew his voterregistration oath was false. Mr. Camarata'spublic trial rights
were not violated when the court conductedperemptory challenges at sidebar. State v. Love, 183 Wn.2d 598, 605-07, 354 P.3d 841 (2015), cert. denied, 136 S. Ct. 1524 (2016). Finally, because Mr. Camarata's counsel acquiesced in the dismissal ofa prospective 3No. 32960-7-111 State v. Camarata jurorwith an apparent felony, he waived appellate review ofwhether the dismissal was proper. State v. Cleary, 166 Wn. App. 43, 49, 269 P.3d 367 (2012). Mr. Camarata utilized the secretary ofstate's voter registration website to provide
a false voter registration application to Kittitas County. His conviction should be affirmed. I respectfully dissent.
Pennell, J.

4