FILED 

JANUARY 19, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division Ill 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

v. 

GENE A. CAMARATA, 

Appellant. 

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No. 32960-7-111 

UNPUBLISHED OPINION 

SIDDOWAY, J. - By virtue of to-convict instructions proposed by the State, the 

"law of the case" in prosecuting Gene Camarata for voter and candidate fraud required 

the State to prove beyond a reasonable doubt that Mr. Camarata provided false 

information in Kittitas County, Washington. Yet a good deal of the State's own evidence 

suggested that Mr. Camarata, who was homeless, transmitted the information from 

outside Kittitas County, to either Thurston or Spokane counties, and that the information 

was only relayed thereafter to Kittitas County. Because reasonable jurors 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 

In April and May 2012, Gene Camarata called the Kittitas County Auditor's office 

30 to 50 times with questions about registering to vote so he could run for a political 
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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 officer positions 

that might be up for election. 

Ms. Higginbotham told Mr. Camarata during the course of their conversations that 

he needed to reside in Kittitas County to run for office there, and he told her of two 

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 but that no longer existed at that location. On at least one occasion during 

their conversations in the spring of 2012 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 of State's MyVote website. He then called Ms. Higginbotham to see if his 

registration had gone through. She searched the voter database and saw that it had. She 

also saw that the online voter registration 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 signed the voter oath by using a signature that the MyVote website 

imports from a voter registrant's driver's license. 

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Ms. Higginbotham later checked the Washington Election Information website 

and determined Mr. Camarata had filed a declaration of candidacy for precinct committee 

officer for the county's 22nd precinct as a Democrat on May 18, 2012. The declaration 

of candidacy 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 of possible 

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 of his 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 of Washington charged Mr. Camarata with one count of 

violation of the voter registration law contrary to RCW 29A.84.130(1), and one count of 

providing false information on a declaration of candidacy in violation ofRCW 

29A.84.3 l l(l). Both are class C felonies. The case proceeded to a jury trial. 

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At trial, the State called both the Kittitas County auditor and an information 

specialist from the Secretary of State's Office in Olympia to testify about the MyVote 

website operated by the secretary of state. The State's evidence established that the 

secretary of state's office maintains two databases supporting the conduct of elections: 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 prosecutor had the election information specialist demonstrate online voter 

registration to the jury. 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 proper precinct. 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 of example) 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 prefer to receive their mail 

somewhere else. 

The election information specialist testified that once all of the 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 of the form contains 

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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 order to complete the online registration process, the registrant must 

affirmatively check boxes attesting to the voter's oath, and authorizing importation of the 

voter's signature. According to the Kittitas County auditor, once the registration is 

completed, the information is "forwarded" by the secretary of state to the county 

auditor's office and voter database, "notif{ying]" the county of the new voter information. 

Report of Proceedings (RP) (Nov. 24, 2014) at 51-52. 

The prosecutor also had the election information specialist describe for the jury 

how a candidate can complete an online declaration of candidacy with the Secretary of 

State's Office. The candidate provides name and date of birth 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 or her 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. 

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The State presented evidence that Mr. Camarata had lived at 1001 East Eighth 

Avenue, unit 4, in Ellensburg from at least 2001 to 2008, and had earlier provided that 

address in registering to vote. It presented 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 A venue was burned to the ground. The 

jury was presented with evidence that by the May 2012 time frame of Mr. Camarata's 

online voter registration, 1001 East Eighth A venue 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. Camarata was itinerant and had 

no permanent address. During the detective's testimony, he identified and the court 

admitted a photograph of a driver's license issued to Mr. Camarata in December 2010 

that included the address of the Red Apple Motel in Yakima as Mr. Camarata's residence. 

Detective Higashiyama testified he had known Mr. Camarata to be found in motels in 

Pasco and a mission in Multnomah County, Oregon, and had personally met Mr. 

Camarata at motels in Yakima and Pasco. 

The court's to-convict jury instructions for the voter registration and candidate 

fraud crimes both indicated ( consistent with the jury instructions proposed by the State) 

that in order to convict Mr. Camarata, the State must prove beyond a reasonable doubt 

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that Mr. Camarata had provided false information "in Kittitas County, Washington." 

Clerk's Papers (CP) at 62, 64. Specifically, jury instruction 6 stated in relevant part, 

To convict the defendant of the crime of Violation of Voter Registration 

Law, the State of Washington 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 of the crime of Providing False Information on 

Declaration of Candidacy, the State of Washington 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 of candidacy. 

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 of candidacy 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 of candidacy. 

The State's evidence had established that the secretary of state's voter and 

candidate databases are physically located on the servers of the 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 of state's system, the election 

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information specialist described the secretary of state's My Vote website system as 

"sending" voter registration information to counties, to be imported into their systems; 

elsewhere, he described the county's information as "com[ing] down" from the secretary 

of state's system. RP (Nov. 24, 2014) at 52, 167, 169-70. 

At the close of the State's case, Mr. Camarata's lawyer moved for a directed 

verdict on the basis that the State had not met its burden of proof, specifically including 

its failure to prove that Mr. Camarata provided the false information in Kittitas County. 

The motion was denied. 

During deliberations, the jury 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 court responded: "Please refer to, and follow, the instructions you 

were provided." Id. 

The jury 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. Camarata waived any improper venue and that 

there was sufficient evidence to prove by a preponderance of the evidence, which the 

court deemed to be the proper standard of proof, that he was physically in Kittitas County 

when he registered online. It imposed three months' confinement for Mr. Camarata, but 

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granted credit for time served which resulted in Mr. Camarata's immediate release. Mr. 

Camarata appeals. 

ANALYSIS 

Mr. Camarata makes five assignments of error, but we find his challenge to the 

sufficiency of the evidence to establish that he provided false information in Kittitas 

County, Washington to be dispositive. 1 

Venue is neither an element of a 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 of the Washington Constitution 

provides: 

In criminal prosecutions the accused shall have the right ... to have a 

speedy public trial by an impartial jury of the county in which the offense is 

charged to have been committed. 

The constitutional right may be waived by failing to object to improper venue. State v. 

Dent, 123 Wn.2d 467, 479-80, 869 P.2d 392 (1994). When venue is at issue, it need only 

1 Mr. Camarata's other assignments of error are that (1) the evidence was 

insufficient to prove that he knowingly provided a false address on his voter registration 

form and knowingly provided false information on his declaration of candidacy, (2) the 

prosecutor committed misconduct by misstating the law during closing arguments, (3) the 

trial court violated his public trial right by conducting peremptory challenges at sidebar, 

and ( 4) the trial court erred by excusing a juror who had previously been convicted of a 

felony without inquiring into whether the juror's civil rights had been restored. 

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be proved by a preponderance of the 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 of the case." State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). 

Under this doctrine, "the State assumes the burden of proving otherwise unnecessary 

elements of the 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 of the case doctrine binds the State to prove additional elements included in 

accepted jury instructions it proposed). 

I. Hickman remains controlling Washington law 

Following the original briefing of this matter and while our opinion was in 

process, Division One of our court filed State v. Tyler, 195 Wn. App. 385, 396, 382 P.3d 

699 (2016), in which it held that Hickman is no longer good law following the United 

States Supreme Court's decision in Musacchio v. United States,_ 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-held that a "reviewing court considers only the 'legal' question 'whether, 

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

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

136 S. Ct. at 715 (quoting Jackson v. Virginia, 443 U.S. 307,319, 99 S. Ct. 2781, 61 L. 

Ed. 2d 560 (1979)). 

The Fifth Circuit Court of Appeals had analyzed sufficiency review as involving 

an additional gloss under the federal law of the case doctrine when a jury 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 heightened jury 

instructions generally become the binding 'law of the case' on appeal." Id. at 714 (citing 

United States 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 of the case doctrine "does not bear on how to assess a sufficiency 

challenge when a jury convicts a defendant after being instructed-without an objection 

by the Government-on all charged elements of a 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 of the case doctrine under 

Washington common law. In Washington, the law of the case doctrine does bear on how 

to assess a sufficiency challenge in such circumstances. We quote at length from 

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Hickman, including its internal citations, to underscore how well settled Washington 

common law is on this score: 

The law of the case is an established doctrine with roots reaching back to 

the earliest days of statehood. Under the doctrine jury instructions not 

objected to become the law of the 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 of the 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 to jury instructions, 

those instructions become the law of the case."). In criminal cases, the 

State assumes the burden of proving otherwise unnecessary elements of the 

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 of the case ... when they are 

included in instructions to the jury.") (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 of the case and the 

State had the burden of proving it.") (citing State v. Worland, 20 Wn. App. 

559, 565-66, 582 P.2d 539 (1978)), overruled in part on other grounds 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 of the case doctrine. State v. Ng, 110 Wn.2d 32, 39, 750 P.2d 632 

( 1988) (because the State failed to object to the jury instructions they "are 

the law of the case and we will consider error predicated on them." 

( citations omitted)). Such assignment of error may include a challenge to 

the sufficiency of evidence of the 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 of the 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 of the 

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, 

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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 of the evidence to sustain the verdict is to be determined by the 

application of the instructions .... "). 

135 Wn.2d at 101-03 (alterations in original) (footnotes omitted). 

Washington's law of the case doctrine serves to avoid prejudice to the parties and 

ensure that the appellate courts review a case under the same law considered by the jury. 

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 element was not the result 

of a 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 of the evidence 

Accordingly, "We review the sufficiency of the evidence in light of the 

instructions given." MiUies v. LandAmerica Transnation, 185 Wn.2d 302,313,372 P.3d 

111 (2016). 

"' The test for determining the sufficiency of the evidence is whether, after 

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

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 of insufficient evidence admits the truth of 

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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 for judgment notwithstanding the verdict, the trial court 

applied a preponderance of the evidence standard. Finding some evidence that Mr. 

Camarata was in Kittitas County at the time he registered online (such as his use of a 

"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. But the court's 

application of a preponderance standard was in error, because Mr. Camarata was not 

challenging venue, he was holding the State to its burden of proving all elements stated in 

the to-convict instructions. The applicable standard is proof beyond a reasonable doubt. 

There was too much evidence that Mr. Camarata was often not in Kittitas County 

for a rational jury to 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 of its trial energies on establishing that Mr. Camarata was not living on 

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Eighth Avenue in Ellensburg in 2012. And Ms. Higginbotham testified that in her 

conversations with Mr. Camarata in the spring of 2012, he refused to tell her where he 

was-circumstantial evidence that he was not in Kittitas County. Applying the proper 

standard of proof, the evidence was insufficient to establish that Mr. Camarata was 

physically present in Kittitas County when he provided the false information. 

While Mr. Camarata focuses solely on his physical location, the State argues that 

the jury could reasonably find that the information was received in Kittitas County. The 

act of "providing information" implicates two locations: the location of the person 

providing the information and the location of the person to whom it is provided. We 

need not decide whether this is the most reasonable reading of the jury instructions, 

however, because it does not help the State. The evidence presented was that by using 

the website, Mr. Camarata was providing information to the secretary of state, in either 

Thurston County or Spokane County, not Kittitas County. Even the prosecutor stated in 

closing argument: 

[I]f you really want to get technical about it and think about it, it actually 

goes to the Secretary of State 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 "knowingly provide false information in Kittitas 

County, Washington" by conveying false electronic information to Spokane or Thurston 

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county that was then either retrieved by a Kittitas County user or transmitted 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. The prosecutor now agrees that it was 

a mistake to include location as an element of the 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. Camarata knowingly 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 of State is affirmatively forwarded to counties, or if that information is simply 

accessible by county election personnel. If the State's evidence fell short of showing 

when or how that ordinarily occurs, then it necessarily fell short of proving beyond a 

reasonable doubt that Mr. Camarata knew when and how it would occur when he 

completed his voter application and declaration of candidacy on the Secretary of State's 

website. 

As Mr. Camarata points out, he "does not argue that the law or the Legislature 

requires the State to prove he was present in Kittitas County when he submitted his 

applications ... [b ]ut, the plain language of the jury instructions requires [that] proof." 

Reply Br. at 5. The evidence is insufficient to prove that additional element of the "law 

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of this case." We reverse the convictions and remand with directions to dismiss the 

charges. 

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: 

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No. 32960-7-III 

FEARING, C.J. (concurring)-! concur in the conclusion of the astute lead author 

that the law of the case doctrine, as applied to jury instructions, remains the law in 

Washington State, at least until 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 doubt that Gene Camarata committed the charged crimes in Kittitas 

County. I also concur in the lead author's decision to dismiss the charges against Gene 

Camarata. 

I pen a concurring opinion because I disagree with the reasoning employed by the 

lead author. The lead author concludes that insufficient evidence supports a jury 

determination that Gene Camarata committed the crimes in Kittitas County. The lead 

author notes that the State presented no information as to where Camarata sat when he 

completed the electronic voter registration 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 

State presented sufficient evidence to convict because Kittitas County received the false 

information. I am unable to agree with either the lead author or the dissenting author, 
No. 32960-7-111 

State v. Camarata 

because we lack legal guidelines to assist in determining the situs of the crimes of 

providing a false statement when registering to vote and when applying as a candidate for 

office. Neither author cites any authority, let alone Washington law, that demarcates the 

locus of the crimes. To answer this question, I would need to review foreign law and, 

even then, I might only be guessing as to the correct answer to the question. 

My uncertainty as to resolving this appeal begs a critical question. If I, as an 

appellate judge, need to spend hours of legal research to ascertain the county of the 

crimes and still arrive at a debatable answer, how could a jury of laypeople decide 

whether Gene Camarata committed the alleged offenses in Kittitas County? Along these 

lines, the jury instructions failed to intelligently notify the jurors as to how to decide 

whether Camarata committed the crimes in Kittitas County. The jurors were left to guess 

and to construct the law when resolving whether to convict Camarata. For these reasons, 

I would resolve the appeal on the ground that the jury instructions were unduly vague. 

Gene Camarata did not object to the jury instructions. Therefore, we cannot 

reverse the case on unreliable jury instructions unless the instructions were 

unconstitutional and any error in instructing the jury was manifest constitutional error. I 

consider the opaque instructions to be an obvious constitutional mistake. 

Jury instruction 6 told the Camarata jury: "To convict the defendant of the crime 

of [ v ]iolation of [ v ]oter [ r ]egistration [l]aw, the State of Washington must have proved 

beyond a reasonable doubt that[,] ... [o]n or about May 17, 2012, in Kittitas County, 

Washington, the defendant knowingly provided false information on an application for 

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voter registration." Clerk's Papers (CP) at 62 (emphasis added). Jury instruction 8 

informed the jury: "To convict the defendant of the crime of Providing False Information 

on [a] Declaration of Candidacy, the State of Washington must have proved beyond a 

reasonable doubt that[,] ... [o]n or about May 18, 2012, in Kittitas County, Washington, 

the defendant knowingly provided false information on his declaration of candidacy." 

CP at 64 ( emphasis added). The jurors were given no standards or principles of law to 

determine whether the crime was committed in Kittitas County. 

Gene Camarata likely sat outside Kittitas County when he completed and sent by 

e-mail the voter registration and candidate registration forms to the Washington secretary 

of state's office in Thurston or Spokane County. The jury, as the trier of fact, could have 

discussed and resolved the location of Camarata at the time he sent the applications to the 

secretary of state's website. Nevertheless, the jury would then need 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 of the Internet raises new questions as to the location or locations of 

crimes, particularly when the Internet, at the half speed of light, spreads false information 

to the ends of the earth. The jury instructions failed to notify the jury as to whether a 

crime of providing false information by the Internet occurs at the location of the 

dispatcher, the location of a server to which authorities download the information, the 

location of where a viewer sees the false information, two of the three, or all three. The 

jury instructions did not inform the jury as to whether the crimes charged could be 

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State v. Camarata 

committed in more than one county or whether the jury had to isolate one county as the 

sole location of the crimes. 

The lead author emphasizes that Gene Camarata sent the false information to a 

secretary of state server in Spokane County or Thurston County and the secretary of 

state's server is the official database of voter registration. Nevertheless, this analysis fails 

to note that somehow officials in Kittitas County viewed the false information. Also, 

Gene Camarata probably expected the information to be seen in Kittitas County. Still the 

jury needed to speculate as to whether someone's anticipated view of the information in 

Kittitas County constituted the crime of knowingly providing false information in the 

county. 

Some testimony suggests that Kittitas County downloaded the information on its 

own database or stored the information on one of its computers. Kittitas County Auditor 

Jerry Pettit testified that, once a person, who lives in Kittitas County, registers at the 

secretary of state's website, the secretary of state's database forwards the information to 

Kittitas County for its database. Pettit also testified that the secretary of state's computer 

system sends Kittitas County an electronic submission on the day that a Kittitas County 

voter registers. Camarata' s registration "moved forward" to the Kittitas County database. 

Deputy Auditor Susan Higginbotham stated that exhibit 3A is the online submittal of 

Gene Camarata for his voter registration that Kittitas County received through its election 

management system. These facts may suggest that the crime was committed in Kittitas 

County, but the jury was not informed whether downloading the false information onto a 

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State v. Camarata 

computer located in Kittitas County supports a verdict that the crime was committed in 

Kittitas County. 

Other testimony suggests that Kittitas County never downloaded any information 

onto a county computer. Susan Higginbotham testified that, on May 17, 2012, she found 

that Camarata registered to vote at 1001 East Eighth, No. 4. She did not explicitly 

indicate how she "found" the information. Higginbotham testified that, before finding 

the information, she checked with the voter registration database and with the 

Washington elections information database. The jury was left to guess whether 

Higginbotham referred to the secretary of state's voter registration database or a Kittitas 

County voter registration database. 

In later testimony, Susan Higginbotham declared that, after Gene Camarata called 

her to determine if his voter registration had "gone through," she accessed and searched 

the secretary of state's database, not the Kittitas County database, by using her 

credentials. Exhibit 2A, Gene Camarata's voter registration application, and exhibit 2B, 

the result of Susan Higginbotham's search for information about Camarata's voter 

registration, came from the State of Washington database, not the Kittitas County 

database. RP 109. 

Exhibit 3B is a screen print of Gene Camarata's declaration of candidacy from the 

election information system for precinct committee officer of precinct 22 as a Democrat 

submitted on May 18, 2012. In testimony of Jerry Pettit and Nicholas Pharris, the 

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No. 32960-7-III 

State v. Camarata 

election information system is a secretary of state's database. One may wonder why a 

screenshot of a State database was needed if Kittitas County downloaded the information. 

According to secretary of state employee Nicholas Pharris, county auditors and 

election staff may use an internet based interface and sign into the secretary of state's 

voter registration database and perform transactions there. Each county has an election 

management system which maintains its voter records and connects over the web to the 

voter registration database, which sends new registrations and updates to registrations. 

Nicholas Pharris also testified that exhibit 2A and 2B, information on Gene 

Camarata's voter registration, was sent to the county for input into the county's voter 

registration system. Yet, he also stated that Kittitas County could "look" at the 

information, as if county officials are still accessing the secretary of state site. 

Nicholas Pharris identified exhibit 3, the exhibit concerning Gene Camarata's 

declaration of candidacy, as coming from the secretary of state's Washington election 

information database that stores information on jurisdictions and the offices and 

candidates who file for the offices. Pharris stated that the Kittitas County auditor "could 

view and look at" this information through use of a password. Report of Proceedings 

(RP) (Nov. 24, 2014) at 170. This testimony might suggest that the declaration of 

candidacy was never downloaded onto a Kittitas County computer. Nevertheless, the 

jury was given no guidelines as to whether the location of any download could be the site 

of the crime. 

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No. 32960-7-III 

State v. Camarata 

Nicholas Pharris testified that the voter registration database compiled by the 

secretary of state, by statute, is the official list of voters in Washington. Perhaps then the 

possible downloading of any information in Kittitas County was of no importance and 

could not justify a finding that a crime was committed in Kittitas County. But the jury 

was never informed by the trial court as to what facts could justify a conclusion that the 

crime was committed in Kittitas County. 

Perhaps my questions about what happened during the handling of Gene 

Camarata's voter and candidate applications foster nitpicky, unimportant distinctions. 

But the jury did not know what factors were important or unimportant in determining the 

site of crimes. 

Our dissenting judge relies on venue and jurisdiction 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 

needed to prove, as an element of the crime, the location of the crime. The venue cases 

aid to a limited extent because, to show venue and jurisdiction, the State must show the 

situs, in part, of the crime. Nevertheless, the State must show venue or jurisdiction only 

by a preponderance of the evidence. In the State's case against Camarata, the State 

needed to show location of the crime in Kittitas County beyond a reasonable doubt. 

A Texas court, in Sepulveda v. State, 729 S.W.2d 954 (Tex. App. 1987), 

concluded that the county in which a voter registration applicant delivers the application 

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No. 32960-7-III 

State v. Camarata 

constitutes the proper venue to prosecute the crime. Nevertheless, Esther Sepulveda 

submitted a registration card for Bernabe Luna, who incidentally was dead, to the Nueces 

County Voter Registration Department. The reviewing court summarily rejected 

Sepulveda's argument that Nueces County was not proper venue, since Sepulveda 

physically presented the registration card to authorities in Nueces County. So Sepulveda 

lacks relevance in addition to being a venue decision. Even assuming the Texas decision 

to be the law in Washington concerning the location of the crime, the jury was never 

informed of the law. 

Even if the jurors arrived at the same factual conclusions, the jury needed to draw 

a legal conclusion from those facts as to whether Gene Camarata committed the crimes in 

Kittitas County. To convict Camarata, the jury necessarily rendered the legal 

determination that the indirect sending of false information through the Internet into a 

county or the viewing of false information on a computer in a county means the crime 

was committed in that county. To render the guilty verdict, the jury essentially became 

the determiner of the law. Judges, not jurors are to be the arbiters of the law. Art. IV,§ 

16, Washington Constitution. 

The jury was in fact confused as to what rules to follow when determining the 

situs of the charged offenses. The jury wrote to the trial court: 

[P]lease give some clarification on Rule 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. In response, the trial court gave no assistance to the jury. 

8 
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No. 32960-7-111 

State v. Camarata 

Washington requires that a jury instruction must properly inform the jury of the 

applicable law. Crossen v. Skagit County, 100 Wn.2d 355,360, 669 P.2d 1244 (1983). 

This principle presupposes that the jury can understand, through the jury instruction, the 

status of the law. At least one case mentions the need for some specificity in a jury 

instruction. Gammon v. Clark Equip. Co., 104 Wn.2d 613,617, 707 P.2d 685 (1985). 

Another case directs the court to determine whether more specific or clarifying 

instructions are necessary to guard against misleading the jury. Roberts v. Goerig, 68 

Wn.2d 442,455,413 P.2d 626 (1966). No Washington case, however, holds that a jury 

instruction lacked specificity, let alone was unconstitutionally vague. 

The void for vagueness doctrine is typically applied to the wording of statutes. 

Nevertheless, the jury instruction in this case effectively acted as a statute. The 

instruction became the law or statute of the case. 

Foreign decisions support a rule that a jury instruction may be unconstitutionally 

vague. In Jackson v. State, 648 So. 2d 85, 88 (Fla. 1994), the court held that the language 

of "cold, calculated and premediated" in a jury instruction was unconstitutionally vague. 

The court held, however, that the defendant had waived any error by not objecting to the 

jury instruction at trial. In Sloan v. Delo, 54 F.3d 1371, 1378 (8th Cir. 1995), the court 

held a jury instruction using the phrase "depravity of mind" to be unconstitutionally 

vague. The court, however, ruled the error to be harmless. In Lara v. State, 699 So. 2d 

616 (Fla. 1997), the court found a jury instruction to be unconstitutionally vague and 

harmful. It vacated a death sentence. In Rogers v. McDaniel, 793 F .3d 1036 (9th Cir. 

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No. 32960-7-III 

State v. Camarata 

2015), our home federal circuit found a jury instruction in a criminal case 

unconstitutionally vague. 

All of the foreign cases involving a vague jury instruction entail capital 

punishment offenses, and many rely primarily on the Eighth Amendment to the federal 

constitution. Nevertheless, none of the cases limit the void for vagueness doctrine to a 

death sentence. 

Gene Camarata does not assign error to the vagueness of a jury instruction. RAP 

12.l(b) asks that we seek input from the parties on a question we raise on our own before 

resolving the appeal on that new basis. I asked our reviewing panel that we send a letter 

to counsel and direct them to address whether the jury instructions were too vague for the 

jury to determine if Gene Camarata committed the charged crimes in Kittitas County and 

to examine whether any vague jury instructions constituted manifest constitutional error. 

Understandably, because other members of the panel decide the case on other grounds, 

my request was denied. 

On the one hand, if a reviewing court finds insufficient evidence to convict the 

appellant of the crimes charged, the appeals court dismisses the charges. State v. Teal, 

152 Wn.2d 333, 337-38, 96 P.3d 974 (2004). On the other hand, an instructional error 

typically leads to a reversal and remand for a new trial. 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 can be classified as an instructional error, I would dismiss 

the charges rather than remand for a new trial. In any remand, the State should not be 

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No. 32960-7-III 

State v. Camarata 

free to omit the reference to Kittitas County in the jury instructions, because the State 

would essentially be amending the charges or altering the law of the case in a second 

trial. The State might clarify, in the jury instructions, what evidence or guidelines the 

jury should review when determining if the crimes occurred in Kittitas County. 

Nevertheless, Washington law is not developed sufficiently to provide these guidelines. 

The instructional error cannot readily be fixed. Therefore, dismissal remains the more 

apt remedy. 

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No. 32960-7-III 

PENNELL, J. ( dissenting) - We are confronted with the question of where 

information is located when it is provided electronically. In the present context, the verb 

"to provide" 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 be provided 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 voter registration and declaration of candidacy. As a result, the situs 

of his offense cannot be established by looking to where Mr. Camarata's false 

information was initiated. But this does not end the matter. Because the act of providing 

electronic information can extend to more than one location, this case instead turns on 

whether the State satisfied its self-imposed burden of proving 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 of candidacy 

traveled over a series of internet connectors to a server in Cheney, Washington. Unless it 

was downloaded onto a computer hard 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 of digital information in technical terms can lead to 

surprising results, especially in the context of increasingly popular cloud computing and 

remote data storage. For example, had the Secretary of State's Office contracted with a 

private cloud service provider with out-of-state servers, a technical approach to the 

location of digital information could lead to the curious result that the State of 

Washington might not have territorial jurisdiction 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 of the 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 United States 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 of communicating 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 

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No. 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 processed his voter 

registration. This connection was sufficient to satisfy the court's jury 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 of alleged 

theft). 

Because the evidence showed Mr. Camarata provided a false voter registration and 

declaration of candidacy to individuals in the Kittitas County Auditor's Office, I would 

hold the State produced sufficient evidence to comport with the jury instructions. 

Furthermore, because the act of providing 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 of proof. 

Mr. Camarata makes several additional claims of error. None are sufficient to 

warrant reversal. Because Mr. Camarata listed a fictitious residential unit, 1001 E. 8th 

Ave. #4, on his voter registration, the State presented sufficient evidence that Mr. 

Camarata knew his voter registration oath was false. Mr. Camarata's public trial rights 

were not violated when the court conducted peremptory 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 of a prospective 

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juror with an apparent felony, he waived appellate review of whether the dismissal was 

proper. State v. Cleary, 166 Wn. App. 43, 49, 269 P.3d 367 (2012). 

Mr. Camarata utilized the secretary of state's voter registration website to provide 

a false voter registration application to Kittitas County. His conviction should be 

affirmed. I respectfully dissent. 

Pennell, J. 

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