ARMSTRONG, J., dissents by separate opinion.
MORGAN, J.
In May 1995, the State filed a complaint charging Cassandra Taylor with fourth degree assault. The State failed to expressly allege intent, a well-settled element of the crime.
See State v. Davis, 119 Wn.2d 657, 662, 835 P.2d 1039 (1992).
In July 1995, just before trial started, Taylor moved to dismiss the complaint. Citing State v. Robinson, she argued that "the complaint is constitutionally defective" because "[i]t doesn't contain all the essential elements of the crime charged." The prosecutor argued that the complaint was sufficient as it was. The district court denied the motion, and the jury later convicted. Taylor appealed to the superior court, which affirmed. Taylor then sought discretionary review by this court, which was granted.
58 Wn. App. 599, 606-07, 794 P.2d 1293 (1990), review denied, 116 Wn.2d 1003 (1991).
Report of Proceedings (Jul. 19, 1995).
On appeal, it is undisputed that an information charging fourth degree assault must allege the element of intent. It is also undisputed that an express allegation of intent was omitted from the information in this case. The only question is whether an allegation of intent may be implied from an allegation of assault.
Davis, 119 Wn.2d at 662.
The rules on when an element may be implied vary according to when the defendant moves to dismiss. If he or she moves to dismiss before trial, the charging document must be strictly construed, as set forth in State v. Johnson. If he or she moves to dismiss after verdict, the charging document may be liberally construed, as set forth in State v. Kjorsvik. Taylor moved to dismiss before trial, so Johnson applies here.
119 Wn.2d 143, 149-50, 829 P.2d 1078 (1992).
117 Wn.2d 93, 104, 812 P.2d 86 (1991).
In Johnson, the Supreme Court refused to imply "the requisite criminal intent" from an express allegation that the petitioner had "unlawfully deliver[ed] a controlled substance." Instead, it established "[a] bright line rule mandating dismissal [without prejudice] of defective informations challenged before trial." It felt such a rule to be workable and not unduly harsh, because such informations are easily amended before trial. The court specifically rejected the State's contention that "the defendants had notice of [the knowledge] element because the word `unlawfully' conveyed the same meaning and import as would have `knowingly'"
Johnson, 119 Wn.2d at 149-50.
Johnson, 119 Wn.2d at 150.
Johnson, 119 Wn.2d at 150.
Johnson, 119 Wn.2d at 147-48.
In State v. Robinson, a fourth degree assault case decided before Kjorsvik and Johnson, Division One in effect applied the rule of strict construction later announced in Johnson. The citation issued to the defendant read, " 9A.36.041 Assault 4th (police officer)." The defendant "contend[ed] that the citation . . . was constitutionally defective because it did not contain the essential element of intent." The court refused to imply the missing element of intent from word assault, ruling instead:
Because the citation did not contain an essential element of the crime, it did not state a charge on which Robinson could be tried and convicted. The conviction must therefore be reversed and the case dismissed.
Robinson would be decided differently today, because it involved a post-verdict challenge that would today fall under the liberalized standard of
State v. Kjorsvik. Nonetheless, its reasoning demonstrates well that an allegation of intent will not be implied from an allegation of assault when a court is applying a standard of strict construction.
58 Wn. App. 606.
Robinson, 58 Wn. App. at 606.
Robinson, 58 Wn. App. at 606.
In State v. Chaten, a fourth degree assault case decided after both Kjorsvik and Robinson, Division One did not mention or cite Robinson and Johnson. It merely applied Kjorsvik, even though the defendant had made his motion to dismiss before trial. Relying on Davis, State v. Hopper, and State v. Dukowitz, all of which involved post-verdict motions, and thus Kjorsvik's standard rather than Johnson's standard, the court implied an allegation of intent from an express allegation of assault in a manner that seems to us to be contrary to Johnson.
84 Wn. App. 85, 925 P.2d 631 (1996).
119 Wn.2d 657.
118 Wn.2d 151, 822 P.2d 775 (1992).
62 Wn. App. 418, 814 P.2d 234 (1991), review denied, 118 Wn.2d 1031 (1992).
Based on these interesting if not conflicting cases, we reach the following conclusions: (1) Chaten is not persuasive, because it fails to acknowledge Robinson or Johnson, and is contrary to Johnson. (2) Robinson reached a correct result with respect to cases in which the defendant first moves to dismiss before trial, although, as it later turned out under Kjorsvik, an incorrect result with respect to cases in which the defendant first moves to dismiss after trial. (3) Johnson controls over either Chaten or Robinson, because a decision by the Supreme Court takes precedence over a decision by the Court of Appeals. (4) By analogy to Johnson, which holds that a court is not to imply an allegation of "the requisite criminal intent" from an express allegation that the defendant "unlawfully" delivered a controlled substance, provided that the defendant moves to dismiss before trial, a court is not to imply an allegation of "the requisite criminal intent" from an allegation of "assault," so long as the defendant first moved to dismiss before trial. One reason is that both the prosecutor and defense counsel are expected to know the elements of the charged crime, and the prosecutor should move to amend as soon as he or she is advised by a pre-trial defense motion that an element of the crime is missing from the charging document. Another reason is that if we were to rule otherwise in this misdemeanor assault case, we would soon be asked to imply, in a felony assault case, a similar but different mental state like recklessness or knowledge. As we read Johnson, it establishes a clear bright-line rule that a court may not imply a missing element so long as the defense, by motion made before trial, calls the omission of such element to the attention of the State.
See RCW 9A.36.021.
Applying Johnson here, because Taylor moved to dismiss before trial, we decline to imply an allegation of intent from an allegation of assault. It follows that the charging document is defective, and that Taylors motion to dismiss should have been granted without prejudice.
HOUGHTON, C.J., concurs.