Opinion Information Sheet

			

                                                                               FILED

                                                                           Feb. 23, 2012

                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  28972-9-III
                                                )
                      Respondent,               )
                                                )         Division Three
       v.                                       )
                                                )
JENNIFER L. KIRWIN,                             )
                                                )         PUBLISHED OPINION
                      Appellant.                )
                                                )

       Siddoway, J.  --  Jennifer Kirwin appeals her three convictions of first degree 

custodial interference arising from her 6-week, multi-state road trip made with her three 

children in violation of her ex-husband's rights under a parenting plan.  She identifies 

several claimed errors.  We find dispositive her argument that the evidence presented at 

trial was insufficient to support the crimes with which she was charged, and that the 

State's adequate proof of a different offense mistakenly described in the jury instructions 

cannot sustain the convictions.  We reverse them and remand with directions to dismiss 

the charges with prejudice. 

No. 28972-9-III
State v. Kirwin

                      FACTS AND PROCEDURAL BACKGROUND

       Jennifer Lynn Kirwin and Todd Kirwin divorced in 2005.  Following the divorce, 

the couple's three children lived with Ms. Kirwin in Spokane pursuant to a court-ordered 

parenting plan.  Mr. Kirwin received visitation rights.  In April 2009, Mr. Kirwin was 

unable to exercise his rights because he could not contact Ms. Kirwin despite repeated 

attempts.  He initiated a contempt proceeding in May and a hearing was scheduled for 

May 26.  Ms. Kirwin left the state with the children sometime on or shortly before 

May 23, after court papers -- presumably notice of the contempt proceeding -- were served 

at her home.  

       On June 15, the trial court modified the original parenting plan and awarded Mr. 

Kirwin custody of the children.  United States marshals found the children with Ms. 

Kirwin in California on July 2 and took her into custody.  Mr. Kirwin traveled to 

California and flew back with the children the following day.  

       The State charged Ms. Kirwin with three counts of first degree custodial 

interference.  The crime of first degree custodial interference may be committed in three 

alternative ways: (1) by being a relative of the child and keeping the child from a person 

who has a lawful right to physical custody; (2) by being a parent and keeping the child 

from the other parent who has a right to time with the child; or (3) by being a person who, 

in the absence of a court order, helps one parent to keep the child from the other parent.  

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No. 28972-9-III
State v. Kirwin

RCW 9A.40.060(1)-(3).  The charging document filed against Ms. Kirwin alleged the 

first alternative, citing RCW 9A.40.060(1) in the caption and with each count alleging 

that she "took and conceal[ed]" the children between June 12, 2009 and June 22, 2009 

"with the intent to deny access to . . . TODD MICHAEL KIRWIN, a parent having a 

lawful right to [their] physical custody."  Clerk's Papers (CP) at 1-2.

       Before trial, Ms. Kirwin's court-appointed defender was allowed to withdraw after 

reporting irreconcilable communication and cooperation problems with his client.  Ms. 

Kirwin notified the court that she would like to proceed without the assistance of counsel.  

In a lengthy colloquy, the trial court tried to persuade Ms. Kirwin not to represent herself.  

The court advised her of the possibility of prison and the standard sentence ranges of her 

charges but did not inform her of the maximum statutory sentence.  Ms. Kirwin remained 

steadfast in her desire to represent herself.  After telling Ms. Kirwin that "[t]he bottom 

line is you're walking into a real hornet's nest, and you need to do this with your eyes 

open[,] understanding the serious danger you're putting yourself into," the court relented 

in its attempts to dissuade Ms. Kirwin and allowed her to proceed pro se.  Report of 

Proceedings (RP)  (Feb. 22, 2010-Pretrial Motions) at 9.  

       The State presented evidence at trial that Ms. Kirwin traveled through Idaho, 

Montana, Utah, Arizona, and California with her children between late May and early 

July 2009.  It offered the June 15 modified parenting plan into evidence but did not 

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No. 28972-9-III
State v. Kirwin

submit the prior parenting plan or present testimony regarding its terms.  

       Ms. Kirwin undertook to defend on the basis that she took her children out of the 

state for their protection because Mr. Kirwin was abusive and had a history of 

harassment.  Although many of the questions she posed to witnesses sought irrelevant

information, she attempted to establish the alleged abuse in questioning Mr. Kirwin and 

her children.  The trial court permitted some of these questions, but it sustained

objections to most on grounds of hearsay and relevance. 

       When it came time to instruct the jury, the to-convict instruction given did not 

track the offenses charged in the information.  While Ms. Kirwin was charged under 

RCW 9A.40.060(1)(c), the jury was instructed on the elements of RCW 9A.40.060(2)(c), 

as follows:

              To convict the defendant of the crime of custodial interference in the 
       first degree, each of the following five elements of the crime must be 
       proved beyond a reasonable doubt:
              (1)     That the defendant was a parent;
              (2)     That on or about between June 12 and June 22, 2009, the 
                      defendant intentionally took, enticed, retained, or concealed 
                      her child from the other parent having the lawful right to time 
                      with the child pursuant to a court-ordered parenting plan;
              (3)     That the defendant acted with the intent to deny the other 
                      parent from access to the child; 
              (4)     That the defendant caused the child to be removed from the 
                      state of usual residence; and
              (5)     That any of these acts occurred in the State of Washington.

CP at 36 (Instruction 6). The State had never sought to amend the information to charge 

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No. 28972-9-III
State v. Kirwin

Ms. Kirwin with violations of RCW 9A.40.060(2)(c).

       The jury found Ms. Kirwin guilty on all three counts.  The judgment and sentence 

reflects that she was convicted under RCW 9A.40.060(1)(c), the offense specified in the 

charging document.  This appeal followed.

       After reviewing the initial briefs and noting the inconsistency between the 

charging document and the jury instructions, we requested and have considered additional 

briefing addressing two questions:

       1.     Did the trial court instruct the jury on an uncharged alternative theory of 
              first degree custodial interference?

       2.     Assuming that the court did instruct only on an uncharged alternative, does 
              an appellate court review a sufficiency of the evidence challenge to the 
              charged or uncharged alternative?

                                         ANALYSIS

       Ms. Kirwin assigns error to the trial court's failure to fully inform her of the 

consequences of self-representation; in particular, the maximum sentence she faced.  She 

also challenges a series of evidentiary rulings she contends were in error and collectively 

deprived her of the ability to present her defense.  But at oral argument, appellate counsel 

placed greatest reliance on Ms. Kirwin's challenge to the State's failure to present 

sufficient evidence of the crimes charged.  She asked that we grant the reversal and 

dismissal that Ms. Kirwin contends is the necessary remedy. 

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No. 28972-9-III
State v. Kirwin

       Ms. Kirwin contends that sufficient evidence does not support the essential 

element that she knew Mr. Kirwin had a lawful right to physical custody of the children.  

In State v. Boss, 167 Wn.2d 710, 719-20, 223 P.3d 506 (2009), the Washington Supreme 

Court held:

              Knowledge of the existence of a custody order is inherent in the 
       intentional element of the offense.  A person cannot "intentionally" commit 
       first degree custodial interference without being on notice of the underlying 
       order.  The State must establish a custody order existed and the defendant 
       intentionally violated the order.  The State must establish a defendant is 
       aware of the existence of the order to prove the defendant intentionally 
       violated it.

       The State's position, made explicit at oral argument, is that "lawful right to 

physical custody" within the meaning of RCW 9A.40.060(1)(d) is sufficiently broad to 

include rights of visitation that Ms. Kirwin knew Mr. Kirwin enjoyed before she left the 

state in late May.  It argues that it presented evidence that established that Mr. Kirwin had 
visitation rights before June 121 and that Ms. Kirwin knew of them.  For her part, Ms. 

Kirwin argues that "lawful right to physical custody" must refer to the court-designated 

custodial parent in cases where it is a parent who is being denied custody of the children.  

       The criminal code does not define or otherwise clarify the meaning of "lawful 

right to physical custody." Standing alone, the term is ambiguous. Black's Law 

       1 June 12 was the date that the court heard the custody issue and signed the order 
filed on June 15.

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No. 28972-9-III
State v. Kirwin

Dictionary provides multiple definitions for physical custody, some of which support Ms. 

Kirwin's position ("[t]he right to have the child live with the person awarded custody by 

the court") but others of which support the State's ("[p]ossession of a child during 

visitation").  Black's Law Dictionary 1263 (9th ed. 2009) (definitions 2 and 3).  

However, the plain meaning of a statute is discerned by examining everything the 

legislature has said in the statute itself and any related statutes that reveal legislative 

intent regarding the provision at issue.  In re Custody of E.A.T.W., 168 Wn.2d 335, 343, 

227 P.3d 1284 (2010).  The meaning of words in a statute is not determined from those 

words alone but from all the terms and provisions of the act as they relate to the subject 

of the legislation, the nature of the act, the general object to be accomplished and 

consequences that would result from construing the particular statute in one way or 

another.  Id. at 343-44.  

       Reviewing the custodial interference statute as a whole, it is significant that it 

differentiates between "a lawful right to physical custody" and "authorized visitation" in 

describing one alternative offense.  RCW 9A.40.060(1)(d) provides that a relative 

commits first degree custodial interference when she or he

       [r]etains, detains, or conceals the child or incompetent person in another 
       state after expiration of any authorized visitation period with intent to 
       intimidate or harass a parent, guardian, institution, agency, or other person 
       having lawful right to physical custody or to prevent a parent, guardian, 
       institution, agency, or other person with lawful right to physical custody 
       from regaining custody.

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No. 28972-9-III
State v. Kirwin

(Emphasis added.)  

       It is also noteworthy that the legislature used different phrases to describe 

presumptively different rights protected from interference: in RCW 9A.40.060(1), the 

right protected from interference is the "lawful right to physical custody," whereas in 

RCW 9A.40.060(2), the parental right protected is the "lawful right to time with the child 

pursuant to a court-ordered parenting plan."  When the legislature uses two different 

terms in the same statute, courts presume the legislature intends the terms to have 

different meanings. Densley v. Dep't of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885 

(2007).  We also construe statutes so that all the language used is given effect, with no 

portion rendered meaningless or superfluous.  Johnson v. Recreational Equip., Inc., 159 

Wn. App. 939, 946, 247 P.3d 18 (citing Whatcom County v. City of Bellingham, 128 

Wn.2d 537, 546, 909 P.2d 1303 (1996)), review denied, 172 Wn.2d 1007 (2011).  

Permitting the State to charge a parent under RCW 9A.40.060(1) when the other parent is 

merely entitled to time with the child, but is not the designated custodian, would render 

RCW 9A.40.060(2) superfluous.  Under that interpretation all conduct violating 

subsection two could be charged under subsection one.  

       Finally, related chapter 26.09 RCW, dealing with dissolution proceedings and 

legal separation, lends support to Ms. Kirwin's contention that the language refers to the 

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No. 28972-9-III
State v. Kirwin

designated custodian of the child.  RCW 26.09.285 provides that "a parenting plan shall

designate the parent with whom the child is scheduled to reside a majority of the time as 

the custodian of the child." In State v. Ohrt, 71 Wn. App. 721, 726, 862 P.2d 140 (1993), 

review denied, 123 Wn.2d 1029 (1994), the court treated "custodian" as synonymous 

with the "persons having lawful custody" whose rights are protected under the first 

section of the custodial interference statute.

       For these several reasons, we conclude that the term "lawful right to physical 

custody" necessarily refers to the court-designated custodian of a child when a parenting 

plan has been entered.  Thus understood, the evidence below established that Mr. Kirwin 

did not have a lawful right to physical custody of his three children until entry of the 

June 15 order.  

       The State offered no evidence that Ms. Kirwin knew of the June 15 order at any 

time during the charging period.  The jury was presented with testimony from which it 

could conclude that before Ms. Kirwin left the State in May a parenting plan must have 

been in place under which Mr. Kirwin had visitation rights but was not designated the 

custodian.  The only exhibits admitted into evidence were the June 15 order modifying a 

prior parenting plan, which did not identify the provisions of the prior plan, and the new 

parenting plan entered while Ms. Kirwin was out-of-state. Neither exhibit gave any 

indication it had been served on Ms. Kirwin or, for that matter, that she had ever received 

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No. 28972-9-III
State v. Kirwin

notice that a change of custody was being requested.  

       The evidence established only that something -- presumably the motion for 

contempt -- was served at Ms. Kirwin's home before she left the state with the children.  

Mr. Kirwin testified that at the May 26 hearing (which Ms. Kirwin did not attend) the 

court commissioner indicated he would grant a change in custody if Ms. Kirwin did not 

respond within 20 days.  But the evidence did not establish when any request for a 
change in custody was made.2  

       While the evidence presented did not establish Ms. Kirwin's knowledge of the 

custody decree, it sufficed to establish the elements of the different custodial interference 

offense on which the jury was mistakenly instructed.  The second element from the to-

convict instruction given to the jury required that the State prove that "the defendant 

intentionally took, enticed, retained, or concealed her child from the other parent having 

the lawful right to time with the child pursuant to a court-ordered parenting plan." CP at 

36 (emphasis added).  Had the jury been properly instructed on the crime with which Ms. 

Kirwin was charged, the second element of the to-convict instruction would have 

       2 In this connection, we disagree with the dissent's assertion that Ms. Kirwin fled 
the weekend that "notice of the hearing to change custody was served" and knew that a 
change of custody was likely.  Dissent at 10.  The trial record established only that Mr. 
Kirwin was seeking to hold Ms. Kirwin in contempt for her interference with his 
visitation rights at the time she left with the children.  It provides no information on the 
content of the papers served.  RP (Feb. 22, 2010-Trial) at 8-9, 11; RP (Feb. 23, 2010-
Trial) at 68-69, 100-02.

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No. 28972-9-III
State v. Kirwin

required the State to prove beyond a reasonable doubt that during the charging period Ms. 

Kirwin intentionally "took, enticed, retained, detained, or concealed the child from a 

parent having a lawful right to the physical custody of such person."  See 11 Washington 

Practice: Washington Pattern Jury Instructions: Criminal 39.20 (3d ed. 2008); CP at 1-2

(Information).  Ms. Kirwin did not object to the instruction as given.  

       At the outset, we recognize that there are two well-established challenges Ms. 

Kirwin could raise in light of these events that could entitle her to a new trial.  First, 

where a to-convict instruction omits an essential element of a charged crime, it is 

constitutionally defective and the remedy is a new trial unless the State can demonstrate 

that the omission was harmless beyond a reasonable doubt.  State v. Brown, 147 Wn.2d 

330, 339, 58 P.3d 889 (2002); State v. Cronin, 142 Wn.2d 568, 580, 14 P.3d 752 (2000).  

If the State had presented substantial evidence of the charged crime but the jury 

instructions omitted an essential element, this is the argument we would expect Ms. 

Kirwin to make. She could be entitled to a new trial even in the face of substantial 

evidence of her guilt of the crime charged, because a properly-instructed jury might 

nonetheless have found her not guilty.

       Second, when an information alleges only one crime, it is constitutional error to 

instruct the jury on a different, uncharged crime. State v. Chino, 117 Wn. App. 531, 540, 

72 P.3d 256 (2003); State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996) (jury 

                                               11 

No. 28972-9-III
State v. Kirwin

erroneously instructed on uncharged statutory alternative means); State v. Nicholas, 55 

Wn. App. 261, 272-73, 776 P.2d 1385, review denied, 113 Wn.2d 1030 (1989); State v. 

Mitchell, 149 Wn. App. 716, 721, 205 P.3d 920 (2009), aff'd, 169 Wn.2d 437, 237 P.3d 

282 (2010).  When the jury is instructed on an uncharged crime, a new trial is appropriate 

when it is possible that the defendant was mistakenly convicted of an uncharged crime.  

State v. Brown, 45 Wn. App. 571, 576-77, 726 P.2d 60 (1986).  Here again, if the State 

had presented substantial evidence of the charged crime but the jury was instructed on the 

wrong crime, this is the argument we would expect.  Ms. Kirwin would again be entitled 

to a new trial even in the face of substantial evidence of her guilt of the crime charged,

because of the possibility that she was convicted only because of the erroneous 

instruction.

       The crucial distinction here is that the State presented insufficient evidence of the 

crimes with which Ms. Kirwin was charged and as to which she was convicted.  She has 

been required to defend one trial in which the State presented insufficient evidence to 

meet this burden of proof.  Ms. Kirwin therefore argues she is entitled to more than a new 

trial; she is entitled to have the convictions dismissed due to the insufficiency of the 

evidence.  Only evidentiary insufficiency, not deficiencies in the information or 

instructions, entitles Ms. Kirwin to dismissal.  "'[R]eversal for trial error, as 

distinguished from evidentiary insufficiency, does not constitute a decision to the effect 

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No. 28972-9-III
State v. Kirwin

that the government has failed to prove its case. . . .  Rather, it is a determination that a 

defendant has been convicted through a judicial process which is defective in some 

fundamental respect.'"  State v. Vangerpen, 125 Wn.2d 782, 794, 888 P.2d 1177 (1995) 

(quoting Burks v. United States, 437 U.S. 1, 15, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978)).  

Double jeopardy bars retrial only when the appellate court reverses the conviction for 

insufficient evidence, in which case the reversal is deemed an acquittal terminating 

jeopardy.  State v. Wright, 131 Wn. App. 474, 478, 127 P.3d 742 (2006), aff'd, 165 

Wn.2d 783, 203 P.3d 1027 (2009).  

       Ms. Kirwin provides us with no authority directly addressing whether she is 

entitled to dismissal for insufficient evidence where the State presented sufficient

evidence of the offense described in the to-convict instruction, to which she made no 
objection.3 The issue of whether substantial evidence review is based on the crime as 

instructed to the jury or the crime as charged in the information -- the question we asked 

the parties to brief supplementally -- appears to be one of first impression.

       The State objects to the way we framed the question.  It sees no prejudicial 

       3 A criminal defendant may always challenge for the first time on appeal the 
sufficiency of the evidence supporting a conviction.  State v. Hickman, 135 Wn.2d 97, 
103 n.3, 954 P.2d 900 (1998) (noting that "[a]ppeal is the first time sufficiency of 
evidence may realistically be raised"); State v. Alvarez, 128 Wn.2d 1, 10, 904 P.2d 754 
(1995) (recognizing that the sufficiency of the evidence "'is a question of constitutional 
magnitude and can be raised initially on appeal'" (quoting City of Seattle v. Slack, 113 
Wn.2d 850, 859, 784 P.2d 494 (1989))).

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No. 28972-9-III
State v. Kirwin

discrepancy between the information and the instructions because, it argues, the to-

convict instruction merely added an element to those the State was otherwise required to 

prove, making its burden of proof harder, not easier.  But the State addresses only its 

burden of proving the asserted additional element that Ms. Kirwin intentionally deprived

her ex-husband of time with the children pursuant to a court-ordered parenting plan. It 

ignores the more important fact that the instructions as given relieved the State of the 

burden of proving that Ms. Kirwin intentionally deprived Mr. Kirwin of custody, a matter 

it failed to prove.  

       The argument for reviewing the sufficiency of evidence with regard to the crime as 

instructed finds support in cases holding that the instructions to the jury become law of 

the case.  Where the State makes no objection to an unnecessary element mistakenly 

included in a to-convict instruction, for instance, it is well-settled Washington law that 

the State assumes the burden of proving the otherwise unnecessary element, as law of the 

case.  State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). In Hickman, the court 

held that in the event of a sufficiency of evidence challenge on appeal, the sufficiency of 

evidence to sustain the verdict is determined with reference to the instructions.  Id. at 103 

(quoting Tonkovich v. Dep't of Labor & Indus., 31 Wn.2d 220, 225, 195 P.2d 638 

(1948)).   

       The court qualified its holding in Hickman in State v. Teal, 152 Wn.2d 333, 337, 

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No. 28972-9-III
State v. Kirwin

96 P.3d 974 (2004).  In that case, the defendant's conviction for first degree robbery 

depended on his accountability for actions of an accomplice, yet the to-convict

instruction, to which no party objected, described the elements of the crime only in terms 

of the defendant's own acts, making no mention of an accomplice.  The court in Teal 

explicitly rejected the defendant's argument that the sufficiency of evidence should be 

measured against the to-convict instruction as given, concluding that "[t]he Court of 

Appeals correctly rejected this argument."  Id. at 338.  In what we read as a related 

observation, the court recognized that a to-convict instruction "must provide a complete 

statement of the elements of the crime charged," id. (emphasis added), and distinguished

the error in the to-convict instruction in Teal's case because it did not omit an element.  

In Ms. Kirwin's case, of course, the to-convict instruction did omit an element -- an 

element the State did not prove.

       Ultimately, identifying the proper reference point for sufficiency of evidence 

review must be guided by the reason for sufficiency of evidence review, which is "to 

guarantee the fundamental protection of due process of law."  Jackson v. Virginia, 443 

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).  "[T]he Due Process Clause [U.S. 

Const. amend XIV] protects the accused against conviction except upon proof beyond a 

reasonable doubt of every fact necessary to constitute the crime with which he is 

charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) 

                                               15 

No. 28972-9-III
State v. Kirwin

(emphasis added).  Although we have found no published decision directly addressing our 

issue, the federal cases consistently articulate the substantial evidence standard as 

focusing on the crime actually charged.  United States v. Williams, 998 F.2d 258, 262 

(5th Cir. 1993) ("If a rational jury could have found the defendant guilty beyond a 

reasonable doubt of the essential elements of the crimes charged, the conviction should 

be upheld." (emphasis added)), cert. denied, 510 U.S. 1099 (1994); United States v. 

Inigo, 925 F.2d 641, 644 (3rd Cir. 1991) (holding that the evidence against certain 

defendants "was insufficient as to the crimes charged against them in the indictment"

(emphasis added)); United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986) 

(recognizing the standard to be "whether a reasonable jury, after viewing the evidence in 

the light most favorable to the government, could have found the defendants guilty 

beyond a reasonable doubt of each essential element of the crime charged" (emphasis 

added)).  

       Washington Const. art. I, § 22 also requires that sufficiency of evidence be tested 

with respect to the crimes charged.  After the State rests its case-in-chief, it cannot amend 

the information to charge a different or greater crime, or add an essential element of the 

crime.  Vangerpen, 125 Wn.2d at 789-91.  Why?  Because a defendant is entitled to have 

the sufficiency of the evidence to convict her tested against the original information.  

Sufficiency of evidence review is a means of guaranteeing due process only if it is with 

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No. 28972-9-III
State v. Kirwin

reference to a charge of which the defendant was given notice and the opportunity to 

defend. Surely the State cannot deprive Ms. Kirwin of that right -- and claim the 

prerogative to try her a second time -- by something as simple as submitting or 

overlooking erroneous jury instructions.  And it is no answer that Ms. Kirwin failed to 

object to the instructions.  Where she has defended herself once against the crimes 

charged, she cannot be deprived of her right to have the sufficiency of evidence tested 

against the information because she failed to detect and correct errors made by others. 

       The dissent would have us simply grant Ms. Kirwin a new trial, to which she is 

unquestionably entitled if that is what she was seeking, for reasons we have already 

discussed and on which the dissent expands.  But having been through a trial in which 

she can demonstrate that the State's evidence was insufficient to convict her of the crime 

charged, she has more to complain about than the instructional error. She makes a cogent

argument that she is entitled to more than a new trial.  We have addressed the relief she 

requests.

       The dissent concludes that a defendant is never entitled to a remedy other than a 

new trial where there has been an improper amendment to a charging document during 

trial, a context it urges as analogous.  We agree that the context is analogous but do not 

read the cases cited by the dissent -- State v. Pelkey, 109 Wn.2d 484, 745 P.2d 854 

(1987), Vangerpen, 125 Wn.2d 782, and State v. Markle, 118 Wn.2d 424, 823 P.2d 1101 

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No. 28972-9-III
State v. Kirwin

(1992) -- as foreclosing a challenge to the sufficiency of the evidence, the remedy for 

which would be reversal and dismissal with prejudice.  In Vangerpen, it is clear that a 

sufficiency of evidence challenge would have been futile; the State had ample direct 

evidence that the defendant had committed the crime charged.  In Pelkey, the Supreme 

Court explicitly did not reach a sufficiency of evidence challenge based on the original 

charge, noting that "[t]he parties do not raise this question in this appeal, and we express 

no opinion on the merits of the issue." 109 Wn.2d at 486 n.2.  While the circumstances 

of Markle would appear to have supported a sufficiency of evidence challenge, none was 

made.  118 Wn.2d at 441 ("[W]e are reversing Mr. Markle's conviction based upon an 

improper midtrial amendment to the information.  We are not reversing for insufficiency 

of the evidence.").  The parties disputed only the proper remedy for the improper midtrial 

amendment.

       Unlike the dissent, we are not prepared to assume that a sufficiency of evidence 

challenge could not be made in a case such as Markle. In that case, the State, having 

rested with what the defendant urged was insufficient evidence of statutory rape, was 

allowed to amend the charge to indecent liberties.  The challenge on appeal was to the 

improper amendment, so the Supreme Court, in reversing, ordered a new trial.

       If we assume that in Markle the evidence was indeed insufficient to sustain 

conviction for statutory rape and if the dissent is correct in assuming that a challenge to 

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No. 28972-9-III
State v. Kirwin

the sufficiency of the evidence to prove statutory rape could not have been made,

consider where that leaves the parties:  Had the State not attempted improper amendment, 

allowing its evidence to be weighed in light of its original charge, the defendant should 

have won his motion to dismiss the charge, been acquitted, or succeeded in challenging 

the sufficiency of evidence on appeal.  Prosecution for indecent liberties on the basis of 

the same conduct would have been subject to a defense motion to dismiss pursuant to 

former CrR 4.3(c)(1) (1986), failure to join related offenses.  Pelkey, 109 Wn.2d at 491.

       On the other hand, if the State had presented its deficient evidence but then 

requested an improper amendment and succeeded in persuading the court, in error, to 

allow it, it would, according to the dissent, thereby effectively deprive the defendant his 

sufficiency of evidence challenge; the defendant would be limited to requesting a new 

trial.  In other words, by compounding the shortcoming of its own evidence with 

inducement of an error by the court, the State gets a better result and the defendant loses

his opportunity for dismissal.  We are not persuaded that a Washington appellate court, if 

one day presented with that question, will reach that result.

       Having concluded that the conviction must be reversed and the charge dismissed, 

we need not address Ms. Kirwin's remaining assignments of error.  We reverse the 

convictions and remand with directions to dismiss the charges with prejudice.  

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No. 28972-9-III
State v. Kirwin

                                                ____________________________________
                                                Siddoway, J.

I CONCUR:

__________________________________
Sweeney, J.

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