Opinion Information Sheet

			

                                       No. 28972-9-III

       Korsmo, A.C.J. (dissenting)  --  This court should focus on the sufficiency of the 

evidence to support the jury's verdict rather than render an advisory opinion about a 

theory that the jury did not consider. The instructional theory is the normal focus for an 

appellate court's sufficiency review of a jury verdict; it also is how we address 

comparable errors in civil cases.  This approach also is consistent with the cases 

addressing the closely analogous situation of improper amendments to the charging 

document during trial.  For these reasons I dissent from the majority's approach to this 

case.

       Moreover, there was sufficient evidence adduced to support either theory of 

custodial interference.  This case must be retried because the jury was instructed on the 

elements of the wrong offense.  Accordingly, I would reverse and remand this case for a 
new trial with correct instructions.1

       Erroneous Elements Instruction

       The majority correctly identifies the problem with the elements instruction in this

case.  The State charged Ms. Kirwin with violating RCW 9A.40.060(1)(c), which defines 

custodial interference in terms of a relative depriving a guardian of physical custody by 

       1 I thus do not address whether the defendant's waiver of counsel was valid. 

No. 28972-9-III
State v. Kirwin

taking the children out of state. Clerk's Papers (CP) at 1-2. However, the elements 

instruction informed the jury that it was to decide if the mother deprived her ex-husband 

of his visitation time with the children under the parenting plan by taking them out of 

state, which constitutes a violation of RCW 9A.40.060(2)(c). CP at 36 (Instruction 6).  

       The state and federal constitutions require that an accused be informed of the 
charges he or she must face at trial.  Const. art. I, § 22;2 Sixth Amendment.3 Because of 

the centrality of this notice to the ability to defend, it is error to instruct the jury on 

uncharged offenses or uncharged alternative theories.  E.g., State v. Severns, 13 Wn.2d 

542, 548, 125 P.2d 659 (1942); State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 

(2003).  The error can be harmless if other instructions define the crime in a manner that 

leaves only the charged alternative before the jury.  Severns, 13 Wn.2d at 549; Chino, 

117 Wn. App. at 540.

       That is not the circumstance here. The crime of first degree custodial interference 

was defined for the jury consistent with the elements instruction.  CP at 35 (Instruction 

5). Thus, Ms. Kirwin was tried on a theory of the case that she was not informed about 

by the charging document.  Since the definitional instruction supported the new theory, 

       2 "In criminal prosecutions the accused shall have the right . . . to demand the 
nature and cause of the accusation against him, to have a copy thereof."
       3 "In all criminal prosecutions the accused shall enjoy the right . . . to be informed 
of the nature and cause of the accusation."
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the error was not harmless.  Severns, 13 Wn.2d 542; Chino, 117 Wn. App. 531.  She is 

entitled to a new trial.

       Focus of Sufficiency Review

       This typical resolution would normally be the end of the discussion.  However, 

instead of seeking a new trial, Ms. Kirwin wants the charges dismissed due to alleged 

insufficiency of the evidence to support the theory stated in the charging document.  She 

provides no authority in support of her argument, which is a question of first impression.  

Her theory is not consistent with the reason appellate courts conduct sufficiency review, 

nor is it consistent with the treatment of this error in untimely amendment cases or in civil 

cases.

       Purpose of Review.  The United States Supreme Court first applied the proof 

beyond a reasonable doubt standard in criminal cases to the states in In re Winship, 397 

U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).  One of the ensuing questions was the 

standard to be applied to adjudge state compliance with Winship, an issue addressed in 

Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).  There the 

court determined that federal courts would look to see if the state verdict was supported 

by evidence sufficient to prove each element of the crime beyond a reasonable doubt.  Id. 

at 324.  

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       Unsurprising, the Washington Supreme Court then adopted the same standard for 

reviewing the sufficiency of the evidence to support a jury verdict in State v. Green, 94 

Wn.2d 216, 220-222, 616 P.2d 628 (1980).  The courts of this state have uniformly 

applied that standard ever since to review verdicts reached by juries and judges.  

       Neither the Washington Supreme Court nor the United States Supreme Court has

weighed in on the problem of a variance between the charging document and the jury 

instructions in a criminal case.  The latter court once dealt with the situation where the

defendants had argued on appeal that their conviction under section 2 of an Arkansas 

statute was invalid because the evidence was insufficient; the Arkansas Supreme Court 

upheld the convictions because the evidence supported a conviction under section 1 of the 

statute.  Cole v. Arkansas, 333 U.S. 196, 197-201, 92 L. Ed. 644, 68 S. Ct. 514 (1948).  

The United States Supreme Court promptly reversed and remanded, finding that because 

the defendants had been charged and convicted under section 2 of the statute, they had a 

due process right to have their challenges to a section 2 conviction heard.  Id. at 201-202.  

The court ruled:

       To conform to due process of law, petitioners were entitled to have the 
       validity of their convictions appraised on consideration of the case as it was 
       tried and as the issues were determined in the trial court.

Id. at 202. 

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No. 28972-9-III
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       One could argue from this quote that the United States Supreme Court would 

believe that the current issue should be analyzed from the standpoint of what the jury 

decided rather than what the charging document said.  However, Cole is easily 

distinguished for the same reason that the cases cited by the majority are 

distinguishable -- all of the cases involved fact patterns where the defendant was charged 

and the jury instructed on the same crime.  In none of those cases was there a variance 

between the charged crime and the one in the instructions given the jury.  Thus, there is 

no governing authority on this issue.  

       We should begin our review by recalling our function here.  In the case of verdicts, 

as discussed above, an appellate court applies the Green standard to see if there was a 

factual basis for the trier-of-fact returning the verdict it did.  That should be our focus 

here. Ms. Kirwin presents no reason justifying abandonment of our traditional focus on 

the jury's verdict, let alone changing that focus to the charging document.

       Analogous Cases.  There also is persuasive authority suggesting that review of the 

verdict, not the charge, is the appropriate focus.  Like the majority, I find analogous 

support from the cases involving amendments to the charging document during trial. 

However, it is the remedy aspect of those cases that points to the correct resolution of this 

case.

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No. 28972-9-III
State v. Kirwin

       It is axiomatic that trial courts should not allow amendments to charging 
documents that state a new crime4 after the State has rested its case because they limit the 

defendant's ability to defend against the charge due to lack of notice of what is at issue.5  

State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987). When a trial court permits 

such an amendment after the State has rested, and the jury then returns a verdict on the 

amended charge, the remedy is a new trial on the amended charge since the defendant 

would then have sufficient notice to mount a defense.  State v. Vangerpen, 125 Wn.2d 

782, 787-791, 888 P.2d 1177 (1995); State v. Markle, 118 Wn.2d 424, 439-441, 823 P.2d 
1101 (1992).6

       "Jury instructions and charging documents serve different functions."  Vangerpen, 

       4 Amendments that merely change the method of committing the offense or add 
additional counts are permitted at trial.  E.g., State v. Schaffer, 120 Wn.2d 616, 621-622, 
845 P.2d 281 (1993); State v. Pelkey, 109 Wn.2d 484, 490-491, 745 P.2d 854 (1987); 
State v. Debolt, 61 Wn. App. 58, 61, 808 P.2d 794 (1991); State v. Wilson, 56 Wn. App. 
63, 65, 782 P.2d 224 (1989), review denied, 114 Wn.2d 1010 (1990); State v. Mahmood, 
45 Wn. App. 200, 205-206, 724 P.2d 1021, review denied, 107 Wn.2d 1002 (1986).
       5 "A criminal charge may not be amended after the State has rested its case in chief 
unless the amendment is to a lesser degree of the same charge or a lesser included 
offense.  Anything else is a violation of the defendant's article 1, section 22 right to 
demand the nature and cause of the accusation against him or her." Pelkey, 109 Wn.2d at 
491.
       6 Accord State v. Quismundo, 164 Wn.2d 499, 503-504, 192 P.3d 342 (2008); 
State v. Cochrane, 160 Wn. App. 18, 26, 253 P.3d 95 (2011); State v. Hull, 83 Wn. App. 
786, 799-802, 924 P.2d 375 (1996), review denied, 131 Wn.2d 1016 (1997).  

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No. 28972-9-III
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125 Wn.2d at 788.  The charging document is not a concern for the jury.  Its primary 

purpose is to alert the defendant to the charge and underlying conduct at issue.  Pelkey, 

109 Wn.2d at 491.  From the jury's perspective, the case is contained in the elements 

instruction and any accompanying definitional instructions.  Thus, when a court instructs 

the jury on an incorrect theory of the case, it is the functional equivalent of amending the 

charging document to a new crime and then instructing the jury on that new offense.  In 

each instance, the defendant is facing a jury's verdict on a crime other than the one she 

had been notified she was facing.  In each instance, the error requires a new trial.  

Markle, 118 Wn.2d at 441 (erroneous amendment to new charge); Severns, 13 Wn.2d at 

552 (erroneous instruction on additional uncharged alternatives).

       Consistent with these cases, our sufficiency review in this case should be focused 

on the jury's verdict rather than the unconsidered, but charged, theory of liability. That is 

the same approach taken in civil cases.  When a jury is erroneously instructed on the 

elements of a civil claim, review focuses on whether the evidence supports the jury

instruction.  Noland v. Dep't of Labor & Indus., 43 Wn.2d 588, 590, 262 P.2d 765 
(1953); Tonkovich v. Dep't of Labor & Indus., 31 Wn.2d 220, 225, 195 P.2d 638 (1948).7

       7 As stated in Noland, "[n]o assignments of error being directed to any of the 
instructions, they became the law of the case on this appeal, and the sufficiency of the 
evidence to sustain the verdict is to be determined by the application of the instructions 
and rules of law laid down in the charge." 43 Wn.2d at 590.
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This is recognized as an application of the law of the case doctrine.  Noland, 43 Wn.2d at 

590.  That doctrine has also long applied in criminal cases.  E.g., State v. Willis, 153 

Wn.2d 366, 374-375, 103 P.3d 1213 (2005); State v. McGilvery, 20 Wash. 240, 251, 55 

P. 115 (1898).  Thus, when the prosecution alleges an extraneous element in a charging 

document and then undertakes to prove that additional element by including it in the jury 

instructions, the sufficiency review includes the additional element.  State v. Hickman, 

135 Wn.2d 97, 102-103, 954 P.2d 900 (1998).

       The focus of review in all of these circumstances is on the elements actually 

considered by the jury instead of what should have been considered.  In the current case, 

this court likewise should focus on the elements considered by the jury rather than what 

ought to have been submitted to the jury.  These cases are the most analogous to our 

current fact pattern because the error here was that Ms. Kirwin was not given prior notice 

of the theory of liability ultimately submitted to the jury.  Nothing cited by the majority is 
nearly as close a fit legally or factually.8 The difference between civil and criminal 

       8 I believe the majority's erroneous focus, based on a misreading of the Vangerpen
line of cases, is best captured by this sentence from the majority's opinion: "Because a 
defendant is entitled to have the sufficiency of the evidence to convict her tested against 
the original information."  Majority at 16.  The problem with the wrongful amendment 
cases is that the defendant does not receive timely notice of the crime she is facing. 
Pelkey, 109 Wn.2d at 491.  If it were a question of measuring the evidence by the 
charging document, instead of the instructions given the jury, then the remedy could not 
be a new trial.  See Markle, 118 Wn.2d at 441.   
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charging is the constitutionally mandated notice required in a criminal case.  Pelkey, 109 

Wn.2d at 491.  The majority does not explain why the constitutional notice requirement 

in a criminal case justifies a different focus of review than the well-settled civil standard.

There is no connection between notice and evidentiary sufficiency. Here, as in every 

other case where improper notice was given, the appropriate remedy is a new trial rather 
than dismissal of charges.  Vangerpen, 125 Wn.2d at 791.9

       Application

       Little need be said about the sufficiency of the evidence presented at trial.  Like 

the majority, I agree there was ample evidence to support the verdict returned by the jury 

on the uncharged (but instructed upon) theory of custodial interference by interruption of 

visitation rights. With respect to the charged (but unconsidered) theory of interference 

with the father's custody, the failure to serve the defendant with the order changing 

custody to her former husband should not be dispositive. Ms. Kirwin fled the weekend 

       9 The majority concludes its opinion with an amusing hypothetical, largely 
tracking Quismundo except for the evidentiary insufficiency challenge, in which a string 
of errors by the prosecutor and trial judge deprive the defendant of his right to raise a 
sufficiency of the evidence challenge.  There are two simple answers to the hypothetical.  
First, government mistakes that deprive a defendant of a fair trial are remediable by CrR 
8.3(b) and the hypothetical defendant would obtain his dismissal without a new trial.  
Second, this case is not that hypothetical because if the trial court had granted a motion to 
amend the theory of kidnapping in this case, it would not have been "wrongful" since 
amendments to the means of committing a crime are proper even at trial.  See note 5, 
infra, at 6.  
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that the notice of the hearing to change custody was served at her mother's house.10  

When told by her mother that she had 20 days to respond to the June 12 hearing, Ms. 

Kirwin stated, "No, I don't" and ripped the papers in half.  Report of Proceedings (Feb. 

23, 2010-Trial) at 69.  She then took off with the children in the middle of the night.  Id.  

Her willful ignorance of the court's order should not immunize her from violating it.  If 

this theory of the case had been submitted, the jury could have considered her flight as a 

basis for inferring her knowledge of the change in custody.  Accordingly, the evidence 

was sufficient to support even the hypothetical alternative charge the jury did not 

consider.

       Ms. Kirwin should be given a new trial due to the instructional error.  She is not 

       10 While the record could certainly be stronger, the majority merely speculates 
that the papers served on Ms. Kirwin were for yet another futile contempt hearing.  In 
fact, Plaintiff's Exhibit 1, the order changing custody to the father, was entered at the 
hearing on June 12 that Ms. Kirwin had been summoned to attend.  Unless the trial court 
entered the change of custody order without proper service and calendaring, the 
documents served in late May were for the custody hearing, which is the only matter this 
record identifies as occurring June 12.

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entitled to dismissal because the evidence did support the jury's actual verdict.  I 

respectfully dissent.

                                            _________________________________
                                                           Korsmo, A.C.J.

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