120 Wn.2d 196, P.2d 172, STATE v. SIMON

Nov. 1992

[No. 59196-2. En Banc. November 19, 1992.]

STATE v. SIMON

THE STATE OF WASHINGTON, Petitioner, v. GREGORY SIMON, Respondent.

[1] Indictment and Information – Sufficiency – Notice of Charge – Essential Elements – In General. A charging document is constitutionally adequate only if it includes all the elements of the crime charged, both statutory and nonstatutory, so as to apprise the defendant of the charge and to permit the defendant to prepare a defense.

[2] Indictment and Information – Sufficiency – Review – Failure To Raise in Trial Court – Construction. A charging document challenged for the first time on review is liberally construed in favor of upholding its validity.

[3] Indictment and Information – Sufficiency – Notice of Charge – Language Used – Sentence Structure and Punctuation. A charging document must be written in such a manner that persons of common understanding, by applying simple rules of sentence structure and punctuation, can know what is intended.

[4] Indictment and Information – Sufficiency – Review – Defect – Remedy. A conviction based on a defective information must be reversed with the information dismissed without prejudice to the State's refiling an information charging the same crime.     

Nature of Action: Prosecution for first degree promotion of prostitution.

Superior Court: The Superior Court for King County, No. 90-1-01248-1, Carol A. Schapira, J., on July 2, 1990, entered a judgment on a verdict of guilty.

Court of Appeals: The court at 64 Wn. App. 948 dismissed that portion of the information charging promotion of prostitution of a person under the age of 18 years, reversed the conviction under that portion of the information charging promotion of prostitution by threat and force, and remanded the case for a new trial on the charge of promotion of prostitution by threat and force.

Supreme Court: Holding that the charge of promoting prostitution of a person under age 18 improperly omitted the element of knowledge but that the proper remedy for the defect in the information was dismissal without prejudice to the State's refiling the information, the court affirms the decision of the Court of Appeals in part, reverses it in part, and remands the case for further proceedings.

Norm Maleng, Prosecuting Attorney, and Peter R. Goldman, Deputy, for petitioner.

Theresa Bridget Doyle and Colleen E. O'Connor of Washington Appellate Defender Association, for respondent.

PER CURIAM. – The State seeks review of a Court of Appeals decision partially dismissing an information charging Gregory Simon with first degree promotion of prostitution. The State contends that the information adequately charged commission of the crime by means of knowingly promoting the prostitution of a person under 18, and that, in any event, the proper remedy for an inadequate information is not outright dismissal of the charge. We grant review and affirm in part and reverse in part.

On February 22, 1990, the King County Prosecutor filed an information charging Gregory Simon with first degree promotion of prostitution, alleging that Simon "did knowingly advance and profit from the prostitution of Bobbie J. Bartol, a person who was less than 18 years old", in violation of RCW 9A.88.070(1)(b). «1»


«1» The information incorrectly spelled Simon's name "Simons", and the correct spelling of "Bartol" is "Bartall".


One day before trial, the prosecutor amended the information to charge both this means of committing first degree promotion of prostitution and the means requiring the use of threat or force. Specifically, the amended information alleged that Simon

did knowingly advance and profit by compelling Bobbie J. Bartol by threat and force to engage in prostitution; and did advance and profit from the prostitution of Bobbie Bartol, a person who was less than 18 years old;

Contrary to RCW 9A.88.070(1)(a) and (b), and against the peace and dignity of the state of Washington.

At trial, Simon did not object to the adequacy of the amended information, and both the State and the defense understood that, with regard to the second means of committing the crime, the State had the burden of proving that Simon knew Bobbie Bartall was under 18.

A jury found Simon guilty. On appeal, Simon argued for the first time that the amended information was defective as to the second means of promoting prostitution because it failed to allege that Simon knew Bartall was under 18. The Court of Appeals agreed and dismissed that portion of the information.

Simon also argued on appeal that there was insufficient evidence that he promoted prostitution by use of threat or force. The Court of Appeals determined that the evidence supported that means, but, because the court could not determine whether the jury was unanimous as to that means, it remanded for a new trial. The court also rendered holdings on two evidentiary arguments raised by Simon, finding one of them to have merit. State v. Simon, 64 Wn. App. 948, 831 P.2d 139 (1991).

[1, 2] A charging document is constitutionally adequate only if all essential elements of a crime, statutory and nonstatutory, are included in the document so as to apprise the defendant of the charges against him and to allow him to prepare his defense. State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992); State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). Where, as here, a charging document is challenged for the first time on review, however, the document is liberally construed in favor of validity. Kjorsvik, at 105.

The State concedes that knowledge that the prostitute was under 18 is a necessary element of the second means of committing first degree promotion of prostitution. Accord, State v. Shipp, 93 Wn.2d 510, 519, 610 P.2d 1322 (1980). The information, however, alleged that Simon "did knowingly advance and profit by compelling Bobbie J. Bartol by threat and force to engage in prostitution; and did advance and profit from the prostitution of Bobbie Bartol, a person who was less than 18 years old." (Italics ours.) The Court of Appeals held that this language, even when liberally construed, does not allege knowledge of age as an element of the second means of committing the crime.

[3] We agree. By simple rules of sentence structure and punctuation, the term "knowingly", as used in the information, does not refer to the second means of committing the crime. The information must be written in such a manner as to enable persons of common understanding to know what is intended. Kjorsvik, at 110; RCW 10.37.050. No one of common understanding reading the information would know that knowledge of age is an element of the charge of promoting prostitution of a person under 18.

The State contends, however, that the Court of Appeals erred in dismissing outright the charge of promoting prostitution of a person under 18. It argues that the proper remedy for a conviction based on a defective information is to reverse and remand for a new trial.

[4] Reversal and remand for a new trial is not a proper remedy. Nonetheless, the State correctly argues that outright dismissal of the charge is not appropriate either. That the Court of Appeals dismissed the charge outright is clear from its opinion: the court expressly dismissed the charge of promoting prostitution of a person under 18 and remanded for retrial only the charge of promoting prostitution by use of threat or force. State v. Simon, supra at 965. The proper remedy for a conviction based on a defective information is dismissal without prejudice to the State refiling the information. State v. Markle, 118 Wn.2d 424, 440-41, 823 P.2d 1101 (1992); State v. Anderson, 96 Wn.2d 739, 742, 638 P.2d 1205, cert. denied, 459 U.S. 842 (1982).

Accordingly, the Court of Appeals erred to the extent it dismissed outright the charge of promoting the prostitution of a person under 18. The State has a right to refile an information charging that means, and the decision of the Court of Appeals is affirmed and reversed in part.