The State of Washington, Respondent, v. Jason J. McCarty, Petitioner, 140 Wash. 2d 420

Sanders, J. We here review an unpublished decision of the Court of Appeals, Division Two, which affirmed Jason McCarty’s Thurston County conviction for conspiracy to deliver a controlled substance. State v. McCarty, Nos. 21095-9-II, 22303-1-II (Wash. Ct. App. Mar. 5, 1999). McCarty claims the information charging him with the conspiracy was fatally defective for want of an essential element. We agree and reverse. FACTS This case arises from a plan to sell a mythical one half pound of methamphetamine in mid-June 1995 for $2,500.

In addition to the Thurston County Sheriff’s Office and Thurston County Narcotics Task Force, the arrangement involved an ensemble cast including Jason McCarty, an Olympia attorney; Don Jordan, a police informant; Ivan Yoder, an incarcerated felon; Jerome Moore, an intermediary; and Rebecca “Becky” Andrade, a bit player. At least as early as spring 1995, police and prosecutors in Thurston County began to suspect McCarty of dealing drugs with and through his longtime client, Ivan Yoder.

Detective Donald Heinz of the Thurston County Sheriff’s Office began investigating McCarty based on information given to him by Don Jordan, his informant. Jordan told Detective Heinz he thought McCarty would accept drugs or drug money as part of a retainer for legal services. After speaking with Detective Heinz, Jordan called McCarty and arranged to meet with him in his Olympia office to discuss hiring McCarty as his attorney. Jordan later reported to Detective Heinz that he was meeting with McCarty and believed McCarty would agree to accept drugs or drug money as a retainer.

Jordan met with McCarty in McCarty’s office on June 13, 1995, apparently to discuss hiring him to appear in a hearing to recover possession of a house belonging to Jordan’s mother, which had been seized in a drug raid. Jordan testified at trial that he told McCarty: I was short of cash but that I had a couple hundred dollars on me and I had a half pound of methamphetamine that I needed to get rid of, that I had come up here to see a fellow named Ivan Yoder but Yoder was now in jail and I had no way to get rid of it. Verbatim Report of Proceedings (RP) (Mar. 12, 1996) at 124.

Jordan further asked McCarty if he would contact Yoder and tell him Jordan needed to see him “so I could dump this off and get the retainer money.” Id. Yoder was incarcerated in the Thurston County jail awaiting trial on several pending felony charges. McCarty told Jordan he would discount his usual fee of $5,000 for such a matter to $2,500 because Jordan was a friend of Yoder’s. Jordan advised McCarty that the $2,500 would come from the sale of the drugs. Jordan related this conversation to Detective Heinz and then set out to meet Yoder at the county jail.

When Jordan arrived at the jail that evening, Yoder advised him that he had already met with McCarty and was aware of Jordan’s methamphetamine. Also present during this meeting was Rebecca “Becky” Andrade, whose ultimate role in the conspiracy the record leaves opaque. At first Yoder instructed Jordan to use Becky as an intermediary to sell the drugs. During a telephone conversation the following morning, however, Yoder advised Jordan not to use Becky to consummate the sale, but rather to expect contact from Jerome Moore, another of Yoder’s associates, who would pay Jordan for the drugs.

Jordan reminded Yoder that he needed the $2,500 to pay McCarty, and Yoder replied that he would speak with McCarty and assure him the money would be coming. Moore contacted Jordan moments after this telephone conversation ended, and arranged for the methamphetamine sale. Moore told Jordan he was in contact with Yoder and could take possession of the drugs for Yoder. As Moore was on electronic home monitoring, he requested Jordan come to his house to complete the transaction. Several telephone calls ensued between McCarty, Moore, and Jordan. McCarty called Moore and asked whether he had contacted Jordan.

An envelope with Moore’s telephone number written on it was subsequently found by police in McCarty’s home. McCarty also called Jordan and indicated Yoder “cosigned” for Moore, indicating to Jordan that he was a “good guy,” and “part of the circle.” RP at 140. Jordan made arrangements with McCarty to meet at 9:40 p.m. that day at the Tumwater Inn after learning the deal between Jordan and Moore “was going down.” RP at 143. The two met that evening and Jordan gave McCarty $2,500, telling him that’s a “heck of a price” for a half pound of methamphetamine. RP at 143. McCarty asked “if the buyer was happy.” Id.

After the meeting, members of the Thurston County Narcotics Task Force moved in and arrested McCarty in his car. The $2,500 was provided by the police, who had also equipped Jordan with a wire to record his conversation with McCarty. A tape of the conversation was played to the jury. McCarty was charged on September 8, 1995, with two counts of money laundering and conspiracy to deliver a controlled substance. The money laundering counts were severed from the conspiracy count and a separate trial, not at issue in this appeal, was held on those charges.

McCarty was tried on the conspiracy charge on March 11, 1998, and the jury convicted him on March 18, 1998. The information charging McCarty with conspiracy read in full: COUNT III — CONSPIRACY TO DELIVER A CONTROLLED SUBSTANCE, RCW 69.50.401(a)(l)(

i) and 69.50.407: That the defendant, JASON J. McCARTY, in the County of Thurston, State of Washington, on or about the 14th day of June, 1995, did unlawfully conspire to deliver a controlled substance, to-wit: METHAMPHETAMINE; contrary to RCW 69.50.401(a)(l)(

i) and 69.50.407 and against the peace and dignity of the State of Washington. Clerk’s Papers (CP) at 3. McCarty did not challenge the information at trial, but challenged its sufficiency for the first time on appeal. ISSUE The sole issue before the court is whether the information charging McCarty with conspiracy to deliver methamphetamine is fatally defective because it omits a necessary element of the crime, viz., an allegation of the involvement of a person outside the agreement to deliver drugs.

DISCUSSION McCarty contends that the information unconstitutionally failed to allege a necessary common law element: that he agreed with persons involved outside the act of delivery to engage in or cause the performance of a crime. State v. Valdobinos, 122 Wn.2d 270, 280, 858 P.2d 199 (1993). U.S. Const, amend. VI requires that “[i]n all criminal prosecutions, the accused shall... be informed of the nature and cause of the accusation . . . .” Const, art.

I, § 22 (amend. 10) farther states that “[i]n criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him . . . .” Therefore an accused has a protected right, under our state and federal charters, to be informed of the criminal charge against him so he will be able to prepare and mount a defense at trial. State v. Bergeron, 105 Wn.2d 1, 18, 711 P.2d 1000 (1985). Every material element of the charge, along with all essential supporting facts, must be put forth with clarity. CrR 2.1(a)(1); State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991).

It is a well-settled rule that a charging document satisfies these constitutional principles only if it states all the essential elements of the crime charged, both statutory and nonstatutory. Kjorsvik, 117 Wn.2d at 97; State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995). If a charging document is challenged for the first time on review, however, it will be construed liberally and will be found sufficient if the necessary elements appear in any form, or by fair construction may be found, on the face of the document. Kjorsvik, 117 Wn.2d at 105.

However we note that “ £[i]f the document cannot be construed to give notice of or to contain in some manner the essential elements of a crime, the most liberal reading cannot cure it.’ ” State v. Moavenzadeh, 135 Wn.2d 359, 363, 956 P.2d 1097 (1998) (quoting State v. Campbell, 125 Wn.2d 797, 802, 888 P.2d 1185 (1995)). Thus reading the information liberally, we employ the Kjorsvik two-prong test: (1) do the necessary elements appear in any form, or by fair construction can they be found, in the information, and if so (2) can the defendant show he or she was actually prejudiced by the inartful language.

Kjorsvik, 117 Wn.2d at 105-06. If the necessary elements are not found or fairly implied, however, we presume prejudice and reverse without reaching the question of prejudice. Id. See also City of Auburn v. Brooke, 119 Wn.2d 623, 636, 836 P.2d 212 (1992) (one does not reach question of prejudice unless there is some language in the document, however inartful, relating to the necessary elements). McCarty argues the information is deficient because on its face it fails to allege the involvement of more than two people. We agree.

Conspiracy to deliver a controlled substance, unlike conspiracy in general, necessarily requires the involvement of at least three people because the crime of delivery itself necessarily involves two people. Thus a document charging conspiracy to deliver a controlled substance must allege that persons involved outside the act of delivery took

part in the conspiracy agreement. Valdobinos, 122 Wn.2d at 280; State v. Miller, 131 Wn.2d 78, 91, 929 P.2d 372 (1997). The Court of Appeals disagreed, holding: Liberally construed, the information alleging that he “did unlawfully conspire to deliver a controlled substance” necessarily implies a conspiracy of two or more persons to commit a crime, and necessarily includes the implied fact that one of them took a substantial step to further the crime. But even if we were persuaded that the information is lacking, McCarty fails to identify any prejudice whatever.

He knew the State’s theory of the case from the start. The jury was instructed that he had to conspire with two or more persons. Both in opening statement and closing argument, the prosecutor outlined the State’s proof of a conspiracy involving McCarty and four other persons — Jordan, Yoder, Moore, and Becky Andrade. State v. McCarty, Nos. 21095-9-II, 22303-1-II, slip op. at 9 (Wash. Ct. App. Mar. 5, 1999) (footnotes omitted).

Despite the dissent’s claim the above-stated holding is “unimpeachable,” Dissent at 435, the court below simply misstated the law in the following ways: First, the Court of Appeals failed to take into account the necessity of the involvement of a third person in the crime of conspiring to deliver. Nothing in the conclusory language of the information, however liberally construed, could imply anything more than a simple conspiracy — an agreement between two or more people to commit a crime. RCW 9A.28.040(1).

Although the use of the term “conspiracy” implies the involvement of two or more people, in the context of delivery of a controlled substance, it does not imply involvement of a party acting outside the incident of delivery. Second, the mere use of the term “conspiracy” does not “necessarily impl[y],” as the Court of Appeals held, State v. McCarty, slip op. at 9, that any member of the conspiracy took a substantial step in furtherance of the agreement. The mere existence of an agreement implies nothing about whether any of the conspirators acted on it.

Third, the Court of Appeals’ argument that McCarty was put on fair notice of the charges against him — “He knew the State’s theory of the case from the start,” id. — because of statements made during opening statements, closing arguments, and jury instructions, is flawed. Surely to ensure due process, the notice of the charge on which a defendant will be tried must logically be given at some point prior to the opening statement of the trial!

See Vangerpen, 125 Wn.2d at 787 (“[A]n accused must be in-formed [sic] of the criminal charge he or she is to meet at trial and cannot be tried for an offense which has not been charged.”). Fourth, the “even if” alternative holding of the Court of Appeals misstates the law governing the review of charging documents first challenged on appeal. As noted above, inconsistent with the Dissent at 428-29, we look at prejudice only if the necessary elements of the crime are first found through liberal construction in the language of the charging document.

If, as is the case here, the necessary elements are neither explicitly stated nor fairly implied, reversal follows without any inquiry into the prejudice to the defendant. Brooke, 119 Wn.2d at 638. Therefore the Court of Appeals is simply wrong that its holding could be grounded on a lack of actual prejudice even if the information was found lacking. State v. McCarty, slip op. at 9.

CONCLUSION Because the information, liberally construed and subject to the Kjorsvik two-prong test, fails on its face to set forth the essential common law element of involvement of a third person outside the agreement to deliver drugs, we presume prejudice and reverse the decision of the Court of Appeals. McCarty’s conviction is thus dismissed without prejudice to subsequent prosecution based upon a new information. Brooke, 119 Wn.2d at 640. Smith, Johnson, Madsen, and Alexander, JJ., concur.

The dissent urges a simple allegation of “Conspiracy to Deliver a Controlled Substance” would have been constitutionally sufficient because “[t]he charge itself gives the defendant all the information needed to mount a defense,” Dissent at 430, claiming all facts necessarily required to make out a charge of conspiracy to deliver must be “necessarily implie[d],” id. at 429, in the charge.

Although such a conspiracy “necessarily requires” the participation of at least three people, a constitutionally sufficient charging document must expressly state all essential elements of a crime, both statutory and nonstatutory, Kjorsvik, 117 Wn.2d at 101-02, to pass muster. Furthermore, the dissent claims our reliance upon Valdobinos and Miller misses a “difference [that] is crucial” between charging documents and jury instructions, Dissent at 430, asserting jury instructions, apparently unlike charging documents, must be “exactingly precise.” Dissent at 431.

Jury instructions are sufficient if they “correctly state applicable law, are not misleading, and permit counsel to argue their theory of the case.” State v. Brown, 132 Wn.2d 529, 618, 940 P.2d 546 (1997). However since both charging documents and jury instructions must identify the essential elements of the crime for which the defendant is charged (information) and tried (jury instructions), the dissent’s distinction is without a difference.