The State of Washington, Respondent, v. Aaron Borrero, Petitioner, 147 Wash. 2d 353

Ireland, J. — Defendant Aaron Borrero sought review of a Court of Appeals decision affirming his conviction for first degree kidnapping and attempted first degree murder. At issue is whether the information charging Borrero was constitutionally deficient because it used the term “attempt” rather than “substantial step” to describe Borrero’s alleged criminal conduct. We hold that because the plain meaning of “attempt” conveys the substantial step element, Borrero was given the required notice of the crime charged.

Also at issue is whether an erroneous accomplice liability jury instruction denied Borrero his due process rights. We hold that because the error in the jury instruction did not relieve the State of its burden to prove every element necessary to constitute the charged crimes, the error was harmless. We affirm the judgment and sentence. FACTS AND PROCEDURAL HISTORY Aaron Borrero and Kyle Anderson were each charged with first degree kidnapping and first degree assault in an information filed in King County Superior Court on April 1, 1997.

The charges arose from binding and abducting Leslie Lemieux and from throwing Lemieux into a river. An amended information, adding Michael Vaughn as a codefendant to both charges and removing Anderson as a defendant to the assault charge, was filed on April 21,1997. Borrero and Vaughn were allowed to sever their trials from that of Anderson. Vaughn subsequently negotiated a plea agreement under which he would be allowed to plead guilty to a single count of first degree kidnapping in return for his testimony against Borrero and Anderson. A second amended information was filed on October 20, 1997.

The information charged both Borrero and Anderson with first degree kidnapping while armed with deadly weapons. In addition, the information amended the first degree assault count to attempted first degree murder. Borrero’s jury trial commenced before King County Superior Court Judge Michael J. Fox on February 9, 1998. At trial, Lemieux testified that in March 1997, he took a duffel bag containing 30 pounds of marijuana to Anderson’s home in order to complete a prearranged sale with Anderson.

When Lemieux walked through a doorway in the house, Borrero stepped out, pointed a pistol at him, and ordered him to lie face down. Another man, who was later identified as Vaughn, held a shotgun to the back of the victim’s head. Borrero bound the victim’s hands and feet with speaker wire, bound his hands and feet together, and stuffed him into a duffel bag. Lemieux was then carried to the back of his Jeep. After being driven around for several hours, Lemieux testified he was taken from the vehicle while still hog-tied and thrown into the Yakima River by Borrero and Vaughn.

Lemieux managed to break the bond between his hands and feet and to reach the riverbank without being observed by his assailants. The victim then contacted a passing motorist, who summoned police. Borrero was arrested in California two months later. In his trial testimony, Vaughn testified that he, Borrero, and Anderson planned to rob Lemieux and then drown him. Vaughn corroborated the events described by Lemieux. He stated that Anderson seized the marijuana while Lemieux was held at gunpoint. Borrero testified that he was not present and was not involved in any way with what happened to Lemieux.

When the State had rested, Borrero moved to dismiss the attempted first degree murder charge, arguing that the information failed to allege the “substantial step” element of the offense. The court denied the motion. Borrero also objected to the accomplice liability jury instruction.

The State’s proposed instruction was based on the standard WPIC 10.51 (11 Washington Pattern Jury Instructions: Criminal (2d ed. 1994)), but included an additional sentence derived from the comment to the pattern instruction that “an accomplice may be convicted even though the other person is not prosecuted or convicted.” Verbatim Report of Proceedings (Mar. 9, 1998) at 10-11. While maintaining his objection to the instruction, Borrero proposed that the language be changed to read as follows: “An accomplice may be tried for the crime even though another person is not prosecuted.” Id. at 14.

The court gave the instruction as proposed by Borrero. Borrero was convicted on both counts, including a special verdict finding of a deadly weapon enhancement on the kidnapping charge. The court imposed standard range concurrent sentences of 156 months for kidnapping in the first degree (including a firearm enhancement of 60 months) and 275 months for attempted murder in the first degree.

Borrero appealed his conviction to Division One of the Court of Appeals, contending that the information was insufficient because it “did not allege all necessary statutory elements” of the crime of attempted first degree murder. Br. of Appellant at 1. In addition, Borrero assigned error to the accomplice liability jury instruction given by the trial court. The Court of Appeals affirmed Borrero’s conviction, holding that the use of the word “attempt” in the information sufficiently apprised the defendant of the “substantial step” element required for the crime of attempted murder. State v. Borrero, 97 Wn.

App. 101, 106, 982 P.2d 1187 (1999). This court first deferred Borrero’s petition for review pending a decision in State v. Taylor, 140 Wn.2d 229, 996 P.2d 571 (2000). The petition was then granted, and the case was remanded to the Court of Appeals for consideration in light of State v. McCarty, 140 Wn.2d 420, 998 P.2d 296 (2000). State v. Borrero, 141 Wn.2d 1010, 10 P.3d 407 (2000). In its subsequent unpublished opinion, the Court of Appeals adhered to its original decision. State v. Borrero, noted at 103 Wn. App. 1045 (2000). Borrero then filed a second petition for review, which was also granted. State v.

Borrero, 143 Wn.2d 1019, 25 P.3d 1019 (2001). Borrero renewed his challenge to the sufficiency of the information. In addition, he contended that the accomplice liability instruction given at trial denied his due process rights because the jury was given the same accomplice instruction found to be erroneous in State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000) and State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000). Borrero argued that the erroneous instruction relieved the State of its burden to prove every element necessary to constitute the charged crime.

ANALYSIS Issues Whether an information that charges attempted first degree murder but does not expressly allege the “substantial step” element of criminal attempt is constitutionally insufficient when the document is challenged prior to verdict. Whether a jury instruction denies the defendant’s due process rights if “a” rather than “the” modifies the word “crime” in specifying accomplice liability for a charged crime under the facts of this case. The documents at issue are the information charging Borrero with attempted murder and the jury instruction concerning accomplice liability.

Sufficiency of Information “[A] charging document must include all essential elements of a crime.” Taylor, 140 Wn.2d at 236. This “essential elements rule” is grounded in the federal and state constitutional requirements that criminal defendants be informed of the accusations against them. Id. The United States Constitution provides that “[i]n all criminal prosecutions, the accused shall... be informed of the nature and cause of the accusation.” U.S. Const, amend. VI.

The Washington Constitution contains a similar provision: “In criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation against him [and] to have a copy thereof.” Const, art. I, § 22.

Also, as established by court rule, the initial pleading by the State in all criminal proceedings is to be “a plain, concise and definite written statement of the essential facts constituting the offense charged.” CrR 2.1(a)(1). “[A]ll essential elements of a crime ... must be included in the charging 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). “When a conviction is reversed due to an insufficient charging document, the result is a dismissal of charges without prejudice to the right of the State to recharge and retry the offense for which the defendant was convicted or for any lesser included offense.” State v. Vangerpen, 125 Wn.2d 782, 791, 888 P.2d 1177 (1995). “The standard of review for evaluating the sufficiency of a charging document is determined by the time at which the motion challenging its sufficiency is made.” Taylor, 140 Wn.2d at 237.

When a charging document is challenged for the first time after the verdict, it is to be “liberally construed in favor of validity.” State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). In contrast, however, when an information is challenged before the verdict, as it was in the instant case, “the charging language must be strictly construed.” Taylor, 140 Wn.2d at 237. “The two distinct standards of review encourage prosecuting attorneys to file sufficient complaints, and also encourage defendants to make timely challenges to defective charging documents to discourage ‘sandbagging.’ ” Id. at 237 n.32.

State v. Johnson addressed pretrial challenges to informations alleging unlawful delivery of a controlled substance. The Johnson court stated as follows: The charging documents in these cases are not to be examined to determine whether the missing elements appear in any form, or by fair construction can be found, and the language must not be “inartful or vague” with respect to the elements of the crime. Rather, due to the context of a pretrial challenge, we construe the charging language strictly .... State v. Johnson, 119 Wn.2d 143, 149-50, 829 P.2d 1078 (1992) (quoting Kjorsvik, 117 Wn.2d at 106).

Applying its strict construction standard, the Johnson court determined that the term “unlawfully” in the information was not sufficient to allege the essential guilty knowledge element of the crime charged. Id. at 150. In State v. Vangerpen, a strict construction case where the charging document was challenged just after the State rested its case, the court held that the remedy for an information’s failure to include the essential element of premeditation was reversal of the defendant’s attempted first degree murder conviction. Vangerpen, 125 Wn.2d at 795.

The Vangerpen court stated that “[mjerely citing to the proper statute and naming the offense is insufficient to charge a crime unless the name of the offense apprises the defendant of all of the essential elements of the crime.” Id. at 787. In a subsequent case, State v. Chaten, where the defendant challenged the information immediately upon the State resting, the Court of Appeals applied the strict standard of review to the defendant’s claim that the information which charged him with second degree assault did not explicitly state the essential element of intent. State v. Chaten, 84 Wn.

App. 85, 87, 925 P.2d 631 (1996). The Chaten court held that the information was nonetheless sufficient “because an assault is commonly understood to be an intentional act.” Id. at 86. Likewise, the Taylor court recently stated that “[t]he charging document need not state the statutory elements of the offense in the precise language employed in the statute, but may ‘use words conveying the same meaning and import as the statutory language.’ ” Taylor, 140 Wn.2d at 235-36 (quoting State v. Leach, 113 Wn.2d 679, 689, 782 P.2d 552 (1989)).

Again construing a charging document strictly when the challenge to the complaint was made prior to voir dire, the Taylor court held that alleging the defendant’s actions included “ ‘pushing, kicking and punching the victim in the face’ ” was sufficient to implicitly constitute the intent element of assault in the fourth degree. Id. at 242 (quoting charging document).

In the case before us, the charging statute for first degree murder provides that a person is guilty of the crime when “[w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person[.]” RCW 9A.32.030(l)(a). A person with the requisite intent is guilty of criminal attempt if “he or she does any act which is a substantial step toward the commission of [the intended] crime.” RCW 9A.28.020(1). “A ‘substantial step’ is conduct strongly corroborative of the actor’s criminal purpose.” State v. Aumick, 126 Wn.2d 422, 427, 894 P.2d 1325 (1995).

The information in the instant case charged Borrero in the statutory language that defines first degree murder: “[The defendant] with premeditated intent to cause the death of another person did attempt to cause the death of Leslie Lemieux, a human being.” Clerk’s Papers (CP) at 24. Borrero contends that the information is insufficient because it failed to also state the “substantial step” toward the commission of the charged crime.

It is important to note that Borrero’s challenge, made just after the State rested, is directed to the charging document rather than to the jury instructions concerning attempted murder. The trial court instructed the jury as to the elements of attempted murder in the first degree, including the following definition: “A substantial step is conduct which strongly indicates a criminal purpose and which is more than mere preparation.” CP at 52.

The defendant asserts that because the “substantial step” language was omitted from the information, he was not sufficiently informed of the charges against him and was not able to adequately prepare his defense. The Court of Appeals set out the differing purposes of a jury instruction and an information as follows: The purpose of a jury instruction is to provide the jury with the applicable law to be applied in the case. On the other hand, the purpose of an information is to give a defendant notice of the crime with which he or she is charged.

Because of these different purposes, jury instructions must necessarily contain more complete and precise statements of the law than are required in an information. Borrero, 97 Wn. App. at 107. The Court of Appeals has held that the term “attempt” encompasses the statutory definition of attempted murder, including the substantial step element, when a charging document was reviewed for validity under the liberal standard applied to a postverdict challenge. State v. Rhode, 63 Wn. App. 630, 636, 821 P.2d 492 (1991).

Here, we must determine if “attempt” also adequately apprises the defendant of the substantial step toward the commission of first degree murder when the charging document is strictly construed. As the Court of Appeals suggests, we must determine whether the word “attempt,” as commonly understood, conveys the element of “substantial step.” The Court of Appeals properly seeks the plain meaning of “attempt” in dictionary

definitions. Borrero, 97 Wn. App. at 105-06. The term is defined as “to make an effort to do, accomplish, solve, or effect.” Webster’s Third New International Dictionary 140 (1993). Synonyms of “attempt” include “try,” “endeavor,” and “strive.” Merriam-Webster’s Collegiate Dictionary 74 (1998). The Taylor court found that “[application of a strict standard of review does not alter the plain meaning of ‘assault.’ ” Taylor, 140 Wn.2d at 242. Likewise, construing “attempt” strictly does not change this word’s fundamental meaning.

It can reasonably be concluded that the element of “substantial step” is conveyed by the word “attempt” itself. Despite the failure to include an explicit reference to “substantial step” in the information, Borrero had notice of that element because the word “attempt” conveyed the same meaning and import. The allegation that Borrero attempted to cause Lemieux’s death put the defendant on notice that he could defend himself by showing that he did not take a substantial step (make an effort) to commit murder.

The information sufficiently informed Borrero of the nature of the accusation against him so that he was able to prepare his defense to the crime charged. Accomplice Liability Instruction “The State must prove every essential element of a crime beyond a reasonable doubt for a conviction to be upheld.” State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). To instruct the jury in a manner that would relieve the State of this burden is reversible error. Id. at 714.

In the case before us, the trial court instructed the jury about accomplice liability in instruction 20, which states as follows: A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not. A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either: (1) solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or agrees to aid another person in planning or committing a crime.

The word “aid” means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice. An accomplice may be tried for the crime, even though another person is not prosecuted. CP at 55.

The trial court instructed the jury that an accomplice must have knowledge that his or her actions will promote or facilitate the commission of “a” crime rather than the statutory language of “the” crime as provided in RCW 9A.08.020(3)(a). The Roberts and Cronin courts held that for accomplice liability to attach, the defendant must not merely aid in any crime, but must knowingly aid in the commission of the specific crime charged. Roberts, 142 Wn.2d at 509-13; Cronin, 142 Wn.2d at 578-80.

Witnesses at Borrero’s trial testified that before committing the charged crimes of kidnapping and attempted murder, the defendant also participated in the assault and robbery of Lemieux. Borrero argues that by relying on the erroneous instruction, the jury could have believed that his participation in the uncharged assault or robbery would trigger his liability as an accomplice for the charged crimes. Therefore, the jury could have found Borrero guilty of kidnapping and attempted murder as an accomplice to Anderson and Vaughn because he facilitated some other uncharged crime.

It is clear from the record that the jury considered the accomplice instruction. During deliberations, the foreman sent the following inquiry to the court: “Which instructions apply to which counts? Specifically instruction #20, does it apply to all counts or only the attempted murder charge.” CP at 31. Judge Fox responded, “Instruction No. 20 applies to both counts.” Id. From this exchange, it appears that despite the erroneous instruction, accomplice liability was considered only in terms of the charged crimes. The jury proceeded as though the proper instruction had been given.

Borrero’s defense was that he was not present and was not involved with the kidnapping and attempted murder of Lemieux. If the jury found he was actually present, the testimony of Lemieux and Vaughn provides a sufficiency of the evidence to find Borrero liable as a principal for both charged crimes. There was no allegation that Borrero was assisting from afar. If the jury had believed that he was not present, Borrero’s defense would have required an acquittal. In either event, the use of the improper

article in the jury instruction would be immaterial. Under the facts of this case, the erroneous accomplice liability instruction was harmless because it did not relieve the State of its burden to prove every element of the crimes charged beyond a reasonable doubt.

Summary In sum, we hold that Borrero was afforded adequate notice of the nature of the charges against him and that the erroneous accomplice liability instruction was harmless because it did not relieve the State of its burden to prove every element of the charged crimes. Therefore, we affirm Borrero’s conviction and sentence for first degree kidnapping and attempted first degree murder. Smith, Bridge, and Owens, JJ., concur. The Roberts and Cronin decisions were issued a few days after the Court of Appeals decision on remand in Borrero.

In contrast, under the liberal standard applied to a challenge raised for the first time on appeal, it was held that the word “unlawfully” in the information sufficiently alleged the intent to steal element of the crime of robbery. Kjorsvik, 117 Wn.2d at 108-11.