FILED OCTOBER 15, 2020 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 DIVISION THREE

STATE OF WASHINGTON, ) No. 37023-2-III ) Respondent, ) ) v. ) OPINION PUBLISHED ) IN PART ZACHARY P. BERGSTROM, ) ) Appellant. )

LAWRENCE-BERREY, J. — Zachary Bergstrom appeals his convictions for three

counts of bail jumping and one count of escape from community custody. The argument

he raises that we deem worthy of publishing is whether he was denied his due process

right of having the jury instructed on every element of the three bail jumping charges.

We hold that the pattern instruction given by the trial court failed to instruct the jury on

every element of bail jumping, but the error was harmless beyond a reasonable doubt. In

so holding, we decline to follow State v. Hart,

,

(2016).

In the unpublished portion of this opinion, we reverse Bergstrom’s conviction on the

January 12, 2018 bail jumping count due to ineffective assistance of counsel. We

otherwise affirm. No. 37023-2-III State v. Bergstrom

FACTS

The State originally charged Zachary Bergstrom with one count of possession of a

controlled substance. At Bergstrom’s September 22, 2017 initial court appearance, the

trial court set bail at $2,500, advised Bergstrom he was required to appear at all court

dates, and set Bergstrom’s arraignment for October 4, 2017. After his arraignment,

Bergstrom secured a $2,500 surety bond and was released from jail.

Three failures to appear (bail jumping)

On November 3, 2017, the trial court entered a scheduling order, setting a pretrial

conference for January 12, 2018, at 10:30 a.m. Bergstrom and his attorney signed the

order, acknowledging their approval of the date and time. Bergstrom failed to appear at

the pretrial conference. The trial court later issued a bench warrant for Bergstrom’s

arrest.

On February 28, 2018, the trial court entered a second scheduling order setting a

pretrial conference for May 4, 2018. Bergstrom and his attorney signed the order,

acknowledging their approval of the date and time.

On April 5, 2018, the trial court entered an order releasing Bergstrom on April 10

for a drug evaluation. The order also required Bergstrom to appear for drug court on

April 11 at 3:00 p.m. and again on April 18 at 3:00 p.m. Bergstrom and his attorney

2 No. 37023-2-III State v. Bergstrom

signed the order. Bergstrom failed to appear for drug court on April 18, and the drug

court entered an order authorizing a bench warrant. Bergstrom also failed to appear for

his May 4, 2018 pretrial conference. The trial court later issued a bench warrant.

Escape from community custody

While out of custody, Bergstrom was under community supervision and was

required to regularly report in person to Officer Jeremy Wilson. Officer Wilson directed

Bergstrom to report in person to him on April 17, 2018, and gave Bergstrom a card with

the appointment date and time on the back. Bergstrom failed to report on that date, or any

other dates, until he was arrested on other charges.

Trial

The State amended the original possession charge by adding three counts of bail

jumping and one count of escape from community custody. At trial, the State called two

deputy court clerks to substantiate the bail jumping charges. Through them, the State

offered several certified court records to buttress their testimony that Bergstrom failed to

appear in court as ordered on January 12, 2018, April 18, 2018, and May 4, 2018. The

State also called Officer Wilson, who substantiated the escape from community custody

charge.

3 No. 37023-2-III State v. Bergstrom

Bergstrom testified on his own behalf. He did not deny he knew of the court dates

he missed nor did he claim it was someone else’s signature on the certified court records.

Instead, he testified he failed to appear at the January 12, 2018 hearing because he was in

a hospital at the time. According to Bergstrom, he contacted his bonding company while

in the hospital and, a day or two later, he went to the bonding company with papers

showing he had been in the hospital. Bergstrom testified that despite these papers, the

bonding company surrendered him to the jail.

After both sides presented their cases, the trial court instructed the jury. Bergstrom

did not object to any of the court’s instructions. The jury returned a verdict of not guilty

on the charge of possession of a controlled substance and guilty on all other charges. The

trial court entered its judgment and sentence, and Bergstrom timely appealed.

ANALYSIS

A. DUE PROCESS CHALLENGE TO BAIL JUMPING TO-CONVICT INSTRUCTIONS

Bergstrom argues the trial court’s three bail jumping to-convict instructions

violated his right to due process because the instructions relieved the State of its burden to

prove each element of the charges. We agree, but conclude the error was harmless

beyond a reasonable doubt.

4 No. 37023-2-III State v. Bergstrom

To understand Bergstrom’s argument, we must compare the elements of bail

jumping with the trial court’s bail jumping to-convict instructions.

To convict a defendant of bail jumping, the State must prove beyond a reasonable

doubt that the defendant (1) was held for, charged with, or convicted of a particular

crime, (2) was released by court order or admitted to bail with the requirement of a

subsequent personal appearance, and (3) knowingly failed to appear as required. State v.

Williams,

,

(2007); RCW 9A.76.170(1).

Compare those elements with the three bail jumping to-convict instructions given

by the trial court:

(1) That on or about January 12, 2018, the defendant failed to appear before a court; (2) That the defendant was charged with possession of a controlled substance, a crime under RCW 69.50.4013(1), a class C felony; (3) That the defendant had been admitted to bail with the knowledge of the requirement of a subsequent personal appearance before that court; and (4) That any of these acts occurred in the State of Washington.

CP at 148 (Instruction 14).

(1) That on or about April 18, 2018, the defendant failed to appear before a court; (2) That the defendant was charged with possession of a controlled substance, a crime under RCW 69.50.4013(1), a class C felony; (3) That the defendant had been released by court order with knowledge of the requirement of a subsequent personal appearance before that court; and

5 No. 37023-2-III State v. Bergstrom

(4) That any of these acts occurred in the State of Washington.

CP at 150 (Instruction 16).

(1) That on or about May 04, 2018, the defendant failed to appear before a court; (2) That the defendant was charged with Possession of a Controlled Substance, a crime under RCW 69.50.4013(1), a class C felony; (3) That the defendant had been released by court order with knowledge of the requirement of a subsequent personal appearance before that court; and (4) That any of these acts occurred in the State of Washington.

CP at 152 (Instruction 18).

The three instructions were patterned from 11A Washington Practice: Pattern Jury

Instructions: Criminal 120.41, at 570 (4th ed. 2016).

Bergstrom argues the bail jumping to-convict instructions relieved the State of its

burden of proving he knowingly failed to appear as required. He contends the

instructions allowed him to be convicted even if he was not given notice of the specific

court dates he allegedly missed. The State argues that we should refuse to review this

unpreserved claim of error. We disagree.

Unpreserved claims of manifest error involving a constitutional right are

reviewable. RAP 2.5(a)(3). Bergstrom raises such a claim. First, Bergstrom’s claim

actually involves a constitutional right. A trial court’s failure to instruct the jury as to

6 No. 37023-2-III State v. Bergstrom

every element of the crime charged violates due process. State v. Aumick,

,

(1995).

Second, the claimed error is manifest. An error is manifest if there is actual

prejudice—meaning a plausible showing by the appellant that the asserted error had

practical and identifiable consequences at trial. State v. Irby,

,

(2015). To determine whether this standard is met, “the appellate court must

place itself in the shoes of the trial court to ascertain whether, given what the trial court

knew at that time, the court could have corrected the error.” State v. O’Hara,

,

(2009). “If the trial court could not have foreseen the potential

error or the record on appeal does not contain sufficient facts to review the claim, the

alleged error is not manifest.” State v. Davis,

,

(2012).

Here, if the to-convict instructions given did not require the State to prove that Bergstrom

knowingly failed to appear as required, the trial court reasonably should have known the

instructions were erroneous and could have corrected the error by giving appropriate to-

convict instructions.

A review of the bail jumping to-convict instructions makes it apparent the

instructions did not require the State to prove that Bergstrom knowingly failed to appear

as required. The first element in the to-convict instruction required the State to prove that

7 No. 37023-2-III State v. Bergstrom

Bergstrom failed to appear on the dates alleged in the particular counts. But no element

in the to-convict instruction required the State to prove Bergstrom knew he was required

to appear on the dates alleged in the particular counts. The knowledge element in

RCW 9A.76.170(1) requires the State to prove that the defendant was given notice of the

required court dates. Williams,

; see also State v. Fredrick,

,

(2004); State v. Carver,

,

(2004).

The State urges us to follow Hart,

. There, Division Two of this

court held that an instruction similar to the one given here correctly stated the law.

Division Two concluded that the third part of the instruction, “‘knowledge of the

requirement of a subsequent personal appearance before the court,’” was sufficient.

(second emphasis added). We disagree. A subsequent court appearance means

“any” subsequent court appearance. That is, a defendant could receive notice to appear

on May 10—a subsequent court appearance. If the defendant failed to appear on May 17,

a date he did not know he had to appear, he could nevertheless be convicted because he

received notice to appear on May 10.

8 No. 37023-2-III State v. Bergstrom

Because the to-convict instructions did not require the State to prove an element of

bail jumping—that Bergstrom knowingly failed to appear as required—we conclude the

trial court violated Bergstrom’s right to due process.1

However, jury instructions that omit an element of the crime charged are subject to

harmless error analysis. State v. Brown,

,

(2002). An

instruction that omits an element is harmless error if, beyond a reasonable doubt, the error

did not contribute to the verdict.

For instance, if the omitted element is supported by

uncontroverted evidence, the error is harmless.

Here, the uncontroverted evidence established that Bergstrom received notice he

was required to attend court on January 12, 2018, April 18, 2018, and May 4, 2018. We

conclude the trial court’s instructional errors were harmless beyond a reasonable doubt.

A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder,

having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,

it is so ordered.

1 Our concurring colleague says this reading is strained. But it is what the instructions literally say. Trial courts, rather than resorting to the pattern instruction that the jury may misunderstand, should instruct the jury using the elements as set forth in Williams,

. Trial courts should add the charged date after the third Williams element and include the jurisdictional element as the fourth element.

9 No. 37023-2-III State v. Bergstrom

B. UNCHARGED ALTERNATIVE MEANS

Bergstrom claims the trial court violated his constitutional right to notice of

charges against him by instructing the jury on an alternative means of committing escape

from community custody, which was not charged in the information.2

The Washington Constitution guarantees a defendant the right to be given notice

of the charges against him. WASH. CONST. art. I, § 22. To that end, when a statute

provides multiple alternate means of committing a specific crime, the defendant has the

right to have notice of the means of committing the offense the State is accusing him of.

In re Pers. Restraint of Brockie,

,

(2013). We conclude

Bergstrom waived this argument by failing to object below.

An appellate court may refuse to review any claim of error that was not raised in

the trial court. RAP 2.5(a). This rule encourages parties to make timely objections, gives

2 RCW 72.09.310 provides in relevant part: An inmate in community custody who willfully discontinues making himself or herself available to the department for supervision by making his or her whereabouts unknown or by failing to maintain contact with the department as directed by the community corrections officer shall be deemed an escapee and fugitive from justice . . . . (Emphasis added.) Here, the State charged Bergstrom with escape from community custody by alleging he “willfully discontinue[d] making himself . . . available to the department for supervision by making his . . . whereabouts unknown.” CP at 131. But the trial court instructed the jury a person is guilty of escape if he “fail[ed] to maintain contact with the department as directed by the community corrections officer.” CP at 156.

10 No. 37023-2-III State v. Bergstrom

the trial judge an opportunity to address an issue before it becomes an error on appeal,

and promotes the important policies of economy and finality. O’Hara,

.

As noted above, some unpreserved claims of error may be reviewed, such as a

claim of “manifest error affecting a constitutional right.” RAP 2.5(a)(3). “Manifest,”

within the meaning of this rule, requires a showing of actual prejudice. O’Hara,

. To demonstrate actual prejudice, the appellant must make a plausible

showing that the asserted error had practical and identifiable consequences in the trial of

the case.

In determining whether the error was identifiable, the trial record must be

sufficient to determine the merits of the claim.

In addition, the appellant must

establish the error was reasonably obvious to the trial court, given what it knew at the

time.

; State v. Kalebaugh,

,

(2015)

(Gonzalez, J., concurring).

Here, Bergstrom fails to argue that this claim is one of manifest error. We do not

think it is. Both parties disagree whether escape from community custody is an

alternative means crime and acknowledge the question has yet to be answered in our

appellate courts. We decline to review the claim of error because the error, if any,

certainly was not reasonably obvious to the trial court.

11 No. 37023-2-III State v. Bergstrom

C. INSUFFICIENT EVIDENCE

Bergstrom contends the evidence was insufficient to sustain the convictions on the

three counts of bail jumping. He argues his signature on the court records, showing he

had personal knowledge of the hearing dates, was unauthenticated and should not have

been admitted. He argues that because this was the only evidence he had personal

knowledge, the evidence was insufficient. We disagree.

When reviewing a challenge to sufficiency of the evidence, this court looks at

whether, in the light most favorable to the State, any rational trier of fact could have

found the defendant guilty beyond a reasonable doubt. State v. Salinas,

,

(1992). All reasonable inferences must be drawn in favor of the State

and interpreted strongly against the defendant.

Necessarily, an allegation of

insufficient evidence admits the truth of the State’s evidence and all inferences that can

be drawn from said evidence.

Certified court records are admissible. RCW 5.44.010.3 Here, the pertinent

certified court records bore signatures above the line labeled defendant’s signature and

above the line labeled attorney for defendant. A rational trier of fact could have found

3 Former RCW 5.44.010 (1997) provides: “The records and proceedings of any court of the United States, or any state or territory, shall be admissible in evidence in all cases in this state when duly certified . . . .”

12 No. 37023-2-III State v. Bergstrom

that the defendant actually signed these records and, thus, had notice of the court dates.

First, Bergstrom did not deny these documents bore his signature. Second, if an imposter

signed the documents, defense counsel would not have also signed them. We conclude

substantial evidence supports Bergstrom’s three bail jumping convictions.

D. INEFFECTIVE ASSISTANCE OF COUNSEL

Bergstrom contends his defense counsel was ineffective for not objecting to the

certified court records and for not proposing an affirmative defense to bail jumping. We

disagree in part.

This court reviews claims of ineffective assistance of counsel de novo. State v.

McFarland,

,

(1995). For claims of ineffective

assistance, a defendant must show both deficient performance from defense counsel and

resulting prejudice. Strickland v. Washington,

,

,

(1984). To show defense counsel’s performance was deficient, the defendant

must show it fell below the objective standard of reasonableness. State v. Stenson,

,

(1997). To show prejudice, the defendant must show

there is a reasonable probability counsel’s deficient performance affected the outcome of

the proceedings. State v. Jones,

,

(2015). A reasonable

probability “‘is a probability sufficient to undermine confidence in the outcome.’”

13 No. 37023-2-III State v. Bergstrom

State v. Crawford,

,

(2006) (quoting Strickland,

).

Defense counsel did not perform deficiently by failing to object to the certified

court records. As noted above, these documents were admissible.

But we do agree that defense counsel performed deficiently by failing to offer a

jury instruction on the affirmative defense to bail jumping. RCW 9A.76.170(2) provides

defendants with an affirmative defense to bail jumping in the event “uncontrollable

circumstances prevented the person from appearing or surrendering . . . [and] the person

appeared or surrendered as soon as such circumstances ceased to exist.” Here, Bergstrom

testified he was in the hospital on January 12, 2018, and he stayed with a friend after he

was discharged because he still was very ill. He testified he met with the bond company a

day or two after being discharged to show documentary proof he was in the hospital, and

the bonding company surrendered him to the jail. This testimony, if believed, warranted

an instruction on the affirmative defense.

Counsel’s deficient performance was prejudicial. His failure to request an

instruction on the available defense undermines our confidence in the verdict on this

count of bail jumping. First, the State did not offer any evidence to dispute Bergstrom’s

claim he was in the hospital on January 12, 2018. Second, the jury presumably found

14 No. 37023-2-III State v. Bergstrom

Bergstrom credible because it found him not guilty on the original charge of possession of

a controlled substance. We, therefore, reverse Bergstrom's conviction on this bail

jumping count.

Remand for resentencing.

Lawrence-Berrey, J.

I CONCUR:

15 No. 37023-2-III

KORSMO, A.CJ. (concurring)-Although I agree with the result of the majority

opinion, I do not agree with its reasoning concerning the bail jump instruction or with its

criticism of State v. Hart,

,

(2016). 1 The pattern

elements instruction for bail jumping correctly reflects the statute, even if the elements

are stated in a different order, and Hart faithfully does so. There is no problem here, but

merely a disagreement about the placement of the "knowledge" modifier.

Hart is the simplest point, so I will start there. The majority criticizes Hart for

stating one of the elements as "knowledge of the requirement of a subsequent personal

appearance." Majority at 8 (quoting Hart,

(second emphasis

added). That quote is a faithful recitation of the opening line ofRCW 9A.76.170(1):

"Any person having been released by court order or admitted to bail with knowledge of

the requirement of a subsequent court appearance .... " If the majority has a problem

with that line, it should take it up with the legislature. Division Two of this court did not

err.

1 I also note that appellant's alternative means argument on the escape from community custody charge is without merit. The majority prudently finds that the issue is not manifest error, but I would go further. RCW 72.09.310 establishes a single crime of escape by one who "willfully discontinues making himself or herself available to the department for supervision." It then defines that offense as including both those who never report to the department and those who begin and then fail to maintain contact. Appellant's argument simply repeats the discredited approach of treating the definitions of a crime as overriding the legislature's description of the offense. There is only one means of committing escape from community custody. See State v. Barboza-Cortes,

,

(2019); State v. Sandholm,

,

(2015). No. 37023-2-III State v. Bergstrom--concurrence

Prior to the amendment in 2001, the bail jumping statute had required proof that

one "knowingly fails to appear as required." Former 9A.76.170(1) (1983). The

amendment changed the knowledge requirement to specify instead proof of "knowledge

of the requirement of a subsequent appearance before any court of this state .... " LA ws

OF 2001, ch. 264, § 3. In other words, the amendment changed the element to reflect

proof of knowledge of the need to appear instead of establishing the mindset behind the

failure to appear. 2

The pattern instruction properly sets out these commands, as illustrated by the

relevant elements of the instruction used in this case:

( 1) That on or about January 12, 2018, the defendant failed to appear before a court;

(2) That the defendant had been admitted to bail with knowledge of the requirement of a subsequent personal appearance before that court;

Clerk's Papers at 148 (Instruction 14).

Mr. Bergstrom contends that the instruction was deficient in divorcing the date of

the offense from the knowledge of appearance before the court element, arguing that he

could be convicted of a crime just because he knew that he had some court appearance on

some future day. His reading is strained. In context, the instruction properly told the jury

2 As explained in an earlier Division Two opinion, the change eliminated the "I forgot" defense. State v. Carver,

,

(2004).

2 No. 37023-2-III State v. Bergstrom-concurrence

that defendant committed the crime on January 12, 2018, when he failed to appear in

court with knowledge of the requirement to appear. The third element perhaps could be

clarified, maybe by again inserting the violation date, or by restating the element as

"knowledge of the requirement to appear before the court." While such changes would

eliminate Mr. Bergstrom's argument, they are not necessary.

The pattern instruction sufficiently conveys the elements of the offense in the

statutory language. It is correct. Accordingly, I join in the judgment of the court.

~J.

3