City Of Seattle, Respondent V. Katherine Gaudette, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF SEATTLE,
Respondent,
v.
KATHERINE GAUDETTE,
Appellant.
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No. 81315-3-I
DIVISION ONE
ORDER WITHDRAWING
OPINION AND
SUBSTITUTING OPINION
The opinion for this case was filed on August 16, 2021. A majority of
the panel requests that the opinion filed on August 16, 2021 be withdrawn
and a substitute unpublished opinion be filed. Now therefore, it is hereby
ORDERED that the opinion filed on August 16, 2021 is withdrawn and a
substitute unpublished opinion shall be filed.
FOR THE COURT:
Judge

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF SEATTLE,
Respondent,
v.
KATHERINE GAUDETTE,
Appellant.
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No. 81315-3-I
DIVISION ONE
UNPUBLISHED OPINION
HAZELRIGG, J. — After a jury trial, Katherine Gaudette was found guilty of
the gross misdemeanor offense of trespass in the first degree. Because the to-
convict instruction provided to the jury at trial included a specific date of the alleged
first degree trespass and there is no evidence supporting that element, we remand
for dismissal and vacation of Gaudette’s conviction.
FACTS
Crystal and Joseph Anderson1 live with their children and four dogs in a
house with a wooden fence that surrounds the backyard. On August 16, 2018, at
approximately 4:00 a.m., the Andersons were awakened by their dogs frantically
barking. They each got out of bed, suspecting the commotion was due to an
animal in the backyard. When they looked in the space where the dogs were, they
1 Because they share the same last name, we refer to the Andersons by their first names
for clarity. No disrespect is intended.

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saw a pair of human hands reaching into their home through a pet door in the
exterior wall of the house. Crystal immediately screamed, but the hands continued
to move about. Joseph announced that he was getting his gun, at which point the
hands retreated out of the house. Crystal went to the kitchen window, which is
closest to the pet door, looked out the window and called 911. Joseph turned on
a light on the deck. They both saw the individual in the backyard leave through
the gate in the fence. The police arrived 20 minutes later, spoke with the couple,
took down their descriptions of the person, and looked for the suspect without
success.
Crystal then went back to bed while Joseph stayed awake. Joseph noticed
someone in the front yard about half an hour after the police had departed. Crystal
woke up, went into the living room, looked out the window, and saw a woman later
identified as Katherine Gaudette in the front yard. Gaudette was walking on a
cobblestone pathway that leads from the sidewalk to the front door of the
Andersons’ home. Joseph also saw Gaudette in the front yard. The couple
testified at trial that Gaudette was the same size and was wearing similar clothes
as the person they saw fleeing through the gate earlier in the morning. They
observed Gaudette sit down on the walkway, light a candle, play some music on
her cell phone, and begin to draw as she looked at the couple through their living
room window.
Joseph went outside to ask Gaudette to leave. Gaudette stated that she
was looking for her brother. Crystal called 911 again. As the police arrived,
Gaudette moved to the sidewalk with her belongings. The officer who contacted

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Gaudette did not observe any signs of alcohol or drug use. Gaudette’s Mercedes
was located nearby and a key to that car was found on her person when she was
searched incident to arrest for trespass. She was later also charged with violation
of an anti-harassment order that was entered as a result of this arrest, based on
her presence within 500 feet of the Andersons’ property when she retrieved her
car after being released from jail on the trespass charge.
At trial, videos from the Andersons’ Ring surveillance system2 were
admitted as exhibits. The motion-activated videos showed Gaudette approaching
the Andersons’ home multiple times. The footage was not timestamped. The
Andersons were each able to testify regarding the general timeframe during which
they believed the videos were taken. This time range was based on when the
couple had gone to bed and when they later thought to review the videos after the
police left following the second incident. Neither of them testified to a specific time
for any of the videos that were admitted.
The jury found Gaudette guilty of trespass in the first degree, a gross
misdemeanor, but acquitted her of violation of a civil anti-harassment order.
Gaudette appealed her conviction to King County Superior Court, arguing that the
trial court erred by allowing the Andersons to testify to the timing of the admitted
videos and that prosecutorial misconduct occurred such that it deprived Gaudette
2 Ring LLC manufactures home security products, including a doorbell that captures video
and pairs with an app which the user can use to view live footage on their phone. It also has the
ability to notify the user via the app when the camera senses motion or activity within a certain
range. Further, the user is able to speak through the hardware using their phone. The system stores
all video data on a cloud-based server.

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of a fair trial. The superior court determined that the testimony was not hearsay
and affirmed Gaudette’s conviction.
Gaudette timely filed a motion for discretionary review of the trial court’s
hearsay rulings, which this court granted. While her opening brief was limited to
hearsay arguments, Gaudette argues in her supplemental brief that the lack of
evidence supporting all elements contained in the to-convict instruction requires
that her conviction for trespass in the first degree must be reversed. The City
contends that issue arises from a typographical error and does not warrant any
relief on appeal.
ANALYSIS
“[T]his court has frequently recognized it is not constrained by the issues
as framed by the parties if the parties ignore a constitutional mandate, a statutory
commandment, or an established precedent.” City of Seattle v. McCready, 123
Wn.2d 260, 269, 868 P.2d 134 (1994). Appellate courts may seek out briefing
regarding issues deemed important to proper adjudication. See RAP 12.1(b).
Here, the court raised a question regarding the to-convict instruction presented to
the jury, both in written form and as orally provided by the trial judge, because the
identified error is of constitutional magnitude. See State v. Johnson, 188 Wn.2d
742, 750–51, 399 P.3d 507 (2017) (“Sufficiency review secures the fundamental
protection of due process of law”); State v. Espinosa, 8 Wn. App. 2d 353, 363–64,
438 P.3d 582 (2019) (Reversal is required unless the instructional error is “‘trivial,
or formal, or merely academic, and was not prejudicial to the substantial rights of

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the party assigning it, and in no way affected the final outcome.’” (quoting State v.
Townsend, 142 Wn.2d 838, 848, 15 P.3d 145)(2001))).
“Under both the federal and state constitutions, due process requires that
the State prove every element of a crime beyond a reasonable doubt.” Johnson,
Wn.2d at 750; U.S. CONST. amend. XIV; WASH CONST. art. I § 3.3 The law of the
case doctrine requires the prosecuting government entity to prove every element
in the to-convict instruction beyond a reasonable doubt. State v. Dreewes, 192
Wn.2d 812, 821, 432 P.3d 795 (2019). “The law of the case is an established
doctrine with roots reaching back to the earliest days of statehood.” State v.
Hickman, 135 Wn.2d 97, 101, 954 P.2d 900 (1998). The doctrine provides that
jury instructions not objected to become the law of the case. Dreewes, 192 Wn.2d
at 821. This court considers errors regarding the instructions as given. See State
v. Ng, 110 Wn.2d 32, 39, 750 P.2d 632 (1988) (the State failing to object to jury
instruction established them as “the law of the case and we will consider error
predicated on them.”).
The issue here is whether there was sufficient evidence to support
Gaudette’s conviction for trespass in the first degree, in light of the date provided
in the to-convict instruction. The to-convict instruction in this case was prepared
by the City,4 provided to jurors in written form in the instruction packets taken with
3 Because due process rights are held by the accused, regardless of whether they face
criminal charges in municipal, district or superior court, municipal prosecutors are held to the same
standards, and carry the same burden of proof, as prosecutors presenting criminal charges on
behalf of the State.
4 The record demonstrates that the cited version of the City’s proposed to-convict
instruction included the correct date. The defense did not submit a proposed to-convict
instruction. At the court’s request, the City provided the uncited to-convict instruction that included
the erroneous date.

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them into deliberation, and also presented orally by the trial judge prior to closing
arguments of the parties.
“In assessing the sufficiency of the evidence, the court must view the
evidence in the light most favorable to the State and decide whether any rational
trier of fact could have found the elements of the crime beyond a reasonable
doubt.” State v. Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008). A challenge
to sufficiency of the evidence acknowledges the truth of the State’s evidence. Id.
Here, the to-convict instruction as to the trespass in the first degree charge read:
To convict the defendant of the crime of Criminal Trespass in
the First Degree, each of the following elements of the crime must
be proved beyond a reasonable doubt:
(1) That on or about the 16th day of October, 2018, the
defendant knowingly entered or remained in a building;
(2) That the defendant’s entry or remaining in the building was
unlawful;
(3) That the defendant knew that the entry or remaining in the
building was unlawful; and
(4) That the building was located in the City of Seattle.
If you find from the evidence that each of these elements has
been proved beyond a reasonable doubt, then it will be your duty to
return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have
a reasonable doubt as to any one of these elements, then it will be
your duty to return a verdict of not guilty.
(Emphasis added).
Gaudette argues that given the date specified in the to-convict instruction,
insufficient evidence supports Gaudette’s conviction for trespass in the first
degree. All of the testimony adduced at trial went to events that occurred on the
Andersons’ property in the early morning hours on August 16, 2018, culminating
in Gaudette’s arrest on that same date. There is no evidence to connect the
allegations brought by the City against Gaudette to any date in October 2018.

No. 81315-3-I/7
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Further, the City’s arguments in supplemental briefing are predicated on an implicit
concession that the date included in this critical jury instruction is unsupported by
the evidence. We agree with the parties that insufficient evidence supports
Gaudette’s conviction for criminal trespass on October 16, 2018.
We find guidance in Hickman, wherein the State included the wrong county
in the to-convict instruction; the crime was alleged to have been committed in King
County, rather than Snohomish County as erroneously stated in the instruction.
135 Wn.2d at 100–101. The jury returned a verdict of guilty and Hickman argued
on appeal that the State assumed the burden to prove the added element that the
crime was committed in Snohomish County, Washington, but failed to do so. Id.
at 101. Our state’s Supreme Court determined that the State had taken on the
burden to prove the crime occurred in Snohomish County when it failed to object,
thereby accepting, the included element in the instruction. Id. at 100–02. The
Supreme Court went on to note “the law of the case doctrine benefits the system
by encouraging trial counsel to review all jury instructions to ensure their propriety
before the instructions are given to the jury.” Id. at 105. Further, the court in
Hickman explained that CrR 6.15(c) reiterates this notion by requiring all objections
to jury instructions be made before the instructions are given. Id. The Supreme
Court went on to dismiss Hickman’s conviction for insurance fraud based on the
State’s failure to prove the added venue element. Id. at 105–06.
The case before us further illustrates the importance of diligence on the part
of the government when seeking a criminal conviction. A prosecutor functions as
the representative of the people in a quasijudicial capacity in searching for justice.

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State v. Hawkins, 14 Wn. App. 2d 182, 188, 469 P.3d 1179 (2020). “The
prosecutor owes a duty to defendants to see that their rights to a constitutionally
fair trial are not violated.” State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551
(2011). A conviction sought by the prosecutor which undermines a defendant’s
rights “undermine[s] the integrity of our entire criminal justice system.” State v.
Walker, 182 Wn.2d 463, 476, 341 P.3d 976 (2015). A prosecutor is a public officer
whose devotion to duty is not measured by the number of their convictions. See
State v. Reed, 102 Wn.2d 140, 147, 684 P.2d 699 (1984).
The City argues in supplemental briefing that “[t]he mistaken date in the ‘to
convict’ instruction obviously was a typographical error.” However, the suggestion
that this court should ignore an error of this magnitude in the to-convict instruction
in criminal proceedings is contrary to the fundamental notions of due process.
“Close enough” is not a standard of proof utilized within our criminal justice system.
By submitting an erroneous to-convict instruction to the court, the City failed to
meet its weighty burden as the prosecuting entity in this case and case law is clear
as to the remedy for such an error.
Though the City argues this was a typographical error that did not mislead
the jury, we disagree. As discussed above, Hickman makes clear that the
prosecutor’s inclusion of the erroneous date bound the City to the burden to prove
that element. It is also disingenuous to minimize the inclusion of an incorrect date
of an alleged crime in an essential instruction as a mere typographical error. See
State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997) (“a ‘to convict’ instruction
must contain all of the elements of the crime because it serves as a ‘yardstick’ by

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which the jury measures the evidence to determine guilt or innocence.” (quoting
State v. Emmanuel, 42 Wn.2d 799, 819, 259 P.2d 845 (1953))); see also State v.
DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003) (“a reviewing court may not
rely on other instructions to supply the element missing from the ‘to convict’
instruction.”). That “typographical error” became an element the City was duty-
bound to prove up when it submitted the instruction. Excusing the City’s
presentation of an improper date in the to-convict instruction given at a jury trial,
where liberty interests of the accused are at stake, would fundamentally relieve the
prosecutor of its burden to prove every element beyond a reasonable doubt and
would deny the accused due process. See State v. Deal, 128 Wn.2d 693, 698–
703, 911 P.2d 996 (1996). To hold as the City posits would simply be inconsistent
with fundamental principles of the criminal justice system as set out in an
expansive body of case law spanning back to the earliest days of our statehood.
See State v. Harsted, 66 Wash. 158, 163, 119 P. 24 (1911) (“The duty always rests
upon the State of satisfying the minds of the jury beyond a reasonable doubt of the
guilt of the accused”); see also State v. Dotson, 97 Wash. 607, 609, 166 P. 769
(1917) (“Every essential element of the offense charged must be proved, and it
must be shown beyond a reasonable doubt that the offense was committed by the
defendant.”).
Finally, the City avers that the “on or about” language utilized in the to-
convict instruction resolves the sufficiency issue. However, the authority it offers
for this contention is distinguishable. In State v. Hayes, the court provided that
“[i]n sexual abuse cases where multiple counts are alleged to have occurred within

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the same charging period, the State need not elect particular acts associated with
each count so long as the evidence ‘clearly delineate[s] specific and distinct
incidents of sexual abuse’ during the charging periods.” 81 Wn. App. 425, 431,
914 P.2d 788 (1996) (quoting State v. Newman, 63 Wn. App. 841, 851, 822 P.2d
308 (1992)). Additionally, in this context, a trial court must instruct the jury that
they must be unanimous as to which act constitutes the count charged and that
they must find “‘separate and distinct acts’” for each count when the counts are
identically charged. Id. (quoting State v. Noltie, 116 Wn.2d 831, 842–43, 809 P.2d
190 (1991)). Hayes has no bearing on the matter at hand because this case is not
about sexual abuse, nor are there multiple events alleged which relate to multiple
charges. The other cases cited by the City5 either involve repeated conduct, which
is a critical factual distinction, or a discrepancy of a few days as opposed to multiple
months. We are not persuaded that the “on or about” language in the to-convict
instruction of this case can do the heavy lifting for the City to overcome this error
as to the specific date. The testimony surrounding the incident was explicit as to
events occurring on one precise day, two months prior to the date provided in the
to-convict instruction.
Given that Gaudette’s conviction is not supported by sufficient evidence, the
proper remedy is dismissal. Hickman, 135 Wn.2d at 103. When a reviewing court
finds insufficient evidence to prove an added element, reversal is required. Id.
Further, “[r]etrial following reversal for insufficient evidence is ‘unequivocally
prohibited’ and dismissal is the remedy.” Id. (quoting State v. Hardesty, 129 Wn.2d
5 State v. Williams, 124 Wash. 160, 213 P. 921 (1923); State v. Polk, 187 Wn. App. 380,
348 P.3d 1255 (2015).

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303, 309, 915 P.2d 1080 (1996)). The government may not have innumerable
chances to seek a conviction for the same alleged criminal act; when it proceeds
to trial, seeking to curtail the liberty interests of the accused, it must be prepared
to meet its burden in terms of the evidence it produces, the instruction it submits
to the court, and ultimately, the fairness of the process for the defendant.
In light of our review of the record, as well as the parties’ acknowledgement
that no evidence supports a finding of any criminal conduct by Gaudette occurring
on October 16, 2018, we find that her conviction was not supported by sufficient
evidence. We need not address the hearsay issue raised by Gaudette in her
opening brief. Accordingly, her conviction must be dismissed and vacated.
Reversed and remanded.
WE CONCUR: