State of Washington v. Matthew Evan Markham

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
THE STATE OF WASHINGTON,
Respondent,
v.
MATTHEW EVAN MARKHAM,
Appellant.
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No. 36835-1-III
UNPUBLISHED OPINION
KORSMO, J. — Matthew Markham appeals his Ferry County conviction for
attempting to elude a pursuing police vehicle. He contends the charging information was
constitutionally insufficient because it omitted an essential element of the crime. The
State concedes error. We accept the concession and reverse and remand for the trial court
to dismiss the conviction without prejudice.
FACTS AND PROCEDURE
On the evening of October 28, 2018, sheriff’s deputy Benjamin Cosby was in his
patrol vehicle and observed a car pass another car in a no passing zone at 80 to 90 m.p.h.
The deputy gave chase and the driver continued to speed away. The car eventually went
over a cattle guard and rolled into a field. The deputy arrested Matthew Markham at the
scene.
FILED
FEBRUARY 20, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 36835-1-III
State v. Markham
2
The State charged Mr. Markham with attempting to elude a pursuing police
vehicle. The information was filed under the 1983 version of RCW 46.61.024(1). It
alleged:
On or about the day of October 28, 2018, in the County of Ferry,
State of Washington, the above-named Defendant, as a driver of a motor
vehicle, did willfully fail or refuse to immediately bring his or her vehicle
to a stop and did drive his or her vehicle in a manner indicating a wanton or
willful disregard for the lives or property of others while attempting to
elude a pursuing police vehicle, after having been given a visual or audible
signal to bring the vehicle to a stop, said signal having been given by hand,
voice, emergency light, or siren by a uniformed police officer whose
vehicle was appropriately marked showing it to be an official police
vehicle; contrary to former Revised Code of Washington 46.61.024 (Laws
of 1983, ch. 80, § 1).
Clerk’s Papers at 1-2.
The case proceeded to a jury trial. Mr. Markham’s defense was that another man
was driving and escaped by running away in the field. The jury convicted Mr. Markham
of attempting to elude.1 He appeals.
ANALYSIS
For the first time on appeal, Mr. Markham contends the charging document
omitted an essential element of attempting to elude. Specifically, he argues the document
failed to notify him that the pursuing “vehicle shall be equipped with lights and sirens,”
1 He was also charged and convicted of misdemeanor third degree driving while
license suspended. That charge is not at issue in this appeal.

No. 36835-1-III
State v. Markham
3
as required under the version of RCW 46.61.024(1) in effect at the time of the incident.
He asserts that, without that language, the document does not afford him his
constitutional right to adequate notice under the Sixth Amendment and article I, § 22 of
the Washington Constitution. He contends prejudice is presumed and the conviction
must be reversed. The State concedes Mr. Markham’s arguments and we agree.
For an information to be constitutionally adequate, all essential elements of the
crime must be included in the charging document. State v. Kjorsvik, 117 Wn.2d 93, 97,
812 P.2d 86 (1991). The essential elements rule is grounded in the Sixth Amendment to
the United States Constitution and article I, § 22 of the Washington State Constitution.
State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013).
“‘An essential element is one whose specification is necessary to establish the
very illegality of the behavior charged.’” Id. (internal quotation marks omitted) (quoting
State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)). The essential elements rule
exists “to apprise the accused of the charges against him or her and to allow the defendant
to prepare a defense.” State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995).
We review the adequacy of a charging document de novo. State v. Johnson, 180 Wn.2d
295, 300, 325 P.3d 135 (2014).
When, as here, the defendant challenges the sufficiency of the information for the
first time on appeal, we liberally construe the language of the charging document in favor
of validity. State v. Zillyette, 178 Wn.2d at 161 (citing State v. Kjorsvik, 117 Wn.2d at

No. 36835-1-III
State v. Markham
4
105). Liberal construction requires determining whether “the necessary elements appear
in any form, or by fair construction, on the face of the document and, if so,” whether “the
defendant [can] show he or she was actually prejudiced by the unartful language.” Id. at
162 (citing Kjorsvik, 117 Wn.2d at 105-06). If the necessary elements are not found or
fairly implied, we presume prejudice and reverse without reaching the question of
prejudice. Id. at 162-63. When the information proves insufficient the charge is
dismissed without prejudice. State v. Johnson, 180 Wn.2d at 300-01.
As stated above, Mr. Markham’s charging information used the language of the
1983 version of the attempting to elude statute. See former RCW 46.61.024 (1983). The
statute was amended in 2003. LAWS OF 2003, ch. 101, § 1.2 As written in 2010 (and
currently in effect) the attempting to elude statute provides, in part:
Any driver of a motor vehicle who willfully fails or refuses to immediately
bring his or her vehicle to a stop and who drives his or her vehicle in a
reckless manner while attempting to elude a pursuing police vehicle, after
being given a visual or audible signal to bring the vehicle to a stop, shall be
guilty of a class C felony. The signal given by the police officer may be by
hand, voice, emergency light, or siren. The officer giving such a signal
shall be in uniform and the vehicle shall be equipped with lights and sirens.
RCW 46.61.024(1) (emphasis added).
In the 2003 amendment, the phrase “shall be equipped with lights and sirens”
replaced the words “appropriately marked showing it to be an official police vehicle.”
2 The statute was again amended in 2010, solely to make technical corrections to
gender-based terms. LAWS OF 2010, ch. 8, § 9065.

No. 36835-1-III
State v. Markham
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LAWS OF 2003, ch. 101, § 1(1). As this court observed in Naillieux, case law defined an
“appropriately marked” police vehicle as a vehicle bearing insignia identifying it as a
police vehicle, like a vehicle with the police department’s name on it. State v. Naillieux,
158 Wn. App. 630, 645, 241 P.3d 1280 (2010) (citing State v. Argueta, 107 Wn. App.
532, 538, 27 P.3d 242 (2001)). Its definition did not include lights and sirens. Id. at 645
(citing Argueta, at 538-39). The court, then, cannot infer the “lights and sirens” phrase
from the “appropriately marked” phrase. Id. The legislature’s addition of “equipped
with lights and sirens” makes it an essential element of attempting to elude. Id.
The 2003 amendment to RCW 46.61.024(1) also replaced the phrase “manner
indicating a wanton or willful disregard for the lives or property of others” with the words
“reckless manner.” LAWS OF 2003, ch. 101, § 1. This change removed the willful and
wanton standard from the eluding statute. State v. Ratliff, 140 Wn. App. 12, 15, 164 P.3d
516 (2007). And “reckless manner” does not mean a “willful or wanton disregard for the
lives or property of others.” Id. It means “‘a rash or heedless manner, with indifference
to the consequences.’” Id. at 16 (internal quotation marks omitted) (quoting State v.
Roggenkamp, 153 Wn.2d 614, 622, 106 P.3d 196 (2005)). The court, then, cannot infer
“reckless” from “willful and wanton.” State v. Naillieux, 158 Wn. App. at 644.
The State concedes Mr. Markham’s information omitted two essential elements of
eluding a police vehicle—equipped with lights and sirens and reckless manner. We

No. 36835-1-111
State v. Markham
agree. We presume prejudice and reverse Mr. Markham's conviction. State v. Zillyette,
178 Wn.2d at 162-63; State v. Naillieux, 158 Wn. App. at 645.
The conviction for attempting to elude a pursuing police vehicle is reversed and
remanded for the superior court to enter an order dismissing that count without prejudice.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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C.' �'	Lawrence-Berrey, .J.
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