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State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)

                                         No. 83682-5

       CHAMBERS, J. (concurring in part and dissenting in part)  --  "In criminal 
prosecutions the accused shall have the right . . . to demand the nature and cause of 
the accusation against him."  Const. art. I, § 22.  The central question in this case is 
whether the State has to give adequate notice of the acts a person is accused of 
committing that will result in punishment.  Ordinarily, our state constitution provides 
greater protections than the federal constitution.  The United States Supreme Court
has established a new floor of constitutional protection with the rule that any fact
(other than criminal history) that will increase punishment beyond the statutory 
maximum must be pleaded and proved to a jury beyond a reasonable doubt.  Blakely 
v. Washington, 542 U.S. 296, 301-02, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) 
(quoting  Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 
2d 435 (2000)).  Our jurisprudence has long distinguished between -- and 
established different standards for -- elements, enhancements, aggravators, and 
predicate crimes.  We must reexamine the reasons for these distinctions in light of 
Blakely and its progeny.  The majority hews to very old case law and fails to 
reexamine the rationales behind those cases in light of the current trend to require 
greater notice of facts that will increase punishment. While the majority's opinion is 
consistent with some of our older cases, it reduces our notice jurisprudence to a 
series of technicalities without any consistent underlying rationale. Although I find 

State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)
No. 83682-5

the majority's resolution of both of these consolidated cases unsatisfying, I concur
with the result in Theodore Kosewicz's case because it is dictated by a recent 
opinion of this court.  State v. Siers, __ Wn.2d __, 274 P.3d 358 (2012).  However, 
I would reverse Robert Brown's conviction and, therefore, I dissent from the 
majority in his case.
       A. Essential Elements
       When the State charges a person with a crime, that person is entitled to notice 
of exactly what crime he or she is accused of committing.  See State v. Kjorsvik,
117 Wn.2d 93, 98, 812 P.2d 86 (1991); Const. art. I, § 22.  That means in the 
charging document the State must charge all the "essential elements" of a crime.  Id. 
at 101-02.  This "essential elements" rule "requires that the defendant be apprised 
of the elements of the crime charged and the conduct of the defendant which is 
alleged to have constituted that crime."  Id. at 98 (citing State v. Leach, 113 Wn.2d 
679, 782 P.2d 552 (1989)).   If the State fails to do so, the defendant's constitutional
rights of notice and due process are violated and a new trial is required.  See id. at 
97, 107-08.  But, according to the majority's reasoning, if another crime appears in 
the information as an element of the charged crime, the defendant is presumed to 
know the essential elements of the other crime.  Majority at 9-10.  In other words, 
the majority acknowledges that not informing the defendant of the elements of a 
crime is a notice violation so fundamental it requires a new trial to remedy.  Id. at 8.  
But then, with what I think is inconsistent reasoning, the majority concludes that if 
another crime is one of the elements of the charged crime, the defendant is 

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State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)
No. 83682-5

presumed to know not only all the elements of that other crime, but also which 
specific elements the State intends to try.  Id. at 9.
       I cannot find an intellectually satisfying reason to treat crimes that are 
elements of another crime differently for notice purposes than crimes that are 
charged.  The State, of course, "must prove the elements of the predicate felony to 
prove the offense of felony murder."  State v. Gamble, 154 Wn.2d 457, 466, 114 
P.3d 646 (2005); see also State v. Carter, 154 Wn.2d 71, 80, 109 P.3d 823 (2005) (
"in order for a person to be found guilty of felony murder, the State must prove that 
he or she committed or attempted to commit a predicate felony"); State v. Wanrow, 
91 Wn.2d 301, 311, 588 P.2d 1320 (1978) ("The intent necessary to prove the 
felony-murder is the intent necessary to prove the underlying felony. That intent 
must be proved by the State as a necessary element of the crime, and the question 
whether it was present is presented to the jury."1).  These cases make clear the jury 

must be instructed on and the State must actually prove each element of a predicate 
felony in felony murder. It follows that to prepare an adequate defense the 
defendant must be notified of what elements the State intends to prove.  See State v. 
Royse, 66 Wn.2d 552, 556, 403 P.2d 838 (1965) (expressly connecting what must 

1 A close reading of this statement from Wanrow actually disposes of the central question in this 
case because it inescapably states that the elements of the underlying predicate felony are 
"necessary element[s]" of felony murder.  Wanrow, 91 Wn.2d at 311.  Wanrow is arguably 
distinguishable because it concerned the elements as they must be proved to a jury rather than 
elements as they must be charged in the information.  Id.  However, an element that is essential 
(or "necessary") for purposes of proof to a jury beyond a reasonable doubt logically is also 
essential for purposes of notifying the defendant what crime she is accused of committing.  If the 
point of notice in this context is to prepare a defense, the defendant should be apprised of what 
the State is going to try to prove to the jury.
                                               3 

State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)
No. 83682-5

be alleged with what must be proved).
       B. Robert Brown's Felony Murder Conviction
       The majority cites a single Court of Appeals case for its remarkable 
proposition that when a crime becomes an element of another crime, it takes on 
mystical properties that notify the defendant of all its elements.  Majority at 9 (citing 
State v. Hartz, 65 Wn. App. 351, 354, 828 P.2d 618 (1992)). That case in turn cites 
three cases from this court.  Id.  But the cases from this court to which the Court of 
Appeals cites are all over 70 years old, trace back to a single decision in 1908, and 
rely on notice principles long abandoned by this court.  
       This court first held elements of the predicate felony in a felony murder 
charge need not appear in the information in State v. Fillpot, 51 Wash. 223, 228, 98 
P. 659 (1908). In Fillpot, the court concluded that the specific elements of the 
predicate felony need not be laid out in a felony murder charge because "[t]he
[predicate] crimes of robbery and burglary . . . are elsewhere defined in the criminal 
code" and they therefore have "a well-defined and legal meaning."  Id.  It was 
sufficient, according to the court, to merely state in the information the terms 
"robbery" or "burglary" as used in the felony murder statute because it met the 
statutory requirement that a person of ordinary understanding could know what was 
intended by going and looking up their elements elsewhere in the code.  Id.  
       In 1908, criminal law was far less complex than today.  The modern notice 
requirement of the essential elements rule is not merely statutory but is "based on 
constitutional law and court rule."  Kjorsvik, 117 Wn.2d at 97 (citing Const. art. I, §

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State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)
No. 83682-5

22 (amend. 10); U.S. Const. amend VI; CrR 2.1(b), recodified as CrR 2.1(a)(1)).2  

We have expressly rejected the idea that defendants must search for the rules or 
regulations they are accused of violating.  Id. at 101 (citing State v. Jeske, 87 Wn.2d 
760, 765, 558 P.2d 162 (1976)).  Rather, both our state and federal constitutions 
require that "all essential elements of an alleged crime must be included in the 
charging document in order to afford the accused notice of the nature of the 
allegations so that a defense can be properly prepared."  Id. at 101-02.  Given these 
developments in our case law, the majority's determination that the State in a felony 
murder charge need not notify a defendant of which elements of the predicate felony 
it intends to try is not reconcilable with modern due process and notice
jurisprudence.
       The other cases cited by the majority are similarly a few steps behind the past 
several decades of case law.  In the 1941 case, State v. Anderson, 10 Wn.2d 167, 
180, 116 P.2d 346 (1941),3 the most recent case cited by the majority, the court 

offered the following rationale for the majority's rule:

       Nor is [the information] defective in not stating in specific detail the 
       facts and elements of the burglary or robbery upon which the crime of 
       murder in the first degree is charged . . . .  The state's case was 
       necessarily based upon and built around the confession and admissions 
       of appellant.  We cannot conceive of any fact which the state, by way 
       of bill of particulars or by way of making the information more definite 
       and certain, could have furnished him that was not already locked up in 
       his own breast.

2 Fundamental due process concerns also underpin the rule.  Leach, 113 Wn.2d at 690. 
3 The third case from this court relied on by the majoritysimply cites Fillpot without further 
analysis.  State v. Ryan, 192 Wash. 160, 164-65, 73 P.2d 735 (1937).
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State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)
No. 83682-5

In other words, when a charge is based on the admissions of the defendant, the State 
need not provide proper notice in charging because the defendant has all the notice 
he needs "locked up in his own breast."  Id. But that is not the standard by which 
we judge the adequacy of the information today.  To say no notice is needed 
because the defendant himself knows what he did is antithetical to modern 
principles of fairness and due process.  Nor are those principles satisfied by a 
charge that lists an underlying crime as an essential element of another crime but 
fails to inform the defendant which elements of that underlying crime the State 
intends to try.
       Federal cases applying the same constitutional principles conflict with the 
majority's analysis.  The Ninth Circuit Court of Appeals specifically addressed the
issue of notifying the defendant of the elements of a predicate felony while 
interpreting Washington law in the context of second degree felony murder 
predicated on a second degree assault charge:

       [The defendant] was presented with the dilemma of preparing a 
       defense to the second degree assault upon which the felony murder was 
       founded without knowing whether the State would proceed on the 
       theory that the second degree assault was founded on the "intent to 
       injure" under [former RCW 9.11.020(1) (1909)4] or "to enable or assist 
       himself . . . to commit any crime" under [former RCW 9.11.020(2)].  To 
       allow the State to charge in such nebulous terms and proceed to trial on 
       either of these theories would in itself be violative of the principle of 
       fundamental fairness on which due process of law is bottomed. The 
       practical inquiry as to the sufficiency of the information . . . reveals that 
       on this basis alone, [the defendant] would not have received the 

4 Title 9 RCW was in effect during the 1973 trial in this case.  It was repealed effective July 1, 
1976.  
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State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)
No. 83682-5

       requisite notice to adequately prepare his defense.
Kreck v. Spalding, 721 F.2d 1229, 1233 (9th Cir. 1983) (citation omitted).  The fact 
that this analysis is dicta renders it no less potent an indictment of the rule in the 
cases relied on by the majority.
       Other jurisdictions agree with the Ninth Circuit.  The Supreme Court of 
Hawai'i expressly disapproved of Hartz, and held that "where one offense requires 
the actual commission of a second underlying offense, in order to sufficiently charge 
the offense, it is incumbent on the State to allege the essential elements of the 
underlying offense; identification of the offense by name or statutory reference will 
not suffice."  State v. Israel, 78 Haw. 66, 75, 890 P.2d 303 (1995).  And the Illinois 
Court of Appeals has likewise held that "where the commission of an underlying 
offense is a requisite for the commission of a second offense, the information must 
also contain the elements of the underlying offense."  People v. Miles, 96 Ill. App. 
3d 721, 725, 422 N.E.2d 5 (1981).
       The unfairness of a rule contrary to that endorsed by the Ninth Circuit and 
other jurisdictions becomes evident when applied in a context outside that of felony 
murder.  In fact, this court soundly rejected the same arguments made by the 
majority in the context of second degree assault.  In 1965, well after Fillpot and its 
progeny, we held that information charging second degree assault with the intent to 
commit a felony was insufficient.  Royse, 66 Wn.2d at 557. There, like in Fillpot, 
the State argued that "it was sufficient in an indictment for a statutory crime to 
charge the crime in the language of the statute."  Id. at 556-57.  We found that was 
not enough because "the statute, in this instance, does not define the crime with 

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State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)
No. 83682-5

certainty, and the rule only applies where the statute does define the offense which it 
creates."  Id. at 557. More importantly, we continued:

       [T]he information must state the acts constituting the offense in 
       ordinary and concise language, not the name of the offense, but the 
       statement of the acts constituting the offense is just as important and 
       essential as the other requirements of the information, such as the title 
       of the action and the names of the parties.
Id.  Thus this court did not reverse the defendant's conviction only because the State 
had not named the felony that formed the basis for the second degree assault 
conviction.  It expressly required "not the name of the offense, but the statement of 
the acts constituting the offense," despite the fact that the "offense" was not actually 
charged but was a predicate to the second degree assault charge.  Id.  
       Felony murder is not, for this purpose, meaningfully different from a second 
degree assault charge predicated on the intent to commit a felony. The defendant 
need not be charged with the underlying felony but the felony is itself an element of 
second degree assault.  See 11 Washington Practice: Washington Pattern Jury 
Instructions: Criminal 35.11, at 467 (3d ed. 2008).  It is incongruous to hold that the 
name of the offense is insufficient in the context of second degree assault but 
sufficient in the context of felony murder. And it is difficult to understand how a 
felony murder charge that refers to the predicate felony only as "robbery," 
"burglary," or "first degree kidnapping" comports with our requirement that the 
charging information "'allege facts supporting every element of the offense.'"  
Kjorsvik, 117 Wn.2d at 98 (emphasis omitted) (quoting Leach, 113 Wn.2d at 689).
       C. Theodore Kosewicz's Aggravating Factor Verdict

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State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)
No. 83682-5

       Because the same analysis no longer applies to Kosewicz's aggravating factor 
verdict, I must concur in the majority's resolution of this case as to Kosewicz.  Five 
justices of this court recently held that aggravating factors must appear in the 
charging documents in order to give adequate notice to the defendant.  State v. 
Powell, 167 Wn.2d 672, 689-90, 695, 223 P.3d 493 (2009) (plurality opinion).  
Under Powell, the situation in Kosewicz's case is analogous to Brown's felony 
murder case.  In both instances, another underlying crime is an essential element, or 
functional equivalent of an element, of the primary crime charged, and the State 
should thus be required to declare in the information the elements of an aggravating 
crime it intends to prove. While I agree with the analysis of the five justices 
concurring and dissenting in Powell, this court has recently overturned Powell's
requirement that aggravating factors appear in the charging documents to provide 
notice to the defendant.  Siers, 274 P.3d at 361.  Therefore, I concur with the 
majority that under the law as it now stands Kosewicz's conviction should be 
affirmed. 
       D. Conclusion
       In my view, in order to prepare a defense, the defendant must be informed of 
the essential elements of all crimes that appear in the information, whether or not 
they are elements of another crime.  The majority relies on antiquated authority for 
the proposition that the defendant is presumed to know the elements of predicate 
crimes.  I believe the majority's holding may not survive federal scrutiny.  I urge 
prosecutors to act with an abundance of caution and to specify the elements of all 

                                               9 

State v. Brown (Robert A.)
State v. Kosewicz (Theodore M.)
No. 83682-5

crimes that appear in the information.  I respectfully dissent from the majority's 
holding as to Robert Brown.  I would reverse his conviction and remand for a new 
trial.

AUTHOR:
        Justice Tom Chambers

WE CONCUR:

        Justice Charles W. Johnson                       Justice Debra L. Stephens

                                                         Justice Charles K. Wiggins

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