Feb. 23, 2012
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
STATE OF WASHINGTON,
JENNIFER L. KIRWIN,
Siddoway, J. â Jennifer Kirwin appeals her three convictions of first degree
custodial interference arising from her 6-week, multi-state road trip made with her three
children in violation of her ex-husbandâs rights under a parenting plan. She identifies
several claimed errors. We find dispositive her argument that the evidence presented at
trial was insufficient to support the crimes with which she was charged, and that the
Stateâs adequate proof of a different offense mistakenly described in the jury instructions
cannot sustain the convictions. We reverse them and remand with directions to dismiss
the charges with prejudice.
State v. Kirwin
FACTS AND PROCEDURAL BACKGROUND
Jennifer Lynn Kirwin and Todd Kirwin divorced in 2005. Following the divorce,
the coupleâs three children lived with Ms. Kirwin in Spokane pursuant to a court-ordered
parenting plan. Mr. Kirwin received visitation rights. In April 2009, Mr. Kirwin was
unable to exercise his rights because he could not contact Ms. Kirwin despite repeated
attempts. He initiated a contempt proceeding in May and a hearing was scheduled for
May 26. Ms. Kirwin left the state with the children sometime on or shortly before
May 23, after court papersâpresumably notice of the contempt proceedingâwere served
at her home.
On June 15, the trial court modified the original parenting plan and awarded Mr.
Kirwin custody of the children. United States marshals found the children with Ms.
Kirwin in California on July 2 and took her into custody. Mr. Kirwin traveled to
California and flew back with the children the following day.
The State charged Ms. Kirwin with three counts of first degree custodial
interference. The crime of first degree custodial interference may be committed in three
alternative ways: (1) by being a relative of the child and keeping the child from a person
who has a lawful right to physical custody; (2) by being a parent and keeping the child
from the other parent who has a right to time with the child; or (3) by being a person who,
in the absence of a court order, helps one parent to keep the child from the other parent.
State v. Kirwin
RCW 9A.40.060(1)-(3). The charging document filed against Ms. Kirwin alleged the
first alternative, citing RCW 9A.40.060(1) in the caption and with each count alleging
that she âtook and conceal[ed]â the children between June 12, 2009 and June 22, 2009
âwith the intent to deny access to . . . TODD MICHAEL KIRWIN, a parent having a
lawful right to [their] physical custody.â Clerkâs Papers (CP) at 1-2.
Before trial, Ms. Kirwinâs court-appointed defender was allowed to withdraw after
reporting irreconcilable communication and cooperation problems with his client. Ms.
Kirwin notified the court that she would like to proceed without the assistance of counsel.
In a lengthy colloquy, the trial court tried to persuade Ms. Kirwin not to represent herself.
The court advised her of the possibility of prison and the standard sentence ranges of her
charges but did not inform her of the maximum statutory sentence. Ms. Kirwin remained
steadfast in her desire to represent herself. After telling Ms. Kirwin that â[t]he bottom
line is youâre walking into a real hornetâs nest, and you need to do this with your eyes
open[,] understanding the serious danger youâre putting yourself into,â the court relented
in its attempts to dissuade Ms. Kirwin and allowed her to proceed pro se. Report of
Proceedings (RP) (Feb. 22, 2010-Pretrial Motions) at 9.
The State presented evidence at trial that Ms. Kirwin traveled through Idaho,
Montana, Utah, Arizona, and California with her children between late May and early
July 2009. It offered the June 15 modified parenting plan into evidence but did not
State v. Kirwin
submit the prior parenting plan or present testimony regarding its terms.
Ms. Kirwin undertook to defend on the basis that she took her children out of the
state for their protection because Mr. Kirwin was abusive and had a history of
harassment. Although many of the questions she posed to witnesses sought irrelevant
information, she attempted to establish the alleged abuse in questioning Mr. Kirwin and
her children. The trial court permitted some of these questions, but it sustained
objections to most on grounds of hearsay and relevance.
When it came time to instruct the jury, the to-convict instruction given did not
track the offenses charged in the information. While Ms. Kirwin was charged under
RCW 9A.40.060(1)(c), the jury was instructed on the elements of RCW 9A.40.060(2)(c),
To convict the defendant of the crime of custodial interference in the
first degree, each of the following five elements of the crime must be
proved beyond a reasonable doubt:
That the defendant was a parent;
That on or about between June 12 and June 22, 2009, the
defendant intentionally took, enticed, retained, or concealed
her child from the other parent having the lawful right to time
with the child pursuant to a court-ordered parenting plan;
That the defendant acted with the intent to deny the other
parent from access to the child;
That the defendant caused the child to be removed from the
state of usual residence; and
That any of these acts occurred in the State of Washington.
CP at 36 (Instruction 6). The State had never sought to amend the information to charge
State v. Kirwin
Ms. Kirwin with violations of RCW 9A.40.060(2)(c).
The jury found Ms. Kirwin guilty on all three counts. The judgment and sentence
reflects that she was convicted under RCW 9A.40.060(1)(c), the offense specified in the
charging document. This appeal followed.
After reviewing the initial briefs and noting the inconsistency between the
charging document and the jury instructions, we requested and have considered additional
briefing addressing two questions:
Did the trial court instruct the jury on an uncharged alternative theory of
first degree custodial interference?
Assuming that the court did instruct only on an uncharged alternative, does
an appellate court review a sufficiency of the evidence challenge to the
charged or uncharged alternative?
Ms. Kirwin assigns error to the trial courtâs failure to fully inform her of the
consequences of self-representation; in particular, the maximum sentence she faced. She
also challenges a series of evidentiary rulings she contends were in error and collectively
deprived her of the ability to present her defense. But at oral argument, appellate counsel
placed greatest reliance on Ms. Kirwinâs challenge to the Stateâs failure to present
sufficient evidence of the crimes charged. She asked that we grant the reversal and
dismissal that Ms. Kirwin contends is the necessary remedy.
State v. Kirwin
Ms. Kirwin contends that sufficient evidence does not support the essential
element that she knew Mr. Kirwin had a lawful right to physical custody of the children.
In State v. Boss, 167 Wn.2d 710, 719-20, 223 P.3d 506 (2009), the Washington Supreme
Knowledge of the existence of a custody order is inherent in the
intentional element of the offense. A person cannot âintentionallyâ commit
first degree custodial interference without being on notice of the underlying
order. The State must establish a custody order existed and the defendant
intentionally violated the order. The State must establish a defendant is
aware of the existence of the order to prove the defendant intentionally
The Stateâs position, made explicit at oral argument, is that âlawful right to
physical custodyâ within the meaning of RCW 9A.40.060(1)(d) is sufficiently broad to
include rights of visitation that Ms. Kirwin knew Mr. Kirwin enjoyed before she left the
state in late May. It argues that it presented evidence that established that Mr. Kirwin had
visitation rights before June 121 and that Ms. Kirwin knew of them. For her part, Ms.
Kirwin argues that âlawful right to physical custodyâ must refer to the court-designated
custodial parent in cases where it is a parent who is being denied custody of the children.
The criminal code does not define or otherwise clarify the meaning of âlawful
right to physical custody.â Standing alone, the term is ambiguous. Blackâs Law
June 12 was the date that the court heard the custody issue and signed the order
filed on June 15.
State v. Kirwin
Dictionary provides multiple definitions for physical custody, some of which support Ms.
Kirwinâs position (â[t]he right to have the child live with the person awarded custody by
the courtâ) but others of which support the Stateâs (â[p]ossession of a child during
visitationâ). Blackâs Law Dictionary 1263 (9th ed. 2009) (definitions 2 and 3).
However, the plain meaning of a statute is discerned by examining everything the
legislature has said in the statute itself and any related statutes that reveal legislative
intent regarding the provision at issue. In re Custody of E.A.T.W., 168 Wn.2d 335, 343,
227 P.3d 1284 (2010). The meaning of words in a statute is not determined from those
words alone but from all the terms and provisions of the act as they relate to the subject
of the legislation, the nature of the act, the general object to be accomplished and
consequences that would result from construing the particular statute in one way or
another. Id. at 343-44.
Reviewing the custodial interference statute as a whole, it is significant that it
differentiates between âa lawful right to physical custodyâ and âauthorized visitationâ in
describing one alternative offense. RCW 9A.40.060(1)(d) provides that a relative
commits first degree custodial interference when she or he
[r]etains, detains, or conceals the child or incompetent person in another
state after expiration of any authorized visitation period with intent to
intimidate or harass a parent, guardian, institution, agency, or other person
having lawful right to physical custody or to prevent a parent, guardian,
institution, agency, or other person with lawful right to physical custody
from regaining custody.
State v. Kirwin
It is also noteworthy that the legislature used different phrases to describe
presumptively different rights protected from interference: in RCW 9A.40.060(1), the
right protected from interference is the âlawful right to physical custody,â whereas in
RCW 9A.40.060(2), the parental right protected is the âlawful right to time with the child
pursuant to a court-ordered parenting plan.â When the legislature uses two different
terms in the same statute, courts presume the legislature intends the terms to have
different meanings. Densley v. Depât of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885
(2007). We also construe statutes so that all the language used is given effect, with no
portion rendered meaningless or superfluous. Johnson v. Recreational Equip., Inc., 159
Wn. App. 939, 946, 247 P.3d 18 (citing Whatcom County v. City of Bellingham, 128
Wn.2d 537, 546, 909 P.2d 1303 (1996)), review denied, 172 Wn.2d 1007 (2011).
Permitting the State to charge a parent under RCW 9A.40.060(1) when the other parent is
merely entitled to time with the child, but is not the designated custodian, would render
RCW 9A.40.060(2) superfluous. Under that interpretation all conduct violating
subsection two could be charged under subsection one.
Finally, related chapter 26.09 RCW, dealing with dissolution proceedings and
legal separation, lends support to Ms. Kirwinâs contention that the language refers to the
State v. Kirwin
designated custodian of the child. RCW 26.09.285 provides that âa parenting plan shall
designate the parent with whom the child is scheduled to reside a majority of the time as
the custodian of the child.â In State v. Ohrt, 71 Wn. App. 721, 726, 862 P.2d 140 (1993),
review denied, 123 Wn.2d 1029 (1994), the court treated âcustodianâ as synonymous
with the âpersons having lawful custodyâ whose rights are protected under the first
section of the custodial interference statute.
For these several reasons, we conclude that the term âlawful right to physical
custodyâ necessarily refers to the court-designated custodian of a child when a parenting
plan has been entered. Thus understood, the evidence below established that Mr. Kirwin
did not have a lawful right to physical custody of his three children until entry of the
June 15 order.
The State offered no evidence that Ms. Kirwin knew of the June 15 order at any
time during the charging period. The jury was presented with testimony from which it
could conclude that before Ms. Kirwin left the State in May a parenting plan must have
been in place under which Mr. Kirwin had visitation rights but was not designated the
custodian. The only exhibits admitted into evidence were the June 15 order modifying a
prior parenting plan, which did not identify the provisions of the prior plan, and the new
parenting plan entered while Ms. Kirwin was out-of-state. Neither exhibit gave any
indication it had been served on Ms. Kirwin or, for that matter, that she had ever received
State v. Kirwin
notice that a change of custody was being requested.
The evidence established only that somethingâpresumably the motion for
contemptâwas served at Ms. Kirwinâs home before she left the state with the children.
Mr. Kirwin testified that at the May 26 hearing (which Ms. Kirwin did not attend) the
court commissioner indicated he would grant a change in custody if Ms. Kirwin did not
respond within 20 days. But the evidence did not establish when any request for a
change in custody was made.2
While the evidence presented did not establish Ms. Kirwinâs knowledge of the
custody decree, it sufficed to establish the elements of the different custodial interference
offense on which the jury was mistakenly instructed. The second element from the toconvict instruction given to the jury required that the State prove that âthe defendant
intentionally took, enticed, retained, or concealed her child from the other parent having
the lawful right to time with the child pursuant to a court-ordered parenting plan.â CP at
36 (emphasis added). Had the jury been properly instructed on the crime with which Ms.
Kirwin was charged, the second element of the to-convict instruction would have
In this connection, we disagree with the dissentâs assertion that Ms. Kirwin fled
the weekend that ânotice of the hearing to change custody was servedâ and knew that a
change of custody was likely. Dissent at 10. The trial record established only that Mr.
Kirwin was seeking to hold Ms. Kirwin in contempt for her interference with his
visitation rights at the time she left with the children. It provides no information on the
content of the papers served. RP (Feb. 22, 2010-Trial) at 8-9, 11; RP (Feb. 23, 2010Trial) at 68-69, 100-02.
State v. Kirwin
required the State to prove beyond a reasonable doubt that during the charging period Ms.
Kirwin intentionally âtook, enticed, retained, detained, or concealed the child from a
parent having a lawful right to the physical custody of such person.â See 11 Washington
Practice: Washington Pattern Jury Instructions: Criminal 39.20 (3d ed. 2008); CP at 1-2
(Information). Ms. Kirwin did not object to the instruction as given.
At the outset, we recognize that there are two well-established challenges Ms.
Kirwin could raise in light of these events that could entitle her to a new trial. First,
where a to-convict instruction omits an essential element of a charged crime, it is
constitutionally defective and the remedy is a new trial unless the State can demonstrate
that the omission was harmless beyond a reasonable doubt. State v. Brown, 147 Wn.2d
330, 339, 58 P.3d 889 (2002); State v. Cronin, 142 Wn.2d 568, 580, 14 P.3d 752 (2000).
If the State had presented substantial evidence of the charged crime but the jury
instructions omitted an essential element, this is the argument we would expect Ms.
Kirwin to make. She could be entitled to a new trial even in the face of substantial
evidence of her guilt of the crime charged, because a properly-instructed jury might
nonetheless have found her not guilty.
Second, when an information alleges only one crime, it is constitutional error to
instruct the jury on a different, uncharged crime. State v. Chino, 117 Wn. App. 531, 540,
72 P.3d 256 (2003); State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996) (jury
State v. Kirwin
erroneously instructed on uncharged statutory alternative means); State v. Nicholas, 55
Wn. App. 261, 272-73, 776 P.2d 1385, review denied, 113 Wn.2d 1030 (1989); State v.
Mitchell, 149 Wn. App. 716, 721, 205 P.3d 920 (2009), affâd, 169 Wn.2d 437, 237 P.3d
282 (2010). When the jury is instructed on an uncharged crime, a new trial is appropriate
when it is possible that the defendant was mistakenly convicted of an uncharged crime.
State v. Brown, 45 Wn. App. 571, 576-77, 726 P.2d 60 (1986). Here again, if the State
had presented substantial evidence of the charged crime but the jury was instructed on the
wrong crime, this is the argument we would expect. Ms. Kirwin would again be entitled
to a new trial even in the face of substantial evidence of her guilt of the crime charged,
because of the possibility that she was convicted only because of the erroneous
The crucial distinction here is that the State presented insufficient evidence of the
crimes with which Ms. Kirwin was charged and as to which she was convicted. She has
been required to defend one trial in which the State presented insufficient evidence to
meet this burden of proof. Ms. Kirwin therefore argues she is entitled to more than a new
trial; she is entitled to have the convictions dismissed due to the insufficiency of the
evidence. Only evidentiary insufficiency, not deficiencies in the information or
instructions, entitles Ms. Kirwin to dismissal. ââ[R]eversal for trial error, as
distinguished from evidentiary insufficiency, does not constitute a decision to the effect
State v. Kirwin
that the government has failed to prove its case. . . . Rather, it is a determination that a
defendant has been convicted through a judicial process which is defective in some
fundamental respect.ââ State v. Vangerpen, 125 Wn.2d 782, 794, 888 P.2d 1177 (1995)
(quoting Burks v. United States, 437 U.S. 1, 15, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978)).
Double jeopardy bars retrial only when the appellate court reverses the conviction for
insufficient evidence, in which case the reversal is deemed an acquittal terminating
jeopardy. State v. Wright, 131 Wn. App. 474, 478, 127 P.3d 742 (2006), affâd, 165
Wn.2d 783, 203 P.3d 1027 (2009).
Ms. Kirwin provides us with no authority directly addressing whether she is
entitled to dismissal for insufficient evidence where the State presented sufficient
evidence of the offense described in the to-convict instruction, to which she made no
objection.3 The issue of whether substantial evidence review is based on the crime as
instructed to the jury or the crime as charged in the informationâthe question we asked
the parties to brief supplementallyâappears to be one of first impression.
The State objects to the way we framed the question. It sees no prejudicial
A criminal defendant may always challenge for the first time on appeal the
sufficiency of the evidence supporting a conviction. State v. Hickman, 135 Wn.2d 97,
103 n.3, 954 P.2d 900 (1998) (noting that â[a]ppeal is the first time sufficiency of
evidence may realistically be raisedâ); State v. Alvarez, 128 Wn.2d 1, 10, 904 P.2d 754
(1995) (recognizing that the sufficiency of the evidence ââis a question of constitutional
magnitude and can be raised initially on appealââ (quoting City of Seattle v. Slack, 113
Wn.2d 850, 859, 784 P.2d 494 (1989))).
State v. Kirwin
discrepancy between the information and the instructions because, it argues, the toconvict instruction merely added an element to those the State was otherwise required to
prove, making its burden of proof harder, not easier. But the State addresses only its
burden of proving the asserted additional element that Ms. Kirwin intentionally deprived
her ex-husband of time with the children pursuant to a court-ordered parenting plan. It
ignores the more important fact that the instructions as given relieved the State of the
burden of proving that Ms. Kirwin intentionally deprived Mr. Kirwin of custody, a matter
it failed to prove.
The argument for reviewing the sufficiency of evidence with regard to the crime as
instructed finds support in cases holding that the instructions to the jury become law of
the case. Where the State makes no objection to an unnecessary element mistakenly
included in a to-convict instruction, for instance, it is well-settled Washington law that
the State assumes the burden of proving the otherwise unnecessary element, as law of the
case. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). In Hickman, the court
held that in the event of a sufficiency of evidence challenge on appeal, the sufficiency of
evidence to sustain the verdict is determined with reference to the instructions. Id. at 103
(quoting Tonkovich v. Depât of Labor & Indus., 31 Wn.2d 220, 225, 195 P.2d 638
The court qualified its holding in Hickman in State v. Teal, 152 Wn.2d 333, 337,
State v. Kirwin
96 P.3d 974 (2004). In that case, the defendantâs conviction for first degree robbery
depended on his accountability for actions of an accomplice, yet the to-convict
instruction, to which no party objected, described the elements of the crime only in terms
of the defendantâs own acts, making no mention of an accomplice. The court in Teal
explicitly rejected the defendantâs argument that the sufficiency of evidence should be
measured against the to-convict instruction as given, concluding that â[t]he Court of
Appeals correctly rejected this argument.â Id. at 338. In what we read as a related
observation, the court recognized that a to-convict instruction âmust provide a complete
statement of the elements of the crime charged,â id. (emphasis added), and distinguished
the error in the to-convict instruction in Tealâs case because it did not omit an element.
In Ms. Kirwinâs case, of course, the to-convict instruction did omit an elementâan
element the State did not prove.
Ultimately, identifying the proper reference point for sufficiency of evidence
review must be guided by the reason for sufficiency of evidence review, which is âto
guarantee the fundamental protection of due process of law.â Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). â[T]he Due Process Clause [U.S.
Const. amend XIV] protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged.â In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)
State v. Kirwin
(emphasis added). Although we have found no published decision directly addressing our
issue, the federal cases consistently articulate the substantial evidence standard as
focusing on the crime actually charged. United States v. Williams, 998 F.2d 258, 262
(5th Cir. 1993) (âIf a rational jury could have found the defendant guilty beyond a
reasonable doubt of the essential elements of the crimes charged, the conviction should
be upheld.â (emphasis added)), cert. denied, 510 U.S. 1099 (1994); United States v.
Inigo, 925 F.2d 641, 644 (3rd Cir. 1991) (holding that the evidence against certain
defendants âwas insufficient as to the crimes charged against them in the indictmentâ
(emphasis added)); United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986)
(recognizing the standard to be âwhether a reasonable jury, after viewing the evidence in
the light most favorable to the government, could have found the defendants guilty
beyond a reasonable doubt of each essential element of the crime chargedâ (emphasis
Washington Const. art. I, Â§ 22 also requires that sufficiency of evidence be tested
with respect to the crimes charged. After the State rests its case-in-chief, it cannot amend
the information to charge a different or greater crime, or add an essential element of the
crime. Vangerpen, 125 Wn.2d at 789-91. Why? Because a defendant is entitled to have
the sufficiency of the evidence to convict her tested against the original information.
Sufficiency of evidence review is a means of guaranteeing due process only if it is with
State v. Kirwin
reference to a charge of which the defendant was given notice and the opportunity to
defend. Surely the State cannot deprive Ms. Kirwin of that rightâand claim the
prerogative to try her a second timeâby something as simple as submitting or
overlooking erroneous jury instructions. And it is no answer that Ms. Kirwin failed to
object to the instructions. Where she has defended herself once against the crimes
charged, she cannot be deprived of her right to have the sufficiency of evidence tested
against the information because she failed to detect and correct errors made by others.
The dissent would have us simply grant Ms. Kirwin a new trial, to which she is
unquestionably entitled if that is what she was seeking, for reasons we have already
discussed and on which the dissent expands. But having been through a trial in which
she can demonstrate that the Stateâs evidence was insufficient to convict her of the crime
charged, she has more to complain about than the instructional error. She makes a cogent
argument that she is entitled to more than a new trial. We have addressed the relief she
The dissent concludes that a defendant is never entitled to a remedy other than a
new trial where there has been an improper amendment to a charging document during
trial, a context it urges as analogous. We agree that the context is analogous but do not
read the cases cited by the dissentâState v. Pelkey, 109 Wn.2d 484, 745 P.2d 854
(1987), Vangerpen, 125 Wn.2d 782, and State v. Markle, 118 Wn.2d 424, 823 P.2d 1101
State v. Kirwin
(1992)âas foreclosing a challenge to the sufficiency of the evidence, the remedy for
which would be reversal and dismissal with prejudice. In Vangerpen, it is clear that a
sufficiency of evidence challenge would have been futile; the State had ample direct
evidence that the defendant had committed the crime charged. In Pelkey, the Supreme
Court explicitly did not reach a sufficiency of evidence challenge based on the original
charge, noting that â[t]he parties do not raise this question in this appeal, and we express
no opinion on the merits of the issue.â 109 Wn.2d at 486 n.2. While the circumstances
of Markle would appear to have supported a sufficiency of evidence challenge, none was
made. 118 Wn.2d at 441 (â[W]e are reversing Mr. Markleâs conviction based upon an
improper midtrial amendment to the information. We are not reversing for insufficiency
of the evidence.â). The parties disputed only the proper remedy for the improper midtrial
Unlike the dissent, we are not prepared to assume that a sufficiency of evidence
challenge could not be made in a case such as Markle. In that case, the State, having
rested with what the defendant urged was insufficient evidence of statutory rape, was
allowed to amend the charge to indecent liberties. The challenge on appeal was to the
improper amendment, so the Supreme Court, in reversing, ordered a new trial.
If we assume that in Markle the evidence was indeed insufficient to sustain
conviction for statutory rape and if the dissent is correct in assuming that a challenge to
State v. Kirwin
the sufficiency of the evidence to prove statutory rape could not have been made,
consider where that leaves the parties: Had the State not attempted improper amendment,
allowing its evidence to be weighed in light of its original charge, the defendant should
have won his motion to dismiss the charge, been acquitted, or succeeded in challenging
the sufficiency of evidence on appeal. Prosecution for indecent liberties on the basis of
the same conduct would have been subject to a defense motion to dismiss pursuant to
former CrR 4.3(c)(1) (1986), failure to join related offenses. Pelkey, 109 Wn.2d at 491.
On the other hand, if the State had presented its deficient evidence but then
requested an improper amendment and succeeded in persuading the court, in error, to
allow it, it would, according to the dissent, thereby effectively deprive the defendant his
sufficiency of evidence challenge; the defendant would be limited to requesting a new
trial. In other words, by compounding the shortcoming of its own evidence with
inducement of an error by the court, the State gets a better result and the defendant loses
his opportunity for dismissal. We are not persuaded that a Washington appellate court, if
one day presented with that question, will reach that result.
Having concluded that the conviction must be reversed and the charge dismissed,
we need not address Ms. Kirwinâs remaining assignments of error. We reverse the
convictions and remand with directions to dismiss the charges with prejudice.
State v. Kirwin