* State Of Washington, Respondent V April Jeanell Hancock, Petitioner

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46149-8-II
Respondent,
v.
APRIL HANCOCK, PUBLISHED OPINION
Petitioner.
WORSWICK, J. — April Hancock appeals her conviction for one count of driving while
license suspended or revoked1 (DWLS), which offense she committed in a parking lot. She
argues that (1) DWLS must include all of the elements of driving without a license2 (DWOL),
including DWOL’s element of driving “upon a highway ”; (2) insufficient evidence supports her
conviction because the State did not prove that she drove upon a highway; and (3) the jury
instructions were erroneous because they did not include the “highway” element. We disagree
and affirm her conviction.
This case presents the issue of first impression whether the legislature added elements to
an offense by stating that another offense is a lesser included offense of the first offense.
Specifically, we must decide whether the statute defining the crime of DWOL, which provides
1 RCW 46.20.342(1).
2 RCW 46.20.005.
Filed
Washington State
Court of Appeals
Division Two
October 27, 2015
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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that DWOL is a lesser included offense of DWLS, imports an additional element into the statute
defining the crime of DWLS.
FACTS
A Mason County sheriff’s deputy observed April Hancock standing next to her car in the
parking lot of a convenience store and gas station. The sheriff recognized Hancock from a
previous contact, searched her driving status in his computer, and determined that her driver’s
license was revoked. He then observed Hancock’s car backing up about 20 feet towards the gas
pumps in the same parking lot. The deputy stopped the car and saw that Hancock was indeed
driving the vehicle. The deputy never observed Hancock driving anywhere outside the parking
lot.
At the time, Hancock’s driver’s license was revoked in the first degree. The State
charged Hancock with one count of first degree DWLS contrary to RCW 46.20.342(1)(a).
Hancock’s case proceeded to the district court, where she moved to dismiss the charge.
She argued that the statute defining DWOL imports the element of driving “‘upon a highway’”
into DWLS because the DWOL statute says that DWOL is a lesser included offense of DWLS.
Clerk’s Papers (CP) at 189-90. Thus, she argued that because there was no evidence that she
drove upon a highway, she could not be convicted. The district court denied Hancock’s motion
to dismiss.
The district court also denied Hancock’s proposed jury instruction including this element.
The district court instead instructed the jury that DWLS occurs when a person, “having been
found by the Department of Licensing to be a habitual traffic offender, drives a motor vehicle
while an order of revocation is in effect.” CP at 111.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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The jury found Hancock guilty of DWLS. Hancock appealed to the superior court, which
affirmed her conviction. Hancock then moved for discretionary review in this court, which we
granted. Order Granting Motion to Modify Ruling, State v. Hancock, No. 46149-8-II (Wash. Ct.
App. Aug. 22, 2014).
ANALYSIS
I. STANDARD OF REVIEW
Both the superior court and we review the district court’s decision under RALJ 9.1. State
v. McLean, 178 Wn. App. 236, 242, 313 P.3d 1181 (2013), review denied, 179 Wn.2d 1026
(2014). We review questions of law de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d
207 (2012).
We also review statutory interpretation de novo. State v. Evans, 177 Wn.2d 186, 191,
298 P.3d 724 (2013). When engaging in statutory interpretation, we endeavor to determine and
give effect to the legislature’s intent. Evans, 177 Wn.2d at 192. We determine the legislative
intent by using the plain language of the statute whenever possible. Evans, 177 Wn.2d at 192.
When examining plain language, we consider the specific text of the relevant provision, the
context of the entire statute, any related provisions, and the statutory scheme as a whole. Evans,
177 Wn.2d at 192. If the statute is unambiguous after this reading, it requires no construction;
we apply its plain language. Evans, 177 Wn.2d at 192. We neither add language to nor delete
language from an unambiguous statute; instead, all language must be given effect, without
rendering any part of the statute meaningless or superfluous. State v. J.P., 149 Wn.2d 444, 450,
69 P.3d 318 (2003).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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We attempt to construe potentially conflicting provisions in a way that harmonizes them
and maintains their integrity when possible. Anderson v. Dep’t of Corr., 159 Wn.2d 849, 858-
59, 154 P.3d 220 (2007). We presume that the legislature is familiar with judicial interpretations
of statutes. In re Dependency of M.P., 185 Wn. App. 108, 121, 340 P.3d 908 (2014). “If the
legislature uses a term well known to the common law, it is presumed that the legislature
intended it to mean what it was understood to mean at common law.” State v. Dixon, 78 Wn.2d
796, 804, 479 P.2d 931 (1971). We presume that the legislature does not intend absurd results,
so we avoid interpreting ambiguous language to produce such results. State v. Ervin, 169 Wn.2d
815, 823-24, 239 P.3d 354 (2010).
II. STATUTORY HISTORY
The history of the frequent amendments to the two provisions at issue is important to
understanding the statutory scheme. Originally, both DWLS and DWOL required proof that the
defendant drove upon a “public highway.” See LAWS OF 1967, ch. 167, § 7; LAWS OF 1961, ch.
134, § 1. In 1979, the legislature amended the DWLS statute, adding explicit language making
DWOL a lesser included offense of DWLS. LAWS OF 1979 EXTRAORDINARY SESSION, ch. 136, §
62 (providing that DWOL, former RCW 46.20.021 (1979) was a “lesser included offense” of
DWLS, former RCW 46.20.342 (1979)). In 1985, the legislature removed this express “lesser
included offense” language from the DWLS statute, but added language to the DWOL statute,
stating that DWOL was a lesser included offense of DWLS. LAWS OF 1985, ch. 302, §§ 2-3. In
other words, the legislature retained the express statement that DWOL was a lesser included
offense of DWLS, but moved the location of this statement. Thus, since 1985, the DWOL
statute has provided that DWOL is a lesser included offense of DWLS. Then, as now, DWOL
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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was also expressly a lesser included offense of driving with a suspended or revoked out-of-state
license.3 See LAWS OF 1985, ch. 302, § 5; see also RCW 46.20.345.
In 1990, the legislature amended the DWLS statute to remove the highway element.
Until this point, DWLS read: “Any person who drives a motor vehicle on any public highway of
this state . . . .” See LAWS OF 1987, ch. 388, § 1 (emphasis added). The amended version read:
“Any person who drives a motor vehicle in this state. . . .” LAWS OF 1990, ch. 210, § 5
(emphasis added). The DWLS statute has not since been amended in relevant part.
Finally, in 1997, the legislature divided the DWOL statute into two sections: a criminal
section at issue here (RCW 46.20.005), and a separate traffic infraction section (former RCW
46.20.015 (1997)). The new criminal DWOL section retained the language requiring the
defendant to drive “upon a highway in this state,” and it retained the language: “A violation of
this section is a lesser included offense within the offenses described in RCW 46.201.342(1).”
LAWS OF 1997, ch. 66, § 1; see also RCW 46.20.005. This section also retained language
making DWOL a lesser included offense of driving with an invalid out-of-state license (former
RCW 46.20.420 (1990), since recodified as RCW 46.20.345).
The legislative history is sparse regarding the above amendments and it is silent about
why the legislature removed the “highway” language from the DWLS statute in 1990. See Br. of
Appellant at 15-16. The legislative history regarding the 1997 modification of DWOL
demonstrates that the legislature was primarily concerned with separating the misdemeanor of
DWOL from the traffic infraction. See FINAL B. REP. ON S.S.B. 5060, 55th Leg., Reg. Sess.
3 Even in 1985, driving with a suspended or revoked out-of-state license did not have any
“highway” element. See LAWS OF 1985, ch. 302, §5.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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(Wash. 1997) (“The misdemeanor of driving without a valid license is made a separate RCW
section. The traffic infraction of driving without a valid license is made a separate RCW
section.”). And the final bill report clarifies that this amendment is “strictly a technical change to
current law which will end the confusion for courts and police.” FINAL B. REP. ON S.S.B. 5060,
55th Leg., Reg. Sess. (Wash. 1997). Thus, the legislative history shows that the legislature was
not seeking to alter the elements of the criminal driving statutes by enacting this provision.
In their current form, the statutory provisions at issue read as follows. The DWLS statute
states:
It is unlawful for any person to drive a motor vehicle in this state while that person
is in a suspended or revoked status or when his or her privilege to drive is suspended
or revoked in this or any other state. Any person who has a valid Washington
driver’s license is not guilty of a violation of this section.
RCW 46.20.342(1). And the DWOL statute states:
Except as expressly exempted by this chapter, it is a misdemeanor for a person to
drive any motor vehicle upon a highway in this state without a valid driver’s license
issued to Washington residents under this chapter. . . . A violation of this section is
a lesser included offense within the offenses described in RCW 46.20.342(1) or
[former] 46.20.420 [(1990)].
RCW 46.20.005 (emphasis added).
III. STATUTORY INTERPRETATION
Hancock argues that because the DWOL statute specifically provides that DWOL is a
lesser included offense of DWLS, it necessarily imports the element of “upon a highway” into
DWLS. Thus, Hancock argues that the State was required to prove that she drove “upon a
highway” to convict her of DWLS. The State argues that despite the statute’s language, DWOL
is not a lesser included offense of DWLS under the judicial definition of “lesser included
offense”; thus, it does not import any elements into DWLS. We hold that although DWOL is a
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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lesser included offense of DWLS under the plain language of the statute, the DWOL statute does
not import the “upon a highway” element into DWLS.
A. Lesser Included Offenses—General Principles
Lesser included offenses serve several functions in the criminal law. For example, a
criminal defendant can be convicted of a lesser included offense even if she is charged only with
the greater offense. RCW 10.61.006. Lesser included offenses need not be charged in a
charging information. State v. Gamble, 168 Wn.2d 161, 168, 225 P.3d 973 (2010); State v.
Fernandez-Medina, 141 Wn.2d 448, 453-54, 6 P.3d 1150 (2000). Instead, a defendant may
receive an instruction on and be validly convicted of a lesser included offense regardless of
whether it was included in the charging information. Gamble, 168 Wn.2d at 181. Lesser
included offenses also offer protection from double jeopardy because a lesser included offense is
the same in law as the greater offense for double jeopardy purposes. State v. Villanueva-
Gonzalez, 175 Wn. App. 1, 6, 304 P.3d 906 (2013), aff’d, State v. Villanueva-Gonzalez, 180
Wn.2d 975, 329 P.3d 78 (2014); see also Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53
L. Ed. 2d 187 (1977).
B. Plain Language Analysis
The statutory provisions at issue here are unique. Nowhere else in Washington law does
a statute explicitly state that one particular offense is a lesser included offense of another. All
other statutes are silent about their potential status as lesser included offenses.
Washington courts generally use a judicial test to determine whether one offense is a
lesser included offense of another, and whether a defendant is entitled to an instruction on the
lesser included offense. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). Under
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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the Workman test, a defendant is entitled to an instruction on a lesser included offense if both the
legal and factual prongs of the test are met. Workman, 90 Wn.2d at 447-48. Under Workman’s
legal prong, the court determines whether an offense is a lesser included offense of another as a
matter of law if the elements of the lesser offense are invariably included in the larger offense.
Workman, 90 Wn.2d at 447-48; see also State v. Harris, 121 Wn.2d 317, 323, 849 P.2d 1216
(1993). In other words, it must be impossible to commit the greater offense without also
committing the lesser offense. State v. Aumick, 126 Wn.2d 422, 426-27, 894 P.2d 1325 (1995).
Then, under Workman’s factual prong, evidence must support the inference that the defendant
committed the lesser offense. Workman, 90 Wn.2d at 448. The Workman test, therefore, is how
the judiciary determines whether an offense is a lesser included offense when the statutes are
silent. It also determines whether a particular defendant is entitled to a lesser included offense
instruction.
Here, DWOL is not a lesser included offense of DWLS under the Workman test because
DWOL, but not DWLS, requires proof that the defendant drove “upon a highway.” Thus, it is
possible to commit DWLS without committing DWOL. See Aumick, 126 Wn.2d at 426-27. But
because the DWOL statute is not silent about being a lesser included offense, we do not use the
Workman test.
We give effect to the plain language of a statute whenever possible. Evans, 177 Wn.2d at
192. Here, the statutes’ plain language is clear on two points: there is no highway element in
DWLS, and DWOL is a lesser included offense of DWLS. The legislature deleted the words “on
any public highway” from DWLS. LAWS OF 1990, ch. 210, § 5. This deletion evinces clear
legislative intent that the “highway” element should no longer apply to DWLS. And we do not
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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add language to an unambiguous statute. J.P., 149 Wn.2d at 450. Further, the DWOL statute
expressly states that DWOL is a lesser included offense of DWLS. RCW 46.20.005. The
legislature has the authority to define offenses within constitutional constraints. State v. Kier,
164 Wn.2d 798, 803, 194 P.3d 212 (2008). Therefore, we apply the plain language of DWOL
and conclude that it is a lesser included offense of DWLS.
Hancock goes further, and asks us to read the “highway” element into DWLS. Her
argument is based on the premise that a statutorily defined lesser included offense must also
meet the judicial test. But there is no precedent for courts reading elements into unambiguous
statutes based on the Workman test. Instead, because the legislative intent is clear from the
DWOL statute that it is a lesser included offense, we do not to alter the DWLS statute’s plain
language and its elements. By making DWOL a lesser included offense of DWLS, the
legislature plainly intended to protect defendants from double prosecutions for DWLS and
DWOL for the same actions, and to permit juries to convict defendants of DWOL even where
only DWLS was charged.
Stated differently, the legislature has spoken: DWOL is a lesser included offense of
DWLS. RCW 46.20.005. Only where the legislature is silent does the court need to apply the
Workman test to determine whether an offense is a lesser included offense of another. But
because the legislature is not silent here, we do not second-guess the elements of the offenses the
legislature has unambiguously written. We can harmonize these two statutes by applying the
plain language of each: DWLS does not require proof of driving upon a highway, and (where the
evidence supports a conviction for DWOL), DWOL is a lesser included offense. No judicial
construction is necessary. Evans, 177 Wn.2d at 192.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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This analysis is analogous to that for double jeopardy. To determine whether the
legislature intended to create multiple punishments for behavior, we first consider whether there
is express or implicit legislative intent to do so. Kier, 164 Wn.2d at 804. Only if the legislative
intent is unclear on that point does the court then evaluate whether multiple punishments are
permissible under the Blockburger v. United States test. Kier, 164 Wn.2d at 804 (citing 284 U.S.
299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). In that context, as here, the legislature has the
power to define offenses. If the legislative intent to create multiple punishments is clear, we look
no further. Similarly, in this case, we do not second-guess the legislature’s clear definitions of
DWLS and DWOL by rewriting the statutes to fit the judicial test for lesser included offenses.
Because the legislative intent to make DWOL a lesser included offense is plain on the statute’s
face, no further judicial analysis is necessary.
Hancock argues that not requiring the “highway” element in DWLS leads to absurd
results, because people may be convicted for driving a lawn mower on private property or for
moving their cars in their private driveways. But we construe statutes to avoid absurd results
only if the statutes are ambiguous, and these statutes are not ambiguous. Evans, 177 Wn.2d at
192. Moreover, it is not absurd to strictly prohibit driving with a suspended or revoked license
anywhere in the state, but to prohibit driving without a license only on highways. It is not absurd
to treat people whose privilege to drive has been suspended or revoked as more dangerous than
those who have simply never obtained a license. Thus, it is not absurd to prohibit driving with a
suspended or revoked license anywhere in the state.
In conclusion, we agree with Hancock that the plain language of the statutes makes
DWOL a lesser included offense of DWLS. But this plain language does not alter the elements
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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of either offense. Therefore, we hold that DWLS does not include a “highway” element.4 The
district court did not err by so ruling.
IV. SUFFICIENCY OF THE EVIDENCE AND JURY INSTRUCTIONS
Hancock argues that the evidence was insufficient to support her conviction for DWLS
because the State did not prove that she drove upon a highway, and that the jury instructions
were erroneous because they did not instruct the jury on the highway element. Because we hold
that there is no highway element in DWLS, we disagree with these arguments.
A. Sufficiency of the Evidence
Hancock argues that the evidence was insufficient to convict her for DWLS because the
State did not present any evidence that Hancock drove upon a highway. As stated above, driving
upon a highway is not an element of DWLS; instead, all the State must prove is that the
defendant drove “in the state.” RCW 46.20.342(1). Hancock does not argue that the State failed
to prove this element, or any other element of DWLS. Her sufficiency argument fails.
B. Jury Instructions
Hancock argues that the jury instructions were insufficient because they failed to include
the element of driving upon a highway. Again, we disagree. “‘Jury instructions are sufficient
when they allow counsel to argue their theory of the case, are not misleading, and when read as a
whole properly inform the trier of fact of the applicable law.’” State v. Aguirre, 168 Wn.2d 350,
4 The superior court held that DWOL was an inferior degree offense to DWLS. Hancock
disputes this holding. This issue does not affect the outcome of this appeal, but Hancock is
correct. As stated above, the legislature plainly made DWOL a lesser included offense of
DWLS; it did not make it an inferior degree of DWLS. The superior court’s erroneous
conclusion does not affect our analysis.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 46149-8-II
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363-64, 229 P.3d 669 (2010) (emphasis omitted) (internal quotation marks omitted) (quoting
Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002)). Apart from arguing that
the jury instructions should have included the highway element, Hancock does not argue that the
jury instructions were deficient. Because we hold that driving upon a highway is not an element
of DWLS, the jury instructions were sufficient.
CONCLUSION
We hold that although DWOL is a lesser included offense of DWLS under the plain
language of the statute, the DWOL statute does not import the “upon a highway” element into
DWLS. We further hold that sufficient evidence supports Hancock’s conviction, and that the
jury instructions were proper.
We affirm the decisions of the district and superior courts, thus affirming Hancock’s
conviction.
Worswick, J.
We concur:
Johanson, C.J.
Melnick, J.