## Facts

- The State charged Perry James Bache with communication with a minor for immoral purposes and indecent exposure based on conduct involving a child at a park.
- The charged offenses are misdemeanors unless the defendant has specified prior sex-offense convictions; the State alleged Bache had 2004 convictions for the same offenses.
- Before trial, Bache sought bifurcation so the jury deciding current conduct would not hear about prior convictions; the trial court denied the request.
- Over objection, the trial court read the information to the venire, including the prior-conviction allegations.
- The trial court admitted the child’s out-of-court statements to her mother and to an officer under hearsay exceptions, including excited utterance; the mother described the child as fidgety, teary, and shaken.
- The jury convicted Bache on both counts as charged (felony versions based on prior convictions).
- In the 2004 case, the State alleged a probation violation for failing to provide an approved address; Bache argued the original 48-month probation term exceeded the lawful maximum, depriving the court of jurisdiction in 2007.
- Bache appealed both the felony convictions and the probation-modification order.

## Issues

1. Whether the prior convictions that elevate the charged offenses from misdemeanors to felonies are essential elements that must be submitted to the jury and proved beyond a reasonable doubt with proper instructions.
2. Whether the trial court abused its discretion by admitting the child’s out-of-court statements to her mother and to police as excited utterances or under other hearsay exceptions.
3. Whether the superior court had jurisdiction to modify probation in 2007 if the 2004 probation term exceeded the statutory maximum.

## Decision

- The Court of Appeals reversed the felony convictions and remanded for further proceedings.
- The court held the prior convictions that convert the offenses from misdemeanors to felonies are essential elements, but the jury was not instructed to find them beyond a reasonable doubt.
- The court upheld the trial court’s admission of the child’s statements under the excited-utterance and related hearsay exceptions.
- The court vacated the order modifying probation in the 2004 case and remanded for reconsideration of the legality of the probation term and related jurisdiction.

## Legal Principles

- The State must prove every essential element of a charged crime beyond a reasonable doubt, and the jury must be instructed on those elements.
- When a prior conviction changes the degree or classification of an offense (e.g., from misdemeanor to felony), the prior conviction functions as an element, not merely a sentencing factor.
- A conviction obtained without submitting an essential element to the jury is constitutional error that requires reversal unless harmless beyond a reasonable doubt.
- Excited-utterance admissibility turns on whether the declarant was still under the stress of the event, evaluated through timing and the declarant’s observed emotional condition.
- A court’s authority to enforce or modify probation depends on a lawfully imposed probation term and the court’s continuing jurisdiction.

## Conclusion

The court reversed and remanded Bache’s felony convictions because the jury was not instructed to find the predicate prior convictions that made the offenses felonies, and it vacated and remanded the probation-modification order for reconsideration of the probation term’s legality and the court’s jurisdiction.


State v. Bache, 146 Wn. App. 897 (Wash. Ct. App. 2008)