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Washington v. Debolt

as corrected.: April 29, 1991.

THE STATE OF WASHINGTON, RESPONDENT,
v.
ROBERT JAMES DEBOLT, APPELLANT



Baker, J. Pekelis and Forrest, JJ., concur.

Author: Baker

Robert DeBolt appeals his conviction on two counts of indecent liberties, alleging that the trial court erred in permitting the amendment of the information after the State had rested and DeBolt had testified. We affirm.

I

Robert DeBolt married Lynn DeBolt and adopted her daughter, C., age 3. C., who was 12 years old at the time of trial, testified that DeBolt began molesting her when she was 8 or 9 years old. She testified the incidents occurred when her mother was bowling, her younger brother was in bed, and she and DeBolt were watching television. She stated that once DeBolt pulled her onto his lap, unhooked her bra, fondled her chest under her nightgown, and touched her public area. This incident was charged in count 1. In a second incident charged in count 2, C. testified that

she was in DeBolt's bedroom watching the Grammy Awards on television when he came in, took off his clothes, got into bed and pulled her under the covers. She was wearing a nightgown, bra, and underwear. He then started touching her under her bra on her chest and on her pubic area.

C. telephoned her sister, S., the following day to tell her about the incident and to obtain her natural father's phone number. Her sister did not give her the number and advised her to tell her mother. C. did so.

DeBolt denied the touching incidents and the statements attributed to him by C. He opined that C. was a frustrated girl who made these allegations because she wanted to get away from home. DeBolt stated his wife bowled Monday nights from 6 p.m. to 9 p.m., and because C. went to bed before her younger brother, there was never a time when C. and he would be alone watching television while her brother was asleep.

S. testified that C. was upset and afraid when she called her in April 1988 and told her about the incidents with DeBolt. S.'s mother testified that after C.'s phone call, she called Child Protective Services (CPS). A CPS social worker testified C. reluctantly related the details of the incident to him.

After the State had rested its case and DeBolt had testified, the State moved to amend the time periods of the two counts charged. The court denied amendment of the first count, but permitted the State to amend the charging period of the second count from "March 1, 1988 through March 30, 1988" to "December 26, 1987 to April 13, 1988." The court noted that the parties had clearly discussed count 2 as the Grammy Awards incident and that if anybody had been concerned about the date when the incident occurred, they could have called the television station. The court granted the defense a 2-day continuance. The court further noted that the amendment was highly technical, that the defense was not prejudiced, and the nature of the case was not changed. There was no alibi defense as to any specific dates.

Subsequently, a television executive called by the defense testified that the Grammy Awards aired on March 2, 1988. Because March 2 was not a Monday, i.e., a bowling night, the court permitted the State to recall C. as a rebuttal witness to testify that her mother was ...


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