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State v. Bair

December 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
DWAYNE BAIR, APPELLANT.



Appeal from Superior Court of Whatcom County. Docket No: 93-1-00279-6. Date filed: 06/20/94. Judge signing: Hon. David S. Nichols.

Petition for Review Denied May 6, 1997,

Authored by Mary K. Becker. Concurring: Susan R. Agid, Ann L. Ellington.

The opinion of the court was delivered by: Becker

BECKER, J. -- The State filed charges against Dwayne Bair involving his improper sexual activity with several children in his shed where he had invited them to do woodworking projects. A jury convicted Bair on three counts of child molestation and two counts of indecent exposure. We affirm the conviction.

First, Bair invited any error pertaining to the amendment of the information. Second, evidence of ejaculation sufficiently supported conviction for indecent exposure even though the child did not actually see Bair's genitals. Third, the evidence did not require a finding that the two incidents of molestation were the same criminal conduct.

The restitution order is vacated as untimely.

AMENDMENT OF THE INFORMATION

The charges on which Bair went to trial initially included a count of rape. The victim testified that Bair licked her in her genital area.

After the State rested its case, Bair moved to dismiss the rape count, arguing that the evidence was sufficient to convict for child molestation, but not rape. The court denied the motion to dismiss. Notwithstanding the court's decision, the prosecutor said he would consider amending the rape charge to molestation. About 9:00 the next morning the State submitted revised instructions which changed the rape charge to molestation. Bair's counsel then stated that he "obviously" had no objection to the amendment.

The following colloquy took place:

THE COURT: First of all, for the record, I'd like to clarify that counsel discussed the change from child rape one to child molestation one with his client, that they both concur in that change so there isn't dispute if we change the attorney at the appellate level. I understand that's the case?

[DEFENSE COUNSEL]: Yes.

The trial continued with Bair testifying, and the State cross-examining him.

About 1:30 the same afternoon, Bair's counsel, expressing a desire to be able to maintain on appeal the position that the court should have dismissed the rape count for insufficiency, stated that he now opposed amending the information. The court declared that it perceived counsel to be attempting to withdraw from a stipulated agreement. The court refused to backtrack, and merely permitted Bair to state his position for the record.

On appeal, Bair claims the court erred in permitting the State to amend the information after it rested ...


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