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State v. Keith

January 13, 1997

STATE OF WASHINGTON, RESPONDENT
v.
ALLAN W. KEITH, APPELLANT.



Appeal from Superior Court of Snohomish County. Docket No: 94-1-01380-1. Date filed: 05/02/95. Judge signing: Hon. James H. Allendoerfer.

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

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- Allan Keith appeals his convictions for two counts of rape of a child in the first degree and one count of child molestation in the first degree. He argues that his constitutional right to know the nature of the accusations made against him was compromised when the State amended the information to narrow the time frame of the alleged offenses while the jury was deliberating. We affirm the convictions because the amendment did not add a new crime and because Keith has not shown any prejudice.

Keith also argues that his restitution order must be vacated because the restitution amount was not determined within the mandatory time period.

The State concedes that the order was untimely entered.

This opinion has no precedential value and will be filed according to the rules of the court. See RCW 2.06.040; RAP 10.4(h). The facts are known to the parties and will be mentioned only as necessary for an understanding of this opinion.

Amendment of the Information

As submitted to the jury, Keith was charged with two counts of first degree child rape of C., and with one count of first degree child rape and one count of first degree child molestation of J. The charging periods ran from the victims' birthdates, which were October 23, 1983 and December 21, 1981, respectively, to September 7, 1994. After the jury had deliberated for two hours and gone home for the day, the State realized that the charging periods partially preceded the charging statutes' operative date of July 1, 1988. See RCW 9A.44.073; RCW 9A.44.083. To avoid the possibility that any convictions would be arrested for failure to charge a crime, the State moved to amend the information to narrow the time frame to conform with the statutes' operative date. See CrR 7.4(a)(2). The court noted that it had discretion to allow amendment at any time prior to verdict, so long as the defendant was not prejudiced. See CrR 2.1(d).

Defense counsel could not articulate any prejudice:

Court: By narrowing the charging period and saying that the jury must now find that all four crimes were committed, if at all, after July 1, 1988, have I in some way prejudiced Mr. Keith?

D. Counsel: I don't have any information to provide the -- or argument to provide the Court.

The court then determined that there was insufficient evidence to establish the date of the rape charge against J. and therefore dismissed this count. The court otherwise granted the motion to amend and submitted substitute instructions.

Keith argues that the amendment violated his constitutional right to "demand the nature and cause of the accusation against him." See Wash. St. Const., art. 1, sec. 22. The purpose of art. 1, sec. 22 is to provide defendants with sufficient notice of the charge against them so that they will not be prejudiced in preparing their defense. See, e.g., State v. Schaffer, 120 Wash. 2d 616, 626, 845 P.2d 281 (1993) (Johnson, J., Dissenting). Thus, the provision generally precludes the amendment of an information after the State has rested unless that amendment is to a lesser degree of the same charge or to a lesser included offense. See, e.g., State v. Pelkey, 109 Wash. 2d 484, 491, 745 P.2d 854 (1987). Amendments may be allowed to change charging periods, however, where the change is not a material element of the criminal charge. State v. Debolt, 61 Wash. App. 58, 61-62, 808 P.2d 794 (1991); see Pelkey, 109 Wash. 2d at 490-91.

Keith argues that the amendment was per se prejudicial because the information was amended while the jury was deliberating. Keith also argues that he was prejudiced because counsel may have modified their trial strategies had they been ...


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