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State v. Turner

January 13, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
LARRY B. TURNER, JR., APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-05060-1. Date filed: 05/08/95. Judge signing: Hon. Richard A. Jones.

Authored by C. Kenneth Grosse. Concurring: Walter E. Webster, Susan R. Agid.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- Larry B. Turner, Jr., appeals his conviction for tampering with a witness. He claims the trial court erred by permitting the State to amend the complaint after both parties rested. *fn1 Additionally, Turner claims that even if the complaint was properly amended, the evidence was insufficient to convict him of attempting to induce the witness to testify falsely, to withhold testimony, or to absent herself from the proceedings. We disagree and affirm the court below.

Larry Turner and Angela Findley were involved in a personal relationship lasting a number of years. Findley had a son by Turner and they lived together until early July 1994 when Findley and the child moved into an apartment with another single mother and her child.

One evening shortly thereafter, Findley and her roommate left their children at home in the care of a cousin of the roommate. Turner came to visit while the women were away, but left. Findley returned home in the early morning hours but went to another apartment in the same building to visit a friend. In the meantime, Turner returned to take his son with him because he did not believe the baby-sitter was an appropriate guardian for the child. Turner was told that he would have to talk to Findley before he could take the child. He went to find Findley. There was disagreement about whether Turner could or should take their son, and as Findley returned to her apartment she attempted to close the door on Turner. He followed Findley inside the apartment, pushing or kicking the door open as it came toward him. Turner then punched Findley in the face and ran out of the apartment.

Turner was charged with first degree burglary. The information was later amended to accuse Turner with the crime of tampering with a witness, alleging he "did induce [Findley] to testify falsely and/or absent herself from the proceedings," contrary to RCW 9A.72.120. This charge arose from telephone contact and a letter sent to Findley while Turner was in jail awaiting trial. Turner spoke to Findley several times by phone in which, according to Findley, Turner stated he was sorry, that the incident was not worth doing time for, and that it would not happen again. A suggestion was made that Findley contact Turner's attorney to see what Findley could do to help.

Trial was held. After both parties rested, the State moved to amend the information when it discovered the charging document and the language of the statute were not parallel. The court determined Turner would not be prejudiced by the post-evidence amendment and granted the motion to amend.

The jury was unable to reach a verdict on the burglary charge but convicted Turner of tampering with the witness. Subsequently, Turner entered an Alford plea to a charge of trespass in the first degree. Turner was sentenced within the standard range. He appeals the conviction on the amended tampering charge.

Turner argues the trial court abused its discretion when it granted the motion to amend after both parties rested. The allowed amendment interlineated the words "attempt to" in count 2 of the information. *fn2 The granting of a motion to amend is reviewed under an abuse of discretion standard. *fn3 This case is controlled under CrR 2.1(d) and the case of State v. Vangerpen. *fn4 CrR 2.1(d) states that a court may permit amendment of an information at any time before a verdict as long as substantial rights of the defendant are not prejudiced. However, CrR 2.1(d) has been limited by case law. Once the State has rested, it may amend a charge only to a lesser included offense of the crime charged or to a charge of an inferior degree. *fn5 An attempted crime is a lesser included offense of the crime charged and a jury may convict a defendant of "attempting to" commit a crime charged even though the attempt was not specifically charged. *fn6 The record shows, contrary to Turner's argument, that the interlineation did not add an essential element of the crime, nor did the State amend to charge a different crime, but merely one of a lesser included crime. Further, the record before this court shows that the defendant's own proposed supplemental jury instructions, submitted before the formal amending of the information, included as a part of the definition of tampering with a witness, the "attempt" language. There clearly was no prejudice to Turner by the court's granting of the motion to amend.

It is arguable that the State did not have to amend the information to include "attempt to" because "to induce" necessarily includes an "attempt to induce". It only makes sense that a defendant could not complete an act without first making and attempt to complete it. In fact, the interlineation of "attempt to" merely clarified or resolve a "technical" or, perhaps better stated, "conceptual" error. There was no abuse of discretion and the decision of the trial court is affirmed.

Turner claims that even if the complaint was properly amended there was insufficient evidence to support the conviction of tampering with a witness. The test for determining the sufficiency of the evidence on appeal is "whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." *fn7 he letter from Turner to Findley is sufficient evidence that Turner wanted Findley to absent herself from trial. If unable to absent herself from the trial then Turner wanted her to recant what she previously told the police and assert the Fifth Amendment at trial. Finally he suggested that she try to minimize what happened by saying it was all just an argument, in effect a lie. The attempt to get her to do this was reinforced through his veiled threat that if he was incarcerated for this charge he never wanted anything to do with her or their son again.

The letter is sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Turner was tampering with a witness, or at least that he was attempting to tamper with Findley's presence or testimony. As such the conviction is affirmed.

WE CONCUR:

Walter E. ...


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