IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85699-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION SCOTT ELWIN SPRINGSTUN,
Appellant.
HAZELRIGG, C.J. — Scott Elwin Springstun appeals his conviction for one
count of rape in the second degree and avers that the court’s authorization of a
midtrial amendment of the charging instrument prejudiced his defense and the
named victim’s disclosure was untimely and, thus, improperly admitted. Because
he fails to establish reversible error, we affirm.
FACTS
Mindy Martinez married Joseph Broome in 1992, and they later had a
daughter, A.B. Broome’s sister, Dina Klasing met Scott Springstun in 1990, began
dating sometime thereafter, and they married in 1996. Martinez has known
Springstun and Klasing for over thirty years. The four were close, frequently
spending time together, but drifted apart after Martinez and Broome divorced and
Klasing and Springstun did as well. Despite this, Martinez remains close with
Klasing. No. 85699-5-I/2
Martinez lost contact with Springstun until he called her in the spring or
summer of 2018. At the time, he had been living with his cousin, but after an
argument, he started living in his truck. The parties dispute some facts about the
events that unfolded around this time. 1 Martinez later testified that she invited
Springstun to stay with her, and he moved in around May or June 2018.
Springstun, however, testified that he moved into Martinez’ home during the third
week of July, stayed for about five weeks, and left at the end of August.
Shortly after Springstun moved in, A.B. and her son, J, also came to stay
with Martinez. Springstun slept in a recliner in the living room, while A.B. and J
shared Martinez’ bed. Martinez worked nights and slept during the day. A.B.
testified that Springstun stayed with them for a total of eight months, including five
or six months after she and her son moved in.
At first, everything seemed to be going well, but tensions rose when
Springstun began criticizing A.B.’s relationship with her fiancé. The parties also
disputed whether Springstun also made comments about A.B.’s appearance and
the fact that they were not biologically related. A.B. testified that Springstun started
drinking more frequently, becoming loud and aggressive. Springstun admitted to
drinking that summer, but claimed it was only a couple of beers each day. A.B.
stated that she also drank wine a few times a week with dinner and with friends on
weekends.
The State’s witnesses generally testified that in August 2019, after a family
gathering, A.B. told Martinez and Klasing that Springstun had raped her a year
1 The State’s trial memorandum and response brief on appeal portray the events differently
and cite to the conflicting testimony at trial.
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earlier when he was staying with them. A.B. testified that on a Saturday night,
after having a few drinks with dinner, she put her son to bed and fell asleep next
to him. Later, she woke up to find Springstun on top of her, touching and
penetrating her. At first, she thought it was her fiancé, but upon opening her eyes,
she realized it was Springstun. Her underwear had been pushed down to her feet
and she had no memory of moving them. She immediately pushed Springstun off
of her with her hands and knees, telling him to stop. The penetration lasted four
to five seconds, and she could smell alcohol on him. He stopped, but acted
confused; A.B. testified that “he acted like he didn’t understand what the big deal
was.”
When A.B. threatened to tell the family, Springstun offered to buy groceries
and alcohol for them. During an October 2022 defense interview, A.B. explained
that when she told Springstun to move out or she would “say something,” he
attempted to downplay the incident, emphasizing that they were not related by
blood. The entire exchange lasted a few minutes before he left the bedroom, and
A.B. locked the door behind him. Springstun completely denied this version of
events.
The parties’ accounts of the events also differed on whether Martinez and
A.B. asked Springstun to leave and if he notified Martinez before moving out. A.B.
testified that she felt conflicted about whether to call the police or tell her family.
When she woke up the next morning around 8:30 or 9:00 a.m., Springstun was
gone. She did not see him again until trial.
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After A.B. disclosed the rape to them, Martinez and Klasing immediately
went to confront Springstun. Martinez testified that when she asked him whether
he raped A.B., he responded, “Yeah, but I bought her groceries.” Martinez and
Klasing interpreted this statement as an admission; that the groceries were meant
to make up for the incident with A.B. At trial, Springstun denied the accusation
and claimed he brought groceries to remedy his abrupt departure from Martinez’
home and had only mentioned the groceries to Martinez and Klasing in order to
explain why he returned shortly after he had moved out. Martinez and A.B. did not
recall him bringing groceries. Springstun did not offer any other evidence that he
returned to the house and claimed that he had deleted text messages that would
have confirmed it.
On February 26, 2021, the State charged Springstun with one count of rape
in the second degree, an alternate means crime, and specifically alleged that A.B.
was incapable of consenting by reason of being mentally incapacitated and
physically helpless.
Two years later, on May 2, 2023, the State moved to amend the information
based on A.B.’s recounting of the incident during the defense interview on October
21, 2022. The State’s amended information charged Springstun with one count of
rape in the second degree by forcible compulsion or, alternatively, one count of
rape in the third degree based on lack of consent. Defense counsel did not object
to the amendment and stated that they have been on notice of that possibility since
October.
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Springstun moved pretrial to exclude fact of complaint evidence and prevent
testimony regarding A.B.’s disclosure to her family roughly a year after the rape
allegedly occurred. The State expressly moved to admit testimony from Martinez
and Klasing that A.B. disclosed the rape to them. It argued that her disclosure was
admissible as nonhearsay to explain Martinez and Klasing’s actions in confronting
Springstun and, alternatively, it was admissible under the fact of complaint
doctrine. Springstun maintained that A.B.’s disclosure was hearsay and untimely
such that the fact of complaint doctrine did not apply.
The State contended that A.B.’s delay in reporting was reasonable because
she had not thought about Springstun for a year until the family gathering triggered
her memory, at which point she immediately reported the rape to her mother and
aunt. After considering the arguments of the parties, the trial court allowed
Martinez and Klasing to testify about A.B.’s disclosure and gave a limiting
instruction to the jury regarding the evidence.
Trial commenced in May 2023. At the conclusion of the first day of
testimony, the State notified Springstun’s counsel of its intent to again amend the
information. The next morning, on May 16, the State formally moved to amend the
information on the record, but because Springstun was ill and had appeared for
trial by phone, the court recessed for the day without hearing the motion. The
following morning, with Springstun present in person, the court heard and granted
the motion. The second amended information reinstated the original charge of one
count of rape in the second degree, again alleging that A.B. was incapable of
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consenting by reason of being mentally incapacitated and physically helpless, or,
in the alternative, one count of rape in the third degree.
Springstun had objected, arguing that the late amendment prejudiced his
defense because he had already cross-examined A.B. based on a theory of
forcible compulsion and would have done so differently on an allegation of
incapable of consent. While the trial court rejected Springstun’s claim that the
amendment would have changed his cross-examination strategy, it ordered that
A.B. return the next day for Springstun to conduct further cross-examination as a
means to address any potential prejudice.
The jury found Springstun guilty of rape in the second degree on the basis
that A.B. was incapable of consent. The trial court imposed an indeterminate
sentence of 84 months to life in prison, followed by community custody upon
release.
Springstun timely appealed.
ANALYSIS
I. Midtrial Amendment
Springstun avers that the second amendment of the information, which
occurred after A.B.’s cross-examination, violated CrR 2.1 and his rights under
article I, section 22 of the Washington Constitution. Specifically, he contends the
late amendment “shifted the ground under [his] feet, disabling his defense.” The
State responds that the late amendment of the information did not prejudice
Springstun because it did not add charges, require new facts, or affect his trial
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strategy. It also emphasizes that the trial court “ameliorated any potential
prejudice” by allowing further cross-examination of A.B. The State is correct.
Under CrR 2.1(d), the court may permit an amendment to the information
“at any time before verdict or finding if substantial rights of the defendant are not
prejudiced.” But, this rule is limited by our constitution. State v. Gehrke, 193
Wn.2d 1, 7, 434 P.3d 522 (2019). Pursuant to article I, section 22, the “accused
must be informed of the charge [they are] to meet at trial and cannot be tried for
an offense not charged.” State v. Carr, 97 Wn.2d 436, 439, 645 P.2d 1098 (1982).
These constitutional rights inherently limit when and whether the State may make
midtrial amendments to its information. Gehrke, 193 Wn.2d at 7. Thus,
“‘defendants have a right to be fully informed of the nature of accusations against
them so that they may prepare an adequate defense.’” Id. at 6-7 (quoting State v.
Leach, 113 Wn.2d 679, 695, 782 P.2d 552 (1989)).
Deciding whether an amendment should be granted is left to the discretion
of the trial court, and the court’s decision is reviewed only for abuse of that
discretion. State v. Brooks, 195 Wn.2d 91, 96, 455 P.3d 1151 (2020). A trial court
abuses its discretion when its decision is manifestly unreasonable or is based on
untenable grounds or reasons. Id. at 97.
Here, the State moved to amend the information after A.B. testified, but
before formally resting its case. Springstun objected, arguing that while that count
had reverted to its original allegation, he was nonetheless without notice during
jury selection, opening statements, and most critically, A.B.’s cross-examination.
He maintained that the amendment introduced a distinct legal theory with separate
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elements and, had he known about it, he would have cross-examined A.B.
differently. Specifically, he would have challenged the credibility of her claim that
she was asleep, rather than focusing on the absence of any evidence of forcible
compulsion.
The trial court analyzed Springstun’s opening statement and A.B.’s cross-
examination before discussing the relevant case law, including State v. Hampton, 2
which involved a similar factual scenario. It then asked how Springstun would have
cross-examined A.B. differently, given that the State had already charged him with
an inferior degree offense, rape in the third degree, as an alternative. Springstun
responded,
We have to know, we have to have notice so we can craft our defense and our cross-examination. And so there are other areas of impeachment and in terms of flipping the question of which statement are we accrediting. If she’s now saying that she was asleep, then we would accredit the defense interview much more weight and go into more contradictions and why the jury then perhaps should believe the defense version versus her testimony here.
The trial court ultimately permitted the amendment, reasoning that
Springstun had not demonstrated prejudice. However, it gave him another
opportunity to cross-examine A.B., and noted the following:
The defense in this case as articulated to the jury was one of clear acquittal as to both charges. It wasn’t tipping the balance that maybe the rape 3 happened and the rape 2 did not happen. The opening that was given to the jury was a clear not guilty on both counts. This court heard questioning of [A.B.] by the State and the defense, and the defense clearly zeroed in on when she woke up and what was happening when she woke up, which would both be a defense to the amended charge of incapable to consent as well as rape in the third degree.
2 Although the verbatim report of proceedings indicates the judge referred to “the Hamilton
case” during trial, the intended reference was to State v. Hampton, 182 Wn. App. 805, 332 P.3d 1020 (2014), rev’d, 184 Wn.2d 656, 361 P.3d 734 (2015).
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The State, after having read the Hamilton [sic] case, is going to be asking for a lesser-included offense of rape in the third degree. We’ll see if the defense joins in that request or not. And the defense—well, the State still has the opportunity to call [A.B.] in its case in chief. Even if it does not elect to do so, the defense has a right to call, as they cross-endorsed all witnesses at the beginning of this trial, [A.B.] back to the stand to question her more fully as—I’m not sure how more fully you can question her since you already questioned her on this topic about when she woke up and what was happening.
(Emphasis added.)
On appeal, Springstun invokes State v. Pelkey, 109 Wn.2d 484, 487, 745
P.2d 854 (1987) and contends that his “likely successful defense was not just
hobbled, but disabled by the timing of the amendment, the nature and degree of
the prejudice caused is akin to that suffered where an improper amendment is
permitted after the State has rested.”
“A criminal charge may not be amended after the State has rested its case
in chief unless the amendment is to a lesser degree of the same charge or a lesser
included offense.” Pelkey, 109 Wn.2d at 491. “[U]nder ‘the Pelkey rule’ any
amendment from one crime to a different crime after the State has rested is per se
prejudicial.” State v. Martinez Platero, 17 Wn. App. 2d 716, 721, 487 P.3d 910
(2021) (quoting State v. Vangerpen, 125 Wn.2d 782, 791, 888 P.2d 1177 (1995)).
Pelkey does not apply here because the State had not yet rested and its rule
applies only “when the State explicitly states that it will rest its case after moving
to amend, . . . [because] it has functionally rested its case in chief.” Gehrke, 193
Wn.2d at 11.
Springstun alternatively avers reversal is still required because the
amendment prejudiced his ability to craft a defense as it altered the elements the
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State had to prove. He asserts that, had he known about the amended charge
earlier, he would “have been able to seek acquittal in closing argument, or to argue
that the incident, if the jury thought it occurred at all, was only non-consensual third
degree rape.”3 (Emphasis added.) This argument, however, is speculative and
does not establish prejudice. His trial strategy, categorically denying that any
sexual contact occurred, remained unchanged even after the trial court allowed
the amendment and additional cross-examination. Toward that end, he focused
on undermining A.B.’s credibility and highlighting inconsistencies in her
statements.
In determining prejudice under CrR 2.1(d), this court considers factors such
as whether a defendant’s ability to defend themselves was jeopardized and
whether the amended charge arose out of the same factual scenario. State v.
Hakimi, 124 Wn. App. 15, 28, 98 P.3d 809 (2004). Midtrial amendments of a
charging instrument have been allowed where the amendment merely specified a
different manner of committing the crime originally charged. See, e.g., Gehrke,
193 Wn.2d at 19 n.8; State v. Schaffer, 120 Wn.2d 616, 621, 845 P.2d 281 (1993);
Pelkey, 109 Wn.2d at 490-91; State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d
514 (1982).
It is clear from this record that Springstun cannot show that any of his
substantial rights were prejudiced. He fails to demonstrate how the amendment
impaired his ability to defend himself, particularly given his denial defense. The
3 While Springstun argues that his own theory of the case precluded him from challenging
rape in the second degree, premised on A.B. being incapable of consent, he does not explain why he failed to argue non-consensual rape in the third degree.
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amendment did not introduce new charges or facts, nor did it mislead or surprise
Springstun as count one merely reverted back to the original charge, which had
been pending for over two years prior to the initial amendment just before the start
of trial. Our constitution only guarantees notice of the charges one faces, but does
not impose an outright ban on midtrial amendments. See W ASH. CONST., art. I, §
22.
Because Springstun has not shown that his substantial rights were
prejudiced by the State’s amendment prior to resting its case in chief, we hold that
the trial court did not abuse its discretion in allowing the amendment.
II. Evidentiary Rulings
Springstun argues the trial court abused its discretion when it admitted
A.B.’s disclosure to Martinez and Klasing under the effect on the listener doctrine.
He also contends that A.B.’s report to her mother and aunt was inadmissible under
the fact of complaint doctrine because it was untimely.
We review a trial court’s decision to admit evidence for abuse of discretion.
State v. Martinez, 196 Wn.2d 605, 614, 476 P.3d 189 (2020). An abuse of
discretion occurs if the trial court’s decision is manifestly unreasonable,
unsupported by the record, or based on an incorrect legal standard. State v. Burns,
193 Wn.2d 190, 202, 438 P.3d 1183 (2019).
Here, the trial court carefully analyzed relevant hearsay rules, fact of
complaint caselaw, and the circumstances surrounding A.B.’s disclosure to her
mother and Klasing. It granted the State’s motion and noted the following:
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First, I’m admitting it under ER 801(c) as not hearsay and not offered for the truth of the matter asserted, but I’m admitting it as the effect on the listener and explanation for the mother’s next step after listening to the complaint of the rape, of why the mother went to the defendant’s home to speak to him about the complaint after having not seen him in just over a year after he moved out of the home. This conversation I find to be a central issue in the case as to the events that transpired the night of the family gathering and the mother and aunt’s subsequent conversation that night with the defendant. .... I will be giving a limiting instruction regarding the evidence. Additionally, since I’m admitting it as two forms of evidence, as complaint evidence and under 801(c), I’m going to take the more restrictive path for the complaint evidence about what is actually admissible. So, for instance, under 801(c), the fact of the defendant’s identification or even some details may be admissible under 801(c). But under the complaint rule, only the fact that she stated she was raped comes in. It doesn’t go to the details of the allegation. It doesn’t go to the identity of the defendant. And so I’m going to take the more restrictive rule and apply that application as admissible evidence in this case. Again, under either rule, it’s not admitted for the truth of the matter asserted as substantive evidence. So the more restrictive method will be applied here, and I will give a limiting instruction as to why this evidence is being admitted. And I will defer to the defense to draft the limiting instruction or at least take a first crack at it. And I will defer to the defense as to when you want that read. So if you want it read while the testimony is taking place, if you want it read earlier than that, or if you want it as just part of the jury instruction packet, or whether you want it read twice when the testimony is given and in the jury instruction packet. I defer to you on how you are urging the court to give a limiting instruction. If you don’t want a limiting instruction, and I think that one does need to be given, but I will hear argument if you really do not one [sic] given to draw attention to it. So I defer to you on that. And you don’t need to respond now. I’ll give you the day to digest that and we can handle it maybe at the end of the day or on Monday. But let’s readdress it before opening statement so I know exactly what your thoughts are on that.
Springstun avers that the effect on the listener rationale was improper. He
relies on State v. Rocha, where Division Three of this court held that an out-of-
court statement was irrelevant for the nonhearsay purpose for which it was
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admitted. 21 Wn. App. 2d 26, 31-32, 504 P.3d 233 (2022). However, Rocha is
distinguishable. There, the hearsay statement had no relevance, apart from
establishing that father and son had argued, to prove the son had a motive to set
a car on fire on his father’s property. Id.
Here, A.B.’s disclosure explained Martinez and Klasing’s actions in
confronting Springstun after he moved out a year prior. It was not offered to prove
the truth of the matter asserted. See ER 801(c). “An out of court statement offered
to prove the mental or emotional effect upon the hearer or reader is not
objectionable as hearsay.” 5C KARL B. TEGLAND, W ASHINGTON PRACTICE: EVIDENCE
LAW AND PRACTICE § 803.15, at 52 (6th ed. 2016). Hearsay statements not offered
for their truth but for another relevant purpose may be admitted. State v. Aaron,
57 Wn. App. 277, 280, 787 P.2d 949 (1990). Hearsay statements not offered for
their truth are inadmissible only if the purpose for which they are offered is
irrelevant. Rocha, 21 Wn. App. 2d at 31-32.
The State contends that this confrontation was highly relevant because it
explained how Martinez and Klasing came to confront Springstun, which provided
context for their interpretation of Springstun’s response and demeanor as a tacit
admission that he had raped A.B. We agree with the State as to relevance. 4
4 The State separately avers that although Springstun objected to the evidence on hearsay
grounds at trial, he did not raise this specific objection that he now asserts on appeal: that the effect on the listener basis for admission is no longer valid. A party may assign error in the appellate court only on the specific ground of the evidentiary objection made at trial. State v. Scherf, 192 Wn.2d 350, 386, 429 P.3d 776 (2018). While Springstun likely failed to preserve this particular issue for appeal, the State nonetheless provided a substantive response in briefing such that we exercise our discretion to analyze this assignment of error given its relationship to Springstun’s other challenge to this same evidence.
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Springstun also fails to demonstrate prejudice. The trial court provided a
limiting instruction during A.B.’s and Martinez’ testimony that stated the following:
[Y]ou may consider this testimony only for a limited purpose: that (1) she made the complaint, (2) the effect of hearing that assertion had on Ms. Martinez and Ms. Klasing. It is not admitted for the truth of the statement. You may not consider this evidence for any other purpose.
At the close of the evidence, the court repeated this limiting instruction, referencing
the testimony of A.B., Martinez, and Klasing. 5 We presume the jury follows the
court’s instruction. State v. Rivers, 1 Wn.3d 834, 869-70, 533 P.3d 410 (2023). This
evidence was relevant to provide context for the interaction that the State presented
as an effective admission by Springstun. Contrary to Springstun’s assertion in his
opening brief, this is a valid basis for admission.
The trial court did not abuse its discretion given the significant discretion it
has to consider the circumstances and admit evidence under the effect on the
listener doctrine. Because it was separately admissible under this doctrine, we need
not reach the merits of Springstun’s challenge to its admission pursuant to the fact
of complaint doctrine.
III. Cumulative Error
Finally, Springstun argues that the cumulative error doctrine applies,
asserting that even if no single error requires reversal, the totality of alleged errors
denied him a fair trial. The record does not support his claim.
5 The State points out in its brief, in the context of its harmless error analysis, that the
challenged testimony consisted of a simple “yes” from both Martinez and Klasing. Because we conclude that A.B.’s disclosure was properly admitted and did not prejudice Springstun’s substantial rights, we need not consider the State’s argument on harmless error.
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“Under the cumulative error doctrine, a defendant may be entitled to a new
trial when cumulative errors produce a trial that is fundamentally unfair.” State v.
Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012). Even if any individual error
standing alone would otherwise be harmless, the doctrine may warrant reversal
when the errors are taken together. State v. Weber, 159 Wn.2d 252, 279, 149
P.3d 646 (2006). “The doctrine does not apply where the errors are few and have
little or no effect on the outcome of the trial.” Id.
Springstun fails to demonstrate any individual or cumulative error
warranting reversal. Accordingly, the cumulative error doctrine does not apply
here.
Affirmed.
WE CONCUR:
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