This opinion was IN' "XX CLERKS OFFICE * 5?/, filed y Tlfor -T- record xX y, ^ ' swcre OF WftSHNStOH atJ^z>go iMM-ilBO <^tuor.-rH Ck^—- . SusanL.Carlson Supreme Court Clerk cHia=jusrtce
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 97150-1 Respondent,
V.
En Bane KENNETH CHANCE BROOKS,
Petitioner. Filed JAN 2 3 2020
MADSEN,J.—In this ehild molestation and rape case, we are asked to determine
whether the trial court abused its discretion in granting the State's motion to expand the
time period noted in the information after both the State and the defense rested. We hold
that under the circumstances of this case, the trial court did not err, and we affirm the
Court of Appeals, thereby affirming defendant's conviction.
FACTS
In 2014, C.H.' was 15 years old, and lived with her mother and sister in an
apartment in Longview, Washington. C.H.'s older brother (by six years) did not live with
her but would come over to the apartment frequently.
We refer to the victim, a minor, by her initials to preserve her privacy. No. 97150-1
Defendant Kenneth Brooks was a good friend of C.H.'s brother. Brooks was eight
years older than C.H. and had known C.H. since she was nine years old. C.H. considered Brooks to be like a brother to her.
In January 2014, Brooks was living in California but came to visit both C.H.'s
family and his own. Brooks alternated staying with his relatives and at C.H.'s apartment.
During this time, Brooks and C.H. would watch Netflix alone together in the living room.
While watching Netflix with C.H., Brooks would cuddle with her. One evening, while
they were laying on the couch together. Brooks reached into C.H.'s shirt and began
rubbing her breast. C.H. became frightened and did not move. This continued for about
five minutes. C.H. did not reciprocate, and eventually. Brooks stopped.
C.H. was upset. Brooks told C.H. it would not happen again and asked her not to
tell her mom. Two days later, C.H. told her mom what had happened. C.H.'s mom did
not contact the police, however, and Brooks returned to California.
In the summer of 2014, Brooks returned to visit with his girlfriend from
California, and they stayed with C.H.'s family. On the evening of August 16, 2014, C.H.,
her sister, and Brooks were at home, downstairs. C.H.'s mother was upstairs. C.H., her
sister, and Brooks played games while drinking beer and vodka into the morning of
August 17, 2014. C.H. became intoxicated and passed in and out of consciousness.
Brooks raped C.H. and then left her to sleep.^
^ Details of the rape are not necessary as Brooks' rape conviction is not challenged. Much ofthe trial was taken up with testimony concerning forensic, DNA (deoxyribonucleic acid), and other evidence corroborating C.H.'s testimony regarding the rape. No. 97150-1
C.H. was still intoxicated and was vomiting until 2:00 p.m. on August 17. C.H.
told her sister what had happened, and the police were notified. The police came to
C.H.'s home and gathered evidence regarding the rape allegation.
On August 17, 2014, Brooks called C.H.'s mother and left a voicemail stating he
would tell her what happened and he would apologize. Brooks returned to California.
Brooks was ultimately charged with rape of a child in the third degree for raping C.H. on
or about August 17, 2014, and child molestation in the third degree for molesting C.H. at
a time "on or about or between" January 1, 2014 and January 31, 2014. Clerk's Papers
(CP)at 1. On February 22, 2017, the case proceeded to trial, and C.H. testified to events
as described above.
At trial, after the State rested. Brooks testified. Brooks stated that on occasions in
2014, when he would visit from San Francisco, he would stay at C.H.'s apartment. When
asked if he was in Washington in January 2014, Brooks responded,"I cannot say on
January. I know I was here in May [2014]." Verbatim Report ofProceedings (Feb. 23,
2017)(VRP)at 54. Brooks testified that while he and C.H. were at her apartment
watching a movie, he touched C.H.'s breasts inappropriately with his hand. Brooks said
this was the only time that he touched C.H. inappropriately. Brooks believed he touched
C.H. in May because he claimed this was when he had sent a text message apologizing to
C.H.
As to the rape allegation. Brooks offered a general denial. Brooks admitted that he
drank with C.H. and her sister on the night of August 16, 2014. Brooks testified that No. 97150-1
C.H. was intoxicated and passing out, so he took her upstairs to her room so she could go
to bed. But he denied having sex with C.H.
After Brooks testified, the defense rested. Prior to instructing the jury, the State
moved to amend the information, expanding the date range on the child molestation in
the third degree charge. Brooks objected but provided no basis for his objection and did
not request a continuance. The trial court granted the State's motion to amend the information regarding the third degree child molestation charge and revised the
to-convict instruction accordingly. The amended information provided a date range of
"on or about or between [January 1, 2014] and [May 31, 2014]." CP at 8.
In closing argument. Brooks' attorney conceded that the State had proved beyond
a reasonable doubt that Brooks was guilty of child molestation in the third degree.
Defense counsel argued that Brooks had admitted to this crime and apologized for it.
Defense counsel contrasted Brooks' admission to molesting C.H. with his denial of
sexual intercourse to bolster his contention that the State had not proved the rape beyond
a reasonable doubt. The jury found Brooks guilty of both third degree child rape and
third degree child molestation.
Brooks appealed only the molestation conviction, arguing the trial court abused its
diseretion by allowing the amendment. Brooks claimed the amendment caused him to
lose the opportunity to adjust his defense strategy, claiming if he had known the State
would amend the date range, then he might have deeided not to testify. The Court of
Appeals affirmed Brooks' conviction, finding that the trial court did not abuse its
discretion in allowing the amendment to the date range. State v. Brooks, No. 50299-2-II, No. 97150-1
slip op. at 1 (Wash. Ct. App. Jan. 15, 2019)(unpublished),
https://www.courts.wa.gOv/opinions/pdf/D2%2050299-2-
II%20Unpublished%200pinion.pdf. Brooks then petitioned for review, which this court
granted. State v. Brooks, 193 Wn.2d 1036, 447 P.3d 544(2019).
ANALYSIS
Brooks contends that the trial court abused its discretion in granting the State's
motion to amend the information concerning the molestation charge after both parties had
rested. Specifically, he contends that such late amendment "undermined [his] trial
strategy, prejudicing his rights to know the charges, to prepare and present a defense, and
to decide whether to testify or remain silent." Suppl. Br. of Pet'r at 13.
This court reviews a decision to grant a motion to amend the information for abuse
of discretion. State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995); State v. Lamb, 175
Wn.2d 121, 130, 285 P.3d 27(2012). A trial court abuses its discretion if its decision is
manifestly unreasonable or based on untenable grounds or reasons. Lamb, 175 Wn.2d at
127. A court's decision is based on untenable reasons if it is based on an incorrect
standard or the facts do not meet the requirements of the correct standard. Id. A court's
decision is manifestly unreasonable if it is outside the range of acceptable choices, given
the facts and the applicable legal standard. Id.
As required by the federal and state constitutions, the State must allege in the
charging document all essential elements of a crime to inform a defendant of the charges
against him and to allow for preparation of his defense. See U.S. CONST, amend. VI;
Wash. Const, art. I, § 22; of. State V. Mason, 170 Wn. App. 375, 378-79, 285 P.3d 154 No. 97150-1
(2012)(charging document is constitutionally sufficient if the information states each
essential element of the erime, even if it is vague as to some other matter significant to
the defense); id. at 379 (eourts first look to the statute to determine the elements that the
prosecution must prove to sustain a conviction). Here, the date ofthe offense is simply
not an essential element ofthe crime charged—third degree child molestation.^ See State
V. Goss, 186 Wn.2d 372, 379, 378 P.3d 154(2016)(essential element is one whose
specification is necessary to establish the very illegality ofthe behavior eharged).
Further, court rule provides for amendment ofthe information. CrR 2.1(d)
provides that an information may "be amended at any time before verdict or finding if
substantial rights ofthe defendant are not prejudiced." This rule, however,"necessarily
operates within the confines of article 1, section 22." State v. Pelkey, 109 Wn.2d 484,
490, 745 P.2d 854(1987). Accordingly, this court adopted a bright-line rule in Pelkey,
stating:
A criminal charge may not be amended after the State has rested its case in ehief unless the amendment is to a lesser degree of the same charge or a lesser included offense. Anything else is a violation ofthe defendant's article 1, section 22 right to demand the nature and cause of the accusation against him or her. Such a violation necessarily prejudices this substantial constitutional right, within the meaning of CrR 2.1(e)[(now CrR 2.1(d))].
3 RCW 9A.44.089(1) provides: A person is guilty of child molestation in the third degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim. No. 97150-1
Id. at 491 (emphasis added). Pelkey addressed the State's amendment ofthe information
to a new offense, that is, a different crime with different elements (from bribery to trading
in special influence). Id. at 487; see also State v. Peterson, 133 Wn.2d 885, 893, 948
P.2d 381 (1997){Pelkey held "no prejudice need be shown when the amendment is to a
different charge and the amendment is made after the State has rested."(emphasis
added)). That is not the case here: before and after the amendment, the crime charged
(third degree child molestation) and its essential elements remained the same; only the
date was expanded. Accordingly, the Court of Appeals here correctly rejected Brooks'
contention that the date amendment at issue was reversible error under Pelkey. See
Brooks, No. 50299-2-II, slip op. at 7.
"Where the Pelkey rule does not apply, the defendant has the burden of
demonstrating prejudice under CrR 2.1(d)." State v. Ziegler, 138 Wn. App. 804, 809, 158
P.3d 647(2007)(citing State v. Brown, 111 Wn.2d 124, 761 P.2d 588(1988)(plurality
opinion)). Here, because the amendment concerns only a date expansion. Brooks cannot
show the required prejudice.
Cases involving amendment of the charging date in an information have held that the date is usually not a material element of the crime. Therefore, amendment of the date is a matter of form rather than substance, and should be allowed absent an alibi defense or a showing of other substantial prejudice to the defendant.
State V. DeBolt, 61 Wn. App. 58, 61-62, 808 P.2d 794(1991); see also State v. Goss, 189
Wn. App. 571, 576, 358 P.3d 436 (2015), aff'd, 186 Wn.2d 372(same). In DeBolt,
which also concerned sex crimes against minors, the State moved to amend the time
periods of the two charged indecent liberties counts after the State had rested and the No. 97150-1
defendant had testified. Division One ofthe Court of Appeals affirmed expansion of an
information time period from one month to four months. DeBolt, 61 Wn. App at 60.
Division One explained,
Pelkey refers to a "criminal charge" being amended. Pelkey, 109 Wn.2d at 491. Since the date here was not a material part of the "criminal charge", this case falls outside the ambit ofPelkey. The precise date the abuse occurred was not a critical aspect ofthe original information, which alleged the act was committed during a period oftime. Children often cannot remember the exact date of an event, and in cases of sexual abuse, they may repress memory of that date.
Id. at 62(emphasis added)(internal quotation marks omitted). In DeBolt, as here, "the
crime charged remained the same after the amendment." Id.', see also State v. Allyn, 40
Wn. App. 27, 35, 696 P.2d 45 (1985)(where elements ofthe crime charged remained the
same both before and after the change of the date, such change in date is not material
where no alibi is claimed). The DeBolt court concluded that "the amendment neither
violated [defendant's] constitutional rights, nor resulted in prejudice." Id. at 63. The
only relevant difference between this case and DeBolt is that the trial court in DeBolt
granted the defendant a two-day continuance. While no continuance was granted here.
Brooks did not ask for one. See State v. Brown,74 Wn.2d 799, 801, 447 P.2d 82(1968)
(defendant cannot claim error from the amendment of an information unless she can
show she was prejudiced thereby; if defendant was misled or surprised by the amendment
of the information, she was entitled to move for a eontinuance to secure time to prepare
her defense, and the fact that she did not do so is persuasive of a lack of surprise and
prejudice); see also State v. Hayes, 81 Wn. App. 425, 441, 914 P.2d 788(1996)(time is
not of the essence in sexual assault charges, and it does not become an element of an
8 No. 97150-1
offense merely because the defendant pleads an alibi defense); State v. Vangerpen, 125
Wn.2d 782, 790, 888 P.2d 1177(1995)(convictions based on charging documents that
contain only technical defects, such as an error in the date ofthe crime, usually need not
be reversed); State v. Schaffer, 120 Wn.2d 616, 620, 845 P.2d 281 (1993)('"Technical
defects not affecting the substance ofthe charged offense do not prejudice the defendant
and thus do not require dismissal.'"(quoting State v. Leach, 113 Wn.2d 679, 696, 782
P.2d 552(1989))); see also State v. Pitts, 62 Wn.2d 294, 298, 382 P.2d 508(1963)
(defendant should not escape his transgressions merely because the time of commission
cannot be fixed in precise terms); State v. Osborne, 39 Wash. 548, 551, 81 P. 1096(1905)
(allegation oftime in an information is immaterial other than it must be shown on the
face of the information that the right to prosecute for the crime charged is not barred by
the statute of limitations).
Finally, the wording ofthe time reference in the original information put Brooks
on notice that the molestation charge was alleged flexibly as to the timing of that
incident. As noted, the original information charged Brooks with child molestation in the
third degree "on or about or between [January 1, 2014] and [January 31, 2014]." CP at 1.
"[W]here time is not a material element ofthe charged crime, the language 'on or about'
is sufficient to admit proof ofthe act at any time within the statute of limitations, so long
as there is no defense of alibi." Hayes, 81 Wn. App. at 432. "'Where the [information]
alleges that an offense allegedly occurred 'on or about' a certain date, the defendant is
deemed to be on notice that the charge is not limited to a specific date.'" State v. Statler,
160 Wn. App. 622, 640-41, 248 P.3d 165 (2011)(alteration in original)(internal No. 97150-1
quotation marks omitted)(quoting State v. Bergin, 214 Conn. 657, 574 A.2d 164, 173
(1990)); see also State v. Oberg, 187 Wash. 429, 432,60 P.2d 66(1936)("the time
designated in the information was on or about April 3. That was sufficient to admit proof
of the act at any time within the statute of limitations, there being no defense of alibi.").''
In his supplemental brief. Brooks relies on State v. James, 108 Wn.2d 483, 739
P.2d 699(1987), and State v. Hakimi, 124 Wn. App. 15, 98 P.3d 809(2004), but those
cases do not assist him. In James(a pvQ-Pelkey case), this court affirmed the trial court's
granting of a pretrial motion to amend the charge to first degree murder. James is too
different to offer any useful guidance here. But this court did note that "CrR 2.1(e)[(now
CrR 2.1(d))] controls the trial court's discretion and this court's review." James, 108
Wn.2d at 486. "Under CrR 2.1(e), a trial court 'may permit any information or bill of
particulars to be amended at any time before verdict or finding if substantial rights of the
defendant are not prejudiced.' The defendant has the burden of showing specific
prejudice to a substantial right." Id.(quoting State v. Aleshire, 89 Wn.2d 67, 71, 568
P.2d 799(1977)).
'' Amicus Washington Association of Criminal Defense Lawyers(WACDL)argues in part that Brooks' case is "analogous to an alibi situation." Br. of WACDL as Amicus Curiae at 2. It is not. Here, Brooks confessed to the molestation while testifying at trial. He thought it occurred in May rather than in January, as C.H. testified. When asked if he was present in Washington in January 2014, he testified that he could not recall. VRP at 54. "An alibi defense denies that the defendant committed the crime." State v. Riker, 123 Wn.2d 351, 367, 869 P.2d 43 (1994); State V. Johnson, 19 Wn. App. 200, 205, 574 P.2d 741 (1978)('"by asserting that he was at another place at the time when the alleged crime was committed, the defendant is denying by necessary implication, if not expressly, the allegations set forth in the charge'"). Brooks did not allege that he was elsewhere in January, and he admitted to the molestation. That is not an alibi defense.
10 No. 97150-1
In Hakimi, Division One held that the defendant failed to show prejudice
regarding the amendment ofthe information during the State's case. The court noted, in
part, that the amendment did not allege an additional count and that it concerned the same
factual scenario and, thus, the amendment did not prejudice defendant's right to defend
himself. Hakimi, 124 Wn. App. at 28. As noted, Hakimi addressed an amendment before
the State rested and is not analogous here.
Along with Pelkey, Brooks repeats in this court his citation ofState v. Markle, 118
Wn.2d 424, 823 P.2d 1101 (1992), Schaffer, and Vangerpen as support. But these cases
do not assist him. As discussed above, the amendment in Pelkey concerned "a
completely different crime" and is thus distinguishable from the present case. Schaffer,
120 Wn.2d at 621 (discussing Pelkey and so noting). In Markle, this court held that the
State's midtrial amendment(at the close of the State's case) of the information from the
original charge of statutory rape to indecent liberties (a different crime with different
elements) violated defendant's Washington Constitution article I, section 22 rights, 118
Wn.2d at 431-32—^again, a different circumstance than Brooks' case.
In Schaffer, this court affirmed the trial court's grant of the State's motion
(brought before the State rested) to amend the information to bring it into conformity
with the evidence (i.e., to allege malicious mischief based on both slashing tires and
knocking down mailboxes). This court held that Pelkey did not apply, that CrR 2.1(e)
(now CrR 2.1(d)) applied and delineated the constitutional boundaries applicable to
amendments during the State's case, and that the amendment was proper. Regarding
such amendments during the State's case, the burden is on the defendant to show
11 No. 97150-1
prejudice, and "[i]f a defendant is prejudiced by an amendment,then he or she should be
able to demonstrate this fact." Schaffer, 120 Wn.2d at 623.
Finally, in Vangerpen, after the State rested, it sought to amend the information to
add an inadvertently omitted statutory element (resulting in charging a different crime
than the State intended). This court held that the Pelkey rule applied; thus, the State may
not amend the information to charge a different crime after the State has rested.
Vangerpen, 125 Wn.2d 787. That is a different circumstance than Brooks' case (i.e.,
there is no missing statutory element here). Relevant to Brooks' case, Vangerpen opined.
Convictions based on charging documents which contain only technical defects (such as an error in the statutory citation number or the date ofthe crime or the specification of a different manner of committing the crime charged) usually need not be reversed. However, omission of an essential statutory element cannot be considered a mere technical error.
Id. at 790(emphasis added)(footnote omitted).
None of this helps Brooks. Instead, the above cases bolster the notion that where
Pelkey's per se prejudice rule does not apply, CrR 2.1(d) governs and the burden to show
prejudice is on the defendant. Here, while the State moved to amend after both parties
rested, the amendment sought was not to a different crime but merely to conform (i.e.,
correct a technical defect) concerning the date of the crime as confessed by defendant at
trial. In this circumstance, the court rule rather than Pelkey'?, per se prejudice rule should
apply. And, under CrR 2.1(d), Brooks cannot meet his burden to show prejudice here by
the amendment expanding time because he was on notice from the "on or about"
12 No. 97150-1
language used in the original information that the molestation incident date was not
specifically limited. Hayes, 81 Wn. App. at 432; Statler, 160 Wn. App. at 640-41.^ In this circumstance, we hold that the trial court did not abuse its discretion in
granting the State's motion to amend the information to merely expand the date range
concerning the molestation charge. Because the same charge was in place before and
after the amendment, and the trial court relied on case law that permitted such
amendment,see VRP at 84-88 (noting the trial court's reliance on Goss, DeBolt, Allyn,
and Osborne), it cannot be said that the decision to grant the amendment lay outside the
range of acceptable choices, in light ofthe facts and the applicable legal standard. See
Lamb, 175 Wn.2d at 127; see also Goss, 186 Wn.2d at 383 (a court abuses its discretion
only if no reasonable person would take the view adopted by the trial court).
CONCLUSION
We hold that the trial court did not abuse its discretion in granting the State's
motion to amend the information concerning the charge of third degree child molestation
after both parties rested. The amendment did not alter the substantive charge and only
expanded the time frame to conform to the defendant's confession to the molestation as
defendant testified to at trial. Accordingly, we affirm the Court of Appeals and
defendant's conviction.
^ As explained, Pelkey's per se prejudice rule does not apply here and, under the eireumstances of this case, defendant cannot show prejudice concerning the amendment of time stated in the information. Our decision does not foreclose an argument for prejudice stemming from an amendment to the charging period, even if the amended period is within the statute of limitations. Prejudice is necessarily assessed ease by case.
13 No. 97150-1
WE CONCUR:
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14 State V. Brooks {Kenneth Chance), No. 97150-1 (Gordon McCloud, J., concurring)
No. 97150-1
GORDON McCLOUD,J.(concurring)—In its charging document, the State
must adequately inform the defendant of its accusation so that the defendant may
prepare a defense and may be protected against another prosecution for the same
accusation. Berger v. United States, 295 U.S. 78, 82, 55 S. Ct. 629, 79 L. Ed. 1314
(1935); see also State v. McKenzie, 184 Wash. 32, 36, 49 P.2d 1115 (1935)(citing
State V. Randall, 107 Wash. 695, 182 P. 575 (1919); City ofSeattle v. Proctor, 183
Wash. 299, 48 P.2d 241 (1935)). I agree with the majority's application ofthose
constitutional protections to this case.
I write separately only to emphasize the generally accepted rule that also
protects those rights: the rule that although the State is not absolutely bound by the
"on or about or between" date range listed in the information. Clerk's Papers at 1,
any deviation from that date range must be reasonable. As other jurisdictions that
have considered this question have said, the State must prove that the defendant's
conduct occurred on a date that is "reasonably near" the date range listed in the
charging document. E.g., United States v. Ross, 412 F.3d 771, 774-75 (7th Cir. State V. Brooks {Kenneth Chance), No. 97150-1 (Gordon McCloud, J., concurring)
2005)("The canonical formula is that 'when "on or about" language is used in an
indictment, proof ofthe exact date of an offense is not required as long as a date
reasonably near that named in the indictment is established.'"(quoting United
States V. Ford, 872 F.2d 1231, 1236-37(6th Cir. 1989) and citing United States v.
Castillo, 140 F.3d 874, 885 (10th Cir. 1998); United States v. Nersesian, 824 F.2d
1294, 1323 (2d Cir. 1987))); United States v. Hinton, 222 F.3d 664, 672-73 (9th
Cir. 2000)("It is well-settled that the government need prove only that Hinton
shipped the package 'reasonably near' the date specified in the indictment."(citing
United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir. 1997))); United States
V. Grapp,653 F.2d 189, 195 (5th Cir. 1981)("The prosecution, as a consequence
of the use of the 'on or about' designation, was not required to prove the exact
date; it suffices if a date reasonably near is established."); see also McBride v.
State, 2008-CT-01347-SCT, 61 So. 3d 138, 150 (Miss. 2011)(collecting cases).
Given the unique circumstances of this case, as described by the majority, I agree
that the date proved at trial is reasonably near the date range included in the
original information.
I therefore respectfully concur. State V. Brooks {Kenneth Chance), No. 97150-1 (Gordon McCloud, J., concurring)