From Casetext: Smarter Legal Research

State v. Downs

The Court of Appeals of Washington, Division Two
Oct 20, 2009
152 Wn. App. 1046 (Wash. Ct. App. 2009)

Opinion

No. 38382-9-II.

October 20, 2009.

Appeal from the Superior Court, Mason County, No. 07-1-00484-0, James B. Sawyer II, J., entered September 15, 2008.


Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton and Armstrong, JJ.


Brian Downs appeals from his conviction for second degree assault — domestic violence, arguing that the trial court erred in amending the charge against him from first degree assault to second degree assault. Concluding that the trial court did not err, we affirm Downs's conviction.

A commissioner of this court initially considered Downs' appeal as a motion on the merits under RAP 18.14 and then referred it to a panel of judges.

FACTS

After an incident at the family home, in which Downs's wife asserted that he pointed a gun at her and said something about killing her, the State charged Downs with first degree assault — domestic violence. At the end of the State's case, Downs moved to dismiss, arguing that the State failed to present sufficient evidence that he intended to commit great bodily harm, which is an essential element of first degree assault. The following colloquy occurred:

The State also charged Downs with harassment — domestic violence, but the jury acquitted him of that charge.

THE COURT: Well, and that's the issue; is there sufficient evidence before this jury to allow the case to be — to go to the jury on the issue of that intent to commit great bodily harm. And very frankly, I agree with the defense that there is not sufficient evidence to carry that question to this jury. As the evidence stands right now, even reading the evidence most favorable [sic] to the non-moving party, there has not been a demonstration of the intent at the moment that this crime is alleged to have been committed, that he intended to . . . inflict that great bodily harm.

. . . .

Basically, the decision was made to charge assault one and if it had had enough, then there would have been an opportunity to go with a lesser included, but you don't get to go with a lesser included if the charge is gone, and I'm granting that motion.

[THE STATE]: Certainly, from a lesser included analysis that would be the case. I would move — again, these things are living, breathing things. Certainly, I think the ultimate analysis is going to be prejudice when we talk about the motion I'm about to make, which is to move to amend — to conform to what the proof is — to amend Count II to assault in the second degree.

THE COURT: The State has now rested; the motion is denied.

[THE STATE]: May I ask one clarifying question?

THE COURT: I would be happy to listen to —

[THE STATE]: I only want to make sure — it seems to me that — I'm not grabbing my rule book yet, but I think I'm familiar with the rule that would allow for such an amendment up until the point that a verdict is reached by a jury. So, I'm wanting to make sure that the Court is denying the motion, not just because the State has indicated I'm prepared to rest, but because there's prejudice to the —

THE COURT: Does the defense want to respond?

[DEFENSE COUNSEL]: No, sir.

THE COURT: Cite your rule. Let me read it over again. I know what you're talking about.

. . . .

THE COURT: The Court may permit any Information or Bill of Particulars to be amended at any time before verdict or finding if the substantial rights of the defendant are not prejudiced.

[THE STATE]: And that is rule . . .

THE COURT: 2.1(d).

[THE STATE]: That was what I believed to be the case and that's what I meant when I said I think the ultimate analysis is going to be prejudice to the defense. If the Court finds that, I think I'm out of arguments. . . .

THE COURT: I would be happy to hear from [defense counsel] regarding the prejudice to the defense at this stage, given the State's having rested and how an amendment to assault second would be prejudicial to the defense.

[DEFENSE COUNSEL]: Well, I can't say that it would be prejudicial to the extent that we couldn't defend against it. But I don't want that to be construed as conceding that, you know, the State should be allowed to do that.

The Court dismissed the count, which I agree with you that it's dismissed; there's nothing to amend. Had the State charged it in the alternative, the second degree assault would still be there. If they had charged it as second degree assault, which it sounds like it should have been charged with in the first place, we wouldn't be here with this question. But the count was dismissed, and I agree with the Court that there's nothing to amend because that count's gone.

THE COURT: Well, I would tend to agree with that analysis but for the fact that I have signed no order dismissing the count. I have indicated my intent to do so. I would agree with counsel that in the best of all worlds the State should have actually made their motion for the amendment in light of the charge, as a second aspect of the argument, rather than waiting for the Court to rule on the defense motion and then making the motion for amendment.

However, that having been said, I have not and had not signed the order and I do not see that it creates a substantial prejudice to the defense, other than the obvious prejudice, and that is shoot, I just won it then I have — now I have to argue about assault in the second degree.

That isn't the type of prejudice that is perceived by that rule when they talk about prejudice. The prejudice they're talking about is the ability to present your respective cases and arguments before the trier of fact and/or the Court — well, the trier of fact. And I don't see that this has created a substantial prejudice.

. . . .

I will allow the State to amend the Information to allege the crime of assault in the second degree, having been alleged to have been committed on the same date as well, October, 2007.

Report of Proceedings (RP) (Aug. 6, 2008) at 152-57.

The jury found Downs guilty of second degree assault.

ANALYSIS

Downs argues that the trial court erred in allowing the State to amend the information from first degree assault to second degree assault because the court already dismissed the first degree assault charge for lack of evidence. Had the trial court's dismissal of the first degree assault charge been final, Downs might be correct. However, the trial court only made an oral ruling dismissing the first degree assault charge and that oral ruling of dismissal is not final. State v. Collins, 112 Wn.2d 303, 308, 771 P.2d 350 (1989). Until it entered a written order, the trial court had the discretion to allow the State to amend the information. Collins, 112 Wn.2d at 308; State v. Haner, 95 Wn.2d 858, 863, 631 P.2d 381 (1981) (quoting CrR 2.1(d)). Under CrR 2.1(d), the 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." Once the State rests, it can only move to amend the information to charge a lesser degree offense or a lesser included offense. State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987). The State moved to amend the information from first degree assault to second degree assault, which is a lesser degree offense. It did so before the case was submitted to the jury. The trial court found that the amendment would not prejudice Downs's substantial rights. Downs has not demonstrated that the trial court erred or abused its discretion in allowing the State to amend the information.

We affirm Downs's second degree assault conviction.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

HOUGHTON, J. and ARMSTRONG, J., concur.


Summaries of

State v. Downs

The Court of Appeals of Washington, Division Two
Oct 20, 2009
152 Wn. App. 1046 (Wash. Ct. App. 2009)
Case details for

State v. Downs

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. BRIAN LEE DOWNS, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Oct 20, 2009

Citations

152 Wn. App. 1046 (Wash. Ct. App. 2009)
152 Wash. App. 1046