Opinion
No. 23912-8-III.
May 11, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-01816-2, Salvatore F. Cozza, J., entered February 25, 2005.
Counsel for Appellant(s), Daniel Herbert Bigelow, Attorney at Law, PO Box 608, Cathlamet, WA 98612-0608.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Affirmed by unpublished opinion per Kato, J., concurred in by Schultheis, A.C.J., and Brown, J.
Jerome E. Grimes was convicted of forgery and possession of methamphetamine. Claiming his speedy trial rights were violated, the court erroneously permitted a late amendment to the information and improperly instructed the jury, and he was denied effective assistance of counsel, Mr. Grimes appeals. We affirm.
On March 23, 2003, Mr. Grimes cashed a check for $502.67 at Albertson's Grocery Store in Liberty Lake. The check was returned.
The police determined the check was forged. From viewing a surveillance video, police also determined Mr. Grimes had cashed the check. He was arrested at a motel, where he admitted cashing the check. He also admitted there was methamphetamine in his room.
The State charged Mr. Grimes with forgery, theft, possession of methamphetamine, and use of drug paraphernalia. The jury convicted him of forgery and possession of methamphetamine. This appeal follows.
Mr. Grimes claims his speedy trial rights were violated. On July 22, 2004, he was arraigned. Trial was set for August 30. On August 27, the court continued the trial to September 13 in order to permit negotiations. On September 10, the court entered another continuance, changing the trial date to September 27 because defense counsel was out of town and there was a judicial conference. The court noted there was no prejudice to Mr. Grimes and the continuance was necessary for the administration of justice.
On September 24, the court again continued the trial to October 25. The reason was so Mr. Grimes could file motions and because defense counsel was not ready for trial. The court found the continuance did not prejudice Mr. Grimes and was necessary for the administration of justice. The case went to trial on November 15.
The trial court is responsible for assuring a speedy trial under CrR 3.3. State v. Ralph Vernon G., 90 Wn. App. 16, 20, 950 P.2d 971 (1998) (citing State v. Carson, 128 Wn.2d 805, 912 P.2d 1016 (1996)). Because Mr. Grimes was incarcerated, he had to be brought to trial within 60 days of the commencement date unless time was excluded or extended by law. CrR 3.3(b)(1)(i). The commencement date is the date of arraignment. CrR 3.3(c)(1).
Motions for trial continuances should be granted when `required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense.' CrR 3.3(f)(2). As to the three continuances, the court indicated it was granting them in the administration of justice and Mr. Grimes suffered no prejudice. Generally, qualifying continuances are excluded when computing the time for trial. CrR 3.3(e)(3); CrR 3.3(f). If any time period is excluded pursuant to a continuance, the `allowable time for trial shall not expire earlier than 30 days after the end of that excluded period.' CrR 3.3(b)(5).
The three continuances were excluded from the speedy trial computation under CrR 3.3(f)(2), making October 25 the end of the excluded period. Trial began on November 15, well within the 30-day period provided under CrR 3.3(b)(5). Thus, Mr. Grimes was brought to trial within the speedy trial time prescribed by the rule.
But he nonetheless claims the court erred by granting the continuances, so these time periods should not be excluded from the timely trial computation. A court's decision to grant a continuance is reviewed for an abuse of discretion. State v. Williams, 104 Wn. App. 516, 520-21, 17 P.3d 648 (2001). An abuse of discretion occurs when the court relies on untenable grounds or reasons. State v. Teems, 89 Wn. App. 385, 388, 948 P.2d 1336 (1997), review denied, 136 Wn.2d 1003 (1998). The reason for the first continuance was that the parties were negotiating. Mr. Grimes does not offer any argument why this was an abuse of discretion. The second continuance was granted because defense counsel was out of state and there was a judicial conference. A scheduled vacation is a valid basis for granting a continuance. State v. Torres, 111 Wn. App. 323, 331, 44 P.3d 903 (2002), review denied, 148 Wn.2d 1005 (2003). The court further found Mr. Grimes would not be prejudiced. There was no abuse of discretion in these circumstances.
The reason for the last continuance was that defense counsel needed more time to prepare. This is a legitimate basis and the court did not abuse its discretion by granting this continuance. See State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995).
Mr. Grimes argues the continuances were invalid because he did not sign them. Although timely trial waivers and written agreements to continue the case must be signed by a defendant (see CrR 3.3(c)(2)(i); (f)(1)), an order granting a motion to continue a case made by the court or a party does not have this requirement. See CrR 3.3(f)(2).
The court did not abuse its discretion by granting the State's motion for continuance. It properly excluded the continuance time periods from the timely trial computation under CrR 3.3(e)(3). Mr. Grimes was tried within the 30-day period allowed after the excluded periods under CrR 3.3(b)(5). Mr. Grimes also claims the court erred by granting, over his objections, a continuance requested by his lawyer. But a trial court may grant a continuance at defense counsel's request, even over the express objections of a defendant. Luvene, 127 Wn.2d at 699.
Mr. Grimes claims the delays violated his constitutional right to a speedy trial. The constitutional right to a speedy trial cannot be quantified into a specific number of days or months. Carson, 128 Wn.2d at 821. Rather, defendants must be brought to trial within a reasonable time. State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186, review denied, 133 Wn.2d 1015 (1997).
Whether a criminal defendant's constitutional right to a speedy trial has been violated is reviewed using the following four major factors, together "with such other circumstances as may be relevant": (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted the right, and (4) prejudice to the defendant. State v. Whelchel, 97 Wn. App. 813, 824, 988 P.2d 20 (1999) (quoting Barker v. Wingo, 407 U.S. 514, 533, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)), review denied, 140 Wn.2d 1024 (2000).
Mr. Grimes has not shown the State failed to prosecute the case with customary promptness. State v. Corrado, 94 Wn. App. 228, 233, 972 P.2d 515 (citing Doggett v. United States, 505 U.S. 647, 652, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)), review denied, 138 Wn.2d 1011 (1999). He was brought to trial within four months of his arraignment. The reasons for the delay, unavailability of counsel and the need to prepare for trial, were unavoidable. Although Mr. Grimes objected, he did not show any prejudice. Accordingly, his constitutional right to a speedy trial was not violated.
Mr. Grimes next claims the court erred by amending the information before trial. On the first day of trial prior to any testimony being taken, the State moved to amend the information by adding an additional means of committing forgery. The forgery charge had stated Mr. Grimes `did falsely make, complete and alter a written instrument.' Clerk's Papers (CP) at 1. The charge should have included this language: `knowing the same to be forged, did possess, utter, offer, dispose of and put off as true such written instrument.' CP at 40. The State argued that facts to support this amendment were contained in the police reports, which the defense had in its possession since July 22 or 23. Defense counsel acknowledged these facts were contained in the police report, but argued the amendment would alter the defense and he would be prejudiced. The court permitted the amendment.
We review the trial court's grant of a motion to amend an information for abuse of discretion. State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996).
Under the criminal court rules, a trial court may allow the amendment of the information at any time before the verdict as long as the `substantial rights of the defendant are not prejudiced.' CrR 2.1(d). The defendant bears the burden of showing prejudice. State v. Guttierrez, 92 Wn. App. 343, 346, 961 P.2d 974 (1998). When a defendant does not request a continuance, it suggests there is no prejudice. See State v. Murbach, 68 Wn. App. 509, 512, 843 P.2d 551 (1993) (absence of request for a continuance indicated amendment to information was not prejudicial); State v. Wilson, 56 Wn. App. 63, 65, 782 P.2d 224 (1989) (failure to request continuance waived objection to amended information), review denied, 114 Wn.2d 1010 (1990); State v. Brown, 55 Wn. App. 738, 743, 780 P.2d 880 (1989) ('[T]he fact that the defendant does not request a continuance is persuasive of lack of surprise and prejudice.'), review denied, 114 Wn.2d 1014 (1990).
The State requested the amendment prior to trial; the defense did not request a continuance. The underlying facts for this charge were contained in the police report. Mr. Grimes failed to establish any prejudice from the amendment. The court did not err.
Mr. Grimes also claims the court erred by giving two conflicting jury instructions. The first defined when a person commits forgery:
A person commits the crime of forgery when, with intent to injure or defraud, he or she falsely makes, completes or alters a written instrument, or possesses, offers, disposes of or puts off as true, a written instrument which he or she knows to be forged.
CP at 48. The second was the `to convict' instruction:
To convict the defendant of the crime of forgery, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about [the] 23rd day of March, 2003, the defendant possessed or offered or disposed of or put off as true a written instrument which had been falsely made, completed or altered;
(2) That the defendant knew that the instrument had been falsely made, completed or altered;
(3) That the defendant acted with intent to injure or defraud; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 49. Mr. Grimes suggests these instructions were improper because the language did not match the language in the amended information.
We review claims of erroneous jury instructions de novo. The inquiry is whether they are supported by the evidence, allow the parties to argue their theories of the case, are not misleading to the jury, and properly set forth the applicable law. State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005).
RCW 9A.60.020 describes the crime of forgery in the disjunctive:
(1) A person is guilty of forgery if, with intent to injure or defraud:
(a) He falsely makes, completes, or alters a written instrument or;
(b) He possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged.
(Emphasis added.) Here the amended information charged Mr. Grimes in the conjunctive, alleging he, `with intent to injure and defraud, did falsely make, complete and alter a written instrument, . . . and knowing the same to be forged, did possess, utter, offer, dispose of and put off as true such written instrument.' CP at 40 (emphasis added). Mr. Grimes argues that because the information set out the elements in the conjunctive, the State then also had to prove the crime in the conjunctive. The `to convict' instruction, however, limited the charge by the disjunctive. Generally, acts described in a penal statute in the disjunctive may be charged in the conjunctive. State v. Dixon, 78 Wn.2d 796, 802, 479 P.2d 931 (1971). If an information charges a crime in the conjunctive, the conviction may rest on proof the crime was committed by any one of the means charged, as long as those means are not `repugnant to each other.' Id. at 803. Alternative means of committing a crime are repugnant to each other only if proof of one will disprove the other. State v. Parmenter, 74 Wn.2d 343, 352, 444 P.2d 680 (1968).
The alternative means of committing forgery are not repugnant to one another. Proof of one (e.g., falsely making a written instrument with intent to injure) does not disprove another (e.g., possessing or offering a written instrument that the defendant knows has been falsely made, completed, or altered). Consequently, even though the amended information read in the conjunctive, the jury was properly instructed on the statutory alternatives in the disjunctive. Dixon, 78 Wn.2d at 803; State v. Metcalf, 14 Wn. App. 232, 238-39, 540 P.2d 459 (1975), review denied, 87 Wn.2d 1009 (1976). The instructions were proper and there was no error. Mr. Grimes has filed an additional ground for review, arguing counsel was ineffective for failing to request a continuance when the State amended the charge against him on the day of trial. This claim requires a showing defense counsel's conduct fell below an objective standard of reasonableness and there is a reasonable possibility that, but for counsel's deficient performance, the outcome of the proceeding would have been different. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Mr. Grimes asserts counsel was ineffective for failing to object to the jury instruction, thus failing to preserve the issue. We have nonetheless addressed it. Furthermore, because the instructions were proper, Mr. Grimes cannot establish any prejudice from a failure to object.
Mr. Grimes claims that had defense counsel requested a continuance after the amendment of the information, the court would have granted it. The amendment to the information added the alternative means of committing forgery. The State was claiming Mr. Grimes committed forgery because he knew the check he was cashing at Albertson's was falsely made. This was contained in the police reports. At trial, defense counsel argued Mr. Grimes did not know the check was falsely made and ably defended the amended charge. Mr. Grimes has not established otherwise. He received effective assistance of counsel.
Affirmed.
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.
SCHULTHEIS, A.C.J., and BROWN, J., concur.