Opinion
No. 21971-2-III
Filed: August 31, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 02-8-01758-5. Judgment or order under review. Date filed: 03/27/2003. Judge signing: Hon. F James Gavin.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Ronald Stanton Zirkle, Attorney at Law, Yakima County Courthouse, 128 N 2nd St Rm 329, Yakima, WA 98901-2639.
The State charged Bradley Johnson with first degree arson. During bench trial, the charge was amended to second degree reckless burning. After the defense rested, the court amended the charge to second degree arson and found Mr. Johnson guilty. Claiming this was impermissible, Mr. Johnson appeals. We affirm.
On November 27, 2002, the State charged Mr. Johnson, a juvenile, with first degree arson for starting a fire in a trash can at school. During the defense's case, the State moved to amend the information to add an alternative charge of second degree reckless burning. Claiming he would now have to defend two charges rather than one, defense counsel objected.
The court indicated that under CrR 2.1(d), amendments were permitted any time prior to verdict so long as there was no prejudice to the defendant. It nonetheless denied the motion to charge Mr. Johnson with both crimes, dismissed the charge of first degree arson, and amended the information to charge him with second degree arson. But the State still wanted to charge him with second degree reckless burning. The court then amended the charge to second degree reckless burning.
After the defense rested, the State presented a written motion to amend. Defense counsel moved for reconsideration because amendments are not permitted after the State's case in chief unless the charge is a lesser included or lesser degree crime. The State responded by asking the court to amend the charge to second degree arson. The court permitted the amendment.
The court found Mr. Johnson guilty of second degree arson. This appeal follows.
Mr. Johnson claims the court erred by amending the charges against him after the State had rested its case in chief. A court's decision allowing an amendment is reviewed for abuse of discretion. State v. Johnston, 100 Wn. App. 126, 133, 996 P.2d 629, review denied, 141 Wn.2d 1030 (2000).
The State is required to give formal notice by information to the defendant of the criminal charges to satisfy the Sixth Amendment and our state constitution, article I, section 22 (amendment 10). State v. Finch, 137 Wn.2d 792, 806, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). Unless there is substantial prejudice to the defendant, the State may amend the information to correct a defect at any time before the State rests its case. State v. Vangerpen, 125 Wn.2d 782, 788-89, 888 P.2d 1177 (1995); CrR 2.1(d). But after the State has rested, it may not amend an information `unless the amendment is to a lesser degree of the same crime or a lesser included offense.' Vangerpen, 125 Wn.2d at 789 (citing State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987)). Any greater amendment prejudices the defendant's constitutional right to be informed of the charges against him. Pelkey, 109 Wn.2d at 491.
The court first indicated it would amend the charge to second degree arson, which would have been permissible under Pelkey. The State, however, sought an amendment to second degree reckless burning. The court orally indicated it would permit that amendment.
When the State filed its written motion to amend, defense counsel objected and asked the court to reconsider in light of Pelkey. Although agreeing that amending the charge to second degree reckless burning was impermissible, the court permitted the State to amend the charge to second degree arson. Because it was an inferior crime to first degree arson, the amendment was permissible.
At issue here is whether the court committed reversible error by initially permitting the amendment to second degree reckless burning. It did not err. Mr. Johnson did not suffer any prejudice because the court corrected its mistake. Since this was a bench trial, there could be no possibility of juror confusion. Mr. Johnson's defense was that he did not commit the crime. The change in the charge could not affect his defense. The ultimate amendment of charge to second degree arson complied with Pelkey. The court's actions did not violate CrR 2.1(d) or article I, section 22 (amendment 10) of the state constitution.
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, J., KURTZ, J., concur.