Opinion
No. 56049-2-I.
June 12, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-06459-3, Douglass A. North, J., entered April 11, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Catherine Lynn Floit, Attorney at Law, PO Box 27713, Seattle, WA 98165-2713.
Dana M Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Henriq Sa-Pereira — Info Only (Appearing Pro Se), 29020 1st Ave So. #46, Des Moines, WA 98198.
Counsel for Respondent(s), Julie Anne Kays, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Affirmed by unpublished per curiam opinion.
Henrique Sa-Pereira appeals his conviction of one count of felony violation of a no-contact order. Sa-Pereira challenges the sufficiency of the evidence of his prior convictions, the sufficiency of the information, the trial court's order allowing amendment of the information after the State rested and the court's denial of his motion to bifurcate the trial. We find no error and affirm.
FACTS
Emelia Bugge obtained a no-contact order against defendant Henrique Sa-Pereira after their romantic relationship ended badly. The order, issued in King County Superior Court on April 29, 2004, prohibited Sa-Pereira from contacting Bugge or coming within 500 feet of her residence for three years. On July 27, 2004, while Bugge and her daughter were stopped at a stoplight near their Seattle home, Sa-Pereira, who did not live in the area, drove past her and blew her a kiss. Bugge drove into her driveway. A few minutes later, Sa-Pereira drove past Bugge's house in view of her daughter. Upset by this and other unwanted contacts, Bugge called police, who determined Sa-Pereira had passed within 500 feet of Bugge's house. The State charged Sa-Pereira with violation of a no-contact order under RCW 26.50.110, alleging the violation was a felony because he had two prior convictions for violations of a no-contact order. Sa-Pereira's counsel moved to bifurcate the trial and asked the court to begin the trial without referring to the two prior convictions, which Sa-Pereira did not challenge. In the alternative, counsel asked the court to require the State to stipulate to the prior convictions rather than to introduce proof of the convictions into evidence. The court declined to bifurcate the trial, but allowed the stipulation under Old Chief v. United States, 519 U.S. 172, 191, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).
After the State rested, Sa-Pereira moved to dismiss, pointing out that the information alleged the restraining order he violated had been entered on April 9, 2004, rather than the correct date of April 29. Noting Sa-Pereira did not object when the order was admitted into evidence, the trial court denied the motion to dismiss and granted the State's motion to amend the information to comport with the evidence. Sa-Pereira testified that he was aware of the order but presented an alibi defense. The jury found him guilty.
Sa-Pereira appeals.
DECISION
Sa-Pereira argues that because his stipulation did not specifically establish that his prior convictions involved one of the types of no-contact orders listed in RCW 26.50.110(5), he could only be convicted of a misdemeanor. He contends that the evidence is insufficient to support felony violation of a no-contact order because the State did not prove the statutory authorization for the no-contact orders of his two prior convictions. Sa-Pereira acknowledges that this court in State v. Carmen, 118 Wn. App. 655, 77 P.3d 368 (2003), rev. denied, 151 Wn.2d 1039, 93 P.3d 352 (2004) held that validity of a no-contact order relates to admissibility and is a question of law, but he urges the court instead to follow a decision from Division Two holding otherwise in State v. Arthur, 126 Wn. App. 243, 244, 108 P.3d 169 (2005). The State Supreme Court, however, in State v. Miller, 156 Wn.2d 23, 32, 123 P.3d 827 (2005), recently held that validity of the no-contact order is not an element of the offense and presents a question of law. Accordingly, there was no failure of proof here. Miller, 156 Wn.2d at 31.
Without actually assigning a separate error, Sa-Pereira also complains that the trial court did not comply with Carmen because it never affirmatively found that the prior convictions qualified under the statute. But his stipulation necessarily waived any such objection. Key Design v. Moser, 138 Wn.2d 875, 893, 993 P.2d 900 (1999). Moreover, because Sa-Pereira stipulated, the convictions were not made part of the record, with the result that the record was not developed sufficiently to allow this court to consider this claim for the first time now, even if characterized as a constitutional issue. See RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) ('If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.')
Sa-Pereira next challenges the sufficiency of the information. 'All essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him.' State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). 'An 'essential element is one whose specification is necessary to establish the very illegality of the behavior' charged.' State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003) (quoting State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992)).
Sa-Pereira likens this case to City of Seattle v. Termain, 124 Wn. App. 798, 103 P.3d 209 (2004), in which the defendant was charged with violating a domestic violence order in the language of the statute alone. This court concluded that because the information merely tracked the statute and listed all the numerous types of orders that could be violated, without citing any facts identifying the victim or the order, it was insufficient to adequately apprise the defendant of the crime and allow him to prepare a defense. Termain, 124 Wn. App. at 805.
Unlike Termain, the information in this case identified the victim, the court that issued the order and the month and year it was issued. Termain requires no more. Sa-Pereira nonetheless contends the situation here is actually worse than Termain because part of the information describing the no-contact order was actually inaccurate. While the information accurately states the no-contact order was issued by the King County Superior Court under RCW chapter 10.99, the information also inaccurately characterized it as 'a valid foreign protection order as defined in RCW 26.52.070' and referenced the wrong date of issuance, April 9, rather than April 29. It is well established that where unnecessary language is included in an information, the surplus language is not an element of the crime that must be proved unless it is repeated in the jury instructions. State v. Miller, 71 Wn.2d 143, 146, 426 P.2d 986 (1967); State v. Weiding, 60 Wn. App. 184, 187 n. 3, 803 P.2d 17 (1991); State v. Rivas, 49 Wn. App. 677, 682-83, 746 P.2d 312 (1987); State v. McGary, 37 Wn. App. 856, 859-60, 683 P.2d 1125 (1984). Here, the language describing the no-contact order as a foreign order was not repeated in the instructions and Sa-Pereira's testimony and defense makes it clear there was no prejudice.
Nor is the information insufficient as a charging document if the defendant is not prejudiced by the inclusion of the unnecessary language. State v. Stritmatter, 102 Wn.2d 516, 523-24, 688 P.2d 499 (1984).
As for the incorrect date that was used in the information for the issuance of the no-contact order, whether this is even considered an error depends upon another issue Sa-Pereira raises. Sa-Pereira challenges the trial court's decision after the State rested to grant the State's motion to amend to change the incorrect date the no-contact order was issued from April 9 to April 29.
Generally, 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. State v. DeBolt, 61 Wn. App. 58, 61, 808 P.2d 794 (1991). This is because other amendments might run afoul of the defendant's constitutional rights to know the nature and cause of the accusation against him or her. State v. Pelkey, 109 Wn.2d 484, 487, 745 P.2d 854 (1987). However, the rule announced in Pelkey is not applicable to all amendments to informations.
The date of an offense, for example, is normally a matter of form, not substance, and usually is not a material element. Accordingly, amendment of an information as to the offense date is generally permitted absent an alibi defense or a showing of other substantial prejudice to the defendant. DeBolt, 61 Wn. App. at 62; State v. Fischer, 40 Wn. App. 506, 510-11, 699 P.2d 249 (1985).
In DeBolt, the State moved to amend the information to change the charging dates. The State made its motion after it had rested and after the defendant had testified. On appeal, the court found that although the amended information expanded the dates during which the crime was alleged to have been committed, 'it is difficult to conceive how this change in the charging period deprived [the defendant] of necessary notice of the nature and cause of the accusation against him.' DeBolt, 61 Wn. App. at 62. Sa-Pereira has not shown why, if the precise date of the crime is not an element of the crime and thus falls outside the rule of Pelkey, the precise date of the issuance of a no-contact order falls within the rule. Rather, as Termain makes clear, the date of the issuance of the underlying no-contact order is merely one of several factors that are relevant to whether the information sufficiently identified the order. See, Termain, 124 Wn. App. at 806. Because the order was sufficiently identified here, the trial court correctly granted the amendment as not barred by Pelkey, but instead permitted by CrR 2.1(d), which allows amendment of an information 'at any time before verdict or finding if substantial rights of the defendant are not prejudiced.' And where an amendment to the information is proper, the burden is upon the defendant to show that he will be prejudiced by the amendment. State v. Gosser, 33 Wn. App. 428, 434-35, 656 P.2d 514 (1982). Sa-Pereira showed no prejudice here.
We note that Sa-Pereira has not challenged the jury instructions in this case, which did not list the date of issuance of the no-contact order as an element of the offense. We also note that both the information and jury instructions accurately stated the date of the offense.
Finally, Sa-Pereira challenges the trial court's decision declining to bifurcate his trial, citing Old Chief v. United States, 519 U.S. 172, and State v. Johnson, 90 Wn. App. 54, 62-63, 950 P.2d 981 (1998). As Sa-Pereira acknowledges, however, those cases involved defense requests to accept a stipulation to a prior conviction, not a request to bifurcate. He nonetheless argues that '[t]he underlying rationale of these cases supports a court's discretionary authority to bifurcate the trial under the circumstances of this case.'
Trial courts have discretionary authority to order bifurcation. State v. Mills, 154 Wn.2d 1, 12, 109 P.3d 415 (2005); State v. Jeppesen, 55, Wn. App. 231, 776 P.2d 1372 (1989). An abuse of discretion exists when the trial court's exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). The most analogous Washington authority supports the trial court's decision. See State v. Gladden, 116 Wn. App. 561, 66 P.3d 1095 (2003) (defense offer to delete the statutory element of a prior offense is not the equivalent of stipulating to a prior conviction that can be required under Old Chief and Johnson).
The trial court correctly applied Old Chief and Johnson by accepting the proffered defense stipulation, which substantially mitigated prejudice to Sa-Pereira because the jury did not learn that Sa-Pereira's prior convictions involved the same victim or that he had pleaded guilty to those violations just four days before committing the offense in question. In addition, the trial court properly gave a limiting instruction regarding the stipulation, an instruction the jury is presumed to follow. In re Detention of Smith, 130 Wn. App. 104, 113, 122 P.3d 736 (2005). The trial court did not abuse its discretion.
We affirm.