Opinion
No. 61253-1-I.
March 16, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-12478-9, Michael Heavey, J., entered Januar y 14, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
An information may be amended any time before a verdict if the substantial rights of the defendant are not prejudiced. Here, the State gave notice of its intent to amend the information to include additional charges approximately 10 months before amending the information. Further, the defendant received a copy of the amended information 10 days before the first witness testified. Under these circumstances there is no showing of prejudice and the trial court did not abuse its discretion by denying defendant's motion for continuance. The trial court is affirmed.
FACTS
In 2006, a no-contact order was in effect barring Samuel Erickson from having contact with Candace Ford. In the early morning of December 14, 2006, Erickson and Ford had a row in the parking lot of Ford's apartment complex. Erickson either shoved or made an aggressive move toward Ford and she fell backwards to the ground. As a result of the fall she sustained a separated shoulder. Police were called, and paramedics arrived to treat Ford for her injury. Police officers arrested Erickson nearby.
On December 19, 2006, the State charged Erickson with one count of felony violation of a no-contact order (FVNCO). On January 29, 2007, the prosecutor informed Erickson that the State would move to amend the information to add a number of other charges, including a count of assault in the third degree and additional misdemeanor violations of a no-contact order (MVNCO) for his contact with Ford on December 12 and 13, 2006. On May 18, 2007, the State informed Erickson it would file an amended information charging him with additional counts of MVNCO. Another omnibus hearing was set for early November 2007. The trial date was set for Monday, November 13, 2007, and the omnibus hearing was continued to the day of trial.
On the Friday before trial commenced, the State forwarded a copy of an amended information to defense counsel, adding a number of counts of MVNCO and a charge of assault in the third degree — domestic violence.
The trial began on November 13, 2007, and the State moved to formally amend the information over Erickson's objection. Amendment was granted. Erickson immediately moved for a continuance, which was heard by the presiding criminal judge. Counsel alleged he was not prepared to meet the added assault charge because the State had not included the additional assault charge in the order of May 18, and further, that a prosecutor previously assigned to the case told him the State would not charge Erickson with assault in the third degree. Counsel asserted he needed additional time to contact Ford and to interview the paramedics regarding Ford's injuries. His argument focused on the difference between the intentional assault charged in the FVNCO and the charge of third degree assault, which alleged a negligent assault causing bodily harm accompanied by substantial pain and suffering. When the trial court noted the assault charge had been a possibility since January, Erickson's counsel replied that he had no notice that the nature of the injury would be an issue at trial. The prosecutor argued that Erickson knew about the potential charge of third degree assault in January, and that the amended charge centered on the same incident as the original charge of FVNCO. Again, counsel for Erickson reiterated that he did not prepare the case with an eye toward the element of the level of injury. The court denied the motion to continue. After pretrial motions and jury selection, opening statements occurred November 19, 2007, 10 days after Erickson received a copy of the amended information.
The State's primary witness at trial was Debra Vannatta, a resident of the apartment complex where Ford lived. She testified that she heard a commotion in the parking lot in the early morning hours of December 14, and that she went out on her balcony and saw Erickson lunge toward Ford. Vannatta saw Ford fall backwards to the ground. After that, Vannatta testified that Ford screamed for help and cried out in pain. Vannatta saw Erickson get into a car and move it to an adjoining apartment complex. Vannatta then tried to help Ford and saw what she thought were bones protruding up from one of Ford's shoulders. She said that Ford's face looked like she had been slapped or punched. Vannatta also testified she saw Erickson and Ford screaming at each other and arguing in the parking lot outside of Ford's apartment on the nights of December 12 and 13, as well as the incident of December 14. Vannatta also testified she saw Erickson and Ford in the parking lot on December 11, but she did not testify that they were arguing.
Other witnesses included Police Officer Honda, Fire Captain (and EMT) Martineau, Police Officer Steffes, Police Detective Ford, and Park Ranger Steele. Officer Honda testified that she went to the apartment complex in response to a 911 call and spoke to Candace Ford. Officer Honda testified that Ford appeared to be in excruciating agony and that her shoulder protruded in an unnatural position level with part of her head. Fire Captain Martineau treated Ford at the complex. He explained that when he arrived, Ford's shoulder was not in the normal natural position. He described Ford as grimacing in pain. While he was treating her, her shoulder popped back into place. At that point Ford said it felt much better and refused further treatment. Police Officer Steffes testified similarly to the testimony of Officer Honda, describing Ford's shoulder as possibly being dislocated. He testified that Ford was in significant pain.
Park Ranger Steele testified about one of the misdemeanor violations of a no-contact order that is not at issue before this court.
Erickson's primary defense was that there was insufficient evidence to conclude beyond a reasonable doubt that he was the person who assaulted Ford. Erickson attacked Vannatta's credibility and testimony on a number of grounds, including whether the view from the balcony of her apartment was blocked, making it impossible for her to actually identify Erickson.
The jury acquitted Erickson on one charge of MVNCO and acquitted him on the charge of FVNCO, but found him guilty of MVNCO, a lesser included charge on the felony. The jury also found Erickson guilty of two other counts of MVNCO and the charge of third degree assault. Erickson was sentenced to a standard range sentence of three months, to be served concurrently with the misdemeanor sentences.
Erickson appeals, arguing this court should reverse his conviction for assault in the third degree because (1) the trial court abused its discretion in denying his motion for a continuance to prepare for the additional charge, (2) he received ineffective assistance of counsel when counsel admitted he was unprepared, and (3) the late amendment to the information was an arbitrary governmental act that prejudiced his substantial rights. In supplemental briefing, Erickson also appeals his three convictions of MVNCO. He claims the convictions violate double jeopardy because the acts supporting each of the charges constitute the same continuing offense.
DISCUSSION
Motion for Continuance
Erickson claims that the amendment to the information was a surprise and that the denial of his request for a continuance was an abuse of the court's discretion. He asserts he only learned of the prosecutor's decision to amend on the Friday preceding the Monday trial. When defense counsel made the motion to continue, counsel stated he was prepared only to defend against the original charge of FVNCO, and that he needed additional time to study the matter and the specific elements of the newly added charge of assault. Erickson contends the trial court erred because the negligent assault, an element of the third degree assault charge, was different from the intentional assault element of the charge of felony violation of a court order.
We review the trial court's decision to allow amendment of a complaint for abuse of discretion. Stansfield v. Douglas County, 107 Wn. App. 20, 28, 26 P.3d 935 (2001), (affirmed by in Stansfield v. Douglas County, 146 Wn.2d 116, 43 P.3d 498 (2002)). A trial court abuses its discretion when its decision rests on untenable grounds or reasons. State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008). In general, reversible error will not be found unless the defense can prove specific prejudice. State v. Schaffer, 120 Wn.2d 616, 620, 845 P.2d 281 (1993).
Article 1, section 22 of the Washington Constitution guarantees the right to be informed of the charges against you as a defendant. This article was designed to prevent "charging documents which prejudice the defendant's ability to mount an adequate defense by failing to provide sufficient notice." State v. Schaffer, 120 Wn.2d at 620. Within the limited confines of this constitutional provision is CrR 2.1(d), which allows the amendment of an information "at any time before [the] verdict or finding if substantial rights of the defendant are not prejudiced." While an amendment to an information at trial may prejudice a defendant by leaving him without adequate time to prepare for a defense to a new charge, State v. Purdom, 106 Wn.2d 745, 749, 725 P.2d 622 (1986), it is the defendant who has the burden of showing specific prejudice to a substantial right. State v. James, 108 Wn.2d 483, 486, 739 P.2d 699 (1987); State v. Thompson, 60 Wn. App. 662, 666, 806 P.2d 1251 (1991).
Here, the trial court did not abuse its discretion by denying Erickson's motion to continue the trial. Erickson first received notice about the possibility of the charge of assault in the third degree on January 29, 2007, over 10 months before trial began. Erickson conceded he received this paperwork, read it, and understood it. But Erickson claims the January omnibus application does not provide notice here because another prosecutor on the case did not resubmit the possibility of adding that charge in the paperwork for a May 18 omnibus hearing. But review of the order from the May hearing shows the parties agreed to have an additional omnibus hearing before trial. The State formally added the third degree assault charge on Monday, November 13. Erickson received a copy on Friday, November 9, which actually turned out to be 10 days before opening statements and the calling of the first witness.
The conclusion that Erickson received adequate notice is even more compelling here where the amended charge of third degree assault arose out of the same incident and facts as the other charge. While the elements of assault in the third degree and FVNCO are different, both allegations stem from the fact that there was an assault on Ford committed by Erickson. Those facts and the possibility of the exact charge were known to Erickson. He had sufficient notice to defend against the charge during trial. Further, the defense to both charges was the same — insufficient evidence to prove that Erickson was the person who assaulted Ford. There was no abuse of discretion.
To prove third degree assault, the State must prove that Erickson acted with criminal negligence and caused substantial pain that extended for a period of time sufficient to cause considerable suffering to Ford. RCW 9A.36.031(1)(f). To prove FVNCO, the State must prove that Erickson intentionally assaulted Ford in violation of a no-contact order. RCW 26.50.110(1) (4).
Ineffective Assistance of Counsel
Erickson also contends the decision of the trial court denying the continuance resulted in his attorney providing ineffective assistance of counsel. Erickson argues that if his counsel should have been prepared to defend against the charge of third degree assault, then his counsel was ineffective by being unable to defend. To prevail on a claim of ineffective assistance of counsel, Erickson must show both that his counsel's performance was deficient and that Erickson was prejudiced thereby. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
There is a strong presumption that defense counsel's conduct is not deficient. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Counsel's performance is deficient if it falls below an objective standard of reasonableness. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have been different. State v. Reichenbach, 153 Wn.2d at 130. If Erickson fails to prove either element, the inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Assuming arguendo that counsel's admission that he was unprepared satisfied the first prong, the prejudice prong cannot be met. Review of the evidence illustrates that Erickson cannot show that, "but for" defense counsel's performance, there is a reasonable probability that the outcome of the trial would have been different. State v. Reichenbach, 153 Wn.2d at 130. The evidence was overwhelming. A claim of ineffective assistance of counsel is not supported. Governmental misconduct — inexcusable delay
The State waited until the Friday before trial to inform defense counsel it would move to amend the information to add the charge of third degree assault. The State moved to amend the day of trial. Erickson contends the State had all of the information it needed to file the assault charge at the time it filed the initial information. He asserts that the State's inexcusable delay in amending deprived him of a fair trial. He claims the State forced him to stand trial with a defense counsel who was unprepared. State v. Michielli, 132 Wn.2d 229, 244-45, 937 P.2d 587 (1997).
Generally, an issue may not be raised for the first time on appeal. RAP 2.5(a). However, an exception is made for manifest constitutional errors. RAP 2.5(a)(3); Parrell-Sisters MHC, LLC v. Spokane County, 147 Wn. App. 356, 363-64, 195 P.3d 573 (2008). As an exception to the general rule, RAP 2.5(a)(3) is not intended to give a criminal defendant the means to obtain a new trial whenever he or she can identify some constitutional error not raised before the trial court. Rather, the claimed error must be manifest. An error is manifest only if it results in actual prejudice to the defendant and had practicable and identifiable consequences at trial. State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995); State v. Lynn, 67 Wn. App. 339, 345-46, 835 P.2d 251 (1992). The burden is upon Erickson to make the required showing. State v. Nason, 146 Wn. App. 744, 759, 192 P.3d 386 (2008). "The defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights; it is this showing of actual prejudice that makes the error `manifest.'" McFarland, 127 Wn.2d at 333. Again, Erickson cannot show actual prejudice because (1) he had adequate notice regarding the potential of the charge of third degree assault, and (2) he was not forced to stand trial with ill-prepared defense counsel. The record here shows that the claimed error, if any, was not manifest constitutional error.
Even if we address Erickson's claim of governmental misconduct through inexcusable delay, the dismissal of charges is an extraordinary remedy that is available only when there has been prejudice to the rights of the accused which materially affected his or her rights to a fair trial. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). Dismissal is not required absent a showing of prejudice. As noted above, there is no showing, in the context of the trial, that the alleged error actually affected Erickson's rights.
Double Jeopardy — same continuing offense
Finally, Erickson claims that the multiple convictions of violating a no-contact order violate state and federal double jeopardy protections. He asserts that the alleged acts supporting each of the counts, 3, 4 and 5, for misdemeanor violation of a no-contact order constitute the same continuing offense.
Double jeopardy principles protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime. State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002); State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998). Where a defendant is charged with violating the same criminal statute multiple times, our inquiry is what unit of prosecution the Legislature intended to be the punishable act under the statute. Adel, 136 Wn.2d 633-34.
In State v. Spencer, 128 Wn. App. 132, 137, 114 P.3d 1222 (2005), this court held that "the nature of a violation of a no-contact order leads to a reasonable conclusion that the legislature intended that the offense be a continuing crime. . . . Once a defendant enters the prohibited zone, the crime begins but is not complete — it continues. As long as the defendant remains within the prohibited zone, he continues to violate the no-contact order." Spencer, 128 Wn. App. at 137-38. However, a continuing offense may be distinguished from several distinct acts, each of which may be the basis for a separate charge. Spencer, 128 Wn. App. at 137 (citing State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984)).
Erickson's attempt to characterize the charges as one continuing offense is not persuasive. The facts must be evaluated in a commonsense manner. Petrich, 101 Wn.2d at 571. Here, each described incident occurred at separate times on consecutive days, late at night or early in the morning. The only connection between the incidents was that the victim was the same person and that the quarrels happened in or around the parking lot outside her apartment. This is not enough to call the offense one unit of the crime. Because there was a substantial amount of time between each incident, it can reasonably be inferred that Erickson and Ford were not always in constant contact or in the parking lot at all times. There is no violation of double jeopardy.
The judgment and sentence are affirmed.