      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                                                        —ir-
                                                  No. 73204-8-1
                                                                                        —1''-'
                     Respondent,                                                  3=»

                                                                                  G"3
                                                  DIVISION ONE
                                                                                   1
       v.

                                                                                  •pa

JAMAR PEELER,                                     UNPUBLISHED OPINION
                                                                                  V?
                                                                                  r\5
                     Appellant.                   FILED: Auqust 1 2016            CO



       Spearman, J. — Jamar Peeler appeals his conviction for second degree

promoting prostitution. He argues that the trial court erred in allowing the State to

amend the information following the State's presentation of evidence but before

the State had formally rested. Because the per se rule prohibiting amendment to

the information did not apply and because Peeler fails to show prejudice that

would otherwise make the amendment improper, we affirm.

                                       FACTS


       The State charged Peeler with second degree assault and second degree

promoting prostitution. Concerning the second count, the information stated

"[t]hat the defendant Jamar Patrick Peeler in King County, Washington, between

March 7, 2013 and November 18, 2013, did knowingly attempt to advance and

profit from the prostitution of [S.G.] ... [c]ontrary to RCW 9A.88.080(1 )(b)."

Clerk's Papers (CP) at 7-8.
No. 73204-8-1/2


       At trial, the State called several witnesses. Following S.G.'s testimony and

cross-examination, the trial court adjourned for the day. The court asked the

parties if they planned to rest their cases the following morning. The State

indicated that it did. The next morning, the State moved to amend the information

to remove the word "attempt." Verbatim Report of Proceedings (VRP)

(1/22/2015) at 4. The prosecutor stated that he believed the word "attempt" was

in the statute, but that the State's case was that Peeler actually advanced and

profited from prostitution. Peeler objected, arguing that the amendment

prejudiced him because it elevated the crime charged from a gross misdemeanor

to a felony. The trial court granted the State's motion. The State later rested.

        Peeler was convicted and received standard range sentences. He

appeals.

                                         DISCUSSION


        Peeler argues that the trial court erred in permitting the State to amend the

information after the presentation of its case in chief. Court Criminal Rule (CrR)

2.1(d)1 provides that a trial court may permit the State to amend an information

"at any time before verdict or finding if substantial rights of the defendant are not

prejudiced." But CrR 2.1(d) "necessarily operates within the confines" of the

Washington Constitution. State v. Schaffer, 120 Wn.2d 616, 621, 845 P.2d 281
(1993) (quoting State v. Pelkev, 109 Wn.2d 484, 490, 745 P.2d 854 (1987)).

Under article 1, section 22, the State must provide a criminal defendant notice of

        1 Former CrR 2.1(e) was amended in 1986, reversing] present sections (d) and
(e) to maintain a more logical orderin the rule. CrR 2.1, 1986 cmt. CrR 2.1(d) states, "[t]he 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."
No. 73204-8-1/3


all charged crimes, jd. at 619. The purpose of the constitutional provision is to

prevent charging documents from providing inadequate notice that prejudices the

defendant's ability to mount a defense, jd.

        Our Supreme Court has created a per se rule that amending the

information after the State has rested its case violates a defendant's rights under

article 1, section 22.2 Pelkev, 109 Wn.2d at 491. But the court has declined to

extend the per se rule "to a point earlier in the criminal process." Schaffer, 120

Wn.2d at 622. Amendments during the State's case are governed by CrR 2.1(d)

and are permitted if they do not prejudice a defendant's substantial rights. Id. at

621. The defendant has the burden of showing prejudice. Id. at 620. We review a

trial court's decision on a motion to amend for abuse of discretion, jd. at 621-22.

        Peeler acknowledges that the State had not formally rested its case at the

time it moved to amend. He nevertheless argues that the per se rule applied to

bar the amendment. Peeler argues that the State's case remained open only for

consideration of an evidentiary issue and that the State's case in chief was

closed "for all intents and purposes" when it sought to amend the information.

Brief of Appellant at 10.

        We reject this argument. Pelkey provides a bright line rule: amendments

are per se prejudicial after the State has rested its case. Pelkev, 109 Wn.2d at

491. Peeler asks us to hold that the State's case was effectively closed although

it was not officially closed. He provides no support indicating that we may make


        2 Amendments are permitted where the change is to a lesser degree of the crime
charged or a lesser included offense. Pelkey. 109 Wn.2d at 488. These exceptions are not at
issue here.
No. 73204-8-1/4


this determination or that, contrary to the Supreme Court's decision in Schaffer,

we may extend the per se rule to an earlier point in time. This court has

consistently held, as it must, that the per se rule applies after the State has

rested. See, e^L, State v. Zieqier, 138 Wn. App. 804, 809, 158 P.3d 647 (2007)

(declining to extend the per se rule to apply before the State rests it case).

Because the State moved to amend before it rested its case, the per se rule

against amendments did not apply.

       Peeler next argues that the trial court erred even if the per se rule did not

apply. He argues that the State's amendment prejudiced his interests in violation

of CrR 2.1(d). He contends that he "prepared his entire defense strategy under

the impression that he faced only one felony charge" and was prejudiced by

learning that he faced two felony charges. Br. of App. at 10.

       The possibility of a harsher penalty, by itself, does not demonstrate

prejudice. State v. James, 108 Wn.2d 483, 489-90, 739 P.2d 699 (1987).

Prejudice requires a showing of unfair surprise or inability to prepare a defense.

Id (citing State v. Purdom, 106 Wn.2d 745, 725 P.2d 622 (1986)). Peeler makes

no such showing. We conclude that the trial court did not abuse its discretion in

permitting the amendment.

       Affirm.




WE CONCUR:
