               IN THE SUPREME COURT, STATE OF WYOMING

                                       2013 WY 111

                                                            APRIL TERM, A.D. 2013

                                                               September 20, 2013

LEOBIGILDO URIOSTEGUI
ALBARRAN,

Appellant
(Defendant),
                                                     S-13-0030
v.

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                     Appeal from the District Court of Platte County
                        The Honorable John C. Brooks, Judge

Representing Appellant:
      Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel;
      David E. Westling, Senior Assistant Appellate Counsel; Office of the State Public
      Defender.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Theodore R. Racines, Senior Assistant Attorney General;
      Jeffrey S. Pope, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
VOIGT, Justice.

[¶1] The appellant was charged by Information with three crimes after a sexually
charged attack on his sister-in-law. On the morning trial was to begin, the district court
allowed the State to amend Count III of the Information in order to clarify that the charge
was for aggravated burglary, not simply burglary. A jury convicted the appellant of
aggravated burglary along with battery and third-degree sexual assault. The appellant
contends the district court improperly permitted amendment of the aggravated burglary
charge. We affirm.

                                         ISSUE

[¶2] Did the district court abuse its discretion and deprive the appellant of his right to
due process of law under the Sixth Amendment to the United States Constitution and
Article 1, Section 10 of the Wyoming Constitution by granting the State’s motion to
amend Count III of the Information before the trial began?

                                         FACTS

[¶3] Because the circumstances surrounding the sexual assault underlying this case are
not pertinent to this appeal, we will simply provide a brief summary of the event. On
October 29, 2011, the appellant entered his sister-in-law’s home while she and her two-
year old son were asleep in her bed. The appellant got on top of his sister-in-law (“EM”)
and proceeded to touch her private areas and attempted to take off her shorts and
underwear. When her son awoke, EM asked the appellant to take her out to the living
room. Once they reached the living room, the appellant threatened EM and her family, at
which point EM opened the front door and screamed for help. To silence the screams,
the appellant pushed EM to the floor and began choking her. The appellant then forced
EM to make a recording on his cell phone to the effect that EM had invited him over and
the entire encounter was consensual. EM acquiesced and the appellant then left.

[¶4] We now turn to the procedural part of this matter, with which the appellant takes
issue. On November 2, 2011, the appellant was charged with three counts by Information
in Platte County Circuit Court: (1) aggravated assault and battery in violation of Wyo.
Stat. Ann. § 6-2-502(a)(ii) (LexisNexis 2013); (2) third-degree sexual assault in violation
of Wyo. Stat. § 6-2-304(a)(iii) (LexisNexis 2013); and (3) “aggravated burglary” in
violation of Wyo. Stat. Ann. § “6-3-301(a)” (LexisNexis 2013). (Emphasis added.)
Specifically, Count III of the original Information states:

             On or about October 29, 2011, LEOBIGILDO
             URIOSTEGUI ALABARRAN [sic] did, without authority,
             enter or remain in an occupied structure, with the intent to
             commit a felony therein, to-wit; LEOBIGILDO


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               URIOSTEGUI ALABARRAN [sic] did, without authority,
               enter a residence occupied by [EM] and her child with the
               intent to commit a sexual assault upon [EM], CONTRARY to
               the form of the statute W.S. § 6-3-301(a), in such case made
               and provided and against the peace and dignity of the State
               of Wyoming—AGGRAVATED BURGLARY—FELONY
               [Maximum Penalty: Imprisonment not more than 10
               years and or a fine of up to $10,000.]

Although Count III of the original Information states “aggravated burglary,” it does not
cite the correct subsection for aggravated burglary; rather, it cites the subsection for
burglary and the corresponding lesser penalty.1

[¶5] To correct typographical errors apparently found in Count I, the State amended the
Information two times in the following weeks. However, Count III remained unchanged
in the Amended and Second Amended Information. A preliminary hearing was held,
probable cause was found on all counts, and the case was bound over to district court.2
At his December 12, 2011, arraignment, the appellant pleaded not guilty to all three
counts.

[¶6] On May 4, 2012, four days before trial, the appellant moved to dismiss Count III
in the Second Amended Information because, as the appellant argued, it did not set out all
the elements for “aggravated burglary.” Although Count III alleged that the appellant
entered EM’s home intending to commit a sexual assault, it did not set forth that the
appellant knowingly or recklessly inflicted bodily injury, or otherwise attempted to do the
same. The day before trial, the district court held a hearing on the appellant’s motion
during which the appellant argued that “count three does not state a cause of action for
aggravated battery. . . . [I]t’s necessary for the state to list the elements, particularly when
the element that the state omitted in this case can be pled three different ways.” The State
argued that aggravated burglary “fit the facts,” but was not sure whether the appellant
was advised of the maximum and minimum penalties for the elevated offense. The
district court agreed that the Second Amended Information neither included a necessary
element nor set forth the correct penalty for aggravated burglary, and took the issue under
advisement.

[¶7] On the morning of trial, the district court allowed the State to amend the
Information for a third time to correct the charge of aggravated burglary and recite its
maximum penalty. Count III of the Third Amended Information states:


1
 Compare Wyo. Stat. Ann. § 6-3-301(a), with § 6-3-301(c) (LexisNexis 2013).
2
 The order binding the case over to the district court also states that appellant was charged with
“Aggravated Burglary” but cites to subsection (a) of the burglary statute instead of subsection (c).


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              On or about October 29, 2011, LEOBIJILDO [sic]
              URIOSTEGUI ALBARRAN did, without authority, enter or
              remain in an occupied structure, with the intent to commit a
              felony therein and in the course of committing
              the crime of burglary, LEOBIJILDO [sic] URIOSTEGUI
              ALBARRAN, knowingly or recklessly inflicted bodily injury
              to [EM] to-wit; LEOBIJILDO             [sic] URIOSTEGUI
              ALBARRAN did, without authority, enter a residence
              occupied by [EM] and her child with the intent to commit a
              sexual assault upon [EM] and did cause bodily injury to
              [EM], CONTRARY to the form of the statute W.S. § 6-3-
              301(a) & 6-3-301(c)(ii), in such case made and provided and
              against the peace and dignity of the State of Wyoming—
              AGGRAVATED BURGLARY—FELONY [Maximum
              Penalty: Imprisonment not less than 5 years nor more
              than 25 years and or a fine of up to $50,000.]

[¶8] The district court allowed the amendment, over the appellant’s objection, because
the crimes—burglary and aggravated burglary―arose from the same fact pattern as well
as the same statute. It then advised the appellant of the changes. Specifically, the district
court explained that Count III of the Third Amended Information now alleged that the
appellant knowingly or recklessly inflicted bodily injury or attempted to inflict the same
on EM, and that the maximum possible punishment for the charge is 25 years and a fine
of up to $50,000. The district court then gave the appellant a chance to change his not
guilty plea. The appellant stated he understood the charge of aggravated burglary along
with the increased penalty, and wanted to proceed to trial on his not guilty plea.

[¶9] The jury found the appellant guilty of three crimes: (1) battery, the lesser included
offense of aggravated assault and battery set out in Count I; (2) third-degree sexual
assault; and (3) aggravated burglary. He was sentenced to concurrent prison terms of six
months, ten to twelve years, and five to eight years, respectively. This appeal followed.

                               STANDARD OF REVIEW

[¶10] On appeal from a district court’s decision to grant or deny a motion to amend an
information, we have explained:

              Wyoming Rule of Criminal Procedure 3(e) grants discretion
              to a trial judge in deciding whether or not a motion brought
              by the State to amend the information just prior to trial should
              be granted. Consequently, we review the trial court's decision
              by applying our abuse of discretion standard. In deciding
              whether or not the trial court abused its discretion, this court


                                             3
              must determine whether the trial court could reasonably
              conclude as it did and whether any facet of its ruling was
              arbitrary or capricious.

Wilkening v. State, 2005 WY 127, ¶ 23, 120 P.3d 680, 687 (Wyo. 2005) (citations and
quotations omitted).

[¶11] When an accused’s constitutional right to notice of criminal charges is at issue,
however, the determination on the adequacy of notice is a question of law, which we
review de novo. Spagner v. State, 2009 WY 12, ¶ 10, 200 P.3d 793, 799 (Wyo. 2009).

                                       DISCUSSION

[¶12] The appellant argues that the district court abused its discretion in permitting the
State to amend the Information on the morning of trial. Taking the position that the Third
Amended Information charged a new offense for Count III, he claims that the rules of
criminal procedure only permit an amendment so long as it does not charge a new offense
and is not prejudicial to the defendant. The appellant also argues that the amendment
prejudiced his rights and deprived him of constitutionally required notice because he did
not have the opportunity to prepare a defense for aggravated burglary. He contends that
because of the amendment on the morning of trial, bodily injury and the proof thereof
suddenly became a key issue. The appellant also argues he was prejudiced because the
amendment exposed him to a larger maximum sentence, which may have impacted his
previous plea and decision to go to trial.

[¶13] The State responds that a district court can allow amendment of an information
before trial if it does not prejudice the defendant. According to the State, because the
Information was amended before the trial began, whether the Information allegedly
charged a new crime is immaterial. The State also argues there was no prejudice because
the Information and probable cause affidavit gave the appellant sufficient notice of the
facts the State would use to prove that the appellant inflicted bodily injury on the victim.
The State points out that the facts used for aggravated burglary were already pled in the
charge of aggravated assault and battery. Additionally, the State argues that, although the
amendment subjected the appellant to a greater maximum penalty for aggravated
burglary, the appellant received a sentence less than the maximum for ordinary burglary.

[¶14] Motions to amend an information are governed by W.R.Cr.P. 3(e), which states:

              (e) Amendment of information or citation. — Without leave
              of the court, the attorney for the state may amend an
              information or citation until five days before a preliminary
              examination in a case required to be tried in district court or
              until five days before trial for a case not required to be tried in


                                              4
              district court. The court may permit an information or
              citation to be amended:

                   (1) With the defendant's consent, at any time before
                   sentencing.

                   (2) Whether or not the defendant consents:

                         (A) At any time before trial if substantial rights
                   of the defendant are not prejudiced.

                         (B) At any time before verdict or finding if no
                   additional or different offense is charged and if
                   substantial rights of the defendant are not prejudiced.

Because the third and final amendment to the Information occurred before trial,
W.R.Cr.P. 3(e)(2)(A) controls. See Jones v. State, 2009 WY 33, ¶ 16, 203 P.3d 1091,
1096 (Wyo. 2009). As a result, we limit our analysis to whether the appellant’s
substantial rights were prejudiced.

[¶15] The appellant argues that he was prejudiced because he was deprived of
constitutionally sufficient notice. Under the United States and Wyoming constitutions,
an accused has a right to notice of the charges against him to allow for a fair opportunity
to defend against the charges. U.S. Const. amend. VI; Wyo. Const. art. 1, § 10; see also
W.R.Cr.P. 3. “These constitutional provisions and the procedural rule require that an
information (1) contain the elements of the offense charged; (2) fairly inform a defendant
of the charges against which he must defend; and (3) enable a defendant to plead an
acquittal or conviction in bar of future prosecutions for the same offense.” Spagner, 2009
WY 12, ¶ 10, 200 P.3d at 799. “A detailed affidavit attached to the information may
provide some of this information.” Id.

[¶16] Here, the Third Amended Information contains all the elements for aggravated
burglary and is consistent with the words of the statute. See Wyo. Stat. § 6-3-301(c)
(LexisNexis 2013). Therefore, the appellant was fairly informed of the charges and the
first two factors are met. The third factor is also met because the charging allegations bar
the State from prosecuting the appellant for aggravated burglary based on the same facts.
The appellant, however, does not seem to challenge the substance of the Third Amended
Information and instead focuses on the timeliness of the notice. See Meek v. State, 2002
WY 1, ¶ 19, 37 P.3d 1279, 1285 (Wyo. 2002). Thus, the question becomes whether the
appellant was able to prepare a defense for aggravated burglary even though the
amendment occurred on the morning of trial. See Estrada-Sanchez v. State, 2003 WY 45,
¶ 12, 66 P.3d 703, 708 (Wyo. 2003). We are convinced he was.



                                             5
[¶17] From the start, the appellant was on notice that aggravated burglary was the charge
in Count III. The affidavit of probable cause states that the appellant “was arrested and
charged pursuant to 6-3-301(c)(ii) Aggravated Burglary . . . .” Count III in the original
Information along with the Amended and Second Amended Information state the charge
as “AGGRAVATED BURGLARY,” although all cite to the incorrect subsection and
penalty. Indeed, that is presumably why four days before trial the appellant moved to
“dismiss Count III of the Second Amended Information on the basis that it fails to allege
that Defendant committed the criminal offense of Aggravated Burglary . . . .” Following
the rule that the sufficiency of an information is determined “from a broad and
enlightened standpoint of right reason rather than from a narrow view of technicality and
hairsplitting[,]” we cannot conclude that the appellant was “misled to his prejudice.”
Spagner, 2009 WY 12, ¶ 13, 200 P.3d at 799.

[¶18] We also note the new allegation in Count III of the Third Amended Information—
that the appellant caused bodily injury—was already a fact pled in the charge for
aggravated assault and battery. Compare Wyo. Stat. Ann. § 6-3-301(c), with Wyo. Stat.
Ann. § 6-2-502(a).3 From the original Information throughout all the subsequent
amendments, Count I for aggravated assault and battery provided that the appellant
caused or attempted to cause serious bodily injury, using his hands to choke and suffocate
the victim. Accordingly, that is why the appellant conceded to the district court that
“because [the appellant] was also charged with aggravated assault and battery, we were
on notice . . . .” The Third Amended Information was based on the same facts and
evidence as the original charge and arose out of the same event. Jones, 2009 WY 33,
¶ 16, 203 P.3d at 1096. More than anything, the amendment to Count III corrected the
charge to conform with what was stated in bold throughout the previous versions—
AGGRAVATED BURGLARY. See Wilkening, 2005 WY 127, ¶¶ 23-25, 120 P.3d at
687-88; see also Garnica v. State, 2011 WY 85, ¶ 17, 253 P.3d 489, 492 (Wyo. 2011).

[¶19] Finally, the appellant’s substantial rights were not prejudiced because the Third
Amended Information exposed him to a greater maximum sentence. Although the
appellant claims his decision concerning his plea and decision to go to trial may have
been impacted by the third amendment, the record belies his claim. The district court
solicitously explained the amended charge and its maximum possible punishment. The
appellant said he understood the charge and penalty. The Court then provided the
appellant an opportunity to change his plea. Understanding the charge for aggravated
burglary, the appellant stood by his not guilty plea and proceeded to trial. In the end, the
third amendment to the Information neither impacted the appellant’s plea and decision to
proceed with trial, nor did it change the evidence presented at trial and the appellant’s
corresponding defense.


3
 For purposes of both crimes, bodily injury is defined as “physical pain, illness or any impairment of
physical condition[.]” Wyo. Stat. Ann. § 6-1-104(a)(ii) (LexisNexis 2013).


                                                  6
                                 CONCLUSION

[¶20] The district court did not abuse its discretion in allowing amendment of the
Information the morning of trial, and the appellant’s substantial rights were not
prejudiced under the circumstances.

[¶21] We affirm.




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