      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                            r.,
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STATE OF WASHINGTON                        )                                        =            rn   ca
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                                           )       DIVISION ONE
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                      Respondent,          )                                                     .1-c.nrn
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                                           )       No. 76651-1-1                        lm,
                    v.                     )                                            .-ia•
                                           )       UNPUBLISHED OPINION                    •.       -4c,
RONNIE MOORE, JR.,                         )
                                           )
                      Appellant.           )
                                           )       FILED: November 13, 2018

       DWYER, J. —Ronnie Moore, Jr. appeals from his conviction of the felony

crime of a violation of the Uniform Controlled Substances Actl (VUCSA)for the

possession of cocaine. On appeal, Moore contends that he was unfairly

prejudiced by the trial court's ruling permitting the State to amend the information

so that it charged him with possession of cocaine instead of with possession of

heroin. Because Moore does not establish that he was prejudiced by the

amendment, we affirm.

                                            1

       Moore was charged with assault in the third degree, attempting to elude a

pursuing police vehicle, and VUCSA, based on an alleged possession of heroin.

On the first day of trial, after the initial charges were read to the jury, the State

moved to amend the information to change the drug alleged to have been




       I Ch. 69.50 RCW.
No. 76651-1-1/2


possessed from heroin to cocaine.2 The State sought the amendment because

the prosecutor, who previously believed that both heroin and cocaine found on

Moore had been tested, discovered that the lab report showed that only the

cocaine found on Moore had been tested. The State explained that it had had

access to the report before trial and had provided the report to defense counsel

as part of discovery, but did not notice the lab's error until the first day of trial.

        Moore objected to the amendment and asked the court to recess so that

full research and briefing could be prepared on the issue. Following briefing and

oral argument, the trial court allowed the amendment. The trial court both

rejected Moore's argument that the amendment substantially prejudiced Moore's

rights and denied Moore's motion for a mistrial. However, the court did give the

following curative instruction to the jury:

              The court has been informed that one of the charges against
       Mr. Moore is Violation of the Controlled — Uniformed Controlled
       Substances Act, Possession of Heroin. The Information now
       charges Mr. Moore with Violation of the Uniformed Controlled
       Substances Act, Possession of Cocaine instead. You're instructed
       to disregard any remarks made by the Court or the parties
       pertaining to heroin.

        Following the close of the State's case, Moore successfully moved to

dismiss the charges in counts one and two of the amended information premised

upon the State's failure to adduce sufficient evidence to support a conviction on

either count. The jury found Moore guilty of the VUCSA charge. Moore appeals.




          2 The State had previously amended the information concerning a separate charge prior
to trial. The State requested a second amendment to modify the VUCSA possession charge.

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No. 76651-1-1/3


                                              II

       Moore first contends that the trial court abused its discretion by permitting

the State to amend the information on the first day of trial because such

amendment was prejudicial to Moore's substantial rights in violation of the

applicable court criminal rule. In response, the State asserts that the trial court

did not abuse its discretion because the amendment was not prejudicial to

Moore. The State is correct.

       We review a trial court's determination as to whether an amendment to an

information prejudiced the defendant for an abuse of discretion. State v.

Schaffer, 120 Wn.2d 616, 621-22, 845 P.2d 281 (1993). The defendant bears

the burden of showing that an amendment was prejudicial. State v. Gosser, 33

Wn. App. 428, 435,656 P.2d 514 (1982).

       "In criminal prosecutions the accused shall have the right. .. to demand

the nature and cause of the accusation against him." CONST. art.!, § 22(amend.

10). The purpose of this constitutional right is to provide defendants with

sufficient notice of the charge or charges against them so they are not prejudiced

in preparing their defense. State v. Pelkey, 109 Wn.2d 484, 490-91, 745 P.2d

854(1987). However, CrR 2.1(d) provides that "[t]tle 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."

       To reconcile any apparent conflict between the constitutional requirement

and CrR 2.1(d), our Supreme Court has set forth two separate tests for

determining whether a mid-trial amendment to the information is prejudicial to a


                                          3
No. 76651-1-1/4


defendant's substantial rights. Amendments to an information are per se

prejudicial if made subsequent to the close of the State's case "unless the

amendment is to a lesser degree of the same charge or a lesser included

offense." Pelkey, 109 Wn.2d at 491. If, however, an amendment is made prior

to the close of the State's case, the trial judge must evaluate all of the pertinent

facts of the case to determine whether the defendant's substantial rights would

be prejudiced by the amendment. Schaffer, 120 Wn.2d at 621. In determining

whether a defendant would be prejudiced, courts have considered whether the

amendment merely charges a different manner of committing the crime originally

charged,3 whether the amendment charges a lower degree of the original crime

charged,4 whether the defendant was aware that the State might pursue the

alternative theory and whether such theory arose from the same factual

circumstances as the original charge,5 and whether the defendant "had any

defense to the amended charge ... that was not available as a defense to the

prior charge."6 Additionally, "[w]here the defendant fails to ask for a continuance,

there is presumed to be a lack of surprise and prejudice." State v. Schaffer, 63

Wn. App. 761, 767, 822 P.2d 292(1991), aff'd, 120 Wn.2d 616, 845 P.2d 281

(1993).


         3 Gosser, 33 Wn. App. at 434-35 (holding no prejudice shown where amended
information changed an assault with intent to commit a felony of first degree escape charge to an
assault with a weapon or other instrument likely to produce bodily harm charge).
         4 State v. Brown, 74 Wn.2d 799, 801, 447 P.2d 82(1968)(holding no prejudice shown
where amended information charged a lower degree of assault than did the original information).
         5 Schaffer, 120 Wn.2d at 622(holding no prejudice shown where "the new theory
presented in the amended information arose out of the same general factual circumstance [as the
original charge]. Also...[the defendant] had the opportunity to cross-examine the key witness
... with full knowledge of the proposed amendment").
         6 State v. Davis, 64 Wn. App. 511, 518, 827 P.2d 298 (1992), rev'd on other grounds, 121
Wn.2d 1, 846 P.2d 527(1993).

                                              -4 -
No. 76651-1-1/5


        Here, the State sought an amendment to the information well prior to the

close of the State's case.7 The amendment did not change which crime was

charged, a VUCSA for possession, but, rather, altered only the manner of its

commitment, possession of cocaine instead of possession of heroin. Moore

cannot claim to be surprised by the State's amendment because he was

allegedly found in possession of both cocaine and heroin, and had well earlier

been provided the lab report stating that only the cocaine found on Moore had

been tested. Moore's defense to the original charge was a general denial. The

nature of that defense was unchanged by the amendment. Furthermore, Moore

did not request a continuance when the amendment was permitted. Thus we

presume that the amendment was neither prejudicial nor a surprise to Moore.8

        Moore nevertheless contends that the amendment was prejudicial

because it eliminated his opportunity to plead guilty to the VUCSA charge prior to

trial. This contention is unpersuasive. Nothing in the record shows that Moore

would have sought or accepted such a plea deal or that any such plea deal

would have been a better outcome than the results of trial. Indeed, at trial two of




        7 In its ruling permitting the amendment, the trial court explained that:
                  In this case, the jurors have not heard the opening arguments or any
         witnesses' testimony. The only part that they've heard was part of the court's
         jury script, for lack of a better word, where the counts were give[n]from the First
         Amended Information from the State. Count three was read as it is in the
         Information and referred to heroin as the substance that was possessed under
         that charge.
         8 Moore misidentifies a request for a recess to prepare briefing on whether the trial court
should permit the amendment as a request for a continuance to further prepare for trial. The
record is clear that no continuance was sought by defense counsel following the court's ruling
permitting the State to amend the information. Instead, Moore's counsel requested that the jury
be given a curative instruction regarding the amendment. The trial court provided such an
instruction.

                                               -   5
No. 76651-1-1/6


the three counts charged were dismissed. Nothing in the record indicates that

Moore could have received a better outcome through plea bargaining and Moore

does not assert that he could have obtained such a dea1.9 Moore's assertion

here that he might have wanted to reach a plea deal is entirely speculative and is

unsupported by the record. Moreover, if Moore needed more time to evaluate

the amended charge and reconsider his defense strategy, the proper course

would have been to seek a continuance. See Schaffer, 63 Wn. App. at 767. The

trial court did not abuse its discretion by permitting the State to amend the

information.

                                               111

        Moore next contends that the trial court erred when it did not dismiss the

charges against Moore pursuant to CrR 8.3(b). This is so, Moore asserts,

because he was prejudiced by the State's mismanagement of the case. We

disagree.

        We review a trial court denial of a motion to dismiss charges pursuant to

CrR 8.3(b) under the manifest abuse of discretion standard. State v. Michielli,

132 Wn.2d 229, 240, 937 P.2d 587(1997). "Discretion is abused when the trial

court's decision is manifestly unreasonable, or is exercised on untenable grounds

or for untenable reasons." State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d

1017(1993).




       9 The record indicates only that the State made plea offers to Moore, including one that
dropped the VUCSA count entirely, but Moore refused to accept them.

                                              -6-
No. 76651-1-1/7


       CrR 8.3(b) states that "[t]he court, in the furtherance of justice, after notice

and hearing, may dismiss any criminal prosecution due to arbitrary action or

governmental misconduct when there has been prejudice to the rights of the

accused which materially affect the accused's right to a fair trial." This is an

extraordinary remedy. Blackwell, 120 Wn.2d at 830.

       "Two things must be shown before a court can require dismissal of

charges under CrR 8.3(b). First, a defendant must show arbitrary action or

governmental misconduct... . The second necessary element... is prejudice

affecting the defendant's right to a fair trial." Michielli, 132 Wn.2d at 239-40. The

governmental misconduct "need not be of an evil or dishonest nature; simple

mismanagement is sufficient." Blackwell, 120 Wn.2d at 831. To show prejudice

affecting the right to a fair trial, the defendant must show that the State's

governmental misconduct interfered with the defendant's right to a speedy trial or

the right to be represented by counsel whom had sufficient opportunity to

adequately prepare a defense for trial. Michielli, 132 Wn.2d at 240 (citing State

v. Price, 94 Wn.2d 810, 814,620 P.2d 994 (1980)). Governmental misconduct

"cannot force a defendant to choose between these rights." Price, 94 Wn.2d at

814.

       Here, Moore asserts that governmental misconduct denied Moore the

opportunity for negotiating a plea bargain and that the misconduct changed his

trial strategy regarding the non-drug possession offenses with which he was

charged. Neither of these assertions satisfies the prejudice standard of CrR

8.3(b). Moore's assertion that his trial strategy for the non-drug offenses was


                                          7-
No. 76651-1-1/8


negatively impacted by misconduct is patently meritless, as both charges were

dismissed at the end of the State's case. Moore's assertion that he lost an

opportunity to negotiate a plea bargain is similarly meritless for the reasons

discussed above. Furthermore, the failure to negotiate a plea deal did not

prejudice Moore's right to a speedy trial nor did it require his trial counsel

proceed in the absence of proper preparation. The trial court did not abuse its

discretion by denying Moore's request for dismissal pursuant to CrR 8.3(b).

       Affirmed.




We concur:




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