                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                             January 15, 2019
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON,                                                No. 50299-2-II

                                 Respondent,                     UNPUBLISHED OPINION

         v.

    KENNETH CHANCE BROOKS,

                                 Appellant.

        SUTTON, J. — Kenneth Chance Brooks appeals his conviction for third degree child

molestation. He contends that the trial court abused its discretion when it granted the State’s

motion to amend the molestation charge after the defense rested, prejudicing his right to be

adequately informed of the charges against him, to adequately prepare a defense, and to choose

whether or not to testify. The State claims that Brooks did not preserve the issue for appeal. We

hold that his objection was sufficient to preserve the issue for appeal and we address the issue on

the merits. Because Brooks fails to show actual prejudice from the amendment, we hold that,

under the unique facts of this case, the trial court did not abuse its discretion in granting the State’s

motion to amend the information. We affirm Brooks’s conviction.

                                                FACTS

        On February 22, 2016, the State charged Brooks with third degree rape of a child1 and third

degree child molestation. The initial information alleged that the third degree rape of a child,


1
 Although Brooks was also convicted of third degree rape of a child, he does not challenge that
conviction.
No. 50299-2-II


C.H.,2 occurred “on or about [August 17, 2014],” and the third degree child molestation occurred

“on or about or between [January 1, 2014] and [January 31, 2014].” Clerks Papers (CP) at 1.

       On the first day of trial, C.H. testified about the incidents. She was 15 years old when they

occurred. She stated that Brooks was a family friend, he was eight years older than her, and he

came to visit her family in January of 2014. C.H. testified that, while they were cuddling on the

couch, Brooks reached under her shirt and rubbed her breast. She testified that in the early hours

of August 17, 2014, he had intercourse with her while she was too drunk to consent or resist.

Defense counsel specifically cross-examined C.H. on the timeline of the rape and the molestation

charges. She again testified that Brooks molested her in January of 2014.

       On the second day of trial, Brooks testified and admitted that he had touched C.H.

inappropriately in May of 2014. He testified that he did not touch C.H. inappropriately during

January of 2014 and stated, “May was the first and only time,” based on a text message he had

sent to her apologizing. Verbatim Report of Proceedings (VRP) (Feb. 23, 2017) at 57. Brooks

testified that he was unaware if he was in the state of Washington at all in January of 2014.

       After both parties rested, the State moved to amend the information. The State sought to

amend the date range for the third degree child molestation charge from “on or about or between

[January 1, 2014], and [January 31, 2014],” to “on or about or between [January 1, 2014], and

[May 31, 2014],” because “[t]he Defendant testified that the incident occurred in May, or he

believed it to be in May.” VRP (Feb. 23, 2017) at 85.




2
 The child victim is referred to by her initials to protect her privacy. See Gen. Order 2011-1 of
Division II, In re the Use of Initials or Pseudonyms for Child Witnesses in Sex Crime Cases (Wash.
Ct. App.).


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No. 50299-2-II


       Brooks objected twice to the information being amended with the altered dates, but did not

state a specific basis for his objections or request a trial continuance. The trial court ruled that the

amendment was proper “[g]iven the state of the case law and when the claim of the date came up,”

granted the motion to amend the charging period for the third degree child molestation charge, and

adjusted the date range in the jury instructions accordingly. VRP (Feb. 23, 2017) at 88.

       During closing argument, defense counsel agreed that the State had proven the molestation

charge beyond a reasonable doubt, but argued that Brooks admitted to the crime and apologized

to C.H. Defense counsel then contrasted Brooks’s admission that he molested C.H. with his denial

that he had sexual intercourse with C.H. to argue that the State had not proven the rape charge

beyond a reasonable doubt.

       A jury found Brooks guilty of both third degree child molestation and third degree rape of

a child. The sentencing court calculated his offender score for the crime of child molestation as

four, counting one point for two prior felony convictions and three points for the third degree child

molestation crime. Brooks appeals.

                                             ANALYSIS

       Brooks argues that the trial court abused its discretion when it granted the State’s motion

to amend the molestation charge after the defense rested because it caused him great prejudice.

He asks this court to reverse the molestation conviction and remand for resentencing with a

corrected offender score. The State argues that (1) Brooks failed to preserve the issue, (2) the issue

is not a manifest constitutional error, (3) Brooks was not prejudiced, and (4) the trial court did not

abuse its discretion in allowing the amendment. We hold that Brooks properly preserved the issue




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No. 50299-2-II


for appeal and that, under the unique facts of this case, the trial court did not abuse its discretion

in allowing the amendment of the molestation charge.

                                       I. LEGAL PRINCIPLES

       We review a trial court’s ruling to grant the State’s motion to amend charges for an abuse

of discretion. State v. Lamb, 175 Wn.2d 121, 130, 285 P.3d 27 (2012). “A trial court abuses its

discretion if its decision ‘is manifestly unreasonable or based upon untenable grounds or reasons.’”

Lamb, 175 Wn.2d at 127 (quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)). “A

court’s decision ‘is based on untenable reasons if it is based on an incorrect standard or the facts

do not meet the requirements of the correct standard.’” Lamb, 175 Wn.2d at 127 (quoting In re

Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997)). “‘A court’s decision is

manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the

applicable legal standard.’” Lamb, 175 Wn.2d at 127 (quoting Littlefield, 133 Wn.2d at 47).

       Absent the presentation of an alibi defense or a showing of other substantial prejudice to

the defendant, an “amendment of the date [on the charging document] is a matter of form rather

than substance, and should be allowed.” State v. DeBolt, 61 Wn. App. 58, 62, 808 P.2d 794 (1991).

“The defendant has the burden of showing prejudice.” State v. Statler, 160 Wn. App. 622, 640,

248 P.3d 165 (2011). Failure to request a continuance after an information has been amended has

been found to be “persuasive of a lack of surprise and prejudice.” Brown, 74 Wn.2d 799, 801, 447

P.2d 82 (1968).

                             II. PRESERVATION OF ISSUE FOR APPEAL

       As an initial matter, the State argues that Brooks failed to properly preserve this issue for

appeal because he objected below without stating a specific basis and now claims that the



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No. 50299-2-II


amendment precluded him from adequately asserting a defense. The State also argues that Brooks

does not raise a manifest error affecting a constitutional right under RAP 2.5(a)(3)3 and thus, he

waived this issue on appeal. In his reply brief, Brooks first argues that his general objection below

was sufficient to preserve the issue. Brooks also argues, alternatively, that the error is a manifest

error affecting a constitutional right. We hold that Brooks sufficiently objected below and thus,

he properly preserved the issue for review.

       Our Supreme Court has held that “to preserve error for consideration on appeal, the general

rule is that the alleged error must be called to the trial court’s attention at a time that will afford

the court an opportunity to correct it.” State v. Wicke, 91 Wn.2d 638, 642, 591 P.2d 452 (1979).

Here, Brooks objected twice to the State’s motion to amend, but did not cite a specific basis.

Regardless, by making the objection, defense counsel brought the potential error to the trial court’s

attention and provided the court with the opportunity to resolve it. Thus, we hold that Brooks

preserved the issue for appeal and we consider the issue on the merits.

                                 III. AMENDMENT OF INFORMATION

       Brooks argues that the trial court abused its discretion when it permitted the State to amend

the information for the molestation charge after the defense rested its case and the State declined

to present any rebuttal testimony. He claims that the late amendment of the information prejudiced

his right to (1) know the charges against him, (2) have an opportunity to assert an alibi defense,




3
  RAP 2.5 (a)(3) provides that “[t]he appellate court may refuse to review any claim of error which
was not raised in the trial court. However, a party may raise the following claimed errors for the
first time in the appellate court . . . [a] manifest error affecting a constitutional right.”


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No. 50299-2-II


and (3) decide whether to testify or to remain silent. Brooks contends that the late amendment is

per se prejudicial and reversible error under State v. Pelkey, 109 Wn.2d 484, 745 P.2d 854 (1987).

        The State argues that (1) the date amendment is not a material element of the charge for a

sex crime, (2) Brooks does not have a due process right to an opportunity to assert an alibi defense,

(3) Brooks did not assert a true alibi defense here, (4) Brooks was able to present a defense, and

(5) amending the date is a matter of form rather than substance. The State also argues that, because

he admitted to the molestation of C.H. in May, the jury would have convicted him based on the

“on or about” language in the original charge and thus, he fails to show prejudice. Br. of Resp. at

18. We agree with the State and hold that, under the unique facts of this case, the trial court did

not abuse its discretion in allowing the State to amend the molestation charge.

        Under the Sixth Amendment to the United States Constitution and article I, section 22 of

the Washington Constitution, the State must allege in the charging document all essential elements

of a crime to inform a defendant of the charges against him and to allow for preparation of his

defense. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Mason, 170 Wn. App. 375,

378, 285 P.3d 154 (2012). “A charging document is constitutionally sufficient if the information

states each essential element of the crime . . . even if it is vague as to some other matter significant

to the defense.” Mason, 170 Wn. App. at 378-79. Brooks does not claim that the charging

document was constitutionally deficient here.

        An information may “be amended at any time before verdict or finding if [the] substantial

rights of the defendant are not prejudiced.” CrR 2.1(d). In general, 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 change or a lesser included offense. Pelkey, 109 Wn.2d at 491. In Pelkey, our Supreme



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No. 50299-2-II


Court “adopted a per se rule limiting the ability to amend an information once the State has rested

its case ‘unless the amendment is to a lesser degree of the same charge or a lesser included

offense.’” State v. Schaffer, 120 Wn.2d 616, 620, 845 P.2d 281 (1993) (quoting Pelkey, 109 Wn.2d

at 491). “Any greater amendment ‘necessarily prejudices’ the defendant’s rights under the state

constitution.” Schaffer, 120 Wn.2d at 620 (quoting Pelkey, 109 Wn.2d at 491).

       But this per se prejudice rule does not apply to an amendment of a date if the date is not a

material element of the criminal charge. See DeBolt, 61 Wn. App. at 61-62. In cases where the

per se prejudice rule in Pelkey does not apply, the defendant has the burden of demonstrating

prejudice under CrR 2.1(d). State v. Ziegler, 138 Wn. App. 804, 809, 158 P.3d 647(2007).

A.     AMENDMENT OF CHARGE – PER SE PREJUDICE RULE

       Brooks argues that the date amendment of the charge after the defense had rested its case

is per se prejudicial and reversible error under Pelkey, and that he is not required to show prejudice.

The State argues that the Pelkey rule of per se prejudice does not apply here and Brooks fails to

show prejudice by the amendment. We agree with the State.

       Pelkey is distinguishable. There, the trial court permitted the State to amend the charging

documents to include a charge that was not a lesser included offense of the original charge. Pelkey,

109 Wn.2d at 489-90. Additionally, the amended charge included a material element that was not

included in the original charge. Pelkey, 109 Wn.2d at 490. On appeal, the court held that the

amendment was per se prejudicial. Pelkey, 109 Wn.2d at 491.

       Here, unlike in Pelkey, the date amendment was not a material element of the original

charge and all material elements were included in the original molestation charge. Thus, we hold




                                                  7
No. 50299-2-II


that the per se prejudice rule in Pelkey does not apply and Brooks is required to show prejudice

under CrR 2.1(d).

B.      PROPER NOTICE

        Brooks argues that the late amendment prejudiced him because it did not provide him

adequate notice of the charges at trial or allow him to prepare a defense. The State argues that

Brooks’s defense was not affected by the change in dates for the molestation charge and all

material elements were alleged in the original charge; thus, he received proper notice of the charge.

We agree with the State.

        Brooks argues that when the amendment occurs in a jury trial after the parties have rested

their cases, the defendant is prohibited from adequately exercising his right to defend himself,

characterizing his defense as an alibi defense. Brooks claims that the initial charging document

had a different date, “on or about or between [January 1, 2014], and [January 31, 2014],” compared

to the amended date, “on or about or between [January 1, 2014], and [May 31, 2014].” Br. of App.

at 7-8; CP at 1, 8.

        Here, the amendment changed only a date range in the third degree child molestation

charge. The original information for the third degree molestation charge stated,

                The defendant, in the County of Cowlitz, State of Washington, on or about
        or between 01/01/2014 and 01/31/2014, being at least forty-eight months older than
        Jane Doe, D.O.B. 11/4/1998, did engage in sexual contact with Jane Doe, a person
        who was at least fourteen years of age but less than sixteen years of age, and not
        married to the defendant, contrary to RCW 9A.44.089 and against the peace and
        dignity of the State of Washington.

CP at 1 (emphasis added).




                                                 8
No. 50299-2-II


       The amended information for the third degree molestation charge stated,

               The defendant, in the County of Cowlitz, State of Washington, on or about
       or between 01/01/2014 and 05/31/2014, being at least forty-eight months older than
       Jane Doe, D.O.B. 11/4/1998, did engage in sexual contact with Jane Doe, a person
       who was at least fourteen years of age but less than sixteen years of age, and not
       married to the defendant, contrary to RCW 9A.44.089 and against the peace and
       dignity of the State of Washington.

CP at 8 (emphasis added). The amended charging documents did not charge a different or greater

crime, nor did it change or add an essential element of the crime.

       Brooks also cites Schaffer to argue that an amendment midway through trial prevents a

defendant from being informed of the charges against him and, as such, the amendment is

prejudicial. But Schaffer is distinguishable from this case because here the only change was to the

date range of the molestation charge. Further, Schaffer explains that impermissible prejudice is

“less likely ‘where the amendment merely specif[ies] a different manner of committing the crime

originally charged.’” Schaffer, 120 Wn.2d at 621 (alteration in original, internal citation omitted)

(quoting Pelkey, 109 Wn.2d at 490-91). Here, the amendment alleged a different date period for

the crime than originally charged, and the amendment did not charge a different or greater crime,

nor did it change or add a material or essential element to the initial charge.

       Amendment of the charging period is usually not a material element of a crime and thus,

an “‘amendment of the date is a matter of form rather than substance, and should be allowed absent

an alibi defense or a showing of other substantial prejudice to the defendant.’” State v. Goss, 189

Wn. App. 571, 576, 358 P.3d 436 (2015) (quoting DeBolt, 61 Wn. App. at 62). In Goss, the

amendment did not charge any new offenses or add any additional counts but merely enlarged the




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No. 50299-2-II


time frame within which the crime was committed to conform to the victim’s testimony. Goss,

189 Wn.2d at 576.

       Like in Goss, the amendment here to alter the dates was not a material element of the crime

charged. Goss, 189 Wn. App. at 576-77. Similarly, as in DeBolt, the precise date of the child

molestation was not a critical element of the original information. DeBolt, 61 Wn. App. at 61-62.

       Because the amended charge did not alter a material element of the molestation charge, we

hold that Brooks had proper notice of the charge and an adequate ability to prepare a defense.

C.     PREJUDICE

       Brooks next claims that the amended information prejudiced him by impacting his ability

to determine whether to testify. The State does not directly address this issue but argues that the

“on or about” language in the original charge would have permitted the jury to find him guilty

based on his admission that he molested C.H. in May and thus, he fails to show prejudice. We

hold that Brooks fails to show prejudice.

       “The defendant has the burden of showing prejudice.” Statler, 160 Wn. App. at 640.

Failure to request a continuance after an information has been amended has been found to be

“persuasive of a lack of surprise and prejudice.” Brown, 74 Wn.2d at 801.

       Here, although Brook claims that the amendment prevented him from deciding whether to

testify, as discussed above, he was able to prepare an adequate defense and address the difference

in dates of the molestation charge when he cross-examined C.H. about the incident. Further, he

was not convicted of a different crime than the one charged, and he admitted touching C.H. in May

of 2014. Nor does Brooks adequately explain how the date amendment prevented him from




                                                10
No. 50299-2-II


determining whether he should testify. He also failed to request a trial continuance after the court

granted the State’s motion to amend.

                                           CONCLUSION

        Because Brooks fails to demonstrate actual prejudice from the amendment, we hold that,

under the unique facts of this case, the trial court did not abuse its discretion in granting the State’s

motion to amend the information. Accordingly, we affirm Brooks’s conviction for third degree

child molestation.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                        SUTTON, J.
 We concur:



 MAXA, C.J.




 LEE, J.




                                                   11
