                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                              April 21, 2020
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON,                                              No. 47916-8-II

                                  Respondent,

           v.

    KENNETH ALFRED LINVILLE, JR.,                              UNPUBLISHED OPINION

                                  Appellant.

          WORSWICK, J. — Kenneth Linville appealed his 137 convictions for leading organized

crime, burglary, trafficking in stolen property, theft, possession of stolen property, and unlawful

firearm possession.

          In our first decision, State v. Linville, 199 Wn. App. 461, 400 P.3d 333 (2017), rev’d 191

Wn.2d 513, 423 P.3d 842 (2018), we held that Linville received ineffective assistance of counsel

based on his counsel’s failure to object to the State’s improper joinder of charges. We also held

that sufficient evidence proved that Linville was armed with a firearm as related to his conviction

for first degree burglary.1

          The Supreme Court, although agreeing that the State improperly joined Linville’s

charges, held that Linville did not demonstrate that he received ineffective assistance of counsel.

The Supreme Court held that because the record was insufficient to determine whether Linville’s

counsel had legitimate reasons for remaining silent in the face of the erroneous joinder, Linville

failed to show that his counsel had rendered deficient performance. Accordingly, the Supreme



1
    The Supreme Court did not accept this issue for review, and we do not revisit it here.
No. 47916-8-II


Court remanded to this court to resolve Linville’s other issues. The parties subsequently filed

additional briefing, and we heard argument.

       We now address Linville’s arguments that (1) a conviction based on the first alternative

means of trafficking in stolen property cannot rest on accomplice liability, (2) the State presented

insufficient evidence to impose the firearm sentencing enhancements, (3) the trial court violated

his right to a unanimous jury verdict by instructing the jury that it need not be unanimous as to

the means by which it found him guilty of trafficking in stolen property, (4) his multiple

convictions for trafficking in stolen property violated the prohibition against double jeopardy,

and (5) the trial court denied his right to due process by permitting the State to amend the

charging information after the State rested its case.

       We hold that sufficient evidence supported the firearm sentencing enhancements, and

Linville’s convictions for trafficking in stolen property did not violate double jeopardy. But we

also hold that the trial court denied Linville his right to due process by permitting the State to

amend the charging information after the State rested its case. We further hold that Linville

failed to preserve his other arguments for appeal and he does not identify any manifest

constitutional errors. Accordingly, we affirm in part but remand to the trial court for the

dismissal of count 130 without prejudice.

                                               FACTS

       In late 2013, law enforcement noticed an increase in daytime residential burglaries in

Thurston County. Law enforcement noticed similarities among the burglaries, including the use

of a tool to pry open the front door of the burglarized homes. As a result of their investigation,

law enforcement arrested several suspected perpetrators, including Linville.



                                                  2
No. 47916-8-II


       The State subsequently charged Linville with leading organized crime, 35 counts of

residential burglary, attempted residential burglary, 4 counts of first degree burglary while armed

with a firearm, 3 counts of second degree burglary, 39 counts of trafficking in stolen property, 17

counts of first degree theft, 18 counts of second degree theft, attempted second degree theft, 3

counts of third degree theft, 5 counts of theft of a firearm, 5 counts of identity theft, 4 counts of

unlawful possession of a firearm, possession of stolen property, and possession of a controlled

substance, for a total of 138 charges with numerous deadly weapon and firearm sentencing

enhancements.

       During the ten week trial, the State presented evidence from numerous codefendants who

all identified Linville as the ringleader of the burglary scheme.

       Jessica Hargrave, Linville’s former girlfriend, testified that she and Linville burglarized

homes together. She explained that Linville would use a 32-inch screwdriver to pry open the

front doors of homes. Hargrave testified that the pair would steal jewelry boxes, safes,

televisions, and electronics from the homes. She specifically recalled stealing a firearm from one

house. Hargrave recalled that Linville would bring electronics, guns, and jewelry that they stole

to David Knutson in exchange for methamphetamines. Hargrave also testified that Sara Myers

would also give Linville methamphetamines in exchange for help with bills or stolen electronics

or jewelry. Hargrave further testified that she and Linville would separate the gold jewelry and

remove any diamonds or jewels. They took the gold to “the gold guy[],” who would buy it from

them. 5 Verbatim Report of Proceedings (VRP) at 859. They sold the diamonds to Kluh’s

Jewelry.




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No. 47916-8-II


       Jolee Lafferty testified that she drove Linville to houses he planned to burgle. She

described Linville using a crowbar to break into the front doors of homes and later exiting with

televisions and jewelry boxes. Lafferty testified that Linville traded the items he stole for money

or drugs. Lafferty recalled driving Linville to “the gold guy” and to Myers’s residence so

Linville could trade the stolen items for drugs and money. 18 VRP at 3281.

       Jennifer Krenik testified to burglaries she committed with Linville. Krenik explained that

she and Linville entered the homes through the front door, which Linville pried open with a

screwdriver. She recalled that after one burglary, when they were back in the car, Linville told

her he had stolen a black revolver. She testified that after the burglaries, she and Linville took

the items they stole to Knutson’s home.

       Knutson, who sold drugs to Linville, testified that he routinely purchased stolen goods

from Linville with drugs. Knutson recalled exchanging drugs for a used television. Knutson

testified that Linville brought stolen goods to his home about once a week, including guns,

electronics, jewelry, and laptops and offered to sell them for drugs.

       The codefendants’ testimonies were corroborated by testimony from law enforcement

officers and the burglary victims who testified to the items stolen from their residences and

identified the stolen goods recovered from the homes of Linville and his codefendants.

Specifically, victims of each of the burglaries associated with a firearm sentencing enhancement

testified that firearms were stolen from their homes.




                                                  4
No. 47916-8-II


       The jury ultimately found Linville guilty of almost all of the offenses,2 and found that the

State proved firearm enhancements on three charges. The trial court sentenced him to 914

months in prison.

       Linville appealed to this court, and we held that Linville received ineffective assistance of

counsel based on his counsel’s failure to object to the State’s improper joinder of charges. We

also held that sufficient evidence proved that Linville was armed with a firearm during the first

degree burglary. The State petitioned for review to our Supreme Court. Our Supreme Court

held that because the record was insufficient to determine whether Linville’s counsel had

legitimate reasons for remaining silent in the face of the erroneous joinder, Linville failed to

show that his counsel had rendered deficient performance.3 Accordingly, the Supreme Court

remanded to this court to resolve Linville’s other issues.

                                            ANALYSIS

                              I. ISSUES NOT PRESERVED FOR APPEAL

       As an initial matter, Linville raises several arguments for the first time on appeal,

including (1) the trial court erred by allowing the State to join offenses that were not “part of the

pattern of criminal profiteering activity” for trial with the charge of leading organized crime as



2
  The jury found Linville not guilty of possession of a controlled substance and also found that
the State did not prove any of the deadly weapon enhancements. The State identified the deadly
weapon as a pry bar.
3
  Our Supreme Court noted that the appropriate avenue for Linville to raise his ineffective
assistance claim, which would require the appellate court to consider facts not in the record,
would be a personal restraint petition. State v. Linville, 191 Wn.2d 513, 525, 423 P.3d 842
(2018).




                                                  5
No. 47916-8-II


prohibited by RCW 9A.82.085,4 (2) a conviction for the first alternative means of trafficking in

stolen property cannot rest on accomplice liability, and (3) his constitutional right to a

unanimous jury verdict was violated when the trial court instructed the jury that it did not need to

reach a unanimous verdict with respect to the means by which it found him guilty of first degree

trafficking in stolen property.

       Generally, an issue cannot be raised for the first time on appeal unless it is a “manifest

error affecting a constitutional right.” RAP 2.5(a); State v. Lamar, 180 Wn.2d 576, 582, 327 P.3d

46 (2014). This requires an appellant to identify a constitutional error and show how the alleged

error affected his rights at trial. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).

For a claim of error to qualify as a claim of manifest error affecting a constitutional right, the

appellant must make a plausible showing that the error resulted in actual prejudice, which means

that the alleged error had “practical and identifiable consequences in the trial.” Lamar, 180 Wn.2d

at 583. To determine whether an appellant makes this showing, we may preview the merits of the

claimed errors to determine whether the argument is likely to succeed. State v. Walsh, 143 Wn.2d

1, 8, 17 P.3d 591 (2001).

A.     Improper Joinder

       Joinder of offenses that are not part of the pattern of criminal profiteering activity is

prohibited by statute. RCW 9A.82.085. Linville did not raise this issue at trial, but he argues

that we should nonetheless review the joinder issue because “RCW 9A.82.085 represents a

legislative conclusion that a joint trial for leading organized crime and offenses which do not



4
 We previously addressed this issue in footnote seven of our prior decision, but we address it
again in more detail here. Linville, 199 Wn. App. at 465.


                                                  6
No. 47916-8-II


constitute a part of the pattern of criminal profiteering activity is manifestly unfair,” and “[a]

manifestly unfair trial deprives a defendant of due process in violation of the Fourteenth

Amendment.” Br. of Appellant 17 (citing State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d

1213 (1984)). However, Linville’s argument here is flawed for two reasons.

       First, Linville merely assumes without authority that the legislature’s rationale for RCW

9A.82.085 was based on constitutional fair trial rights. Second, the argument assumes that any

type of failure to preserve an issue for appeal which allegedly renders a trial “unfair” would

constitute a constitutional violation of due process rights. This is not the rule. The rule against

joinder here is rooted in statute. Because Linville cannot show that the improper joinder

constituted a constitutional error, we do not address this issue for the first time on appeal.

B.     Accomplice Liability for Trafficking in Stolen Property

       Linville argues that a conviction for the first alternative means of trafficking in stolen

property cannot rest on accomplice liability, and because the “to convict” jury instruction

permitted convictions based on accomplice liability, his 39 convictions of trafficking must be

reversed. Br. of Appellant 26

       The Washington statute defining accomplice liability provides that a person is guilty as

an accomplice if he “solicits, commands, encourages, or requests” another person to commit a

crime or aids another person in planning or committing the crime, knowing that such act will

promote or facilitate the commission of the crime. RCW 9A.08.020(3)(a)(i). Nothing in the text

of this statute limits the application of accomplice liability principles to any particular crime.

However, our courts have recognized that “it is sometimes apparent from the way the legislature

has defined a particular crime that traditional accomplice liability provisions are not applicable to



                                                  7
No. 47916-8-II


that crime.” See State v. Hayes, 164 Wn. App. 459, 469, 262 P.3d 538 (2011) (abrogated on

other grounds recognized in State v. Colson, No. 73798-8-II (Wash. Ct. App. Mar. 27, 2017)

(unpublished)

(http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=737988M

AJ).

       We review the construction of a statute de novo. Hayes, 164 Wn. App. at 469. Our

primary objective of an inquiry into the construction of a statute is to ascertain and carry out the

intent of the legislature. Hayes, 164 Wn. App. at 469.

       A person is guilty of first degree trafficking in stolen property when he (1) knowingly

initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale

to others, or (2) knowingly traffics in stolen property. RCW 9A.82.050; State v. Owens, 180

Wn.2d 90, 97-98, 323 P.3d 1030 (2014). Linville contends that accomplice liability cannot

apply to the first alternative of trafficking in stolen property via accomplice liability because it is

“supervisory” in nature. Br. of Appellant 24

       Linville relies on Hayes to support his claim. 164 Wn. App. at 459. However, Hayes is

distinguishable. Hayes was convicted of leading organized crime. 164 Wn. App. at 466. The

court in Hayes explained that leading organized crime

       is committed by leading three or more other persons in a pattern of criminal
       profiteering activity. While guilt for the crime is predicated on group conduct, the
       conduct criminalized by the statute is the conduct of the leader. The participation
       required by the accused is leading three or more followers by organizing,
       managing, directing, supervising, or financing them. There must be a hierarchy in
       which the defendant is at the apex and three or more other persons are below.




                                                   8
No. 47916-8-II


164 Wn. App. at 470 (emphasis added). Consequently, the Hayes court held that by instructing

the jury on accomplice liability, the State was impermissibly relieved of its burden to prove that

Hayes was a leader of organized crime. 164 Wn. App. at 469-71.

         In contrast, the trafficking stolen property statute does not require any such “hierarchy in

which the defendant is at the apex.” Hayes, 164 Wn. App. at 470. Indeed, the statute does not

require the participation of more than one person at all. Owens, 180 Wn.2d at 100 (holding that

a single person can “plan” or “initiate” under the plain meaning of RCW 9A.82.050). Nothing in

the statute’s text suggests that accomplice liability is inapplicable in cases of trafficking in stolen

property. Consequently, we hold that the trafficking stolen property statute does not prohibit

accomplice liability and, therefore, the alleged error does not constitute a manifest constitutional

error.

C.       Unanimity of Trafficking in Stolen Property Convictions

         Linville argues that his constitutional right to a unanimous jury verdict was violated when

the trial court instructed the jury that it need not reach a unanimous verdict with respect to the

means by which it found him guilty of first degree trafficking in stolen property.

         Our Supreme Court recently addressed essentially identical jury instruction language in

State v. Armstrong, 188 Wn.2d 333, 394 P.3d 373 (2017). Acknowledging that “an instruction

on jury unanimity as to the alternative method found is preferable,” the Armstrong court

expressly rejected Armstrong’s argument and held that instructing “the jury that it need not be

unanimous as to which of the two means it relied on, so long as it was unanimous as to the

conviction,” was “a correct statement of the law.” 188 Wn.2d at 344, 336. As clarified in




                                                   9
No. 47916-8-II


Armstrong, Washington courts will uphold unanimous jury verdicts based on alternative means if

substantial evidence supports each of the alternate means. 188 Wn.2d at 340.

       After a careful review of the record, we hold that when viewing the evidence in the light

most favorable to the State sufficient evidence supports each of the alternative means of first

degree trafficking in stolen property and, therefore, Linville does not raise a manifest

constitutional error.

                            II. FIREARM SENTENCING ENHANCEMENTS

       Linville argues that the State produced insufficient evidence to support the imposition of

firearm sentencing enhancements. We disagree.

       The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).

In a sufficiency of the evidence claim, the defendant admits the truth of the evidence, and the

court views the evidence and all reasonable inferences drawn from that evidence in the light

most favorable to the State. Cardenas-Flores, 189 Wn.2d at 265-66. These standards apply to

firearm sentencing enhancements. State v. Sassen Van Elsloo, 191 Wn.2d 798, 826, 425 P.3d

807 (2018).

       RCW 9.94A.533(3) increases the sentence for an underlying felony “if the offender or an

accomplice was armed with a firearm” during the course of that crime. A defendant is armed for

the purposes of the statute if (1) the weapon was readily accessible and easily available, and (2)

there is a nexus between the defendant, the crime, and the weapon. State v. Easterlin, 159

Wn.2d 203, 206, 149 P.3d 366 (2006). “[T]he mere presence of a deadly weapon at the scene of



                                                 10
No. 47916-8-II


the crime, mere close proximity of the weapon to the defendant, or constructive possession alone

is insufficient to show that the defendant is armed.” State v. Brown, 162 Wn.2d 422, 431, 173

P.3d 245 (2007). However, when the defendant had actual possession of the weapon during the

commission of the crime, proof of a nexus between the weapon and the crime usually is

unnecessary. State v. Hernandez, 172 Wn. App. 537, 544, 290 P.3d 1052 (2012).

       Linville relies on Brown to argue that the State was required to show a nexus between the

weapon and the crime and that the State must specifically show that Linville had an intent or

willingness to use the firearms to further the burglaries. But Brown is distinguishable from the

facts of this case. There, Brown and an accomplice burglarized a home but did not remove

anything from the house. Brown, 162 Wn.2d at 426. When the victim returned to his home, he

noticed that his unloaded rifle had been moved from the closet to his bed. Brown, 162 Wn.2d at

426. Our Supreme Court reversed Brown’s first degree burglary charge and firearm sentencing

enhancement holding that insufficient evidence showed a nexus between Brown’s constructive

possession of the rifle and the crime. Brown, 162 Wn.2d at 435.

       Here, taking the evidence in the light most favorable to the State, the record reflects that

Linville or an accomplice had actual possession of a firearm at the time of the burglaries.

Victims of each of the burglaries associated with a firearm sentencing enhancement testified that

firearms were stolen from their homes, and Linville’s accomplices testified to Linville’s actual

possession of a stolen firearm in two of the burglaries. Accordingly, we hold that there is

sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Linville was

armed with a firearm for the purpose of the firearm sentencing enhancement.




                                                 11
No. 47916-8-II


                                      III. DOUBLE JEOPARDY

       Linville argues that his 39 convictions for trafficking in stolen property violate his right

against double jeopardy. We disagree.

       The Fifth Amendment to the United States Constitution and article I, section 9 of the

Washington Constitution prohibit double jeopardy. The prohibition on double jeopardy includes

that a person cannot receive multiple punishments for the same offense. State v. Villanueva-

Gonzalez, 180 Wn.2d 975, 980, 329 P.3d 78 (2014). Determining whether Linville’s convictions

constitute multiple punishments for the same offense requires determination of legislative intent

and presents a question of statutory interpretation. Villanueva-Gonzalez, 180 Wn.2d at 980. We

review alleged violations of double jeopardy de novo. Villanueva-Gonzalez, 180 Wn.2d at 979-

80.

       When a defendant has multiple convictions under the same statutory provision, as here,

we apply the “unit of prosecution” analysis that asks what act or course of conduct the legislature

has defined as the punishable act. Villanueva-Gonzalez, 180 Wn.2d at 980-81. “In applying the

unit of prosecution analysis, courts look to discern ‘the evil the legislature has criminalized.’”

State v. Novick, 196 Wn. App. 513, 522, 384 P.3d 252 (2016) (quoting State v. Hall, 168 Wn.2d

726, 731, 230 P.3d 1048 (2010)). Our focus is on the actual act necessary to commit the crime.

Novick, 196 Wn. App. at 522. We review unit of prosecution issues on appeal de novo. State v.

O’Brien, 164 Wn. App. 924, 928-29, 267 P.3d 422 (2011).

       The first step in a unit of prosecution analysis is to analyze the statute in question. State v.

Jensen, 164 Wn.2d 943, 949, 195 P.3d 512 (2008). When we interpret a statute, our fundamental

objective is to determine and give effect to the legislature’s intent. State v. Larson, 184 Wn.2d



                                                 12
No. 47916-8-II


843, 848, 365 P.3d 740 (2015). We look first to the statute’s plain language to determine this

intent. Larson, 184 Wn.2d at 848. We discern the plain meaning of a statutory provision from the

ordinary meaning of the language at issue, as well as from the context of the statute in which that

provision is found, related provisions, and the statutory scheme as a whole. State v. Polk, 187 Wn.

App. 380, 389, 348 P.3d 1255 (2015). In satisfying the intent of the statute, a reading that produces

absurd results must be avoided because it will not be presumed that the legislature intended absurd

results. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003).

        A person is guilty of first degree trafficking in stolen property if he knowingly initiates,

organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others,

or who knowingly traffics in stolen property. RCW 9A.82.050. In this context, “traffic” means

“to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person, or

to buy, receive, possess, or obtain control of stolen property, with intent to sell, transfer, distribute,

dispense, or otherwise dispose of the property to another person.” RCW 9A.82.010(19).

        Linville contends that the proper unit of prosecution for trafficking in stolen property is the

course of conduct and, therefore, he could only be convicted of one count of trafficking in stolen

property. We disagree.

        The plain language of RCW 9A.82.050 makes it clear that the operative criminal act

prohibited by RCW 9A.82.050 is either (1) the knowing facilitating or participating in the theft of

property so that it can be sold, or (2) transferring possession of property known to be stolen,

depending on which alternative means by which the crime is committed. State v. Lindsey, 177

Wn. App. 233, 241-42, 311 P.3d 61 (2013); RCW 9A.82.050, .010(19). Stated another way, the

“evil the legislature has criminalized” is either the knowing facilitation or participation in the theft



                                                   13
No. 47916-8-II


in order to sell stolen property, or the transfer of possession of property known to be stolen. See

Hall, 168 Wn.2d at 731.

           Furthermore, Linville’s interpretation leads to an absurd result. Under Linville’s unit of

prosecution analysis, a defendant could only ever be charged with one count of trafficking. Such

a result would be absurd in a situation where, as here, the defendant’s conduct included multiple

thefts, multiple victims, and multiple sales of stolen goods over a long period of time.

           The plain language of the statute supports the conclusion that the unit of prosecution for

trafficking in stolen property is each separate act of knowing facilitation or participation in a

theft for the purpose of selling the stolen property or each transfer of property known to be

stolen.5

           Having determined the unit of prosecution, we next perform a factual analysis to

determine if, under the facts of the specific case, more than one unit of prosecution is present.



5
  Linville also argues that if the unit of prosecution is taking the property, then theft and trafficking
in stolen property are the same offense and double jeopardy requires the dismissal of each of the
theft charges. However, Linville’s contention is without merit because the unit of prosecution
includes the requisite intent element of knowing participation in the theft to facilitate the sale of
stolen property thereafter. Linville cites State v. Walker for support, but in Walker, we
distinguished between theft and trafficking in stolen property for double jeopardy purposes
precisely along these lines. 143 Wn. App. 880, 886, 181 P.3d 31 (2008). The Walker court
explained:

           Most importantly, the intent elements differed: (1) for theft, the State had to prove
           Walker intended to deprive the owner of its property; while (2) for trafficking, the
           State had to prove Walker intended to sell or dispose of another's property to a third
           party. A person could steal (i.e., intend to deprive an owner) of its property without
           intending to sell or dispose of that property to a third party and could sell property
           to another knowing that it was stolen without having been the thief.

Walker, 143 Wn. App. at 887.



                                                    14
No. 47916-8-II


Hall, 168 Wn.2d at 730. Factors that can be considered in addressing whether each act is a

separate or distinct violation include the method used to commit the crime, the amount of time

between the acts, and whether the initial conduct was interrupted, failed, or abandoned. State v.

Boswell, 185 Wn. App. 321, 332, 340 P.3d 971 (2014).

       Linville argues that his actions constituted a single course of conduct of engaging in the

marketplace of stolen property, and as such that he should have been charged with only one

count of trafficking. We disagree.

       Washington courts faced similar issues in State v. Reeder, 184 Wn.2d 805, 365 P.3d 1243

(2015). There, Reeder appealed his convictions for 14 counts of first degree theft, arguing that

because his actions were all done with one continuing impulse, he should have only been

charged with one count. Reeder, 184 Wn.2d at 828-29. Our Supreme Court rejected his

argument, holding that because each count was based on a separate and distinct transaction that

occurred at a separate time, it was within the prosecuting attorney’s discretion to charge Reeder

with multiple counts. Reeder, 184 Wn.2d at 829-30.

       The facts of this case are similar to Reeder, 184 Wn.2d at 805. Although Linville’s

actions were somewhat repetitious, they were by no means continuous or identical. See State v.

Tili, 139 Wn.2d 107, 124, 985 P.2d 365 (1999) (Holding that where crimes are sequential and

not simultaneous or continuous, such that the defendant is able to form a new criminal intent

before the second criminal act, the criminal intent, objectively viewed, changes from one act to

the next.). Linville burglarized many different homes over the course of several months. For

each burglary, Linville plotted a scheme to burglarize that particular home and coordinated with




                                                15
No. 47916-8-II


his accomplices. Additionally, Linville paid numerous visits to pawn shops, jewelers, and

various individuals to sell the stolen goods for drugs or money.

       Based on this analysis, we hold that Linville’s 39 convictions for trafficking in stolen

property do not violate double jeopardy principles because he was not charged multiple times for

the same offense. Rather, each count was based on evidence of 39 distinct times that Linville’s

conduct violated the statute.

                                     IV. LATE AMENDMENT

       Finally, Linville argues that the trial court erred by allowing the State to amend the

charging information after it rested its case. We agree.

       Article I, section 22 of our State Constitution mandates that all essential elements of a

charged crime be included in the charging document. State v. Quismundo, 164 Wn.2d 499, 503,

192 P.3d 342 (2008). If the State fails to meet the requirements of the essential elements rule in

the original information, it may move to amend the information. State v. Schaffer, 120 Wn.2d

616, 621, 845 P.2d 281 (1993). The court may permit the State to amend the information at any

time if substantial rights of the defendant are not prejudiced. CrR 2.1(d). However, once the

State has rested, any amendment other than an amendment to a lesser charge is a per se violation

of the defendant’s constitutional rights unless the amendment is to a lesser degree of the same

crime or a lesser included offense. State v. Vangerpen, 125 Wn.2d 782, 789-91, 888 P.2d 1177

(1995). We review a trial court’s decision to allow the State to amend a charge for abuse of

discretion. Quismundo, 164 Wn.2d at 504.

       After resting its case in chief, the State amended the charging information twice. First

the State filed a sixth amended information which amended count 130 from second degree theft



                                                16
No. 47916-8-II


to first degree theft. Later, the State filed a seventh amended information correcting the

designation of count 130 from a class C felony to a class B felony.

       In its brief, the State focuses exclusively on the last amendment and argues that the

amendment was nothing more than correcting a scrivener’s error and as such did not violate

Linville’s constitutional rights. However, the State ignores that the sixth amended information,

which occurred after the State had rested its case, charged a higher degree of theft. Amending

the information to charge a higher degree of the offense after the State has rested its case

constitutes “reversible error per se even without a defense showing of prejudice.” State v.

Markle, 118 Wn.2d 424, 437, 823 P.2d 1101 (1992); see also Quismundo, 164 Wn.2d at 504.

       At oral argument, the State also argued that the late amendment here was not per se

prejudicial because Linville was aware of the proposed amendment before the State rested its

case. The State relies on our opinion in State v. Hockaday, 144 Wn. App. 918, 184 P.3d 1273

(2008). But Hockaday is factually distinguishable. There, we held that a late amendment was

not per se reversible error where the defendant was aware of the State’s intent to amend the

information before the State rested its case and agreed to the amendment. Hockaday, 144 Wn.2d

at 926-27. The State argues that Linville similarly knew about its intention to amend the

information, but the record on appeal does not support the State’s contention. The record shows

that the State spoke to defense counsel about the amended information on the morning it moved

to amend. But the State had rested its case the previous day. And the State’s discussion with

defense counsel about the amendment is not the same as a defendant agreeing to an amendment.

Thus, the State’s reliance on Hockaday is unavailing.




                                                 17
No. 47916-8-II


       The proper remedy for this per se prejudicial error is to remand to the trial court for the

dismissal of the conviction on count 130 without prejudice. Quismundo, 164 Wn.2d at 504.

       In conclusion, we affirm in part but remand to the trial court for the dismissal of count

130 without prejudice.

       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.



                                                      ________________________________
                                                                 Worswick, J.

________________________________
 Lee, C.J.



________________________________
 Cruser, J.




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