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                                                      ADVANCE SHEET HEADNOTE
                                                                  March 19, 2018

                                      2018 CO 19

No. 15SC469, People v. Washam—Crim. P. 7(e)—Time-allegation Amendments

      In this case, the supreme court considers whether an amendment to an

information narrowing the date range after trial began was permissible under Crim. P.

7(e). To do so, as required under Rule 7(e) this court analyzes whether the amendment

was one of form or substance and whether it prejudiced the defendant’s substantial

rights. Because the amendment simply narrowed the date range in the information and

did not prejudice the defendant’s substantial rights, this court concludes the

amendment was one of form and was permissible after trial began. Hence, the trial

court did not abuse its discretion in permitting the amendment to the information.
                    The Supreme Court of the State of Colorado
                      2 East 14th Avenue • Denver, Colorado 80203


                                      2017 CO 19

                         Supreme Court Case No. 15SC469
                       Certiorari to the Colorado Court of Appeals
                         Court of Appeals Case No. 13CA758
                                       Petitioner:
                          The People of the State of Colorado,
                                           v.
                                     Respondent:
                              James Willard Washam, III.

                                 Judgment Reversed
                                        en banc
                                     March 19, 2018


Attorneys for Petitioner:
Cynthia H. Coffman, Attorney General
Kevin E. McReynolds, Assistant Attorney General
 Denver, Colorado

Attorneys for Respondent:
Springer and Steinberg P.C.
Michael P. Zwiebel
 Denver, Colorado




JUSTICE BOATRIGHT delivered the Opinion of the Court.




                                           2
¶1       Prosecutors charged James Willard Washam, III by information with twelve

counts of sexual assault on a child. In the information, a portion of the charged date

range fell outside the statute of limitations.        After trial began, the prosecution

successfully moved to amend the information, narrowing the date range so that it fell

completely within the statute of limitations. Ultimately, Washam was convicted on all

twelve counts. He appealed, arguing that under Crim. P. 7(e), the amendment to the

date range was a substantive amendment, and thus the trial court abused its discretion

in permitting the amendment after the trial began. A majority of a division of the court

of appeals agreed, vacating Washam’s convictions and ordering the charges against him

to be dismissed with prejudice.

¶2       The People petitioned this court for review. We granted certiorari1 and now

conclude that because the amendment simply narrowed the date range in the

information—and thereby did not add an essential element to the offense or raise issues

of inadequate notice—the amendment to the information was one of form, not

substance. We also conclude that because the form amendment did not prejudice

Washam’s substantial rights, the trial court did not abuse its discretion in permitting the

amendment after trial began. Hence, we reverse the judgment of the court of appeals




1   We granted certiorari to review the following issue:
         1. Whether the court of appeals erred by creating a statute of limitations
            exception to this court’s Crim. P. 7(e) jurisprudence—effectively
            designating any trial amendment of the date of an offense an
            impermissible “substantive” amendment.


                                              3
and remand to that court for consideration of the remaining issues raised but

unresolved on appeal.

                        I.    Facts and Procedural History

¶3      Washam and the victim, M.L., lived across the street from each other. In 1994,

when M.L. was twelve and Washam was twenty-five, Washam began to subject M.L. to

regular sexual contact.2     This sexual contact continued until 2000.     M.L. reported

Washam’s conduct to law enforcement in September 2006.

¶4    In November 2007, prosecutors charged Washam by information with numerous

crimes, including twelve counts of sexual assault on a child under section 18-3-405(1),

C.R.S. (2007). This statute criminalizes sexual contact with a victim who is less than

fifteen years of age when the actor is at least four years older than the victim. Because

the General Assembly amended this statute in 2006, see ch. 119, sec. 1, § 16-5-401(1.5)(a),

2006 Colo. Sess. Laws 410, 411,3 and because Washam was charged in 2007, there are

two applicable statutes of limitations that apply to the charges against Washam under

section 18-3-405(1): one for offenses committed before July 1, 1996, and another for

offenses committed on or after July 1, 1996.


2 “‘Sexual contact’ means the knowing touching of the victim’s intimate parts by the
actor, or of the actor’s intimate parts by the victim, or the knowing touching of the
clothing covering the immediate area of the victim’s or actor’s intimate parts if that
sexual contact is for the purposes of sexual arousal, gratification, or abuse.”
§ 18-3-401(4), C.R.S. (2007). We cite to the 2007 Colorado Revised Statutes because
Washam was charged in 2007, and the statutes of limitations we discuss relate to those
applicable at that time.
3 As part of that amendment, the General Assembly moved the relevant portion
discussing the statute of limitations to section 16-5-401.


                                               4
¶5     For offenses committed before July 1, 1996, the statute of limitations is ten years

from the date of the assault.4 Accordingly, because the prosecution did not charge

Washam until November 2007—more than ten years after any date prior to July 1,

1996—any offenses he committed prior to July 1, 1996, would be barred. For offenses

committed on or after July 1, 1996, there is no limit on the statute of limitations. See

§ 16-5-401(1.5)(a), C.R.S (2007). As a result of these two statutes of limitations, only

sexual conduct that occurred between July 1, 1996, and April 4, 1997 (the day before

M.L.’s fifteenth birthday), would constitute prosecutable charges under section

18-3-405(1).

¶6     Navigating these statutes of limitations and their triggering dates proved

difficult for the prosecution. The information initially alleged dates between January 1,

1994, and April 5, 1997, and thus included dates before July 1, 1996, that were time-

barred. By the time jury selection began, the prosecution had amended its allegations

regarding the dates of the offenses three times. Despite these amendments, at the time

trial began, the dates alleged were still defective; the information alleged a date range

between March 21, 1996, and April 4, 1997, for all twelve counts. Because this date

range included dates before July 1, 1996, it was partly outside the statute of limitations.




4 This statute of limitations is found in section 18-3-411(2), C.R.S. (2001). Though the
statute of limitations period was amended in 2002 to be ten years from the victim’s
eighteenth birthday, see ch. 288, sec. 2, § 18-3-411(2)(b), 2002 Colo. Sess. Laws 1127,
1128, we ruled in People v. Summers, 208 P.3d 251, 259 (Colo. 2009), that the change
was prospective only, meaning that the statute of limitations for offenses that occurred
prior to July 1, 1996, remained ten years from the date of the offense.


                                             5
¶7       After the jury was sworn,5 Washam moved to dismiss the sexual-assault-on-a-

child counts for lack of jurisdiction. He pointed out that the March 21, 1996 date at the

front end of the date range in the information fell outside the applicable statute of

limitations. Because all twelve counts alleged the same defective date range, Washam

argued that the trial court lacked jurisdiction over all twelve charges. In response,

before delivering its opening statement, the prosecution successfully moved to once

more amend the information under Rule 7(e) to allege dates that were within the statute

of limitations. Specifically, this final amendment narrowed the range of dates in the

information by narrowing the front end of the range from March 21, 1996, to July 1,

1996. This date range was no longer defective: The timeframe was not time-barred by

the applicable statute of limitations, and M.L. was fourteen years old between these

dates.

¶8       The jury ultimately found Washam guilty on all counts.6 Washam appealed.7 A

majority of the division below vacated Washam’s convictions. The majority noted that



5And thus, after jeopardy attached. See People v. Porter, 2015 CO 34, ¶ 9, 348 P.3d 922,
924.
6 In addition to the twelve counts of sexual assault on a child, Washam was also
convicted of one count of second-degree sexual assault. Because only the sexual-
assault-on-a-child charges are pertinent here, we do not discuss the second-degree
sexual assault conviction further.
7 Initially, Washam was sentenced to a twenty-six year aggregate term of incarceration.
While Washam’s appeal was pending, the court of appeals held that convictions
obtained on an information alleging time-barred charges must be vacated, based on
similar facts to those here. People v. Storm, No. 09CA2782, slip op. at 1 (Colo. App. Oct.
10, 2013). Washam consequently moved for and obtained a limited remand to re-
litigate this issue. On remand, the trial court concluded that there was a “reasonable
probability” that Washam’s convictions would be vacated on appeal in light of Storm.


                                            6
it was undisputed that March 21, 1996—the date on the front end of the range in the

information when the trial began—fell outside the applicable statute of limitations,

meaning Washam’s appeal turned on “whether an information that charges a date

range partly within and partly outside of the statute of limitations is valid.”

People v. Washam, No. 13CA758, slip op. at 12 (Colo. App. May 7, 2015).

¶9     The majority concluded that our opinion in Bustamante v. District Court, 329

P.2d 1013 (Colo. 1958), abrogated on other grounds by Cty. Court v. Ruth, 575 P.2d 1

(Colo. 1977), mandated that Washam’s convictions be vacated because trial courts lack

jurisdiction over charges where the information alleges dates outside the governing

statute of limitations. Washam, slip. op. at 12. The majority further concluded that the

prosecution’s final amendment was impermissible because an amendment to cure a

time-bar defect is substantive and therefore cannot be made under Rule 7(e) after trial

has begun. Id. at 16. As a result, the majority vacated Washam’s convictions for sexual

assault on a child and ordered the trial court to dismiss those charges with prejudice.

Id. at 33.

¶10    The partial dissent disagreed with the majority’s reading of Bustamante and its

progeny. Id. at 34–42 (Navarro, J., concurring in part and dissenting in part). Though

the dissent acknowledged that Bustamante denies jurisdiction to trial courts over

charges alleged to have occurred outside the statute of limitations period, it concluded

that Bustamante did not address the issue of amending time-barred charges and thus



As a result, the trial court modified a portion of Washam’s sentence, effectively
allowing him to begin probation immediately.


                                           7
was not controlling. Id. at 37. Rather, it read the cases following Bustamante and the

adoption of Rule 7(e) to have shaped a policy favoring non-prejudicial amendments

over dismissal of charges for mere technical defects. See id. at 37–42. Applying this

reading of the law, the dissent concluded that the amendment here was one of form

rather than substance and that it did not prejudice Washam, meaning it was permissible

under Rule 7(e) even if made during trial. Id. at 47–48. Given these conclusions, the

dissent would have affirmed the trial court’s order permitting the final amendment. Id.

at 52–53.

¶11    The People appealed, and we granted certiorari.

                            II.   Standard of Review

¶12    In arguing that the original information was substantively defective, Washam

raises a jurisdictional challenge. See People v. Williams, 984 P.2d 56, 63 (Colo. 1999)

(“[A] defect of substance fails to invoke the jurisdiction of the court.”). When the facts

of a jurisdictional challenge are undisputed and the question presented is solely one of

law, we review the challenge de novo. Springer v. City & Cty. of Denver, 13 P.3d 794,

798 (Colo. 2000).

¶13    Conversely, we review the trial court’s decision to allow the prosecution to

amend an information for an abuse of discretion. People v. Moody, 674 P.2d 366, 369

(Colo. 1984). A trial court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair. Nicholls v. People, 2017 CO 71, ¶ 56, 396 P.3d 675, 687.




                                            8
                           III.   Law and Application

¶14    An information is a charging document signed by the prosecutor that names the

defendant and the offense charged. Williams, 984 P.2d at 59–60. An information may

be defective in either form or substance. It is defective in substance if it fails to charge

an essential element of the offense. See Esquivel-Castillo v. People, 2016 CO 7, ¶ 11, 364

P.3d 885, 888; Williams, 984 P.2d at 63. Such a defect fails to invoke the jurisdiction of

the court. Williams, 984 P.2d at 63. But when the information “adequately advises a

defendant of the charges against him,” any defect in the information is one of form

rather than substance. See Cervantes v. People, 715 P.2d 783, 786 (Colo. 1986).

¶15    Both types of defect may be cured by timely amendment. See id. Rule 7(e)

governs the nature and timing of such amendments.                It distinguishes between

amendments of form and amendments of substance and establishes when each type of

amendment may occur:

       The court may permit an information to be amended as to form or
       substance at any time prior to trial; the court may permit it to be amended
       as to form at any time before the verdict or finding if no additional or
       different offense is charged and if substantial rights of the defendant are
       not prejudiced.

Crim. P. 7(e).

¶16    In this instance, because the amendment in question occurred after trial began

(but before the verdict), it would only be permissible if it (1) was one of form, (2) did not

charge an additional or different offense, and (3) did not prejudice Washam’s

substantial rights. See id. Thus, we first determine whether the amendment was one of

form or substance. Because the amendment simply narrowed the date range in the


                                             9
information—and thereby did not add an essential element or raise issues of inadequate

notice—we conclude that it was one of form. We then review the trial court’s decision

to permit the form amendment for an abuse of discretion. Because the amendment did

not charge an additional or different offense and did not prejudice Washam’s

substantial rights, we conclude that the amendment was permissible, meaning the trial

court did not abuse its discretion in permitting the amendment after trial began.

                        A. The Amendment Was One of Form

¶17    Washam argues that an information must allege, as an essential element, that the

crime took place at a time within the applicable statute of limitations. Based on this

principle, he argues that the amendment changing the date range after trial began was

an impermissible substantive amendment. Accordingly, we first address whether the

amendment here added an essential element of the offense that the information initially

lacked; then, we discuss whether the information prior to the amendment still provided

Washam adequate notice.

      1. The Amendment Did Not Add an Essential Element of the Offense

¶18   Washam points to this court’s precedent—namely, Bustamante and Moody—to

support his argument that a time allegation is an essential element and that the

amendment changing the time allegation here was therefore substantive.

¶19   In Bustamante, the defendant moved to quash his indictment prior to trial,

asserting that the statute of limitations had expired. 329 P.2d at 1014. After the trial

court denied his motion, we reviewed the trial court’s decision under C.A.R. 21. The

People argued that Bustamante was not entitled to pre-trial dismissal and instead had


                                           10
to raise his statute-of-limitations argument as a defense at trial. Id. We disagreed,

holding that “the statute of limitations in a criminal case is not merely a defense that

may be asserted at the trial . . . [it] denies jurisdiction to prosecute an offense not

committed within the period limited.” Id. at 1018.

¶20   But this holding does not address the permissibility of amending a defective

information when doing so would cure a defect—the question presented here. See

People v. Bowen, 658 P.2d 269, 270 (Colo. 1983) (“Bustamante did not deal with the

question of whether a court has jurisdiction to entertain a motion to amend an

information . . . .”); see also Washam, slip op. at 37–42 (Navarro, J., concurring in part

and dissenting in part). Indeed, there are several stark distinctions between Bustamante

and this case.   First, at the time Bustamante was decided, the Rules of Criminal

Procedure, including Rule 7(e), did not exist. Second, even if Rule 7(e) had existed, it

would have made little difference. Bustamante’s holding addressed a defect in an

indictment; therefore, Rule 7(e), governing “amendment of information,” would not

apply. And unlike Washam’s conduct, which occurred partly outside and partly within

the statute of limitations, the entirety of Bustamante’s alleged conduct occurred outside

the statute of limitations. In other words, while the defect in Washam’s case was

curable, the defect in Bustamante was not. For these reasons, Bustamante’s holding is

irrelevant to determining whether a court may permit an amendment to cure an

information with a date range partly outside the statute of limitations.




                                            11
¶21    Washam also relies on our opinion in Moody to argue that the time allegation is

an essential element of the offense. Moody, unlike Bustamante, addresses the question

of amending an information. Nevertheless, it is also distinguishable.

¶22    In Moody, the defendant was charged with theft of rental property under a

statute that required him to possess the property for more than “seventy-two hours

after the time at which he agreed to return it.” 674 P.2d at 368. However, the People

alleged a date range in the information when the defendant was still lawfully renting

the property, before the seventy-two-hour time period had even begun to run. See id.

We held that charging the defendant with possession beyond that seventy-two-hour

time period was an essential element of the crime that the prosecution had to prove

beyond a reasonable doubt. See id. Given that, because the original information did

not allege a date range beyond that seventy-two-hour time period, we held that the trial

court did not abuse its discretion in denying the prosecution’s motion to add those

dates after trial began. See id. at 368–69. Specifically, because the amendment would

have added an essential element, we held the proposed amendment was one of

substance and was thus impermissible after the start of trial. See id. at 368.

¶23    In this case, unlike in Moody, the original information already included the dates

alleging the criminal conduct for which Washam was ultimately convicted.

Consequently, the final amendment did not add new offense dates; in contrast, the

amendment narrowed the dates at the front end of the range. Thus, the amendment did

not add a previously absent essential element of the offense. As a result, Moody is also

distinguishable from Washam’s case.


                                            12
¶24    Because both Bustamante and Moody are distinguishable, we are not persuaded

by Washam’s argument. Accordingly, we conclude that the amendment did not add an

essential element of the offense.

               2. The Information Provided Washam Adequate Notice

¶25    Next, in analyzing whether the amendment here was one of substance or form,

we determine whether the original information provided notice to Washam such that

he was adequately advised of the charges against him. See Cervantes, 715 P.2d at 786.

¶26    The prosecution originally charged Washam for dates from January 1, 1994, to

April 5, 1997. The final amendment changed the information to dates from July 1, 1996,

to April 4, 1997. Therefore, the dates for which Washam was ultimately convicted were

always included in the information. Because of this, Washam was adequately advised

of the charges against him. Thus, the amendment did not force Washam to defend

against dates that were not previously charged. Instead, Washam had adequate notice,

making the amendment here one of form.

¶27    Now that we have concluded the amendment was one of form, we next review

the trial court’s decision to permit the form amendment during trial.

                      B. The Form Amendment Was Permissible

¶28    According to Rule 7(e), an amendment of form that occurs after the start of trial

is permissible as long as the amendment does not charge additional or different offenses

or prejudice the defendant’s substantial rights. Under the circumstances presented

here, we conclude that the amendment did neither, meaning the trial court did not

abuse its discretion in permitting the amendment after trial began.


                                           13
¶29   First, the amendment did not add an additional or different offense. The

amendment did not change the statute under which Washam was charged, which

remained section 18-3-405(1).    See Cervantes, 715 P.2d at 788 (“[T]he information

without the amendment was adequate to direct Cervantes’ attention to [the statute

under which he was charged].”). It did not change or increase the number of sexual-

assault-on-a-child counts that Washam faced. To the contrary, as we have discussed,

the amendment narrowed the date range and consequently lowered the number of

specific dates for which Washam needed to prepare his defense.

¶30   Second, the amendment did not prejudice Washam’s substantial rights. Notably,

Washam provides no specific argument of prejudice; he generally asserts only that the

various amendments made it impossible to know what dates to address in his defense.

But as we explained, Washam was always notified of the time frame in the case against

him because the dates for which he was convicted were alleged from the beginning—

over five years prior to his conviction. Because of this, to the extent Washam’s defense

changed at all, it would have been only to his benefit.       As a result, no prejudice

occurred. See Bowen, 658 P.2d at 270 (“In this case, no prejudice will inure to the

defendant by reason of the amendment. If anything, he will be benefited by it, because

the period of time during which he is alleged to have committed the offense will be

shortened.”).

¶31   Finally, the amendment occurred before either side had presented any evidence

or even delivered its opening statements. Cf. Cervantes, 715 P.2d at 788 (citing the fact

that neither side had presented evidence as one factor supporting the decision to allow


                                           14
an amendment to the information). It is therefore apparent on these facts that the

amendment did not add an offense or prejudice Washam in any way, meaning it was

permissible under Rule 7(e).

¶32   Construing Rule 7(e) liberally, see Bowen, 658 P.2d at 270, we conclude that

because the form amendment did not prejudice Washam’s substantial rights, the trial

court did not abuse its discretion in permitting the amendment after trial began.

                                   IV. Conclusion

¶33   We conclude that the amendment to the information was one of form and that

the trial court did not abuse its discretion in permitting the amendment after trial

began. Therefore, we reverse the judgment of the court of appeals and remand to that

court for consideration of the remaining issues raised but unresolved on appeal.




                                           15
