                                                                FILED
                                                             AUGUST 21, 2018
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III



           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )         No. 34805-9-III
                                             )
                    Respondent,              )
                                             )
      v.                                     )         UNPUBLISHED OPINION
                                             )
DENNIS GERALD LOWE,                          )
                                             )
                    Appellant.               )

      PENNELL, A.C.J. — Dennis Lowe appeals his conviction for second degree taking

a motor vehicle without permission. We affirm.

                                         FACTS

      The State initially charged Mr. Lowe with one count of possession of a stolen

motor vehicle. It later amended the charge to include a second count of second degree

taking a motor vehicle without permission. During a pretrial hearing that took place prior

to amendment, the trial court raised concerns about the nature of the State’s charge. The

following colloquy ensued:

             Judge: Alright. I do have one comment, okay? You—I’m looking at
      your proposed jury instructions. You’ve alleged that Mr. Lowe was in
      possession of this motor vehicle. He was a passenger [inaudible]—. I’m
      not sure passengers are people who possess motor vehicles.
             [Prosecutor]: It’s under the accomplice—principal accomplice—
             Judge: You didn’t—your instructions don’t include anything about
      accomplices.
No. 34805-9-III
State v. Lowe


              [Prosecutor]: I would—I would change that.
              Judge: So, I—I, you know, just as an editorial comment, this is really
       a riding in a motor vehicle knowing it’s stolen. This is what it really is.
       But,—and we’ll see where we are at the closing of the State’s case—
              [Prosecutor]: Sure.
              Judge: —whether this case survives the half-time motion or not, so.

Report of Proceedings (Aug. 24, 2016) at 37. Later that day, the State filed an amended

information adding the second count. When the court asked defense counsel for their

response to the additional charge, defense counsel waived “formal arraignment, formal

reading, and enter[ed] a plea of not guilty,” and made no objection to the State’s filing.

Id. at 39.

       Trial began the following day. The jury found Mr. Lowe guilty of second degree

taking a motor vehicle without permission and not guilty of possession of a stolen motor

vehicle. Mr. Lowe appeals.

                                        ANALYSIS 1

       CrR 2.1(d) allows an information to be amended any time before a verdict or

finding if the defendant’s substantial rights are not prejudiced. So long as the State does

not wait until after the closing of its case in chief to file for amendment, a defendant



       1
         Mr. Lowe’s arguments are presented through a statement of additional grounds,
filed under RAP 10.10. The issues briefed by Mr. Lowe’s attorney have been resolved by
agreement with the State.

                                              2
No. 34805-9-III
State v. Lowe


challenging an amendment must show prejudice. State v. Schaffer, 120 Wn.2d 616, 621,

845 P.2d 281 (1993). CrR 2.1(d)’s protection against prejudicial amendment fulfills the

constitutional protection of notice guaranteed by article I, section 22 of the Washington

Constitution. Id.

       Because the State filed its amended information the day before trial, Mr. Lowe is

obliged to show prejudice. He has failed to do so. The State’s amended information was

factually and legally similar to the original charge. Id. (The greater the similarity between

the amended information and original charge, the less risk there is of prejudice.). At the

time of filing, counsel did not object or request a continuance. State v. Gosser, 33 Wn.

App. 428, 435, 656 P.2d 514 (1982) (Failure to request a continuance “is persuasive of

lack of surprise and prejudice.”). Mr. Lowe simply has not demonstrated how his trial

strategy would have changed had he been given more notice of the amended charge.

       Nor has Mr. Lowe established that the manner in which charges were amended

deprived him of his constitutional right to a fair tribunal. In re Pers. Restraint of Davis,

152 Wn.2d 647, 692, 101 P.3d 1 (2004) (A party alleging misconduct bears the burden of

establishing misconduct.). A judge does not improperly assume a dual role of accuser

and adjudicator simply by warning a prosecutor about the weakness of the State’s case.

Cf. Williams v. Pennsylvania, __ U.S. __, 136 S. Ct. 1899, 1905, 195 L. Ed. 2d 132


                                              3
No. 34805-9-111
State v. Lowe


(2016) (due process violation when the judge previously had a significant, personal

involvement as a prosecutor in the defendant's case); In re Murchison, 349 U.S. 133, 139,

75 S. Ct. 623, 99 L. Ed. 942 (1955) (due process violation when judge previously served

as one-man grand jury). That is all that happened here. The trial judge did not act as a

prosecutor and did not direct the State to seek an amended information. There was no

due process violation.

                                    CONCLUSION

      The judgment of conviction is affirmed. Mr. Lowe asks that we not award

appellate costs. In accordance with RAP 14.2, we defer the question of appellate costs to

our commissioner or clerk/administrator.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                           Pennell, A.C.J.
WE CONCUR:




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