                                                                                                  FILED
                                                                                          r0URDIMS ON TT AL.S
                                                                                               1' tljf=€
                                                                                                       APPC`
     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                              N      AN 8 32
                                         DIVISION II                                  S

STATE OF WASHINGTON,                                              No. 41885 1 II
                                                                            - -       B


                               Respondent,

          V.




DENNIS McDANIEL,




          BJORGEN, J.    Dennis McDaniel appeals his jury conviction for one count of first degree

child molestation. McDaniel argues that the trial court erroneously: (1)permitted the forensic

child interviewer to give opinion testimony, ( )excluded lifestyle evidence of the victim's
                                             2

mother, and (3)granted eight continuances over McDaniel's objections. He argues also that the

prosecutor's closing argument reference to the victim's bedwetting constituted misconduct. In

his statement of additional grounds for review (SAG),'
                                                    McDaniel further asserts that (1)the
information failed to include a proper date; 2) State improperly amended the information
                                             ( the

after resting its case; ( )
                        3 his conviction based on a second count violated double jeopardy
                   1 (




protections; and 4) counsel was ineffective because (a) did not,challenge the specificity of
                  his                                 he    '

the charging document, b) did not object to the amended charges, ( ) did not object to
                       ( he                                      c he

continuances despite his client's wishes, d) did not ask for a mistrial or dismissal after the
                                          ( he

victim testified, and (e)he did not raise the issue of a defective second arraignment on the

amended charges.

          We affirm the conviction for the reasons below.




1
    RAP   a).
          10. 0(
            1
No. 41885 1 II
          - -


                                            FACTS


                                   I. DISCLOSURES BY THE VICTIM


         C. .lived half the time with her mother and half with her paternal grandmother. Her
          D

mother would frequently bring C. .to Teresa Russell's house, where C. .would often stay the
                               D                                    D

night. McDaniel lived with Russell.

         In early 2008, her mother picked up C. .,who was then three years old, from an
                                              D
overnight stay at Russell's home. C. .told her mother that McDaniel had put hand sanitizer on
                                   D

his hands and "touched her      private." Report   of    Proceedings (RP) at   143.   Shortly thereafter,

s mother told McDaniel about this disclosure and informed him that she was going to call
C. .'
 D

the police. Her mother did not contact the police right away, however, because she felt this was

a serious allegation. McDaniel was shocked at the claim and denied the alleged contact. C. .
                                                                                         D

did not see McDaniel again.

         In June 2009, C. . repeated the disclosure to her mother, again that McDaniel had put
                        D

hand sanitizer on his hands and touched "
                                        her private."RP at 145. Her mother called the police.

At about the same time, C. . made the same disclosure to her grandmother, her half sister S. .,
                         D                                                                 D

and S. .' -
    s Big Sister mentor, Elizabeth Wendell: The grandmother - nd Wendell immediately -
     D                                                      a
contacted Child Protective Services (
                                    CPS).

          In July 2009, Rebecca Wiester, an attending physician at Harborview Sexual Assault

Center, interviewed C. . C. .told Dr.Wiester that McDaniel had " ot on"her " rivate." at
                     D    D                                    g           p        RP

634. That summer, C. . also told a therapist, Cassandra Ellsworth at Kent Youth and Family
                   D


2
    We use initials to protect the privacy interests of child witnesses in sex crime cases.
3
 The timeframe is approximate. The parties generally refer to this time as being in February
2008. The charging period in the information is from November 2007 through February 2008.

                                                    F)
No. 41885 1 II
          - -



Services, that McDaniel had touched her " rivates"three times and pointed to her vagina. RP at
                                        p

526, 533. C. . was also interviewed by Cornelia Thomas, a forensic child interviewer at the
           D

Children's Advocacy Center in Kent.

                                         II. PROCEDURE


       On December 30, 2009, the State arraigned McDaniel on a charge of one count of first

degree child rape. On June 15, 2010, the State amended the information, charging McDaniel
also with first degree child molestation.
       Trial was first set for February 24, 2010. On January 15,McDaniel requested a 106 day
                                                                                         -

continuance until June 10, because he needed additional time to prepare.       On June 10, both

parties requested a 39 day continuance until July 19, because the State received new discovery
                       -

and needed to conduct interviews. On July 19, the State requested a 52 day continuance until
                                                                       -

September 9, because    two of its material witnesses   were   unavailable before that time.   On


September 3, both parties requested a 54 day continuance until November 2,because McDaniel
                                         -

needed to conduct interviews.    On November .2, both parties requested a 30 day continuance
                                                                             -

until December 2,because the trial court had another case, McDaniel's counsel had vacation, and

the State needed to prepare     transcripts. - On December - 2,-
                                                               McDaniel requested a 35 day -
                                                                                       -

continuance until January 6,2011, because McDaniel's counsel was in trial for another case. On

January 6,the trial court continued the matter until January 13, because it had a conflicting case.

Of these seven continuances, McDaniel's counsel requested or jointly requested all but two and

the court granted all of them. McDaniel himself refused to sign off on all continuances, except

that granted on January 15,2010.


4 RCW 9A. 4.
      073.
        4

5 RCW 9A. 4.
      083.
        4


                                                3
No. 41885 1 II
          - -



         The trial started   on   January 13, 2011. McDaniel, in his personal capacity, moved to

dismiss for violation of the rule     governing   the time for trial.   The trial court found that good

cause supported each continuance and denied the motion.

         On January 25, it came to light that the State had never re-
                                                                    arraigned McDaniel on the

child molestation charge that had been added to the information on June 15, 2010. The court

arraigned McDaniel on the molestation charge on January 25, and McDaniel pleaded not guilty.

Based on the wishes of his client, McDaniel's counsel objected to the re-
                                                                        arraignment as

untimely. Counsel also told the court that he had received a copy of the amended information

the previous June, that he had made his client aware of the amended charges that month, and that

he was well aware the State was proceeding on both counts.

         On January 31, in conjunction with resting its case, the State filed a second amended

information, striking the phrase "not in a state -registered domestic partnership with the

defendant,"because that element had been added to the statute after the time period for

McDaniel's charges. Clerk's Papers (CP)at 109 10. McDaniel agreed to the second amended
                                              -

information, and the court re-
                             arraigned him.

         The jury found McDaniel not guilty of first degree child rape and guilty of first degree

child molestation. The court sentenced McDaniel to 160 months to life in prison.

                                              ANALYSIS


                                         I. OPINION TESTIMONY


         McDaniel first argues that Thomas, the forensic child interviewer, gave impermissible

opinion testimony about C. .'
                        s veracity by discussing the "truth/ ie"
                         D                                 l    exercise in the interview.
Br. of   Appellant   at 11 12.
                           -      We disagree because Thomas merely testified about her interview

protocols and her testimony did not offer an opinion of C. .'
                                                        s veracity.
                                                         D


                                                     2
No.41885 1 II
         - -


           We will not reverse a trial court's decision to admit or exclude evidence unless the


appellant can establish that the trial court abused its discretion. State v. Demery, 144 Wn. d 753,
                                                                                           2

758, 30 P. d 1278 (2001).A trial court abuses its discretion only if no reasonable person would
         3

adopt   the view   espoused by   the trial court.    Demery, 144 Wn. d
                                                                   2       at 758.   Where reasonable


persons could take differing views regarding the propriety of the trial court's actions, the trial
court has not abused its discretion. Demery, 144 Wn. d at 758.
                                                   2

           Generally, no witness may offer opinion testimony regarding the defendant's guilt or

veracity. State v. King, 167 Wn. d 324, 331, 219 P. d 642 (2009). Such testimony is deemed
                               2                  3

unfairly prejudicial to the defendant, because it invades the exclusive province of the jury. King,

167 Wn. d at 331.
      2                 To determine whether statements are impermissible opinion testimony, a

court will consider "`( the type of witness involved, 2) specific nature of the testimony, 3)
                    1)                                ( the                                (

the nature of the charges, 4) type of defense, and (5) other evidence before the trier of
                           ( the                      the

fact. "'   King, 167 Wn. d at 332 33 (quoting State v. Kirkman, 159 Wn. d 918, 928, 155 P. d
                       2          -                                   2                  3

125 (2007)). proceed with this inquiry.
          We

           McDaniel argues that Thomas's testimony about the child forensic interview process

    the -effect of -
had -              impliedly      endorsing    the   veracity of   C. .
                                                                    Ds                  Reply Br. of
                                                                          allegations." -

Appellant at 7. McDaniel states that Thomas "essentially testified that her truth/lie discussion

aids her to ferret out when children are being truthful and when they are not." of Appellant
                                                                               Br.

at 15 16.
      -        Thomas, however,   gave   no   such   testimony. Instead, she stated that "[ t'
                                                                                          s
                                                                                          i] really

important that the child understands the difference between truth and lie and what's right or

wrong." Report of Proceedings (RP) at 570. She explained that the exercise helped her to

identify children who thought it was better to lie than to tell the truth when an adult had

instructed them to lie.




                                                      5
No.41885 1 II
         - -



        Thomas's testimony gave general information about child forensic interview protocols

and guidelines, based on her extensive experience. Thomas did not reiterate C. .'
                                                                            s testimony,
                                                                             D

she did not explain how that testimony was consistent with C. .'
                                                           s having suffered child
                                                            D

molestation, and she refrained from stating or implying that C. . had been a victim of child
                                                              D

molestation. The State never asked about, nor did Thomas opine on, C. .'
                                                                   s veracity. Instead,
                                                                    D

Thomas's testimony consisted of objective observations, such as deeming C. .to be a "strong
                                                                         D

willed little girl"who was not afraid to ask questions or to let Thomas know when she was done

talking, or noting that C. . tracked questions, for the most part, very well for her age."RP at
                         D "

575. Thomas's testimony gave context to C. .'
                                        s interview and was likely helpful to the jury in
                                         D

evaluating for themselves the weight to give to C. .forensic interview disclosures.
                                                 D

        McDaniel's reliance on State v. Black, 109 Wn. d 336, 745 P. d 12 (1987),
                                                     2             2            State v.

Johnson, 152 Wn. App. 924, 930 31,219 P. d 958 (2009), State v.Alexander, 64 Wn. App.
                               -       3             and

147, 154, 822 P. d 1250 (1992)is not persuasive. In each of these cases, unlike here, the witness
               2

gave   an   opinion   on   the   credibility   of either the victim   or   the defendant.   In Black, the expert

testified, There is
           "               a   specific profile   for rape victims and [ the    victim] fits i[ Black, 109
                                                                                              t]."

Wn. d at 339. In Johnson, the trial court admitted nonexpert testimony from the defendant's
  2

wife, conveying her belief that the victim told the truth. Johnson, 152 Wn. App. at 929 30. In
                                                                                        -

Alexander, a counselor testified that he believed the victim was not lying. Alexander, 64 Wn.

App.at 154.

        Here, Thomas's testimony commented on neither McDaniel's guilt nor on C. .'
                                                                              sD

veracity. Instead, she described the child forensic interview protocols and guidelines she follows

and drew some conclusions about C. .not touching on veracity. The trial court did not abuse its
                                 D

discretion in admitting Thomas's testimony.



                                                           2
No. 41885 1 II
          - -



                                       II. EXCLUDED EVIDENCE


         McDaniel next argues that the trial court erroneously excluded evidence about the

mother's lifestyle and that it did so using the wrong legal standard. We agree with the State that

the trial court properly excluded this highly prejudicial evidence of little, if any, relevance.

         At trial, McDaniel sought to admit evidence that in the time leading up to C. .'
                                                                                    sD

disclosure, her mother used heroin and other drugs and worked at a strip club. McDaniel argued

that because C. .'
             s mother exposed her daughter to that lifestyle, she may have also exposed her
              D

to   potential perpetrators, pornography,      or   inappropriate   television programs.      McDaniel also


sought to admit evidence that CPS investigated C. .'
                                               s mother during the charging period.
                                                D

McDaniel argued that the mother's lifestyle was relevant to why C. . would tell the story she
                                                                 D
did.


         The trial court held that evidence of C. .' s strip club employment and heroin
                                               s mother'
                                                D

addiction, was relevant only if there was evidence that these activities affected her memory or

exposed C. .to sex offenders, pornography, or inappropriate television programs. Without that,
         D

evidence, the   court deemed this     an   irrelevant attack   on   the mother. The trial court "likened"


evidence of her lifestyle to -inadmissible victim sexual history evidence under the rape shield

statute, but did not rely on that statute as a basis for its ruling. RCW 9A. 4. The court
                                                                         020(
                                                                            2
                                                                            4 ).

also excluded evidence of CPS's investigation of the mother unless there was an offer of proof

showing its relevance.

           Questions of the admissibility of testimonial evidence, relevancy, and limitations on

cross -examination are within the trial court's discretion, and we review them only for manifest

abuse of discretion. State v. Aguirre, 168 Wn. d 350, 361, 229 P. d 669 (2010).To,be relevant,
                                             2                  3

evidence must have     a   tendency   to prove      or   disprove     fact
                                                                    a ,      (probative   value),which   is of
No. 41885 1 II
          - -



consequence in the context of the other facts and the applicable substantive law (materiality).

State v. Rice, 48 Wn. App. 7, 12, 737 P. d 726 (1987); 401, 402. The evidence's relevancy
                                       2             ER

will depend upon the circumstances and the relationship of the facts to the ultimate issue. Rice,

48 Wn. App. at 12. In addition, otherwise relevant evidence "may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury." 403.
                    ER

       Evidence of drug use is admissible for impeachment only where a reasonable inference

exists that the individual was under the drug's influence either during the event or when

testifying. State v. Tigano, 63 Wn. App. 336, 344, 818 P. d 1369 (1991),
                                                        2              review denied, 118

Wn. d 1021 (1992).Evidence of drug use on other occasions, or of drug addiction, is generally
  2

inadmissible on the ground that it is impermissibly prejudicial. Tigano, 63 Wn. App. at 344 45
                                                                                            -

citing State v. Renneberg, 83 Wn. d 735, 737, 522 P. d 835 (1974)).
                                2                  2             McDaniel sought to admit

evidence of C. .' s drug addiction "
            s mother'
             D                     leading up to the disclosure or to this alleged act,"

arguing   that it   was   relevant because   of the   lifestyle   she   was   leading.   RP at 254. McDaniel


further sought to admit evidence of her "current involvement in treatment,"
                                                                          arguing that it was

relevant because it corroborated the lifestyle that she was leading. -RP at 257. This evidence

does not go to impeachment and is prejudicial. Under Tigano and ER 401, 402 and 403, the

court did not abuse its discretion in excluding it.

          McDaniel argues that evidence of the mother's employment as a stripper is relevant

because it meant that she kept unusual hours. Various occupations, though, involve working late

or unusual hours; nothing about this circumstance is relevant to the alleged crime. McDaniel

further argues that evidence that CPS commenced an investigation of C. .'
                                                                    s mother is relevant
                                                                     D

because it gave her       an   incentive to be dishonest about McDaniel. McDaniel does not        explain this
No.41885 1 II
         - -



argument in his brief.. trial, he suggested that C. .'
                      At                         s mother would be concerned that CPS
                                                  D

would discover that McDaniel was a registered sex offender. This argument does not suggest a

plausible    incentive for   why   she would   dishonestly report   s disclosure.
                                                                    C. .'
                                                                     D              On the contrary,

fabricating a report about abuse of her daughter would only intensify CPS's scrutiny of her. We

conclude that the trial court did not abuse its discretion when it excluded the mother's lifestyle.

                                      III. PROSECUTOR'S CONDUCT


       McDaniel contends that the prosecutor's closing argument improperly attempted to

persuade the jury that C. .'
                       s bedwetting was caused by McDaniel's alleged sexual touching.
                        D

This was especially unfair, McDaniel argues, because he was denied the opportunity to present

an alternative explanation for C. .'
                               s regression to bedwetting, specifically that her mother's drug
                                D

use and work as a stripper caused the bedwetting. We disagree.

       In closing argument, the prosecutor stated:

              Fully toilet trained and begins wetting the bed. C. . Ellsworth was here
                                                                    J
       and said, yes, it can be relevant in treating someone's mental health, can be part of
       anxiety, it' simply something noteworthy, less so obviously to the medical
                  s
       professionals.

RP at 797. McDaniel did not object to this statement.

       Ellsworth, to whom the prosecutor's statement referred, had been asked on redirect if

regressing to bedwetting can be an indicator of abuse. She replied, It can. It is not always. It
                                                                    "

depends on the circumstances."RP at 541. The State then responded, Sure. Right. I mean I'
                                                                   "                    m

assuming that there are children who regress to bedwetting where nothing has happened,

correct ?"   RP at 541. Ellsworth replied in the affirmative. The State asked if the combination of

behaviors (frozen affect, nervousness, loss of eye contact and bedwetting) raise more concerns

about a trauma triggering the behaviors. Ellsworth replied, Yes,combined with her disclosure."
                                                            "

RP at 542. McDaniel did not object to this testimony.


                                                      9
     No. 41885 1 II
               - -



                 McDaniel bears the burden of showing that ( the State committed misconduct and (2)
                                                           1)

     the misconduct had prejudicial effect. State v. Anderson, 153 Wn. App. 417, 427, 220 P. d 1273
                                                                                           3
          review denied,
     2009),                      170 Wn. d 1002 (2010). If McDaniel establishes that the State made
                                       2


     improper statements, then we review whether the improper statement prejudiced McDaniel.
     State   v   Emery, 174 Wn. d 653, 741, 760, 278 P. d
                              2                       3          653 ( 2012). Because McDaniel did not


     object at trial, he must show that the State's misconduct " as so flagrant and ill intentioned that
                                                               w

     an instruction could not have cured the resulting prejudice."Emery, 174 Wn. d at 760 61. A
                                                                               2          -

     prosecutor enjoys wide latitude in closing argument to draw reasonable inferences from the

     evidence and may freely comment on the evidence. State v. Lewis, 156 Wn. App. 230, 240,233

     P. d 891 (2010).
      3

                 Taken by itself, the prosecutor's statement flully toilet trained and begins wetting the
                                                             "[

     bed"had the apparent intent and likely effect of suggesting that the bedwetting was evidence that

     the abuse occurred. RP at '797.        As such, it would have not been supported by Ellsworth's

     testimony. The prosecutor immediately qualified this suggestion, though, by stating that "it can
     be relevant" in treating mental health, it "
                                                can be part of anxiety," "it' simply something
                                                                       and s

jL   noteworthy." RP at 797. This is an accurate paraphrase of Ellsworth's testimony and does not - -

                             s bedwetting had
     convey the message that C. .'
                              D                              particular probative   value.   The prosecutor's

     statement approached a precipice, but then stepped back. Taken as a whole, the statement was

     not misconduct under the standards above.




                                                        10
No.41885 1 II
         - -



                                              IV. TIME FOR TRIAL


       McDaniel argues that the trial court granted a number of continuances over McDaniel's

objections in violation of CrR 3. and, therefore, that we should dismiss his conviction. This
                                3
argument fails.

       As recounted in the above facts, the trial court granted seven continuances before trial

began. McDaniel's counsel requested or jointly requested all but two. McDaniel himself refused

to sign off on all continuances, except the one granted on January 15, 2010.

       Under CrR 33( ),defendant detained in jail must be brought to trial within 60 days
                   b a

after the "commencement date,"
                             which is usually the date of arraignment. The rule, however,

excludes time    granted    for continuances from this 60 day limit. CrR
                                                          -                 e)( If
                                                                            3. ( a period is
                                                                             3).
                                                                             3

excluded, then " he allowable time for trial shall not expire earlier than 30 days after the end of
               t

that excluded   period. CrR 3. (
                            b)(
                             5).
                             3

       The trial court may grant a continuance based on (1)written agreements of the parties or

2)
 when the continuance is required by the administration ofjustice and the continuance will not

prejudice the defendant's presentation of his case. CrR 3. (A motion for a continuance "by
                                                        f).
                                                         3

or on behalf of any parry waives that party's objection to the requested-delay.' CrR 3. (
                                                                                     f)( -
                                                                                      2).
                                                                                      3

The trial court does not necessarily abuse its discretion by granting defense counsel's request for

more time to prepare for trial, even "`over defendant's objection, to ensure effective

representation   and   a   fair trial. "'   State v. Saunders, 153 Wn. App. 209, 217, 220 P. d 1238
                                                                                           3

2009)quoting State v. Campbell, 103 Wn. d 1, 15, 691 P. d 929 (1984)).
      (                               2               2

       The trial court must consider all relevant factors in exercising its discretion to grant or

deny a continuance. State v. Flinn, 154 Wn. d 193, 199 200, 110 P. d 748 (2005)quoting State
                                          2            -         3              (

6
  Although McDaniel mentions his "right to a speedy trial," bases his analysis on the court
                                                               he
rule; thus, we respond to that argument. See Br. of Appellant at 30, 33.
                                                       11
No. 41885 1 II
          - -



v.          Juarez, 119 Wn. App. 150, 155, 79 P. d 987 (2003)).
     Heredia-                                  3              Allowing              counsel time to

prepare for trial is a valid basis for continuance. Flinn, 154 Wn. d at 200. Additionally, the trial
                                                                 2

court may consider schedule conflicts, including the prosecutor's reasonably scheduled vacation

in granting continuances. Flinn, 154 Wn. d at 200. The unavailability of a key witness is also a
                                       2

valid reason for a continuance. State v. Iniguez, 167 Wn. d 273, 294, 217 P. d 768 (2009).
                                                        2                  3

         As noted, McDaniel's counsel requested or jointly requested all but two of the

continuances    at   issue.   Under CrR 3. (
                                        f)(
                                         2),
                                         3 McDaniel may only object to those two

continuances. The first was the request by the State on July 19, 2010 for a 52 day continuance
                                                                               -

because two material, subpoenaed witnesses     were   unavailable.    The unavailability of material

witnesses is a valid reason for a continuance. Iniguez, 167 Wn. d at 294. The trial court granted
                                                              2

the continuance as required in the administration of justice under CrR 3. (
                                                                       f)(
                                                                        2).
                                                                        3

           The second of these continuances was the court's January 6, 2011 request for a 7 day
                                                                                            -

continuance because it was in another case. McDaniel argues that the trial court failed to make a

record of   why   another court could not hear the matter.   The prior continuance, however, had

expired on January 6,2011. Under CrR 3. ( allowable time for trial cannot expire earlier
                                     b),
                                      3 the

than 30    days after the end of excluded period. The trial began sooner than 30 days from

January 6. Therefore, even if the final continuance was invalid, the trial began within the time

required by    CrR 3. .
                    3     Considering all continuances, McDaniel was brought to trial within the

time CrR 3. required.
          3

                                V. ADEQUACY OF THE INFORMATION

          McDaniel argues that the State improperly charged him because the information did not

include a proper date, but instead referred to the alleged crime as occurring in "the period

between November 2007 and February 2008." SAG                  at    4.   A charging document is



                                                 12
No.41885 1 II
         - -



constitutionally adequate only if all essential elements of a crime, statutory and nonstatutory, are

included in the document to apprise the accused of the charges and to allow the defendant to

prepare a defense. State v. Vangerpen, 125 Wn. d 782, 787, 888 P. d 1177 (1995).Here, the
                                             2                  2

information apprised McDaniel of the nature of the crime and the period within which it was

alleged to have occurred. This did not hinder his ability to present a defense. Thus, McDaniel's
claim fails.


                                  VI. AMENDED INFORMATION


       McDaniel next argues that the State abused its authority by amending the charges against

him on June 15, 2010, to add first degree child molestation after it had rested its case in-
                                                                                         - chief.

Under CrR      2. ( he court may permit
                1 t]
               d), "[                       any information ...   to be amended at any time before

verdict or finding if substantial rights of the defendant are not prejudiced."The defendant bears

the burden of    showing prejudice. State v. Guttierrez, 92 Wn. App. 343, 346, 961 P. d 974
                                                                                    2

1998). This case was not even called for trial until January 13, 2011. Thus, this amendment
occurred well before the CrR     2. (deadline. Further; McDaniel does not explain how the
                                 d)
                                  1

State's timing in adding the first degree child molestation charges unfairly prejudiced him. For

these reasons, McDaniel's claim fails:

       McDaniel also asserts in his SAG that the second amended information, filed on January

31, 2011, violated the rule in State v. Pelkey, 109 Wn. d 484, 745 P. d 854 (1987).SAG at 16.
                                                      2             2

That case held that "[ criminal charge may not be amended after the State has rested its case-
                    a]

in- unless the amendment is to a lesser degree of the same charge or a lesser included
  chief

offense." Pelkey, 109 Wn. d at 491. The January 31 amendment coincided with the State's
                        2

resting its case and, significantly, only struck the phrase "not in a state -registered domestic

partnership with the defendant,"
                               because that element had been added to the statute after the time


                                                 13
No. 41885 1 II
          - -



period for McDaniel's charges. CP at 109 10. Simply conforming a charge with the governing
                                         -

statute at the time the State rests, when the Defendant can point to no prejudice from it,does not

offend Pelkey. Further, McDaniel agreed to the amendment.

                 VII. TIME OF ARRAIGNMENT ON THE FIRST AMENDED.CHARGES


       As noted, the charge of child molestation was added to the information on June 15, 2010.

McDaniel, though, was not arraigned on it until January 25, 2011, over seven months later, well

beyond the 14 day period set in CrR 4. . The record discloses no reason for this delay.
              -                      1

       The absence of arraignment by itself, however, is not a due process violation. State v.

Anderson, 12 Wn. App. 171, 173, 528 P. d 1003 (1974).
                                     2              Rather, harm occurs when the absence

of arraignment deprives the accused and counsel of sufficient notice and adequate opportunity to

defend. Garland v. Washington, 232 U. . 642, 645, 34 S. Ct. 456, 58 L. Ed. 772 (1914).An
                                    S

information may be amended without re-
                                     arraignment if the defendant's substantial rights are not

prejudiced. State v. Allyn, 40 Wn. App. 27, 35, 696 P. d 45 (1985).The defendant bears the
                                                     2

burden of showing prejudice. State v. Royster, 43 Wn. App.613, 619 20,719 P. d 149 (1986).
                                                                   -       2

       McDaniel's counsel told the court that he had received a copy of the amended

information in June 2010,that he had made his client aware of the amended charges that month,
                                 -   -               -

and that he was well aware the State was proceeding on both counts. No evidence was offered of

any harm or prejudice to McDaniel from the late re-
                                                  arraignment. Under the cases above, the late

arraignment, although regrettable, does not constitute error requiring reversal.

                                    VIII. DOUBLE JEOPARDY


       McDaniel asserts that the State violated his constitutional protections against double

jeopardy by charging him in a second count with a separate crime for the same act. Article 1,

section 9 of the Washington Constitution and the Fifth Amendment to the federal constitution



                                                14
No. 41885 1 II
          - -



protect persons from a second prosecution for the same offense and from multiple punishments

for the same offense imposed in the same proceeding. State v. Turner, 169 Wn. d 448, 454, 238
                                                                            2

P. d 461 (2010). Here, the jury convicted McDaniel on only one of his two counts; thus, no
 3

double jeopardy issues arise.

                            IX. EFFECTIVE ASSISTANCE OF COUNSEL


       Finally, McDaniel asserts that his attorney provided ineffective assistance of counsel

because (1) did not challenge the specificity of the charging document, 2) did not object to
          he                                                            ( he

the amended charges, 3) did not object to continuances when his client objected, 4) did
                     ( he                                                        ( he

not ask for a mistrial or dismissal after C. . testified, and (5)he did not raise the issue of a
                                           D

defective second arraignment on the amended charges. We disagree.

       To prevail on an ineffective `assistance of counsel claim, McDaniel must show both

deficient performance and resulting prejudice. State v. McFarland, 127 Wn. d 322, 334 35, 899
                                                                         2            -

P. d 1251 (1995).If McDaniel fails to satisfy either part of the test, we need not inquire further.
 2

State v. Hendrickson, 129 Wn. d 61, 78, 917 P. d 563 (1996).McDaniel is prejudiced if it is
                            2                2

reasonably probable that, if not for his counsel's deficient performance, the outcome would have

been different.   In re Pers. Restraint of Pirtle, 136 Wn. d 467, 487, 965 P. d 593 (1998).
                                                         2                  2

McDaniel cannot base his ineffective assistance of counsel claim on conduct that can be fairly

characterized as legitimate trial strategy or tactics. McFarland, 127 Wn. d at 336; see also State
                                                                        2

v. Grier, 171 Wn. d 17, 33, 246 P. d 1260 (2011).
                2                3

       McDaniel argues that his counsel was deficient for not objecting to the amended charges

and for not seeking dismissal of his charges where the information lacked a proper date. As we

concluded above, the time period in the information was sufficient to apprise McDaniel of the

charges, and the State properly amended the information. Because an attorney's performance is


                                                15
    No.41885 1 II
             - -



    not deficient for declining to raise frivolous or groundless matters, McDaniel's claims fail. State

    v. Stevens, 69 Wn. d 906, 908, 421 P. d 360 (1966).Finally, since there was no error, McDaniel
                     2                  2

    cannot show prejudice.

             McDaniel also argues that his counsel's performance was deficient because he failed to

    object   to continuances when his client             objected. As the trial court found, the continuances

    allowed his counsel time to prepare for trial. A defendant's right to trial by a certain time is a

    procedural right that defense counsel may waive,.over the defendant's objection, to ensure
    effective   representation   and   a   fair trial.    State v. Finch, 137 Wn. d 792, 806, 975 P. d 967
                                                                                2                  2

    1999).

             Next, McDaniel argues that his counsel was deficient for not asking for a mistrial or

    dismissal after C. .testified that her mother told her that they were going to go to trial in order
                     D

    to put McDaniel in jail. The trial court should grant a mistrial only when the defendant has been

    so prejudiced that nothing short of a new trial could insure that the defendant receives a fair trial.

    State v. Rodriguez, 146 Wn. d 260, 270, 45 P. d 541 (2002).Here, C. .'
                              2                 3                    s statement provided
                                                                      D

    an opportunity for McDaniel to explore whether someone had influenced her testimony, and

j   McDaniel's counsel did        just     that. _ C. .'
                                                   s statement
                                                    D                  did -not prejudice McDaniel's case; if

    anything it helped it. His counsel did not perform deficiently because he refrained from asking
    for a mistrial on the basis of C. .'
                                   s statement.
                                    D


             Finally,McDaniel argues that his counsel's performance was deficient because he did not

    raise the issue of a defective second arraignment on the amended charges. As held above, the

    second arraignment was not legally defective, although it was late. An attorney does not perform

    deficiently by refraining to challenge a legally sound action.

             For these reasons, McDaniel's claims of ineffective assistance of counsel fail.



                                                               16
No.41885 1 II
         - -


      We affirm.


      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

040,
2.6.it is so ordered.
 0




                                              BJ   GEN

We concur:




HUNT, J.
                A
DaaZ2:
     1              i



J HANSON,A. .
         J.
          C




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