                                                              FILED
                                                          JANUARY 22, 2019
                                                      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. 35515-2-III
                                             )
                     Respondent,             )
                                             )
              v.                             )         UNPUBLISHED OPINION
                                             )
ANDREW THOMAS DEWEY,                         )
                                             )
                     Appellant.              )

       LAWRENCE-BERREY, C.J. — A jury found Andrew Dewey guilty of second degree

burglary, violation of a protection order, and obstructing a law enforcement officer. Mr.

Dewey appeals his convictions for second degree burglary and violation of a protection

order. We affirm the first but reverse the second.

                                         FACTS

       The State initially charged Mr. Dewey with residential burglary, violation of a

protection order, obstructing law enforcement, and possession of a stolen vehicle. The

information alleged that Mr. Dewey violated the protection order by contacting his wife,

Cyndee Dewey, the protected person.
No. 35515-2-III
State v. Dewey


       On the first day of trial, the State filed an amended information charging Mr.

Dewey with second degree burglary, second degree theft, second degree possession of

stolen property, violation of a protection order, obstructing law enforcement, and

possession of a stolen vehicle. The amended information continued to allege that Mr.

Dewey violated the protection order by contacting his wife, Cyndee Dewey, the protected

person.

       The State called Ms. Dewey as its first witness. She testified she and Mr. Dewey

had been married for 18 years but were in the process of divorcing. During the divorce,

she requested a protection order, and she and Mr. Dewey were present at the hearing. At

the hearing, both she and Mr. Dewey discussed their residential property and another

property located at 1560 Twin Lakes Road.

       Ms. Dewey testified that the Twin Lakes property had an outbuilding with a

bathroom inside. She explained there were items of personal property inside the building

that belonged to both her and Mr. Dewey. She testified she thought Mr. Dewey

sometimes used the outbuilding as a residence. At the hearing for a protection order, Mr.

Dewey expressed a desire to obtain some of his personal property at the Twin Lakes

property. The judge told Mr. Dewey that he could contact the sheriff’s department so a

deputy could do a standby to assist him in recovering his personal property.


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No. 35515-2-III
State v. Dewey


       Ms. Dewey testified that the court issued a protection order that prevented Mr.

Dewey from contacting her or going onto either of their properties. Mr. Dewey signed

the order. Deputy Dan Kivi later personally served the order on Mr. Dewey.

       Ms. Dewey testified that she later received a call from Deputy Kivi about a blue

truck loaded with items at the Twin Lakes property. She learned Mr. Dewey was using

the truck, and the truck was impounded. She went to the sheriff’s office and identified

items that were in the blue truck. Ms. Dewey testified she put the items into three

categories: (1) items that belonged to Mr. Dewey, (2) items that were community

property, and, (3) items that belonged to her. Some of the items that belonged to Ms.

Dewey included her son’s football, components of her cotton candy machine, which she

used as a side business, and pictures of her children from a previous relationship. All of

these items had been stored inside the Twin Lakes outbuilding.

       Deputy Kivi also testified. Deputy Kivi testified he was doing a security check in

the area of the Twin Lakes property and saw a blue pickup truck that was backed up to

the door of the outbuilding. Deputy Kivi thought this was suspicious because he knew,

from previously serving the protection order, that Mr. Dewey was not supposed to be

there. Deputy Kivi testified there were a lot of items stacked in the truck’s bed and cab.

Deputy Kivi called for backup. He also called Ms. Dewey to confirm that nobody was


                                             3
No. 35515-2-III
State v. Dewey


supposed to be there and nobody had permission to remove belongings. Other deputies

arrived and found a way into the building. Nobody was inside. The deputies searched the

surrounding area and eventually found Mr. Dewey laying in the brush. They arrested Mr.

Dewey and advised him of his constitutional rights. Mr. Dewey stated that the Twin

Lakes property was not included in the protection order and that he lived there.

       Mr. Dewey then presented his defense. Mr. Dewey testified he was taking all of

the items that were in the blue truck back to where he currently was living. He also

testified he took the items belonging to Ms. Dewey to exchange them later during a civil

standby. On cross-examination, Mr. Dewey acknowledged he sometimes used the Twin

Lakes property as a residence and admitted the property is subject to the protection order.

       After Mr. Dewey rested, he moved to dismiss the violation of protection order

charge. Mr. Dewey argued that the amended information alleged he violated the

protection order by contacting Ms. Dewey, and there was no evidence that he contacted

her. The State then moved to amend the information to allege that Mr. Dewey violated

the protection order by being at the Twin Lakes property. The trial court granted the

State’s motion to amend.




                                             4
No. 35515-2-III
State v. Dewey


       The jury returned a verdict finding Mr. Dewey guilty of second degree burglary,

violation of the protection order, and obstructing law enforcement. The jury found Mr.

Dewey not guilty of second degree theft, second degree possession of stolen property, and

possession of a stolen vehicle.

       Mr. Dewey appeals.

                                        ANALYSIS

       A.     LATE AMENDMENT TO THE INFORMATION

       Mr. Dewey argues the trial court erred when it allowed the State to amend the

information after all the evidence was presented.

       Article I, section 22 of the Washington Constitution provides: “In criminal

prosecutions the accused shall have the right . . . to demand the nature and cause of the

accusation against him.” Simply put, “a defendant has the right to be informed of the

charges against him and to be tried only for offenses charged.” State v. Peterson, 133

Wn.2d 885, 889, 948 P.2d 381 (1997). A “midtrial amendment of an information is

‘reversible error per se even without a defense showing of prejudice.’” Id. (quoting State

v. Markle, 118 Wn.2d 424, 437, 823 P.2d 1101 (1992)); accord State v. Pelkey, 109

Wn.2d 484, 491, 745 P.2d 854 (1987). Although CrR 2.1(d) allows amendment “any

time before verdict or finding if substantial rights of the defendant are not prejudiced,”


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No. 35515-2-III
State v. Dewey


this works within the confines of article I, section 22. Pelkey, 109 Wn.2d at 490. “A

criminal charge may not be amended after the State has rested its case in chief unless the

amendment is to a lesser degree of the same charge or a lesser included offense.” Id. at

491. “Anything else is a violation of the defendant’s article I, section 22 right to demand

the nature and cause of the accusation against him or her.” Id. (emphasis added).

       The State argues that a technical amendment, including amending to an alternative

means of committing a crime, is allowed and is only reversible if the defendant can show

prejudice. See Resp’t’s Br. at 13-15. The three authorities cited by the State to support

its argument are distinguishable or otherwise not controlling. State v. Gosser, 33 Wn.

App. 428, 434-35, 656 P.2d 514 (1982) (amendment occurred before State rested); State

v. Allyn, 40 Wn. App. 27, 35, 696 P.2d 45 (1985) (overruled sub silentio by Pelkey); State

v. Schaffer, 120 Wn.2d 616, 619-20, 845 P.2d 281 (1993) (amendment occurred before

State rested its case).

       Pelkey is clear. Once the State has rested its case, amendment of the charging

document is unconstitutional unless it is an amendment to a lesser included offense or a

lesser degree of the same charge. Pelkey, 109 Wn.2d at 491. In two cases, this court has

reversed late amendments to an alternative means of committing the charged crime.




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No. 35515-2-III
State v. Dewey


       In State v. Griffith, 129 Wn. App. 482, 486, 120 P.3d 610 (2005), the defendant

was originally charged with knowingly dealing in child pornography. After the defendant

rested his case, the State moved the court to amend the information to include an

alternative means of committing the offense—possession with intent to deal in child

pornography. Id. at 490. The court allowed it. Id. On appeal, this court reversed the

conviction for dealing in child pornography, adhering to Pelkey’s bright line rule. Id. at

491. After an analysis, this court concluded that possession under RCW 9.68A.050(2) is

not a lesser included offense of RCW 9.68A.050(1) because one can commit the

dissemination crime (subsection 1) without committing the possession crime (subsection

2). Id. Thus, the amendment was not to a lesser included offense or a lesser degree of the

same crime.

       In State v. Laramie, 141 Wn. App. 332, 341, 169 P.3d 859 (2007), the defendant

was charged with assault with a deadly weapon in violation of RCW 9A.36.021(1)(a).

However, when the court instructed the jury on assault, the court gave an instruction that

included an alternative means of committing second degree assault—recklessly inflicting

substantial bodily harm. Id. The defendant did not object, but the State brought the

discrepancy to the court’s attention. Id. Instead of reinstructing the jury, the court

allowed the State to amend the information. Id. at 342. On appeal, this court once again


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No. 35515-2-III
State v. Dewey


adhered to Pelkey’s bright line rule and recognized Griffith’s holding that an amendment

to an alternative means is not a lesser included offense. Id. at 343-44.1

       Here, the second amended information stated an alternative means of committing

violation of a protection order. The original information charged Mr. Dewey with

violation of a protection order by contacting the protected person, Cyndee Dewey.

Contacting a protected person violates RCW 26.50.110(1)(a)(i). After both sides rested,

the State amended the charge to violation of a protection order that excluded Mr. Dewey

from a residence. Going onto residential property contrary to a protection order violates

RCW 26.50.110(1)(a)(ii).

       We conclude the trial court erred by allowing the State to amend the information to

assert an alternative means of committing violation of a protection order. The

amendment was prohibited by Pelkey, and Mr. Dewey is not required to show that the

amendment prejudiced him.




       1
         Courts have also reversed amendments for more minor, technical reasons. See,
e.g., State v. Vangerpen, 125 Wn.2d 782, 791, 888 P.2d 1177 (1995) (finding an
amendment to the information after both sides had rested to include the statutory word
“premeditation” was reversible error); State v. Hull, 83 Wn. App. 786, 802, 924 P.2d 375
(1996) (finding an amendment to the information after the State had rested its case to
include the word “required” was per se reversible error because the omission of the word
“required” in the first information resulted in no viable charge at all).

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No. 35515-2-III
State v. Dewey


       B.     SUFFICIENCY OF THE EVIDENCE

       Mr. Dewey argues that a rational jury could not have found him guilty of second

degree burglary because the State presented insufficient evidence.

       A challenge to the sufficiency of the evidence admits the truth of all of the State’s

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

“Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the

evidence in the light most favorable to the State, could find the elements of the charged

crime beyond a reasonable doubt.” Id. “[A]ll reasonable inferences from the evidence

must be drawn in favor of the State and interpreted most strongly against” Mr. Dewey.

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       To prove second degree burglary, the State was required to prove beyond a

reasonable doubt that Mr. Dewey entered the Twin Lakes outbuilding or remained

unlawfully, with the intent to commit a crime against a person or property therein.

RCW 9A.52.030(1). Burglary does not require an intent to commit a specific crime;

rather, the intent is simply the intent to commit any crime against a person or property.

State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985).

       Here, the State proved that Mr. Dewey entered the Twin Lakes outbuilding and

took items that belonged only to Ms. Dewey. Viewing the facts most favorably to the


                                               9
No. 35515-2-111
State v. Dewey


State, a reasonable trier of fact could find that Mr. Dewey entered the outbuilding with

the intent to commit theft, i.e., deprive Ms. Dewey of property that belonged to her.

      Mr. Dewey notes that the jury found him not guilty of the crimes of second degree

theft and second degree possession of stolen property. The not guilty verdicts on these

offenses and the guilty verdict on second degree burglary are inconsistent. But the

inconsistency of a jury's verdict does not support the dismissal of a conviction otherwise

supported by substantial evidence. State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 ( 1988).

      Affirmed in part and reversed in part.

      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.


                                          Lawrence-Berrey, C.J.

WE CONCUR:




                                          Fearing, J.




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