                                                ZUiu rtt> ~d.   Ail lu* Ui




         IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 71028-1-1
              Respondent,
                                                 DIVISION ONE



CHAD CHENOWETH,                                  UNPUBLISHED OPINION


              Appellant                          FILED: February 2, 2015

       Spearman, C.J. — Chad Chenoweth was charged with second and third degree

child rape and first degree incest for seven alleged incidents involving his daughter, with

two of the incidents occurring before she turned fourteen. At trial, the daughter testified

about only six incidents and indicated they all took place after her fourteenth birthday. At

the close of the evidence the State amended the information to conform to the

testimony, dropping two of the charges and charging Chenoweth with lesser offenses

based on the daughter's age. Chenoweth was convicted on all counts. He appeals,

claiming that the convictions for the amended charges violated double jeopardy and/or

due process. He also claims that the "to convict" instructions required the State to prove

two acts for each charged offense, which itfailed to do, and that the trial court should

have considered the rape and incest counts to be the same criminal conduct for

sentencing purposes. Finding no error, we affirm.
No. 71028-1-1/2


                                                 FACTS

        On May 4, 2012, Chad Chenoweth was charged with fourteen counts of rape and

incest, for incidents involving his daughter L.C. occurring between July 2008 and July

2010. The original charges were as follows:

    •   two counts of rape of a child in the second degree on or about and
        between July 24, 2008, and July 24, 2009;

    •   one count of rape of a child in the second degree, on or about and
        between July 24,2009, and July 24, 2010;1

    •   two counts of incest in the first degree on or about and between
        July 24, 2008, and July 24, 2009;

    •   five counts of incest in the first degree on or about and between
        July 24, 2009, and July 24, 2010; and

    • four counts of rape of a child in the third degree on or about and
      between July 24, 2009, and July 24, 2010.

        The first two counts of rape of a child in the second degree resulted from two of
the incidents alleged to have occurred before the daughter turned fourteen years old. At
trial on April 23, 2013, the daughter testified that only six incidents had taken place, and
all happened after her fourteenth birthday. The State therefore sought to amend the
information to conform to the testimony.

         The parties agreed to rest before the jury, noting that the State had reserved its
right to amend the information after the trial court heard Chenoweth's motion to dismiss.
Chenoweth moved to dismiss Counts l-IV, the two counts of rape ofa child in the
second degree and two counts of incest in the first degree based on incidents alleged to


         1This count should have been for rape of a child in the third degree. The State pointed out in its
 brief that the higher charge appears to have been a scrivener's error. The alleged victim was fourteen
years old during the time frame indicated and Chenoweth could only have been charged with rape of a
 child in the third degree for the conduct.
No. 71028-1-1/3



have occurred before L.C.'s fourteenth birthday. The trial court indicated that it would

dismiss those counts because of the timing, but that it would allow the State to amend

the charges to reflect the different charging period. The trial court's ruling indicating it

would dismiss the counts was only oral, and not reduced to writing. Chenoweth also

moved to dismiss one count of rape in the third degree and incest in the first degree

because L.C. testified to only six acts. The State agreed that the testimony only

supported six incidents and indicated that it would "move to dismiss, or make part of an

amendment to the information by dropping a count." Verbatim Report of Proceedings

(VRP) (04/24/13) at 137:5-6. The State filed an amended information on April 25, 2013,

and sought to arraign Chenoweth on the amended information at that time.2 The revised

charges were explained to Chenoweth on the record and the court indicated that it

would explain the amended information and the revised counts to the jury.

       The amended information reduced the counts to twelve total, consisting of six

counts of rape of a child in the third degree and six counts of incest in the first degree.

All were alleged to have occurred on or about and between July 24, 2009, and July 24,

2010, and in acts separate and distinct from any other charge.

       The jury was given instructions that included the following:

       Instructions 9, 11, 13, 15, 17, and 19:

           To convict the defendant of the crime of rape of a child in
           the third degree as charged in count [1, 3, 5, 7, 9, and 11],
           each of the following elements of the crime must be proved
           beyond a reasonable doubt:

               (1) That on or about July 24, 2009 and July 24, 2010,
                   the defendant engaged in sexual intercourse with
                    L.C;

       2Based on the State's understanding that the parties had agreed to amend the information, itdid
not file a formal motion to amend and Chenoweth did not object to the amended information at that time.
No. 71028-1-1/4




       Instructions 10, 12, 14, 16, 18, and 20:

              To convict the defendant of the crime of incest in the first
              degree as charged in count [2, 4, 6, 8, 10, and 12], each of
              the following elements of the crime must be proved beyond
              a reasonable doubt:


                 (1) That on or about July 24, 2009 and July 24, 2010,
                     the defendant engaged in sexual intercourse with
                     L.C;

Clerk's Papers (CP) at 135-148. The jury returned verdicts finding Chenoweth guilty of

all counts.


       On July 10, 2013, the trial court heard and denied Chenoweth's motions to arrest

judgment. On October 11, 2013, the case proceeded to sentencing. Chenoweth argued

that the counts of rape and incest should have been considered the same criminal

conduct for sentencing purposes because they were based on the same incident. The

trial court disagreed and found that the counts were to be punished separately under

State v. Bobenhouse, 166 Wn.2d 881, 897, 214 P.3d 907 (2009). The trial court

sentenced Chenoweth to 102 months on the charges of incest in the first degree and 60

months on the charges of rape of a child in the third degree. Chenoweth appeals.

                                          DISCUSSION

       Chenoweth argues that the trial court violated double jeopardy when it dismissed

Counts l-IV for insufficiency of evidence but later allowed the State to amend these

counts. Chenoweth argues the court's oral ruling was a final order and that the State

was required to seek reconsideration in order to amend the charges. The State
contends that the trial court's dismissal was prospective only with the understanding
No. 71028-1-1/5



that the State would be allowed to amend the information after the trial court ruled on

Chenoweth's motion to dismiss.

        The constitutional guaranty against double jeopardy protects a defendant against

multiple punishments for the same offense. U.S. Const. Amend. V; Wash. Const, art. I,

§ 9; State v. Mutch. 171 Wn.2d 646, 661, 254 P.3d 803 (2011). A double jeopardy claim

is of constitutional proportions and may be raised for the first time on appeal. State v.

Land. 172 Wn. App. 593. 599. 295 P.3d 782, review denied. 177Wn.2d 1016, 304 P.3d

114 (2013). We review the issue of double jeopardy de novo. City of Auburn v. Hedlund,

137 Wn. App. 494, 503, 155 P.3d 149 (2007).

        An order of dismissal for insufficiency of evidence is the legal equivalent of an

acquittal, and an appeal or retrial would violate double jeopardy. State v. Bundv, 21 Wn.

App. 697, 702, 587 P.2d 562 (1978); State v. Matuszewski, 30 Wn. App. 714, 716, 637

P.2d 994 (1981). Protections against double jeopardy will attach, however, only if a

court's ruling is final. State v. Collins, 112 Wn.2d 303, 308, 771 P.2d 350 (1989)3 "[A]

ruling is final only after it is signed by the trial judge in the journal entry or is issued in

formal court orders." |g\, (citing State v. Aleshire, 89 Wn.2d 67, 70, 568 P.2d 799

(1977)). The trial court's oral indication that it would dismiss the original charges against

Chenoweth had no final or binding effect. Double jeopardy issues did not arise because

there was no order or final ruling dismissing the charges.




          3Chenoweth argues that the trial courtshould have considered this court's decision in Hedlund,
137 Wn. App. at 494, claiming that it modifies the Collins rule, but fails to indicate how Hedlund applies to
his case. id. Hedlund is distinguishable from both Collins and from this case, because in that case the
City filed a writ of review to the superior court, presenting the trial court's ruling as final and requesting
review. Hedlund, 137 Wn. App. at 506.
No. 71028-1-1/6



       Chenoweth argues that the trial judge violated his constitutional due process

rights by allowing the State to amend the information after it had clearly rested. The

State argues that all parties understood that the State was resting provisionally and that

it had permission to amend the charges to conform to the testimony.

       A trial court's decision to allow the State to amend the charge is reviewed for an

abuse of discretion. State v. Haner, 95 Wn.2d 858, 864, 631 P.2d 381 (1981). It is

fundamental that an accused must be informed of the charge he is to meet at trial and

cannot be tried for an offense not charged. State v. Carr, 97 Wn.2d 436, 439, 645 P.2d

1098 (1982); State v. Lutman, 26 Wn. App. 766, 767, 614 P.2d 224 (1980). Under the

criminal court rules, a trial court may allow the amendment of the information at any

time before the verdict as long as the "substantial rights of the defendant are not

prejudiced." CrR 2.1(d). While the rule permits liberal amendment, it is tempered by

article 1, section 22 of the Washington Constitution which requires that the accused be

adequately informed of the charge to be met at trial. State v. Pelkev, 109 Wn.2d 484,

487, 745 P.2d 854 (1987).

       Here, the record demonstrates that the State had been permitted to rest before

the jury only; there are multiple instances during the trial where the State indicated that
it would be amending the charges and would not formally rest. The trial court granted

the request to reserve the right to amend and Chenoweth did not object.4 The parties
understood that the State had preserved the right to amend the charges. Chenoweth

received sufficient notice of the nature and cause of the amended charges. The trial

court's decision to allow amendment of the charges was well within its discretion.


        4Regardless ofwhether Chenoweth objected at trial, double jeopardy is a constitutional matter
that may be raised for the first time on appeal. Statev. Bobic, 140 Wn.2d 250, 257, 996 P.2d 610 (2000).
No. 71028-1-1/7



      Chenoweth argues that his convictions must be overturned because the jury

instructions proposed by the State required two violations for each of the counts, and

those instructions became the law of the case. The jury instructions for each count

stated, "(1) [t]hat on or about July 24, 2009 and July 24, 2010, the defendant engaged in
sexual intercourse with L.C...." CP at 135-148. Chenoweth argues that the State failed

to prove that separate violations occurred on each ofthe two dates. The State argues
that while the instructions could have been more precise, they sufficed to define the

period of time for the jury to consider. The State also argues that any error in the
instructions was harmless; based on the information, directions, and evidence

presented at trial no reasonable jury could have considered that the State had to prove
two offenses.

       We review jury instructions de novo in the context of the instructions as a whole.
State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d 136 (2006). Jury instructions must

make the relevant legal standard manifestly apparent to the average juror. State v.
Borsheim, 140 Wn. App. 357, 366, 165 P.3d 417 (2007).
       Chenoweth relies on State v. Hickman, 135Wn.2d 97, 954 P.2d 900 (1998), to
support his argument. In that case, the State agreed to jury instructions that included
venue, and then failed to prove that additional element. \± at 101. The "to convict"
instructions in Hickman listed "[t]hat the act occurred in Snohomish County,
Washington," as a separately numbered, additional element of the crime to be proved
 beyond a reasonable doubt. Id The instructions in Hickman are distinguishable from the
 instructions in this case. Here, the charging period was poorly articulated but the
No. 71028-1-1/8



phrasing served to indicate a period of time during which the incidents were alleged to

have occurred.

       Furthermore, the presentation of evidence and argument at trial can reduce any

possibility that instructions will be misconstrued. See State v. Corbett, 158 Wn. App.
576, 592-3, 242 P.3d 52 (2010) (totality of instructions, evidence, and arguments made
it clearthat the jury had to find separate and distinct acts for each ofthe guilty verdicts).
Here, nothing in the way the case was tried, the testimony presented, or the jury
instructed, suggested that the jurors were required to find two separate acts for each
count. Both parties emphasized that there were six discrete incidents, onefor each
count, which occurred after the daughter's fourteenth birthday, July 24, 2009. In fact,
Chenoweth's counsel told the jury specifically that the State had to prove incest
occurred during the charging period represented by the two dates. He argued in closing
that "the state has to prove that - the witness, that during this charging period, that is to
say, you know, when she was - actually, when she was fourteen, between July 24th,
2009, and July 24th, 2010...." VRP (4/26/13) at 51. Based on a review of the jury
instructions, the evidence presented at trial, and the closing arguments, any reasonable
jury would have known that it had to find that only one distinct act occurred between
July 24, 2009 through July 24, 2010, for each count of rape and incest.
        Chenoweth claims that the convictions for incest and rape should have been

considered the same criminal conduct and counted as a single crime.5 He argues that



        5Both the State and the trial court noted that even if the court had considered rape and incest to
 be the same criminal conduct in this case, Chenoweth's standard range would not be affected. Because a
 prior or other current sex offense scores a three, under either calculation, Chenoweth's Offender Score
 exceeds nine, the maximum offender score available. Both offenses are also seriousness level VI. Thus,
 his sentencing range is 77-102 months in any event.

                                                       8
No. 71028-1-1/9



the separate counts for incest and rape involved the same acts, the same victim, and

occurred at the same time and place, and the case law supports this notion.

       Determinations of same criminal conduct for sentencing purposes are reviewed

for abuse of discretion or misapplication of law. State v. Graciano, 176Wn.2d531, 535,

295 P.3d 219 (2013). In Bobenhouse, 166 Wn.2d at 897, the Washington Supreme

Court held that the legislative intent to punish rape and incest as separate offenses,

even though committed by a single act, extends to the same criminal conduct analysis

for the purposes of sentencing.6 We find no error in the trial court's consideration of the
two offenses as separate and its sentencing of Chenoweth accordingly.

       Affirmed.




                                                           \D?S(r\rr„ - (* O ,
WE CONCUR:




  IfCoKc-y             ^T




        6Chenoweth misinterprets Bobenhouse. claiming that the Supreme Court declined to find that the
counts of first degree rape and first degree incest were not the same criminal conduct, even though they
arosefrom the same acts. This is incorrect. Chenoweth disregards the salient portion ofthe Bobenhouse
decision and focuses only on the alternative harmless error analysis.
