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Can prosecutors amend the date of your criminal charge after the jury has heard the evidence?

Posted by Brian C. Zuanich | Jan 23, 2020 | 0 Comments

Under the Washington Constitution, a criminal defendant has a right to be notified of the nature of the charge so the defendant can prepare and present an adequate defense. 

This makes constitutional, practical, and intuitive sense.  You can't really defend yourself against a moving target. 

But in certain cases, the Washington Supreme Court ruled today, you can—at least to a degree.

In State v. Brooks, the State charged the defendant with rape and child molestation in the third degree.  (The rape charge is not relevant to the appeal).  Based on the evidence, the State initially charged Brooks with molesting the victim on or about or between” January 1, 2014 and January 31, 2014.

At trial, Brooks testified and essentially admitted that he molested the victim at her apartment while he was visiting from California.  (He denied the rape allegation).  As part of his testimony, Brooks said he wasn't sure he was in Washington in January 2014, but he was sure he was in the state in May 2014.

After the parties rested, the State filed a motion to amend the information (i.e. the document formally charging the defendant) by changing the date range from January 2014 to “on or about between” January 1, 2014 and May 31, 2014. Over Brooks' objection, the trial judge granted the motion.  The jury found Brooks guilty of both charges.

On appeal, the Washington Supreme Court upheld the trial judge's ruling and upheld Brooks' conviction, for the following reasons:

First, the date of offense is not an element of the crime of child molestation in the third degree. Under RCW 9A.440.89 (the child molestation statute), the State has to prove that the defendant molested the victim, the victim and the defendant are not married, the victim is between 14 and 16 years old, and that the defendant is at least four years older than the victim.  In other words, if the age and relationship tests are met, the date of offense is irrelevant. 

Of course, not completely irelevant.  The defendant has to be on notice of the charge, especially if the defendant is asserting an alibi defense.  For example, if the State charged the defendant with committing a rape on January 1, 2014 and the defendant claims he was out of the country between January 1 and January 25, the State can't halfway through trial change the date to February 1, 2014. 

But that's not what happened here.  Brooks essentially admitted on the stand that he committed the crime; he just said it happened in May 2014, not January 2014.  In fact, during closing argument, Brooks' attorney conceded that the State had proven his client's guilt of child molestation in the third degree beyond a reasonable doubt. 

Therefore, because Brooks wasn't asserting an alibi, expanding the date range didn't harm Brooks at trial. 

Second, the so-called Pelkey rule does not apply.  In the Pelkey case, the Washington Supreme Court held that a defendant is automatically prejudiced if the State moves to amend a criminal charge after resting unless it amends the charge to a lesser included charge.  Pelkey doesn't apply here because the State didn't change the charge, simply the date. 

Instead, the rule that does apply is a CrR 2.1(d), a superior court rule.  Under CrR 2.1(d), prosecutors can amend a criminal charge at any time before verdict if the “substantial rights” of the defendant are not prejudiced.  Here Brooks didn't claim prejudice.  Importantly, he didn't request a continuance after the State amended the charge, presumably (the Court implied) because he wasn't really harmed or surprised by the amendment.  As indicated, he admitted to the jury that the State had proven him guilty. 

Finally, the “on or about” language in the initial information put Brooks on notice that prosecutors weren't alleging one particular date, but rather any time during the applicable statute of limitations.  From the beginning, Brooks should have been expecting the date of offense was flexible and (in other words) a moving target. 

For these reasons, the trial judge did not commit legal error and the Court upheld Brooks' conviction for child molestation in the third degree. 

About us:  Zuanich Law specializes in criminal and civil appeals, including DOL and family law appeals.  We also handle post-conviction relief, including vacating, expunging, and sealing criminal records.  Subscribe to our criminal law email newsletter.  You can also check out our most recent newsletters.    

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.


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