948 P.2d 381 (Wash. 1997), 64453-5, State v. Peterson

Docket Nº64453-5.
Citation948 P.2d 381, 133 Wn.2d 885
Opinion JudgeMADSEN, Justice.
Party NameSTATE of Washington, Petitioner, v. Paul E. PETERSON, Respondent.
Attorney[133 Wn.2d 886] John Knodell, Grant County Prosecutor, Ephrata, for petitioner. Paul J. Wasson, II, Spokane, for respondent.
Judge PanelDOLLIVER, SMITH, GUY, JOHNSON, ALEXANDER and SANDERS, JJ., concur. TALMADGE, Justice (concurring).
Case DateDecember 18, 1997
CourtSupreme Court of Washington

Page 381

948 P.2d 381 (Wash. 1997)

133 Wn.2d 885

STATE of Washington, Petitioner,

v.

Paul E. PETERSON, Respondent.

No. 64453-5.

Supreme Court of Washington, En Banc.

December 18, 1997

Argued May 20, 1997.

Page 382

[133 Wn.2d 886] John Knodell, Grant County Prosecutor, Ephrata, for petitioner.

Paul J. Wasson, II, Spokane, for respondent.

MADSEN, Justice.

The State petitions for review of a Court of Appeals decision vacating Defendant Paul Peterson's second degree assault conviction. The court held that an amendment of the information to the inferior degree crime of second degree assault after the judge had reached his verdict was untimely. We reverse.

FACTS

Defendant was originally charged by information with the crime of first degree assault. On the day of trial, the judge granted the State's motion to amend the information to add an alternative count of attempted second degree murder. Defendant then waived his right to jury trial and the matter was tried to the bench.

According to the findings of fact entered by Judge Sperline following the trial, Defendant and the victim, Julie (Thompson) Mathews, spent the day of May 19, 1994, together drinking alcohol and driving around looking for a place to target shoot. Being unsuccessful in that effort, Defendant drove to the shores of Banks Lake. By about 8:00 p.m., [133 Wn.2d 887] the two had stopped at the lake. Ms. Mathews was sitting on a protruding rock overlooking the lake. She was intoxicated. The two had been arguing. Defendant approached Ms. Mathews rapidly from behind and pushed her off the rock into the water. The water was approximately two feet deep. Defendant walked out into the water where Ms. Mathews had landed, grabbed her by the neck and head, and held her head under the water. Ms. Mathews was flailing her arms, attempting to get free. At one point, her head emerged above the water and she screamed "I can't swim." Clerk's Papers (CP) at 55, 58, 97. Defendant held her head under the water continuously for 10 to 15 seconds until he finally released her and she scrambled up the bank to the car. While under water, Ms. Mathews did not know if she was going to drown or survive; she felt the burning of water in her nose and her lungs. She was terrorized. Defendant pursued

Page 383

Ms. Mathews to the car, where, while she cowered on the ground, he beat her with his fists and kicked her until he was ordered to stop by witnesses who had arrived in response to Ms. Mathews screams.

At the close of the evidence, defense counsel argued that the State had failed to show "grievous bodily harm," an element of first degree assault. Verbatim Report of Proceedings (RP) at 111. 1 He stated that "this is the type of case where the court should very seriously consider any lesser included offense. And I think the court really can consider lesser included offense[s] up to and including Assault in the Fourth Degree." Id. The prosecutor responded, "I agree with counsel that we have not, we don't have grievous bodily harm here that was actually inflicted. I would certainly concede that. There's no evidence of that." [133 Wn.2d 888] Id. at 114. Nevertheless, the prosecutor argued that the elements of either attempted second degree murder or first degree assault had been proved.

The judge found the State had not proved an intent to kill Ms. Mathews. Id. at 117. Likewise, he found that Defendant's actions were not likely to, nor had they in fact, caused "grievous bodily injury." Id. The judge then suggested that Defendant might be guilty of assault in the second degree under RCW 9A.36.021(1)(g) (assault by torture) "as a lesser included offense." RP at 118. He also suggested the possibility of entering a conviction on the crime of simple assault. The judge then concluded that, absent a motion for reconsideration at sentencing, he was finding the Defendant guilty of second degree assault.

Defense counsel objected on the basis that second degree assault by torture is not a lesser included offense of first degree assault. The State then moved to amend the information to second degree assault. The motion was granted over defense objection. Defendant subsequently received a standard range sentence for the crime of second degree assault.

Defendant appealed, arguing that the form of second degree assault to which the State amended is not a lesser included offense of first degree assault; that the court's conclusions of law were not supported by the findings; and there was insufficient evidence to convict Defendant of the amended charge of second degree assault. In a split decision, the Court of Appeals reversed and dismissed without prejudice, holding the amendment was untimely pursuant to CrR 2.1(d). This Court granted the State's petition for review.

DISCUSSION

The State argues that the Court of Appeals erred when it found the amendment of the information to second degree assault violated Defendant's rights under Const. art. I, § 22, the Sixth Amendment, and CrR 2.1(d). [133 Wn.2d 889]

Washington Const. art. I, § 22 provides in part: "In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him...." Under this provision, a defendant has the right to be informed of the charges against him and to be tried only for offenses charged. State v. Pelkey, 109 Wash.2d 484, 489, 745 P.2d 854 (1987); State v. Irizarry, 111 Wash.2d 591, 592, 763 P.2d 432 (1988). Both the Sixth Amendment and Const. art. I, § 22 operate to guarantee the defendant has sufficient notice of the charges he faces. Accordingly, a midtrial amendment of an information is "reversible error per se even without a defense showing of prejudice." State v. Markle, 118 Wash.2d 424, 437, 823 P.2d 1101 (1992); State v. Pelkey, 109 Wash.2d at 491, 745 P.2d 854.

This rule is subject to two statutory exceptions: where a defendant is convicted of a lesser included offense of the one charged pursuant to RCW 10.61.006, and where a defendant is convicted of a crime which is an

Page 384

inferior degree pursuant to RCW 10.61.003. Id. at 488, 745 P.2d 854; State v. Foster, 91 Wash.2d 466, 471, 589 P.2d 789 (1979). These exceptions are well established in Washington case law.

While it is true that the jury may find a defendant not guilty of the crime charged, but guilty of an offense of lesser degree, or of an offense necessarily included within that charged, it is also true that "accusation must precede conviction," and that no one can legally be convicted of an offense not properly alleged. The accused, in criminal prosecutions, has a constitutional right to be apprised of the nature and cause of the accusation against him. Const., art. 1, § 22. And this can only be made known by setting forth in the indictment or information every fact constituting an element of the offense charged. This doctrine is elementary and of universal application, and is founded on the plainest principle of justice.

State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894).

In Pelkey, the...

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114 practice notes
  • Malella v. Keist, 122811 WACA, 40500-8-II
    • United States
    • Washington Court of Appeals of Washington
    • December 28, 2011
    ...to Malella and the Manwarings. Hayden v. Mutual of Enumclaw Ins. Co., 141 Wn.2d 55, 68, 1 P.3d 1167 (2000) (quoting State v. Peterson, 133 Wn.2d 885, 894, 948 P.2d 381 (1997)) ("'Principles of judicial restraint dictate that if resolution of an issue effectively disposes of a case, we ......
  • 248 P.3d 550 (Wash.App. Div. 1 2011), 63040-7-I, In re Heidari
    • United States
    • Washington Court of Appeals of Washington
    • January 24, 2011
    ...instructions and may consider the charged offense as well as any lesser included offense. See State v. Peterson, 133 Wash.2d 885, 892-93, 948 P.2d 381 (1997) (In a bench trial, the judge " may properly find defendant guilty of any inferior degree crime of the crimes included within the......
  • State v. Carlson, 042115 WACA, 31610-6-III
    • United States
    • Washington Court of Appeals of Washington
    • April 21, 2015
    ...committed only the inferior offense. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson, 133 Wn.2d at 891, 948 P.2d 381 (1997)). A trial court's decision about whether to instruct on a lesser-degree offense involves the application of law to facts, ......
  • State v. Puga, 011811 WACA, 65063-7-I
    • United States
    • Washington Court of Appeals of Washington
    • January 18, 2011
    ...454, 6 P.3d 1150 (2000). The two conditions, the legal prong and factual prong, are based on the tests set forth in State v. Peterson 133 Wn.2d 885, 891, 948 P.2d 381 (1997), and State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The factual test requires a showing more particular......
  • Request a trial to view additional results
113 cases
  • Malella v. Keist, 122811 WACA, 40500-8-II
    • United States
    • Washington Court of Appeals of Washington
    • December 28, 2011
    ...to Malella and the Manwarings. Hayden v. Mutual of Enumclaw Ins. Co., 141 Wn.2d 55, 68, 1 P.3d 1167 (2000) (quoting State v. Peterson, 133 Wn.2d 885, 894, 948 P.2d 381 (1997)) ("'Principles of judicial restraint dictate that if resolution of an issue effectively disposes of a case, we ......
  • 248 P.3d 550 (Wash.App. Div. 1 2011), 63040-7-I, In re Heidari
    • United States
    • Washington Court of Appeals of Washington
    • January 24, 2011
    ...instructions and may consider the charged offense as well as any lesser included offense. See State v. Peterson, 133 Wash.2d 885, 892-93, 948 P.2d 381 (1997) (In a bench trial, the judge " may properly find defendant guilty of any inferior degree crime of the crimes included within the......
  • State v. Carlson, 042115 WACA, 31610-6-III
    • United States
    • Washington Court of Appeals of Washington
    • April 21, 2015
    ...committed only the inferior offense. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson, 133 Wn.2d at 891, 948 P.2d 381 (1997)). A trial court's decision about whether to instruct on a lesser-degree offense involves the application of law to facts, ......
  • State v. Puga, 011811 WACA, 65063-7-I
    • United States
    • Washington Court of Appeals of Washington
    • January 18, 2011
    ...454, 6 P.3d 1150 (2000). The two conditions, the legal prong and factual prong, are based on the tests set forth in State v. Peterson 133 Wn.2d 885, 891, 948 P.2d 381 (1997), and State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The factual test requires a showing more particular......
  • Request a trial to view additional results
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