People v. Washam

• Decision Date: 19 March 2018
• Docket Number: Supreme Court Case No. 15SC469
• Citation: 413 P.3d 1261
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. James Willard WASHAM, III, Respondent.
• Court: Colorado Supreme Court

413 P.3d 1261

The PEOPLE of the State of Colorado, Petitioner,

v.James Willard WASHAM, III, Respondent.

Supreme Court Case No. 15SC469

Supreme Court of Colorado.

March 19, 2018

Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Springer and Steinberg P.C., Michael P. Zwiebel, Denver, Colorado

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶ 1 Prosecutors charged James Willard Washam, III by information with twelve counts of sexual assault on a child. In the information, a portion of the charged date range fell outside the statute of limitations. After trial began, the prosecution successfully moved to amend the information, narrowing the date range so that it fell completely within the statute of limitations. Ultimately, Washam was convicted on all twelve counts. He appealed, arguing that under Crim. P. 7(e), the amendment to the date range was a substantive amendment, and thus the trial court abused its discretion in permitting the amendment after the trial began. A majority of a division of the court of appeals agreed, vacating Washam's convictions and ordering the charges against him to be dismissed with prejudice.

¶ 2 The People petitioned this court for review. We granted certiorari¹ and now conclude that because the amendment simply narrowed the date range in the information—and thereby did not add an essential element to the offense or raise issues of inadequate notice—the amendment to the information was one of form, not substance. We also conclude that because the form amendment did not prejudice Washam's substantial rights, the trial court did not abuse its discretion in permitting the amendment after trial began. Hence, we reverse the judgment of the court of appeals and remand to that court for consideration of the remaining issues raised but unresolved on appeal.

I. Facts and Procedural History

¶ 3 Washam and the victim, M.L., lived across the street from each other. In 1994, when M.L. was twelve and Washam was twenty-five, Washam began to subject M.L. to regular sexual contact.² This sexual contact continued until 2000. M.L. reported Washam's conduct to law enforcement in September 2006.

¶ 4 In November 2007, prosecutors charged Washam by information with numerous crimes, including twelve counts of sexual assault on a child under section 18-3-405(1), C.R.S. (2007). This statute criminalizes sexual contact with a victim who is less than fifteen years of age when the actor is at least four years older than the victim. Because the General Assembly amended this statute in 2006, see ch. 119, sec. 1, § 16-5-401(1.5)(a), 2006 Colo. Sess. Laws 410, 411,³ and because Washam was charged in 2007, there are two applicable statutes of limitations that apply to the charges against Washam under section 18-3-405(1) : one for offenses committed before July 1, 1996, and another for offenses committed on or after July 1, 1996.

¶ 5 For offenses committed before July 1, 1996, the statute of limitations is ten years from the date of the assault.⁴ Accordingly, because the prosecution did not charge Washam until November 2007—more than ten years after any date prior to July 1, 1996—any offenses he committed prior to July 1, 1996, would be barred. For offenses committed on or after July 1, 1996, there is no limit on the statute of limitations. See § 16-5-401(1.5)(a), C.R.S (2007). As a result of these two statutes of limitations, only sexual conduct that occurred between July 1, 1996, and April 4, 1997 (the day before M.L.'s fifteenth birthday), would constitute prosecutable charges under section 18-3-405(1).

¶ 6 Navigating these statutes of limitations and their triggering dates proved difficult for the prosecution. The information initially alleged dates between January 1, 1994, and April 5, 1997, and thus included dates before July 1, 1996, that were time-barred. By the time jury selection began, the prosecution had amended its allegations regarding the dates of the offenses three times. Despite these amendments, at the time trial began, the dates alleged were still defective; the information alleged a date range between March 21, 1996, and April 4, 1997, for all twelve counts. Because this date range included dates before July 1, 1996, it was partly outside the statute of limitations.

¶ 7 After the jury was sworn,⁵ Washam moved to dismiss the sexual-assault-on-a-child counts for lack of jurisdiction. He pointed out that the March 21, 1996 date at the front end of the date range in the information fell outside the applicable statute of limitations. Because all twelve counts alleged the same defective date range, Washam argued that the trial court lacked jurisdiction over all twelve charges. In response, before delivering its opening statement, the prosecution successfully moved to once more amend the information under Rule 7(e) to allege dates that were within the statute of limitations. Specifically, this final amendment narrowed the range of dates in the information by narrowing the front end of the range from March 21, 1996, to July 1, 1996. This date range was no longer defective: The timeframe was not time-barred by the applicable statute of limitations, and M.L. was fourteen years old between these dates.

¶ 8 The jury ultimately found Washam guilty on all counts.⁶ Washam appealed.⁷ A majority of the division below vacated Washam's convictions. The majority noted that it was undisputed that March 21, 1996—the date on the front end of the range in the information when the trial began—fell outside the applicable statute of limitations, meaning Washam's appeal turned on "whether an information that charges a date range partly within and partly outside of the statute of limitations is valid." People v. Washam, No. 13CA758, slip op. at 12, 2015 WL 2216038 (Colo. App. May 7, 2015).

¶ 9 The majority concluded that our opinion in Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958), abrogated on other grounds by Cty. Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977), mandated that Washam's convictions be vacated because trial courts lack jurisdiction over charges where the information alleges dates outside the governing statute of limitations. Washam, slip. op. at 12. The majority further concluded that the prosecution's final amendment was impermissible because an amendment to cure a time-bar defect is substantive and therefore cannot be made under Rule 7(e) after trial has begun. Id. at 16. As a result, the majority vacated Washam's convictions for sexual assault on a child and ordered the trial court to dismiss those charges with prejudice. Id. at 33.

¶ 10 The partial dissent disagreed with the majority's reading of Bustamante and its progeny. Id. at 34–42 (Navarro, J., concurring in part and dissenting in part). Though the dissent acknowledged that Bustamante denies jurisdiction to trial courts over charges alleged to have occurred outside the statute of limitations period, it concluded that Bustamante did not address the issue of amending time-barred charges and thus was not controlling. Id. at 37. Rather, it read the cases following Bustamante and the adoption of Rule 7(e) to have shaped a policy favoring non-prejudicial amendments over dismissal of charges for mere technical defects. See id. at 37–42. Applying this reading of the law, the dissent concluded that the amendment here was one of form rather than substance and that it did not prejudice Washam, meaning it was permissible under Rule 7(e) even if made during trial. Id. at 47–48. Given these conclusions, the dissent would have affirmed the trial court's order permitting the final amendment. Id. at 52–53.

¶ 11 The People appealed, and we granted certiorari.

II. Standard of Review

¶ 12 In arguing that the original information was substantively defective, Washam raises a jurisdictional challenge. See People v. Williams, 984 P.2d 56, 63 (Colo. 1999) ("[A] defect of substance fails to invoke the jurisdiction of the court."). When the facts of a jurisdictional challenge are undisputed and the question presented is solely one of law, we review the challenge de novo. Springer v. City & Cty. of Denver, 13 P.3d 794, 798 (Colo. 2000).

¶ 13 Conversely, we review the trial court's decision to allow the prosecution to amend an information for an abuse of discretion. People v. Moody, 674 P.2d 366, 369 (Colo. 1984). A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Nicholls v. People, 2017 CO 71, ¶ 56, 396 P.3d 675, 687.

III. Law and Application

¶ 14 An information is a charging document signed by the prosecutor that names the defendant and the offense charged. Williams, 984 P.2d at 59–60. An information may be defective in either form or substance. It is defective in substance if it fails to charge an essential element of the offense. See Esquivel-Castillo v. People, 2016 CO 7, ¶ 11, 364 P.3d 885, 888 ; Williams, 984 P.2d at 63. Such a defect fails to invoke the jurisdiction of the court. Williams, 984 P.2d at 63. But when the information "adequately advises a defendant of the charges against him," any defect in the information is one of form rather than substance. See Cervantes v. People, 715 P.2d 783, 786 (Colo. 1986).

¶ 15 Both types of defect may be cured by timely amendment. See id. Rule 7(e) governs the nature and timing of such amendments. It distinguishes between amendments of form and amendments of substance and establishes when each type of amendment may occur:

The court may permit an information to be amended as to form or substance at any time prior to trial; the court may permit it to be amended as to form at any time before the verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

Crim. P. 7(e).

¶ 16 In this instance, because the amendment in question occurred after trial began (but before the verdict), it would only...