State v. Brooks

• Citation: 195 Wash.2d 91,455 P.3d 1151
• Decision Date: 23 January 2020
• Docket Number: No. 97150-1,97150-1
• Parties: STATE of Washington, Respondent, v. Kenneth Chance BROOKS, Petitioner.
• Court: United States State Supreme Court of Washington

195 Wash.2d 91

455 P.3d 1151

STATE of Washington, Respondent,

v.Kenneth Chance BROOKS, Petitioner.

No. 97150-1

Supreme Court of Washington.

Argued November 19, 2019

Filed January 23, 2020

Kevin Hochhalter, Olympic Appeals PLLC, 4570 Avery Lane SE, Suite C-217, Lacey, WA 98503-5608, for Petitioner.

Eric H. Bentson, Cowlitz County Prosecutor's Office, 312 SW 1st Avenue, Room 105, Hall Of Justice, Kelso, WA 98626-1799, for Respondent.

Thomas E. Weaver Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA 98337-0221, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).

MADSEN, J.

¶1 In this child molestation and rape case, we are asked to determine whether the trial court abused its discretion in granting the State’s motion to expand the time period noted in the information after both the State and the defense rested. We hold that under the circumstances of this case, the trial court did not err, and we affirm the Court of Appeals, thereby affirming defendant’s conviction.

FACTS

¶2 In 2014, C.H.¹ was 15 years old, and lived with her mother and sister in an apartment in Longview, Washington. C.H.’s older brother (by six years) did not live with her but would come over to the apartment frequently.

¶3 Defendant Kenneth Brooks was a good friend of C.H.’s brother. Brooks was eight years older than C.H. and had known C.H. since she was nine years old. C.H. considered Brooks to be like a brother to her.

¶4 In January 2014, Brooks was living in California but came to visit both C.H.’s family and his own. Brooks alternated staying with his relatives and at C.H.’s apartment. During this time, Brooks and C.H. would watch Netflix alone together in the living room. While watching Netflix with C.H., Brooks would cuddle with her. One evening, while they were laying on the couch together, Brooks reached into C.H.’s shirt and began rubbing her breast. C.H. became frightened and did not move. This continued for about five minutes. C.H. did not reciprocate, and eventually, Brooks stopped.

¶5 C.H. was upset. Brooks told C.H. it would not happen again and asked her not to tell her mom. Two days later, C.H. told her mom what had happened. C.H.’s mom did not contact the police, however, and Brooks returned to California.

¶6 In the summer of 2014, Brooks returned to visit with his girlfriend from California, and they stayed with C.H.’s family. On the evening of August 16, 2014, C.H., her sister, and Brooks were at home, downstairs. C.H.’s mother was upstairs. C.H., her sister, and Brooks played games while drinking beer and vodka into the morning of August 17, 2014. C.H. became intoxicated and passed in and out of consciousness. Brooks raped C.H. and then left her to sleep.²

¶7 C.H. was still intoxicated and was vomiting until 2:00 p.m. on August 17. C.H. told her sister what had happened, and the police were notified. The police came to C.H.’s home and gathered evidence regarding the rape allegation.

¶8 On August 17, 2014, Brooks called C.H.’s mother and left a voicemail stating he would tell her what happened and he would apologize. Brooks returned to California. Brooks was ultimately charged with rape of a child in the third degree for raping C.H. on or about August 17, 2014, and child molestation in the third degree for molesting C.H. at a time "on or about or between" January 1, 2014 and January 31, 2014. Clerk’s Papers (CP) at 1. On February 22, 2017, the case proceeded to trial, and C.H. testified to events as described above.

¶9 At trial, after the State rested, Brooks testified. Brooks stated that on occasions in 2014, when he would visit from San Francisco, he would stay at C.H.’s apartment. When asked if he was in Washington in January 2014, Brooks responded, "I cannot say on January. I know I was here in May [2014]." Verbatim Report of Proceedings (Feb. 23, 2017) (VRP) at 54. Brooks testified that while he and C.H. were at her apartment watching a movie, he touched C.H.’s breasts inappropriately with his hand. Brooks said this was the only time that he touched C.H. inappropriately. Brooks believed he touched C.H. in May because he claimed this was when he had sent a text message apologizing to C.H.

¶10 As to the rape allegation, Brooks offered a general denial. Brooks admitted that he drank with C.H. and her sister on the night of August 16, 2014. Brooks testified that C.H. was intoxicated and passing out, so he took her upstairs to her room so she could go to bed. But he denied having sex with C.H.

¶11 After Brooks testified, the defense rested. Prior to instructing the jury, the State moved to amend the information, expanding the date range on the child molestation in the third degree charge. Brooks objected but provided no basis for his objection and did not request a continuance. The trial court granted the State’s motion to amend the information regarding the third degree child molestation charge and revised the to-convict instruction accordingly. The amended information provided a date range of "on or about or between [January 1, 2014] and [May 31, 2014]." CP at 8.

¶12 In closing argument, Brooks’ attorney conceded that the State had proved beyond a reasonable doubt that Brooks was guilty of child molestation in the third degree. Defense counsel argued that Brooks had admitted to this crime and apologized for it. Defense counsel contrasted Brooks’ admission to molesting C.H. with his denial of sexual intercourse to bolster his contention that the State had not proved the rape beyond a reasonable doubt. The jury found Brooks guilty of both third degree child rape and third degree child molestation.

¶13 Brooks appealed only the molestation conviction, arguing the trial court abused its discretion by allowing the amendment. Brooks claimed the amendment caused him to lose the opportunity to adjust his defense strategy, claiming if he had known the State would amend the date range, then he might have decided not to testify. The Court of Appeals affirmed Brooks’ conviction, finding that the trial court did not abuse its discretion in allowing the amendment to the date range. State v. Brooks , No. 50299-2-II, slip op. at 1, 2019 WL 211924 (Wash. Ct. App. Jan. 15, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2050299-2-II%20Unpublished%20Opinion.pdf. Brooks then petitioned for review, which this court granted. State v. Brooks , 193 Wash.2d 1036, 447 P.3d 544 (2019).

ANALYSIS

¶14 Brooks contends that the trial court abused its discretion in granting the State’s motion to amend the information concerning the molestation charge after both parties had rested. Specifically, he contends that such late amendment "undermined [his] trial strategy, prejudicing his rights to know the charges, to prepare and present a defense, and to decide whether to testify or remain silent." Suppl. Br. of Pet’r at 13.

¶15 This court reviews a decision to grant a motion to amend the information for abuse of discretion.

State v. Brett , 126 Wash.2d 136, 155, 892 P.2d 29 (1995) ; State v. Lamb , 175 Wash.2d 121, 130, 285 P.3d 27 (2012). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. Lamb , 175 Wash.2d at 127, 285 P.3d 27. A court’s decision is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard. Id. A court’s decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard. Id.

¶16 As required by the federal and state constitutions, the State must allege in the charging document all essential elements of a crime to inform a defendant of the charges against him and to allow for preparation of his defense. See U.S. CONST. amend. VI ; WASH. CONST. art. I, § 22 ; cf. State v. Mason , 170 Wash. App. 375, 378-79, 285 P.3d 154 (2012) (charging document is constitutionally sufficient if the information states each essential element of the crime, even if it is vague as to some other matter significant to the defense); id. at 379, 285 P.3d 154 (courts first look to the statute to determine the elements that the prosecution must prove to sustain a conviction). Here, the date of the offense is simply not an essential element of the crime charged—third degree child molestation.³ See State v. Goss , 186 Wash.2d 372, 379, 378 P.3d 154 (2016) (essential element is one whose specification is necessary to establish the very illegality of the behavior charged).

¶17 Further, court rule provides for amendment of the information. CrR 2.1(d) provides that an information may "be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced." This rule, however, "necessarily operates within the confines of article 1, section 22." State v. Pelkey , 109 Wash.2d 484, 490, 745 P.2d 854 (1987). Accordingly, this court adopted a bright-line rule in Pelkey , stating:

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. Anything else is a violation of the defendant’s article 1, section 22 right to demand the nature and cause of the accusation against him or her. Such a violation necessarily prejudices this substantial constitutional right, within the meaning of CrR 2.1(e) [ (now CrR 2.1(d) ) ].

Id. at 491, 745 P.2d 854 (emphasis added). Pelkey addressed the State’s amendment of the information to a new offense, that is, a different crime with different elements (from bribery to trading in special influence). Id. at 487, 745 P.2d 854 ; see also State v. Peterson , 133 Wash.2d 885, 893, 948 P.2d 381 (1997) ( Pelkey held "no prejudice need be shown when the amendment is to a different charge and the amendment is made after the State has rested." (emphasis added)). That is not the case here: before and after the amendment, the crime charged (third degree child molestation) and its...