State v. Eaton

• Decision Date: 11 September 2008
• Docket Number: No. 78970-3.,78970-3.
• Citation: 164 Wn.2d 461,191 P.3d 1270
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Mark Kensley EATON, Petitioner.

191 P.3d 1270

164 Wn.2d 461

STATE of Washington, Respondent, v. Mark Kensley EATON, Petitioner.

No. 78970-3.

Supreme Court of Washington, En Banc.

Argued October 16, 2007.

Decided September 11, 2008.

David L. Donnan, Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Petitioner.

King County Prosecutor's Office, James Morrissey Whisman, Seattle, WA, for Respondent.

MADSEN, J.

¶ 1 Mark Eaton was charged by amended information with possession of cocaine. Following his conviction, Eaton asserted that he was convicted of a crime with which he was not charged and that his conviction violates his constitutional rights to notice and due process. Based on the record, we agree with the Court of Appeals that Eaton was tried on an amended information charging possession of cocaine. Because he was convicted of possession of cocaine, we reject Eaton's contention that he was convicted and sentenced for a crime with which he was not charged and affirm the Court of Appeals. State v. Eaton, noted at 133 Wash.App. 1023, 2006 WL 1669800 (2006).

FACTS

¶ 2 Lake Forest Park police responded to a call on December 5, 2002, that a man, later identified as Mark Eaton, was disrupting traffic. Eaton was darting in and out of heavy traffic, yelling at drivers, and throwing debris at cars. After a struggle, police arrested him and took him to the station.

¶ 3 While in his holding cell, Eaton took a plastic bag out of his pants and tried to kick it down a drain. The officers stopped him before he could do so. Inside the bag they found an off-white substance, identified as amphetamine by a field test, but later correctly identified as crack cocaine.

¶ 4 On January 22, 2004, the State filed an information charging Eaton with one count of possession of a controlled substance in violation of former RCW 69.50.401(d) (1998). Amphetamine was the charged substance. On May 3, 2004, the first day of trial, the State moved to amend the information to charge possession of cocaine. The court granted the State's motion and the defendant was arraigned on the amended charge. Although the prosecuting attorney handed the amended information to the judge, it does not appear in the record.¹ The defendant was tried on the amended complaint, but the trial ended in a jury deadlock. The State elected to retry the defendant and a case scheduling hearing was set.

¶ 5 Due to confusion, the State rearraigned the defendant at the case scheduling hearing, mistakenly relying on the original information that charged possession of amphetamine. However, the only charge laid against the defendant at that time was contained in the amended information, which charged possession of cocaine. The State did not move to amend that information.

¶ 6 On July 27, 2004, the defendant moved to dismiss. At that hearing, defense counsel noted her client had been rearraigned at the May 18, 2004 case scheduling hearing on a different charge than he had been tried on. She conceded that the rearraignment had been a mistake but expressed concern that the defendant may have been misled about the crime he was charged with committing. The trial judge agreed, ruling that the rearraignment was an error and clarified that the defendant was charged with possession of cocaine pursuant to the amended information. The judge offered the defendant a continuance of the trial if he wished one. The defendant elected to proceed to trial and was convicted of possession of cocaine.

DISCUSSION

¶ 7 This court's decision in State v. Barnes, 146 Wash.2d 74, 43 P.3d 490 (2002), resolves this case. There the defendant was charged with assault in the third degree. In a pretrial proceeding the State moved to amend the information to add a second count charging resisting arrest. The motion was granted and the defendant was arraigned on the amended information. However, the amended information was not placed in the court file. The defendant proceeded to trial and was convicted of resisting arrest. He appealed, claiming that the trial court lacked subject matter jurisdiction over the charge of resisting arrest because the amended information was not filed in the court file. The State offered only that the information had been "lost."

¶ 8 This court rejected the defendant's argument. We observed that a superior court acquires subject matter jurisdiction in a criminal case upon the filing of an information and noted that the original information had been filed with the court. Id. at 81, 43 P.3d 490. We also noted that an information may be amended "at any time before verdict or finding if substantial rights of the defendant are not prejudiced" under CrR 2.1(d). Barnes, 146 Wash.2d at 81-82, 43 P.3d 490. Considering the plain language of that rule, we concluded that a properly amended information, even though not filed in the court file, is an effective information once it is "approved by the court, accepted by Petitioner at arraignment, and used by the trial court in presenting the case to the jury." Id. at 88, 43 P.3d 490.

¶ 9 Similar to Barnes, even though the amended information in this case was not in the court file, the trial court granted the motion to amend the charge to possession of cocaine, the defendant was arraigned on the amended charge, and the trial court used the amended information in presenting the case to the jury. Although there was a "rearraignment" on the "original" information, this procedure did not resurrect the original information or result in amending the amended information back to the original charge. State v. Navone, 180 Wash. 121, 123-24, 39 P.2d 384 (1934) (once the State formally amends the information, the new information stands in lieu of the original, which is deemed quashed, abandoned, or superseded). Thus, the amended information replaced the original information and operated as the effective information upon which the defendant was tried.

¶ 10 Following a mistrial, the defendant generally need not be rearraigned at a subsequent trial. State v. Whelchel, 97 Wash.App. 813, 819, 988 P.2d 20 (1999) (rearraignment not necessary when case is remanded for new trial). While the "rearraignment" in this case could have caused confusion as defense counsel noted, it did not alter the fact that the only existing, effective information charged the defendant with possession of cocaine. Because the trial court recognized the rearraignment error, clarified that the defendant was charged with possession of cocaine pursuant to the amended information, and offered the defendant a continuance, the defendant had constitutionally adequate notice of the crime with which he was charged.

CONCLUSION

¶ 11 Eaton was tried and convicted of the charge contained in the amended information, possession of cocaine, and he does not claim to have been misled by the unnecessary "rearraignment" on an uncharged crime. We affirm his conviction.

WE CONCUR: ALEXANDER, C.J., C. JOHNSON, CHAMBERS, OWENS, FAIRHURST, JJ., and BRIDGE, J.P.T.

J.M. JOHNSON, J. (concurring).

¶ 12 I agree with the majority that we should affirm Mark Eaton's conviction, but for a different reason. I would hold that the possession statute under which he was convicted (which has since been amended) did not make the type of drug an essential element of the crime. Whether the drugs were amphetamine or cocaine, as identified at different stages, made no difference to the "possession" charge. If a surplus allegation varies from information to conviction, the variance requires reversal only if the defendant cannot adequately prepare for trial or faces double jeopardy, neither of which Eaton can establish.

¶ 13 "In all criminal prosecutions, the accused shall enjoy the right to ... be informed of the nature and cause of the accusation...." U.S. CONST. amend. VI.¹ "In criminal prosecutions the accused shall have the right to ... demand the nature and cause of the accusation against him, [and] to have a copy thereof...." Wash. CONST. art. I, § 22.² A charging document is proper if it includes all the essential elements of the crime charged. State v. Kjorsvik, 117 Wash.2d 93, 101-02, 812 P.2d 86 (1991). The "essential elements" of a crime are "[t]he constituent parts of a crime ... that the prosecution must prove to sustain a conviction." BLACK'S LAW DICTIONARY 559 (8th ed.2004). A crime's essential elements, of course, depend on the criminal statute.

¶ 14 Before turning to the particular statute here, two of our holdings are useful. First, in State v. Miller, 71 Wash.2d 143, 426 P.2d 986 (1967), the State charged the defendant with two counts of assault with a deadly weapon after he punched a police officer, took his gun, and pointed the gun at him. The information alleged he assaulted the officer "`with a weapon, to wit: a .38 calibre pistol....'" Id. at 144 n. 2, 426 P.2d 986. The defendant argued his conviction was improper because the State did not prove that the pistol was, in fact, a .38. Id. at 145, 426 P.2d 986.

¶ 15 We rejected his argument. Id. at 146, 426 P.2d 986. We held the type of gun was a surplus fact, was not an essential element of the crime, and did not have to be proved. Id. As long as the State proved the defendant had a gun, it did not need to prove which kind, even though it alleged it in the information. Id.

¶ 16 In State v. Goodman, 150 Wash.2d 774, 779, 83 P.3d 410 (2004), prosecutors charged the defendant with possessing "meth" with the intent to deliver, meaning methamphetamine. The defendant did not challenge the information at trial but did so on appeal, claiming "meth" could be any number of illegal drugs. Id. at 778, 83 P.3d 410. We held the information charging intent to deliver must be specific only where the intent to deliver statute gave different punishments for different drugs. Id. It is constitutionally required that any fact increasing the statutory maximum be alleged and proved to a jury as an essential element of the crime. Id. "[T]he identity of the controlled substance is an...