State v. Vangerpen, 60924-1

CourtUnited States State Supreme Court of Washington
Citation125 Wn.2d 782,888 P.2d 1177
Decision Date09 February 1995
Docket NumberNo. 60924-1,60924-1
PartiesThe STATE of Washington, Petitioner, v. Shane Michael VANGERPEN, Respondent.
Norm Maleng, King County Pros. Atty., Peter Goldman, Deputy Pros. Atty., Seattle, for petitioner

Seattle-King County Public Defender Ass'n, Jeff Ellis, Seattle, for respondent.

JAMES A. ANDERSEN, Justice Pro Tem. *


This case involves the validity of an amendment to a criminal charging document. The State had intended to charge the defendant, Shane Michael Vangerpen, with attempted murder in the first degree. The criminal charge arose out of an incident which occurred on July 20, 1991. At 2:15 a.m., Officer Drew Nielsen, a Bothell police officer, stopped the defendant for speeding. After approaching the car, the officer smelled alcohol and asked the defendant if he had been drinking. The officer testified that he saw defendant's left hand moving quickly toward the inside of his right leg where the officer thought he saw the butt of a gun. The officer reached into the car and grabbed the gun from underneath defendant's leg. The officer testified that the gun was a .32 caliber revolver and that it was loaded and cocked when he grabbed it.

Officer Nielsen radioed for back-up and officers Stuveland and Lawson arrived. All three officers testified that just after the suspect exited the car, they heard the defendant say that he should have killed the cop when he had the chance. Officer Nielsen testified that sometime later, after he had advised the defendant of his Miranda rights, the defendant stated that he had been going to kill the officer with the gun if the officer talked to him about drinking and driving.

The charging document, an information, stated that the defendant was charged with "attempted murder in the first degree" and the information cited to the statutes defining that crime, RCW 9A.32.030(1)(a) and RCW 9A.28.020. However, the prosecutor inadvertently omitted the statutory element of premeditation and therefore, although the charging document purported to charge "attempted murder in the first degree", the information failed to contain all the essential elements of that crime.

The defendant's trial commenced on October 22, 1991 and concluded on October 24, 1991. Immediately after the State rested its case, the defense made a motion to dismiss based upon lack of evidence of premeditation. The trial court denied the motion finding there was sufficient evidence of premeditation for the issue to go to the jury. The defense then rested without presenting any witnesses. The defense then moved to dismiss based upon the insufficiency of the Information because it failed to allege the element of premeditation.

The prosecuting attorney agreed that premeditation should have been alleged in the charging document and moved to amend the Information to include that element. The defense pointed out that under our Pelkey case, 1 the State was prohibited from amending an information after the State had rested its case. Nonetheless, the trial court went ahead and granted the State's motion to amend the Information.

The trial court instructed the jury on the elements of the crime of attempted murder in the first degree, and on the lesser included offense of attempted murder in the second degree and on attempted assault in the third degree. The jury found the defendant guilty of the crime of attempted murder in the first degree.

The Court of Appeals found the trial court's decision to allow the State to amend the information to add the element of premeditation to be error. 2 The Court of Appeals held that the amendment of an information to charge a greater crime after the State had rested its case is per se prejudicial error under this court's Pelkey decision. The Court of Appeals, relying on cases from this Court, thereupon dismissed the charge without prejudice to the State's right to refile the charges.

We are here presented with three issues.


ISSUE ONE. Should the State be permitted to amend the charging document after the State has rested its case in order to add an essential element of the crime which was inadvertently omitted from the document? And in that connection, does the defendant have to show prejudice in order to obtain reversal of a conviction based on a constitutionally insufficient charging document?

ISSUE TWO. When an appellate court's reversal of a conviction is based upon an improper amendment of a charging document, should the charge be dismissed without prejudice to the State's right to refile charges or should this court convict the defendant of a lesser crime than was returned in the jury verdict?

ISSUE THREE. Did the trial court err in admitting the defendant's incriminating statements because there was insufficient evidence of the corpus delicti of the crime to corroborate these statements?



CONCLUSION. The State may not amend a criminal charging document to charge a different crime after the State has rested its case in chief unless the amended charge is a lesser degree of the same charge or a lesser included offense.

U.S. Const. amend. 6 provides in part: "In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation; ..." Washington Const. art. 1, § 22 (amend. 10) provides that "[i]n criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him". Thus, an accused must be informed of the criminal charge he or she is to meet at trial and cannot be tried for an offense which has not been charged. 3

We have repeatedly and recently insisted that a charging document is constitutionally adequate only if all essential elements of a crime, statutory and non-statutory, are included in the document so as to apprise the accused of the charges against him or her and to allow the defendant to prepare a defense. 4 This "essential elements rule" has long been settled law in Washington 5 and is based on the federal and state constitutions and on court rule. 6 Merely citing to the proper statute and naming the offense is insufficient to charge a crime unless the name of the offense apprises the defendant of all of the essential elements of the crime. 7 Error in a numerical statutory citation is not reversible error unless it prejudiced the accused. 8

The instructions in this case properly instructed the jury on all the elements of the crime of attempted murder in the first degree. However, proper jury instructions cannot cure a defective information. 9 Jury instructions and charging documents serve different functions.

Although this court has recently liberalized the standard of review for charging documents which are first challenged on appeal, 10 no decision has questioned the constitutionally mandated rule that all essential elements of a charged crime must be included in the charging document. 11 In this case, the sufficiency of the Information was challenged prior to verdict and therefore the liberalized standard of review announced in State v. Kjorsvik, 117 Wash.2d 93, 812 P.2d 86 (1991) does not apply. 12

With the "essential elements rule" in mind, the issue in the present case is whether the information was amended too late in the trial process. The amendment here occurred after both the State and the defendant had rested their cases. The amendment of informations is controlled by former CrR 2.1(e) 13 and cases interpreting that rule. Former CrR 2.1(e) states:

The court may permit any information ... to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced.

In State v. Pelkey, 109 Wash.2d 484, 491, 745 P.2d 854 (1987), this court held that an information may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same crime or a lesser included offense. Any other amendment is deemed to be a violation of the defendant's article 1, § 22 (amend. 10) right to demand the nature and cause of the accusation against him or her. The Pelkey majority stated that such a violation necessarily prejudices this substantial constitutional right within the meaning of CrR 2.1(e). This court therefore held that the trial court committed reversible error when it allowed a midtrial amendment from the crime of bribery to the crime of trading in special influence.

In Pelkey, we pointed out that the amendment of an information to charge a different crime after trial has begun is much more likely to cause prejudice to a defendant than is a pre-trial amendment which should be liberally granted. In Pelkey, we explained that all the pretrial motions, voir dire of the jury, opening argument, questioning and cross examination of witnesses are based on the precise nature of the charge alleged in the information.

In State v. Markle, 118 Wash.2d 424, 823 P.2d 1101 (1992), the trial court had allowed an amendment of the charge from the crime of statutory rape to indecent liberties after the State had rested its case. The State acknowledged that in Pelkey this court held it is automatic reversible error for a trial court to allow the midtrial amendment of an information after the State has rested where the amended charge is a crime that is neither a lesser included offense nor an offense of lesser degree. In Markle, the State asked us to overrule Pelkey to the extent of that holding. We unanimously declined to overrule Pelkey and held that the midtrial amendment was, under Pelkey, "reversible error per se even without a defense showing of prejudice." Markle, 118 Wash.2d at 437, 823 P.2d 1101.

In State v. Schaffer, 120 Wash.2d 616, 845 P.2d 281 (1993), we declined to find any per se rule prohibiting amendments during the presentation of the State's case. We explained in Schaffer that Pelkey only prohibits amendments after the State has...

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