This opinion was

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. SusanL.Carlson

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

V.

KENNETH CHANCE BROOKS,

Petitioner.

No. 97150-1

En Bane

Filed JAN 2 3 2020

MADSEN, J.—In this ehild 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

In 2014, C.H.' 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.

We refer to the victim, a minor, by her initials to preserve her privacy.
No. 97150-1

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.

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.

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.

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.^

^ Details of the rape are not necessary as Brooks' rape conviction is not challenged. Much of the

trial was taken up with testimony concerning forensic, DNA (deoxyribonucleic acid), and other

evidence corroborating C.H.'s testimony regarding the rape.
No. 97150-1

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.

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.

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.

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
No. 97150-1

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.

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.

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.

Brooks appealed only the molestation conviction, arguing the trial court abused its

diseretion 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 deeided 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,
No. 97150-1

slip op. at 1 (Wash. Ct. App. Jan. 15, 2019) (unpublished),

https://www.courts.wa.gOv/opinions/pdf/D2%2050299-2-

II%20Unpublished%200pinion.pdf. Brooks then petitioned for review, which this court

granted. State v. Brooks, 193 Wn.2d 1036, 447 P.3d 544 (2019).

ANALYSIS

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.

This court reviews a decision to grant a motion to amend the information for abuse

of discretion. State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995); State v. Lamb, 175

Wn.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 Wn.2d at

127. 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.

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; of. State V. Mason, 170 Wn. App. 375, 378-79, 285 P.3d 154
No. 97150-1

(2012) (charging document is constitutionally sufficient if the information states each

essential element of the erime, even if it is vague as to some other matter significant to

the defense); id. at 379 (eourts 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.^ See State

V. Goss, 186 Wn.2d 372, 379, 378 P.3d 154 (2016) (essential element is one whose

specification is necessary to establish the very illegality of the behavior eharged).

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 Wn.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

ehief 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))].

3 RCW 9A.44.089(1) provides:

A person is guilty of child molestation in the third degree when the person

has, or knowingly causes another person under the age of eighteen to have,

sexual contact with another who is at least fourteen years old but less than

sixteen years old and not married to the perpetrator and the perpetrator is at

least forty-eight months older than the victim.
No. 97150-1

Id. at 491 (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; see also State v. Peterson, 133 Wn.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 essential elements remained the same; only the

date was expanded. Accordingly, the Court of Appeals here correctly rejected Brooks'

contention that the date amendment at issue was reversible error under Pelkey. See

Brooks, No. 50299-2-II, slip op. at 7.

"Where the Pelkey rule does not apply, the defendant has the burden of

demonstrating prejudice under CrR 2.1(d)." State v. Ziegler, 138 Wn. App. 804, 809, 158

P.3d 647 (2007) (citing State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988) (plurality

opinion)). Here, because the amendment concerns only a date expansion. Brooks cannot

show the required prejudice.

Cases involving amendment of the charging date in an information have

held that the date is usually not a material element of the crime. Therefore,

amendment of the date is a matter of form rather than substance, and should

be allowed absent an alibi defense or a showing of other substantial

prejudice to the defendant.

State V. DeBolt, 61 Wn. App. 58, 61-62, 808 P.2d 794 (1991); see also State v. Goss, 189

Wn. App. 571, 576, 358 P.3d 436 (2015), aff'd, 186 Wn.2d 372 (same). In DeBolt,

which also concerned sex crimes against minors, the State moved to amend the time

periods of the two charged indecent liberties counts after the State had rested and the
No. 97150-1

defendant had testified. Division One of the Court of Appeals affirmed expansion of an

information time period from one month to four months. DeBolt, 61 Wn. App at 60.

Division One explained,

Pelkey refers to a "criminal charge" being amended. Pelkey, 109 Wn.2d at

491. Since the date here was not a material part of the "criminal charge",

this case falls outside the ambit of Pelkey. The precise date the abuse

occurred was not a critical aspect of the original information, which alleged

the act was committed during a period of time. Children often cannot

remember the exact date of an event, and in cases of sexual abuse, they may

repress memory of that date.

Id. at 62 (emphasis added) (internal quotation marks omitted). In DeBolt, as here, "the

crime charged remained the same after the amendment." Id.', see also State v. Allyn, 40

Wn. App. 27, 35, 696 P.2d 45 (1985) (where elements of the crime charged remained the

same both before and after the change of the date, such change in date is not material

where no alibi is claimed). The DeBolt court concluded that "the amendment neither

violated [defendant's] constitutional rights, nor resulted in prejudice." Id. at 63. The

only relevant difference between this case and DeBolt is that the trial court in DeBolt

granted the defendant a two-day continuance. While no continuance was granted here.

Brooks did not ask for one. See State v. Brown, 74 Wn.2d 799, 801, 447 P.2d 82 (1968)

(defendant cannot claim error from the amendment of an information unless she can

show she was prejudiced thereby; if defendant was misled or surprised by the amendment

of the information, she was entitled to move for a eontinuance to secure time to prepare

her defense, and the fact that she did not do so is persuasive of a lack of surprise and

prejudice); see also State v. Hayes, 81 Wn. App. 425, 441, 914 P.2d 788 (1996) (time is

not of the essence in sexual assault charges, and it does not become an element of an

8
No. 97150-1

offense merely because the defendant pleads an alibi defense); State v. Vangerpen, 125

Wn.2d 782, 790, 888 P.2d 1177 (1995) (convictions based on charging documents that

contain only technical defects, such as an error in the date of the crime, usually need not

be reversed); State v. Schaffer, 120 Wn.2d 616, 620, 845 P.2d 281 (1993) ('"Technical

defects not affecting the substance of the charged offense do not prejudice the defendant

and thus do not require dismissal.'" (quoting State v. Leach, 113 Wn.2d 679, 696, 782

P.2d 552 (1989))); see also State v. Pitts, 62 Wn.2d 294, 298, 382 P.2d 508 (1963)

(defendant should not escape his transgressions merely because the time of commission

cannot be fixed in precise terms); State v. Osborne, 39 Wash. 548, 551, 81 P. 1096 (1905)

(allegation of time in an information is immaterial other than it must be shown on the

face of the information that the right to prosecute for the crime charged is not barred by

the statute of limitations).

Finally, the wording of the time reference in the original information put Brooks

on notice that the molestation charge was alleged flexibly as to the timing of that

incident. As noted, the original information charged Brooks with child molestation in the

third degree "on or about or between [January 1, 2014] and [January 31, 2014]." CP at 1.

"[W]here time is not a material element of the charged crime, the language 'on or about'

is sufficient to admit proof of the act at any time within the statute of limitations, so long

as there is no defense of alibi." Hayes, 81 Wn. App. at 432. "'Where the [information]

alleges that an offense allegedly occurred 'on or about' a certain date, the defendant is

deemed to be on notice that the charge is not limited to a specific date.'" State v. Statler,

160 Wn. App. 622, 640-41, 248 P.3d 165 (2011) (alteration in original) (internal
No. 97150-1

quotation marks omitted) (quoting State v. Bergin, 214 Conn. 657, 574 A.2d 164, 173

(1990)); see also State v. Oberg, 187 Wash. 429, 432, 60 P.2d 66 (1936) ("the time

designated in the information was on or about April 3. That was sufficient to admit proof

of the act at any time within the statute of limitations, there being no defense of alibi.").''

In his supplemental brief. Brooks relies on State v. James, 108 Wn.2d 483, 739

P.2d 699 (1987), and State v. Hakimi, 124 Wn. App. 15, 98 P.3d 809 (2004), but those

cases do not assist him. In James (a pvQ-Pelkey case), this court affirmed the trial court's

granting of a pretrial motion to amend the charge to first degree murder. James is too

different to offer any useful guidance here. But this court did note that "CrR 2.1(e) [(now

CrR 2.1(d))] controls the trial court's discretion and this court's review." James, 108

Wn.2d at 486. "Under CrR 2.1(e), a trial court 'may permit any information or bill of

particulars to be amended at any time before verdict or finding if substantial rights of the

defendant are not prejudiced.' The defendant has the burden of showing specific

prejudice to a substantial right." Id. (quoting State v. Aleshire, 89 Wn.2d 67, 71, 568

P.2d 799 (1977)).

'' Amicus Washington Association of Criminal Defense Lawyers (WACDL) argues in part that

Brooks' case is "analogous to an alibi situation." Br. of WACDL as Amicus Curiae at 2. It is

not. Here, Brooks confessed to the molestation while testifying at trial. He thought it occurred

in May rather than in January, as C.H. testified. When asked if he was present in Washington in

January 2014, he testified that he could not recall. VRP at 54. "An alibi defense denies that the

defendant committed the crime." State v. Riker, 123 Wn.2d 351, 367, 869 P.2d 43 (1994); State

V. Johnson, 19 Wn. App. 200, 205, 574 P.2d 741 (1978) ('"by asserting that he was at another

place at the time when the alleged crime was committed, the defendant is denying by necessary

implication, if not expressly, the allegations set forth in the charge'"). Brooks did not allege that

he was elsewhere in January, and he admitted to the molestation. That is not an alibi defense.

10
No. 97150-1

In Hakimi, Division One held that the defendant failed to show prejudice

regarding the amendment of the information during the State's case. The court noted, in

part, that the amendment did not allege an additional count and that it concerned the same

factual scenario and, thus, the amendment did not prejudice defendant's right to defend

himself. Hakimi, 124 Wn. App. at 28. As noted, Hakimi addressed an amendment before

the State rested and is not analogous here.

Along with Pelkey, Brooks repeats in this court his citation of State v. Markle, 118

Wn.2d 424, 823 P.2d 1101 (1992), Schaffer, and Vangerpen as support. But these cases

do not assist him. As discussed above, the amendment in Pelkey concerned "a

completely different crime" and is thus distinguishable from the present case. Schaffer,

120 Wn.2d at 621 (discussing Pelkey and so noting). In Markle, this court held that the

State's midtrial amendment (at the close of the State's case) of the information from the

original charge of statutory rape to indecent liberties (a different crime with different

elements) violated defendant's Washington Constitution article I, section 22 rights, 118

Wn.2d at 431-32—^again, a different circumstance than Brooks' case.

In Schaffer, this court affirmed the trial court's grant of the State's motion

(brought before the State rested) to amend the information to bring it into conformity

with the evidence (i.e., to allege malicious mischief based on both slashing tires and

knocking down mailboxes). This court held that Pelkey did not apply, that CrR 2.1(e)

(now CrR 2.1(d)) applied and delineated the constitutional boundaries applicable to

amendments during the State's case, and that the amendment was proper. Regarding

such amendments during the State's case, the burden is on the defendant to show

11
No. 97150-1

prejudice, and "[i]f a defendant is prejudiced by an amendment, then he or she should be

able to demonstrate this fact." Schaffer, 120 Wn.2d at 623.

Finally, in Vangerpen, after the State rested, it sought to amend the information to

add an inadvertently omitted statutory element (resulting in charging a different crime

than the State intended). This court held that the Pelkey rule applied; thus, the State may

not amend the information to charge a different crime after the State has rested.

Vangerpen, 125 Wn.2d 787. That is a different circumstance than Brooks' case (i.e.,

there is no missing statutory element here). Relevant to Brooks' case, Vangerpen opined.

Convictions based on charging documents which contain only technical

defects (such as an error in the statutory citation number or the date of the

crime or the specification of a different manner of committing the crime

charged) usually need not be reversed. However, omission of an essential

statutory element cannot be considered a mere technical error.

Id. at 790 (emphasis added) (footnote omitted).

None of this helps Brooks. Instead, the above cases bolster the notion that where

Pelkey's per se prejudice rule does not apply, CrR 2.1(d) governs and the burden to show

prejudice is on the defendant. Here, while the State moved to amend after both parties

rested, the amendment sought was not to a different crime but merely to conform (i.e.,

correct a technical defect) concerning the date of the crime as confessed by defendant at

trial. In this circumstance, the court rule rather than Pelkey'?, per se prejudice rule should

apply. And, under CrR 2.1(d), Brooks cannot meet his burden to show prejudice here by

the amendment expanding time because he was on notice from the "on or about"

12
No. 97150-1

language used in the original information that the molestation incident date was not

specifically limited. Hayes, 81 Wn. App. at 432; Statler, 160 Wn. App. at 640-41.^

In this circumstance, we hold that the trial court did not abuse its discretion in

granting the State's motion to amend the information to merely expand the date range

concerning the molestation charge. Because the same charge was in place before and

after the amendment, and the trial court relied on case law that permitted such

amendment, see VRP at 84-88 (noting the trial court's reliance on Goss, DeBolt, Allyn,

and Osborne), it cannot be said that the decision to grant the amendment lay outside the

range of acceptable choices, in light of the facts and the applicable legal standard. See

Lamb, 175 Wn.2d at 127; see also Goss, 186 Wn.2d at 383 (a court abuses its discretion

only if no reasonable person would take the view adopted by the trial court).

CONCLUSION

We hold that the trial court did not abuse its discretion in granting the State's

motion to amend the information concerning the charge of third degree child molestation

after both parties rested. The amendment did not alter the substantive charge and only

expanded the time frame to conform to the defendant's confession to the molestation as

defendant testified to at trial. Accordingly, we affirm the Court of Appeals and

defendant's conviction.

^ As explained, Pelkey's per se prejudice rule does not apply here and, under the eireumstances

of this case, defendant cannot show prejudice concerning the amendment of time stated in the

information. Our decision does not foreclose an argument for prejudice stemming from an

amendment to the charging period, even if the amended period is within the statute of

limitations. Prejudice is necessarily assessed ease by case.

13
No. 97150-1

WE CONCUR:

UyCtwi-1 -Q-ff

(gtoA'Z-'\

14
State V. Brooks {Kenneth Chance), No. 97150-1

(Gordon McCloud, J., concurring)

No. 97150-1

GORDON McCLOUD, J. (concurring)—In its charging document, the State

must adequately inform the defendant of its accusation so that the defendant may

prepare a defense and may be protected against another prosecution for the same

accusation. Berger v. United States, 295 U.S. 78, 82, 55 S. Ct. 629, 79 L. Ed. 1314

(1935); see also State v. McKenzie, 184 Wash. 32, 36, 49 P.2d 1115 (1935) (citing

State V. Randall, 107 Wash. 695, 182 P. 575 (1919); City ofSeattle v. Proctor, 183

Wash. 299, 48 P.2d 241 (1935)). I agree with the majority's application of those

constitutional protections to this case.

I write separately only to emphasize the generally accepted rule that also

protects those rights: the rule that although the State is not absolutely bound by the

"on or about or between" date range listed in the information. Clerk's Papers at 1,

any deviation from that date range must be reasonable. As other jurisdictions that

have considered this question have said, the State must prove that the defendant's

conduct occurred on a date that is "reasonably near" the date range listed in the

charging document. E.g., United States v. Ross, 412 F.3d 771, 774-75 (7th Cir.
State V. Brooks {Kenneth Chance), No. 97150-1

(Gordon McCloud, J., concurring)

2005) ("The canonical formula is that 'when "on or about" language is used in an

indictment, proof of the exact date of an offense is not required as long as a date

reasonably near that named in the indictment is established.'" (quoting United

States V. Ford, 872 F.2d 1231, 1236-37 (6th Cir. 1989) and citing United States v.

Castillo, 140 F.3d 874, 885 (10th Cir. 1998); United States v. Nersesian, 824 F.2d

1294, 1323 (2d Cir. 1987))); United States v. Hinton, 222 F.3d 664, 672-73 (9th

Cir. 2000) ("It is well-settled that the government need prove only that Hinton

shipped the package 'reasonably near' the date specified in the indictment." (citing

United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir. 1997))); United States

V. Grapp, 653 F.2d 189, 195 (5th Cir. 1981) ("The prosecution, as a consequence

of the use of the 'on or about' designation, was not required to prove the exact

date; it suffices if a date reasonably near is established."); see also McBride v.

State, 2008-CT-01347-SCT, 61 So. 3d 138, 150 (Miss. 2011) (collecting cases).

Given the unique circumstances of this case, as described by the majority, I agree

that the date proved at trial is reasonably near the date range included in the

original information.

I therefore respectfully concur.
State V. Brooks {Kenneth Chance), No. 97150-1

(Gordon McCloud, J., concurring)