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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

CHAD CHENOWETH, Appellant No. 71028-1-1 DIVISION ONE

UNPUBLISHED OPINION FILED: February 2, 2015 Spearman, C.J.

— Chad Chenoweth was charged with second and third degree child rape and first degree incest for seven alleged incidents involving his daughter, with 

### two of the incidents occurring before she turned fourteen. Attrial, the daughter testified 

### about only six incidents and indicated they all took place after her fourteenth birthday. At the close ofthe evidence the State amended the information to conform to the 

### testimony, dropping two of the charges and charging Chenoweth with lesser offenses based on the daughter's age. Chenoweth was convicted on all counts. He appeals, 

### claiming that the convictions for the amended charges violated double jeopardy and/or due process. He also claims that the "to convict" instructions required the State to prove two acts foreach charged offense, which itfailed to do, and that the trial court should have considered the rape and incest counts to be the same criminalconduct for sentencing purposes. Finding no error, we affirm.No. 71028-1-1/2

FACTS On May 4, 2012, Chad Chenoweth was charged with fourteen counts of rape and incest, for incidents involving his daughter L.C. occurring between July 2008 and July 2010. The original charges were as follows: • two counts ofrape of a child in the second degree on or about and between July 24, 2008, and July 24, 2009;



### • one count of rape of a child in the second degree, on or about and 

### between July 24,2009, and July 24, 2010;1 • two counts of incest inthe first degree on or about and between July 24, 2008, and July 24, 2009; • five counts of incest inthe first degree on or about and between 

### July 24, 2009, and July 24, 2010; and



### • four counts of rape of a child in the third degree on or about and between July 24, 2009, and July 24, 2010. 

### The first two counts ofrape ofa child in thesecond degreeresulted from two of 

### the incidents alleged to have occurred before the daughterturned fourteen years old. At 

### trial on April 23, 2013, the daughtertestified that only six incidents had taken place, and 

## all happened after herfourteenth birthday. The State therefore soughtto amend the information to conform to the testimony. 

### The parties agreed to rest before thejury, noting thatthe State had reserved its 

## rightto amend the information afterthe trial courtheard Chenoweth's motion to dismiss. Chenoweth moved todismiss Counts l-IV, thetwo counts of rape ofa child in the 

## second degree and two counts ofincest in the first degree based on incidents alleged to

1This count should have beenfor rape ofa child in thethird degree. The Statepointed outin its 

### briefthatthe highercharge appears to have been ascrivener's error. The alleged victim was fourteen 

### years old during thetimeframe indicated and Chenoweth could onlyhavebeen chargedwith rapeofa child in the third degree for the conduct.No. 71028-1-1/3 have occurred before L.C.'s fourteenth birthday. The trial court indicated that it would dismiss those counts because of the timing, but that itwould allow the State to amend the charges to reflect the different charging period. The trial court's ruling indicating it would dismiss the counts was only oral, and not reduced to writing. Chenoweth also moved to dismiss one count of rape in the third degree and incest in the first degree because L.C. testified to only six acts. The State agreed that the testimony only supported six incidents and indicated that it would "move to dismiss, or make part of an amendment to the information by dropping a count." Verbatim Report of Proceedings (VRP) (04/24/13) at 137:5-6. The State filed an amended information on April 25, 2013, 

### and sought to arraign Chenoweth on the amended information at thattime.2 Therevised charges were explained to Chenoweth on the record and the court indicated that it would explain the amended information and the revised counts to the jury. The amended information reduced the counts to twelve total, consisting of six 

### counts of rape of a child in the third degree and six counts of incest in the first degree. 

### All were alleged to have occurred on or about and between July 24, 2009, and July 24, 2010, and in acts separate and distinct from any other charge. 

### The jurywas given instructions that included the following: Instructions 9, 11, 13, 15, 17, and 19: To convict the defendant of the crime of rape of a child in 

### the thirddegree as charged in count [1, 3, 5, 7, 9, and 11], each of the following elements of the crime must be proved beyond a reasonable doubt: 

### (1) That on or about July 24, 2009 and July 24, 2010, the defendant engaged in sexual intercourse with L.C; 2Based on the State's understanding that the parties had agreed to amend the information, itdid notfile a formal motion to amend and Chenoweth did not object to the amended information at that time.No. 71028-1-1/4

Instructions 10, 12, 14, 16, 18, and 20: To convict the defendant of the crime of incest in the first degree as charged in count [2, 4, 6, 8, 10, and 12], each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about July 24, 2009 and July 24, 2010, the defendant engaged in sexual intercourse with L.C; Clerk's Papers (CP) at 135-148. Thejury returned verdicts finding Chenoweth guilty of
all counts. On July 10, 2013, the trial court heard and denied Chenoweth's motions to arrest 

### judgment. On October 11, 2013, the case proceeded to sentencing. Chenoweth argued that the counts ofrape and incest should have been considered the same criminal 

### conduct forsentencing purposes because they were based on the same incident. The trial court disagreed and found that the counts were to be punished separately under State v. Bobenhouse, 166 Wn.2d 881, 897, 214 P.3d 907 (2009). The trial court sentenced Chenoweth to 102 months on the charges of incest in the first degree and 60 

### months on the charges of rape of a child in the thirddegree. Chenoweth appeals. DISCUSSION 

### Chenoweth argues that the trial courtviolated double jeopardy when it dismissed Counts l-IV forinsufficiency of evidence but later allowed the State to amend these 

### counts. Chenoweth argues the court's oralruling was a final order and that the State 

### was required to seek reconsideration in order to amend the charges. The State contends that the trial court's dismissal was prospective only with the understandingNo. 71028-1-1/5
that the State would be allowed to amend the information after the trial court ruled on Chenoweth's motion to dismiss. 

### The constitutional guaranty against double jeopardy protects a defendant against multiple punishments for the same offense. U.S. Const. Amend. V; Wash. Const, art. I, § 9; State v. Mutch. 171 Wn.2d 646, 661, 254 P.3d 803 (2011). A doublejeopardy claim is of constitutional proportions and may be raised for the first time on appeal. State v. Land. 172 Wn. App. 593. 599. 295 P.3d 782, review denied. 177Wn.2d 1016, 304 P.3d 114 (2013). We review the issue of double jeopardy de novo. City ofAuburn v. Hedlund, 137 Wn. App. 494, 503, 155 P.3d 149 (2007). An order of dismissal for insufficiency of evidence is the legal equivalent of an acquittal, and an appeal or retrial would violate double jeopardy. State v. Bundv, 21 Wn. App. 697, 702, 587 P.2d 562 (1978); State v. Matuszewski, 30 Wn. App. 714, 716, 637 P.2d 994 (1981). Protections against doublejeopardy will attach, however, only ifa 

### court's ruling isfinal. State v. Collins, 112Wn.2d 303, 308, 771 P.2d 350 (1989)3 "[A] ruling is final only after it is signed by the trialjudge in the journal entry or is issued in formal court orders." |g\, (citing State v. Aleshire, 89 Wn.2d 67, 70, 568 P.2d 799 

### (1977)). The trial court's oral indication that itwould dismiss the original charges against Chenoweth had no final or binding effect. Doublejeopardy issues did not arise because there was no order or final ruling dismissing the charges.

3Chenoweth argues that the trial courtshould haveconsidered this court'sdecision in Hedlund, 137Wn. App. at 494, claiming that itmodifies the Collins rule, butfails to indicate howHedlund applies to his case. id. Hedlund is distinguishable from bothCollins and from this case, because in that case the City filed a writ ofreview to the superiorcourt, presenting the trial court's ruling as final and requesting review. Hedlund, 137 Wn. App. at 506.No. 71028-1-1/6 Chenoweth argues that the trialjudge violated his constitutional due process rights by allowing the State to amend the information after ithad clearly rested. The State argues that all parties understood that the State was resting provisionally and that it had permission to amend the charges to conform to the testimony. A trial court's decision to allow the State to amend the charge is reviewed for an abuse of discretion. State v. Haner, 95 Wn.2d 858, 864, 631 P.2d 381 (1981). It is fundamental that an accused must be informed ofthe charge he is to meet at trial and cannot be tried for an offense not charged. State v. Carr, 97 Wn.2d 436, 439, 645 P.2d 1098 (1982); State v. Lutman, 26 Wn. App. 766, 767, 614 P.2d 224 (1980). Under the criminal court rules, a trial court may allow the amendment ofthe information at any time before the verdict as long as the "substantial rights ofthe defendant are not 

### prejudiced." CrR2.1(d). While the rule permits liberal amendment, it is tempered by article 1, section 22 of the Washington Constitution which requires that the accused be 

### adequately informed ofthe charge to be met at trial. State v. Pelkev, 109Wn.2d 484, 487, 745 P.2d 854 (1987). 

### Here, the record demonstrates that the State had been permitted to rest before 

### thejury only; there are multiple instances during the trial where the State indicated that it would be amending the charges and would notformally rest. The trial court granted 

### the request toreserve the right toamend andChenoweth did not object.4 Theparties understood that the State had preserved the right to amend the charges. Chenoweth received sufficient notice ofthe nature and cause ofthe amended charges. The trial court's decision to allow amendment ofthe charges was well within its discretion.
4Regardless ofwhether Chenoweth objected attrial, doublejeopardy is a constitutional matter that may beraised for the first time on appeal. Statev. Bobic, 140Wn.2d 250, 257, 996 P.2d 610 (2000).No. 71028-1-1/7 

### Chenoweth argues that his convictions must be overturned because the jury 

### instructions proposed by the State required two violations for each of the counts, and those instructions became the law ofthe case. Thejury instructions for each count 

### stated, "(1) [t]hat on or aboutJuly 24, 2009 andJuly 24, 2010, the defendant engaged in sexual intercourse with L.C...." CP at 135-148. Chenoweth argues that the State failed 

### toprove that separateviolations occurred on each ofthetwo dates. The State argues that while the instructions could have been more precise, they sufficed to define the 

### period oftime for thejury toconsider. The State also argues that any error in the instructions was harmless; based on the information, directions, and evidence 

### presented attrial no reasonablejury could have considered thatthe State had to prove

two offenses. 

### We reviewjury instructions denovo in the context ofthe instructions as awhole. State v. Jackman, 156Wn.2d 736, 743, 132 P.3d 136 (2006). Jury instructions must 

### make the relevant legal standard manifestly apparentto the averagejuror. State v. Borsheim, 140Wn. App. 357, 366, 165 P.3d 417 (2007). 

### Chenoweth relies on State v. Hickman, 135Wn.2d 97, 954P.2d 900 (1998), to 

## support his argument. In that case, the State agreed tojury instructions thatincluded venue, and then failed to prove that additional element. \±at 101. The "to convict" instructions in Hickman listed "[t]hat the act occurred inSnohomish County, 

## Washington," as aseparately numbered, additional element ofthe crime to be proved 

## beyond areasonable doubt. Id The instructions in Hickman are distinguishablefrom the instructions in this case. Here, thecharging period was poorly articulated buttheNo. 71028-1-1/8 

### phrasing served to indicate a period oftimeduring which the incidents were alleged to have occurred. 

### Furthermore, the presentation ofevidence and argument at trial can reduce any 

### possibility thatinstructions will be misconstrued. See Statev. Corbett, 158 Wn. App. 576, 592-3, 242 P.3d 52 (2010) (totality ofinstructions, evidence, and arguments made 

### it clearthat thejury had tofind separate anddistinct actsfor each oftheguilty verdicts). Here, nothing in theway the case wastried, thetestimony presented, orthejury 

### instructed, suggested that thejurors were required tofind two separate actsfor each count. Both parties emphasized that there were six discrete incidents, onefor each count, which occurred after thedaughter's fourteenth birthday, July 24, 2009. In fact, Chenoweth's counsel told thejury specifically that the State had toprove incest 

### occurred during the charging period represented by the two dates. He argued in closing that "the state hasto prove that

- the witness, that during this charging period, that is to 

## say, you know, when she was - actually, when she was fourteen, between July 24th, 2009, and July 24th, 2010...." VRP (4/26/13) at51. Based on a review ofthejury instructions, the evidence presented attrial, and the closing arguments, any reasonable 

## jurywould have known that it had to find thatonly one distinct actoccurred between July 24, 2009 through July 24, 2010, for each count ofrape and incest. Chenoweth claims that the convictions for incest and rape should have been 

### considered the same criminal conduct and counted as a single crime.5 He argues that

5Both the State and the trial court noted that even ifthecourthad considered rape and incestto 

### be the same criminal conductin this case, Chenoweth's standard range would not be affected. Because a 

### priororothercurrent sex offense scores athree, undereithercalculation, Chenoweth's OffenderScore exceeds nine, the maximum offender score available. Both offenses are also seriousness level VI. Thus, hissentencing range is77-102 months in anyevent.
8No. 71028-1-1/9 the separate counts for incest and rape involved the same acts, the same victim, and occurred at the same time and place, and the case law supports this notion. Determinations of same criminal conduct for sentencing purposes are reviewed for abuse of discretion or misapplication of law. State v. Graciano, 176Wn.2d531, 535, 

### 295 P.3d 219 (2013). In Bobenhouse, 166 Wn.2d at 897, the Washington Supreme Court held that the legislative intent to punish rape and incest as separate offenses, 

### even though committed by a single act, extends to the same criminal conduct analysis 

### for the purposes ofsentencing.6 Wefind no errorin the trial court'sconsideration ofthe two offenses as separate and its sentencing ofChenoweth accordingly.
Affirmed.

WE CONCUR: 

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6Chenoweth misinterprets Bobenhouse. claiming thatthe Supreme Courtdeclined to find thatthe 

### counts offirst degree rape and first degree incestwere notthe same criminal conduct, even though they arosefrom thesameacts. This isincorrect. Chenoweth disregards thesalient portion ofthe Bobenhouse decision and focuses only on the alternative harmless error analysis.