People v. James Willard Washam, III , 413 P.3d 1261 ( 2018 )

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ADVANCE SHEET HEADNOTE
March 19, 2018
2018 CO 19No. 15SC469, People v. Washam—Crim. P. 7(e)—Time-allegation Amendments
In this case, the supreme court considers whether an amendment to an
information narrowing the date range after trial began was permissible under Crim. P.
7(e). To do so, as required under Rule 7(e) this court analyzes whether the amendment
was one of form or substance and whether it prejudiced the defendant’s substantial
rights. Because the amendment simply narrowed the date range in the information and
did not prejudice the defendant’s substantial rights, this court concludes the
amendment was one of form and was permissible after trial began. Hence, the trial
court did not abuse its discretion in permitting the amendment to the information.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2017 CO 19Supreme Court Case No. 15SC469
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA758
Petitioner:
The People of the State of Colorado,
v.
Respondent:
James Willard Washam, III.
Judgment Reversed
en banc
March 19, 2018
Attorneys for Petitioner:
Cynthia H. Coffman, Attorney General
Kevin E. McReynolds, Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Springer and Steinberg P.C.
Michael P. Zwiebel
Denver, Colorado
JUSTICE BOATRIGHT delivered the Opinion of the Court.
2
¶1 Prosecutors charged James Willard Washam, III by information with twelve
counts of sexual assault on a child. In the information, a portion of the charged date
range fell outside the statute of limitations. After trial began, the prosecution
successfully moved to amend the information, narrowing the date range so that it fell
completely within the statute of limitations. Ultimately, Washam was convicted on all
twelve counts. He appealed, arguing that under Crim. P. 7(e), the amendment to the
date range was a substantive amendment, and thus the trial court abused its discretion
in permitting the amendment after the trial began. A majority of a division of the court
of appeals agreed, vacating Washam’s convictions and ordering the charges against him
to be dismissed with prejudice.
¶2 The People petitioned this court for review. We granted certiorari1 and now
conclude that because the amendment simply narrowed the date range in the
information—and thereby did not add an essential element to the offense or raise issues
of inadequate notice—the amendment to the information was one of form, not
substance. We also conclude that because the form amendment did not prejudice
Washam’s substantial rights, the trial court did not abuse its discretion in permitting the
amendment after trial began. Hence, we reverse the judgment of the court of appeals
1 We granted certiorari to review the following issue:
1. Whether the court of appeals erred by creating a statute of limitations
exception to this court’s Crim. P. 7(e) jurisprudence—effectively
designating any trial amendment of the date of an offense an
impermissible “substantive” amendment.
3
and remand to that court for consideration of the remaining issues raised but
unresolved on appeal.
I. Facts and Procedural History
¶3 Washam and the victim, M.L., lived across the street from each other. In 1994,
when M.L. was twelve and Washam was twenty-five, Washam began to subject M.L. to
regular sexual contact.2 This sexual contact continued until 2000. M.L. reported
Washam’s conduct to law enforcement in September 2006.
¶4 In November 2007, prosecutors charged Washam by information with numerous
crimes, including twelve counts of sexual assault on a child under section 18-3-405(1),
C.R.S. (2007). This statute criminalizes sexual contact with a victim who is less than
fifteen years of age when the actor is at least four years older than the victim. Because
the General Assembly amended this statute in 2006, see ch. 119, sec. 1, § 16-5-401(1.5)(a),
2006 Colo. Sess. Laws 410, 411,3 and because Washam was charged in 2007, there are
two applicable statutes of limitations that apply to the charges against Washam under
section 18-3-405(1): one for offenses committed before July 1, 1996, and another for
offenses committed on or after July 1, 1996.
2 “‘Sexual contact’ means the knowing touching of the victim’s intimate parts by the
actor, or of the actor’s intimate parts by the victim, or the knowing touching of the
clothing covering the immediate area of the victim’s or actor’s intimate parts if that
sexual contact is for the purposes of sexual arousal, gratification, or abuse.”
§ 18-3-401(4), C.R.S. (2007). We cite to the 2007 Colorado Revised Statutes because
Washam was charged in 2007, and the statutes of limitations we discuss relate to those
applicable at that time.
3 As part of that amendment, the General Assembly moved the relevant portion
discussing the statute of limitations to section 16-5-401.
4
¶5 For offenses committed before July 1, 1996, the statute of limitations is ten years
from the date of the assault.4 Accordingly, because the prosecution did not charge
Washam until November 2007—more than ten years after any date prior to July 1,
1996—any offenses he committed prior to July 1, 1996, would be barred. For offenses
committed on or after July 1, 1996, there is no limit on the statute of limitations. See
§ 16-5-401(1.5)(a), C.R.S (2007). As a result of these two statutes of limitations, only
sexual conduct that occurred between July 1, 1996, and April 4, 1997 (the day before
M.L.’s fifteenth birthday), would constitute prosecutable charges under section
18-3-405(1).
¶6 Navigating these statutes of limitations and their triggering dates proved
difficult for the prosecution. The information initially alleged dates between January 1,
1994, and April 5, 1997, and thus included dates before July 1, 1996, that were time-
barred. By the time jury selection began, the prosecution had amended its allegations
regarding the dates of the offenses three times. Despite these amendments, at the time
trial began, the dates alleged were still defective; the information alleged a date range
between March 21, 1996, and April 4, 1997, for all twelve counts. Because this date
range included dates before July 1, 1996, it was partly outside the statute of limitations.
4 This statute of limitations is found in section 18-3-411(2), C.R.S. (2001). Though the
statute of limitations period was amended in 2002 to be ten years from the victim’s
eighteenth birthday, see ch. 288, sec. 2, § 18-3-411(2)(b), 2002 Colo. Sess. Laws 1127,
1128, we ruled in People v. Summers, 208 P.3d 251, 259 (Colo. 2009), that the change
was prospective only, meaning that the statute of limitations for offenses that occurred
prior to July 1, 1996, remained ten years from the date of the offense.
5
¶7 After the jury was sworn,5 Washam moved to dismiss the sexual-assault-on-a-
child counts for lack of jurisdiction. He pointed out that the March 21, 1996 date at the
front end of the date range in the information fell outside the applicable statute of
limitations. Because all twelve counts alleged the same defective date range, Washam
argued that the trial court lacked jurisdiction over all twelve charges. In response,
before delivering its opening statement, the prosecution successfully moved to once
more amend the information under Rule 7(e) to allege dates that were within the statute
of limitations. Specifically, this final amendment narrowed the range of dates in the
information by narrowing the front end of the range from March 21, 1996, to July 1,
1996. This date range was no longer defective: The timeframe was not time-barred by
the applicable statute of limitations, and M.L. was fourteen years old between these
dates.
¶8 The jury ultimately found Washam guilty on all counts.6 Washam appealed.7 A
majority of the division below vacated Washam’s convictions. The majority noted that
5And thus, after jeopardy attached. See People v. Porter, 2015 CO 34, ¶ 9, 348 P.3d 922,
924.
6 In addition to the twelve counts of sexual assault on a child, Washam was also
convicted of one count of second-degree sexual assault. Because only the sexual-
assault-on-a-child charges are pertinent here, we do not discuss the second-degree
sexual assault conviction further.
7 Initially, Washam was sentenced to a twenty-six year aggregate term of incarceration.
While Washam’s appeal was pending, the court of appeals held that convictions
obtained on an information alleging time-barred charges must be vacated, based on
similar facts to those here. People v. Storm, No. 09CA2782, slip op. at 1 (Colo. App. Oct.
10, 2013). Washam consequently moved for and obtained a limited remand to re-
litigate this issue. On remand, the trial court concluded that there was a “reasonable
probability” that Washam’s convictions would be vacated on appeal in light of Storm.
6
it was undisputed that March 21, 1996—the date on the front end of the range in the
information when the trial began—fell outside the applicable statute of limitations,
meaning Washam’s appeal turned on “whether an information that charges a date
range partly within and partly outside of the statute of limitations is valid.”
People v. Washam, No. 13CA758, slip op. at 12 (Colo. App. May 7, 2015).
¶9 The majority concluded that our opinion in Bustamante v. District Court, 329
P.2d 1013 (Colo. 1958), abrogated on other grounds by Cty. Court v. Ruth, 575 P.2d 1(Colo. 1977), mandated that Washam’s convictions be vacated because trial courts lack
jurisdiction over charges where the information alleges dates outside the governing
statute of limitations. Washam, slip. op. at 12. The majority further concluded that the
prosecution’s final amendment was impermissible because an amendment to cure a
time-bar defect is substantive and therefore cannot be made under Rule 7(e) after trial
has begun. Id. at 16. As a result, the majority vacated Washam’s convictions for sexual
assault on a child and ordered the trial court to dismiss those charges with prejudice.
Id. at 33.
¶10 The partial dissent disagreed with the majority’s reading of Bustamante and its
progeny. Id. at 34–42 (Navarro, J., concurring in part and dissenting in part). Though
the dissent acknowledged that Bustamante denies jurisdiction to trial courts over
charges alleged to have occurred outside the statute of limitations period, it concluded
that Bustamante did not address the issue of amending time-barred charges and thus
As a result, the trial court modified a portion of Washam’s sentence, effectively
allowing him to begin probation immediately.
7
was not controlling. Id. at 37. Rather, it read the cases following Bustamante and the
adoption of Rule 7(e) to have shaped a policy favoring non-prejudicial amendments
over dismissal of charges for mere technical defects. See id. at 37–42. Applying this
reading of the law, the dissent concluded that the amendment here was one of form
rather than substance and that it did not prejudice Washam, meaning it was permissible
under Rule 7(e) even if made during trial. Id. at 47–48. Given these conclusions, the
dissent would have affirmed the trial court’s order permitting the final amendment. Id.
at 52–53.
¶11 The People appealed, and we granted certiorari.
II. Standard of Review
¶12 In arguing that the original information was substantively defective, Washam
raises a jurisdictional challenge. See People v. Williams, 984 P.2d 56, 63 (Colo. 1999)
(“[A] defect of substance fails to invoke the jurisdiction of the court.”). When the facts
of a jurisdictional challenge are undisputed and the question presented is solely one of
law, we review the challenge de novo. Springer v. City & Cty. of Denver, 13 P.3d 794,
798 (Colo. 2000).
¶13 Conversely, we review the trial court’s decision to allow the prosecution to
amend an information for an abuse of discretion. People v. Moody, 674 P.2d 366, 369
(Colo. 1984). A trial court abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair. Nicholls v. People, 2017 CO 71, ¶ 56, 396 P.3d 675, 687.
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III. Law and Application
¶14 An information is a charging document signed by the prosecutor that names the
defendant and the offense charged. Williams, 984 P.2d at 59–60. An information may
be defective in either form or substance. It is defective in substance if it fails to charge
an essential element of the offense. See Esquivel-Castillo v. People, 2016 CO 7, ¶ 11, 364
P.3d 885, 888; Williams, 984 P.2d at 63. Such a defect fails to invoke the jurisdiction of
the court. Williams, 984 P.2d at 63. But when the information “adequately advises a
defendant of the charges against him,” any defect in the information is one of form
rather than substance. See Cervantes v. People, 715 P.2d 783, 786 (Colo. 1986).
¶15 Both types of defect may be cured by timely amendment. See id. Rule 7(e)
governs the nature and timing of such amendments. It distinguishes between
amendments of form and amendments of substance and establishes when each type of
amendment may occur:
The court may permit an information to be amended as to form or
substance at any time prior to trial; the court may permit it to be amended
as to form at any time before the verdict or finding if no additional or
different offense is charged and if substantial rights of the defendant are
not prejudiced.
Crim. P. 7(e).
¶16 In this instance, because the amendment in question occurred after trial began
(but before the verdict), it would only be permissible if it (1) was one of form, (2) did not
charge an additional or different offense, and (3) did not prejudice Washam’s
substantial rights. See id. Thus, we first determine whether the amendment was one of
form or substance. Because the amendment simply narrowed the date range in the
9
information—and thereby did not add an essential element or raise issues of inadequate
notice—we conclude that it was one of form. We then review the trial court’s decision
to permit the form amendment for an abuse of discretion. Because the amendment did
not charge an additional or different offense and did not prejudice Washam’s
substantial rights, we conclude that the amendment was permissible, meaning the trial
court did not abuse its discretion in permitting the amendment after trial began.
A. The Amendment Was One of Form
¶17 Washam argues that an information must allege, as an essential element, that the
crime took place at a time within the applicable statute of limitations. Based on this
principle, he argues that the amendment changing the date range after trial began was
an impermissible substantive amendment. Accordingly, we first address whether the
amendment here added an essential element of the offense that the information initially
lacked; then, we discuss whether the information prior to the amendment still provided
Washam adequate notice.
1. The Amendment Did Not Add an Essential Element of the Offense
¶18 Washam points to this court’s precedent—namely, Bustamante and Moody—to
support his argument that a time allegation is an essential element and that the
amendment changing the time allegation here was therefore substantive.
¶19 In Bustamante, the defendant moved to quash his indictment prior to trial,
asserting that the statute of limitations had expired. 329 P.2d at 1014. After the trial
court denied his motion, we reviewed the trial court’s decision under C.A.R. 21. The
People argued that Bustamante was not entitled to pre-trial dismissal and instead had
10
to raise his statute-of-limitations argument as a defense at trial. Id. We disagreed,
holding that “the statute of limitations in a criminal case is not merely a defense that
may be asserted at the trial . . . [it] denies jurisdiction to prosecute an offense not
committed within the period limited.” Id. at 1018.
¶20 But this holding does not address the permissibility of amending a defective
information when doing so would cure a defect—the question presented here. See
People v. Bowen, 658 P.2d 269, 270 (Colo. 1983) (“Bustamante did not deal with the
question of whether a court has jurisdiction to entertain a motion to amend an
information . . . .”); see also Washam, slip op. at 37–42 (Navarro, J., concurring in part
and dissenting in part). Indeed, there are several stark distinctions between Bustamante
and this case. First, at the time Bustamante was decided, the Rules of Criminal
Procedure, including Rule 7(e), did not exist. Second, even if Rule 7(e) had existed, it
would have made little difference. Bustamante’s holding addressed a defect in an
indictment; therefore, Rule 7(e), governing “amendment of information,” would not
apply. And unlike Washam’s conduct, which occurred partly outside and partly within
the statute of limitations, the entirety of Bustamante’s alleged conduct occurred outside
the statute of limitations. In other words, while the defect in Washam’s case was
curable, the defect in Bustamante was not. For these reasons, Bustamante’s holding is
irrelevant to determining whether a court may permit an amendment to cure an
information with a date range partly outside the statute of limitations.
11
¶21 Washam also relies on our opinion in Moody to argue that the time allegation is
an essential element of the offense. Moody, unlike Bustamante, addresses the question
of amending an information. Nevertheless, it is also distinguishable.
¶22 In Moody, the defendant was charged with theft of rental property under a
statute that required him to possess the property for more than “seventy-two hours
after the time at which he agreed to return it.” 674 P.2d at 368. However, the People
alleged a date range in the information when the defendant was still lawfully renting
the property, before the seventy-two-hour time period had even begun to run. See id.
We held that charging the defendant with possession beyond that seventy-two-hour
time period was an essential element of the crime that the prosecution had to prove
beyond a reasonable doubt. See id. Given that, because the original information did
not allege a date range beyond that seventy-two-hour time period, we held that the trial
court did not abuse its discretion in denying the prosecution’s motion to add those
dates after trial began. See id. at 368–69. Specifically, because the amendment would
have added an essential element, we held the proposed amendment was one of
substance and was thus impermissible after the start of trial. See id. at 368.
¶23 In this case, unlike in Moody, the original information already included the dates
alleging the criminal conduct for which Washam was ultimately convicted.
Consequently, the final amendment did not add new offense dates; in contrast, the
amendment narrowed the dates at the front end of the range. Thus, the amendment did
not add a previously absent essential element of the offense. As a result, Moody is also
distinguishable from Washam’s case.
12
¶24 Because both Bustamante and Moody are distinguishable, we are not persuaded
by Washam’s argument. Accordingly, we conclude that the amendment did not add an
essential element of the offense.
2. The Information Provided Washam Adequate Notice
¶25 Next, in analyzing whether the amendment here was one of substance or form,
we determine whether the original information provided notice to Washam such that
he was adequately advised of the charges against him. See Cervantes, 715 P.2d at 786.
¶26 The prosecution originally charged Washam for dates from January 1, 1994, to
April 5, 1997. The final amendment changed the information to dates from July 1, 1996,
to April 4, 1997. Therefore, the dates for which Washam was ultimately convicted were
always included in the information. Because of this, Washam was adequately advised
of the charges against him. Thus, the amendment did not force Washam to defend
against dates that were not previously charged. Instead, Washam had adequate notice,
making the amendment here one of form.
¶27 Now that we have concluded the amendment was one of form, we next review
the trial court’s decision to permit the form amendment during trial.
B. The Form Amendment Was Permissible
¶28 According to Rule 7(e), an amendment of form that occurs after the start of trial
is permissible as long as the amendment does not charge additional or different offenses
or prejudice the defendant’s substantial rights. Under the circumstances presented
here, we conclude that the amendment did neither, meaning the trial court did not
abuse its discretion in permitting the amendment after trial began.
13
¶29 First, the amendment did not add an additional or different offense. The
amendment did not change the statute under which Washam was charged, which
remained section 18-3-405(1). See Cervantes, 715 P.2d at 788 (“[T]he information
without the amendment was adequate to direct Cervantes’ attention to [the statute
under which he was charged].”). It did not change or increase the number of sexual-
assault-on-a-child counts that Washam faced. To the contrary, as we have discussed,
the amendment narrowed the date range and consequently lowered the number of
specific dates for which Washam needed to prepare his defense.
¶30 Second, the amendment did not prejudice Washam’s substantial rights. Notably,
Washam provides no specific argument of prejudice; he generally asserts only that the
various amendments made it impossible to know what dates to address in his defense.
But as we explained, Washam was always notified of the time frame in the case against
him because the dates for which he was convicted were alleged from the beginning—
over five years prior to his conviction. Because of this, to the extent Washam’s defense
changed at all, it would have been only to his benefit. As a result, no prejudice
occurred. See Bowen, 658 P.2d at 270 (“In this case, no prejudice will inure to the
defendant by reason of the amendment. If anything, he will be benefited by it, because
the period of time during which he is alleged to have committed the offense will be
shortened.”).
¶31 Finally, the amendment occurred before either side had presented any evidence
or even delivered its opening statements. Cf. Cervantes, 715 P.2d at 788 (citing the fact
that neither side had presented evidence as one factor supporting the decision to allow
14
an amendment to the information). It is therefore apparent on these facts that the
amendment did not add an offense or prejudice Washam in any way, meaning it was
permissible under Rule 7(e).
¶32 Construing Rule 7(e) liberally, see Bowen, 658 P.2d at 270, we conclude that
because the form amendment did not prejudice Washam’s substantial rights, the trial
court did not abuse its discretion in permitting the amendment after trial began.
IV. Conclusion
¶33 We conclude that the amendment to the information was one of form and that
the trial court did not abuse its discretion in permitting the amendment after trial
began. Therefore, we reverse the judgment of the court of appeals and remand to that
court for consideration of the remaining issues raised but unresolved on appeal.
15