State of Washington v. Dennis Gerald Lowe ( 2018 )

FILED
AUGUST 21, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 34805-9-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
DENNIS GERALD LOWE, )
)
Appellant. )
PENNELL, A.C.J. — Dennis Lowe appeals his conviction for second degree taking
a motor vehicle without permission. We affirm.
FACTS
The State initially charged Mr. Lowe with one count of possession of a stolen
motor vehicle. It later amended the charge to include a second count of second degree
taking a motor vehicle without permission. During a pretrial hearing that took place prior
to amendment, the trial court raised concerns about the nature of the State’s charge. The
following colloquy ensued:
Judge: Alright. I do have one comment, okay? You—I’m looking at
your proposed jury instructions. You’ve alleged that Mr. Lowe was in
possession of this motor vehicle. He was a passenger [inaudible]—. I’m
not sure passengers are people who possess motor vehicles.
[Prosecutor]: It’s under the accomplice—principal accomplice—
Judge: You didn’t—your instructions don’t include anything about
accomplices.
No. 34805-9-III
State v. Lowe
[Prosecutor]: I would—I would change that.
Judge: So, I—I, you know, just as an editorial comment, this is really
a riding in a motor vehicle knowing it’s stolen. This is what it really is.
But,—and we’ll see where we are at the closing of the State’s case—
[Prosecutor]: Sure.
Judge: —whether this case survives the half-time motion or not, so.
Report of Proceedings (Aug. 24, 2016) at 37. Later that day, the State filed an amended
information adding the second count. When the court asked defense counsel for their
response to the additional charge, defense counsel waived “formal arraignment, formal
reading, and enter[ed] a plea of not guilty,” and made no objection to the State’s filing.
Id. at 39.
Trial began the following day. The jury found Mr. Lowe guilty of second degree
taking a motor vehicle without permission and not guilty of possession of a stolen motor
vehicle. Mr. Lowe appeals.
ANALYSIS 1
CrR 2.1(d) allows an information to be amended any time before a verdict or
finding if the defendant’s substantial rights are not prejudiced. So long as the State does
not wait until after the closing of its case in chief to file for amendment, a defendant
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Mr. Lowe’s arguments are presented through a statement of additional grounds,
filed under RAP 10.10. The issues briefed by Mr. Lowe’s attorney have been resolved by
agreement with the State.
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State v. Lowe
challenging an amendment must show prejudice. State v. Schaffer, 120 Wash. 2d 616, 621,
845 P.2d 281 (1993). CrR 2.1(d)’s protection against prejudicial amendment fulfills the
constitutional protection of notice guaranteed by article I, section 22 of the Washington
Constitution. Id.
Because the State filed its amended information the day before trial, Mr. Lowe is
obliged to show prejudice. He has failed to do so. The State’s amended information was
factually and legally similar to the original charge. Id. (The greater the similarity between
the amended information and original charge, the less risk there is of prejudice.). At the
time of filing, counsel did not object or request a continuance. State v. Gosser, 33 Wn.
App. 428, 435, 656 P.2d 514 (1982) (Failure to request a continuance “is persuasive of
lack of surprise and prejudice.”). Mr. Lowe simply has not demonstrated how his trial
strategy would have changed had he been given more notice of the amended charge.
Nor has Mr. Lowe established that the manner in which charges were amended
deprived him of his constitutional right to a fair tribunal. In re Pers. Restraint of Davis,
152 Wash. 2d 647, 692, 101 P.3d 1 (2004) (A party alleging misconduct bears the burden of
establishing misconduct.). A judge does not improperly assume a dual role of accuser
and adjudicator simply by warning a prosecutor about the weakness of the State’s case.
Cf. Williams v. Pennsylvania, __ U.S. __, 136 S. Ct. 1899, 1905, 195 L. Ed. 2d 132
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No. 34805-9-111
State v. Lowe
(2016) (due process violation when the judge previously had a significant, personal
involvement as a prosecutor in the defendant's case); In re Murchison, 349 U.S. 133, 139,
75 S. Ct. 623, 99 L. Ed. 942 (1955) (due process violation when judge previously served
as one-man grand jury). That is all that happened here. The trial judge did not act as a
prosecutor and did not direct the State to seek an amended information. There was no
due process violation.
CONCLUSION
The judgment of conviction is affirmed. Mr. Lowe asks that we not award
appellate costs. In accordance with RAP 14.2, we defer the question of appellate costs to
our commissioner or clerk/administrator.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, A.C.J.
WE CONCUR:
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