State Of Washington v. Bounphet Manivanh ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 79034-0-I
)
Respondent, )
DIVISION ONE
v. )
BOUNPHET MANIVANH, ) UNPUBLISHED OPINION
Appellant. ) FILED: February 3, 2020
MANN, A.C.J. — Bounphet Manivanh appeals his conviction for driving under the
influence (DUI), contending that the trial court abused its discretion when it allowed the
State to amend the information midtrial, changing the charge from a violation of RCW
46.61 .502(1)(c) (driving while affected by alcohol), to a violation of RCW
46.61 .502(1)(a) (having a blood alcohol content (BAC) above 0.08 within two hours of
driving). We affirm Manivanh’s conviction but remand to the trial court to exercise its
discretion under RCW 46.61 .5054(1)(b) to suspend the $250 toxicology lab fee in all or
part based on Manivanh’s financial situation.
On September 10, 2017, at I am., Renton Police Officer Michael Thompson
stopped Manivanh for a broken headlight. Manivanh and his wife were driving home
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from their niece’s birthday party. When Thompson asked Manivanh for his license and
registration, he noticed that Manivanh’s eyes were bloodshot, watery, and droopy.
Thompson asked Manivanh if he had been drinking and Manivanh remained silent.
Manivanh handed his wallet to his wife and she retrieved Manivanh’s license.
Thompson called for backup, suspecting that Manivanh was impaired. Officer
Jeanne Christiansen arrived and assumed control of the investigation. Upon
approaching Manivanh’s vehicle, Christiansen smelled alcohol and the intensity of the
smell increased when Manivanh spoke. Manivanh admitted drinking two beers at his
niece’s birthday party. Christiansen asked if Manivanh would perform a field sobriety
test. Manivanh refused to answer the question. Christiansen placed Manivanh under
arrest.
Manivanh did not exit the vehicle and Christiansen escorted him out by opening
the car door and grabbing his hands. When Christiansen read Manivanh the Miranda
warnings, Manivanh claimed he needed an interpreter. When Christiansen asked
Manivanh what language he spoke, he said he did not know.
Christiansen transported Manivanh to the police station for a breath test, but
Manivanh refused and stated he needed a Khmu interpreter. Christiansen obtained a
search warrant for a blood draw. Christiansen transported Manivanh to the hospital and
the blood sample was taken at 3:37 a.m. The Washington State Patrol Crime
Laboratory determined that Manivanh had a BAC of 0.18.
At the time of the incident, Manivanh was required to have an ignition interlock
installed on his vehicle and his license was suspended. The State charged Manivanh
with one count felony driving under the influence, one count of violating an ignition
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interlock requirement, and one count of first degree driving with a suspended license.
At the beginning of trial, the State amended the information and reduced the license
charge from first to third degree. The State alleged in its original information and first
amended information that Manivanh “drove a vehicle within this state while under the
combined influence of or affected by intoxicating liquor and any drug and while under
the influence of or affected by intoxicating liquor or any drug; having at least three prior
offenses within ten years of the arrest.” The language was based on RCW
46.61 .502(1)(c), commonly known as the “affected by” prong of DUI.
The defense moved pretrial for an order in limine requiring the State to disclose
potential expert witnesses. The State responded that none of its witnesses were
providing expert testimony, rather they would be “testifying to things they’ve observed
and things they have personal knowledge of.”
Manivanh was tried by jury beginning August 22, 2018. The prosecutor’s
opening statement emphasized that “Manivanh’s blood alcohol content at the end of the
night was 0.18, which is over twice the legal limit.” Defense counsel’s opening
statement acknowledged that Manivanh’s BAC was 0.18, but asked the jury to think
about “what is the evidence of intoxication in this case.” The defense explained that the
jury would hear officer testimony about Manivanh’s bloodshot and watery eyes, the odor
of alcohol, and an admission to consuming two beers, but that the jury would not hear
that he had “trouble standing up, trouble walking, trouble driving, trouble talking, the
kind of things that indicate a person’s actually intoxicated.” The defense explained that
Manivanh did not cooperate because there was a language barrier. Further, during
closing argument, the defense criticized a video that the State introduced from inside
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the police car, arguing that the video contradicted the officers’ testimonies that
Manivanh slurred his words because Manivanh spoke clearly while being transported to
the police station.
Justin Knoy, the state toxicologist who tested Manivanh’s blood testified about
the testing procedures. Officer Thompson then testified about the stop and his
observations. Kelly Harris, a records custodian for the Department of Licensing,
testified and introduced records showing Manivanh’s license was suspended and that
he was required to have an ignition interlock device. Officer Christian, the arresting
officer and officer that obtained the warrant for Manivanh’s blood draw, testified that the
results of the test were a BAC of 0.18.
After Knoy and Thompson testified, the State moved to amend the information to
allege that Manivanh’s BAC exceeded the legal limit. The State also requested leave to
recall Knoy to testify about the burn-off rate of alcohol in humans because the State
needed the testimony to prove that Manivanh’s BAC exceeded 0.08, within two hours of
driving. The defense opposed the amendment, contending that it prejudiced Manivanh
because the defense conceded BAC during opening, with the understanding that the
State was only proceeding under the “affected by” alternative. Further, the defense
opposed recalling Knoy to testify to the burn-off rate in humans because it was expert
testimony and the State failed to disclose during motions in limine that Knoy would be
offering expert testimony.
The trial court granted the State’s request to amend the information. The
defense moved to dismiss under CrR 8.3(b) for government mismanagement or, in the
alternative, to prevent Knoy from testifying further because any expert testimony
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violated the motions in limine. In clarifying its ruling, the court asked the State to explain
its offer of proof. The State responded that it expected Knoy to testify that, after two
and a half hours, a “person would be in the elimination phase, because alcohol peaks in
its absorption after 1 1/2 hours.” The State indicated it would not use any hypothetical
situations to analogize to Manivanh’s BAC when eliciting testimony. The court
concluded that as long as the State did not elicit testimony from Knoy connecting Knoy’s
knowledge about the burn-off rate to Manivanh’s BAC and consumption timeframe, then
the testimony would not violate the motions in limine.1 The court denied Manivanh’s
motion to dismiss.
The second amended information alleged that Manivanh
drove a vehicle within this state and while driving had an amount of
alcohol in his/her body sufficient to cause a measurement of his/her blood
to register 0.08 percent or more by weight of alcohol within two hours after
driving, as shown by analysis of the person’s blood and while under the
influence of or affected by intoxicating liquor or any drug.
This language was based on RCW 46.61 .502(1)(c), commonly known as the “per so”
prong of DUI. The second amended information did not allege the “affected by”
alternative.
The defense rested after the close of the State’s case. The court instructed the
jury that it must find Manivanh guilty of DUI if the State proved beyond a reasonable
doubt that “the defendant at the time of driving a motor vehicle (a) was under the
influence of or affected by intoxicating liquor; or (b) had sufficient alcohol in his body to
have an alcohol concentration of 0.08 or higher within two hours after driving as shown
1 During argument, the State indicated that Knoy’s testimony was expert testimony, but that he
was qualified to testify to the average burn-off rate of alcohol in humans.
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by an accurate and reliable test of the defendant’s blood.” The jury found Manivanh
guilty on all counts.
Manivanh first argues that the trial court abused its discretion by allowing the
midtrial amendment. He contends that this is so because the defense strategy was to
concede the BAC level exceeded the legal limit, but he was not guilty because there
was a lack of evidence that he was “under the influence of or affected by” drugs or
alcohol. We disagree.
CrR 2.1(d) provides that:
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.
CrR 2.1(d) is intended to “permit[] liberal amendment” of the charging document.
State v. Goss, 189 Wash. App. 571, 576, 358 P.3d 436 (2015). The application of CrR
2.1(d) is constrained by article I, section 22 of the Washington State Constitution, which
provides that “[un criminal prosecutions the accused shall have the right. . to demand
the nature and cause of the accusation against him.” “Under this constitutional
provision, an accused person must be informed of the charge he or she is to meet at
trial, and cannot be tried for an offense not charged.” State v. Pelkey, 109 Wash. 2d 484,
487, 745 P.2d 854 (1 987). This constitutional provision is designed to ensure that a
criminal defendant has notice of the change to be met at trial. State v. Schaffer, 120
Wash. 2d 616, 61 9-20, 845 P.2d 281 (1993).
It is a per se constitutional violation for the State to amend the information after it
has rested its case, unless the amendment is to a lesser degree of the same charge or
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a lesser included offense. Pelkey, 109 Wn.2d at 491. Our Washington Supreme Court
has recognized that amending an information midtrial may violate article I, section 22.
The constitutionality of amending an information after trial has already
begun presents a different question. All of 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. Where a jury has already been empaneled, the defendant is
highly vulnerable to the possibility that jurors will be confused or
prejudiced by a variance from the original information.
Pelkey, 109 Wn.2d at 490. “Midtrial amendment of a criminal information has been
allowed where the amendment merely specified a different manner of committing the
crime originally charged.” Pelkey, 109 Wn.2d at 490 (citing State v. Gosser, 33 Wn.
App. 428, 656 P.2d 514 (1982)).
Deciding whether an amendment should be granted is left to the sound discretion
of the trial court, and the court’s decision is reviewed only for abuse of discretion. State
v. Rapozo, 114 Wash. App. 321, 323, 58 P.3d 290 (2002). The defendant bears the
burden of demonstrating that they were prejudiced by the amendment during trial. State
v. Brisebois, 39 Wash. App. 156, 162-63, 692 P.2d 842 (1984).
While the State’s late decision to amend the information to charge the “per se”
prong of DUI statute instead of the “affected by” prong was not ideal, Manivanh fails to
meet his burden of demonstrating prejudice.
At the outset, the amendment did not add a new offense, but rather an alternative
means of committing the same crime originally charged—DUI. RCW 46.61.502
provides four alternatives for proving DUI. Relevant here,
(1) A person is guilty of driving while under the influence of intoxicating
liquor, marijuana, or any drug if the person drives a vehicle within this
state:
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(a) And the person has, within two hours after driving, an alcohol
concentration of 0.08 or higher as shown by analysis of the person’s
breath or blood made under RCW 46.64.506; or
***
(c) While the person is under the influence of or affected by intoxicating
liquor, marijuana, or any drug; or
The State’s first amended information alleged that Manivanh was in violation of
RCW46.61.502(1)(c). The midtrial amendment changed charge from a violation of
RCW 46.61 .502(1)(c) to RCW 46.61 .502(1)(a)—”a different manner of the crime
originally charged.” Pelkey, 109 Wn.2d at 490-91. The likelihood that the jury would be
confused by a variance in the original information was low since both charges were for
DUI.
Manivanh’s argument relies heavily on his characterization of opening
statements where his counsel confirmed that Manivanh’s blood alcohol level was 0.18.
We disagree that prejudiced Manivanh. The prosecutor’s preceding argument had
already informed the jury that Manivanh’s blood alcohol level was 0.18. Knoy then
testified about the chain of custody, receiving the intact sample and testing the sample.
Officer Christiansen testified to receiving the test and viewing that the result was 0.18.
The defense’s reference to the test results in opening statements was not a concession
that the State proved its case, rather it was an acknowledgement of admissible
evidence that the jury would hear during the trial. Further, the defense had notice that
Knoy was a State witness.2 The evidence admitted demonstrated Manivanh was in
2 Manivanh raises the issue that the State failed to identify during pretrial motions that Knoy
would provide expert testimony under ER 702. We agree the State should have identified Knoy as an
expert witness under ER 702. This failure, however, did not prejudice Manivanh because the State
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violation of RCW 46.61 .502(1)(a) beyond a reasonable doubt because his blood alcohol
level was 0.18—over twice the allowable limit.
While Manivanh indicates that he “may have obtained an expert to attack the
reliability of the process used to determine Manivanh’s blood alcohol” this is
speculation. Manivanh does not explain how an expert could have challenged the
results of the BAC analysis. Without evidence, or even an offer of proof, that the BAC
analysis was somehow inaccurate, the admitted evidence was more than enough for
the jury to find Manivanh guilty beyond a reasonable doubt. Manivanh fails to
demonstrate that he was prejudiced by the late amendment or that the trial court
abused its discretion.
Ill.
Manivanh next contends the trial court did not intend to impose the $250
toxicology lab fee because trial court stated it would waive discretionary fees and the
toxicology lab fee is discretionary. The State responds that Manivanh failed to raise this
objection below and we should therefore decline review. RAP 2.5(a), however, gives
this court discretion to address the imposition of legal financial obligations (LFO5) on
appeal despite a lack of objection below. State v. Blazina, 182 Wash. 2d 827, 835, 344
P.3d 680 (2015).
RCW 46.61.5054 appears on its face to assess a mandatory LFQ. The statute
provides that a $250 fee “shall be assessed to a person who is either convicted,
sentenced to a lesser charge, or given deferred prosecution, as a result of violating
indicated it would call Knoy and, after moving to amend the information, offered the defense the
opportunity to re-interview Knoy.
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RCW 46.61.502.” RCW 46.61 .5054(1)(a). However, “[u]pon a verified petition by the
person assessed the fee, the court may suspend the payment of all or part of the fee if it
finds that the person does not have the ability to pay.” RCW 46.61.5054(1 )(b).
It is undisputed here that post sentencing the trial court found Manivanh indigent
under the applicable statutory criteria. We remand to the trial court to exercise its
discretion under RCW 46.61 .5054(1)(b) to suspend the $250 toxicology lab fee in all or
part based on Manivanh’s financial situation.
We otherwise affirm.
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WE CONCUR:
4~i
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