THE PEOPLE OF THE STATE OF COLORADO v. JAMES WILLARD WASHAM, III
No. 15SC469
The Supreme Court of the State of Colorado
March 19, 2018
2018 CO 19
Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 13CA758
ADVANCE SHEET HEADNOTE
March 19, 2018
2018 CO 19
No. 15SC469, People v. Washam -
In this case, the supreme court considers whether an amendment to an information narrowing the date range after trial began was permissible under
en banc
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 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
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
¶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.
¶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
¶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.
¶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.
¶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. Id. 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.
¶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
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
¶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.
¶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.
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.
¶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
¶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.