No. 50961-6-IThe Court of Appeals of Washington, Division One.
Filed: October 27, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 01-1-01616-1 Judgment or order under review Date filed: 08/16/2002
Counsel for Appellant(s), Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Jeffrey W. Faas (Appearing Pro Se), Doc# 769483, Monroe Corr. Complex, P.O. Box 777, Monroe, WA 98272-0777.
Counsel for Respondent(s), Alice Degen, King Co Pros Office, W544, 516 3rd Ave, Seattle, WA 98104-2390.
KENNEDY, J.
Jeffrey Faas appeals his conviction for possession of methamphetamine, contending that the amended information did not charge the crime. In his Statement of Additional Grounds for Review, he also contends that the trial court erroneously denied him the opportunity to present his `citizen’s arrest’ defense and improperly prevented his witnesses from testifying. Because the trial court was entitled to treat the amended information as the parties obviously intended and because Faas fails to identify any other grounds for relief, we affirm.
FACTS
On January 31, 2001, a 911 caller reported to the Renton Police Department that a fight was possibly about to occur outside a residence located at 525 Wells Avenue South in Renton. When Officer Smith arrived, he met Jeffrey Faas and asked him about the fight. After a records check indicated that Faas had an outstanding misdemeanor warrant, Officer Smith arrested Faas. He searched Faas and found in his pocket a plastic baggie containing a white powder that appeared to be a controlled substance. Following his Miranda[1] warnings, Faas stated that he had taken the baggie from someone at the residence and that he believed it contained `meth.’
On February 28, 2001, Officer Gray of the Renton Police Department performed surveillance of a residence located at 714 N. 1st Street in Renton, based on a report of a possible methamphetamine cooking and dealing operation involving that address, Jeffrey Faas, and a white landscaping truck. The report also stated that Faas’s driver’s license was suspended, and gave Faas’s physical description. After observing someone leaving the house and driving away in the white truck, Officer Gray stopped the truck. He asked the driver, who matched Faas’s physical description, what he was doing. Faas said that he was just parking his truck. Faas did not have identification but admitted that he was Jeffrey Faas. Officer Gray arrested Faas for Driving While License Suspended or Revoked in the third degree. In a search incident to arrest, Officer Gray found cash, various items generally used for manufacturing methamphetamine, three baggies containing suspected methamphetamine, a pager, and a ledger with names and dollar amounts.
PROCEDURAL HISTORY
On March 5, 2001, the State filed an information charging Faas with two counts of possession of methamphetamine — Count 1 for the February 28 incident and Count 2 for the January 31 incident. On August 6, 2001, the State and Faas appeared for trial before Judge Middaugh. The defense moved to sever the counts and the State did not oppose the motion. The parties discussed the State’s motion to continue Count 1, because the officer involved was on medical leave, and then agreed to start trial on Count 2.
Prior to trial commencing, defense counsel sought the court’s permission to have two witnesses — Robert Peel and Regina Peel — testify by telephone from Arizona. The State objected and requested that the defense disclose the nature of its defense if it was other than a general denial, as disclosed at the omnibus hearing. Defense counsel stated that the testimony would demonstrate that Robert Peel, who lived in Arizona, was concerned that someone was using the house he owned in Renton to deal drugs, and had asked his daughter, Regina Peel, and Faas to go to the house and clear out any drugs. According to Faas, when he went to the house on January 31 he found Regina’s son, Jeremy Williams, and took drugs away from him the same drugs that the officer found in his pocket on January 31, 2001. Defense counsel intended to argue that, in these circumstances, Faas had a legal right to make a citizen’s arrest and a seizure of the drugs, so that his possession was not unlawful.
On August 8, 2001, the trial court ruled that the evidence Faas wanted to present would not establish a valid affirmative defense. Faas then waived his right to a jury trial and stipulated to the facts in the police report. The following exchange then took place:
THE COURT: . . . [H]as there been actually an amended information filed?
[PROSECUTOR]: No, your Honor.THE COURT: Because this trial was severed at the request of the defense attorney and we are going forward —
[DEFENSE COUNSEL]: I don’t think that requires an amendment, your Honor[;] the charge remains the same. [THE COURT]: Well, I’m only ruling on count — I forget which count it is, quite frankly. [DEFENSE COUNSEL]: Count 2. [PROSECUTOR]: . . . It is my understanding that . . . the severance doesn’t require a separate cause number, and that we would just be proceeding on the cause number of count 2, and then again on the later — on the same cause number, count 1.Report of Proceedings 8/8/01 at 16-17.
The trial court then found Faas guilty as charged on Count 2 and directed the parties to obtain a sentencing date. The trial court also granted the State’s motion to continue Count 1 because the officer was unavailable for trial. On August 20, 2001, when the parties appeared for trial on Count 1 before Judge Ramerman, the prosecutor stated that the two charged counts were severed for trial, that Faas had been found guilty on Count 2 at a stipulated trial on August 8, and that she believed that Faas was willing to accept her plea bargain offer on Count 1. The defense agreed. The State moved to `amend Count 1 of the information’ from possession of methamphetamine to attempted possession of methamphetamine. The defense did not object. The trial court authorized the amendment, and the State filed an amended information charging Faas with attempted possession of methamphetamine on February 28, 2001. The court accepted Faas’s Alford[2] plea. Although the amended information contained only one charge, labeled `Count I,’ attempted possession of methamphetamine on February 28, 2001, the plea agreement includes the prosecutor’s recommendation of ‘3 months concurrent with Count II.’ Clerk’s Papers at 32. The trial court’s findings and conclusions on Count 2 — from the stipulated facts trial of August 8 — were not filed until August 22, 2001. Sentencing on both counts was scheduled for October 12, 2001. Faas failed to appear, and a bench warrant was issued for his arrest. On August 16, 2002, defense counsel moved under CrR 7.8 for relief from the August 22, 2001 written order finding Faas guilty on Count 2, arguing that the State’s amended information charging only the misdemeanor attempt to possess methamphetamine superceded the original information, such that Faas was no longer charged with Count 2. Judge Middaugh denied the motion and sentenced Faas on both counts. Faas appeals the judgment and sentence for Count 2.
ANALYSIS
Faas contends that on the date the information was amended, he had not been formally convicted of Count 2 because the trial court had not yet entered findings and conclusions. Therefore, he argues that when the State filed the amended information including only Count 1, the prior information was superseded so that he was no longer charged with Count 2, and his conviction must be reversed. We disagree.
Although an amended information generally supersedes the original, where the parties consistently treat an amended information differently as a result of the plea bargaining process, the trial court is entitled to do likewise. State v. Oestreich, 83 Wn. App. 648, 651, 922 P.2d 1369
(1996).
In Oestreich, the State filed an amended information charging only one of the original two counts in order to enter a plea agreement with the defendant. 83 Wn. App. at 649-50. After the defendant withdrew his plea, the trial court reset the case for trial on both of the original counts despite the State’s failure to move to withdraw the amended information, reinstate the original information, or file a second amended information. 83 Wn. App. at 650. The defendant then entered a guilty plea to both original charges. Id. On appeal, this court rejected the defendant’s claim that the trial court lacked jurisdiction to adjudicate the count omitted from the amended information because the record clearly indicated that `both parties acted in all respects as if the amended information had been withdrawn and the original information reinstated.’83 Wn. App. at 651-52.
Here, the record clearly indicates that both parties acted in all respects as if the information had been amended only with respect to Count 1, so that the defendant could enter a plea to a reduced charge. It is equally clear from the record that the parties believed that the original information properly charged Count 2, that the severance of the charges did not require an amendment to the information, and that Count 2 had already been properly adjudicated by the time that Count 1 was amended. The prosecutor described the history of the case at the August 20 hearing, included the reference to Count 2 in its sentencing recommendation on the plea agreement, and referred to the upcoming sentencing date for both counts, all without objection from the defense. Based on this record, the trial court did not err by treating the information as both parties obviously intended, and did not err by denying Faas’s CrR 7.8 motion before sentencing.
In his Statement of Additional Grounds for Review,[3] Faas argues that the trial court erred by preventing him from presenting evidence that he was making a citizen’s arrest as an affirmative defense. A citizen’s arrest requires reasonable and probable cause to believe the arrested party guilty of a felony before the arrest will support a search and seizure of evidence of a crime. State v. Jack, 63 Wn.2d 632, 637, 388 P.2d 566 (1964). Here, the trial court found that Faas asserted no facts to indicate that he had actually arrested anyone. Rather, he seemed to be arguing that he `took the drugs and intended, at some time in the future, to make a citizen’s arrest.’ Report of Proceedings 8/8/02 at 10. Finding that `cases relating to possession of evidence or possession of contraband in citizen’s arrest cases deal with the possession by the citizen being incidental to the arrest, not the possession being . . . primary . . . and . . . the arrest being incidental,’ the trial court ruled that a citizen’s arrest was not a valid affirmative defense in these circumstances. Id.
Because our review of the record has revealed no facts to indicate that Faas actually made a citizen’s arrest, and because we know of no authority providing that a citizen’s seizure of contraband, without an arrest, constitutes an affirmative defense, we cannot say the trial court erred.
Finally, Faas contends that the trial court erred by denying his motion to allow testimony by telephone. However, our review of the record indicates that the trial court never ruled on the motion to allow testimony by telephone. Rather, following the trial court’s ruling that the expected evidence would not support a valid affirmative defense, defense counsel stated that Faas would waive his right to a jury trial and submit the case to the trial court on stipulated facts. Based on this record, Faas fails to identify grounds for relief.
Affirmed.
BECKER and AGID, JJ., concur.
(1966).