No. 28102-3-II.The Court of Appeals of Washington, Division Two.
Filed: September 20, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 011011199, Hon. Frederick W. Fleming, November 16, 2001, Judgment or order under review.
Counsel for Appellant(s), Lise Ellner, Attorney At Law, P.O. Box 2711, Vashon, WA 98070.
Counsel for Respondent(s), Kathleen Proctor, Pierce Co. Dep. Pros. Atty., Co City Bldg, 930 Tacoma Ave So Rm 946, Tacoma, WA 98402-2177.
CARROLL C. BRIDGEWATER, J.
Dennis Newell Kolsky appeals his conviction of first degree child molestation. He contends that his trial counsel was ineffective when he failed to (1) object to the amended information the State presented on the first day of trial; (2) move for dismissal or a continuance in response to the amended information; and (3) ensure that he was arraigned on the amended information. He also contends that the trial court should have dismissed the charge on its own motion. We hold that Kolsky fails to establish that his counsel’s performance was deficient or that he was prejudiced by the amendment. Accordingly, we affirm.
Facts
On March 1, 2001, the State charged Kolsky with first degree rape of a child or, in the alternative, first degree child molestation, both with domestic violence enhancements. The information alleged that the crime occurred `on or about’ September 21, 1999. Clerk’s Papers (CP) at 1-2.
The Declaration for Determination of Probable Cause attached to the March 1 information stated that during an interview with a forensic interviewer the victim disclosed that Kolsky had touched her inappropriately `on multiple occasions.’ CP at 3.
On September 26, 2001, the first day of trial, the State moved to amend the information to modify the charging period to the period between February 1, 1999, and September 21, 1999. The trial court asked Kolsky whether he objected to the State’s motion, and Kolsky’s trial counsel responded: `Well, it comes on the eve of trial, Your Honor, which is a little disconcerting, but I don’t see any real basis on which I could ask Your Honor not to permit it.’ I Report of Proceedings (RP) at 2. The trial court agreed that there was no basis for any objection and accepted the amended information.
At trial, the State relied primarily on the victim’s testimony, and her earlier statements to her mother, the forensic investigator, and medical personnel, in which she indicated that Kolsky had inappropriately touched her on several occasions. Kolsky argued that other than the victim’s testimony and statements to others, there was no evidence that he had inappropriately touched the victim.
He further argued that the victim’s behavior toward him was inconsistent with the type of behavior a molestation victim would demonstrate toward her molester; that he was rarely alone with the victim and no one observed any inappropriate contact; and that the victim’s relatively unstable home environment caused her to live and spend time with many other men. Kolsky presented testimony relevant to the entire amended charging period in support of these arguments.
A jury found Kolsky guilty of first degree child molestation. Kolsky appeals.
Analysis I. Ineffective Assistance of Counsel
Kolsky contends that his trial counsel was ineffective because counsel failed to object to the amended information or move for a continuance or a CrR 8.3(b) dismissal in response to the amended information. He also contends that his trial counsel was ineffective because he failed to ensure that he was arraigned on the amended information. We disagree.
To establish ineffective assistance of counsel, Kolsky must show that his trial counsel’s performance fell below an objective standard of reasonableness and that this deficiency resulted in prejudice. In re Connick, 144 Wn.2d 442, 463, 28 P.3d 729 (2001). Conduct that can be characterized as legitimate strategy or tactics cannot serve as a basis for a claim of inadequate representation. State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984). We review counsel’s performance in light of the entire record and presume that his conduct constituted sound trial strategy. Osborne, 102 Wn.2d at 99.
Kolsky argues that by waiting until the day of trial to amend the information, the State forced him to choose between his speedy trial rights and adequate time to prepare a defense to the amended charge. He asserts that had his counsel requested a continuance or dismissal, the trial court would have granted either motion. As the record shows that Kolsky (1) was on notice that the charging period was not specific to one date, and (2) presented a defense relevant to the entire amended charging period, we disagree.
Under CrR 2.1(d), the State may amend an information any time before the verdict if the trial court determines that the amendment will not prejudice the defendant’s substantial rights.[1] CrR 2.1(d) does not require that the State show good cause to amend an information. Instead, the defendant challenging the amended information has the burden of establishing that the amendment will cause prejudice. State v. Guttierrez, 92 Wn. App. 343, 346, 961 P.2d 974 (1998); State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982).
Modification of the charging period does not usually affect a material element of the crime and should be allowed absent an alibi defense or a showing of other substantial prejudice to the defendant. State v. DeBolt, 61 Wn. App. 58, 61-62, 808 P.2d 794 (1991). Similarly, to be entitled to a dismissal under CrR 8.3(b),[2] Kolsky had to demonstrate prejudice. CrR 8.3(b).
Kolsky fails to establish prejudice. First, nothing in the record shows that he intended to present an alibi defense or any other time specific defense. Second, the Declaration for Determination of Probable Cause, which indicated that the victim was not specific about the exact dates of the molestations, placed Kolsky on notice that the alleged crimes occurred over a period of time.[3] And finally, Kolsky presented a defense and supporting testimony that related to the entire amended charging period.
Kolsky’s attorney was undoubtedly aware that Kolsky was not asserting any time-specific defense and that his defense encompassed the entire amended charging period. His counsel could have reasonably concluded that Kolsky would not have been able to establish that the amendment prejudiced him and, thus, the trial court would allow the amendment and deny any motion for a continuance or dismissal. Accordingly, Kolsky cannot show that his counsel’s failure to oppose the motion or move for a continuance or dismissal constituted deficient performance.
Further, even if Kolsky’s counsel should have objected to the motion and requested a continuance or a CrR 8.3(b) dismissal, Kolsky fails to establish resulting prejudice as he presented a defense relevant to the entire amended charging period, and he does not assert that he would have presented a different defense had he been provided more time to prepare. Accordingly, Kolsky’s ineffective assistance claim based on his counsel’s failure to object to the amendment or request a continuance or a CrR 8.3(b) dismissal fails.
Kolsky next contends that his trial counsel’s performance was deficient because he failed to ensure that Kolsky was arraigned on the amended information. But failure to arraign a defendant on an amended information is not prejudicial unless the defendant is denied sufficient notice of the charges or an opportunity to prepare a defense. See State v. Alferez, 37 Wn. App. 508, 516, 681 P.2d 859, review denied, 102 Wn.2d 1003 (1984). As the date of an alleged crime is not a material element of the crime, see De Bolt, 61 Wn. App. at 61-62, and the record shows that Kolsky planned and presented a defense relevant to the entire amended charging period, Kolsky cannot establish prejudice. Thus, his claim of ineffective assistance of counsel based on the lack of an arraignment on the amended information fails.
II. CrR 8.3(b)
Kolsky next contends that the trial court should have dismissed the charge on its own motion under CrR 8.3(b) because the late amendment was prejudicial. To be entitled to a CrR 8.3(b) dismissal, the trial court would have had to determine that the amendment prejudiced Kolsky in some way. As previously noted, it is unlikely that Kolsky could have established prejudice as the date of an alleged crime is not a material element of the crime, DeBolt, 61 Wn. App. at 61-62, the Declaration for Determination of Probable Cause put him on notice that the charging period was not specific, and his defense related to the entire charging period. Thus, the trial court did not err when it failed to dismiss the charges on its own motion under CrR 8.3(b).
Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: HOUGHTON, J., QUINN-BRINTNALL, A.C.J.
The record does not reveal whether Kolsky actually received the transcripts nor does it contain a copy of the defense interview with the victim. Accordingly, we do not base our decision on these alleged facts.