Opinion
110,103.
01-23-2015
STATE of Kansas, Appellee, v. Vincent LOWE, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE C.J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
LEBEN, J.
A jury convicted Vincent Lowe of trafficking contraband in a correctional institution after correctional officers discovered a baggie of marijuana concealed in his anus. The State initially charged Lowe with trafficking in contraband in a correctional institution by “[i]ntroducing or attempting to introduce” contraband. K.S.A.2013 Supp. 21–5914(a)(1). After the close of its evidence, however, the State amended the charging document, called an information, to trafficking in contraband in a correctional institution by “unauthorized possession” of contraband. K.S.A.2013 Supp. 21–5914(a)(3).
On appeal, Lowe argues that the district court abused its discretion by permitting such a late amendment to the information. But the amendment was permissible under K.S.A. 22–3201(e), which allows amendments “any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” Here the amendment charged the same crime as the original information: trafficking in contraband in a correctional institution. It also didn't prejudice Lowe because his ability to challenge the evidence against him didn't change under the new information. After the amendment, he was able to present the same defense and only had to defend against evidence that he had long been aware of under the original information.
We therefore affirm his conviction and sentence.
Factual and Procedural Background
During a search prompted by a report of the odor of marijuana, correctional officers at the Wyandotte County Detention Center discovered ashes and a cloud of smoke in cell 36, which was assigned to Vincent Lowe. They did not find any contraband in the cell, but when Deputy Brady Yantis strip-searched Lowe in an adjacent cell, he found a baggie of marijuana concealed in Lowe's anus.
The State charged Lowe with trafficking in contraband in a correctional facility, alleging that Lowe “unlawfully introduce[d] or attempt[ted] to introduce into or upon the grounds of any correctional institution” a baggie of marijuana. At Lowe's preliminary hearing, Deputy Yantis testified that he had discovered a baggie of marijuana in Lowe's anus.
Lowe was tried on the charge, and the State told the jury during opening arguments that it would hear “that the defendant had in his direct possession in his rectum ... a bag of marijuana while he was here as an inmate.” Several officers then testified to the events that led to the discovery of the marijuana, and the State rested at the close of the first day of trial.
The next day, Lowe filed a motion for discharge, in which he argued that the State had not produced sufficient evidence to support a conviction for introducing contraband into the institution. In response, the State argued that Lowe could be charged with either introducing the marijuana or possessing the marijuana in the correctional facility because they were alternative ways to commit the same crime. Because the evidence at trial better reflected possession, the State moved to amend the information to trafficking in contraband through unauthorized possession. Lowe objected, arguing that the amendment would be prejudicial and that he was only prepared to defend against introducing the contraband.
The district court granted the State's motion, and Lowe testified in his defense that he had not smoked any marijuana. He said that he and his cellmate had left their cell unlocked and that other inmates had been moving around near their cell during recreation time. He also said that when he was strip searched, he had noticed, among lots of other trash, a candy wrapper on the floor beneath him. Deputy Yantis had told him to pick it up, and the wrapper had contained marijuana that he had never seen before.
The jury found Lowe guilty of trafficking in contraband in a correctional facility, and the district court sentenced him to 130 months in prison. Lowe has appealed to this court, arguing that the district court should not have allowed the State to amend the information at the close of the State's evidence and that his criminal history, which was used to calculate his sentence, should have been proven to the jury.
Analysis
The District Court Did Not Err in Granting the Motion to Amend the Information.
The statute defining trafficking in contraband in a correctional institution provides that the offense can be committed a number of ways, including both introducing contraband into a correctional institution and possessing contraband in a correctional institution:
“Traffic in contraband in a correctional institution ... is, without the consent of the administrator of the correctional institution ...:
(1) Introducing or attempting to introduce any item into or upon the grounds of any correctional institution ...;
....
(3) any unauthorized possession of any item while in any correctional institution....” K.S.A.2013 Supp. 21–5914(a)(l), (3).
Here the State had originally charged Lowe with trafficking in contraband by introducing or attempting to introduce contraband under K.S.A.2013 Supp. 21–5914(a)(l). At the close of the State's evidence, the State amended the charge to trafficking in contraband by possession of contraband under K.S.A.2013 Supp. 21–5914(a)(3).
We review a district court's decision to permit the State to amend an information for an abuse of discretion. State v. Holman, 295 Kan. 116, 145, 284 P.3d 251 (2012). A district court abuses its discretion when taking an action that (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
Under K.S.A. 22–3201(e), “[t]he court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” See State v. Ransom, 288 Kan. 697, Syl. ¶ 11, 207 P.3d 208 (2009). Thus, this court, like the district court, must resolve two questions: “(1) Did the amendment charge an additional or different crime? and (2) Were the substantial rights of the defendant prejudiced by the amendment?” Ransom, 288 Kan. at 715–16.
In this case, the amendment didn't charge an additional or different crime. The amended information only changed the theory that would support the charge for trafficking in contraband in a correctional institution. And the State's amendment of a complaint to charge an alternative theory for committing the same crime is permitted under K.S.A. 22–3201(e), even if the new theory requires that the State prove different material elements. See State v. Starr, 259 Kan. 713, 720, 915 P.2d 72 (1996) (upholding the amendment of a first-degree murder charge from a felony-murder theory to a premeditated-murder theory, which required that the State prove an additional premeditation element). Thus, even though the amendment in this case changed the elements the State had to prove, the State did not charge a different crime, and our only question under K.S.A. 22–3201(e) is whether the amendment prejudiced Lowe's substantial rights.
Lowe argues that the amended information prejudiced his right to defend himself because he had only prepared to defend against introducing contraband into a correctional institution. The test for prejudice is whether the defendant's challenge to the State's evidence would have the same bearing on the new information as it would have on the old one. 5 LaFave, Criminal Procedure § 3.6(b) (5th ed.2009) ; see, e.g., State v. Price, 940 S.W.2d 534, 537 (Mo.App.1997) (“[T]he test for prejudice is whether a defendant's evidence would be equally applicable and his defense equally available.”). The test focuses on whether the amendment would introduce an element of surprise that would interfere with the defendant's ability to defend against the charge. See Walters v. Gov't of Virgin Islands, 172 F.R.D. 165, 170 (D.V.I.), affd 135 F.3d 764 (3d Cir.1997) (interpreting Federal Rule of Criminal Procedure 7 [e], which has nearly identical language to K.S.A. 22–3201 [e]: “Unless an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit an information to be amended at any time before the verdict or finding”); United States v. Pelose, 538 F.2d 41, 45 (2d Cir.1976) (same); Starr, 259 Kan. at 721 ; see, e.g., State v. Wade, 284 Kan. 527, 535–36, 161 P.3d 704 (2007) (defendant's substantial rights prejudiced when a jury instruction effectively amended a complaint and turned the defendant's testimony at trial into an after-the-fact confession).
We know of several circumstances in which an amendment to an information does not interfere with the defendant's ability to defend against the charge. One circumstance is when the evidence is the same under the original information and the amendment. See State v. Calderon–Aparicio, 44 Kan.App.2d 830, 849, 242 P.3d 1197 (2010), rev. denied 291 Kan. 914 (2011). Another is when the defendant has always been aware of the evidence supporting the amendment. See Holman, 295 Kan. at 146 (upholding amendment to date of offense where defendant had been aware that dates of the offense were uncertain based on pretrial statements, preliminary-hearing testimony, and testimony at trial); Ransom, 288 Kan. at 716 (upholding an amendment where the defendant had always been aware that the evidence supporting the amendment was part of the State's case). A third is when the defendant can keep the same defense under the amendment. See Government of Virgin Islands v. Bedford, 671 F.2d 758, 765–66 (3d Cir.1982) (interpreting Federal Rule of Criminal Procedure 7 [e] ); Calderon–Aparicio, 44 Kan.App.2d at 849 (upholding an amended information when “it would be difficult to ascertain how [the defendant] would have changed or modified his defense” to counter the elements required under the amendment); State v. Ibrahim, No. 106,953, 2013 WL 195516, at *10 (Kan.App.2013) (finding no prejudice where defendant “failed to show how his defense would have been any different”) (unpublished opinion).
The amendment in this case did not harm Lowe's ability to defend against the trafficking-in-contraband charge because all of the circumstances we just noted apply here:
• The evidence against Lowe did not change under the amendment. Under the original information, the evidence that Deputy Yantis discovered the marijuana in Lowe's anus had served as circumstantial proof that Lowe introduced the marijuana into the facility, and under the amendment, it served as direct proof that he possessed the marijuana.
• Lowe had been aware of the evidence since Deputy Yantis testified at the preliminary hearing approximately 6 months before trial.
• Lowe's defense—that the marijuana was not his—would have been no different if he had prepared for trial based on the second information. The district court said that Lowe had already been preparing to defend against possession because “both parties ha[d] operated, as far as [the court could] tell, under this possession [theory the] whole trial.” But even if Lowe had only been preparing to defend against the introduction of contraband, Lowe does not explain why the defense that the marijuana was not his would have changed under the amendment. Lowe's testimony that he picked up a candy wrapper containing marijuana during the search and evidence that other inmates potentially had access to his cell could defeat either theory of trafficking in contraband discussed in this case if the jury believed it.
In sum, the amendment was proper under K.S.A. 22–3201(e) because it did not charge a different crime and allowing the amendment did not prejudice Lowe's defense. We therefore find no error in the district court's decision to allow the amendment.
Lowe's Sentence Did Not Violate His Right to a Jury Trial.
Lowe also argues that the use of his criminal history to calculate his guidelines sentence was unconstitutional since his past convictions weren't proved in this case to a jury. Our Supreme Court has rejected that argument. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013) ; State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002).
We affirm the district court's judgment.
ATCHESON, J., dissenting.
The Wyandotte County District Court deprived Defendant Vincent Lowe of fair notice of the charge against him—a constitutionally required component of due process—when it allowed the State to amend the complaint at the close of its case to change the principal element of the crime. In doing so, the district court also denied Lowe a sound defense: The State couldn't prove beyond a reasonable doubt what it had originally chosen to charge in the complaint. The majority ignores the constitutional implications of the district court's ruling and completely misconstrues the effect on Lowe's defense. I, therefore, respectfully dissent. Consistent with any fair measure of due process to be afforded criminal defendants, I would reverse the conviction and remand for further proceedings.
I.
While Lowe was a pretrial detainee in the Wyandotte County jail on another charge, two jailers caught him with marijuana. At trial, the jailers testified that persons booked into the jail are searched during that process and may be searched from time to time later. Neither could say how often Lowe had been searched before the marijuana incident. Based on a proffer during the trial, Lowe apparently had been in custody about 2 weeks when he was busted.
In March 2012, the State charged Lowe with “introducing” contraband (the marijuana) into the jail, a violation of K.S.A.2011 Supp. 21–5914(a)(1). In another subsection, the statute separately criminalizes the “possession” of contraband within a correctional institution. K.S.A.2011 Supp. 21–5914(a)(3).
Under K.S.A.2011 Supp. 21–5914(a)(1), a person commits a felony by “[I]ntroducing or attempting to introduce [contraband] into or upon the grounds of any correctional ... facility.” The verb “introduce,” in that context, means to “bring in especially for the first time.” Merriam–Webster's Collegiate Dictionary 657 (11th ed.2003); see also American Heritage Dictionary 920 (5th ed.2011) (introduce means “to bring in and establish in a new place”). The legislature intended no special meaning to be imputed to the wording. See State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010) (“common words” in a statute typically should be construed to carry their “ordinary meanings”). So subsection (a)(1) would apply to the person who bakes a hacksaw blade in a cake and mails it to a relative in jail. It also criminalizes the efforts of a person being booked into jail who attempts to secrete and bring in contraband. But possession of contraband, criminalized in K.S.A.2011 Supp. 21–5914(a)(3) covers having contraband within a correctional institution regardless of how the item got there. Merriam–Webster's Collegiate Dictionary 968 (11th ed.2003) (possession defined as “control ... of property”).
The complaint did not charge Lowe with possession of contraband, although the State plainly could have done so either as the only offense or as an alternative to the introduction of contraband. I have no idea why the State chose to draft the complaint as it did. The prosecutor trying the case in November 2012 never suggested a reason. Well before trial, the district court held two status conferences and a motions conference. The State never indicated a desire to amend the complaint during those proceedings.
At trial, Lowe's lawyer chose to defer his opening statement, so the jury had no indication as to the defense. The State's evidence consisted principally of the testimony of the jailers that, if believed, plainly showed Lowe to be in possession of marijuana. The State had no additional evidence to suggest Lowe smuggled the marijuana into the jail, as opposed to getting it from another inmate or someone else after he had been incarcerated. So the case for Lowe having “introduced” the marijuana into the jail was extraordinarily thin.[1]
[1]That case depends on a tenuous circumstantial inference that possession implies introduction. If an inmate were caught with marijuana within hours after being booked into a jail, the inference might have some force. But when the lapse of time stretches to days or longer, the inference rests more on speculation rather than on reason.
At the close of the State's case, Lowe moved for a judgment of acquittal because the evidence failed to support the charge that he introduced contraband into the jail. Rather than explain how the evidence even circumstantially proved introduction of contraband, the prosecutor moved to amend the complaint to charge possession of contraband. With almost ironic understatement, the prosecutor suggested the case “may be a little cleaner” with the amendment given “the way the evidence has come out.” Lowe's lawyer unequivocally objected. The district court judge granted the motion with the observation that he wasn't “convinced” the change would prejudice the defense. Based on the amended charge of possession of contraband, the judge, not surprisingly, denied Lowe's motion for a judgment of acquittal.
Lowe then testified in his own defense to the effect the jailers simply found some marijuana and said it belonged to him. The jury, not surprisingly, convicted Lowe of possession of contraband.
II.
As the majority explains, the Kansas Code of Criminal Procedure regulates the amendment of complaints. K.S.A. 22–3201(e). A district court may permit an amendment “any time before verdict” if the change entails “no additional or different crime” so long as the “substantial rights of the defendant are not prejudiced.” K.S.A. 22–3201(e). The decision to grant or deny an amendment gets reviewed for abuse of discretion. State v. Bischoff, 281 Kan. 195, 205, 131 P.3d 531 (2006). A district court exceeds that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013) ; State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Here, the district court's decision to allow the amendment departed from the governing law and compromised Lowe's constitutional rights.
The amendment technically satisfied the first requirement of K.S.A. 22–3201(e) insofar as the change from introduction of contraband to possession of contraband did not charge a different statutory crime. The amendment, however, materially altered what the State factually had to prove to convict. The crux of the error here lies in the other requirement—that a defendant's substantial rights not be prejudiced. Coming at the close of the State's case, the amendment deprived Lowe of fair notice of the charge against him and undercut his correlative right to prepare a defense to that charge. Not only is that a substantial right, it is a fundamental right of constitutional dimension protected in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The district court's ruling inflicted a constitutional deprivation on Lowe, and the majority's decision ratifies that deprivation, allowing other criminal defendants to be similarly harmed.
Defendants have a due process right to fair notice of the charges against them so that they may adequately meet those charges. Russell v. United States, 369 U.S. 749, 763 65, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). In Russell, the Court recognized that “basic principles of fundamental fairness” require that the charging instrument must “contain[ ] the elements of the offense” and “sufficiently apprise[ ] the defendant of what he must be prepared to meet.” 369 U.S. at 763–64 ; see Almendarez–Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (“An indictment must set forth each element of the crime that it charges.”). Those are components of the Sixth Amendment right “to be informed of the nature and cause of the accusation.” See United States v. Cruikshank, 92 U.S. 542, 557–58, 23 L.Ed. 588 (1875) ; United States v. Pirro, 212 F.3d 86, 92 (2d Cir.2000) (“[A]n indictment that does not state the essential elements of the crime” fails to satisfy an accused's Sixth Amendment right to notice of the charge.) (citing Russell, 369 U.S. at 761 ). And that right has been incorporated through the Due Process Clause and, therefore, applies to state criminal proceedings. Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
In enunciating the right as a general principle “that has never been doubted in our constitutional system,” the United States Supreme Court simply explained: “[A] person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend.” Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 61 L. Ed 2d 560 (1979). Accordingly, as a case proceeds to trial, a criminal defendant has “a right to fair notice” extending to “the charges against which he must defend” and “the issues to be resolved by the adversary process.” Wooten v. Thaler, 598 F.3d 215, 219 (5th Cir.2010). [2]
[2]The charging instrument in federal criminal prosecutions typically is a grand jury indictment. Kansas prosecutors almost exclusively use complaints or informations to charge defendants and bypass empanelling grand juries. The difference is of no constitutional significance with regard to the notice required to be imparted to the defendant in the charging instrument.
The Kansas Supreme Court has expressly recognized that criminal defendants must be given fair notice of the charges lodged against them and the State may not materially jigger those charges during trial in a way that undercuts a defense even if the statutory offenses remain the same. State v. Wade, 284 Kan. 527, 537, 161 P.3d 704 (2007). In that case, at the prosecutor's request, the district court instructed the jury on aggravated burglary relying on a predicate felony different from the one identified in the complaint, thus changing an element of the aggravated burglary but charging no new crime. The legal effect was the same as permitting an amendment of the complaint, and the court analyzed the issue that way. The court found reversible error because the change “adversely affected the defendant's ability to prepare for and present his defense.” 284 Kan. at 537. More broadly, the court recognized: “We do not change the rules of engagement, after the fact, to dilute the State's burden and make a conviction more likely .” 284 Kan. at 537.
Those principles apply here. Although Wade may entail a more egregious violation of a criminal defendant's constitutional right to fair notice, that doesn't mean those principles are inapplicable here or what happened to Lowe was constitutionally proper. See Pirro, 212 F.3d at 92 (To effect the constitutional protections afforded criminal defendants in the Sixth Amendment, the charging instrument “must be considered as it was actually drawn, not as it might have been drawn.”). An accused has been afforded no fair notice if the State can alter the factual elements of the offense charged in the complaint after trial has begun in a way that substantially compromises a legitimate defense to the crime as outlined in the complaint. For example, in State v. Holman, 295 Kan. 116, 146, 284 P.3d 251 (2012), the court suggested allowing the State to change the date of a charged offense would be considered prejudicial if the accused were relying on an alibi defense and, thus, being somewhere else at the time the crime occurred. See also State v. Hinchsliff, No. 103,608, 2011 WL 4031502, at *7 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. 1110 (2012) (recognizing impermissible prejudice in amendment during trial to change date of offense when accused offers alibi defense); State v. Riffe, 191 N.C.App. 86, 94, 661 S.E.2d 899 (2008) (same).
As I have said, Lowe had a sound defense based on what he had been charged with in the complaint—the evidence didn't show that he introduced contraband into the jail, let alone establish it beyond a reasonable doubt. To deflect a motion to acquit, the State sought to change a material factual element of the charge, thereby not only adversely affecting a valid defense but utterly destroying it. So the rules of engagement, as set out in the complaint, were changed after the State presented its case to make a conviction more likely. Accordingly, Lowe was deprived of constitutionally required fair notice, and his conviction should be reversed. [3]
[3] Had the State amended the charge to possession of contraband well before trial, Lowe might have vigorously pursued a negotiated plea. If the prosecutor were implacable and offered little or no quarter for a plea, Lowe might have gone to trial any way. Unspooling that hypothetical scenario, however, doesn't undo the actual prejudice to Lowe on the actual circumstances as they played out.
III.
The majority offers a couple of justifications for why the district court's ruling should be treated as inconsequential. First, the majority says the evidence supporting the amended charge of possession of contraband was the same as the evidence supporting the original charge of introducing contraband and Lowe knew about that evidence long before trial. Second, the majority says Lowe's defense didn't change as a result of the amendment. Neither of those suggestions holds up. Their fragility illustrates the actual harm to Lowe and to the due process rights of criminal defendants generally.
As to the first, the State also knew perfectly well the evidence against Lowe from the time of the incident. The jailers' account was no secret. Just as significant, however, the State has virtually unchecked power to file criminal charges. And the State has near complete mastery over what to charge and when, subject primarily to time constraints imposed by any statutes of limitation. Here, the State made a conscious determination to charge Lowe with introducing contraband into the jail. Lowe didn't force that choice on the State. Moreover, he had a constitutional right to rely on the complaint in determining how best to respond to the charge and in fashioning a defense.
Up to the time of trial, the State nonetheless retains great flexibility in managing the charges against a criminal defendant. The courts grant the State lots of latitude to amend. Before trial, the State may even dismiss a complaint if it chooses and later file a new complaint with the same or different charges. In this case, the State almost certainly would have been allowed to amend the complaint on a motion made at one of the status conferences. Even if the motion to amend were made just days before trial, the district court would have acted within its discretion in granting the amendment and allowing Lowe additional time to prepare to meet the revised charges.
But that authority wanes decisively as a jury trial starts. Jeopardy attaches when the jurors are sworn to hear the case, and the State may no longer dismiss and refile against the defendant. See State v. Roberts, 293 Kan. 29, 37, 259 P.3d 691 (2011) ; State v. Ruden, 245 Kan. 95, 99, 774 P.2d 972 (1989). So additional Sixth Amendment rights of a criminal defendant then come into play. At that point, the State has to proceed on the charges substantially as they have been set forth in the last pretrial complaint. A court may permit amendments that conform to the evidence so long as they do not materially change the allegations against a defendant in a way that thwarts his or her defense.
In short, the State has broad authority and ample opportunity to charge crimes as it sees fit in its studied judgment. And the State may freely revise that judgment before trial. So I fail to see why equal knowledge of the evidence should somehow impose a detriment on a criminal defendant if the State thinks better of its decision on what to charge, especially when trial has begun. The essence of fair notice holds the State to the consequences of its charging decision at that point in a criminal prosecution when a proposed change prejudices the accused's defense.
In reversing the conviction in Wade, the court rejected an argument analogous to the equal-knowledge position the majority adopts. 284 Kan. at 536. On appeal, the State argued that Wade should have known that the facts might support various felonies as the predicate offense required to prove the aggravated burglary charge and so changing that element of the crime during trial couldn't have been surprising or prejudicial. The court acknowledged defense counsel presumably understood the State could have charged the aggravated burglary with different elements but rejected the notion that such an understanding would permit the amendment during trial because the judicial process “do[es] not make one accused of [a crime] speculate on the State's theory of guilt.” 284 Kan. at 536.
The same holds true here. The State could have charged Lowe with a violation of K.S.A.2011 Supp. 21–5914 by relying on possession of contraband as an element of the crime. That possibility should have been no surprise to Lowe's trial counsel. But the State didn't charge the crime that way and, instead, relied on the element of introducing contraband. After the trial began and jeopardy attached, Lowe no longer had to speculate about the theory of guilt. The district court's ruling undermined that principle and the constitutional rights it protects. Just as in Wade, the error requires reversal of Lowe's conviction.
For its second rationale, the majority suggests the amendment of the complaint didn't prejudice Lowe because the defense he offered after the amendment—that the jailers effectively attributed some stray marijuana to him—also would have been a defense to the original charge of introducing contraband. Although true, that approach takes a backward look at the circumstances and the evidence. It considers the defense Lowe was forced into as a result of the amendment—not the much stronger defense he would have offered had the amendment been denied and had the trial continued based on the crime as charged in the complaint.
Assuming both the motion to amend and the motion for judgment of acquittal had been denied, Lowe would have rested without offering any evidence. He would not have testified. Lowe's trial lawyer indicated as much in arguing posttrial motions. And deferring opening statement was consistent with that strategy. The defense would have been a good one to the charge of introducing contraband. Lowe's lawyer could have well argued the case to the jury this way:
The State has to prove to you beyond a reasonable doubt that Lowe brought marijuana into the jail. And there was no evidence of that. Lowe could have gotten the marijuana from another inmate who smuggled it in or from another source. The State has only shown that Lowe had marijuana in his possession. That is not the charge against Lowe. Under the instructions and the law, the State has not proved what it charged beyond a reasonable doubt, so you must find Lowe not guilty of that charge. Your oath and duty as jurors requires nothing less.
The amendment of the complaint completely gutted that defense. The State's unrebutted case plainly showed Lowe possessed marijuana in the jail, although that wasn't the charge against him at that point. Just because a defendant can conjure some inferior defense to a charge the State has been permitted to materially alter in response to a motion for a judgment of acquittal doesn't demonstrate the absence of prejudice or compliance with constitutionally guaranteed fair notice. This case illustrates why.
Finally, the caselaw the majority cites is inapposite. One of the decisions concerned an amendment made before trial, entailing a substantially different balancing of interests from amending charges during trial.[4] Other cases involved trial amendments that were technical in nature addressing essentially peripheral allegations that may have been imprecise in the complaint or did not otherwise upset the theory of defense. [5] Some of the cases simply restate the general proposition that an amendment may be permitted so long as it does not prejudice the defendant.[6] Here, however, the amendment did prejudice Lowe's defense and should not have been permitted after the trial had begun.
[4] State v. Calderon–Aparicio, 44 Kan.App.2d 830, 849, 242 P.3d 1197 (2010), rev. denied 291 Kan. 914 (2011) (amendment permitted 3 days before trial to expand charge of possession of marijuana with intent to sell to include intent to distribute or deliver when Calderon–Aparicio defended throughout claiming he never had the marijuana).
[5] Holman, 295 Kan. at 146–47 (after close of trial evidence, State permitted to expand time period during which defendant allegedly sexually molested his young stepdaughter; defendant offered evidence he had a job during the original time frame and likely would have been at work during the time of day the crimes happened); State v. Starr, 259 Kan. 713, 720, 915 P.2d 72 (1996) (At the close of its evidence, the State was permitted to reinstate premeditated first-degree murder, a charge it had dismissed just before trial, as an alternative to felony murder; defendant had given pretrial notice of and relied on an alibi defense, meaning he did not commit the criminal act whatever its character.).
In State v. Ransom, 288 Kan. 697, 715–16, 207 P.3d 208 (2009), the court found no error in allowing the State to amend a felony murder charge at the close of the evidence to allege the victim's death occurred during Ransom's flight from an underlying felony of attempted aggravated robbery or aggravated robbery. The complaint had charged the death occurred during the robbery or its attempt. See K.S.A. 21–3401(b) (first-degree murder includes killing occurring during commission of, attempt to commit, or flight from inherently dangerous felony). The evidence showed Ransom and several cohorts attempted to rob a drug house. Gunshots were fired, and an occupant of the house was killed. Witnesses put a shotgun in Ransom's hands; forensic evidence showed that could not have been the weapon fatally injuring the victim. In a confession to police and later presented to the jury, Ransom said he and his confederates had approached the house and fled from the porch when the shooting started. The amendment of the complaint addressed an esoteric point. The original complaint charged attempted aggravated robbery as an underlying felony—the failure to complete the crime of aggravated robbery. Ransom's flight evidences the failure and makes the crime an attempt. So whether running from the house is itself part of the attempt, i.e., the failure, or actually a distinct act of flight from the attempt seems to be a distinction without much of a difference. More significant here, the court found the amendment did not prejudice Ransom. But the decision never outlines Ransom's defense, so it is impossible to gauge the rationale behind that conclusion. And, in turn, it is impossible to apply the brief discussion in Ransom as analogous precedential authority on the point. As a result, Ransom simply stands for the general proposition that a complaint may be amended during trial if the change does not prejudice the accused. But it stands for no more than that.
[6] Government of Virgin Islands v. Bedford, 671 F.2d 758, 765–66 (3d Cir.1982) (accused defended on ground he did not commit the criminal acts; charging instrument alleged elements of both assault with intent to rob, the original charge, and assault with a deadly weapon, the charge allowed by amendment during trial); United States v. Pelose, 538 F.2d 41, 45 (2d Cir.1976) ; Walters v. Gov't of Virgin Islands, 172 F.R.D. 165, 170 (D.V.I.), aff'd 135 F.3d 764 (3d Cir.1997) ; State v. Price, 940 S.W.2d 534, 537 (Mo.App.1997).
IV.
I would reverse Lowe's conviction and remand for further proceedings. The appropriate remedy would be intriguing. But the issue amounts to an abstraction, since the majority affirms Lowe's conviction, so I simply mention one possibility. The district court should pick up the case as it was at the point of error. The State's motion to amend should be denied, and the district court should then rule on Lowe's motion for judgment of acquittal based on the charge in the complaint and the State's evidence. Were the district court to deny that motion, a new jury ought to be empanelled to try Lowe on the charge of introducing contraband into the jail.