Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 13CA758.
Attorneys for Petitioner: Cynthia H. Coffman, Attorney
General Kevin E. McReynolds, Assistant Attorney General
Attorneys for Respondent: Springer and Steinberg P.C. Michael
P. Zwiebel Denver, Colorado
Prosecutors charged James Willard Washam, III by information
with twelve counts of sexual assault on a child. In the
information, a portion of the charged date range fell outside
the statute of limitations. After trial began, the
prosecution successfully moved to amend the information,
narrowing the date range so that it fell completely within
the statute of limitations. Ultimately, Washam was convicted
on all twelve counts. He appealed, arguing that under Crim.
P. 7(e), the amendment to the date range was a substantive
amendment, and thus the trial court abused its discretion in
permitting the amendment after the trial began. A majority of
a division of the court of appeals agreed, vacating
Washam's convictions and ordering the charges against him
to be dismissed with prejudice.
The People petitioned this court for review. We granted
certiorari 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 and remand to that court for consideration
of the remaining issues raised but unresolved on appeal.
Facts and Procedural History
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. This sexual contact continued until 2000.
M.L. reported Washam's conduct to law enforcement in
In November 2007, prosecutors charged Washam by information
with numerous crimes, including twelve counts of sexual
assault on a child under section 18-3-405(1), C.R.S. (2007).
This statute criminalizes sexual contact with a victim who is
less than fifteen years of age when the actor is at least
four years older than the victim. Because the General
Assembly amended this statute in 2006, see ch. 119,
sec. 1, § 16-5-401(1.5)(a), 2006 Colo. Sess. Laws 410,
411,  and because Washam was charged in 2007,
there are two applicable statutes of limitations that apply
to the charges against Washam under section 18-3-405(1): one
for offenses committed before July 1, 1996, and another for
offenses committed on or after July 1, 1996.
For offenses committed before July 1, 1996, the statute of
limitations is ten years from the date of the
assault. Accordingly, because the prosecution did
not charge Washam until November 2007-more than ten years
after any date prior to July 1, 1996-any offenses he
committed prior to July 1, 1996, would be barred. For
offenses committed on or after July 1, 1996, there is no
limit on the statute of limitations. See §
16-5-401(1.5)(a), C.R.S (2007). As a result of these two
statutes of limitations, only sexual conduct that occurred
between July 1, 1996, and April 4, 1997 (the day before
M.L.'s fifteenth birthday), would constitute prosecutable
charges under section 18-3-405(1).
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.
After the jury was sworn,  Washam moved to dismiss the
sexual-assault-on-a- child counts for lack of jurisdiction.
He pointed out that the March 21, 1996 date at the front end
of the date range in the information fell outside the
applicable statute of limitations. Because all twelve counts
alleged the same defective date range, Washam argued that the
trial court lacked jurisdiction over all twelve charges. In
response, before delivering its opening statement, the
prosecution successfully moved to once more amend the
information under Rule 7(e) to allege dates that were within
the statute of limitations. Specifically, this final
amendment narrowed the range of dates in the information by
narrowing the front end of the range from March 21, 1996, to
July 1, 1996. This date range was no longer defective: The
timeframe was not time-barred by the applicable statute of
limitations, and M.L. was fourteen years old between these
The jury ultimately found Washam guilty on all
counts. Washam appealed. A majority of the division
below vacated Washam's convictions. The majority noted
that it was undisputed that March 21, 1996-the date on the
front end of the range in the information when the trial
began-fell outside the applicable statute of limitations,
meaning Washam's appeal turned on "whether an
information that charges a date range partly within and
partly outside of the statute of limitations is valid."
People v. Washam, No. 13CA758, slip op. at 12
(Colo.App. May 7, 2015).
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.
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 was not controlling.
Id. at 37. Rather, it read the cases following
Bustamante and the adoption of Rule 7(e) to have
shaped a policy favoring non-prejudicial amendments over
dismissal of charges for mere technical defects. See
id. at 37-42. Applying this reading of the law, the
dissent concluded that the amendment here was one of form
rather than substance and that it did not prejudice Washam,
meaning it was permissible under Rule 7(e) even if made
during trial. Id. at 47-48. Given these conclusions,
the dissent would have affirmed the trial court's order
permitting the final amendment. Id. at 52-53.
The People appealed, and we granted certiorari.
II.Standard of ...