Can the state amend criminal information days before trial? State v. Nelson-Waggoner Explained

In State v. Nelson-Waggoner, the Utah Supreme Court addressed whether trial courts may permit the state to amend criminal information shortly before trial and when such amendments constitute plain error or ineffective assistance of counsel.

Background and Facts

Nelson-Waggoner was charged with aggravated sexual assault occurring “on or about November 17, 1996 to November 30, 1996.” He filed notices of alibi establishing he was in Cache County but not with the victim on November 17, and in Arizona on November 24. Two days before trial, the state amended the information to narrow the date to “on or about November 17, 1996,” effectively neutralizing his alibi defense for November 24.

Key Legal Issues

The court examined two issues: (1) whether allowing the amendment constituted plain error under Rule 4(d) of the Utah Rules of Criminal Procedure, and (2) whether counsel’s failure to object to the amendment or to prosecutor’s closing arguments constituted ineffective assistance of counsel under the Strickland standard.

Court’s Analysis and Holding

The court found no plain error, distinguishing this case from State v. Robbins, where expanding date ranges prejudiced alibi defenses. Here, the amendment provided more specific information as required by Robbins, giving defendant “the best information [the state] had as to when the assault took place.” The court emphasized that substantial rights are not prejudiced when amendments narrow rather than expand the scope of charges. Regarding ineffective assistance, the court found counsel’s performance neither deficient nor prejudicial since the amendment was proper and closing argument comments about “paucity” of defense evidence did not constitute improper commentary on defendant’s failure to testify.

Practice Implications

This decision clarifies that narrowing amendments providing greater specificity generally comply with Rule 4(d)’s requirement that amendments not prejudice substantial rights. Practitioners should distinguish between amendments that expand liability (potentially prejudicial) versus those providing better notice (generally permissible). The ruling also reinforces that prosecutors may comment on the absence of defense evidence without violating Fifth Amendment protections, provided statements do not constitute overt references to a defendant’s failure to testify.