(dissenting) — I dissent. This case involves the interplay between article 1, section 22 of the Washington Constitution and CrR 2.1(e). This issue has been addressed and resolved in State v. Pelkey, 109 Wn.2d 484, 745 P.2d 854 (1987), which this court recently refused to overrule in State v. Markle, 118 Wn.2d 424, 436, 823 P.2d 1101 (1992). In this case, however, the majority misconstrues the issue and fails to follow Pelkey and Markle. In Pelkey, this court held a midtrial amendment to an information charging a different crime violates article 1, section 22. Pelkey, at 487. Article 1, section 22 gives the accused the right to demand the nature and cause of the accusation before the trial starts. The Pelkey and Markle rule is correct because it recognizes the defendant's entire defense is necessarily based on the charge alleged in the original information at the start of trial. An amendment midway through trial, after opening statements and witness testimony, prejudices the defendant's ability to fairly defend himself or herself, placing the defendant at a severe disadvantage. The majority contends the burden is on the defendant to show prejudice. However, Pelkey explicitly rejected this contention, and just 9 months ago, in Markle, *624we reaffirmed Pelkey. Justice Guy, writing for a unanimous court, indicated that under Pelkey a midtrial amendment of information is "reversible error per se even without a defense showing of prejudice". (Italics mine.) Markle, at 437. Yet today, the majority ignores Markle and attempts to overrule Pelkey. Moreover, the cases cited by the majority in reaching its conclusion do not support its analysis. Rather, this court has consistently held a new crime is charged when the identity of the subject property is changed. Because the midtrial amendment in this case changed the subject property, the amendment alleged a new crime in violation of the defendant's rights under article 1, section 22.
Article 1, section 22 guarantees criminal defendants "shall have the right ... to demand the nature and cause of the accusation" against them. Const, art. 1, § 22 (amend. 10). "Under this criminal provision, an accused person must be informed of the charge he or she is to meet at trial, and cannot be tried for an offense not charged". Pelkey, at 487 (citing State v. Carr, 97 Wn.2d 436, 439, 645 P.2d 1098 (1982); State v. Rhinehart, 92 Wn.2d 923, 602 P.2d 1188 (1979)).
In this case, the defendant was charged with third degree malicious mischief by slashing tires. Midway through trial, after three of the State's four witnesses had testified and been excused, the State moved to amend the information to include an allegation of third degree malicious mischief by knocking down mailboxes. The court initially denied the motion. After the direct testimony by the fourth and final witness, the court allowed the State's motion to amend the information to add the mailbox allegation to the tire slashing charge. Pelkey squarely holds such midtrial amendments are unconstitutional. Pelkey, at 491, 487 (citing State v. Olds, 39 Wn.2d 258, 235 P.2d 165 (1951)). Nevertheless, the majority refuses to find Pelkey controlling.
The first flaw in the majority's analysis is that it misconstrues Pelkey. The majority mischaracterizes Pelkey as addressing only the constitutionality of amendments made after the State rests its case. Majority, at 620-21. In Pelkey, *625the State moved to amend midtrial, after presenting its case in chief. Pelkey, at 486. However, the majority mischaracterizes Pelkey as turning only on the fact that the amendment came after the State rested, instead of some point earlier in trial. The distinction actually drawn in Pelkey was between the constitutionality of amendments before trial starts versus amendments after trial has already begun. The court stated:
During the investigatory period between the arrest of a criminal defendant and the trial, the State frequently discovers new data that makes it necessary to alter some aspect of the information. It is at this time amendments to the original information are liberally allowed, and the defendant may, if necessary, seek a continuance in order to adequately prepare to meet the charge as altered.
The constitutionality of amending an information after trial has already begun presents a different question. All of the pretrial motions, voir dire of the jury, opening argument, questioning and cross examination of witnesses are based on the precise nature of the charge Alleged in the information. Where a jury has already been empaneled, the defendant is highly vulnerable to the possibility that jurors will be confused or prejudiced by a variance from the original information.
(Citation omitted. Italics mine.) Pelkey, at 490. Thus, under Pelkey the question of allowing amendments turns on whether the amendment is requested before or after trial has started, rather than, as the majority suggests, on whether the State has rested its case.
The majority also incorrectly attempts to distinguish the facts of Pelkey from this case. Even if the crux of Pelkey is the timing of the amendment at the close of the State's case, the timing difference between this case and Pelkey is slight. In this case, the State moved to amend after direct examination of its final witness, but before the defendant's cross examination of this witness. In Pelkey, the State moved after cross examination of its final witness. Thus, the only difference between the cases is the cross examination of the final witness.
It is absurd to make this difference the basis for distinguishing Pelkey from this case. Under the majority's reasoning, an amendment is acceptable if made after direct exami*626nation of the State's final witness but before cross examination of this witness. However, the same amendment made after cross examination would be unconstitutional. Making the constitutionality of an amendment turn on one cross examination is arbitrary, and misses the point of Pelkey and the purpose underlying article 1, section 22.
The purpose of article 1, section 22 is to provide defendants with sufficient notice of the charge against them so they will not be prejudiced in preparing their defense. See Pelkey, at 490-91. The majority even acknowledges that this is the "precise evil that article 1, section 22 was designed to prevent". Majority, at 620. Yet the majority ignores the clear prejudice in this case resulting from the midtrial amendment. Moreover, this prejudice is virtually the same in this case as in Pelkey.
In Pelkey, the court noted a defendant's entire defense is based on the charge alleged in the original information at the start of trial. Pelkey, at 490. All motions, voir dire, opening statements, questioning, and cross examination are necessarily based on this charge. An amendment midway through trial, after opening statements and witness testimony, damages a defendant's ability to fairly defend himself or herself because the charge has changed. Thus, the amendment prejudices the defendant, placing him or her at a severe disadvantage.
In this case, the trial court first denied the State's motion to amend on these very grounds. The court noted defense counsel had developed one theory of the case based on defending against the tire slashing charge, a charge on which the defendant ultimately prevailed. Fact-finding hearing, at 41, 43. Changing the charge to include knocking down mailboxes would force the defendant to change his defense theory mid-trial. Thus, the court correctly concluded at that time the defendant would be prejudiced by a midtrial amendment because the defendant and his counsel had already made strategic decisions based on the original information. Fact-finding hearing, at 36.
Not only was the defendant forced to change strategies midstream, but he also lost opportunities to defend himself *627against the new allegation. In particular, the defendant was denied the opportunity to effectively cross-examine three of the four State's witnesses on the new mailbox allegation. The three witnesses testified, were cross-examined, and were excused by the court on the first day of trial. The defendant cross-examined those witnesses based only on the charge of tire slashing. The State did not move to amend the information to add the mailbox charge until the second day of the 2-day trial, before its final witness. Thus, the opportunity for the defendant to effectively cross-examine the previous witnesses on this new, different allegation was lost.
Despite this apparent prejudice, the majority concludes the defendant has failed to show prejudice,2 and his constitutional challenge must fail. Majority, at 622-23. Under the majority's analysis, a defendant must show actual prejudice to sustain a constitutional challenge under article 1, section 22.
The majority derives this prejudice requirement from CrR 2.1(e). According to the majority, CrR 2.1(e) "amply delineates the constitutional boundaries applicable to amendments during the State's case". Majority, at 622. Because CrR 2.1(e) requires the defendant to prove actual prejudice, the majority reads into article 1, section 22 a requirement of showing prejudice. Yet, our constitution contains no such requirement. When an amendment adds a new crime, a defendant "need not show prejudice" under an article 1, section 22 challenge. State v. Mahmood, 45 Wn. App. 200, 724 P.2d 1021, review denied, 107 Wn.2d 1002 (1986). Furthermore, in Pelkey, this Court explicitly rejected this analysis adopted by the majority:
The State contends that, under [CrR 2.1(e)], the defendant bears the burden of showing that she has suffered prejudice from the midtrial amendment, that she has failed to do so, *628and therefore, her challenge must fail. We cannot sustain an interpretation of a court rule which contravenes the state constitution.
CrR 2.1(e) necessarily operates within the confines of article 1, section 22.
(Italics mine.) State v. Pelkey, 109 Wn.2d 484, 490, 745 P.2d 854 (1987). Amending the information midtrial "necessarily prejudices this substantial constitutional right, within the meaning of CrR 2.1(e)". (Italics mine.) Pelkey, at 491.
Nevertheless, the majority declares that a constitutional challenge must fail unless the defendant can show actual prejudice from a midtrial amendment. This court rejected that argument in 1987 in Pelkey. Just recently, we rejected the State's request to overrule Pelkey in State v. Markle, 118 Wn.2d 424, 436, 823 P.2d 1101 (1992). As stated by Justice Guy, writing for a unanimous court: under Pelkey, midtrial amendment of an information is "reversible error per se even without a defense showing of prejudice". Markle, at 437. Yet today, the majority ignores Markle and attempts to overrule Pelkey3
The cases cited by the majority in reaching its conclusion do not support its analysis. The majority first cites State v. Wilson, 56 Wn. App. 63, 782 P.2d 224 (1989), review denied, 114 Wn.2d 1010 (1990). In Wilson, the State moved to amend the information at the start of trial, before any witnesses were examined. Wilson, at 64-65. Unlike this case, the defendant in Wilson did not lose the opportunity to cross-examine witnesses on the amended charge. Furthermore, the additional count in Wilson was for the same charge of indecent liberties involving the same 5-year-pld child. Wilson, at 64. Conversely, in this case the amended charge involved a factually different incident relating to completely different property.
*629Other cases cited by the majority are also distinguishable and do not support its analysis. See State v. Brown, 55 Wn. App. 738, 780 P.2d 880 (1989), review denied, 114 Wn.2d 1014 (1990); State v. Gosser, 33 Wn. App. 428, 656 P.2d 514 (1982); State v. Mahmood, 45 Wn. App. 200, 724 P.2d 1021, review denied, 107 Wn.2d 1002 (1986). Lake Wilson, both Brown and Gosser involved amendments on the first day of trial when the defense still had the opportunity to cross-examine witnesses based on the amended information. Brown, at 743; Gosser, at 434-35. In Mahmood, evidence about the amended charge had not yet been introduced; thus, the defendant still had the opportunity to cross-examine and present a defense. Mahmood, at 204-05. In contrast, the amendment in this case came after three of the State's four witnesses had testified and been dismissed. Thus, the defendant's opportunity to effectively cross-examine was largely lost.4
The final flaw in the majority's analysis is that it mischaracterizes the nature of the midtrial amendment. According to the majority, the amendment only states "an additional method of committing an offense". Majority, at 619. In other words, the action of knocking down mailboxes is simply a different method of committing the crime of malicious mischief in the third degree.
The Court of Appeals has allowed an amendment that merely specifies a different means of committing the crime originally charged. Gosser, at 434-35 (assault with intent to commit a felony amended to assault with a weapon because they were both means of committing second degree assault). Gosser, however, is distinguishable. The amendment in Gosser did not change the victim's identity or the charge of assault. Only the means by which the assault was accomplished was changed. Here, by contrast, the State changed the property *630that was the subject of the alleged crime: the original charge was knowingly and maliciously damaging tires, whereas the crime for which the defendant was convicted was knowingly and maliciously damaging a mailbox. Knocking down mailboxes and slashing tires involve factually different incidents. In this case, the amendment to the information does not simply add a different means of committing malicious mischief. Rather, the allegation is of a completely separate and distinct act.
Washington courts have consistently held a new crime is charged when the prosecution changes the identity of the subject property or the property's owner. See, e.g., State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980) (reversing conviction when information charged defendant with assaulting both victims but jury was instructed that guilt could be based on assault of either of two victims); State v. Phillips, 27 Wash. 364, 67 P. 608 (1902) (reversing conviction for stealing Canadian currency when charged with stealing United States currency); State v. Van Cleve, 5 Wash. 642, 32 P. 461 (1893) (denying amendment changing name of larceny victim from Wm. Burbank to Walter Burbank).
In this case, the prosecution amended the information to include malicious mischief to mailboxes, which was an entirely new crime from slashing tires. "Article 1, section 22 of the state constitution prohibits an amendment to an existing count where the amendment is essentially a different crime". Mahmood, at 205-06 (citing State v. Olds, 39 Wn.2d 258, 235 P.2d 165 (1951)). Because the amendment in this case involved a factually different crime, the defendant's article 1, section 22 right was violated.
The ultimate problem in this case is one of fairness. The State had ample opportunity for over a year to interview its witnesses and amend the information to include a new charge based on a completely different factual scenario. Instead, the State moved to amend only after realizing it could not prove malicious mischief by slashing tires, but might prove knocking down mailboxes. However, " 'accusation must precede conviction". Pelkey, at 488 (quoting State v. *631Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894)). Preventing this type of fundamental unfairness is exactly why article 1, section 22 gives an accused the right to demand the nature and cause of the accusation before trial starts.
In conclusion, the prejudice from the midtrial amendment is the same in this case as in Pelkey. Regardless of whether the amendment came before or after cross examination of the final witness, the defendant's ability to defend himself against the new allegation was severely impaired. The defendant's investigation, cross examination, and decision about going to trial were all based on the original information. Like Pelkey, once that information was changed, the defendant was forced to shift his defense theory midway through trial to defend himself against an entirely new allegation. He also lost the opportunity to effectively cross-examine earlier witnesses on the amended charge. Thus, Pelkey controls the outcome of this case. No sound justification exists for not requiring the State to investigate its cases before trial and to charge the crime it intends to prove at trial. Article 1, section 22 at a minimum requires this. I would reverse the conviction.
Dore, C.J., and Utter, J., concur with Johnson, J.
Reconsideration denied March 17, 1993.
The basis for the majority's conclusion is that the activities were connected as one continuous course of conduct. However, even if it were one continuous course of conduct, a charge of damaging mailboxes and tires is factually different from a charge of damaging only tires. The defendant still lost the opportunity to cross-examine on the combined charge and was forced to change his strategy midtrial. Thus, the defendant was still prejudiced by the amendment.
Of course, the extent to which the majority's decision overrules Pelkey remains to be seen. This case involves only a juvenile fact-finding hearing before a judge, rather than a jury trial of an adult. As noted in Pelkey, "[wjhere a jury has already been empaneled, the defendant is highly vulnerable to the possibility that jurors will be confused or prejudiced by a variance from the original information". Pelkey, at 490.
AU three of these cases are also distinguishable because they involved challenges to amending an information under CrR 2.1(e), not article 1, section 22. As the majority notes, review in this case was granted only on the constitutional issue, not on the issue of whether the amendment was proper under CrR 2.1(e). Majority, at 619 n.l. Thus, these three cases analyzing whether amendments were proper under CrR 2.1(e) are not controlling in determining whether the amendment in this case was proper under article 1, section 22.