Pace v. United States

705 A.2d 673, 1998 D.C. App. LEXIS 12, 1998 WL 12569

Opinions

STEADMAN, Associate Judge:

Appellant was charged by indictment with a number of counts related to the sexual abuse of three children. After the counts relating to two of the children were dismissed, appellant was convicted on three remaining counts: enticing a minor child, D.C.Code § 22-3501(b) (1989), taking indecent liberties with a minor child, D.C.Code § 22-3501(a) (1989), and sodomy with a minor, D.C.Code § 22-3502 (1989),¹ each relating to J.R., the remaining child. The indictment charged appellant with committing these offenses against J.R. “[b]etween on or about April 1, 1994 and on or about April 30, 1994.”

Appellant challenges his convictions on the ground that the government’s evidence regarding the time of the offenses so varied from the time period specified in the indictment that it amounted to a constructive amendment of, or at least an impermissible variance from, the indictment.² We hold that the indictment was not constructively amended, and, although a variance may have occurred, no prejudice resulted. Accordingly, we affirm.³

I.

J.R. lived in an apartment with her mother and appellant, who was her mother’s boyfriend, at all relevant times. J.R., who was nine years old at the time of trial in September 1994, specifically stated at five different points in her testimony that she had been assaulted by appellant on only one occasion. Nevertheless, the trial court found that “a jury could listen to the bottom line of [J.R.’s] testimony and think that despite the inconsistency, she was clearly describing two distinct incidents.” J.R. described an incident in which appellant, told her to go into her mother’s bedroom, and then committed anal sex and oral sodomy on her while she lay on the floor of her mother’s bedroom. J.R. also described an incident in which appellant committed anal sex on her while she lay on the bed in her own bedroom.⁴ The trial court instructed the jury that appellant was charged with offenses against J.R. only with regard to the incident that J.R. described as having occurred in her mother’s room,⁵ and that, if the jury found that the evidence showed any other incidents, any such evidence was to be considered only “for the purpose of deciding whether it would show some sort of unusual sexual preference by the defendant towards the complainant.”

With regard to the timing of the offenses, J.R. testified that appellant sexually assaulted her after Christmas, “on school days,” before summertime. A police officer involved in the case testified that appellant moved out of the apartment where J.R. lived on June 15, 1994, and that J.R. had stated that appellant first sexually abused her be fore Christmas 1993 and continued to do so until the time of a cousin’s visit, which was at the end of May 1994. In addition, a doctor who examined J.R. in June 1994 testified that J.R.’s mother had indicated to her that J.R. had alleged a sexual assault in December of 1993 and again in April 1994.⁶ The indictment charged that the offenses occurred “[b]etween on or about April 1, 1994 and on or about April 30, 1994.” The government’s proof in general established only that the offenses occurred sometime during a five-month period between late December 1993 and late May 1994, although given the testimony of the doctor and the police officer, as well as the child herself, the incident could have occurred in the time frame of the indictment.

II.

A.

A deviation between the charges in the indictment and the proof at trial can constitute a variance from, or an amendment (literal or constructive) of, the indictment. (Terrence) Ingram v. United States, 592 A.2d 992, 1005-06 (D.C.1991). We recently addressed the doctrines of constructive amendment and variance in the companion cases of Wooley v. United States, 697 A.2d 777 (D.C.1997) and Robinson v. United States, 697 A.2d 787 (D.C.1997). While an amendment warrants reversal of a conviction, a variance between the indictment and the proof not amounting to a constructive amendment does not warrant reversal unless the appellant shows prejudice. Wooley, supra, 697 A.2d at 785 (Farrell, J., concurring); (Terrence) Ingram, supra, 592 A.2d at 1005-06.

Appellant contends in substance that a constructive amendment occurred in this case. There are “two sub-types of constructive amendment cases.” Wooley, supra, 697 A.2d at 785 (Farrell, J., concurring). “One has found a constructive amendment where the jury convicted the defendant of a factually different offense from that presented to the grand jury. In the other type, constructive amendment analysis has been applied to an allegation that the jury convicted the defendant of a different offense legally understood from that presented to the grand jury.” Id. (citations omitted). In the case where different facts are alleged to have been presented to the grand jury, the test for constructive amendment is whether “‘the prosecution was relying at trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment,’ rather than ‘a single set of facts’ common to both.” Id. at 786 (quoting Jackson v. United States, 123 U.S.App.D.C. 276, 279, 359 F.2d 260, 263 (1966)). In the case where a different offense, legally understood, is alleged to have been presented to the grand jury, the test for constructive amendment is whether “the structure of the statute defining the crime and the legal consequences the legislature has attached to different acts” indicate that the “crime charged in the indictment differs in a legally significant way from the crime of conviction.” Id.

Here appellant does not contend that he was convicted of a different offense legally understood, but that he was convicted of a factually different offense from that presented to the grand jury. Thus, we must determine whether the prosecution was relying on a distinctly different complex of facts at trial from those set forth in the indictment. The indictment in this case charged that appellant, between on or about April 1, 1994, and on or about April 30, 1994, enticed J.R., took indecent liberties with J.R., and committed sodomy with J.R. This was the precise conduct of which appellant was convicted. Although there was evidence that appellant may have sexually assaulted J.R. in two separate incidents — once in J.R.’s room and once in the mother’s room — the jury was instructed that the only incident for which appellant could be convicted was the one in the mother’s room.⁷ To the extent that J.R. described a second incident that occurred in her own room, that incident — unlike the one that J.R. described as having occurred in her mother’s room after appellant told her to go there — did not involve enticement, one of the offenses charged by the grand jury.⁸ In light of the trial court’s instructions on the particular incident comprising the charged offenses and on the timing of the offenses charged, appellant could only have been convicted on the basis of the incident that occurred in the mother’s room.

Furthermore, in this case, the trial court’s very instructions reflected the general terms of the indictment. The trial court told the jury:

Now, regarding each of the charges^ you will note that the indictment charges that the offenses were committed on or about April 1st, 1994 — were committed between on or about April 1st, 1994 and April 30th, 1994. The proof need hot establish with certainty the exact date of the alleged offenses. It is sufficient that the evidence in the case establishes beyond a reasonable doubt that the offenses wére committéd on a date reasonably near the dates alleged.

This instruction also reflected this court’s affirmation of the use of relatively imprecise descriptions in recognition of the inability of minors to identify exact times, or even places. See Pounds v. United States, 529 A.2d 791, 793 n. 2 (D.C.1987); Jackson v. United States, 503 A.2d 1225, 1226-27 (D.C.1986). We do not understand appellant’s argument of evidentiary insufficiency to take issue with satisfaction of the requirements of this particular instruction as given to the jury. See note 3 supra. Accordingly, because the prosecution did not rely on a distinctly different complex of facts at trial from those set forth in the indictment, we thus conclude that no constructive amendment occurred.

B.

Appellant also argues that a variance occurred in this case. A variance occurs when “the evidence at trial proves facts materially different from those alleged in the indictment.” Scutchings v. United States, 509 A.2d 634, 636 (D.C.1986) (emphasis omitted). We may assume this argument for purposes of this aspect of the appeal. However, where, as here, the variance does not amount to a constructive amendment, reversal is warranted only upon a showing of prejudice. Wooley, supra, 697 A.2d at 785 (Farrell, J., concurring); (Terrence) Ingram, supra, 592 A.2d at 1005-06. A variance may prejudice a defendant such as by (1) depriving him of adequate pretrial notice of the details of the charge against which he must defend, and/or (2) depriving him of protection against reprosecution. Barker v. United States, 373 A.2d 1215, 1218 (D.C.1977). Appellant has failed to show any prejudice, and we discern none under the circumstances of this case.

Appellant argues that he was deprived of the requisite notice, on the theory that he might have been able to present an alibi defense for some dates if the indictment had alleged a broader time period. However, the indictment’s use of the phrase “on or about” with reference to the time period placed appellant on notice that the exact time period was not critical. (Terrence) Ingram, supra, 592 A.2d at 1007 (construing “on or about” to mean “a date reasonably close to the one alleged”). See also United States v. Cochran, 697 F.2d 600, 604-05 (5th Cir.1983) (variance of 50 days not prejudicial and thus not reversible error; “the concerns raised by a variance [i.e., notice and protection from reprosecution] inform the inquiry into reasonable limits of the on or about allegation when time is not an element of the offense”). Moreover, the government filed a written pretrial notice announcing its intention to introduce “other crimes” evidence⁹ — includ ing evidence of acts against J.R. several times during the three years that appellant lived in the apartment — thereby placing appellant on notice that his conduct with J.R. over a broad period might be at issue at trial. In spite of this notice, appellant presented only a general denial defense;¹⁰ he neither presented an alibi defense at trial, nor proffered any possible alibi to the trial court. Furthermore, after hearing J.R.’s testimony, appellant did not request a continuance.¹¹ Even on appeal, appellant does not allege that he actually had an alibi for any part of the relevant period, during which he was continuously living with J.R.¹² Therefore, while the variance here had the potential to cause prejudice by depriving appellant of the requisite notice and thus impermissibly hampering his defense, we see no possibility that any such prejudice actually occurred. We agree with the trial court that there was no “infringe [ment] on the ability of the [defendant to defend the charges.”¹³

Accordingly, the judgment of conviction appealed from is

Affirmed.

Footnotes

1

. The statutory provisions under which appellant was convicted were repealed as of May 23, 1995, after the offenses at issue were committed, and after appellant was convicted. See D.C. Law 10-385, § 501(b), 42 D.C.Reg. 53, 62 (1995). For the corresponding provisions currently in force, see D.C.Code §§ 22-4108 to -4112 (1996).

2

. Appellant made this argument to the trial court • in a motion for judgment of acquittal and a motion to set aside the verdict. The trial court deferred its ruling on the issue during trial. After trial, the court denied the motion to set aside the verdict, finding that, to the extent that a variance occurred, appellant had not been prejudiced by it.

3

. Appellant also challenges the sufficiency of the evidence presented against him, asserting that the complainant’s testimony was unreliable and impermissibly vague. Although not overwhelmed by the proof, we cannot say that the jury acted unreasonably in crediting it. See Barrera v. United States, 599 A.2d 1119, 1124-25 (D.C.1991).

4

. We see no reason to second-guess the trial court’s finding that the jury could have interpreted this testimony as describing two incidents. The trial judge heard the testimony and observed the witness. Moreover, after J.R. described the incident in her own room, the prosecutor asked her, "Was this a different time than you just told us about?” and J.R. answered "Yes.” In addition, a police officer involved in the case testified that J.R. told him that appellant had sexually abused her “a lot of times” and in both bedrooms.

5

. In closing argument, the prosecutor advised the jury that the government was proceeding on the theory that the anal sex in the mother’s room constituted the offense of taking indecent liberties with a minor child, while the oral sodomy in the mother’s room constituted the offense of sodomy with a minor.

6

. While J.R.'s mother testified that J.R. reported just one incident to her, in December 1993, such inconsistencies in the testimony are for the jury to resolve. See Payne v. United States, 516 A.2d 484, 495 (D.C.1986).

7

. The prosecutor also, made this point in closing argument.

8

. Under former D.C.Code § 22 — 3501 Cb) (1989), see note 1 supra, enticement consisted of taking, enticing, alluring, or persuading a child “to any place whatever for the purpose either of taking ... immoral, improper, or indecent liberties with such child, with said intent or of committing ... [a] lewd, or lascivious act upon or with the body, or any part or member thereof, of such child with said intent....”

9

. See Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964).

10

. Appellant testified that he had not committed any of the charged acts at any time and, more specifically, at any of the several specified time periods. On appeal there is no claim that appellant's defense would have been any different or more comprehensive had he known of the asserted variance.

11

. See United States v. Reed, 887 F.2d 1398, 1403 & n. 9 (11th Cir.1989) (finding no prejudice in time variance of one month and noting that defendant did not move for a continuance when he learned that the government intended to prove a date different from that in the indictment); United States v. Somers, 496 F.2d 723, 746 & n. 42 (3d Cir.1974) (noting that conclusion that defendant had adequate time to prepare any possible alibi defense, despite time variance of approximately one year, was "fortified by the fact that [defendant] did not request a continuance”).

12

. Indeed, in closing, appellant's counsel argued to the jury that "(t]he only possible way that you could be sure, positively sure [appellant] didn’t do this is if [appellant] wasn’t there. And we can't tell you that because [appellant] was in the house and he was there.”

13

. Appellant does not argue that the variance prejudiced him in the sense that he might be subject to a future prosecution for the same offenses, and we discern no such danger.