State v. D.B.S.

700 P.2d 630, 216 Mont. 234, 1985 Mont. LEXIS 790
CourtMontana Supreme Court
DecidedMay 28, 1985
DocketNo. 84-314
StatusPublished
Cited by45 cases

This text of 700 P.2d 630 (State v. D.B.S.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. D.B.S., 700 P.2d 630, 216 Mont. 234, 1985 Mont. LEXIS 790 (Mo. 1985).

Opinions

MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The defendant appeals from a conviction of incest with his natural-born daughter following a jury trial in the District Court of Flathead County, State of Montana.

The victim was born on December 6, 1979, to the defendant and K.H. who established a common-law marriage. In September of 1982, K.H. petitioned for dissolution of marriage. Between the approximate dates of September, 1982 and May of 1983, the victim was in the custody of her father, the defendant. During this time, her mother, K.H. worked out of state. In May of 1983, K.H. returned to Montana and began exercising a two week visitation with the victim. The defendant and K.H. had discussed modifying the divorce decree to provide for joint custody.

On October 27, 1983, while K.H. was driving the victim to a day care facility, the victim related to her the facts which formed the basis of the charge. Later, the victim related substantially the same story to Tom Best of the Family Court Services Department, Maxine Lamb of the Flathead County Sheriffs Office and Ann Anderson of the Flathead County Welfare Department.

An information charging the defendant with the offense of incest, a felony, was filed on December 12, 1983. The defendant entered a plea of not guilty and filed a motion to dismiss the information for lack of specificity as to the date of the alleged crime. On February 6, 1984, the defendant filed a motion in limine to suppress the testimony of the alleged victim. The court denied both motions by consolidated order dated February 27, 1984. On March 2, 1984, following a hearing on the child’s competency, the District Court concluded that the victim was qualified to serve as a witness.

A jury trial was held on March 5, 1984. At the trial, the victim testified and demonstrated the incident by reference to male and female anatomical dolls. The victim stated that her father had “made me suck on his weenie” and that “cream” had come out of her father and went into her mouth. The victim was not precise as to the time of the incident, but testified it occurred in her father’s bedroom in the ranch house.

At the trial, the defendant denied committing the felony. Robert Evans, a private investigator, testified that he had looked into defendant’s background and the current case. Evans testified that he believed the defendant was being truthful. Three women acquaintances of the defendant also testified to the defendant’s general char[238]*238acter and reputation in the community. The final witness, Dr. Paul Wert, a clinical psychologist from Spokane, who examined the defendant stated that defendant did not exhibit the characteristics of a sex offender.

The defendant was convicted and sentenced to eight years imprisonment with four years suspended.

The following issues are raised on appeal:

(1) Whether the court erred by denying defendant’s motion to dismiss the information for lack of reasonably specific date when the offense alleged therein was to have occurred.

(2) Whether there was insufficient evidence produced at trial to support the guilty verdict.

(3) Whether the court erred by denying defendant’s motion for mistrial predicated upon prejudicial prosecutorial misconduct.

(4) Whether the presentence report was properly used by the court.

As a basis for his appeal, defendant contends that the State did not prove with sufficient specificity the date the crime was committed. The information indicated a ten month period, January 1, 1983 to October 28, 1983, during which the offense was to have occurred. The defendant maintains the lack of specificity as to the date in the information prevents him from being able to properly prepare a defense or to assert an affirmative defense. The defendant further maintains that lack of specificity abrogates his protection from double jeopardy. Specifically, he argues that the broad time frame could conceivably subject him to being prosecuted at a later date for the same offense.

The defendant primarily relies on a Pennsylvania Supreme Court decision where a conviction of an offense committed within a fourteen month period was reversed. Commonwealth v. Devlin (1975), 460 Pa. 508, 333 A.2d 888. The court noted the importance of establishing a date the offense was committed so as to enable the defendant to know what dates he must cover if his defense is an alibi. We find this Pennsylvania decision inapposite to the facts of the instant case. Here, it would have been an impossible burden for the defendant to offer an alibi for a ten month period while he had custody of the victim.

The State maintains defendant’s argument misconceives the purpose of an information. The State argues the primary purpose of an information is to give general notice to the defendant of the charge against him. We agree.

[239]*239We find the information sufficient. The statute which guides us in this inquiry is section 46--401(l)(c)(iv), MCA, which states as follows: “a charge shall. . . charge the commission of an offense by . . . stating the time and place of the offense as definitely as can be done.” (Emphasis added.) The statute does not require the exact time, date, month, or even year to be specified.

The State cites to a recent decision rendered by this Court involving sexual abuse of a child. In State v. Clark (Mont. 1984), [209 Mont. 473,] 682 P.2d 1339, 41 St.Rep. 833, the victim was a twelve-year old, repeatedly raped by her step-father over a ten-month period. In upholding the sufficiency of the information, this Court stated, “The law does not, however, demand impossible precision.” State v. Clark, 682 P.2d at 1343. In Clark, this Court provided a standard to judge whether the information states the time of the alleged offenses with sufficient particularity: “. . . (1) whether time is a ‘material ingredient in the offense,’ and (2) whether a continuing course of conduct is alleged.”

In applying this standard we find the following: The defendant argues that he had a right to assert an affirmative defense and was prevented from doing so by the fact that there was a ten month span to consider. The affirmative defenses available to the defendant are enumerated in section 46-15-301(2)(a), MCA. It appears that the defense of alibi is the only one which could apply to this charge. It would have been a futile gesture for the defendant to have offered an alibi for a period of time the defendant had custody of the victim. Moreover, in Clark, this Court rejected defendant’s argument that notice of an alibi defense made time a material ingredient in the offense. State v. Clark, 683 P.2d at 1345. Thereby the first test of Clark is satisfied.

In regard to the “continuing course of conduct” element, we have recognized that when a continuing course of conduct is alleged, further specificity is not required. State v. Riley (Mont.1982), [199 Mont. 413,] 649 P.2d 1273, 39 St.Rep. 1491. In Riley, an information alleging a continuing course of abusive conduct over a two year period culminating with the victim’s death was upheld. In the present matter, the record shows and the information alleges a single act of incest during the ten-month period.

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Cite This Page — Counsel Stack

Bluebook (online)
700 P.2d 630, 216 Mont. 234, 1985 Mont. LEXIS 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dbs-mont-1985.