State v. Dixon

741 A.2d 580, 144 N.H. 273, 1999 N.H. LEXIS 109
CourtSupreme Court of New Hampshire
DecidedNovember 2, 1999
DocketNo. 98-061
StatusPublished
Cited by22 cases

This text of 741 A.2d 580 (State v. Dixon) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dixon, 741 A.2d 580, 144 N.H. 273, 1999 N.H. LEXIS 109 (N.H. 1999).

Opinion

HORTON, j.

The defendant, Arthur Dixon, appeals his conviction in Superior Court (Fauver, J.) for one count of aggravated felonious sexual assault without penetration. See RSA 632-A:2, II (1996). We affirm.

Between January 1993 and August 1996, the victim regularly visited her grandmother, who lived with the defendant. She spent one night every other weekend in Farmington at her grandmother’s residence, which changed location three times during this period. In July 1996, the victim disclosed to her parents separately that the defendant had improperly “touched her.” The victim’s father reported the allegations to the local police department.

A grand jury subsequently indicted the defendant on three charges of aggravated felonious sexual assault. After a jury trial in [275]*275November 1997, the defendant was acquitted of two charges but convicted of the third.

On appeal, the defendant argues that the trial court erred by: (1) denying his motion for a bill of particulars; (2) refusing to find the victim incompetent to testify; (3) denying his motion to exclude evidence of bad acts; (4) refusing to allow him to cross-examine a State witness regarding statements made by the defendant; and (5) giving an erroneous supplemental jury instruction.

I. Bill of Particulars

The defendant was indicted for three sexual assaults occurring between January 1, 1993, and August 1, 1996. The three indictments were identical except that each charged the defendant with committing sexual assault at a different address. Prior to trial, the defendant moved for a bill of particulars specifying the date and location of each act charged in the indictments. The Trial Court (Mohl, J.) initially denied the motion, but at the close of trial, the Trial Court (Fauver, J.) granted the defendant’s request to require the State to prove beyond a reasonable doubt the location of each assault. The defendant now argues that the trial court’s refusal to compel the State to specify the dates of the assaults left him unable to prepare an adequate defense and violated his federal and State double jeopardy and confrontation rights.

“The purpose of a bill of particulars is to protect a defendant against a second prosecution for an inadequately described offense and to enable him to prepare an intelligent defense. A bill of particulars strictly limits the prosecution to proof within the area of the bill.” State v. Allison, 134 N.H. 550, 554, 595 A.2d 1089, 1091 (1991) (quotations, emphasis, citation, and brackets omitted). The decision whether to grant a motion for a bill of particulars is committed to the trial court’s sound discretion. State v. Voorhees, 137 N.H. 650, 652, 632 A.2d 825, 826 (1993). We will not reverse the decision below unless the defendant shows that it was “clearly untenable or unreasonable to the prejudice of his case.” Id. (quotation omitted).

“The exact date of the assault is not an element of the aggravated felonious sexual assault crime.” State v. Demond, 136 N.H. 233, 234, 614 A.2d 1342, 1342-43 (1992) (quotation omitted). Where a defense based on the victim’s age or statute of limitations is not possible, “a defendant generally has no basis for complaining that the indictment fails to allege a precise date, absent a showing that the [276]*276inexactness raises a possibility of prejudice specific to him.” Id. at 234, 614 A.2d at 1343 (quotation omitted).

The defendant does not allege that he had a defense based on the victim’s age or statute of limitations. The question is whether the lack of specific dates raised the possibility of prejudice specific to him. The defendant asserts that the forty-four month period alleged in the indictments prejudiced his ability to prepare a defense based on lack of opportunity. He argues that because he “had no opportunity or access to the locations alleged in the indictments other than those times when he lived in those locations,” a knowledge of the specific dates was necessary to insure that he would not be convicted for an act committed at a location when he did not reside there.

The State contends that because it did not know the specific dates of the assaults, it should not be required to arbitrarily select exact dates in order to furnish the defendant with an alibi defense. We agree.

Although forty-four months is a lengthy period of time in which to allege a single act of assault, see, e.g., id. at 234, 614 A.2d at 1342 (alleging ten-month period), we cannot say that it is excessively long as a matter of law, see State v. Gibson, 973 S.W.2d 231, 241 (Tenn. Crim. App. 1997) (alleging four-year period). We determine on a case-by-case basis whether the defendant was entitled to a bill of particulars.

Here, the defendant does not deny that he had access to the victim at the locations alleged during the time period alleged. At trial, he challenged the victim’s credibility and denied that the assaults occurred. That the defendant did not have access to the victim at one location while residing at another does not constitute a time-based defense requiring specification of dates, cf. Woertman v. People, 804 P.2d 188, 191 (Colo. 1991), because the State was required to prove only that the defendant assaulted the victim once at each location before the indictments were returned and within the statute of limitations, see State v. Seymour, 142 N.H. 620, 622, 707 A.2d 130, 132 (1998). Under these circumstances, we cannot see how the lack of specific dates prejudiced the defense because they were not an essential element of the crimes charged. Cf. id.

The defendant argues that under State v. Boire, 124 N.H. 622, 474 A.2d 568 (1984), he was entitled to information of the exact date of each offense so long as there was a possibility of asserting a time-based defense. We disagree. We do not require the State to fix precise dates for aggravated felonious sexual assault, in part [277]*277because the statute does not mandate it, and in part because victims typically have difficulty, especially if they are young children, in recalling specific dates of offenses that may have occurred over a long duration. See State v. Williams, 137 N.H. 343, 346, 629 A.2d 83, 85 (1993). The defendant’s argument would require the State to provide the exact time of the assault whenever a defendant alleges the possibility of a time-based defense. We refuse to read Boire so broadly. Boire states that the State may be required to furnish a bill of particulars if the defendant can show it necessary for the preparation of a defense. Boire, 124 N.H. at 624, 474 A.2d at 569. A bare, eonclusory assertion alone of the possibility of a time-based defense is insufficient to invoke the right to a bill of particulars. Cf. State v. Chick, 141 N.H. 503, 507, 688 A.2d 553, 556 (1996).

For this reason, we also reject the defendant’s contention that Williams requires the State to provide exact dates. We initially point out that Williams

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Bluebook (online)
741 A.2d 580, 144 N.H. 273, 1999 N.H. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dixon-nh-1999.