Stewart v. State

724 P.2d 439, 1986 Wyo. LEXIS 605

• Court: Wyoming Supreme Court
• Decided: August 26, 1986
• Docket: 86-40
• Status: Published

Opinions

BROWN, Justice.

Appellant, Tim Stewart, age 26, was convicted of taking indecent liberties with a fifth-grade child, age 12, in violation of § 14-3-105, W.S.1977 (December 1978 Replacement). He was sentenced to imprisonment and appeals his conviction. Appellant urges a single issue on appeal:

“Whether or not the Information filed against Appellant was so vague and indefinite as to deny Appellant the opportunity to prepare his defense.”

We will affirm.

Appellant and JF (the victim) lived next door to each other in a trailer court. Some time after March 1, 1985, appellant asked JF to come inside his trailer and have sex with him. JF testified that she and appellant could have had sex between ten and twenty times.

Appellant entered a plea of not guilty to the charge of taking indecent liberties with a minor in violation of § 14-3-105, W.S. 1977, which states:

“Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or to encourage another child to commit with him any immoral or indecent act is guilty of a felony * *

Appellant asserted that JF’s allegations were untrue and offered an alibi to prove his innocence. However, he admitted that JF came into his trailer once, but could not remember the date.

Appellant filed a motion for a bill of particulars asking the state to set out the specific dates of the alleged offenses. The trial court granted this motion. After receiving the bill of particulars appellant made a motion to dismiss, contending the bill of particulars was too general, vague and indefinite to allow him to adequately prepare his defense, and that Rule 9, Wyoming Rules of Criminal Procedure, had not been complied with. The trial court denied the motion, and appellant was tried before a jury and found guilty.

Appellant claims on appeal that the trial court erred in ruling that the information supplemented by the bill of particulars was sufficient, and that this ruling violated his sixth amendment right to prepare a defense. He quotes the Sixth Amendment of the United States Constitution which states in part:

“In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him. * * * ”

Appellant also quotes the Wyoming Constitution, Art. 1, § 10:

“In all criminal prosecutions, the accused shall have the right * * * to demand the nature and cause of the accusation. * * ”

This court defined the purpose of an information in Crouse v. State, Wyo., 384 P.2d 321, 325 (1963):

“[A]s stated in 42 C.J.S. Indictments and Informations § 90a, pp. 959-960, ‘[T]he purpose of an information [is to] * * * protect the accused from being twice put in jeopardy for the same offense, enable accused to prepare for trial, and enable the court, on conviction, to pronounce sentence according to the right of the case.’ * * *”

The question of sufficiency of an indictment was resolved in Hovee v. State, Wyo., 596 P.2d 1127 (1979). The requirements are that an indictment is sufficient if it contains, 1) the elements of the offense charged, 2) if it fairly informs a defendant of the charge against which he must defend, and 3) if it enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. These standards were also applied in Ostrowski v. State, Wyo., 665 P.2d 471 (1983); State v. Faltynowicz, Wyo., 660 P.2d 368 (1983); and Nimmo v. State, Wyo., 603 P.2d 386 (1979). In Faltynowicz we said:

“ * * * The same standards, [of Hovee, supra] of course, would apply in judging the sufficiency of an information.” Id., at 371.

The first requirement according to Hovee is that the information contain the elements of the offense. In the present case, the information, supplemented by a bill of particulars, stated appellant was accused of taking indecent liberties with a child in violation of § 14-3-105. The documents stated that appellant knowingly had sex with the victim, and that he knew she was a child. Also, since the statute only requires there be a knowing act with a minor to constitute a violation, the elements of the offense were sufficiently set out. Appellant claims, however, that the second and third requirements of Hovee were not met, that is, the information was insufficient to fairly inform him of the charge against which he must defend and enable him to plead acquittal or conviction in bar of future prosecutions for the same offense.

The bill of particulars alleged sexual acts on five or more occasions between March 1, 1985, and April 9,1985, and that one of the alleged acts occurred in appellant’s bathtub. More specifically, it stated that “on or about April 9, 1985, the defendant had sexual relations with JF.” Appellant argues that because his defense was alibi he was entitled to be advised of the exact date the alleged offense occurred. At trial there was only fleeting testimony regarding sexual acts at a time other than “on or about April 9th.” The state’s evidence focused on a sexual encounter during the Easter vacation. Easter was April 7, and the victim associated the time of the sexual act with being out of school during the Easter recess. She further testified that an act took place in the bathtub in appellant’s trailer.

We have said that where the specific date is not a requirement of the crime, alleging a general time period in lieu of a specific date is sufficient to give a defendant notice and allow him to adequately prepare a defense.

“ * * * [W]here the charge follows the statutory language and such language contains all that is essential to constitute the crime, the indictment is sufficient. * * * ” Boyd v. State, Wyo., 528 P.2d 287, 289 (1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975).

A specific date is not essential to the commission of indecent liberties under § 14-3-105; therefore, the information supplemented by the bill of particulars was sufficient, and complied with the requirements of Hovee v. State, supra.

Also, Rule 9(a), W.R.Cr.P. states:

‘ * * * The indictment or information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged ***** Error in the citation or its omission or any other defect or imperfection which does not tend to prejudice any substantial right of the defendant upon the merits or to mislead the defendant to his prejudice shall not be grounds for dismissal of the indictment or information or for reversal of a conviction. * * * ”

Appellant had no problem presenting his alibi defense, and presented testimony from three witnesses and himself covering the Easter vacation period. He has never claimed that he was in any way inhibited from presenting evidence for this time period. Apparently, he was ready to present this evidence at the conclusion of the state’s case in chief, and did not ask for a continuance to try to find additional alibi evidence.

“ * * * We have stated repeatedly that in the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child’s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence. State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962). See: State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984). Nonsuit may not be allowed on the ground that the State’s evidence fails to fix any definite time for the offense where there is sufficient evidence that defendant committed each essential act of the offense. * * * ” State v. Wood, 311 N.C. 739, 319 S.E.2d 247 (1984).

The Nevada Supreme Court, quoting the Idaho Supreme Court said:

“ ‘It would be a very weak rule of law that would permit a man to ravish a fifteen year old girl and then say in effect: “You cannot convict me of this crime, as you did not guess the right date.” See State v. Rogers, 48 Idaho 567, 283 P. 44, 45 (1929).’ ” Cunningham v. State, 100 Nev. 396, 683 P.2d 500, cert. denied sub nom. Cunningham v. Nevada, 469 U.S. 935, 105 S.Ct. 336, 83 L.Ed.2d 272 (1984).

The lack of a specific date neither prejudices a defendant nor hinders his ability to present a defense of alibi. In State v. Koch, 64 Wyo. 175, 189 P.2d 162 (1948), where the defendant asserted an alibi defense for the crime of having carnal knowledge of a child, age 10, we said:

“ * * * Ordinarily a charge that the crime was committed at or about the time alleged in the information or within a given period before the filing of the indictment or information is sufficient. * * * ” See also State v. Slane, 48 Wyo. 1, 41 P.2d 269 (1935).

Our decision in State v. Koch, supra, was reaffirmed in a later case where the defendant was accused of having carnal knowledge of a minor and asserted a defense of alibi. There, we said:

“ * * * [Although she specified no date, our holding in State v. Koch, 64 Wyo. 175, 189 P.2d 162, 166, makes it clear that the time of the occurrence as testified by the witness is not subject to challenge.” Rhodes v. State, Wyo., 462 P.2d 722, 724 (1969).

In Esquibel v. State, Wyo., 399 P.2d 395 (1965), the prosecution produced evidence that an act of sexual intercourse took place on the evening of February 14, 1963. The victim testified that she did not go out with defendant on the night of February 15, 1963, and in fact, had no sexual relations with the defendant between the act of February 14, and a subsequent act performed on February 17. Defendant by way of alibi testified that on the evening of February 14, he was at home attending a birthday party. His alibi testimony was corroborated by seven other witnesses. After the defense rested, the prosecutrix was recalled and testified that she had sexual intercourse with defendant on the night of February 15, as well as February 14.

This court ruled in Esquibel that the prosecution had effectively elected to prosecute the defendant for an act committed February 14, 1963, and that it was error for the trial court to instruct the jury that the state elected to prosecute the defendant for an act committed “on or about” February 15, 1963.

Esquibel is distinguishable from the case before us. In the present case an election as to the exact date of the offense was never made. The bill of particulars stated the act of sexual intercourse took place on or about April 9, 1985, and the evidence showed that it took place during the Easter vacation. Easter was April 7; defendant's alibi evidence covered the Easter vacation.

We think it clear, that where the statutory definition of the offense does not require a specific date, such a date need not be given in the information. Likewise, alleging a general time period is sufficient to give notice to a defendant and allow him to prepare an alibi defense.

“The election should be such as to fix definitely the transaction relied on, but its sufficiency to some extent at least is discretionary with the trial court. It is enough that it be as definite as is possible from the evidence where, from the information, the evidence, and the election, accused is informed as to the transaction, or the jury could not be misled as to the particular charge submitted to them * * *.” 23 C.J.S. Criminal Law § 1044, p. 1189 (1961). See also, State v. Koch, supra.

Here, appellant was given sufficient notice to prepare a defense, and the information fairly informed him of the charges filed against him, meeting the second requirement of Hovee v. State, supra.

As for the third requirement of Hovee, appellant would have us find that the absence of specific dates in both the information and subsequent bill of particulars could subject him to a future prosecution for the same offense. Appellant's concern is more imaginary than real.

In dealing with the sufficiency of an information in bar of future prosecutions, the United States Court of Appeals has said:

“[An information is sufficient if] the nature of the offense, the place where it is alleged offenses were committed, the period of time covered thereby, as well as the specific statutes which it was claimed appellant violated, are specifically set out. * * * ” Butler v. United States, 197 F.2d 561, 562 (10th Cir.1952).

And,

“ * * * [w]here the time is not an essential element of the offense, it is sufficient to charge facts which show that the offense was committed. * * * ” Id., at 562.

The victim is usually the only witness in crimes of indecent liberties; therefore, credibility is vital to a conviction. JF’s testimony about the occurrences was corroborated by two inmates, Mr. Anderson and Mr. Alberdeen, who were confined in the same jail as appellant at the time of appellant’s trial. Mr. Anderson stated that during his conversation with appellant, appellant told him he did not rape her, but he did have sex with her. Appellant told Anderson “once in his bed and once in the bathroom.” Mr. Alberdeen stated that while he was listening to the conversation between Mr. Anderson and appellant, appellant had said “Yeah, why not,” in answer to Mr. Anderson’s question did appellant sleep with JF.

A jury is charged with determining the credibility of the witnesses and it is its duty to weigh the evidence and render a verdict. Jahnke v. State, Wyo., 692 P.2d 911 (1984). The jury obviously found appellant’s story not credible.

In this case appellant knew almost two full months before the date of his trial that he was being charged with taking indecent liberties in violation of § 14-3-105; that he was being accused by the victim, JF; that the alleged events occurred on or about April 9, 1985; and that all events were to have taken place in his trailer with at least one occurring in his bathtub. We think this was sufficient to give the appellant notice of the charges filed against him, allow him to prepare a defense of alibi, and protect him from the possibility of future prosecutions for the same offense. The crucial factor in appellant’s defense was the credibility of each witness’s testimony, not the specific date of the alleged events; and two witnesses corroborated JF’s testimony. We find no reversible error in this case.

Affirmed.