Covington v. State, A-203

Decision Date26 July 1985
Docket NumberNo. A-203,A-203
Citation703 P.2d 436
PartiesCharles COVINGTON, Appellant, v. STATE of Alaska, Appellee.
CourtAlaska Court of Appeals

Larry Cohn and Carl Forsberg, Birch, Horton, Bittner, Pestinger & Anderson, Anchorage, for appellant.

John A. Scukanec, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

Charles Covington was convicted of two counts of lewd and lascivious acts towards a child, former AS 11.15.134, and four counts of sexual assault in the first degree, former AS 11.41.410(a)(4)(B). He received a composite sentence of forty years with ten years suspended. Covington appeals, challenging his conviction and sentence. We reverse Covington's conviction and remand for a new trial.

FACTS

Covington's victim was his natural daughter, D.C.O. She testified at trial that Covington began sexually abusing her when she was nine or ten years old. D.C.O. was eighteen years old at the time of trial. D.C.O. testified that Covington slept with her, touched her breasts, and penetrated her vagina with his finger. After D.C.O.'s mother's death in November 1977 when D.C.O. was thirteen years old, Covington told her that she reminded him of her mother and had D.C.O. sleep with him in his bed.

Shortly before D.C.O.'s sixteenth birthday, Covington began having sexual intercourse with her. D.C.O. testified that she had sexual intercourse with Covington "practically every night," until she moved out in March 1983. Covington allegedly told her that he did not want her to "grow up naive like [her] mother."

C.C., D.C.O.'s brother, the thirteen-year-old son of the defendant, also corroborated D.C.O., testifying that on Mother's Day 1982 he saw an empty condom package on the night table next to the bed in which Covington and D.C.O. were sleeping but that he could not see if they had clothes on, nor could he remember if the door of the bedroom had been shut. He also testified that throughout 1982 his father and sister were sleeping in the same bed.

Covington testified in his own defense. He conceded that he had slept in the same bed with D.C.O. from August or September 1979 until D.C.O. moved out in March 1983, but contended that he had never fondled or penetrated her with his fingers or penis. He stated that the bedroom door was always open and that D.C.O. had slept with him at her own request and not because of anything he said or did. He also denied the truth of earlier out-of-court tape recorded statements in which he admitted having had sexual intercourse with D.C.O. after her sixteenth birthday. Covington's testimony also suggested that D.C.O. was motivated to lie in order to obtain custody of her younger sister and prevent Covington from moving out of state with her.

I.

Covington challenges the indictment and the trial court's refusal to grant him a bill of particulars. The indictment charged Covington as follows:

Count I charged lewd or lascivious acts occurring "from on or about the month" of July 1978 through December 4, 1978, "at or near Fairbanks."

Count II charged lewd or lascivious acts "from on or about" January 1, 1979, through December 4, 1979, "at or near Fairbanks."

Count III charged sexual penetration "on or about" October 1, 1981, through December 4, 1981, "at or near Fairbanks."

Count IV charged sexual penetration "on or about" January 1, 1982, through October 1, 1982, "at or near Fairbanks."

Count V charged sexual penetration "on or about" October 2, 1982, through November 1, 1982, "at or near Fairbanks."

Count VI charged sexual penetration "on or about" November 2, 1982, through December 4, 1982, "at or near Fairbanks."

Covington argues that the trial court abused its discretion in denying his pretrial motion for a bill of particulars or, in the alternative, his motion to dismiss the indictment. He contends that the indictment violated due process because it was not sufficiently specific to inform him of the nature and cause of the accusation. Ak. Const. art. 1, § 11; U.S. Const. amend. VI; see also AS 12.40.100; Alaska R.Crim.P. 7(c). 1

Covington argues that the indictments must be sufficiently clear to avoid surprise as to the specific acts and specific dates upon which those acts occurred. He argues that he was prejudiced because D.C.O. testified for the first time at trial that sexual intercourse had begun in October 1980, a year earlier than alleged before the grand jury or in the indictment. He points out that D.C.O. testified before the grand jury that sexual intercourse began in 1981. 2 The state argues that no bill of particulars was necessary and the indictment was sufficient in this case. It relies on authorities which hold that leeway is necessary in charging sexual abuse and sexual intercourse with minors because children who are the victims of abuse may find it difficult to recall precisely the dates of offenses against them months or even years after the offense has occurred. See People v. Fritts, 72 Cal.App.3d 319, 140 Cal.Rptr. 94 (1977); State v. Roberts, 101 Idaho 199, 610 P.2d 558, 559 (1980); State v. Wonser, 217 Kan. 406, 537 P.2d 197 (1975); Commonwealth v. Lamory, 14 Mass.App. 925, 436 N.E.2d 992 (1982); Commonwealth v. Vernazzarro, 10 Mass.App. 897, 409 N.E.2d 1326 (1980); State v. Healey, 562 S.W.2d 118, 129-30 (Mo.App.1978); State v. Davis, 6 N.J.Super. 162, 70 A.2d 761 (1950). The state quotes State v. Roberts, 101 Idaho 199, 610 P.2d 558 (1980), for the proposition that allegations of lewd and lascivious conduct with a minor "on or about the months between June and September 1976," and "on or about the months of May, 1976 [and] June, 1976" were:

set forth with sufficient specificity to allow [the defendant] to prepare his defense and to protect him from double jeopardy.

610 P.2d at 559. The state reasons that this is particularly true where the defense is a "blanket denial" of sexual activity with the victim as opposed to an alibi defense as to specific dates. State v. Roberts, 610 P.2d at 559; People v. Fritts, 140 Cal.Rptr. at 97. See also People v. Long, 55 Ill.App.3d 764, 13 Ill.Dec. 288, 370 N.E.2d 1315 (1977).

A review of the transcript bears out the state's contention that no unfairness occurred here. In the instant case, D.C.O. testified at trial that her father began having sexual intercourse with her shortly before her sixteenth birthday. She became confused about whether it was 1980 or 1981 but remembered that it had started in October because her father later celebrated the occasion as their "anniversary." D.C.O. told the grand jury that the defendant began having sexual intercourse with her in October 1981. Covington testified that he had never had sexual intercourse or sexual contact with his daughter at any time. He admitted, however, that he had been sleeping with her on an almost nightly basis since 1979. Thus Covington's denial, in the state's view, was just as effective as it would have been if the indictment had been more specific. State v. Roberts, 610 P.2d at 559; People v. Long, 13 Ill.Dec. at 295, 370 N.E.2d at 1322. We generally agree with the state, and the authorities cited by the state, that the indictment was sufficient to alert Covington to the elements of the offenses he allegedly committed and sufficiently informed him so that he could defend himself and protect himself against further prosecutions for the same offense. See, e.g., Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240, 250-51 (1962); Price v. State, 437 P.2d 330, 331 (Alaska 1968); Adkins v. State, 389 P.2d 915, 916 (Alaska 1964). We also agree with the state that the broad rights to discovery granted a criminal defendant under the Alaska Rules will render a bill of particulars unnecessary in most cases. See Alaska R.Crim.P. 16; Lupro v. State, 603 P.2d 468, 472 (Alaska 1979).

The facts of this case, however, raise a more significant issue--that of Covington's right to a unanimous verdict. In considering this issue, we start with the premise that the accused has a right to a unanimous verdict: a conviction may properly be entered only if the jury unanimously finds that all essential elements of the offense charged were proved beyond a reasonable doubt. Thus all jurors must agree that the defendant committed a single offense. State v. James, 698 P.2d 1161 (Alaska 1985). Where one jury instruction may encompass two separate incidents, the trial judge must instruct the jury that if a guilty verdict is returned, the jurors must be unanimous as to the incident or incidents of which they find the defendant guilty. James, 698 P.2d at 1166, citing Burrell v. United States, 455 A.2d 1373, 1379 (D.C.App.1983). See also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152, 159 (1972). In James, the supreme court was concerned with the application of this rule to a charge of a single offense where the state introduced evidence indicating different means of committing the same offense. The court held that the jury need not be unanimous regarding the means used to commit a single offense, reversing James v. State, 671 P.2d 885 (Alaska App.1983).

The situation is substantially different here. The state charged Covington with separate counts of lewd and lascivious acts and sexual assault but proceeded at trial to present evidence of numerous separate criminal acts. D.C.O. was unable to recall any specific events or dates which would distinguish the circumstances of one assault from another. C.C. did corroborate, in part, a separate incident on Mother's Day of 1982 when he observed the empty condom package. Under these circumstances, there is substantial doubt that the jury convicting Covington of each count had a specific incident in mind. While we agree with the state's authorities that an indictment is sufficient which charges a specific incident, the precise...

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