Heywood v. State

Citation2009 WY 70,208 P.3d 71
Decision Date29 May 2009
Docket NumberNo. S-08-0221.,S-08-0221.
PartiesRobbie HEYWOOD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, Chief Justice.

[¶ 1] Upon remand from this Court, the appellant was again convicted of three counts of second-degree sexual assault. He raises in this second appeal issues of his constitutional right to adequate notice of the charges being brought against him, and of the admissibility of uncharged misconduct evidence. We affirm.

ISSUES

[¶ 2] 1. Was the appellant adequately advised of the charges being brought against him?

2. Did the district court abuse its discretion by admitting certain uncharged misconduct evidence?

FACTS

[¶ 3] The facts of this case as previously recited by the Court can be found at Heywood v. State, 2007 WY 149, ¶¶ 3-5, 170 P.3d 1227, 1229 (Wyo.2007). Briefly stated, the appellant's convictions were reversed because the information, the instructions, and the verdict form did not adequately identify the particular crimes with which the appellant was charged.

DISCUSSION

Was the appellant adequately advised of the charges being brought against him?

[¶ 4] An accused has a constitutional right to notice of the charges against him to allow him a fair opportunity to defend against the charges. United States Constitution, Sixth Amendment; Wyo. Const. art. 1 § 10. See also, W.R.Cr.P. 3; Derksen v. State, 845 P.2d 1383, 1388-89 (Wyo. 1993). Because the right to notice of criminal charges is of constitutional magnitude and the determination on the adequacy of the notice is a question of law, we review the issue de novo. See, e.g., Pena v. State, 2004 WY 115, ¶ 7, 98 P.3d 857, 862 (Wyo. 2004).

Barker v. State, 2006 WY 104, ¶ 14, 141 P.3d 106, 112 (Wyo.2006). We referenced these principles in the opinion reversing the appellant's conviction after the first go-round in this case, but we found them to have been waived because they were not raised below. Heywood, 2007 WY 149, ¶ 22, 170 P.3d at 1233. We reversed, however, on the related issue of the failure of the information, the instructions, and the verdict form to distinguish for the jury the separate crimes upon which it was to deliberate. Id. at ¶ 33, 170 P.3d at 1236.

[¶ 5] Prior to the second trial, the appellant filed a Motion for a Bill of Particulars as to All Counts of the Information. A responsive Bill of Particulars was filed by the State about a week later. The function of a bill of particulars is "to make more specific the general allegations in the information to enable the defendant to prepare his defense and avoid being surprised at the trial." Booth v. State, 517 P.2d 1034, 1036 (Wyo. 1974). The appellant objected to the Bill of Particulars on the ground that it did not delineate the allegations with sufficient specificity. The district court reviewed each charge and found the Bill of Particulars to be adequate.

[¶ 6] In the first trial, the problem with the information, instructions, and verdict form was that, even taken together, they failed to inform the jury what charge was being deliberated upon as to each count. We agree with the district court that the Bill of Particulars corrected that deficiency as far as the appellant's right to notice of the charges is concerned, and the new verdict form did the same for the jury's deliberation purposes. The pertinent portions of the Bill of Particulars provided as follows:

As to Count I, the crime of Second Degree Sexual Assault was committed by the Defendant on or between April of 2005 and May 27, 2005 in Laramie County, Wyoming. The Defendant committed sexual intrusion as defined by W.S. 6-2-301(a)(vii) by digitally penetrating the victim in the shed adjacent to [address].

As to Count II, the crime of Second Degree Sexual Assault was committed by the Defendant on or between April of 2005 and May 27, 2005 in Laramie County, Wyoming. The Defendant committed sexual intrusion as defined by W.S. 6-2-301(a)(vii) by penetrating the victim with a dildo at [address].

As to Count III, the crime of Second Degree Sexual Assault was committed by the Defendant on or between April of 2005 and May 27, 2005 in Laramie County, Wyoming. The Defendant committed sexual intrusion as defined by W.S. 6-2-301(a)(vii) by penetrating the victim with his penis at [address].

[¶ 7] After reading the language in regard to Count I, the district court commented, "I don't see how that is nonspecific. What more would be possible on that one?" Defense counsel responded, "Your Honor, I don't believe there is a time frame on that particular allegation." The district court determined that defense counsel had the same objection to all three counts, and then ruled as follows: "All right. I do understand that this time frame is general from April '05 to May 27 of '05. I believe there's sufficient specificity in this bill of particulars."

[¶ 8] It appears from this colloquy that the basis of the objection to the Bill of Particulars was not so much that it did not distinguish one alleged act from another, but that it did not sufficiently narrow the time frames of the allegations. We agree with the district court that a two-month time period in allegations of the sexual abuse of a child is sufficient to give notice to a defendant of the charges against him and to allow him to prepare a defense.

We have held that where the specific date is not a required element of the crime, then 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. Vernier v. State, 909 P.2d 1344, 1350-52 (Wyo.1996); Jackson v. State, 891 P.2d 70, 75 (Wyo. 1995). Indeed, we have even held that it is sufficient for a finding of guilt that the prosecution establish the transaction rather than the exact dates in question. Brown v. State, 817 P.2d 429, 437-38 (Wyo. 1991).

Wease v. State, 2007 WY 176, ¶ 44, 170 P.3d 94, 108 (Wyo.2007). In regard to child sexual assault victims, we view uncertainties as to dates as follows:

"[I]n 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).

Stewart v. State, 724 P.2d 439, 441 (Wyo. 1986). See also Vernier v. State, 909 P.2d 1344, 1351 (Wyo.1996). We are not alone in holding this view of child victim testimony. See, e.g., People v. Watt, 192 A.D.2d 65, 600 N.Y.S.2d 714, 719 (N.Y.App.Div.1993); State v. Wilcox, 808 P.2d 1028, 1033 (Utah 1991); and State v. Rogers, 48 Idaho 567, 283 P. 44, 45 (1929).

Did the district court abuse its discretion by admitting certain uncharged misconduct evidence?

[¶ 9] [B]ecause uncharged misconduct evidence carries an inherent danger for prejudice, we have ... adopted a mandatory procedure for testing its admissibility: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted. Vigil [v. State], 926 P.2d [351], 357 [(Wyo.1996)] (quoting United States v. Herndon, 982 F.2d 1411, 1414 (10th Cir.1992))[, modified in part by Howard v. State, 2002 WY 40, 42 P.3d 483 (Wyo.2002)]. We do not apply this test on appeal; rather, it is intended to be conducted by the trial court. Beintema v. State, 936 P.2d 1221, 1224 (Wyo.1997). Our role is to determine whether admission of the evidence was error. Id.; Spencer v. State, 925 P.2d 994, 997 (Wyo.1996). Generally, the standard for review of rulings under W.R.E. 404(b) is abuse of discretion. Johnson v. State, 936 P.2d 458, 462 (Wyo.1997) (quoting Sturgis v. State, 932 P.2d 199, 201 (Wyo.1997)).

Wease, 2007 WY 176, ¶ 51, 170 P.3d at 110 (quoting Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo.2002)).

[¶ 10] Just prior to the second trial, the State filed a Notice of State's Intent to Introduce 404(b) Evidence.1 Listed in the notice were five allegations of uncharged misconduct: (1) that the appellant began to abuse the victim when she was in the second grade; (2) that the abuse included fellatio; (3) that the appellant purchased a dildo for the victim for her birthday in 2004 and used it on her in the car after covering the car's windows; (4) that the only time period the victim recalled the appellant did not sexually abuse her was when the family was in Ohio for a week; and (5) that the appellant entered the bedroom the victim shared with her sister, pulled down his pajamas and exposed his penis to them, told them they could touch it or play with it, and told them the victim could be present if her sister wanted to start doing things with him that the victim had been doing. In its Notice, the State presented a detailed analysis of the...

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