Larkin v. State
| Decision Date | 02 April 2004 |
| Docket Number | No. A-8444.,A-8444. |
| Parties | Lory LARKIN, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Robert D. Lewis, Nome, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
Lory Larkin was indicted for second-degree sexual abuse of a minor (engaging in sexual penetration with a minor under the age of 16).1 The indictment charged that Larkin's offense occurred "on or about February 1, 2001". At trial, the evidence clearly showed that the victim was away at school starting in January 2001, and thus the offense could have occurred no later than the end of December 2000. Larkin claims that, given this state of the evidence, he is entitled to a judgement of acquittal.
Larkin seeks a judgement of acquittal, rather than a reversal of his conviction and a retrial, because he argues that the State took him to trial and then failed to prove its case. Specifically, Larkin claims that because of the difference between the date of the offense shown by the trial testimony and the date specified in the indictment, "reasonable people [would have to agree] that the evidence [presented at trial] was insufficient to establish [that] any crime was committed on or about February 1, 2001".
But this is not truly a "sufficiency of the evidence" argument. Rather, it is a variance argument. Larkin concedes that the evidence presented at his trial was sufficient to establish that he committed the crime of sexual abuse of a minor. The problem, according to Larkin, is that the evidence showed that the offense was committed no later than December 31, 2000—at least five weeks before the date specified in the indictment. Even though the indictment says "on or about" February 1, 2001, Larkin contends that the phrase "on or about" is not flexible enough to encompass a variance of five weeks.
Larkin does not assert that this difference in dates prejudiced his investigation of the case or the planning or presentation of his defense. Rather, Larkin's argument is a technical one: he contends that an indictment charging the commission of an offense "on or about February 1, 2001" can not, as a legal matter, support a conviction if the uncontroverted evidence shows that the offense must have occurred at least five weeks before that date.
For the reasons explained here, we hold that the date on which an offense was committed is normally not an element of that offense. Thus, a variance between the date specified in the indictment and the date shown by the evidence at trial will normally be deemed a defect of form (rather than a material defect) for purposes of Alaska Criminal Rule 7(c), unless the defendant can show that the variance prejudiced their ability to prepare or present their defense at trial.
Because Larkin does not assert that the variance prejudiced him, we affirm his conviction.
The common-law rule regarding variances in the date of the offense, and the federal law on this subject
Even in the heyday of common-law pleading, when a murder conviction could be overturned because the indictment "did not set forth the length and depth of the [victim's] mortal wounds" or because the indictment specified that the victim was stabbed in the "brest" rather than the "breast",2 the courts recognized one aspect of criminal pleading where exacting specificity was not required: the allegation as to the date of the offense.
[T]he common law, although it required the accusation to mention some date, did not require the prosecution to stick to that date; proof of any date within the period of the statute [of limitations] would suffice to convict.
Austin Scott, "Fairness in the Accusation of Crime", 41 Minnesota Law Review 509, 532 (1957).3
This same flexibility is carried forward in the more lenient pleading rules that govern modern criminal litigation:
Traditionally, time and place have been viewed as not requiring great specificity because [these factors] ordinarily do not themselves constitute an element of [the] crime. Thus, the time allegation can refer to the event as having occurred "on or about" a certain date and, within reasonable limits, proof of a date before or after that specified will be sufficient, provided it is within the statute of limitations. [The exception is for cases where] time is a material element of the offense....
Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure (2nd ed.1999), § 19.3(b), p. 773.
LaFave's description of the law on this point is echoed in Professor Charles Alan Wright's treatise on modern federal criminal procedure.4 Professor Wright states that the Federal Rules of Criminal Procedure allow substantial flexibility in the indictment's description of the date of the crime:
[G]ood pleading still includes an allegation that [the] offense was committed on a particular day, month, and year, but a defect in the allegation of the date is a defect of form only. Obvious errors in the date alleged will be ignored, and great generality in the allegation of date will suffice, though [a] defendant may be entitled to a bill of particulars if the allegation is too general to permit him to prepare his defense. The allegation [of the date] is not regarded as ... an essential element of the crime, and, within reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient [unless] a particular [date] is made material by the statute creating the offense.
Federal Practice and Procedure—Criminal (3rd ed.1999), § 125, Vol. 1, pp. 573-77.
When Professor Wright describes a discrepancy in the date as a "defect of form only", he is using a term of art. Federal Criminal Rule 52(a) declares that "[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." This rule is derived5 from former 18 U.S.C. § 556, which stated:
No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected[,] by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.
Thus, when Professor Wright says that a variance between the date alleged in the indictment and the date shown by the evidence at trial is a defect of "form", he means that the variance will be disregarded, and will not constitute a basis for overturning an ensuing conviction, unless the variance actually prejudiced the defendant.
Several federal cases have upheld convictions when there was a variance of weeks or even months between the date alleged in the indictment and the date revealed by the trial evidence. For instance, in United States v. Kimberlin,6 the Fourth Circuit held that the wording "in or about July 1991" was not objectionable when the evidence showed that the offense occurred in August 1991 (and there was no showing of prejudice). In United States v. Antonelli,7 the First Circuit held that an indictment was sufficient when it alleged that the defendant made the criminal threat on August 11, but the testimony put the threat in either September or October. The court noted that "the exact time of the commission of a crime is not a substantive element of the [government's] proof", and that the defendant had not proved that he was prejudiced by the variance. And in United States v. Reece,8 the Eighth Circuit held that the defendant was not prejudiced by an indictment which, due to a typographical error, alleged that the crime was committed one year later than it actually was.
A more striking application of this rule is found in United States v. Hall, 632 F.2d 500 (5th Cir.1980). The defendant in Hall went to a grocery and cashed a woman's benefits check by forging her name and endorsing the check over to himself. He was charged with the federal offense of possessing a check stolen from the mail.9 The indictment charged that Hall possessed the stolen check "on or about December 1, 1975".10
The evidence at Hall's trial showed that the check was mailed to the victim on November 28, 1975, and that the victim never received the check.11 An expert on handwriting analysis testified that the signature on the check, although purporting to be the victim's, had in fact been written by Hall.12 But the date of the offense remained cloudy. The government could prove only that, at some point during the ensuing nine months, Hall presented the check for payment at the grocery.
A former grocery employee testified that, based on the presence of her initials on the check, the check must have been presented for payment during the ten months that she was employed by the grocery—i.e., no later than September 1976.13 But the government could not identify the date any more precisely than that. "Due to an illegible bank transit stamp on the check's reverse side, neither the dates of the check's negotiation nor bank clearance could be determined".14
On appeal, Hall argued that the government's failure to prove the date alleged in the indictment—"December 1, 1975"—prejudiced his ability to defend himself by hampering his ability to present an alibi.15 But the Fifth Circuit noted that the date of the offense is generally not a material element of the offense, and that "[a]ccordingly, the inability of the government to prove the date of negotiation with precision is not automatically fatal":
The offense could have occurred no earlier than November 28, 1975, the date the check was mailed, so the indictment [returned on] March 13, 1979, was within the five-year statute of limitations set forth in 18 U.S.C.A. § 3282 (1970). The offense could have occurred no later than September, 1976, because the cashier [who accepted]...
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People v. Lopez
...a variance argument. We further conclude he is entitled to a new trial on that ground. As the court explained in Larkin v. State, 88 P.3d 153, 154 (Alaska Ct.App.2004): Larkin seeks a judgment of acquittal, rather than a reversal of his conviction and a retrial, because he argues that the S......