Lazo v. United States

• Decision Date: 11 October 2012
• Docket Number: No. 09–CM–653.,09–CM–653.
• Citation: 54 A.3d 1221
• Parties: Vicente LAZO, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

54 A.3d 1221

Vicente LAZO, Appellant,

v.UNITED STATES, Appellee.

No. 09–CM–653.

District of Columbia Court of Appeals.

Argued Jan. 13, 2011.

Decided Oct. 11, 2012.

Moses Cook, D.C. Law Students in Court, with whom Jennifer P. Lyman, D.C. Law Students in Court, Washington, and Courtney Enlow, Student Counsel, were on the brief, for appellant.

Anne Y. Park, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Elizabeth Trosman, Mary B. McCord, and Lindsay J. Suttenberg, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE–RIGSBY, Associate Judge, and KING and RUIZ ^*, Senior Judges.

RUIZ, Senior Judge:

Vicente Lazo was convicted of one count of misdemeanor sexual abuse, in violation of D.C.Code § 22–3006 (2001). He makes three arguments on appeal: (1) that the charging document lacked particularity about the date and time of the alleged offense, and thus did not provide adequate notice to appellant of the charges against him; (2) that the trial court abused its discretion in failing to independently inquire about potential Jencks Act material; and (3) that the evidence was insufficient to support his conviction. For the reasons that follow, we conclude that the trial court did not abuse discretion in denying the motion to dismiss the Information and that the evidence was sufficient to convict appellant of the sexual charge. However, we remand the case for an evidentiary hearing and fact findings into the possible existence of undisclosed Jencks material of statements made by the complaining witness and her mother. If the court determines that the government should have been required to disclose Jencks material to the defense, and appellant was prejudiced as a result, the conviction should be vacated and appellant accorded a new trial.

I. Factual and Procedural Background

G.F., who was nine years old at the time of trial, was the government's principal witness against appellant, whom G.F. knew as Uncle Chente. G.F. testified that on one afternoon of an unspecified day when she was eight years old and in the second grade,¹ she was watching television and playing card games with her sister and cousins in appellant's apartment while appellant was in the next door apartment of G.F.'s aunt, Telma Lazo (“Aunt Telma”). Appellant is Aunt Telma's brother-in-law. At the time G.F. and her family were living with Aunt Telma and her family. There were no other adults in either apartment. G.F. testified that she went into Aunt Telma's apartment to retrieve a deck of cards from her aunt's bed that she had left there and heard someone eating in the kitchen. As she was leaning on the bed to get the cards, G.F. said, “somebody jumped behind me and touched me in an inappropriate way.” ² G.F. specified that it was appellant, and that he “push[ed] [her] towards the bed” with his pelvis, spread her legs apart, squeezed her buttocks, and “rubbed” her right breast over her clothes. She testified that appellant was also attempting to get his hand “inside [her] shirt.” G.F. kicked backward to get appellant off of her and he warned her, in Spanish, “Don't tell nobody or I'll hurt you.” G.F. then returned to appellant's apartment to be with her sister and cousins. Upset and crying, she told them what had happened in Aunt Telma's apartment. G.F. also told Aunt Telma about the encounter when she returned home later that day. G.F. did not tell her mother about the incident at that time because she was afraid appellant would hurt her. Eventually,she decided “[t]hat [she] needed to stop being afraid of people,” and she told her mother. G.F. could not recall whether it has been “days, weeks, months, [or] years” until she mustered the courage to tell her mother.

G.F. could not remember when the encounter occurred, and could not recall if the incident happened when she was in school or during the summer. G.F. did remember that her mother was working at a gas station at the time of the incident; her mother later testified that she worked at a gas station from November of 2007 to July 13, 2008. The prosecutor argued that the abuse occurred during the two months that G.F. lived in her aunt's apartment, from August to September 2008.

G.F.'s mother, Josephine Roa, testified that G.F. told her about the encounter with appellant on September 18, 2008, the day of her granddaughter's birthday. Roa stated that G.F. was “crying” and “very upset,” but that she did not take G.F. to a doctor after learning of the assault. Roa also testified that she wrote down a statement of what her daughter told her and gave it to a social worker the school had called.

At the close of the government's evidence, defense counsel moved for a judgment of acquittal, arguing “that the government has not proven beyond a reasonable doubt that the alleged abuse occurred reasonably close to the dates within the [I]nformation,” from March 20 to September 16, 2008.

The defense focused on the credibility of G.F., in particular, her inability to recall the date and details of the encounter and inconsistencies in the accounts she gave to different people. Counsel also questioned G.F. about a prior inconsistent statement she had made at the Children's Advocacy Center where she claimed appellant had touched her on the chest.³ The defense called four witnesses to point out inconsistencies in G.F.'s account. First, twelve-year-old M.F. confirmed that her sister, G.F., told her that appellant had touched her inappropriately on her chest and “private stuff.” She also testified, however, that the assault occurred at Aunt Telma's apartment “a long time ago” and that she did not remember G.F.'s age at the time of the incident. M.F. did recall that G.F. told their mother about the incident two days after they started school at Truesdell Elementary. Second, the defense called G.F.'s cousin, twelve-year-old M.L., who testified that G.F. told her about the incident about “five years” before trial, when M.L. was seven years old. She also said that G.F. was not living with her at Aunt Telma's apartment at the time of the incident. Third, the defense called Aunt Telma, who testified that G.F. and her family lived in her apartment “around September,” before she left to go to El Salvador on October 1, 2008. Aunt Telma also recounted for the court an incident that occurred “four or five years ago” in which G.F. and M.L. were fighting on a bed and appellant pushed G.F. off the bed to break up the fight. Lastly, the defense called Metropolitan Police Department (MPD) Detective Maria Flores, who testified that G.F. had told her that appellant had touched her under—not over—her shirt. The defense presented evidence that G.F. was motivated to fabricate the allegation of abuse against appellant. At the time of the incident, G.F. lived with fourteen people, including her mother, brothers, and sisters, in a one-bedroom apartment with her Aunt Telma's family. G.F. testified that she did not like living in the apartment because the family “w[as] too squished in there.” Aunt Telma testified that she once overheard G.F. tell M.L., “[T]his is the way you use your brain when your mom and your dad doesn't [ sic ] have any place to live, you ... think about it and do something about it and try to take someone out of the apartment,” or “try to help your mom where she can get an apartment.”

The defense renewed its motion for judgment of acquittal, which the trial court denied. During closing arguments, both parties focused on whether the government had established beyond a reasonable doubt that the offenses occurred on a date reasonably near the dates—between March 20 and September 16, 2008—alleged in the Information. The trial court reserved ruling until the following day, and allowed both parties to submit briefs on the issue in light of this court's decision in In re E.H., 967 A.2d 1270 (D.C.2009). ⁴

The trial court found that the incident had “occurred between August and September 2008,” based on his belief that G.F. was living with her Aunt Telma at the time and had told her mother “that it occurred approximately two days before school began whe[n] she would enter Truesd[ell] Elementary.” ⁵ The trial court found appellant guilty of two counts of sexual abuse, merged the two counts, and sentenced appellant to 180 days of incarceration, execution of the sentence suspended, two years of supervised probation, and ordered appellant to pay a $100 fine to the Victims of Violent Crime Compensation Fund. The court also ordered appellant to stay away from G.F., prohibited his unsupervised contact with minor children (including his own children), and required appellant to register as a Class B sex offender.⁶ Appellant filed a timely notice of appeal.

II. Sufficiency of the Information

The Information against appellant charged him with two counts of engaging in sexual contact with G.F. “[b]etween on or about March 20, 2008, and September 16, 2008.” Appellant contends that the Information failed to provide adequate notice of the charges against him in that it lacked particularity about the date and time of the alleged offense. The government asserts that appellant waived this claim by failing to raise the issue within ten days of arraignment,⁷seeSuper. Ct.Crim. R. 47–I, and that, in any event, appellant was not prejudiced by the lack of greater specificity in the Information.

“An indictment or other charging document must assert a plain and concise statement of an alleged offense sufficient to put the accused on notice of the nature of the offense charged.” Patterson v. United States, 575 A.2d 305, 305 (D.C.1990) (per curiam). We have adopted a two-part test for determining whether an indictment or information is overly broad: “[ (1) ] whether [the indictment or information] gives the defendant adequate notice of the charges against him so that he can prepare a defense[;] and [ (2) ] whether, if he is later charged with a similar offense, he may...