People v. Naugle
| Decision Date | 27 October 1986 |
| Docket Number | Docket No. 82487 |
| Citation | 393 N.W.2d 592,152 Mich.App. 227 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carlton E. NAUGLE, Defendant-Appellant. 152 Mich.App. 227, 393 N.W.2d 592 |
| Court | Court of Appeal of Michigan — District of US |
[152 MICHAPP 229] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nathan T. Fairchild, Pros. Atty., and Tonatzin M. Alfaro Garcia, Asst. Atty. Gen., for People.
Douglas Hartung, Adrian, for defendant-appellant.
Before ALLEN, P.J., and HOOD and LIVO, * JJ.
In this matter we have the opportunity, for the first time, to set forth and describe the degree of specificity of the stated time or identity of the offense mandated by the following language in M.C.L. Sec. 767.51; M.S.A. Sec. 28.991:
"[T]he court may on motion require the prosecution to state the time or identify the occasion [of [152 MICHAPP 230] the offense] as nearly as the circumstances will permit, to enable the accused to meet the charge."
Following a jury trial, defendant was convicted on November 1, 1984, on four counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(b); M.S.A. Sec. 28.788(2)(1)(b), and one count of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c(1)(b); M.S.A. Sec. 28.788(3)(1)(b). He was sentenced on December 18, 1984, to four concurrent terms of 15 to 30 years' imprisonment, to be served concurrently with a fifth term of 10 to 15 years' imprisonment. Defendant appeals from his convictions and sentences as of right.
Complainant, the defendant's former stepdaughter, testified that in 1984, when she was 13 years old, the defendant engaged in sexual relations with her on three separate occasions. The first two incidents took place while defendant was still married to complainant's mother and while he was still residing at the family home. The third episode unfolded at the defendant's apartment, after he and complainant's mother had separated.
Complainant testified that the first assault took place at approximately 2:45 a.m. one morning, while her mother was working the night shift. Defendant awoke complainant and informed her that her friend Quincy had come by to visit and was waiting downstairs in the family room. When complainant entered the family room and Quincy was nowhere in sight, the defendant led her into his bedroom. He ordered her to disrobe, undressed himself, made her rub his penis, and then proceeded to engage in sexual intercourse with her. Further, he threatened to hurt complainant's mother, and then complainant, if anyone was informed of this incident.
[152 MICHAPP 231] The second episode also took place while complainant's mother was working. As complainant pretended to sleep, the defendant tried to awaken her and then carried her downstairs to his bedroom. While she continued to feign slumber, defendant pulled down one leg of her pajamas and inserted his penis into her vagina. Complainant then pretended to awake, and was told by defendant to implicate her natural father if it ever became known that she was sexually active. Complainant refused and returned to her room.
Complainant testified that the final incident took place on the day that defendant's new vacuum cleaner was delivered to her home. Complainant cleaned defendant's apartment every Thursday, but always while he was at work. On this particular day, defendant was at complainant's home when she arrived from school, and drove complainant to his apartment so that she could do some housework. However, instead of leaving the apartment, the defendant called into work sick. He then indicated that he wanted to have sex with complainant, and threatened to hurt her mother if she refused to cooperate. Complainant therefore acquiesced as the defendant put his penis in her mouth and, thereafter, in her vagina.
Complainant had difficulty recalling exactly when these events took place. Detective Robert Wolverton indicated that such confusion was not abnormal, explaining that children who are victims of ongoing sexual assaults will often confuse one episode with another. In addition, these children often experience difficulty in remembering the exact dates of the assaults. Wolverton therefore worked with complainant in an effort to have her identify the dates. He encouraged her to recall some other events that she could temporally associate with the assaults. These other events were [152 MICHAPP 232] then used as reference points in zeroing in on the dates that these assaults happened.
With respect to the final episode, this technique was successful. Complainant recalled that the assault took place on the day that defendant's vacuum cleaner was delivered. Complainant's aunt, Terrie Naugle, testified that she and defendant both purchased and took delivery of vacuum cleaners from a door-to-door salesman on May 21, 1984. Further, Terrie Naugle corroborated complainant's testimony, stating that complainant left with defendant after he purchased the vacuum cleaner and that complainant regularly cleaned his apartment.
With regard to the first two assaults, complainant could only narrow the time periods during which the assaults occurred to a range of possible dates. She recalled that the first assault happened about two weeks before she, her mother, and her brother were taken to a protective shelter because the defendant had a gun and was threatening to shoot himself. Complainant's mother reported that they went to the shelter on March 18, 1984. Thus, Wolverton concluded that the first incident took place between February 1 and March 18, 1984.
With respect to the second offense, complainant believed that it had occurred on a Thursday, since she had a test on the following day and tests were given on Fridays. In addition, she recalled unusual weather conditions. She remembered that the snow accumulation on the ground had melted and that her uncle had mowed the grass once or twice before they had another snowfall. The second incident occurred after the weather had warmed up again. Wolverton dated these weather patterns as having occurred between April 1, 1984, and May 20, 1984. At trial, a weather observer testified that the last date of snow accumulation on the ground [152 MICHAPP 233] was March 29, 1984. On April 17, 1984, there was a snowfall but the snow melted without accumulation.
Defendant's motion to dismiss the charges relative to the first two incidents was denied. As an alternative, defendant requested a bill of particulars seeking to clarify the dates of the offenses. However, this was not furnished, presumably because no more specificity could be provided. Defendant maintains that the imprecise dates set forth in the information effectively precluded him from preparing an alibi defense. He now argues that he was denied due process of law by the trial court's failure to require that the dates of the offenses be alleged with more specificity. Thus, we must determine whether the trial court's failure to require a more definite time frame was proper.
An information need only state the time of an offense "as near as may be". M.C.L. Sec. 767.45(2); M.S.A. Sec. 28.985(2). However, M.C.L. Sec. 767.51; M.S.A. Sec. 28.991 provides in pertinent part:
"[T]he court may on motion require the prosecution to state the time or identify the occasion [of the offense] as nearly as the circumstances will permit, to enable the accused to meet the charge." (Emphasis added.)
Although this Court has never been called upon to construe the foregoing language, the statute clearly endows the trial court with discretion to determine when and to what extent specificity will be required. Accordingly, we will not reverse the lower court decision absent an abuse of that discretion. Nonetheless, we believe that certain factors should be included in making such a determination, including but not limited to the following: (1) the nature of the crime charged; (2) the victim's [152 MICHAPP 234] ability to specify a date; (3) the prosecutor's efforts to pinpoint a date; and (4) the prejudice to the defendant in preparing a defense.
Where the facts demonstrate that the prosecutor has stated the date and time of the offense to the best of his or her knowledge after undertaking a reasonably thorough investigation, we would be disinclined to hold that an information or bill of particulars was deficient for failure to pinpoint a specific date. See People v. Morris, 61 N.Y.2d 290, 473 N.Y.S.2d 769, 461 N.E.2d 1256 (1984). Moreover, while we believe that a defendant's intention to assert an alibi defense should be a consideration in the trial court's determination, we do not believe that it must necessarily militate in favor of either requiring specificity or dismissing the charges against a defendant. Such a holding would give rise to an untenable tactic. A defendant would simply have to make the assertion of alibi in order to escape prosecution once it became apparent that a child was confused with respect to the date of a sexual assault. 1
Moreover, given that an exact date need not be specified, 2 like the circumstances in State v. DBS, 700 P.2d 630, 634 (Mont.1985), the assertion of an alibi defense in this particular case appears specious. In DBS, the father was charged with incest, which was alleged to have occurred during a ten-month period in which the defendant's daughter was in his sole custody. The court noted that [152 MICHAPP 235] offering an alibi for this ten-month period would have been a futile gesture. Similarly, where, as here, the defendant was living in the same house with his victim over an extended period of time and the victim was often left solely in defendant's care it appears that creating a viable alibi defense was not a realistic option.
Given the facts of this case, we find no error in the trial court's decision not to require more specificity. The offense dates...
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