State v. Armstrong

• Decision Date: 17 January 1986
• Docket Number: No. 58,012,58,012
• Citation: 712 P.2d 1258,238 Kan. 559
• Parties: STATE of Kansas, Appellee, v. Allen D. ARMSTRONG, Appellant.
• Court: Kansas Supreme Court

Page 1258

712 P.2d 1258

238 Kan. 559

STATE of Kansas, Appellee, v. Allen D. ARMSTRONG, Appellant.

No. 58,012

Supreme Court of Kansas.

Jan. 17, 1986.

Syllabus by the Court

1. The record is examined in a criminal action in which the defendant was convicted of aggravated indecent liberties with a child (K.S.A.1983 Supp. 21-3504) and it is held that the trial court did not err: (1) in permitting the State to amend the information by expanding the time period in which the alleged crime occurred from a set date to a five-month time span; (2) in denying defendant's motion for a bill of particulars; (3) in its instruction on the elements of the offense; and (4) in refusing to dismiss the prosecution because, as of the date of trial, the offense had been reduced from a Class B to a Class D felony.

2. Where a new criminal statute is passed in a field already occupied by an older statute, the new enactment will not be held to have repealed by implication the old statute as to crimes already committed at the time the new statute is passed. Ordinarily, the criminal statute and penalty in effect at the time the criminal offense was committed is controlling.

Terry Pullman, Deputy Public Defender, argued the cause, and Linda C. McMaster, Asst. Public Defender, was on the brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice.

This is a direct appeal by the defendant, Allen D. Armstrong, from a jury trial conviction on one count of aggravated indecent liberties with a child (K.S.A.1983 Supp. 21-3504). Defendant Armstrong was originally charged with two counts, each involving an alleged sexual molestation of his ten-year-old daughter. He was acquitted on Count I and convicted on Count II and has appealed that conviction.

Count I of the original complaint charged a lewd touching which allegedly occurred on April 27, 1984, in defendant's motor vehicle. Count II charged defendant with another act which allegedly occurred at the defendant's house on the same day. A preliminary examination was held on July 10, 1984. After hearing the evidence, the court, upon motion of the prosecution, permitted the information to be amended by interlineation to change the date of the offense alleged in each count to conform with the preliminary hearing evidence. As to Count II, the amendment permitted the prosecution to allege that the incident at defendant's house occurred on or about a period from November 1, 1983, to March 31, 1984. Thereafter, defense counsel filed a motion for a bill of particulars requesting the "exact time and date of the occurrence and its duration," the "exact street address and physical description of the location or locations of the occurrence," and the "particular acts allegedly committed by the defendant which constitute the offense charged." The district court denied the motion for a bill of particulars. The case then proceeded to trial. The defendant's daughter testified as to acts of molestation both in defendant's vehicle and at the defendant's house. The defendant denied participation in any such acts. The jury brought in a verdict in favor of the defendant on Count I and convicted the defendant on Count II, which involved the sexual acts committed at the defendant's house. The defendant appealed.

The first issue raised on the appeal is that the trial court erred in allowing the State to amend the information after preliminary hearing. Any argument in regard to Count I of the information is moot because defendant was acquitted on Count I. As noted above, the amendments as to Count II involved the incident which occurred at defendant's house. The complaint/information originally alleged the crime occurred on April 27, 1984. After the testimony at the preliminary hearing, the complaint was amended to allege that the incident occurred some time between November 1, 1983, and March 31, 1984. On October 15, 1984, defendant filed a notice of alibi defense pursuant to K.S.A. 22-3218 and listed witnesses the defense would call in support of such defense. Defendant objected to the amendment on the basis that he was denied an alibi defense by reason of the amendment. We find no error.

K.S.A. 1984 Supp. 22-3201(4) provides:

"(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced."

In State v. Osburn, 216 Kan. 638, 641, 533 P.2d 1229 (1975), this court stated:

"The decisions of this court support the rule that prior to the commencement of the trial the prosecutor should be given a wide discretion in amending the original information. We have consistently held that a trial court may allow an amendment to an information in its discretion both as to form and substance after arraignment and plea before commencement of the trial. (State v. Morris, 131 Kan. 282, 291 Pac. 742; State v. Hobl, 108 Kan. 261, 194 Pac. 921.) Our cases distinguish between amendments before trial and those which are made during the course of the trial. (State v. Eye, 161 Kan. 69, 166 P.2d 572.) In permitting the state to amend an information the courts have been careful to protect the rights of the defendant so that his defense will not be prejudiced by the amendment." 216 Kan. at 641, 533 P.2d 1229.

In State v. Wonser, 217 Kan. 406, 537 P.2d 197 (1975), the defendant was convicted of indecent liberties with a child. The information alleged the crime was committed "sometime during the first part of August 1972." Defendant contended the failure to give a definite date and time for the alleged offense deprived him of his Sixth Amendment constitutional right to know the nature and cause of any accusations brought against him. The court opinion stated:

"This court has held on numerous occasions that the precise time of the commission of an offense need not be stated in the indictment or information. Except where the time is an indispensable ingredient of the offense, it is sufficient if shown to have been within the statute of limitations. (State v. Bowman, 106 Kan. 430, 188 Pac. 242; State v. Freeman, 143 Kan. 315, 55 P.2d 362; State v. Thomas, 177 Kan. 230, 277 P.2d 577.) Time was not an indispensable ingredient of the crime charged and the crime was shown to have been well within the statute of limitations. Time had nothing to do with the nature and cause of the accusation." 217 Kan. at 407, 537 P.2d 197.

In State v. Kilpatrick, 2 Kan.App.2d 349, 352, 578 P.2d 1147 (1978), the defendant appealed his two convictions of indecent liberties with a child. Defendant urged error in the information because it failed to specify a particular date, other than December 1975, for one of the incidents. The Court of Appeals relied on Wonser, stating that, because time is not an indispensable ingredient of the offense of indecent liberties with a child, the precise time need not be stated in the indictment or information and it is sufficient if it can be shown the time of the offense was within the statute of limitations. In this regard see also State v. Sisson, 217 Kan. 475, 536 P.2d 1369 (1975); State v. Jones, 204 Kan. 719, 466 P.2d 283 (1970); and State v. Aldrich, 232 Kan. 783, 658 P.2d 1027, cert. denied 462 U.S. 1136, 104 S.Ct. 80, 78 L.Ed.2d 90 (1983).

Under the factual circumstances in the present case, we have no hesitancy in holding that the amendment of Count II as to the date of the offense did not come as a surprise to defendant and the rights of the defendant were not prejudiced thereby. Here, the State amended the information following the preliminary hearing. The amendment expanded the time span in which the alleged crime occurred from a specific date to a five-month span, November 1, 1983, to March 31, 1984. The amendment was filed July 10, 1984, approximately three months before trial commenced on October 24, 1984, and could not have surprised defendant or prejudiced his substantial rights. Defendant's notice of alibi was filed after the amendment. We hold that the trial court did not err in permitting the amendment to the information.

The defendant's second point raised on the appeal is that the trial court erred in denying defendant's motion for a bill of particulars. In his motion, the defendant requested, among other things, the exact time and date of the occurrence and its duration. This motion was overruled. We hold that the trial court did not err in its ruling. This case is governed by our decision in State v. Myatt, 237 Kan. 17, 28-29, 697 P.2d 836 (1985). In that case, this court pointed out that where a prosecution involving indecent liberties with a child does not commence promptly after the alleged commission of an offense or the event is not otherwise brought to the public notice, it is not unusual for uncertainty as to dates to appear, particularly when the memories of children are involved.

The defendant in Myatt argued that the denial of a bill of particulars stating the exact time of the offense impaired his ability to prepare an alibi defense. The court in the opinion stated that a bill of particulars would serve no useful purpose. The evidence at the preliminary examination raised the possibility that the offense had occurred in mid-September of 1982. The court quoted from State v. Hill, 211 Kan. 287, Syl. p 9, 507 P.2d 342 (1973), which stated:

"When charges in the information are clarified by facts brought out at the preliminary hearing there is no need for amplification by a bill of particulars, absent a showing of surprise or prejudice."

In the present case, we have concluded that a bill of particulars would serve no useful purpose because the State could only establish an approximate date when the incident occurred. The victim was just eleven years old a month before the preliminary hearing. When...