State v. Barnecut
Citation | 542 N.E.2d 353,44 Ohio App.3d 149 |
Decision Date | 01 April 1988 |
Docket Number | No. 30-CA-87,30-CA-87 |
Parties | The STATE of Ohio, Appellee, v. BARNECUT, Appellant. * |
Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
1. A defendant is not prejudiced by the failure of the indictment to specify the dates and times upon which the charged offenses allegedly occurred if such failure does not impose a material detriment to the preparation of his defense. Where the defendant does not present an alibi defense, where he concedes being alone with the victims of the alleged sex offenses at various times throughout the relevant time frame, and where his defense is that the alleged touchings never happened, the inexactitude of dates or times in the indictment is not prejudicial error.
2. If no evidence is presented that the offenses alleged in the indictment occurred within the time frames specified therein, the counts in the indictment relating to those offenses must be dismissed.
Gregg Marx and David L. Landefeld, Lancaster, for appellee.
G. Gene Jackson, Baltimore, for appellant.
Defendant-appellant, Paul W. Barnecut, was indicted on six counts of sexual misconduct. The fifth count of the indictment was dismissed at trial because the victim did not testify about any sexual misconduct on appellant's part for the year indicated in the indictment. The indictment otherwise provided:
COUNT VIOLATION VICTIM DATE/TIME OF OFFENSE
One 2907.05(A)- Lee Ann On a date certain during the month of May
(3) Friesner 1983, when age nine.
Two 2907.05(A)- Lee Ann On a date certain during the month of June
(3) Friesner 1983, when age nine.
Three 2907.05(A)- Andrea On a date certain during the calendar year
(3) Christine 1983, when age eleven.
Four 2907.05(A)- Yashonna Lynn On a date certain during the calendar year
(3) Lowder 1982, when age eight.
Six 2907.02 Yashonna Lynn On a date certain during December of
Lowder calendar year 1982, when age eight.
The bill of particulars did not narrow the time frame of any of the counts in the indictment. With regard to the first two counts, the bill of particulars did provide:
The proof at trial, with regard to each count, showed:
COUNT DATE/TIME OF OFFENSE
One Spring or summer of 1981, specifically June, July.
Two Events occurred when victim was nine years old (1983).
Four During spring, summer of 1982, when she was eight years old.
Six Same as Count Four.
As a result of the proof at trial, the state moved after its case-in-chief to amend the first two counts of the indictment to provide:
COUNT DATE/TIME OF OFFENSE
One During the summer months of 1981.
Two During the summer months of 1983.
Appellant objected to the amendments, as well as to the original indictment, on grounds that the inexactitude of time and variance of proof violated his constitutional right to a fair trial. The trial court overruled the objections.
Appellant did not rely on an alibi defense and in fact admitted to being alone with the victims within the time frames provided in the indictment. Appellant's defense was that the crimes never took place, making the case a credibility assessment for the jury. In addition, no claim is made, and the evidence does not support a claim, of bad faith on the part of the state in failing to narrow the time frames in the indictment.
The jury found appellant guilty of all five counts. He appeals his conviction and sentence assigning as error:
I
Appellant's first assignment of error is that he was denied due process of law due to the inexact dates and times provided in the indictment and bill of particulars.
Appellant was essentially charged with two crimes: gross sexual imposition of a person less than thirteen years of age (R.C. 2907.05[A] ), and rape (R.C. 2907.02). Under the facts of the instant case, age and the statute of limitations were not issues; thus, time was neither essential nor an element of the offenses.
State v. Sellards (1985), 17 Ohio St.3d 169, 171, 17 OBR 410, 411-412, 478 N.E.2d 781, 784.
The Sellards court noted that the absence of specifics must truly prejudice the accused's ability fairly to defend himself. Sellards, supra, at 172, 17 OBR at 412, 478 N.E.2d at 784. Absent material detriment to the preparation of a defense, the omission of specific dates and times is without prejudice, and without constitutional consequence. Sellards, supra, at 172, 17 OBR at 413, 478 N.E.2d at 785. If such is not fatal to an indictment, it follows that impreciseness and inexactitude of the evidence at trial is not "per se impermissible or necessarily fatal to a prosecution." State v. Robinette (Feb. 27, 1987), Morrow App. No. CA-652, unreported, at 6, 1987 WL 7153. The question in such cases is whether the inexactitude of temporal information truly prejudices the accused's ability fairly to defend himself. Sellards, supra; State v. Gingell (1982), 7 Ohio App.3d 364, 368, 7 OBR 464, 468, 455 N.E.2d 1066, 1071; State v. Kinney (1987), 35 Ohio App.3d 84, 519 N.E.2d 1386.
Grafted upon the question of prejudice is a problem that cases of child abuse invariably present, i.e., a victim-witness who, due to tender years, does not have the temporal memory of an adult and has problems remembering exact times. As the Hamilton County Court of Appeals stated in Gingell:
(Emphasis sic.) Id. 7 Ohio App.3d at 368, 7 OBR at 468, 455 N.E.2d at 1071.
This court has also recognized this particular problem:
Robinette, supra, at 7-8. See, also, State v. D.B.S. (1985), 216 Mont. 234, 700 P.2d 630, 634 ( ).
Under the facts and circumstances of the instant case, appellant was not prejudiced by the inexactitude of the dates and times of the offenses provided in the indictment and the bill of particulars. The largest time frame in these counts spans one entire calendar year. Such a span has not necessarily been fatal to a successful prosecution. See Gingell, supra ( ). See, also, State v. Williams (Minn.App.1985), 363 N.W.2d 911 ( ); People v. Fritts (1977), 72 Cal.App.3d 319, 140 Cal.Rptr. 94 ( ); State v. Bickford (Me.1986), 506 A.2d 1143 ( ); D.B.S., supra ( ); State v. Becker (Minn.1984), 351 N.W.2d 923 ( ). Appellant has not shown how the failure to produce a specific time or date in the indictment or bill of particulars has been a material detriment to the preparation of his defense. See Sellards, supra. Appellant did not show at trial that he was indisputedly elsewhere. See Sellards, supra, 17 Ohio St.3d at 172, 17 OBR at 413, 478 N.E.2d at 785; Gingell, supra, 7 Ohio App.3d at 368, 7 OBR at 468, 455 N.E.2d at 1071. In the case sub judice, appellant admitted to being alone with the victims throughout the time frames provided in the indictment. His defense was that the...
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...at ¶ 43.{¶126} Child-sex-abuse cases can involve broad time periods. See, e.g., See at ¶ 19 (one year); State v. Barnecut , 44 Ohio App.3d 149, 152, 542 N.E.2d 353 (5th Dist.1988) (one year); State v. Mundy , 99 Ohio App.3d 275, 296, 650 N.E.2d 502 (2d Dist.1994) (one year to five years); S......
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...not be determined. State v. Boyer, 10th Dist. No. 06AP–05, 2006-Ohio-6992, 2006 WL 3825264, ¶ 11, citing State v. Barnecut, 44 Ohio App.3d 149, 151–152, 542 N.E.2d 353 (5th Dist.1988).{¶ 44} If the evidence ultimately establishes a variance between the dates alleged in the indictment and th......
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