State v. O'Brien
| Decision Date | 31 March 1994 |
| Docket Number | No. 93-1754,93-1754 |
| Parties | 19 Fla. L. Weekly D727 STATE of Florida, Appellant, v. Thomas Daniel O'BRIEN, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Wesley Heidt, Asst. Atty. Gen., Daytona Beach, for appellant.
Douglas D. Marks of Potter, McClelland, Marks & Healy, P.A., Melbourne, for appellee.
The state appeals from an order dismissing an information, which charged O'Brien with multiple counts of sexual battery on a child under the age of eleven years. 1 The information set forth the dates as between January 1, 1983 and December 1984. The trial court held a hearing patterned after Dell'Orfano v. State, 616 So.2d 33 (Fla.1993). Without giving the state a chance to amend the information, the trial court ruled the state failed to show it had exhausted all reasonable means to narrow the time frame alleged for when the crimes took place and that O'Brien would be prejudiced in the preparation of his defenses. We reverse.
Although the trial court's ruling comes to us with the presumption of correctness, 2 we think the record in this case fails to establish a basis for dismissal of the information with prejudice. In this case, a child victim testified and tried to pin down the three dates she was allegedly sexually abused by O'Brien.
At the hearing, the child testified she had worked with her mother and a counselor days before the hearing to pin down the time more specifically. She was able (for the first time) to recall the first battery occurred when she was six, in kindergarten. The last occurred when she was eight years old, in November or December of 1984, when she finally told her mother about the abuse, and was removed from the O'Brien home.
As Justice Kogan said in Dell'Orfano, "[w]e recognize that young children often are unable to remember the specific dates on which they were abused...." "Common sense dictates that admitted wrongdoing should not be shielded from prosecution merely because the state is unable to provide greater specificity in an information or indictment." Dell'Orfano, 616 So.2d at 35. In Dell'Orfano, the information stated a time frame thirty-five months long, considerably longer than the time span in this case. The court rejected any "bright line rule" as to time and vagueness. However, it said the state should not be permitted to use a multi-year period where it is "able to narrow the time frame further, but simply refuses to do so in the charging documents, in a statement of particulars, or during discovery."
In this case, it appears the dates relating to the sexual batteries now could be more specifically stated as to time, based on the child-victim's testimony at the hearing; i.e., summer of 1982; fall to December of 1984. Rather than dismissing the information with prejudice, however, we think that the court should have given the state a chance to amend the information at least once, 3 or to respond to the defense's motion for a bill of particulars. 4 Only if the state refused to do so, should the information have been dismissed. 5
O'Brien argues that his alibi defenses will be severely prejudiced because of the ten year lapse of time since the alleged sexual batteries took place, and the vagueness of the time frames alleged in the information. The state should now be able to limit the time frame considerably. But, in any event, O'Brien's alibi defense is not the kind of alibi most jeopardized by lack of a specific time for an alleged crime.
O'Brien was prepared to show he was active in after-school activities and part-time work, so he was rarely in the household when this child-victim was there, and they were never alone. The child-victim was one of many children who were cared for by O'Brien's sister. She was in the O'Brien home where the defendant lived, over a span of three years, summers and winters, daily from early in the morning (4:30 a.m.) to 2:30-3:00 p.m. The kind of alibi defense proferred by O'Brien is less persuasive than some in this context. As the Court said in Dell'Orfano:
The fact that a defendant may advance an alibi of short duration will not necessarily be dispositive when it is clear the defendant had access to the victim throughout the time period, in question, such as where both resided in the same house at all relevant times.
Accordingly, we reverse the order dismissing the information, and remand to permit the state to amend or file a response to the motion for a bill of particulars, based on the child-victim's testimony at the hearing.
REVERSED and REMANDED.
The information in this case was filed on June 10, 1993. On June 24, the defendant served a Motion for Statement of Particulars or alternative Motion to Dismiss asserting:
The State should be required to furnish a statement of particulars setting forth as definitely as possible the date and place of the crimes charged in each Count. Failing either such a statement of particulars or a representation by the State that it has exhausted its ability to define actual or reasonably approximate dates when the offenses were committed, all Counts should be dismissed.
That same day there was a brief hearing and it was agreed that there should be an evidentiary hearing, which was scheduled to occur five days later, on June 30. The prosecutor indicated he would speak again to the victim to see whether there was a way to pinpoint the dates of the offenses more precisely than the two year span previously given to them. He did so and at the hearing the girl testified that she had now been able to recall the first incident occurred in the summertime. She was able to do this through visualization (type of clothing, air conditioning, etc.) and she testified she told the prosecutor about this more narrow time frame "right before court." I am simply unable to credit the argument that the state has lost its right to amend the information because the prosecutor failed to do so prior to the commencement of this hearing. I agree with the opinion of Judge Sharp.
Judge Thompson points out the appealed order reflects that the trial judge also ruled that the state had failed in its proof that it had narrowed the time frame as far as possible because the victim had evidently reported O'Brien's acts to the State in 1985 but the State had failed to offer any witnesses who were involved in the original complaint--presumably to testify that the information obtained from the child in 1985 was no more precise in terms of dates than what is contained in the information.
The discussion of this issue is contained in the following colloquy:
MR. MARKS: Can I address that point, Your Honor? There was a prosecution of a man named Richard Castansus (phonetic), who confessed to abusing this child in an extremely similar manner to the allegations being made against Mr. O'Brien.
The police report which I assume were [sic] part of the discovery is that case that was given to the defense, contains statement by [the victim's] parents that she was making an allegation at that time that she had been abused by Mr. O'Brien.
I would assume with reference to your question whether the State Attorney's Office was made aware of this, I don't know if a formal complaint was made in terms of: I want Mr. O'Brien prosecuted.
But that information, in the form of police reports that were generated by the Melbourne Police, I have to assume were made available to the State Attorney's Office in connection with the prosecution and conviction of Mr. Castansus for molesting this child, same acts, same time.
But the law enforcement and the State had knowledge of this particular allegation and elected not to prosecute back in 1985. The defendant now testifies that his business records are lost at Burger King, that is rebutted today. And this hearing has been scheduled for a while now.
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