State v. Dixon
| Decision Date | 02 November 1999 |
| Docket Number | 98-061 |
| Citation | 741 A.2d 580 |
| Parties | THE STATE OF NEW HAMPSHIRE v. ARTHUR DIXONTHE SUPREME COURT OF NEW HAMPSHIRE |
| Court | New Hampshire Supreme Court |
Strafford
Philip T. McLaughlin, attorney general (John P. Kacavas, senior assistant attorney general, on the brief, and N. William Delker, assistant attorney general, orally), for the State.
Howard Gross, of Dover, by brief and orally, for the defendant.
The defendant, Arthur Dixon, appeals his conviction in Superior Court (Fauver, J.) for one count of aggravated felonious sexual assault without penetration. See RSA 632-A:2, II (1996). We affirm.
Between January 1993 and August 1996, the victim regularly visited her grandmother, who lived with the defendant. She spent one night every other weekend in Farmington at her grandmother's residence, which changed location three times during this period. In July 1996, the victim disclosed to her parents separately that the defendant had improperly "touched her." The victim's father reported the allegations to the local police department.
A grand jury subsequently indicted the defendant on three charges of aggravated felonious sexual assault. After a jury trial in November 1997, the defendant was acquitted of two charges but convicted of the third.
On appeal, the defendant argues that the trial court erred by: (1) denying his motion for a bill of particulars; (2) refusing to find the victim incompetent to testify; (3) denying his motion to exclude evidence of bad acts; (4) refusing to allow him to cross-examine a State witness regarding statements made by the defendant; and (5) giving an erroneous supplemental jury instruction.
The defendant was indicted for three sexual assaults occurring between January 1, 1993, and August 1, 1996. The three indictments were identical except that each charged the defendant with committing sexual assault at a different address. Prior to trial, the defendant moved for a bill of particulars specifying the date and location of each act charged in the indictments. The Trial Court (Mohl, J.) initially denied the motion, but at the close of trial, the Trial Court (Fauver, J.) granted the defendant's request to require the State to prove beyond a reasonable doubt the location of each assault. The defendant now argues that the trial court's refusal to compel the State to specify the dates of the assaults left him unable to prepare an adequate defense and violated his federal and State double jeopardy and confrontation rights.
State v. Allison, 134 N.H. 550, 554, 595 A.2d 1089, 1091 (1991) (quotations, emphasis, citation, and brackets omitted). The decision whether to grant a motion for a bill of particulars is committed to the trial court's sound discretion. State v. Voorhees, 137 N.H. 650, 652, 632 A.2d 825, 826 (1993). We will not reverse the decision below unless the defendant shows that it was "clearly untenable or unreasonable to the prejudice of his case." Id. (quotation omitted).
"The exact date of the assault is not an element of the aggravated felonious sexual assault crime." State v. Demond, 136 N.H. 233, 234, 614 A.2d 1342, 1342-43 (1992) (quotation omitted). Where a defense based on the victim's age or statute of limitations is not possible, "a defendant generally has no basis for complaining that the indictment fails to allege a precise date, absent a showing that the inexactness raises a possibility of prejudice specific to him." Id. at 234, 614 A.2d at 1343 (quotation omitted).
The defendant does not allege that he had a defense based on the victim's age or statute of limitations. The question is whether the lack of specific dates raised the possibility of prejudice specific to him. The defendant asserts that the forty-four month period alleged in the indictments prejudiced his ability to prepare a defense based on lack of opportunity. He argues that because he "had no opportunity or access to the locations alleged in the indictments other than those times when he lived in those locations," a knowledge of the specific dates was necessary to insure that he would not be convicted for an act committed at a location when he did not reside there.
The State contends that because it did not know the specific dates of the assaults, it should not be required to arbitrarily select exact dates in order to furnish the defendant with an alibi defense. We agree.
Although forty-four months is a lengthy period of time in which to allege a single act of assault, see, e.g., id. at 234, 614 A.2d at 1342 (alleging ten-month period), we cannot say that it is excessively long as a matter of law, see State v. Gibson, 973 S.W.2d 231, 241 (Tenn. Crim. App. 1997) (alleging four-year period). We determine on a case-by-case basis whether the defendant was entitled to a bill of particulars.
Here, the defendant does not deny that he had access to the victim at the locations alleged during the time period alleged. At trial, he challenged the victim's credibility and denied that the assaults occurred. That the defendant did not have access to the victim at one location while residing at another does not constitute a time-based defense requiring specification of dates, cf. Woertman v. People, 804 P.2d 188, 191 (Colo. 1991), because the State was required to prove only that the defendant assaulted the victim once at each location before the indictments were returned and within the statute of limitations, see State v. Seymour, 142 N.H. 620, 622, 707 A.2d 130, 132 (1998). Under these circumstances, we cannot see how the lack of specific dates prejudiced the defense because they were not an essential element of the crimes charged. Cf. id.
The defendant argues that under State v. Boire, 124 N.H. 622, 474 A.2d 568 (1984), he was entitled to information of the exact date of each offense so long as there was a possibility of asserting a time-based defense. We disagree. We do not require the State to fix precise dates for aggravated felonious sexual assault, in part because the statute does not mandate it, and in part because victims typically have difficulty, especially if they are young children, in recalling specific dates of offenses that may have occurred over a long duration. See State v. Williams, 137 N.H. 343, 346, 629 A.2d 83, 85 (1993). The defendant's argument would require the State to provide the exact time of the assault whenever a defendant alleges the possibility of a time-based defense. We refuse to read Boire so broadly. Boire states that the State may be required to furnish a bill of particulars if the defendant can show it necessary for the preparation of a defense. Boire, 124 N.H. at 624, 474 A.2d at 569. A bare, conclusory assertion alone of the possibility of a time-based defense is insufficient to invoke the right to a bill of particulars. Cf. State v. Chick, 141 N.H. 503, 507, 688 A.2d 553, 556 (1996).
For this reason, we also reject the defendant's contention that Williams requires the State to provide exact dates. We initially point out that Williams does not address the requirements for a bill of particulars. Rather, Williams recognized a second exception, in addition to a bill of particulars, to the general rule that time of assault is not an element in aggravated felonious sexual assault. See Seymour, 142 N.H. at 622-23, 707 A.2d at 132. "[I]f the State alleges the crime occurred within a time frame in the indictment or complaint and the defendant asserts a lack of opportunity defense for the entire period, then the State must establish the time frame as part of its proof." Id. at 623, 707 A.2d at 132. Williams protects a defendant accused of sexual assault from conviction based on evidence of his access to the victim outside of the time period alleged in the indictment. See Williams, 137 N.H. at 348, 629 A.2d at 86. A defendant must actually assert a time-based defense that he was unavailable for the entire period charged in the indictment to be entitled to a Williams instruction. See id. at 347, 629 A.2d at 85-86. Here, the evidence did not expose him to a conviction based on evidence of access to the victim before or after the alleged time-frame. Moreover, the defendant conceded that he did not assert a time-based defense. Williams therefore does not apply.
The defendant argues, however, that he might have presented an alibi defense if he had known the specific dates of the assaults prior to trial and that the requirement of location imposed by the court at the end of trial was too late to aid his defense. While it might be more convenient for a defendant to acquire such information before trial, a problem arises when the State does not have that information. In this situation, "the trial court cannot determine whether or not the defendant has been hampered in his defense until the court knows what proof the state will offer as to the time and place of the offense, and how this evidence relates to the actual theory of defense." State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991). Generally, this means information will not be apparent until the case is tried. Id. Hence, we conclude that the trial court did not err in making its ruling after the evidence had been submitted.
We further reject the defendant's contention that the denial of a bill of particulars violated the right to confront his accuser under Part I, Article 15 of the State Constitution and the Sixth Amendment of the Federal Constitution because it limited his strategic ability to cross-examine the victim. As the federal confrontation clause affords no greater protection than the State confrontation clause, see State v. Roberts, 136 N.H. 731, 744, 622 A.2d 1225, 1235 (1993), we consider his claim under the State Constitution first, see ...
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