State v. Jones

• Decision Date: 08 October 2003
• Docket Number: No. 28715.,28715.
• Citation: 140 Idaho 41,89 P.3d 881
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Bobby Dean JONES, Defendant-Appellant.
• Court: Idaho Court of Appeals

89 P.3d 881

140 Idaho 41

STATE of Idaho, Plaintiff-Respondent, v. Bobby Dean JONES, Defendant-Appellant.

No. 28715.

Court of Appeals of Idaho.

October 8, 2003.

Rehearing Denied December 1, 2003.

Review Denied May 12, 2004.

Michael J. Wood, Twin Falls, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.

LANSING, Chief Judge.

Bobby Dean Jones appeals from the judgment of conviction entered after he was found guilty by a jury of lewd conduct with a minor child under sixteen. On appeal, Jones contends that the information filed by the State was defective in several respects, that there was a fatal variance between the information and the evidence, and that the prosecutor gave insufficient notice of intent to offer evidence of uncharged incidents of inappropriate touching. Jones also asserts that the district court erred by using a pattern criminal jury instruction on credibility rather than Jones's proposed instruction, by denying Jones's motion for a judgment of acquittal, and by imposing an excessive sentence.

I. BACKGROUND

Jones was charged with five counts of lewd conduct with a minor child under sixteen, Idaho Code § 18-1508, for acts he was alleged to have committed with two of his granddaughters. Before trial, Jones moved to dismiss the charges, arguing that the information failed to alleged sufficient facts to meet the due process requirement of adequate notice and protection against double jeopardy, that counts one and two were duplicitous because they charged identical and indistinguishable crimes, and that count five was unconstitutional because it charged defendant with multiple criminal acts in one count rather than a single criminal act. The district court denied the motion.

After a trial, a jury found Jones guilty on four of the five counts. The court sentenced Jones to concurrent unified terms of life imprisonment, with five years determinate. Jones now appeals.

II. ANALYSIS

A. Sufficiency of the Information

Jones argues, as he did in his pretrial motion, that the information was insufficient to apprise him of the nature of the charges against him and to protect him from a second prosecution for the same crimes. More specifically, he argues that the information identified no particular time, no location, no information on the presence of other witnesses, or any other information which might have aided him in identifying the particular incidents for which he was charged.

The sufficiency of an information is a question of law over which we exercise free review. State v. Holcomb, 128 Idaho 296, 300, 912 P.2d 664, 668 (Ct.App.1995); State v. Robran, 119 Idaho 285, 287, 805 P.2d 491, 493 (Ct.App.1991). An information is legally sufficient if it contains "a plain, concise and definite written statement of the essential facts constituting the offense charged." Idaho Criminal Rule 7(b). See also I.C. § 19-1409; State v. Owen, 129 Idaho 920, 926, 935 P.2d 183, 189 (Ct.App.1997). Ultimately, the sufficiency of the information depends upon whether it fulfills the basic functions of a pleading instrument by informing the defendant of the charges against which he must defend and enabling him to plead an acquittal or conviction in order to avoid reprosecution for the same offense. State v. Coleman, 128 Idaho 466, 471, 915 P.2d 28, 33 (Ct.App.1996); Holcomb, 128 Idaho at 300, 912 P.2d at 668.

We first address Jones's argument concerning the lack of specific details in the information regarding how the criminal acts were alleged to have been committed. Although an information must contain the essential facts, the State is not required to disclose in the information the evidence which it relies upon to prove its case. State v. McKeehan, 91 Idaho 808, 815, 430 P.2d 886, 893 (1967). In addition, a defendant generally cannot be prejudiced by the absence of specific details in the information when those details are either already known to the defendant or are provided to him by means other than the information, such as through preliminary hearing testimony. Owen, 129 Idaho at 927, 935 P.2d at 190. See also Holcomb, 128 Idaho at 300,

912 P.2d at 668. Here, the allegations of the information, though general, are sufficient.

In addition, Jones was fully apprised of the acts he was charged with committing at the preliminary hearing. During that hearing, the State presented the victims' testimony about the surrounding circumstances and the manner in which the offenses were alleged to have been committed. The preliminary hearing eliminated any uncertainty and gave Jones notice of the details of the charges against him. Therefore, Jones has suffered no prejudice from the manner in which the information pleaded the charges.

Jones's next argument, that the information was insufficient for failure to allege a specific time of the offenses, is also without merit. Under I.C. § 19-1414, the "precise time at which the offense was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense." Time is not a material element of the crime of lewd and lascivious conduct with a minor. State v. Roberts, 101 Idaho 199, 200, 610 P.2d 558, 559 (1980); State v. Marks, 120 Idaho 727, 729, 819 P.2d 581, 583 (Ct.App.1991). The Idaho Supreme Court has stated that "[a]ny other rule would too often preclude prosecutions in this type of case where the victims are minors and where the crimes are not discovered until some time after their commission." Roberts, 101 Idaho at 200, 610 P.2d at 559. Although the alleged incident should be set forth with as much specificity as possible, the charges may be pleaded generally when the record shows that the State could not plead with any more specificity. Marks, 120 Idaho at 729, 819 P.2d at 583.

In the instant case, the information alleged that the offenses occurred between the spring of 1999 and the spring of 2000 (counts I and II), during the fall of 2000 (count IV), and between 1993 and August 2000 (count V).¹ The record shows that as to counts I, II and IV, the State could not have pleaded the charges with any greater particularity. The victim, L.J., was young, between eight and ten years old, at the time these lewd acts were alleged to have been committed. She frequently visited Jones at his home, where the abuse was alleged to have occurred. It is unrealistic to expect her to be able to recall dates specifically given her age and the time span over which the acts were alleged to have occurred. Jones has not shown that the lack of greater specificity in the dates somehow inhibited his ability to defend against the charges or subjects him to the risk of another prosecution for the same offenses.

As to count V, however, the allegation of a seven-year span is not explained by the record, and it appears that the State could have narrowed that allegation considerably. This pleading deficiency does not, however, entitle Jones to relief. As noted above, vagueness in the allegations of an information may be cured through preliminary hearing testimony that informs the defendant of the details of the State's allegations. Here, the victim referenced in count V testified at the preliminary hearing, when she was twelve years old, that the offense occurred about three years earlier, when she was eight or nine. This testimony narrowed the time frame and prevented any prejudice to Jones from the lack of specificity in the pleading.

Lastly, Jones contends that the information was insufficient to protect him against suffering a second prosecution for the same offenses. The test in determining whether an information is sufficient to protect a defendant from reprosecution is "whether the record shows with accuracy to what extent a defendant may plead a former acquittal or conviction." Coleman, 128 Idaho at 471, 915 P.2d at 33. Transcripts of Jones's preliminary hearing and trial identify the acts that are the basis for the charges in this case. If a second prosecution were ever attempted, Jones could rely upon the record to establish that he had already been convicted or acquitted of the crimes. See State v. Windsor, 110 Idaho 410, 418 n. 1, 716 P.2d 1182, 1190 n. 1 (1985)

. Accordingly, Jones has not shown that the general nature of the information's allegations leaves him exposed to reprosecution for these crimes.

B. Multiplicity of Counts I and II

Jones next argues that he was improperly charged in counts I and II because those counts are multiplicitous. He contends that because the counts are worded identically, they improperly charge him with two counts for what is actually a single offense. Idaho Code § 19-1432 allows for the charging of two or more offenses in the same indictment or information if the offenses charged "are of the same or similar character or are based on the same act or transaction or on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan." However, multiplicity may occur if a defendant is charged with a single offense in more than one count of the information or the indictment. Sanchez v. State, 127 Idaho 709, 713-14, 905 P.2d 642, 646-47 (Ct.App.1995). The danger of multiplicitous charging is that a defendant could be subjected to multiple punishments for a single offense. State v. Aguilar, 135 Idaho 894, 897, 26 P.3d 1231, 1234 (Ct.App.2001).

Whether a circumstance encompasses a single offense or multiple offenses depends upon whether there were separate and distinct prohibited acts. Miller v. State, 135 Idaho 261, 267, 16 P.3d 937, 943 (Ct.App.2000); Sanchez, 127 Idaho at 713-14, 905 P.2d at 646-47. This determination requires an inquiry into the "circumstances of the conduct, and consideration of the `intent and objective of the actor.'" State v. Major, 111 Idaho 410, 414, 725 P.2d 115, 119...