State v. Nelson-Waggoner

• Decision Date: 16 April 2004
• Docket Number: No. 20000613.,20000613.
• Citation: 2004 UT 29,94 P.3d 186
• Parties: State of Utah, Plaintiff and Appellee, v. Stacey Nelson-Waggoner, Defendant and Appellant.
• Court: Utah Supreme Court

2004 UT 29

94 P.3d 186

State of Utah, Plaintiff and Appellee, v. Stacey Nelson-Waggoner, Defendant and Appellant.

No. 20000613.

Supreme Court of Utah.

FILED April 16, 2004.

This opinion is subject to revision before final publication in the Pacific Reporter.

Mark L. Shurtleff, Att'y Gen., Jeanne Inouye, Asst. Att'y Gen., Salt Lake City, N. George Daines, Logan, for plaintiff.

Margaret P. Lindsay, Provo, for defendant.

NEHRING, Justice:

¶1 Stacey Nelson-Waggoner appeals his conviction for aggravated sexual assault. The trial court sentenced Mr. Nelson-Waggoner to a prison term of ten years to life, to be served consecutively with a sentence from a prior first degree felony conviction. On appeal, Mr. Nelson-Waggoner asserts: (1) that the trial court committed plain error by allowing the State to amend the criminal information two days prior to trial, and (2) that he received ineffective assistance of counsel. We affirm.

¶2 In November 1996, K.W. was living with her parents in Logan, Utah. The family had recently moved to Logan from Provo, Utah, and K.W. had yet to make any new friends in the area. On a Friday evening shortly before Thanksgiving, K.W. met Mr. Nelson-Waggoner at a dance club in Salt Lake City. Mr. Nelson-Waggoner, who also lived in Logan, told K.W. that he was a football player for Utah State University (he wasn't), and said that he could introduce her to his friends. K.W. welcomed the prospect to meet new people and gave him her telephone number.

¶3 The next day Mr. Nelson-Waggoner phoned K.W. and asked her to have lunch with him on Sunday. She agreed and met him at a pizzeria early the following afternoon. At his suggestion, they went to a different restaurant, after leaving her car in a Utah State University dormitory parking lot.

¶4 Following lunch, Mr. Nelson-Waggoner asked K.W. to go with him to his fraternity house so he could say goodbye to a friend. She rode with him to the fraternity house and waited briefly in his car while he went inside. When he returned, Mr. Nelson-Waggoner asked K.W. if he could go to his dormitory room to change from his suit into casual clothing. He said that all the football players lived at the dormitory and that if K.W. wanted to meet them, she only had to let him know. They drove to the dormitory, and K.W. went inside with him to his room.

¶5 The dormitory room was small, and most of the room was taken up by a large bed. K.W. sat on the corner of the bed closest to the door and watched television. As Mr. Nelson-Waggoner started to undress by removing his suit jacket, K.W. asked if she could leave the room. He responded "no," and went into another room to finish changing. When Mr. Nelson-Waggoner returned, he was wearing a shirt "with the sides cut out" and athletic shorts, but no shoes or socks.

¶6 Mr. Nelson-Waggoner sat on a chair near the bed and appeared to make two phone calls while K.W. remained sitting on the corner of the bed. After hanging up the phone, Mr. Nelson-Waggoner sat down on the bed next to K.W. She asked him about the pictures of two little girls on his corkboard. He said they were his daughters. K.W. later testified that the pictures had made her wonder if Mr. Nelson-Waggoner were married, but decided it was not important to her because she "wasn't really there to date him."

¶7 Mr. Nelson-Waggoner then told K.W. she was "cute" and turned and pinned her arms above her head. He began kissing her and running his hand over her breasts. When she told him to stop, he persisted and bit her neck, drawing blood. She again told him to stop, threatening to scream. He continued his attack and K.W. screamed; he released her, and she ran from the room.

¶8 The State charged Mr. Nelson-Waggoner with aggravated sexual assault. The original criminal information gave the date of the offense as "on or about: November 17, 1996 to November 30, 1996." At the preliminary hearing, K.W. testified that the offense occurred on Sunday, November 24, 1996.

¶9 Mr. Nelson-Waggoner then filed a motion for a bill of particulars to require the State to specify the place, date, and time of the offense. In its response, the State again placed the offense on a Sunday between November 17 and November 30, 1996, but conceded that it was unable to specify the exact date. Mr. Nelson-Waggoner moved the court to require the State to identify the precise date and time of the offense. The court addressed the matter at a pre-trial hearing, asking the State if it could provide a more specific date and time. The State repeated that it could not. The record does not disclose whether the court ruled on this motion.

¶10 At the same pre-trial hearing, Mr. Nelson-Waggoner filed a notice of alibi. He stated he would call witnesses at trial to establish that he was in the Cache County area on Sunday, November 17, 1996, but not in the company of K.W., and that he was in Phoenix, Arizona, on Sunday, November 24, 1996. These were the only Sundays within the range of dates provided by the State in its response to Mr. Nelson-Waggoner's motion for a bill of particulars. Mr. Nelson-Waggoner said he had recently learned that K.W. was "lea[n]ing more towards" November 17 as the date of the offense, instead of November 24, the date she testified to at the preliminary hearing.

¶11 About three weeks before trial, Mr. Nelson-Waggoner filed a second notice of alibi, which he later amended, correcting the name of one of his witnesses. In these notices, he repeated his intention to call witnesses to establish that he was in Cache County but not with K.W. on November 17, 1996, and that he was in Phoenix, Arizona, on November 24, 1996.

¶12 Two days before the trial began, the State amended its information, narrowing the date of the offense to "on or about November 17, 1996." Mr. Nelson-Waggoner did not object.

¶13 At trial, Mr. Nelson-Waggoner called three witnesses. None of the witnesses could vouch for his whereabouts on November 17, 1996. In closing argument, the prosecutor stated that K.W.'s trial testimony about the assault was uncontroverted by any defense witnesses and that Mr. Nelson-Waggoner had failed to produce helpful relevant alibi witnesses.

¶14 Mr. Nelson-Waggoner brings two issues before us. First, he argues that the trial court erred in allowing the State to amend its information just two days before trial. He acknowledges, however, that he failed to preserve this issue before the trial court and accordingly invites us to review the issue under the standard of plain error. Second, he argues that he received ineffective assistance of counsel, claiming that his lawyer (1) failed to object to the amended information, and (2) failed to object to allegedly improper statements made during the State's closing argument. We review these issues as a matter of law. State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376. We address each of Mr. Nelson-Waggoner's issues in turn.

I. AMENDMENT OF INFORMATION

¶15 Mr. Nelson-Waggoner contends that the trial court erred by allowing the State to amend its information to pare the field of possible dates of the assault from two weeks (November 17 to November 30) to one day (November 17). He speculates that the State's only reason for doing so was that it became aware of Mr. Nelson-Waggoner's solid alibi testimony that he was in Arizona during most of the two-week period covered in the earlier information. He argues that allowing the State to amend the information was error because his substantial rights were prejudiced, in violation of Utah Rule of Criminal Procedure 4(d).

¶16 Mr. Nelson-Waggoner admits this claim was not raised at the trial level and was thus not preserved for appeal. Under ordinary circumstances, we will not consider an issue brought for the first time on appeal unless the trial court committed plain error or exceptional circumstances exist. State v. Arguelles, 2003 UT 1, ¶ 41, 63 P.3d 731. Mr. Nelson-Waggoner argues that his case meets the exception on both counts. He further argues that manifest injustice will result if we do not address his claim. We disagree.

[T]o establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (i) An error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.

State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993). Because the trial court did not err in permitting the State to amend its information, Mr. Nelson-Waggoner's argument fails to clear the first hurdle.

¶17 The right of an accused to know the nature of the offense with which he is charged is a fundamental right guaranteed by both our federal and state constitutions.¹ This right is rooted in the recognition that when the government exercises its authority to bring criminal charges against a person and thereby places him at risk of losing his liberty, the accused should be entitled to insist that the crime be defined with such reasonable clarity that he can mount a defense. State v. Fulton, 742 P.2d 1208, 1213-14 (Utah 1987). By requiring that an offense be specifically identified, the right to be apprised of the nature of the crime also reinforces the protection against double jeopardy.² Id.

¶18 Rule 4 of the Utah Rules of Criminal Procedure gives practical expression to these fundamental rights. It defines the charging documents, describes the scope of their content, provides rules of construction, and, of importance here, sets out the limitations on their amendment. Specifically, rule 4(d) states that "[t]he court may permit an indictment or information to be amended at any time before verdict if no additional or different offense was charged and the substantial rights of the defendant are not prejudiced." Utah R. Crim. P....