State v. Quintero

• Decision Date: 12 October 2011
• Docket Number: No. 2009–832.,2009–832.
• Citation: State v. Quintero, 34 A.3d 612, 162 N.H. 526 (N.H. 2011)
• Parties: The STATE of New Hampshire v. George QUINTERO.
• Court: New Hampshire Supreme Court

162 N.H. 526

34 A.3d 612

The STATE of New Hampshire

v.George QUINTERO.

No. 2009–832.

Supreme Court of New Hampshire.

Argued: Feb. 10, 2011.Opinion Issued: Oct. 12, 2011.

Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.

The defendant, George Quintero, appeals his convictions on one count of felonious sexual assault (FSA), RSA 632–A:3 (2007), and one count of aggravated felonious sexual assault (AFSA), RSA 632–A:2 (2007). He argues that the Superior Court ( Nadeau, J.) erred when it conditioned the giving of a so-called “ Williams instruction,” see State v. Williams, 137 N.H. 343, 629 A.2d 83 (1993) (requiring the State to prove the charged acts occurred in the time frame alleged in the indictments), on his agreeing to an amendment of the indictments to conform to the evidence presented at trial. After oral argument, we directed the parties to provide supplemental briefing on whether Williams should be overruled. We now affirm the defendant's convictions and also hold that the Williams instruction should no longer be given in cases tried after the date of this opinion.

I

The jury could have found the following facts. The victim, who was the defendant's niece, turned eight years old in April 2007. The convictions rest upon events that occurred when the victim spent the night at the home of the defendant and his then-fiancee. That evening, the defendant asked the victim to accompany him to the basement, where he instructed her to go into a particular room and lay on the floor. The two lay side by side, and the defendant kissed the victim. He exposed his “private part” and told her to “hold it.” She complied, then pulled her hand away and refused his instruction to touch him a second time. The defendant then rubbed the victim's “private part” with his hand. The victim told him to stop, and he complied. He told her not to say anything, and she went upstairs. The fiancee was located elsewhere in the residence when the assaults took place. The next day, the fiancee took the victim shopping for clothing. When they returned to the residence, she took a picture of the victim in her new clothing.

On March 23, 2008, the victim told her mother about the assaults and the mother called the defendant to confront him; he denied assaulting his niece. The mother also called the police. After an investigation, the defendant was charged with three counts of FSA and one count of AFSA. The indictments alleged that the assaults occurred “on or between” January 1, 2007 and April 30, 2007.

At trial, the State offered the testimony of three witnesses: a police officer, the victim's mother, and the victim. The victim remembered having a “sleepover” at the defendant's home on two occasions, and on a third occasion, just “visit[ing].” She described the assaults and testified that the event occurred during one overnight visit at the defendant's home. She could not recall how “long ago” the visit had occurred, but thought it happened when she was eight years old. During cross-examination, defense counsel showed the victim a photograph of herself in the defendant's kitchen. She confirmed that the picture had been taken some time during the overnight visit when the assaults occurred, and she thought she was “still eight.” The victim's mother recalled that the victim spent the night at the defendant's home on one occasion, “but it could have been twice.” She was not certain of the date of the sleepover, testifying: “I'm not that great with dates, but ... if I remember correctly, it was cold and ... it was after visiting my sister, her son's birthday. I want to say probably September. I'm not exactly sure [of] the date.”

At the close of the State's case, the defendant moved to dismiss all of the indictments, arguing that the evidence concerning the time frame for the charged acts was not consistent with the time frame set forth in the indictments. The photograph of the victim in her new clothes bore the date September 17, 2006, but it had not been admitted into evidence at that point in the trial. The trial court denied the defendant's motion “without prejudice to [raising it] again after other evidence is introduced.”

During the defense case, the defendant's former fiancée and the defendant testified. The fiancee recalled that the victim had stayed at the home she shared with the defendant on one occasion. While she could not remember “the month or day” of the overnight visit, she testified, “I knew it was before school because she had told me she wanted some school clothes and her and I went shopping.” She testified that the back of the photograph of the victim indicated that she had it developed on October 14, 2006, and the front indicated that she took the picture on September 17, 2006. The court then admitted the photograph into evidence as a full exhibit.

The fiancée also testified as to the events of the evening, including that she and the victim sorted through clothes, watched a movie, and did laundry in the basement. She said that when they were in the basement, the defendant was there as well painting in the side room, but when they watched a movie, the defendant was in another room using the computer. According to the fiancee, the victim woke up scared in the middle of the night and she had to calm her down. The fiancee said that the following day she took the victim clothes shopping and returned to the house where the victim modeled her new outfits. She testified that she, the victim, and the defendant went to a park before the victim returned to her home. The fiancée did not recall a time when the victim and the defendant were alone together during the visit.

The defendant testified that the victim had stayed overnight at his home on one occasion in September 2006. He recalled that during the evening, after they returned from purchasing dinner, the three were in the basement together, where his fiancée was doing laundry and he was painting in his “paint room.” According to the defendant, the three returned upstairs and his fiancee and niece watched a movie together, while he stayed in his bedroom playing a computer game. He testified that when he was painting in the basement he was never alone with the victim, and that he never sexually assaulted her.

At the close of the evidence, the defendant informed the trial court that he intended to request a jury instruction “pertain[ing] to lack of opportunity ... based primarily on State [v.] Williams.” The State sought a jury instruction that “time is not an element of the sexual assault,” and moved to amend the indictments “to have a time frame which begins from September 1, 2006 through April 30, 2007.” The next day, the defendant requested the trial court to instruct the jury that the State was required to prove the offenses occurred within the time frame alleged in the indictments. He argued that he was entitled to such an instruction under Williams because the State had alleged a specific time frame, and he had relied upon a substantial time-based defense. With respect to the State's request to amend the indictments, the defendant argued that the grand jury issued indictments with a specific time frame, and that amending them would circumvent the grand jury.

The State responded that the proposed amendments related to matters of form, not substance, because time is not an element of sexual assault. It also argued that the circumstances of Williams were inapposite, and that amending the indictments would not prejudice the defendant because he prepared his defense based upon having the photograph. Finally, the State argued that the defendant's conduct in first presenting the photograph to it and the court just two days earlier, which was the day before trial, constituted a discovery violation. Thus, the State argued that it would have “amended the indictment [s] to include that time frame well before trial” had the defendant provided the photograph sooner.

The trial court opined that Williams should not apply “when in the middle of trial the State suddenly finds out the date that [the] defense is going to rely on.” It further stated that it had agreed with the defendant's “ analysis until [it considered] the timing with which [the defense] turned over reciprocal discovery. And if the State had that, according to the rules, they would have amended the indictment pretrial and we wouldn't be having this argument.” Ultimately, the court ruled:

I am going to give the defendant's requested instruction that the State must prove that the incidents occurred during the time periods alleged in the indictments. However, I am going to allow the State to amend the indictments to include the time period from September 1, 2006 forward to April of 2007.

In response to a defense motion for reconsideration, the trial court ruled that amending the time frame in the indictments did not circumvent the grand jury because time is not an element of the offense, and that amending the time frame would not prejudice the defendant. The court gave the defendant two options: it would either: (1) amend the indictments and give a Williams instruction; or (2) decline to amend the indictments and not give a Williams instruction. The defendant chose the latter option, while objecting that he was being forced to surrender a right he would not otherwise cede. When instructing the jury, the trial court stated, “Time is not an element of these offenses.”

The defendant was convicted of one count of FSA and one count of AFSA. On appeal, he argues that he was entitled to a Williams instruction because he pursued a time-based defense that he lacked the opportunity to commit the offenses during the period alleged in the indictments. He further contends that the trial court's ruling, which conditioned the giving...