State v. Rallo, 23385

• Decision Date: 18 October 1989
• Docket Number: No. 23385,23385
• Parties: The STATE, Respondent, v. Joseph P. RALLO, Appellant. . Heard
• Court: South Carolina Supreme Court

Page 653

403 S.E.2d 653

304 S.C. 258

The STATE, Respondent, v. Joseph P. RALLO, Appellant.

No. 23385.

Supreme Court of South Carolina.

Heard Oct. 18, 1989.

Decided April 22, 1991.

Chief Atty. David I. Bruck and Deputy Chief Atty. Elizabeth C. Fullwood, South Carolina Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., Staff Atty. Miller W. Shealy, Jr., Sol. James C. Anders, Columbia, for respondent.

FINNEY, Justice:

Appellant Joseph P. Rallo was convicted of attempted criminal sexual conduct with a minor in the second degree and sentenced to ten years imprisonment. We reverse and remand for a new trial.

Appellant contends the trial court erred in charging the jury that it could find that the offense occurred on or about February 14. Appellant alleges the trial court's error abridged his right to a fair trial and was a comment on the facts, in violation of Article V, § 21, of the South Carolina Constitution.

The pertinent portion of appellant's original indictment states as follows:

... That Joe Rallo did in Richland County on or about January ... attempt to engage in sexual battery, to wit: by attempting to coerce the victim into performing fellatio upon and with the body of Shane [D.] ... without his consent. Such sexual battery was accomplished by aggravated coercion, the threat of force and violence of a high and aggravated nature ...

Prior to trial, the indictment was amended to allege that the offense occurred on or about February 14, 1988. After jury selection, the state moved to further amend the indictment by rewording some verbiage. At that time, the solicitor confirmed that he would seek to prove the offense occurred on February 14, not on or about February 14. The court granted the motion to amend, but the indictment was not physically altered to reflect striking of the words "on or about" preceding February 14. ¹

During the trial, the victim and another witness testified that the alleged incident occurred on Sunday, February 14, 1988. Appellant defended on the basis of alibi. Through the testimony of two clergymen and the junior warden of the Chapel of the Cross Episcopal Church, the appellant presented evidence that he had been engaged in church activities from 7:00 A.M. until 10:00 P.M. on February 14. (Emphasis added.)

The appellant objects to the following portion of the court's jury charge:

... The specific charge in this indictment is attempted criminal sexual conduct with a minor in the second degree. The state alleges that the defendant, Joseph P. Rallo, did in Richland County on or about February 14, 1988, commit this offense. The state is not required to prove that the offense occurred on the exact day of February 14, 1988, but the state is required to prove that the offense occurred on or about February 14, 1988. That is, a reasonable time insofar as February 14, 1988. A reasonable time relationship is the required parameter Appellant asserts the trial court erred in charging the jury that the state is not required to prove that the offense occurred on the exact day of February 14.

A defendant is entitled to be sufficiently apprised of the offense charged so that he can adequately prepare his defense. State v. Hardee, 279 S.C. 409, 413, 308 S.E.2d 521, 524 (1983).

While it is true that the State need not prove the exact date set forth in the indictment unless time is an essential element of the offense or is made a part of the description of it ... the State should not be allowed to prove a different date than that set forth in the indictment where the defendant relies upon the defense of alibi, unless the defendant is held to have had knowledge that the State would attempt to prove a different date upon trial.

State v. Pierce, 263 S.C. 23, 27, 207 S.E.2d 414, 416 (1974), citation omitted.

Although the indictment in this case was not physically modified, the record shows the state amended the indictment to specify a date certain, February 14, and presented its proof accordingly. Consequently, appellant presented alibi witnesses to prove his whereabouts on February 14. Notwithstanding the amendment and the fact that both the state and the appellant conformed their proof to the specific date of February 14, the trial court's instruction permitted the jury to find that the offense could have occurred on or about February 14.

This Court finds that the indictment was orally amended from on or about February 14 to February 14. The miscue of failing to physically alter the indictment is not dispositive. We hold that, under the circumstances of this case, the trial judge's charge constituted error and deprived the appellant of his right to a fair trial.

Appellant's remaining exceptions are disposed of pursuant to Supreme Court Rule 23.

For the foregoing reasons, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

GREGORY, C.J., and HARWELL and CHANDLER, JJ., concur.

TOAL, J., dissenting in separate opinion.

TOAL, Justice (dissenting):

I respectfully dissent. I find no flaw in the indictment and would also affirm as to all other issues in the case.

The incident complained of here involves the alleged attempted fellatio by the defendant upon a twelve year old boy, referred to hereinafter as John. ¹ John testified to the following story.

He and another boy, Alan, age 15, were at the defendant's house (the defendant lived near the boys) watching television. The defendant asked John to step into another room. The defendant then informed John that he was gay, and asked to perform fellatio on him. The defendant offered to give John a ring or a hundred dollars if the boy would acquiesce. The defendant paid John five dollars so that he could watch John grab his own crotch, then the defendant tried to grab John's crotch himself. John refused to allow it, and left with Alan, who witnessed the incident. John also stated that at some point, the defendant showed him a Penthouse magazine so that he would get an erection and the defendant could watch.

Alan testified to the following story. While he and John were at the defendant's house, the defendant asked them if they wanted a drink, and gave Alan a beer and John some Kool-Aid. Alan then testified:

A. ... [A]nd we were talking about golf, watching golf. And then he started telling [John] he wanted to give him this ring to let him play with him and stuff and have sex with him. Sex with him, and [John] wouldn't do it.

Q. What was he saying specifically to him?

A. He was saying he had this ring, he could give it to his girl friend for Valentine's Day. And [John] said he wasn't going to have sex with him and he was trying to reach for [John] under the table, grab [John] under the table. And then [John]--

....

Q. And what, if anything, did [John] do?

A. [John] backed up.

Q. Did he say anything to [John]? Specifically what did he say?

A. He says I'd like to see you get a hard on and he went out, he said he'd be right back, and he came out with a magazine--Penthouse or some kind of playboy magazine--and he put it in front of [John's] face and told him to read this and get a hard on. And [John] pushed it across the table.

After this, Alan claimed that he and John left.

Two other incidents of sexual misconduct by the defendant were also presented at trial. One of these incidents involved a sixteen year old boy, Fred.

Fred testified that he met the defendant at a pay phone at a convenience store. The defendant allegedly offered Fred a cigarette and asked him if he wanted to get drunk sometime. Fred responded "maybe". Fred claims that he next saw the defendant when he was walking near the defendant's home towards a friend's house. He met the defendant, went into the defendant's home, and began drinking beer and liquor. Fred then testified to the following:

Q. Did he make any sexual attempts at you?

A. Yes.

Q. Tell the Court about that.

A. He said--he asked me if he could touch me. Well, if you want his exact words he said, "if I touch you, will you swing out on me? And I said, yes.

....

Q. Did he actually try to touch you?

A. He had his hands by my genitals while he said it. And I said no.

Q. What did you do then?

A. I left.

Fred also testified to the following:

Q. What did you and Joe talk about that night?

A. Different things really. He said things like getting me in the porno movies.

Q. Into what?

A. Porno movies.

Q. What did he say?

A. He said he could get me in them if I wanted to be in them.

Q. What was your response?

A. You know. I thought it was a good idea at first really but then he got into deeper things.

Q. What kind of deeper things?

A. Like porno movies with other guys and recruiting kids from my neighborhood.

Q. What was said about that?

A. He said he liked kids that didn't have pubic hair. You know, young kids.

The second additional incident presented at trial involved Alan and his brother, Ted, a thirteen year old. Alan, his brother, and another 13 year old boy named Tom allegedly went to the defendant's home to do some odd jobs. Alan and Ted both testified that the defendant offered them alcoholic beverages, and that all three of the boys became intoxicated. Tom and Ted allegedly became physically ill. Alan testified that the defendant asked Tom to come back into the bedroom with him. A little later, Alan and Ted claim that they witnessed Tom performing fellatio on the defendant, while the defendant held the boy's head with his hands. Tom was said to have no pants on at the time. For his part, Tom remembers nothing about that night, except that he was drinking heavily.

The defendant presented several witnesses to support an alibi defense, as the incident was alleged to have been committed on or about February 14, 1988. The defendant's witnesses accounted for the defendant's whereabouts for most of the fourteenth.

LAW/ANALYSIS

The majority finds as a fact that, after jury selection, "the solicitor confirmed...