State v. Tapia, 20704
| Decision Date | 29 June 1995 |
| Docket Number | No. 20704,20704 |
| Citation | 899 P.2d 959,127 Idaho 249 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Benjamin TAPIA, Defendant-Appellant. Boise, January 1995 Term |
| Court | Idaho Supreme Court |
Alan G. Lance, Atty. Gen., Michael A. Henderson, argued, Deputy Atty. Gen., Boise, for respondent.
This is an appeal from a conviction of two counts of conspiracy to commit lewd conduct with a minor. The appellant raises four issues regarding decisions made by the district court during the course of the trial. We affirm.
The victim in this case was P.C., who was eleven or twelve years old at the time of the crimes. P.C. had been living with her mother in Nevada, when in January 1991, she began living with Hortencia Castillo (Castillo), her natural grandmother, in Glenns Ferry, Idaho. Appellant Benjamin Tapia (Tapia) has been Castillo's boyfriend since 1974.
P.C. testified that the first incident involving her and Tapia happened in August 1991 (she thought it was August because it was warm), on a day when she, her grandmother and sister had gone to a birthday party for a friend's son. Thereafter, Castillo drove her to Bliss. There they met Tapia at the back of the Royal Cafe. Castillo told P.C. that she "was supposed to sleep with Benjamin" and told her to "ask for the money." Tapia got into the back seat of Castillo's car, and the three of them drove off onto a dirt road by the interstate. Once there, P.C. was told to get in the back seat with Tapia and to take off her clothing. Tapia then took off his clothing and had intercourse with P.C. During this incident, P.C. claimed that Castillo was sitting in the front seat of the car, talking with Tapia at the same time he was having intercourse with her. After the sexual intercourse took place, the three drove back to the Royal Cafe, whereupon Tapia gave P.C. $40.00 and a 12-pack of Pepsi.
The second incident happened approximately one month later, again in Bliss, Idaho. This time, Castillo and P.C. drove to Bliss, met Tapia at the same cafe and they again drove to the same dirt road. Tapia took a blanket and he and P.C. got out of the car and went over a small hill, while Castillo stayed in the car. At this point, Tapia decided that it was too cold, and they went back to the car. Inside the car, Tapia instructed P.C. to take off her clothing. He took off his pants and had sexual intercourse with her. Castillo was seated in the front seat of the car while this was occurring. P.C. testified that the next day, Tapia took her and Castillo The third incident occurred in approximately March 1992. One night, when Tapia was at Castillo's house, P.C. went into her grandmother's bedroom with him. Castillo told P.C. to "do it for her." Tapia had sexual intercourse with P.C. in the bedroom.
[127 Idaho 251] to Boise to buy clothing and to treat them to dinner.
The fourth incident occurred in April 1992. At Castillo's direction, P.C. came into her grandmother's bedroom where she and Tapia were lying on the bed. Castillo got up and left the room, whereupon Tapia had sexual intercourse with P.C.
Following this incident, P.C. decided to talk about what had been happening. She told a nurse and a counselor at her school, and she was removed from Castillo's house in April 1992.
Tapia and Castillo were charged with four counts of conspiracy to commit lewd conduct pursuant to I.C. § 18-1508 and I.C. § 18-1701. Counts I and II charged conspiracies occurring in August and September, respectively, of 1991, referring to the sexual acts occurring in the desert near Bliss. Counts III and IV referred to the sexual acts that occurred at Castillo's house. Following a preliminary hearing, Tapia was bound over on Counts I, II and IV. For reasons not apparent from the record, the information subsequently filed by the state charged Tapia only with Counts I and II. Following Castillo's preliminary hearing, she was bound over on all counts. Tapia's and Castillo's cases were consolidated for trial, which took place in March 1993. They were brought to trial on only the first two counts. During the course of the trial, while the state was still putting on its case, the prosecution discovered that the birthday party attended by Castillo and P.C. had actually taken place in March 1991, not August. Accordingly, the state moved to amend both counts in the respective informations to allege that each conspiracy had occurred between the months of March and September 1991. The district court granted the motion over the objections of the defendants.
During the trial, the state discovered additional witnesses who had information concerning this case. At the time of trial, P.C. was living with a foster mother named Andrea Alaniz. On the third day of trial, Alaniz was having a conversation with her sister, Beatriz Meza, and her mother, Beatriz Guajardo. Alaniz stated that she doubted the veracity of P.C.'s accusations, and Meza responded by telling her about a conversation that she had had with Castillo about two years earlier, or around 1991, in which Castillo discussed Tapia's desire for a young woman, G.M. (Meza's cousin), and for the victim, P.C. Castillo apparently told Meza that Tapia was "interested in" and "after" P.C. when she was nine years old, and that he wanted Castillo to "give" P.C. to him, but Castillo said that she was too young. At the time of the conversation, Tapia was continuing to urge Castillo to bring P.C. to him, claiming that it would now be acceptable for him to "have" P.C. since she had reported being abused by her stepfather and was no longer a virgin.
The police became aware of the conversation that took place during the trial between P.C.'s foster mother and her sister and mother. The prosecuting attorney was informed about the new witnesses and their possible testimony, and defense counsel was told a few minutes later. Supplemental discovery was provided to defense counsel that same afternoon. The next morning, the court granted defense counsel's request for a continuance to interview the new witnesses. The court recessed at 10:25 a.m. and reconvened the following morning.
Meza and Guajardo were then called as witnesses for the state over the objections of defense counsel. Defense counsel also moved for a 30-day continuance which the court denied.
Meza testified about Castillo's statements concerning Tapia and P.C. and G.M. Her testimony regarding G.M., however, was confusing and gave the impression that G.M. was 17 or 18 years old when Tapia first expressed an interest in her. The court concluded that Tapia's interest in a young woman of 17 or 18 was not sufficiently similar to the charged acts of having intercourse with a girl of 11 or 12 to warrant the admission of Guajardo testified about the portion of the conversation that she had heard, recalling that Castillo said that Tapia was "after" P.C.
[127 Idaho 252] the testimony. Meza's testimony was therefore stricken from the record.
Castillo testified in her own defense, and admitted having a conversation with Meza in which she talked "about when Benjamin was going out with [G.M.]" She denied any discussion at the time about P.C. She also testified that she only discussed G.M.'s going out with Tapia when she was 21 or 22, and definitely over the age of 18.
Meza was recalled by the state as a rebuttal witness. This time she was able to relate what Castillo had told her about G.M. in a coherent fashion. She testified that Castillo told her during their conversation that Tapia had been interested in G.M. when she was 12 years old.
Tapia was convicted of two counts of conspiring to commit lewd conduct with a minor, and received a sentence of six to fifteen years. He filed this appeal.
1. Whether the district court abused its discretion by allowing the state, on the sixth day of trial, to amend the information, enlarging the time within which the alleged crime took place, from August and September 1991, to March through September 1991.
2. Whether the district court abused its discretion in allowing two new witnesses to present testimony regarding statements made to them in 1981 and 1985.
3. Whether the district court abused its discretion in failing to grant the continuance requested, in order to allow counsel additional time to prepare and gather evidence to rebut testimony of the new witnesses.
4. Whether the district court abused its discretion in allowing "subsequent bad acts" of Tapia to be presented to the jury, when the allegations of said "subsequent bad acts" were not connected in time or place to the allegations in the information filed with the court.
Tapia argues that the district court abused its discretion by allowing the state, on the sixth day of trial, to amend the information, enlarging the time within which the alleged crime took place, from August and September 1991, to March through September 1991. Tapia claims that such an amendment violated his substantial rights as he was not given sufficient time within which to prepare an adequate defense.
Pursuant to I.C.R. 7(e), a court may permit a complaint, information or indictment to be amended at any time before the prosecution rests if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. The decision to permit an amendment to the information lies within the sound discretion of the trial court. State v. LaMere, 103 Idaho 839, 841-42, 655 P.2d 46, 48-49 (1982).
The information originally stated that the conspiracies charged in Counts I and II took place in August and September 1991 respectively. During the presentation of its case at trial, the state moved to...
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