State v. Wilcox

• Decision Date: 25 January 1991
• Docket Number: No. 890224,890224
• Citation: 808 P.2d 1028
• Parties: STATE of Utah, Plaintiff and Appellant, v. Ray WILCOX, Defendant and Appellee.
• Court: Utah Supreme Court

Page 1028

808 P.2d 1028

STATE of Utah, Plaintiff and Appellant, v. Ray WILCOX, Defendant and Appellee.

No. 890224.

Supreme Court of Utah.

Jan. 25, 1991.

R. Paul Van Dam, Sandra L. Sjogren, Salt Lake City, for plaintiff and appellant.

Michael D. Esplin, Provo, for defendant and appellee.

ZIMMERMAN, Justice:

The State of Utah appeals from the dismissal of a criminal prosecution for sexual abuse of a child. The trial court granted a motion by defendant Ray Wilcox to dismiss the information on the ground that the State had violated his right to adequate notice under the Utah Constitution by not giving him a written specification of the date, time, and place of the offense charged. The court held that by alleging that the instances of abuse occurred over a thirty-two-month period, the information did not charge Wilcox with sufficient specificity to permit him to establish an adequate defense. On appeal, the State argues that the period of time covered by the allegations was not unreasonable under the circumstances. We agree, reverse the dismissal, and remand to the trial court for further proceedings.

The alleged victim was born in September of 1984. Shortly after her birth, her parents separated. From January of 1985 until September of 1987, the child lived approximately half the time with her paternal grandparents and the remainder of the time with her maternal grandparents.

In the fall of 1987, the paternal grandparents took the child to the Intermountain Sexual Abuse Treatment Center ("ISAT"), where the child was interviewed by a therapist. During these interviews, the child allegedly mentioned incidents of sexual abuse at the hands of the maternal grandfather, defendant Ray Wilcox.

The State claims further that in November and December of 1987, the child was examined by a doctor, who allegedly concluded that she showed "some physical evidence of the possibility" that she had experienced anal penetration with some kind of object. At the time of the examination, the doctor estimated that the physical scarring was at least eight to ten weeks old.

In February of 1988, the child was referred to a clinical psychologist at ISAT for therapy. On two occasions, the child allegedly discussed the instances of abuse. The therapist and the psychologist both testified at the preliminary hearing that the child was very reluctant to discuss the abuse and that she had named "Grandpa Wilcox" as the abuser. According to this testimony, in none of the interviews was the child able to affix a certain or even approximate date or time to the abusive activities, except that she allegedly did tell the psychologist that some of the abuse had occurred around Christmastime.

Wilcox was charged with one count of sodomy on a child and one count of sexual abuse of a child. See Utah Code Ann. §§ 76-5-403.1, -404.1 (1990). The information alleged that Wilcox had committed the offenses "on or between January, 1985, and September 4, 1987."

In October of 1988, Wilcox filed a demand that the State "specify in writing as particularly as known to the prosecuting attorney the place, date and time of the commission of the offense charged," pursuant to section 77-14-1 of the Utah Code. The State did not respond to this demand, and Wilcox sought to dismiss the information for failure to comply with the demand. The State responded to the motion to dismiss, arguing that it had provided Wilcox with the best information it had and that Dr. Palmer had indicated that a child as young as the alleged victim would have a difficult time relating to any time frame, even holidays.

The district court denied Wilcox's motion to dismiss, finding that "because of the age of the alleged victim and the corroborating supportive allegations proposed by the State of Utah that the State of Utah has provided Defendant, Ray Wilcox, with the best evidence it has under the difficult circumstances of this case." Wilcox filed a motion to reconsider. The court then entered an order reversing its position and granting Wilcox's motion to dismiss, not on the ground that the State had failed to provide the best information it had, but that the filed information denied him his right to adequate notice of the charges against him, as guaranteed by the Utah Constitution. In so doing, the court stated that the "time period between January of 1985 and September 4, 1987, approximately 32 months in length, [alleged in the information] is too broad a time period to allow a Defendant an opportunity to determine if he has an adequate defense such as an alibi." The State appeals. See Utah R.Crim.P. 26(3)(a).

We note at the outset that although findings of fact by the trial court "shall not be set aside unless clearly erroneous," Utah R.Civ.P. 52(a) (made applicable to criminal appeals by Utah R.Crim.P. 26(7)), we accord a trial court's conclusions of law no particular deference, reviewing them for correctness. Henretty v. Manti City Corp., 791 P.2d 506, 510 (Utah 1990); State ex rel. Division of Consumer Protection v. Rio Vista Oil, Ltd., 786 P.2d 1343, 1347 (Utah 1990). Here, the question of the adequacy of the notice given defendant is one of law.

In seeking reversal, the State argues that the failure to specify the time, date, and place of the offenses did not violate Wilcox's right to notice under the Utah Constitution because the time frame specified was reasonable under all the circumstances, considering the age of the child and the continual nature of the contact between the child and Wilcox. See, e.g., State v. Becker, 351 N.W.2d 923, 927 (Minn.1984); see also State v. Williams, 363 N.W.2d 911, 914 (Minn.Ct.App.1985); State v. Swallow, 350 N.W.2d 606, 608 (S.D.1984). In response, Wilcox argues that the allegation of incidents of abuse occurring over such a long time period prevents him from formulating defenses, particularly alibi defenses, to a degree that it denies him his constitutional right to notice.

We first consider the state constitutional provisions that grant a defendant a right to adequate notice of the charged offense. The right to adequate notice may be based on the general due process clause in article I, section 7 of the Utah Constitution. Utah Const. art. I, § 7. It may also be based on the more specific guarantee in article I, section 12, which states that "the accused shall have the right ... to demand the nature and cause of the accusation against him, [and] to have a copy thereof." Utah Const. art. I, § 12. With regard to the issues presented here, this court has held that the analysis under the due process clause is not different from that required by article I, section 12. State v. Fulton, 742 P.2d 1208, 1214 (Utah 1987), cert. denied, 484 U.S. 1044, 108 S.Ct. 777, 98 L.Ed.2d 864 (1988). Essentially, the constitutional question is whether "a criminal defendant [is] sufficiently apprised of the particulars of the charge to be able to 'adequately prepare his defense.' " Id. (quoting State v. Burnett, 712 P.2d 260, 262 (Utah 1985)).

In determining whether a defendant has been denied this right, we follow a rather elaborate analysis that focuses on Utah Rule of Criminal Procedure 4(e) and section 77-14-1 of the Code, the provisions that implement the constitutional guarantee. See Utah R.Crim.P. 4(e); Utah Code Ann. § 77-14-1 (1990). Only after we have found that a defendant has not waived the rights the statute and rule provide do we decide whether the notice given was adequate. See Fulton, 742 P.2d at 1215.

As Fulton explained, the notice to which a defendant is constitutionally entitled may come through one or all of three sources: the charging information, a response to a bill of particulars under rule 4(e) of the Utah Rules of Criminal Procedure, or a response, under section 77-14-1 of the Code, to a demand for the place, date, and time of the offense charged. See Fulton, 742 P.2d at 1214. Utah law provides that a defendant who so requests is entitled as a matter of right to both a bill of particulars and a specification of the date, place, and time of the charged crime. Id.; State v. Robbins, 709 P.2d 771, 773 (Utah 1985); see also State v. Solomon, 93 Utah 70, 75, 71 P.2d 104, 106 (1937). However, if a defendant fails to request a bill of particulars or make demand for the date, place, and time under section 77-14-1 and a response to either of these would have cured the claimed deficiency, then he or she will be deemed to have waived the constitutional right to adequate notice. Fulton, 742 P.2d at 1215.

If the defendant has not waived the right to more specific information and the State has responded with the best information it has, or if the defendant has not requested additional information but the information if requested would not have given further notice, then we proceed to determine whether the notice supplied to the defendant is constitutionally adequate. Id. The right to adequate notice in the Utah Constitution requires the prosecution to state the charge with sufficient specificity to protect the defendant from multiple prosecutions for the same crime and to give notice sufficient for the one charged to prepare a defense. Id. at 1214; State v. Strand, 720 P.2d 425, 427 (Utah 1986); State v. Bundy, 684 P.2d 58, 62 (Utah 1984); State v. Myers, 5 Utah 2d 365, 371, 302 P.2d 276, 279 (1956).

Because of the almost infinite variety of circumstances where the question may arise, there are few ironclad rules for determining the adequacy of notice beyond the requirement that the elements of the offense be alleged. See Utah R.Crim.P. 4(a). In the area of variance between the allegations and the proof at trial, we have some helpful precedent. See, e.g., State v. Marcum, 750 P.2d 599, 601-02 (Utah 1988); Strand, 720 P.2d at 428; State v. Burnett, 712 P.2d 260, 262 (Utah 1985); McNair v. Hayward, 666 P.2d 321, 326 (Utah 1983); Utah R.Crim.P. 30(a). But outside that area, a challenge to the constitutional adequacy of notice inevitably draws us...