Stewart v. State

• Decision Date: 26 August 1986
• Docket Number: No. 86-40,86-40
• Citation: 724 P.2d 439
• Parties: Tim STEWART, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 439

724 P.2d 439

Tim STEWART, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-40.

Supreme Court of Wyoming.

Aug. 26, 1986.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender; and Julie D. Naylor, Appellate Counsel, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., John Renneisen, Sr. Asst. Atty. Gen., Mike French, Student Intern, Cheyenne, for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Justice.

Appellant, Tim Stewart, age 26, was convicted of taking indecent liberties with a fifth-grade child, age 12, in violation of § 14-3-105, W.S.1977 (December 1978 Replacement). He was sentenced to imprisonment and appeals his conviction. Appellant urges a single issue on appeal:

"Whether or not the Information filed against Appellant was so vague and indefinite as to deny Appellant the opportunity to prepare his defense."

We will affirm.

Appellant and JF (the victim) lived next door to each other in a trailer court. Some time after March 1, 1985, appellant asked JF to come inside his trailer and have sex with him. JF testified that she and appellant could have had sex between ten and twenty times.

Appellant entered a plea of not guilty to the charge of taking indecent liberties with a minor in violation of § 14-3-105, W.S.1977, which states:

"Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or to encourage another child to commit with him any immoral or indecent act is guilty of a felony * * *."

Appellant asserted that JF's allegations were untrue and offered an alibi to prove his innocence. However, he admitted that JF came into his trailer once, but could not remember the date.

Appellant filed a motion for a bill of particulars asking the state to set out the specific dates of the alleged offenses. The trial court granted this motion. After receiving the bill of particulars appellant made a motion to dismiss, contending the bill of particulars was too general, vague and indefinite to allow him to adequately prepare his defense, and that Rule 9, Wyoming Rules of Criminal Procedure, had not been complied with. The trial court denied the motion, and appellant was tried before a jury and found guilty.

Appellant claims on appeal that the trial court erred in ruling that the information supplemented by the bill of particulars was sufficient, and that this ruling violated his sixth amendment right to prepare a defense. He quotes the Sixth Amendment of the United States Constitution which states in part:

"In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him. * * * "

Appellant also quotes the Wyoming Constitution, Art. 1, § 10:

"In all criminal prosecutions, the accused shall have the right * * * to demand the nature and cause of the accusation. * * * "

This court defined the purpose of an information in Crouse v. State, Wyo., 384 P.2d 321, 325 (1963):

"[A]s stated in 42 C.J.S. Indictments and Informations § 90a, pp. 959-960, '[T]he purpose of an information [is to] * * * protect the accused from being twice put in jeopardy for the same offense, enable accused to prepare for trial, and enable the court, on conviction, to pronounce sentence according to the right of the case.' * * * "

The question of sufficiency of an indictment was resolved in Hovee v. State, Wyo., 596 P.2d 1127 (1979). The requirements are that an indictment is sufficient if it contains, 1) the elements of the offense charged, 2) if it fairly informs a defendant of the charge against which he must defend, and 3) if it enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. These standards were also applied in Ostrowski v. State, Wyo., 665 P.2d 471 (1983); State v. Faltynowicz, Wyo., 660 P.2d 368 (1983); and Nimmo v. State, Wyo., 603 P.2d 386 (1979). In Faltynowicz we said:

" * * * The same standards, [of Hovee, supra] of course, would apply in judging the sufficiency of an information." Id., at 371.

The first requirement according to Hovee is that the information contain the elements of the offense. In the present case, the information, supplemented by a bill of particulars, stated appellant was accused of taking indecent liberties with a child in violation of § 14-3-105. The documents stated that appellant knowingly had sex with the victim, and that he knew she was a child. Also, since the statute only requires there be a knowing act with a minor to constitute a violation, the elements of the offense were sufficiently set out. Appellant claims, however, that the second and third requirements of Hovee were not met, that is, the information was insufficient to fairly inform him of the charge against which he must defend and enable him to plead acquittal or conviction in bar of future prosecutions for the same offense.

The bill of particulars alleged sexual acts on five or more occasions between March 1 1985, and April 9, 1985, and that one of the alleged acts occurred in appellant's bathtub. More specifically, it stated that "on or about April 9, 1985, the defendant had sexual relations with JF." Appellant argues that because his defense was alibi he was entitled to be advised of the exact date the alleged offense occurred. At trial there was only fleeting testimony regarding sexual acts at a time other than "on or about April 9th." The state's evidence focused on a sexual encounter during the Easter vacation. Easter was April 7, and the victim associated the time of the sexual act with being out of school during the Easter recess. She further testified that an act took place in the bathtub in appellant's trailer.

We have said that where the specific date is not a requirement of the crime, alleging a general time period in lieu of a specific date is sufficient to give a defendant notice and allow him to adequately prepare a defense.

" * * * [W]here the charge follows the statutory language and such language contains all that is essential to constitute the crime, the indictment is sufficient. * * * " Boyd v. State, Wyo., 528 P.2d 287, 289 (1974), cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975).

A specific date is not essential to the commission of indecent liberties under § 14-3-105; therefore, the information supplemented by the bill of particulars was sufficient, and complied with the requirements of Hovee v. State, supra.

Also, Rule 9(a), W.R.Cr.P. states:

' * * * The indictment or information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged * * *. * * * Error in the citation or its omission or any other defect or imperfection which does not tend to prejudice any substantial right of the defendant upon the merits or to mislead the defendant to his prejudice shall not be grounds for dismissal of the indictment or information or for reversal of a conviction. * * * "

Appellant had no problem presenting his alibi defense, and presented testimony from three witnesses and himself covering the Easter vacation period. He has never claimed that he was in any way inhibited from presenting evidence for this time period. Apparently, he was ready to present this evidence at the conclusion of the state's case in chief, and did not ask for a continuance to try to find additional alibi evidence.

" * * * We have stated repeatedly that in the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child's uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence. State v. Effler, 309 N.C. 742, 309 S.E.2d 203 (1983); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962). See: State v. Sills, 311 N.C. 370, 317 S.E.2d 379 (1984). Nonsuit may not be allowed on the ground that the State's evidence fails to fix any definite time for the offense where there is sufficient evidence that defendant committed each essential act of the offense. * * * " State v. Wood, 311 N.C. 739, 319 S.E.2d 247 (1984).

The Nevada Supreme Court, quoting the Idaho Supreme Court said:

" 'It would be a very weak rule of law that would permit a man to ravish a fifteen year old girl and then say in effect: "You cannot convict me of this crime, as you did not guess the right date." See State v. Rogers, 48 Idaho 567, 283 P. 44, 45 (1929).' " Cunningham v. State, 100 Nev. 396, 683 P.2d 500, cert. denied sub nom. Cunningham v. Nevada, 469 U.S. 935, 105 S.Ct. 336, 83 L.Ed.2d 272 (1984).

The lack of a specific date neither prejudices a defendant nor hinders his ability to present a defense of alibi. In State v. Koch, 64 Wyo. 175, 189 P.2d 162 (1948), where the defendant asserted an alibi defense for the crime of having carnal knowledge of a child, age 10, we said " * * * Ordinarily a charge that the crime was committed at or about the time alleged in the information or within a given period before the filing of the indictment or information is sufficient. * * * " See also State v. Slane, 48 Wyo. 1, 41 P.2d 269 (1935).

Our decision in State v. Koch, supra, was reaffirmed in a later case where the defendant was accused of having carnal knowledge of a minor and asserted a defense of alibi. There, we said:

" * * * [A]lthough she specified no date, our holding in State v. Koch, 64 Wyo. 175, 189 P.2d 162, 166, makes it clear that the time of the occurrence as testified by the witness is not subject to challenge." Rhodes v. State, Wyo., 462 P.2d 722, 724 (1969).

In Esquibel v. State, Wyo., 399 P.2d 395 (1965), the prosecution produced evidence that an act of sexual intercourse took place on the evening of February 14, 1963. The victim testified that she did not go out...