*2 RUIZ, Before STEADMAN and Associate MACK, Judges, Judge. Senior STEADMAN, specifically ber stated five Judge: Associate testimony that she had been points in her charged by Appellant was indictment occasion. by appellant on one assaulted to the sexual of counts related number Nevertheless, “a the trial found that court After the counts of three children. abuse [J.R.’s] could listen to the bottom line dis- relating two of the children were *3 testimony despite that the incon- and think missed, re- was convicted on three appellant clearly sistency, describing two dis- she was child, maining enticing a minor counts: J.R. an incident tinct incidents.” described 22-3501(b) (1989), inde- taking § D.C.Code to her go in told her into appellant, which child, a minor D.C.Code cent liberties with bedroom, anal and then committed mother’s 22-3501(a) (1989), sodomy § a mi- and with lay sodomy on on sex oral her while she and (1989),1 nor, relat- § 22-3502 each D.C.Code also J.R. the floor of her mother’s bedroom. J.R., remaining The indict- to the child. ing appellant in com- described an incident which committing charged appellant with ment lay on her she on the mitted anal sex while against J.R. on or “[b]etween these offenses The trial court bed in her own bedroom.4 30, April April 1994 and on or about about jury appellant the that was instructed 1994.” charged against with offenses J.R. with challenges his convictions on the Appellant regard to that J.R. described the incident re- ground evidence government’s that the room,5 her having occurred in mother’s garding time of the offenses so varied the that, jury if the found that the evidence in indict- period specified from the time the incidents, any such evi- any other showed it to a constructive ment that amounted only “for the dence was to be considered of, impermissible at least an amendment or deciding it show whether would purpose from, variance the indictment.2 We hold that by preference some sort of unusual sexual constructively the indictment was amend- complainant.” the the defendant towards ed, and, although a oc- variance curred, Accordingly, prejudice resulted. no of regard timing to the With we affirm.3 fenses, sexually appellant J.R. testified that Christmas, her after “on school assaulted
I.
days,”
A police
before summertime.
officer
appellant
in
her
testified that
apartment
J.R. lived
mother
involved
boy-
the
lived
appellant,
apartment
was her
out of
where J.R.
who
mother’s
moved
friend,
J.R.,
15, 1994,
all
times.
on
and that J.R. had stated
at
relevant
who was
June
sexually
be-
years
Septem-
appellant
nine
old at the time of
in
first
abused her
trial
that
statutory provisions
appellant
A.2d
1124-25
1. The
under which
rera v. United
23, 1995,
(D.C.1991).
repealed
May
was convicted were
committed,
after the offenses at issue were
appellant
after
385,
convicted.
10-
was
See D.C. Law
second-guess
trial
4.
see
the
We
no reason
501(b),
(1995).
D.C.Reg.
§
For
finding
jury
interpret-
that the
could have
court’s
force,
currently
corresponding provisions
in
describing
testimony as
two incidents.
ed this
(1996).
§§
see D.C.Code
-4112
testimony
judge
heard the
and observed
Moreover,
described
witness.
after J.R.
Appellant
argument
to the trial
2.
made
court
room,
prosecutor asked
in her own
incident
her,
(cid:127)
judgment
acquittal
in a
motion for
you just told
this a
"Was
different time than
motion
set aside the verdict. The trial court
addition,
In
about?” and J.R. answered "Yes.”
us
during
ruling on the issue
trial.
deferred its
Af-
that
police
involved in the case testified
officer
trial,
ter
the court denied the motion
set aside
sexually
appellant had
abused
told him that
J.R.
verdict,
that,
finding
to the extent that a
“a lot of times” and in both bedrooms.
her
occurred, appellant
preju-
variance
had
been
diced
it.
argument,
prosecutor
closing
advised
government
proceeding on
jury
challenges
sufficiency
was
Appellant
also
him,
room
against
asserting
theory that the anal sex in the mother’s
presented
evidence
taking
liber-
testimony
offense of
indecent
complainant’s
unreliable and
constituted the
child,
sodomy in
vague. Although
minor
while
oral
impermissibly
not over-
with a
ties
sod-
say
offense of
proof,
room constituted the
we cannot
that the
the mother’s
whelmed
crediting
omy
unreasonably
it.
with a minor.
jury
in
See Bar-
acted
factually
present-
do so
from that
fore Christmas 1993 and continued to
different offense
visit,
grand jury.
type,
was at
ed to the
In the other
until the time of a cousin’s
which
addition,
analysis has
May
the end of
1994. In
a doctor
constructive amendment
been
allegation
applied
to an
that the
convict-
who examined J.R. in June 1994testified
legal-
ed the
of a different offense
mother
to her
J.R.
defendant
J.R.’s
had indicated
ly
presented
alleged
understood from
in December
sexual assault
(citations omitted).
grand jury.” Id.
In the
again April
1993 and
1994.6 The indict-
case where different facts are
to have
ment
offenses occurred
jury,
been
the test for
about
on
April
“[b]etween
1994 and
constructive amendment
is whether “‘the
government’s
or about
1994.” The
relying
a complex
trial on
general
only that
established
distinctly
of facts
from that
which
*4
five-
during
offenses occurred sometime
indictment,’
grand jury
set forth in the
period
month
between late December 1993
single
‘a
of
rather than
set
facts’ common to
1994,
May
given
and late
testi-
although
(quoting
at 786
v.
both.” Id.
Jackson United
officer,
mony
police
of the doctor
and the
States,
279,
276,
U.S.App.D.C.
123
herself,
well as the child
the incident could
260,
(1966)).
263
case
where
differ-
have occurred in the
of
time frame
the indict-
understood,
offense, legally
ent
ment.
grand jury,
have been
for
test
constructive amendment is whether
II.
defining
“the structure of
statute
legal consequences
legisla-
crime and the
A.
ture has attached to different acts” indicate
A
charges
deviation
in
between
charged
the “crime
in the indictment
proof
the indictment and the
at
can
legally significant way
differs in a
from the
from,
constitute a variance
anor
amendment
crime of conviction.” Id.
(literal
constructive) of,
or
the indictment.
appellant
Here
not
does
contend that he
(Terrence)
States,
Ingram v.
592 A.2d
United
of
legally
was convicted
a different offense
(D.C.1991).
recently
We
ad
understood, but that he was convicted of a
dressed the doctrines of constructive amend
factually
present-
different offense from that
companion
ment and
variance
cases
Thus,
jury.
to the grand
ed
we must deter-
(D.C.
States,
v.
Wooley United
in the establishes a reasonable notice, theory requisite on the prived of that the offenses wére committéd on doubt might present he an been able reasonably alleged. a date near the dates defense for some dates if the indictment alibi period. a Howev had broader time this This instruction also reflected court’s er, phrase use of the “on or the indictment’s relatively imprecise of use of affirmation period reference to the time about” with descriptions recognition inability of placed on notice that the exact time appellant times, identify minors to exact or even (Terrence) Ingram, period not critical. States, v. See Pounds United 529 places. (construing “on at 1007 or supra, 592 A.2d (D.C.1987); v. A.2d 793 n. Jackson reasonably “a close to to mean about” (D.C. States, United 503 A.2d 1226-27 alleged”). States v. the one See also United 1986). appellant’s do not understand We (5th Cir.1983) Cochran, 697 F.2d evidentiary insufficiency argument of to take (variance days prejudicial and thus of 50 not requirements issue with satisfaction error; “the concerns raised not reversible particular given instruction as this [i.e., protection notice from a variance supra. Accordingly, note 3 be jury. See inquiry rea into inform reprosecution] rely did not on a dis cause the allegation on about sonable limits of the or tinctly complex offense”). of facts at trial from is an element of the when time indictment, we thus those set forth Moreover, a government filed written no constructive amendment oc announcing conclude that its intention pretrial notice “other crimes” evidence9—includ- introduce curred. thereof, Cb) (1989), any such child part § member or or 8. Under former D.C.Code 22—3501 taking, enticement consisted of see note with said intent....” alluring, any enticing, persuading a child “to taking purpose for the either of place whatever States, U.S.App.D.C. v. United 9. See Drew immoral, improper, or ... indecent liberties with (1964). child, committing or of ... with said intent such lewd, body, upon act or with the or lascivious [a] ing against evidence of acts J.R. several Clause of the Fifth Amendment the Unit during years times appellant guarantees the three ed States Constitution to a defen right only the apartment thereby placing ap- upon lived in dant the to be tried criminal — pellant grand a charges on notice that his with J.R. returned in conduct indictment. recently period might princi over a broad Just this court at issue trial. reaffirmed the notice, ple In spite appellant presented upon proof of this obtained convictions defense;10 general denial neither essential facts not scrutinized trial, jury may an prof- alibi defense at nor constitute a constructive amend indictment, any possible requires fered ment alibi to the which trial court. rever Furthermore, States, hearing Wooley sal. v. testimony, after J.R.’s A.2d 777 (D.C.1997) appellant request (reversing did posses continuance.11 conviction appeal, Even on sion intent appellant allege does not to distribute a controlled substance, actually any cocaine, that he part alibi for where the indictment period, during possession the relevant charged which he was with intent distribute heroin). Therefore, continuously living with J.R.12 Robinson United Cf (D.C.1997) while potential (reversing the variance here had the A.2d 787 conviction prejudice by cause depriving appellant where the indictment distribution of requisite impermissibly notice thus heroin ham- at trial evidence established cocaine). defense, pering his possibility we see no the substance was fact any prejudice actually such occurred. We Wooley/Robinson opinions division agree with the court that there was no together, carry weight read of “near” en “infringe ability [ment] [defen- Thus, banc decisions court. two charges.”13 dant to defend the judges, voicing opinion that a variance
Accordingly, judgment (of of conviction grand jury’s charge between heroin appealed from (of possession) and the *6 at trial evidence co- possession) caine prejudiced had not Mr.
Affirmed. Robinson, agreed nevertheless to reversal because a member third of the Robinson MACK, Judge, dissenting: Senior agreed judges division with the the Wooley in division that reversal was required (upon I. readily distinguishable”). facts “not “Slippery Slope” hardly is acceptable an phrase for use traditionally in the The prohibition against formal “constructive However, parlance of legal writing. indictment, it ingrained is a amendment” of an in (and phrase 7(c) adequately conveys that most ap the the Fifth Amendment in Rule (or feel) prehension Procedure) a feels Superior citizen should Court Rules Criminal legal rule; when pronouncement faced with a that is not it a a hollow is not rule “or- may represent, slightly, by if even an erosion “impregnable of dained” citadels techni- protections. Robinson, Jury cality.” constitutional Grand supra, See 697 A.2d at defense, Appellant 10. possible that despite testified he had not committed alibi time variance of and, any any acts at time more approximately year, one was "fortified specifically, any specified at of the several time request fact that ance”). did not a [defendant] continu- periods. appeal On appel- there is no that claim any lant's defense would have been different or comprehensive more he known the assert- Indeed, closing, appellant's argued in counsel ed variance. "(t]he only possible way you that sure, positively [appellant] could be sure didn’t Reed, 11. See United States v. 887 F.2d [appellant] do this is if wasn’t there. And we (11th Cir.1989) (finding prejudice & n. 9 no in you [appellant] can't tell that because was in the noting time variance of one month and house and was there.” defendant did not for move a continuance when government he learned that intended to argue prove ment); Appellant does not that the different from variance that in indict- Somers, prejudiced might sense v. him in the that he be United States (3d Cir.1974) subject (noting prosecution 746 & 42 n. a future for the conclusion same offenses, adequate prepare danger. any that defendant had time to and we no discern such sup- as to distinguished so (Schwelb, soning cannot be quoting J. 11 CHARLES Alan Mary Kay Mea- in the instant case. port affirmance R. Miller Wright, Aethur & divergence might attempt by this one sured kane, Practice and Procedure Federal facts; (1995)). logic, Judge distinguish Ruiz measured As § at reversal, engage in such a required Rob- concurring see are not ably in in we noted inson, must reverse. convoluted exercise. We supra 793-94: (i.e., absence
Under that view II. not be set guilty verdict should prejudice by the “single misstep” of a aside because (as facially the instant case apparent It is in “an inadvertent error prosecution and demonstrates) between the variance indictment”) grand jury but a the commission proof at trial of date of technicality. That kind of reason- quaint its as and the date of commission the crime facially appealing “common ing, though may jury, be so unrea- alleged by hindsight benefit of with the sense” 20/20 a constructive as to amount sonable petit through lenses of provided not con- Such variance does amendment. verdict, simply point misses the jury’s en- vey information that would the definite protection by the Fifth Amend- offered adequate an prepare able a defendant Jury Grand Clause. ment’s Obviously, hindsight, cannot in we defense. (as Ferren, majority vein, instant Judge Wooley, conclude does same case) Mr. did not assert an citing Berger that because Pace A.2d at wrote trial, preju- 78, 82, he has not been alibi defense at U.S. S.Ct. be, here, (1935): diced; may that “I 630-31, a defense well L.Ed. 1314 (or not) may I be did do this and allegations and general “The rule that provable defense.”1 able to assert a alibi correspond upon is based must (1) requirements” that the accused obvious Moreover, as to an unreasonable variance “definitely must be informed” of a reduces the the time crime’s commission adequately he or can charges so that she grand jury “quaint technicali- role to a (2) defense, prepare a the crime must ty;” against the protect does not Mr. Pace it precision with sufficient defined “prosecution for the same risk of another assuredly the accused will not risk “anoth- offense,” majority which the here issue er same offense.” being (together with argued as not dismisses *7 danger”). summary “we discern no such Judge a third Ferren voiced concern for all, important of an unreasonable vari- Most grand jury provides protec which the clause the here has as to time of commission ance tion, i.e., judge might or prosecutor that a alternative Mr. Pace the protected not from grand by altering supplant the the charge fit so as to obtain proof of the to the charge thereby proof, to fit the and would not even facts found or a conviction on not the of seek conviction “on basis facts not grand jury. to presented the to, by, perhaps found and not even jury.” Citing the Russell v. United III.
States, 770, 1038, 749, S.Ct. 369 U.S. 82 1050- (1962); 51, Scutchings 8 240 accord L.Ed.2d 7(c) Rules of Superior Court Rule (D.C. States, v. 509 A.2d United generally provides what Criminal Procedure 1986). There, is it must include. an indictment be a indictment ... shall expressions specified, as “The Despite divergence the of to written statement and definite plain, have been the concise what the outcome should cases, constituting the offense facts Wooley/Robinson logic of the rea- of the essential the court, within the place "particularly government of incidents took the brief the states he position of Pace as follows: frame in the indictment" Mr. time period, greater time not notice [Ajppellant claims that the evidence at now place present an not of that took between he therefore could trial was incidents and that and June that there was December 1993 adequate defense. presented by party either that the no evidence charged.” only The time of the commission of the such circumstances it establishes “if litany offense is an The essential fact. ivas committed on date offense alleged.” reasonably an indictment inform the defendant of close to the one In- must States, gram precise alleged “the A.2d at nature” offense accepted 1002. We have never a variance of applying cannot be to the essen- read as J.R.G., time several months between indictment tial elements of See a crime. In re (D.C.1973). Indeed, allegation proof being and at trial as 305 A.2d we critical.2 recognized have an amendment an “deprives indictment the defendant of the IV. right upon constitutional to be tried charge subjected grand jury’s that, to scruti- Today my colleagues find even if ny,” requires Ingram and reversal. v. Unit- was a there constructive amendment amount- States, (D.C.1991). ed 592 A.2d ing proof to factual difference between and Although slight indictment, variances between the words prevail Mr. Pace cannot because an that, indictment at trial are he prejudice. suggest has shown no I permitted, “prejudicial (amounting again, prejudice variance” facially the element of is convicted; apparent. to constructive amendment Pace was Mr. unreliable, charges grand jury) imper- as rendered is not convicted on a record of States, permitted. missibly vague conflicting testimony Kotteakos v. United 750, 757, 1239, 1243-44, my U.S. colleagues 66 S.Ct. 90 which even less find than “ov- (1946). Thus, L.Ed. 1557 we have held erwhelming).” constructive amendment indictment transcript in this case reflects the occurs where the facts asserted trial “ma- accused, dilemma faced an terially differ from facts contained victim, members, court, family and the trial indictment,” where the even essential ele- proceeds when the with- trial (Oliver) ments of the offense are the same. adequate preparation. out Mr. Pace was Johnson v. United 613 A.2d initially charged with nine counts of sexual (D.C.1992). Liberties, (Enticing, abuse Indecent and Sod-
Specifically,
involving divergence
omy) involving
in eases
paramour’s
three
his
chil-
dren,
10, 8,
between an indictment’s
of offense
ages
government
date
then
and 5. The
(in
proof,
generally
we
noted
thereafter
moved
dismiss the counts
day)
ten-year-old
where there was a variance of one
was scheduled on
charges
remaining
where an indictment
“on
about”
pretrial
six counts. At the
certain date “a defendant is on notice that
stage,
a voir dire
the trial court found the five-
particular
year-old
testify
date
boy incompetent
critical” but that the
at trial.4
evidence will
conform the indictment in
It followed thereafter
that Mr. Pace was
jurisdictions stating
judg-
2. There are cases from other
3. The trial court faced with a motion for
that, "proof
any
ruling
before
return
acquittal
ment of
deferred its
on the issue.
*8
indictment and within the statute of limitations
trial,
is
After
it denied a motion to set
the
aside
Morris,
sufficient." United States v.
427,
verdict.
(1st Cir.)(quoting
C.
429
1
Wright,
Federal
125,
Criminal §
at 383
Practice
and Procedure:
competency,
voir dire to
On
determine
the five-
(1982)),
denied,
947,
cert.
461 U.S.
103 S.Ct.
year-old boy correctly
judge's
the
identified
trial
2128,
(1983);
L.Ed.2d 1306
see
77
United States
red,
as
"no”
it
hair
answered
when asked if was
Auerbach,
407,
(7th Cir.1990);
F.2d
412
green,
promptly
but
thereafter indicated that on
Cir.1984),
Harrell,
(11th
United States v.
through another would
reverse). CARLE, Appellant,
Jonathan J. STATES, Appellee.
UNITED 95-CF-838,
Nos. 96-CO-1094.
District Columbia Court of Appeals.
Argued Nov.
Decided Jan. Pérsico, DC,
Deborah Washington. A. appellant. Adelman-Pierson,
Rachel Assistant United *10 Holder, Attorney, States whom H. Eric