Lead Opinion
The defendant, George Quintero, appeals his convictions on one count of felonious sexual assault (FSA), RSA 632-A:3 (2007), and one count of aggravated felonious sexual assault (AFSA), RSA 632-A:2 (2007). He argues that the Superior Court (Nadeau, J.) erred when it conditioned the giving of a so-called “Williams instruction,” see State v. Williams,
I
The jury could have found the following facts. The victim, who was the defendant’s niece, turned eight years old in April 2007. The convictions rest upon events that occurred when the victim spent the night at the home of the defendant and his then-fiancée. That evening, the defendant asked the victim to accompany him to the basement, where he instructed her to go into a particular room and lay on the floor. The two lay side by side, and the defendant kissed the victim. He exposed his “private part” and told her to “hold it.” She complied, then pulled her hand away and refused his instruction to touch him a second time. The defendant then rubbed the victim’s “private part” with his hand. The victim told him to stop, and he complied. He told her not to say anything, and she went upstairs. The fiancée was located elsewhere in the residence when the assaults took place. The next day, the fiancée took the victim shopping for clothing. When they returned to the residence, she took a picture of the victim in her new clothing.
On March 23,2008, the victim told her mother about the assaults and the mother called the defendant to confront him; he denied assaulting his niece. The mother also called the police. After an investigation, the defendant was charged with three counts of FSA and one count of AFSA. The indictments alleged that the assaults occurred “on or between” January 1, 2007 and April 30, 2007.
At trial, the State offered the testimony of three witnesses: a police officer, the victim’s mother, and the victim. The victim remembered having a “sleepover” at the defendant’s home on two occasions, and on a third occasion, just “visit[ing].” She described the assaults and testified that the event occurred during one overnight visit at the defendant’s home. She could not recall how “long ago” the visit had occurred, but thought it happened when she was eight years old. During cross-examination, defense counsel showed the victim a photograph of herself in the defendant’s kitchen. She confirmed that the picture had been taken some time during the overnight visit when the assaults occurred, and she thought she was “still eight.” The victim’s mother recalled that the victim spent the night at the defendant’s home on one occasion, “but it could have been twice.” She was not certain of the date of the sleepover, testifying: “I’m not that great with dates, but... if I remember correctly, it was cold and ... it was after visiting my sister, her son’s birthday. I want to say probably September. I’m not exactly sure [of] the date.”
At the close of the State’s case, the defendant moved to dismiss all of the indictments, arguing that the evidence concerning the time frame for the charged acts was not consistent with the time frame set forth in the indictments. The photograph of the victim in her new clothes bore the date September 17,2006, but it had not been admitted into evidence at that point in the trial. The trial court denied the defendant’s motion “without prejudice to [raising it] again after other evidence is introduced.”
During the defense case, the defendant’s former fiancée and the defendant testified. The fiancée recalled that the victim had stayed at the home she shared with the defendant on one occasion. While she could not remember “the month or day” of the overnight visit, she testified, “I knew it was before school because she had told me she wanted some school clothes and her and I went shopping.” She testified that
The fiancée also testified as to the events of the evening, including that she and the victim sorted through clothes, watched a movie, and did laundry in the basement. She said that when they were in the basement, the defendant was there as well painting in the side room, but when they watched a movie, the defendant was in another room using the computer. According to the fiancée, the victim woke up scared in the middle of the night and she had to calm her down. The fiancée said that the following day she took the victim clothes shopping and returned to the house where the victim modeled her new outfits. She testified that she, the victim, and the defendant went to a park before the victim returned to her home. The fiancée did not recall a time when the victim and the defendant were alone together during the visit.
The defendant testified that the victim had stayed overnight at his home on one occasion in September 2006. He recalled that during the evening, after they returned from purchasing dinner, the three were in the basement together, where his fiancée was doing laundry and he was painting in his “paint room.” According to the defendant, the three returned upstairs and his fiancée and niece watched a movie together, while he stayed in his bedroom playing a computer game. He testified that when he was painting in the basement he was never alone with the victim, and that he never sexually assaulted her.
At the close of the evidence, the defendant informed the trial court that he intended to request a jury instruction “pertain[ing] to lack of opportunity . . . based primarily on State [v.] Williams.” The State sought a jury instruction that “time is not an element of the sexual assault,” and moved to amend the indictments “to have a time frame which begins from September 1, 2006 through April 30, 2007.” The next day, the defendant requested the trial court to instruct the jury that the State was required to prove the offenses occurred within the time frame alleged in the indictments. He argued that he was entitled to such an instruction under Williams because the State had alleged a specific time frame, and he had relied upon a substantial time-based defense. With respect to the State’s request to amend the indictments, the defendant argued that the grand jury issued indictments with a specific time frame, and that amending them would circumvent the grand jury.
The State responded that the proposed amendments related to matters of form, not substance, because time is not an element of sexual assault. It also argued that the circumstances of Williams were inapposite, and that amending the indictments would not prejudice the defendant because he prepared his defense based upon having the photograph. Finally, the State argued that the defendant’s conduct in first presenting the photograph to it and the court just two days earlier, which was the day before trial, constituted a discovery violation. Thus, the State argued that it would have “amended the indictment[s] to include that time frame well before trial” had the defendant provided the photograph sooner.
The trial court opined that Williams should not apply “when in the middle of trial the State suddenly finds out the date that [the] defense is going to rely on.” It further stated that it had agreed with the defendant’s “analysis until [it considered] the timing with which [the defense] turned over reciprocal discovery. And if the
I am going to give the defendant’s requested instruction that the State must prove that the incidents occurred during the time periods alleged in the indictments. However, I am going to allow the State to amend the indictments to include the time period from September 1, 2006 forward to April of 2007.
In response to a defense motion for reconsideration, the trial court ruled that amending the time frame in the indictments did not circumvent the grand jury because time is not an element of the offense, and that amending the time frame would not prejudice the defendant. The court gave the defendant two options: it would either: (1) amend the indictments and give a Williams instruction; or (2) decline to amend the indictments and not give a Williams instruction. The defendant chose the latter option, while objecting that he was being forced to surrender a right he would not otherwise cede. When instructing the jury, the trial court stated, “Time is not an element of these offenses.”
The defendant was convicted of one count of FSA and one count of AFSA. On appeal, he argues that he was entitled to a Williams instruction because he pursued a time-based defense that he lacked the opportunity to commit the offenses during the period alleged in the indictments. He further contends that the trial court’s ruling, which conditioned the giving of a Williams instruction upon amending the indictments to expand the charged time frame, violated his rights to due process and to an indictment by a grand jury under Part I, Article 15 of the New Hampshire Constitution.
II
We begin by addressing whether the rule in Williams should be overruled. “The doctrine of stare decisis demands respect in a society governed by the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will with arbitrary and unpredictable results.” Jacobs v. Director, N.H. Div. of Motor Vehicles,
(1) whether the rule has proven to be intolerable simply by defying practical workability; (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling; (3) whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently,' as to have robbed the ' old rule of significant application or justification.
Jacobs,
First, the Williams rule has proven to be intolerable simply by defying practical workability. In Williams, we addressed two competing concerns: the difficulty
Williams did not attempt to define precisely what constitutes a “time based defense.” The opinion pointed out that the original indictments charged that the defendant committed the offense during a six-month period. Id. at 345. However, when the defendant moved to dismiss the indictments based upon the deposition testimony of the victim’s parents, the State was permitted to amend the indictments to allege that the offense occurred during a two-year period, January 1988 to December 1989. Id.
At trial, the State’s evidence was that the defendant had sexual contact once with the victim while the defendant was babysitting the victim, and that the defendant babysat the victim twice: once when the victim’s parents went Christmas shopping in December 1988 or 1989, and once when the parents went out to celebrate his mother’s birthday in February 1988 or 1989. Id. The defendant’s cross-examination of the victim’s mother caused her to equivocate on whether the Christmas shopping occurred in December 1987, 1988, or 1989. Id. at 347. Three other witnesses said the Christmas shopping trip occurred in 1987. Id. The defendant testified that he was alone with the victim in June 1987, “but that he had not had the opportunity to commit the crime as alleged because he had not been alone with the victim at any time since December 1987.” Id. Other than this blanket denial by the defendant, no other evidence was introduced to refute the February 1988 or 1989 date. Thus, the time-based defense in Williams consisted of impeachment evidence on cross-examination of the victim’s mother, testimony by witnesses undercutting one of the dates alleged, and the defendant’s general denial of access to the victim. Id. On these facts and without defining what constitutes a time-based defense, we held that it was reversible error for the trial court to refuse to give an instruction that the State was required to prove that the offense occurred during the two-year period. Id. at 347-48.
Our first attempt at explaining the meaning of a time-based defense came in State v. Carter,
What was implicit in Carter became explicit in State v. Dixon,
In State v. Hennessey,
In State v. Seymour,
The unworkability of the rule in Williams and its progeny is demonstrated by the present case. The indictment charged the defendant with sex offenses between January 1, 2007 and April 30, 2007. Through the cross-examination of the victim, the defendant was able to tie
On these facts, it is unclear whether the defendant was entitled to a Williams instruction. On the one hand, his time-based defense was based largely on impeachment evidence developed on cross-examination. The defendant also did not show he was unavailable for the entire period charged. See Carter,
Second, in the time since Williams, related principles of law have developed to undercut the Williams rule. One such development occurred in the area of discovery. Superior Court Rule 98 governs the rules for discovery prior to trial. Our liberal discovery rules came about in recognition of the concept that “the ends of justice are best served by a system which gives both parties the maximum amount of information available, thus reducing the possibility of surprise at trial.” State v. Nadeau,
At the time of the Williams decision, Superior Court Rule 98 did not provide for any sanctions for failure to comply with the discovery rules. Indeed, we were hesitant to sanction parties for not complying with the rules where the rules themselves did not provide for sanctions. See Nadeau,
These sanctions provide a mechanism for trial courts to ensure that defendants will not prepare for trial with a defense based upon the dates alleged in an indictment only to be surprised at trial by evidence of a date outside the alleged time frame. Such a surprise at trial would surely prejudice a defendant’s case and potentially entitle him to the benefit of the
The sanctions provided for in the Superior Court Rules protect defendants against surprise at trial thereby obviating the need to require the State to prove an additional element whenever a defendant asserts a time-based defense. Such an approach alleviates the concerns that this court had in Williams while at the same time adhering to our long-standing recognition that “[t]ime is not an element of aggravated felonious sexual assault.” Williams,
Third, we address whether “the rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling.” Holmes,
In sum, our decisions since Williams have shown that the rule is unworkable within our current legal framework, developments in related principles of law have undercut Williams and robbed the rule of significant application or justification, and the rule does not lend itself to any general reliance that would create a special hardship were it overruled. Further, we can identify no other jurisdiction that follows a rule similar to the Williams holding. In fact, the general rule continues to be that “[t]ime is not an element of aggravated felonious sexual assault.” Williams,
Finally, we note that the concurring opinion would significantly expand the factors in our stare decisis analysis. However, neither party has asked us to alter our stare decisis framework or to add any additional factors. In fact, in their arguments, both the State and the defendant rely upon the four-factor test set forth in Jacobs. Jacobs,
(5) the antiquity of the precedent; (6) whether it rested on constitutional, rather than statutory or common law, grounds; (7) whether the precedent was “joined by a strong majority of the court” or instead “decided by the narrowest of margins, over spirited dissents challenging [its] basic underpinnings”; and (8) whether the precedent is well-reasoned.
Infra p. 546-47.
Not only have the suggested additional factors not been briefed by the parties, but it is also unnecessary in this case to expand the four-factor test. Generally, we decide cases on the narrowest grounds possible. See Bellville v. Town of Northboro,
The concurring opinion first argues that while we do not expressly include a “well-reasoned” factor in our current analysis, in actuality we do consider the reasoning behind the precedent. While we acknowledge that we have on occasion used language indicating that the soundness of the reasoning behind the precedent is relevant to the stare decisis analysis, e.g., State v. Duran,
The concurring opinion also argues that one of “the most compelling reasons for overruling Williams [is] that its reasoning cannot withstand analysis.” To state that a case was poorly reasoned is ultimately a merits assessment. Adding a “well-reasoned” factor to our stare decisis analysis would simply allow the court to reconsider the merits of the precedent, but in Jacobs, we made clear that “when asked to reconsider a holding, the question is not whether we would decide the issue differently de novo, but whether the ruling has come to be seen so clearly as error that its enforcement was for that very reason doomed.” Jacobs,
While the concurring opinion suggests that we are “perpetuating injustice,” our duty to achieve justice stems from our obligation to follow the rule of law — the foundation of stare decisis. “The very concept of the rule of law . . . requires such continuity over time that a respect
Stare decisis is the essence of judicial self-restraint. Judges are not at liberty to follow prior decisions that are well-reasoned and discard those that are not. Indeed, principled application of stare decisis requires a court to adhere even to poorly reasoned precedent in the absence of “some special reason over and above the belief that a prior case was wrongly decided.” State v. Gubitosi,
According substantial weight to the poor reasoning of an opinion undermines stare decisis and potentially bestows upon the court expansive authority to overrule any prior decision it determines is poorly reasoned. As we first explained in Jacobs, “when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will with arbitrary and unpredictable results.” Jacobs,
With respect to the other factors suggested in the concurring opinion, they are mentioned only in passing and we choose not to address them other than to note that application of the antiquity factor is far from clear. Compare Montejo v. Louisiana,
Ill
The defendant argues that even if we overrule Williams, we must still apply the Williams rule in this case. See Rogers v. Tennessee,
The defendant acknowledges that his late production of the photograph violated Superior Court Rule 98, but contends it was a mere “technical” violation that did not prejudice the State. In support of this argument, the defendant argues that the victim’s mother, a witness for the State, acknowledged on cross-examination that the victim’s overnight visit with the defendant likely occurred in September. The defendant also relies upon a defense investigative report of an interview of the defendant’s fiancée, which was turned over to the State at the final pretrial conference (held twelve days before the start of the trial), and reflects that the victim visited the defendant’s residence in September 2006. Finally, the defendant faults the State for not moving for a continuance or seeking to exclude admission of the photograph once it was disclosed to the State the day before trial. We do not find these arguments persuasive.
While the State perhaps could have been more diligent in pursuing the timing issue prior to jury selection, this does not excuse the defendant’s failure to comply with his discovery obligations. Moreover, regardless of whatever hints of a time discrepancy in the indictments may have been available to the State before disclosure of the photograph, there can be no doubt that the photograph itself was a particularly telling piece of evidence — it documented the victim’s presence at the defendant’s residence at the very time the victim indicated the assaults had occurred. Superior Court Rule 98(J) provides that “[i]f at any time during the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may take such action as it deems just under the circumstances, including but not limited to” a variety of possible sanctions. Accordingly, we have no difficulty in concluding that the trial court did not unsustainably exercise its discretion by tailoring relief to cure the particular prejudice the State would have suffered had the Williams instruction been given without amending the indictments, and we find no violation of the defendant’s due process rights. Cf. State v. Hearns,
The trial court’s ruling was predicated on its finding that the State would have been allowed to amend the indictments had the photograph been disclosed in a timely fashion. Thus, in order to complete our analysis, we must be satisfied that such amendments to the indictments would in fact have been proper. RSA 601:1 (2001), which must be considered in conjunction with Part I, Article 15 of the New Hampshire Constitution, requires that a person be indicted by the grand jury before he or she may be tried for any offense punishable by imprisonment in excess of one year. State v. Bean,
Relying upon Elliott and State v. Erickson,
We have never held nor suggested that an amendment of time allegations in an indictment is impermissible when it is accomplished sufficiently before trial to avoid prejudice to the defendant. See State v. Thresher,
Affirmed.
Concurrence Opinion
concurring specially. I agree with the majority that State v. Williams,
As an initial matter, although I agree with the majority that our post-Williams decisions have made it difficult to determine in exactly what circumstances the
I
In analyzing whether Williams should be overruled, the majority cites the four-factor test taken from Planned Parenthood of Southeastern Pennsylvania v. Casey,
While the stability of the law does not require the continuance of recognized error, it does call for settlement of principle and consistency of ruling when due consideration has been given and error is not clearly apparent. In the effort of the law to establish and enforce principles of reasonable justice, difficulties of application in individual cases are naturally encountered, and a borderland is found where the division line between duty and its absence, between recovery and its denial for harm done, is not readily subject to accurate survey. But a line established by a survey properly made is better than a shifting one. While the growth and development of the law means that it shall be elastic, it does not mean that it shall be fragüe.
In addition to the four Casey factors, among other considerations which both this court and the United States Supreme Court have regarded as important in determining whether to overrule a prior decision are the following: (5) the antiquity of the precedent;
The majority expresses particular consternation over the prospect that precedent can be abandoned based on the fact that it was not well-reasoned. While acknowledging that our case law has found unsound reasoning relevant in assessing whether to overrule a prior decision, the majority asserts that poor reasoning is merely the starting point for determining if a stare decisis analysis is required rather than a factor in the analysis. But whether one characterizes poor reasoning as a prerequisite to stare decisis analysis or a factor in the analysis is largely a matter of semantics and of little practical importance. To be clear, I do not suggest
II
The majority predicates its decision to overrule Williams on three of the Casey factors: (1) the unworkability of the decision; (2) developments in the law since Williams was decided; and (3) the absence of justifiable reliance interests (except for those who have already proceeded to trial, whose interests will be protected by the prospective nature of the decision). I agree with the majority’s analysis of the first and third factors, but I am not persuaded by its treatment of the second factor. I do agree, of course, that, since Williams was decided, Superior Court Rule 98 has been amended to add section J, which gives the court explicit authority to impose sanctions for discovery violations. But insofar as the majority suggests that this change supports overruling Williams because it provides an alternative remedy to address problems resulting from discovery lapses by the State, see ante at 537-38,1 am aware of no case in which an issue regarding the Williams instruction has arisen in which the prosecution had withheld discovery from the defense regarding the time frame during which the alleged offenses occurred. Instead, from all that appears, the recurrent problem that likely spawns most Williams issues is the inability of a young child to accurately remember the times when incidents of sexual abuse occurred, with the result that the child changes his or her account of the time frame — not infrequently offering a new date or dates for the first time at trial, as much to the surprise of the prosecutor as to the defense. The trial court’s explicit authority, conferred by Rule 98(J), to impose sanctions for discovery violations is not likely to address this phenomenon. And while there will certainly be circumstances in which remedies such as prohibiting or striking testimony or granting a continuance would be warranted regardless of whether the prosecutor was at fault, these remedies were available to trial courts long before the adoption of section J of the rule. See State v. Nadeau,
On the contrary, to the extent developments in criminal discovery law subsequent to Williams have a bearing on whether the case should be overruled, I believe our decisions in State v. Chagnon,
But to me, the most compelling reasons for overruling Williams are that its reasoning cannot withstand analysis and that — as the facts of the present case serve to emphasize — it carries the potential to cause a real miscarriage of justice. Notwithstanding Williams’ statement that “[a] defendant’s assertion of a time-based defense, such as an alibi, will not convert time into a material element,” Williams,
As noted above, the facts of this case starkly demonstrate Williams’ ominous implications. By effectively converting time into an element of sexual assault, Williams creates the very real prospect that a defendant can be acquitted of a most serious crime, not because the jury is unconvinced of the defendant’s guilt beyond a reasonable doubt, but merely because a young child is not able to accurately relate when the crime occurred. For example, based upon the evidence presented in this case — in particular the dated photograph coupled with the victim’s testimony that the photograph was taken during the visit with the defendant when the assaults occurred — had the jury been given the Williams instruction, it could easily have found that the defendant committed the sexual assaults to which the victim testified, but believed itself duty bound to return verdicts of not guilty because the assaults took place in September 2006, three to four months earlier than the period alleged in the indictments. Such a result would represent a fundamental failure of our justice system.
There are four readily identifiable alternatives to address the difficulty the Williams instruction was designed to remedy. First, the defendant facing an indictment alleging an extended time period can file a pretrial motion for a bill of particulars. A critical difference between a bill of particulars and the Williams rule is that a bill of particulars is a pretrial filing and thus provides the State advance notice that time is a significant issue in the case. If a bill of particulars is granted as to time, the State is then required to prove the time frame specified therein beyond a reasonable doubt if a failure to do so “would prejudice the defendant by surprising him at trial, impairing his ability to prepare a defense, or impairing his constitutional protection against double jeopardy.” State v. French,
A second alternative remedy to the Williams instruction is the tried and true one of confrontation and cross-examination. See State v. Dixon,
A third remedy, already discussed, is the trial court’s ability to grant a continuance of the trial. This remedy is most likely to be appropriate where, for example, the State learns of a date discrepancy shortly before trial and seeks to amend the indictment to correct the problem. In such circumstances, the trial court has ample authority to prevent prejudice to the defendant by continuing the trial so as to give the defendant an opportunity to meet the new allegations. See State v. Cromlish,
Fourth, the trial court can declare a mistrial. Although this alternative is not to be employed lightly, a mistrial may be appropriate in extreme situations, where the defendant can demonstrate that a mid-trial change of course by the victim or other prosecution witnesses concerning the time when the alleged assault occurred surprised the defendant and seriously prejudiced the defense case “to the extent that justice may not be done if the trial continues to a verdict.” State v. Sammataro,
In sum, given the significant cost of a potential miscarriage of justice that the Williams rule imposes, and the readily available alternative remedies for the time span difficulty that Williams attempts to ameliorate, I am persuaded that Williams must be prospectively overruled and I therefore concur with the majority decision.
Notes
It also is worth noting that, even after we first adopted the Casey factors in Jacobs, we have not always considered those factors in deciding whether to overrule precedent. For example, in State v. Miller,
Similarly, in State v. Duran,
See Montejo v. Louisiana,
See Patterson v. McLean Credit Union,
Brannigan,
Payne v. Tennessee,
See Citizens United v. Federal Election Com’n,
As one recent commentator’s analysis indicates, all of the factors discussed in the text can be viewed either as another way of asking “How wrong is the precedent?,” or as being rather imprecise proxies for various kinds of reliance interests that might be upset by overruling the precedent, or as some combination of the two. See Kozel, Stare Decisis as Judicial Doctrine, 67 WASH. & LEE L. REV. 411, 418-21, 449, 465 (2010).
The majority’s assertion that I have reached out to address issues not raised by the parties fails to take account of the procedural posture of this case. When the case was first briefed and argued before this court, the State had not asserted that Williams should be overruled, and we could have simply affirmed the defendant’s conviction on the grounds that the trial court had appropriately exercised its discretion in conditioning the giving of the Williams instruction on the defendant’s agreement to amendment of the indictments, given the defendant’s discovery violation. We did not follow this course because all members of the court believed Williams was problematic to the proper administration of justice and therefore a ripe candidate for having its continuing validity reviewed. Accordingly, we ordered supplemental briefing on this issue. Given that we raised sua sponte the issue of whether Williams should be overruled, I fail to see any legitimate reasons why we should be precluded from considering all factors that have a proper bearing on that inquiry. Moreover, given the majority’s view that poor reasoning is “the starting point for a stare decisis analysis,” ante at 540, it is hard to understand how the majority could expect not to address this issue on appeal, particularly where the defendant does not concede that Williams was poorly reasoned.
See Super. Ct. R. 98(B), (C)(2), (D).
For example, Rule 98 would not cover the situation where the only evidence of the defendant’s non-access to the victim during the time frame alleged in the indictment consists of the defendant’s own testimony, see SUPER. CT. R. 98(C)(2) (defense is not required to make pretrial disclosure of statements of the defendant), and arguably might not capture the situation where there exist no memorialized “statements” of other defense witnesses who would testify at trial to the defendant’s non-access, see SUPER. Ct. R. 98(C)(3) (defining “statement” for purposes of the rule). But cf. State v. Zwicker,
The pernicious nature of a defense based on Williams is aptly demonstrated by one of the arguments advanced in the defendant’s supplemental brief. As a fallback to its position that Williams should be overruled, the State argues that we should at least impose a pretrial notice requirement before a Williams instruction can be requested. In answer to this argument, the defendant protests: “Once a defendant furnishes notice to the State of its defense, the State likely would seek to extend the period specified in the indictment to encompass the time period identified by the defendant’s evidence, thereby foreclosing the defense.” In other words, the defendant acknowledges that the practical benefit of Williams is largely eviscerated if it is deprived of the element of surprise. Such reasoning is premised on the sort of sporting theory of justice rationale that the Wyoming Supreme Court aptly described as “playing the judicial equivalent of ‘gotcha.’ ” Spagner v. State,
Although it is unnecessary to decide the issue definitively at this time, I also note that the consequence of giving the Williams instruction would appear to be that an acquittal of the defendant would not preclude the State from re-indicting him and trying him a second time. Since Williams effectively makes time an element of the offense, it would logically appear to follow that acquittal of a defendant on an indictment alleging, for example, that a sexual assault occurred between June 1, 2010 and December 1, 2010, in light of evidence adduced by the defense showing non-access during that time frame, would not present a double jeopardy bar to the State charging the defendant with the arguably different crime of committing the same conduct before or after the foregoing period. See State v. Dixon,