STATE of Utah, Plaintiff and Appellant, v. Ray WILCOX, Defendant and Appellee.
No. 890224.
Supreme Court of Utah.
Jan. 25, 1991.
1028
The difficulty with Justice Howe‘s reasoning is that there is absolutely no evidence in the record, apart from the metes and bounds calls in the deeds, that any canal ever existed at the point called to. In fact, the trial judge did not claim to have found that such a monument ever existed. Instead, he stated only that “there is some evidence of a possibility that at one time there was a canal in that area [the area called to].” This is not enough to support a finding that such a canal ever existed, and absent such a finding, the call to a canal must be given preference over the metes and bounds and the boundary must be settled at the Warren Canal.
For these reasons, I would hold that the trial court committed an error of law by preferring a metes and bounds call over a call to a monument. To the extent that the trial court‘s statement could be construed to be a finding that there may once have been a canal other than the Warren Canal in a location congruent with the metes and bounds description, I would hold that such a factual finding was clearly erroneous.
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
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
The district court denied Wilcox‘s motion to dismiss, finding that “because of the age of the alleged victim and the corroborating
We note at the outset that although findings of fact by the trial court “shall not be set aside unless clearly erroneous,”
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
In determining whether a defendant has been denied this right, we follow a rather elaborate analysis that focuses on
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
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).1
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
In that regard, we have recognized that there are notice problems, especially as to the date, place, and time, inherent in prosecutions based on the testimony of very young victims. For example, in Robbins, we noted that “children are often not able to identify with a high degree of reliability, and sometimes not at all, when an event in the past took place.” Robbins, 709 P.2d at 773; see also Marcum, 750 P.2d at 601 (seven-year-old gave “inconsistent and
In frank recognition of this fact, we have been less vigorous in requiring specificity as to time and place when young children are involved than would usually be the case where an adult is involved. Compare McNair, 666 P.2d at 326 & n. 8 (in case charging adult, seventeen-day disparity between charge and proof held to exceed tolerance of one to three days usually permitted for such disparities under charging allegation of “on or about“) with Bundy, 684 P.2d at 62 (information alleging rape and forcible sodomy of a child over eight-month period held to have sufficient specificity). We have suggested that so long as the elements of the crimes are covered by the factual allegations and the defendant is fully apprised of the State‘s information regarding the time, place, and date of the crimes, any lack of factual specificity goes not to the constitutional adequacy of the notice, but to the credibility of the State‘s case. Fulton, 742 P.2d at 1213 n. 6.
We turn to the present case. The first issue is whether Wilcox waived his rights to more specific information. He did not. He properly and timely filed a request for a bill of particulars and a demand for the place, date, and time of the offense. The State responded to these requests, and Wilcox does not claim that the State failed to offer all information that it had in its possession; rather, he complains only that more detailed time and date information was unavailable. We have, then, no grounds for concluding that the State did not comply with its statutory obligation to “specify in writing as particularly as is known to [the prosecuting attorney] the place, date and time of the commission of the offense charged.”
This takes us to the constitutional question, which requires us to determine whether the lack of specificity (i) impaired Wilcox‘s ability to prepare a defense, or (ii) exposed him to multiple prosecutions for the same crime. Addressing the first of these issues, Wilcox acknowledges that the reason more specific time and date information was unavailable is because the alleged victim was a three-year-old child who could not remember with any precision the dates when the alleged abuse occurred, although she did contend that it occurred often during a period extending back to her infancy. However, Wilcox claims that because of the lack of specificity as to times and dates, he was deprived of the ability to prepare an alibi defense.
This claim fails for two reasons. First, time does not become an element of an offense merely because the defendant pleads an alibi defense. Fulton, 742 P.2d at 1213. Therefore, Wilcox has no statutory or constitutional right to a charge framed so as to facilitate an alibi defense. Second, it is doubtful that an alibi defense is a realistic possibility because Wilcox had continual contact with the child half of the time over the thirty-two-month period. See State v. D.B.S., 216 Mont. 234, 700 P.2d 630, 634 (1985). Under these circumstances, we conclude that Wilcox has not shown any specific harm to his defense that he likely will suffer as a result of the lack of exact dates and times.
This leads us to the second prong of the constitutional analysis: whether Wilcox is in danger of being charged twice for the same offense because of the lack of specificity. See Bundy, 684 P.2d at 62.
If a defendant has been prosecuted for one or more offenses arising out of a single criminal episode, a subsequent prosecution for the same or a different offense arising out of the same criminal episode is barred if:
(a) The subsequent prosecution is for an offense that was or should have been tried under
Subsection 76-1-402(2) in the former prosecution; and(b) The former prosecution:
(i) resulted in acquittal; or
(ii) resulted in conviction; or
(iii) was improperly terminated; or
(iv) was terminated by a final order or judgment for the defendant that has not been reversed, set aside, or vacated and that necessarily required a determination inconsistent with a fact that must be established to secure conviction in the subsequent prosecution.
We conclude that Wilcox received constitutionally adequate notice of the charged offense. His ability to prepare a defense was not unduly impaired, and the lack of specificity does not place him in danger of multiple prosecutions for the same crime.
In holding that the vague date specification in the information is permissible, we recognize that the time period is limited by the applicable statute of limitations. See Fulton, 742 P.2d at 1213; Bundy, 684 P.2d at 62; McNair, 666 P.2d at 326. That is, however, not an issue in this case.
For the reasons stated above, we reverse the decision of the trial court granting defendant‘s motion to dismiss and remand the case for further proceedings.
HALL, C.J., HOWE, A.C.J., and DURHAM, J., concur.
STEWART, Justice: (dissenting).
I dissent.
The constitutional right to fair notice of a criminal charge is the right of a defendant to be “apprised of the particulars of the charge [so as] to be able to ‘adequately prepare his defense.‘” State v. Fulton, 742 P.2d 1208, 1214 (Utah 1987) (quoting State v. Burnett, 712 P.2d 260, 262 (Utah 1985)), cert. denied, 484 U.S. 1044, 108 S.Ct. 777, 98 L.Ed.2d 864 (1988). See also State v. Robbins, 709 P.2d 771 (Utah 1985).
The Court balances a defendant‘s constitutional right to fair notice of a relevant time frame against the exigencies of prosecuting a child abuse case. The majority opinion states that “a challenge to the constitutional adequacy of notice inevitably draws us into a generalized weighing of the completeness of the notice and its adequacy for the defendant‘s purposes against the background of the information legitimately available to the prosecuting authority.” When a constitutional right is “balanced” against a competing policy, there is the ever-present threat that the “balancing” results in the disappearance of the constitutional right. Here, the majority focuses solely on the difficulties presented to the prosecution in dealing with a very young child and gives no real weight to the constitutional right of fair notice. Although the majority gives lip service to a defendant‘s right to notice, it holds that the right diminishes to whatever extent the exigencies of the prosecution require, and in this case, that means no notice at all in any realistic sense. Such a “right” is illusory, as is clear from the majority opinion:
We have suggested that so long as the elements of the crimes are covered by the factual allegations and the defendant is fully apprised of the State‘s information regarding the time, place, and date of the crimes, any lack of factual specificity goes not to the constitutional adequacy of the notice, but to the credibility of the State‘s case.
(Emphasis added.) Thus, the defendant‘s constitutional right to fair notice of when1 the crime charged against him occurred is transformed into some vague issue of “credibility of the State‘s case.”
As the majority opinion observes, our cases have not required that there be “certainty concerning the time, dates, or places where the abuse occurred,” but they do make clear that the due process right of notice is a substantial right. See McNair, 666 P.2d at 326. That right is not just a right of notice of the prosecution‘s evidence; more importantly, it is the right of a defendant not to be confronted with a case that presents a moving target. That is what is involved here. The State has charged that Wilcox committed offenses “on or between January, 1985, and September 4, 1987,” but refuses to specify any particular time or period within that allegation.
Thus, under the Court‘s ruling, it is only necessary to apprise the defendant of the evidence against him for the entire time period, irrespective of whether that evidence provides any temporal notice to the defendant. However, the State need not bind itself to any particular time frame suggested by the evidence. Thus, the State can avoid a claim of variance and present a case that becomes a moving target for the defendant.
The evidence indicates that a possible act of abuse may have taken place around Christmastime, but the State refuses to limit its case to that period, and the Court condones the State‘s action. Now, the State may prove an act at that time or at any other time during the thirty-two-month period alleged. The charge of sodomy on a child is based solely on testimony of one person that there was a “possibility” (not a probability) that the child experienced anal penetration with some kind of object and that the “possible act” took place eight to ten weeks prior to the physical examination on which that testimony was based.1 Again, the State refuses to allege that as a relevant time period. In short, even though the evidence identifies a relevant
The majority asserts that all the defendant loses by the prosecution‘s inability to give some reasonable specification of dates and times is the ability to prepare an alibi defense. The majority states:
Therefore, Wilcox has no statutory or constitutional right to a charge framed so as to facilitate an alibi defense. Second, it is doubtful that an alibi defense is a realistic possibility because Wilcox had continual contact with the child half of the time over the thirty-two-month period.... Under these circumstances, we conclude that Wilcox has not shown any specific harm to his defense that he likely will suffer as a result of the lack of exact dates and times.
Apart from the effect of the majority‘s ruling, which makes an alibi defense impossible, there is no basis for the majority‘s factual conclusion that the defendant has “no realistic possibility” of an alibi defense because Wilcox had “continual contact with the child half of the time over the thirty-two-month period.” If there were some time specification, the defendant might have an alibi defense during the time he had custody. The Court‘s assertion is a self-fulfilling prophecy, since it is impossible to prove one‘s whereabouts for a thirty-two month period, or even half that time—the period the Wilcoxes had custody of the child.
Other serious obstacles to the defense occur as a result of the lack of fair notice. The defendant has no realistic possibility of producing any other defense—except an attack on the prosecution‘s case by cross-examination. The defendant will not be able to call any witnesses to testify as to his conduct on a given occasion because the prosecution will always be able to assert that the crime occurred on another occasion. Thus, the defendant is prevented from producing witnesses who might testify, for example, that on a particular occasion some alleged act of abuse was merely a hygenic act performed for the child or was some other innocuous and innocent activity. If the defendant waives his right not to testify, he may testify and deny that he ever abused the child, but such a denial against this charge is not likely to be effective, even if true. In short, when faced with a charge that abuse might have occurred at any time during a thirty-two-month period, a defendant is all but defenseless, except insofar as he can attack the prosecution‘s witnesses on cross-examination.
But even cross-examination will avail Wilcox little by way of a defense because the two key prosecution witnesses are a social worker and a psychologist whose testimony cannot be fairly cross-examined because they will testify to hearsay statements made to them by the child. Effective cross-examination regarding hearsay statements relayed by those witnesses is virtually impossible. Furthermore, the critical witness, the social worker to whom the child first made an accusation against the defendant, did not videotape her sessions with the child—a highly unprofessional lapse, in my view, and one that makes cross-examination even more futile.
It follows from the majority opinion that an averment of a crime in the statutory language specifying covering the elements of the offense is all that is necessary to satisfy a defendant‘s constitutional right of notice as to time, even though the evidence indicates that the allegations could be connected to a particular time. The result is paradoxical. The weaker and more amorphous the prosecution‘s case is, the less notice the defendant receives and the less chance the defendant will have of defending, other than by cross-examination. In addition, the State‘s case is rendered immune from a claim that there was a fatal variance. In short, although the defendant is presumed innocent, he is effectively stripped of any realistic possibility of defending against the charges.