Opinion
No. 96SC454
January 20, 1998 Petition for Rehearing DENIED February 23, 1998
Certiorari to the Colorado Court of Appeals
JUDGMENT AFFIRMED
David F. Vela, Colorado State Public Defender, Karen M. Gerash, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, John D. Seidel, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, Attorneys for Respondent.
We granted certiorari to review the court of appeals' decision in Erickson v. People, No. 93CA2214 (Colo.App. Apr. 11, 1993), to consider the adequacy of a bill of particulars in a case involving repeated sexual assaults on a child. The court of appeals held that the bill of particulars was sufficient because it gave the defendant early notice of the full extent of the sexual assault allegations as well as a description of the acts upon which the prosecution would rely. We affirm.
I.
On July 13, 1992, the petitioner, William Erickson (petitioner), was charged by information with two counts of sexual assault on a child. The charges grew out of two separate allegations of abuse made by petitioner's natural child and his stepson (the victim), both of whom lived with petitioner during his marriage to Agnes Williams. Following a hearing concerning the competency of both children, the prosecution dismissed the charge relating to petitioner's natural child but requested permission to amend the information to reflect the victim's assertions that he was abused by petitioner over a seven-year period instead of the three months originally alleged. The trial court granted the motion.
See 18-3-405(1), 6 C.R.S. (1997).
On August 18, 1993, petitioner moved for a bill of particulars specifying each act of sexual abuse as well as the precise date and location of each act. The trial court granted the motion, ordering as follows:
I doubt seriously . . . that the victim . . . is going to be able to come up with dates, places, and times. But nonetheless the defendant should be entitled to know what it is the victim is going to say with particularity. It is sort of an enhanced discovery and because of the situational problems with an ambiguous information it is required and necessary. So I will grant the motion for a bill of particulars.
I certainly do not want to be heard to say that if the bill of particulars is not so detailed on its face as to support a precise showing of the violation of the crime that any remedy will be afforded to the defendant but I think the defendant is entitled under these circumstances to know what the evidence is going to be to support the charges. So I'm going to order that the prosecution prepare a bill of particulars in some narrative form that will describe the events or the evidence which will be presented through the child victim including to the best of his ability the place, dates, and particular conduct.
In response to the trial court's order, the prosecution provided petitioner with a bill of particulars which contained the following information:
a. Initial incident occurred when the victim . . . DOB: 9/23/78, was six years old and was asked to expose himself and play with himself in front of the defendant.
b. When the victim turned six and one-half the defendant started fondling [the victim's] penis.
c. After [the victim] turned seven years old, he had to commit oral copulation upon the defendant and the defendant gave [the victim] oral copulation.
d. After [the victim] turned seven years old, he had to hand-manipulate and fondle the defendant's privates.
e. These incidents occurred approximately thirty to forty times between [the victim's] ages of six and twelve years old.
f. In August, 1991, the victim had to fondle the defendant and the defendant fondled the victim which was the last time since the defendant moved out of the house at the end of August, 1991.
The bill of particulars also provided petitioner with the addresses of four separate residences in which the family lived from March of 1985 to September of 1991.
At trial, the victim's testimony tracked the testimony he gave in the pretrial hearing as well as the information contained in the bill of particulars. On cross-examination, petitioner repeatedly pointed to inconsistencies in the victim's recollection of the dates, times, and circumstances of the assaults and in prior statements the victim gave to investigating officers and at the pretrial hearing. Petitioner also presented the testimony of an expert witness who testified that the victim did not behave in the manner of an abused child. Petitioner did not testify. At the close of evidence, the jury was instructed that to find petitioner guilty, it must either unanimously agree that he committed the same single act, or that he committed all of the acts described by the victim within the time period charged. The jury found petitioner guilty and the trial court subsequently sentenced him to eight years in prison.
Petitioner appealed, claiming that (1) the bill of particulars was inadequate; (2) the evidence was insufficient to support his conviction; (3) the modified unanimity instruction given to the jury was inadequate; and (4) the trial court abused its discretion in sentencing. The court of appeals dismissed each of these arguments and affirmed petitioner's conviction in an unpublished opinion. We granted certiorari to consider petitioner's contentions regarding the bill of particulars.
II.
A bill of particulars forecasts "the facts that the prosecution intends to prove and limits the proof at trial to those areas described in the bill of particulars." People v. District Court, 198 Colo. 501, 504, 603 P.2d 127, 129 (1979). Its purpose is
to enable the defendant to properly prepare his defense in cases where the indictment, although sufficient to advise the defendant of the charges raised against him, is nonetheless so indefinite in its statement of a particular charge that it does not afford the defendant a fair opportunity to procure witnesses and prepare for trial. When addressing such motions, the trial judge should consider whether the requested information is necessary for the defendant to prepare his defense and to avoid prejudicial surprise.
Id. at 503-504, 603 P.2d at 129 (citations omitted).
Although the bill of particulars is intended to define the charged offense more specifically, it need not disclose in detail the evidence upon which the prosecution expects to rely. See Balltrip v. People, 157 Colo. 108, 112-13, 401 P.2d 259, 262 (1965). Additionally, when time is not a material element of the offense, precise dates and times are unnecessary. See Woertman v. People, 804 P.2d 188, 190 (Colo. 1991). In cases involving multiple crimes committed over a long period of time, the trial court may grant the motion for a bill of particulars but limit its scope. See People v. District Court, 198 Colo. at 504, 603 P.2d at 129.
Petitioner argues that the bill of particulars in this case lacked sufficient specificity to allow him to prepare a defense and points to our decision in Kogan v. People, 756 P.2d 945 (Colo. 1988), as controlling authority in support of his argument. We disagree.
Two practical problems arise in cases where a child alleges that he has been the victim of prolonged sexual abuse. First, children often have difficulty recollecting, reconstructing, and identifying the specific incidents and dates of the alleged acts of sexual misconduct. See Thomas v. People, 803 P.2d 144, 154 (Colo. 1990). Second, it is unreasonable to require exactitude from any victim, child or adult, in crimes involving repeated instances of abuse occurring over a prolonged period of time. See People v. Jones, 792 P.2d 643, 648 (Cal. 1990). Recognizing these difficulties, courts have relaxed specificity requirements in order to facilitate prosecution of those accused of sexually assaulting children over extended periods of time. See Thomas, 803 P.2d at 152-53; Jones, 792 P.2d at 648; State v. Lawrinson, 551 N.E.2d 1261, 1262-63 (Ohio 1990); State v. Byrd, 820 S.W.2d 739, 741-42 (Tenn. 1991); State v. Wilcox, 808 P.2d 1028, 1032-33 (Utah 1991).
In Jones, the Supreme Court of California explained why it is necessary to relax the specificity requirements in child molestation cases as follows:
A young victim . . . molested over a substantial period by a parent or other adult residing in his home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by "specific incidents or dates" all or even any such incidents. (Indeed, even a mature victim might understandably be hard pressed to separate particular incidents of repetitive molestations by time, place or circumstance.) Accordingly, any constitutional principles or evidentiary standards we develop should attempt to assure that the resident child molester is not immunized from substantial criminal liability merely because he has repeatedly molested his victim over an extended period of time.
Jones, 792 P.2d at 648 (citation omitted).
In Kogan, we reversed the conviction of a defendant school teacher accused of improperly touching several of his fourth grade students. Kogan, 756 P.2d at 952. After determining that the evidence was sufficient to convict the defendant, we held that three separate "insufficiencies" precluded the defendant from receiving a fair trial and thus constituted cumulative error. Id. at 961. One of these "insufficiencies" concerned a bill of particulars which contained general information as to the dates and times of the alleged assaults. In determining that the bill of particulars was inadequate, we explained in Kogan that "the combination of the broad time frames and the absence of any accompanying detail describing the defendant's alleged acts emphasize the need for greater specificity, and . . . resulted in clear prejudice to the defendant." Id. at 954.
Contrary to our holding in Kogan, we find that the bill of particulars in the present case was sufficient. Although the bill of particulars offered by the prosecution was broad, this lack of specificity reflected the general nature of the prosecution's evidence and put the defense on notice that the trial would essentially come down to a credibility determination. See Thomas, 803 P.2d at 153. Because the evidence presented at trial was no more specific than the information in the bill of particulars, petitioner's ability to prepare a defense was not hampered by withheld information or prejudicial surprise. Therefore, any difficulty petitioner had in defending the charges was a result of a lack of specificity in the prosecution's evidence, not in the bill of particulars.
In Thomas, we addressed the effect on the defendant of allowing the prosecution to proceed without selecting specific dates and acts as to the offense charged. After explaining the evidentiary problems inherent in child molestation cases, we held that "when the evidence does not present a reasonable likelihood that jurors may disagree on which acts the defendant committed, the prosecution need not designate a particular instance" of sexual assault in order to find the defendant guilty. Thomas, 803 P.2d at 153. We also determined in Thomas that when the prosecution does not elect to rely upon a specific instance, the jury must be instructed that in order to find the defendant guilty, it must either unanimously agree that he committed the same single act, or that he committed all of the acts described by the victim within the time period charged. Id. at 153-54. This instruction, which was given in the present case, safeguards the defendant's rights by ensuring a unanimous verdict.
Petitioner's reliance upon Kogan is misplaced. In Thomas, we retreated from our holding in Kogan by explaining that "we overemphasized the importance of the defense preparation rationale in Kogan . . . . [A]t least in most instances the defendant can obtain adequate information to prepare a defense through the charging document, the preliminary hearing, and the discovery process." Thomas, 803 P.2d at 154. Kogan is also distinguishable because that case was decided in the context of cumulative error, meaning that reversible error existed only when the deficient bill of particulars was viewed in combination with other errors. Here, petitioner must establish that the prosecution's bill of particulars, by itself, constitutes plain error. Furthermore, the facts of this case are more similar to Thomas, where we explained that "[t]he facts in Kogan . . . suggested that the defendant might derive special value from the specification of particular acts." Thomas, 803 P.2d at 154. We further explained that, in Kogan,
Petitioner did not challenge the sufficiency of the bill of particulars at trial. Therefore, we would be obligated to apply plain error review in the event we found that the bill of particulars was insufficient. See Roelker v. People, 804 P.2d 1336, 1339-40 (Colo. 1991).
[t]he acts charged all occurred while the defendant and a victim were at the defendant's desk in a classroom filled with other students. Identification of the particular room, class and period of time might have been of important assistance to the defendant in seeking to impeach the testimony of the victims or to identify defense witnesses. In contrast, the incidents at issue in the present case occurred with only the defendant and one or both of the victims present.
Id.
III.
We hold that the bill of particulars in the present case was sufficient to enable petitioner to prepare his defense and avoid prejudicial surprise. The decision of the court of appeals is therefore affirmed.
JUSTICE BENDER dissents.