State v. Hicks

State v. Hicks  (96-504); 167 Vt. 623; 711 A.2d 660

[Filed 18-Mar-1998]


                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 96-504

                       FEBRUARY TERM, 1998

State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont
                                }     Unit No. 3, Orleans Circuit
James Hicks, Jr.                }
                                }     DOCKET NO. 797-11-95Oscr

               In the above-entitled cause, the Clerk will enter:

       Defendant appeals from two convictions for sexual assault against a
  minor and one conviction for lewd and lascivious conduct with a child.  He
  argues that the court erred by (1) failing to dismiss the charges against
  him because the State did not allege the time of the offenses as
  specifically as possible, and (2) by denying his motion to continue to
  allow him to hire a new attorney.  We affirm.

       All three convictions were based on allegations that defendant
  sexually abused his girlfriend's -- now wife's -- two daughters, ages
  eleven and twelve, while they were all living on Coventry Street in
  Newport.  The police officer's affidavit in support of the informations
  stated that the three offenses occurred on the same day, sometime between
  Easter and June 1, 1994, and the informations alleged that the day was
  sometime between April 3 and June 1, 1994. After defendant gave notice of
  an alibi defense, the State amended the informations, alleging that the
  abuse occurred between January 1994 and August 1994, the entire period that
  complainants lived at the Coventry Street house.

       At trial, the younger child, who was then thirteen years old, could
  not recall the date of the offenses, but knew they occurred at the Coventry
  Street house and that she moved out of that house on September 14, 1994. 
  The older child, who was fifteen years old at trial, could not recall the
  date either, but after refreshing her memory with a transcript of her
  deposition, testified that the date was after Easter and before June. 
  Testimony from other witnesses indicated that defendant moved out of the
  Coventry Street house in the third week of March 1994 and did not return
  until after the complainants moved to a foster home.  Following the
  testimony of the two children, defendant moved to dismiss for lack of
  specificity in the information, and later, moved to set aside the verdict
  or for a new trial on the same grounds. The trial court ruled that the time
  frame Easter to June 1, 1994 had not been established sufficiently to
  require the State to narrow its charges to that time frame.

       On appeal, defendant argues that the information should have alleged
  the time frame of Easter to June 1, 1994 because one of the children
  testified that the offenses occurred during this period of time, and the
  State is required to be as specific as possible.  Child victims of sexual
  abuse often are unable to identify the date of the offense.  See State v.
  Ross, 152 Vt. 462, 465, 568 A.2d 335, 337 (1989).  And children who are
  repeatedly sexually abused over several months or years have difficulty
  establishing the dates of particular assaults.  See, e.g., People v.
  Naugle, 393 N.W.2d 592, 596 (Mich. Ct. App. 1986) (information charging
  three counts of sexual abuse was sufficiently specific without alleging
  exact dates where thirteen year old victim testified that defendant had
  been molesting her since she was eight years old, so specific dates did not
  stick out in her mind).

 

       In cases of sexual abuse, time is not an essential element of the
  offense, and therefore, need not be charged in the information.  See State
  v. Gomes, 162 Vt. 319, 322, 648 A.2d 396, 399 (1994).  The State must show
  that the offense occurred within the statute of limitations, and the
  defendant must be given a fair opportunity to prepare a defense in the
  circumstances of the case.  See Ross, 152 Vt. at 465, 568 A.2d  at 337. 
  Moreover, a defendant has no vested right to an alibi defense.  See Gomes,
  162 Vt. at 322, 648 A.2d  at 399.  Notice of the time of an offense must be
  reasonable under all the circumstances of the case.  Some factors to
  consider include the age and circumstances of the complainants, how the
  abuse was carried out, and the State's ability to be more specific.  See
  id. at 322, 648 A.2d  at 399.

       In this case, the children were about ten and eleven years old at the
  time of the offenses. They both testified that defendant sexually abused
  them "a lot" when they lived on Coventry Street and threatened to kill them
  if they told anyone, resulting in delayed reporting.  The younger child
  testified that she told her mother once but that the mother did not believe
  her and did not do anything to help.  The older child testified,
  consistently with the younger child, that the offenses occurred while
  defendant was living with them on Coventry Street.  Inconsistent with this
  testimony, she stated that the offenses occurred between Easter and June 1,
  1994.

       Defendant argues that the State is required to be more specific where,
  as here, the child is able to establish a more precise time frame.  The
  child's testimony was actually inconsistent about the time period -- while
  defendant lived at Coventry Street or between Easter and June 1. In view of
  the child's confusion over the date and all the other circumstances in this
  case, the notice of the time of the offense was reasonable.  Aside from
  losing his alibi defense as a result of the amendment of the information, a
  defense in which he has no vested right, see Gomes, 162 Vt. at 322, 648 A.2d  at 399, defendant has not alleged that the amendment caused him any
  prejudice.

       Defendant also relies on People v. Keindl, 502 N.E.2d 577, 581-82
  (N.Y. 1986), in which the New York Court of Appeals dismissed charges of
  sexual abuse where the indictments alleged the abuse occurred over periods
  from ten to sixteen months long and the victims were between the ages of
  eight and thirteen.  Under the circumstances of that case, the court
  concluded that the periods were unreasonably excessive because children
  between the ages of eight and thirteen should be capable of discerning at
  least seasons or other events to assist them in narrowing the time spans
  alleged.  See id. at 581.  In this case, the record indicates that the
  State made efforts to narrow the time frame, but the children were unable
  to be more specific than setting the date at a time during which they lived
  on Coventry Street.  See id. (whether indictment is sufficiently specific
  must be decided case-by-case by considering all relevant facts; one factor
  is State's ability to narrow time span).  The age of the complainants alone
  does not require a more specific time in the information.  See, e.g.,
  Naugle, 393 N.W.2d  at 596 (thirteen years old at time of abuse charged);
  State v. Clark, 682 P.2d 1339, 1342 (Mont. 1984) (twelve

 

  years old at time of abuse charged).(FN1)

       Next, defendant argues that the court erred by denying him a
  continuance to allow him to hire another attorney.  On the morning of the
  trial, defendant declared that he wanted to fire his attorney, and he
  requested a continuance to hire a new attorney.  After the court inquired
  into his dissatisfaction with his attorney, the court offered to allow him
  to proceed pro se, but denied a continuance.

       The denial of a motion to continue will not be reversed absent a clear
  abuse of discretion. See State v. Lund, 9 Vt. L.W. 3, 3 (1998). 
  "Last-minute requests to substitute defense counsel are not favored." 
  United States v. Klein, 13 F.3d 1182, 1185 (8th Cir. 1994).  Absent unusual
  circumstances, there is no abuse of discretion in denying such a motion. 
  See State v. Waters, 542 N.W.2d 742, 745 (N.D. 1996); see also Morris v.
  Slappy, 461 U.S. 1, 11, 12 (1982) (trial judges afforded great deference in
  scheduling trials; compelling reason necessary to show denial of
  continuance to substitute counsel violates right to assistance of counsel);
  United States v. Pierce, 60 F.3d 886, 891 (1st Cir. 1995) (denial of
  last-minute request for continuance to substitute counsel is entitled to
  "extraordinary deference"); United States v. Corporan-Cuevas, 35 F.3d 953,
  956 (4th Cir. 1994) (motion to substitute counsel on first day of trial is
  clearly untimely unless under most exigent circumstances).

       To determine whether the court abused its discretion, we consider (1)
  the timeliness of defendant's motion, (2) the adequacy of the court's
  inquiry, and (3) whether a conflict creates total lack of communication
  between defendant and his counsel preventing an adequate defense. See
  United States v. George, 85 F.3d 1433, 1438 (9th Cir. 1996).  In this case,
  defendant moved to substitute counsel on the morning the trial was to
  begin, although counsel had been representing him for nine months.  The
  trial court inquired into the reasons that defendant wanted to substitute
  counsel and responded to each of defendant's concerns.  Finally, although
  counsel indicated that there were significant discrepancies between himself
  and his client, defendant points to nothing in the record to show that a
  lack of communication prevented an adequate defense.  See Corporan-Cuevas,
  35 F.3d  at 957 (no evidence lack of communication prevented adequate
  defense).

       The court appropriately weighed the public interest in orderly and
  expeditious prosecutions, see id. at 956, and concluded that defendant's
  reasons for requesting substitute counsel were not sufficiently compelling
  to bring the trial to a halt at the last moment.  We find no abuse of
  discretion.  See V.R.Cr.P. 44.2(c) Reporter's Notes (requirement that good
  cause be shown for withdrawal is designed to prevent last-minute
  withdrawals from interfering with scheduling trials); Pierce, 60 F.3d  at
  891-92 (no abuse of discretion in denying eve-of-trial motion to continue
  to substitute counsel because motion was untimely, court's inquiry was
  adequate and no error in finding communication between counsel and client
  was sufficient to allow satisfactory defense); United States v. Goldberg,
  67 F.3d 1092, 1098-99 (3rd Cir. 1995) (denial of last-minute request for
  substitution of counsel and continuance was not abuse of discretion where
  disagreement with counsel amounted to disagreement over strategy).

       Affirmed.


                              BY THE COURT:


                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice



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                                  Footnotes



FN1.  Moreover, in Keindl, the State had charged the defendant in each
  count with multiple criminal acts that occurred every week during the time
  span specified and argued that the abuse should be recognized as a
  continuing offense.  The court rejected the theory of a continuing offense
  and held that the multiplicity of acts encompassed in a single count make
  it impossible to determine if the jury reached a unanimous verdict
  regarding any particular act.  Thus, the court required the charges to
  specify the various acts within each time span with more particularity. 
  See id. at 581-82.  Here, each information alleged a single criminal act;
  thus, the verdicts were unanimous on each of the three acts charged.