Appeal from the Superior Court of the District of Columbia (DVM-248-09) (Hon. Erik P. Christian, Trial Judge)
The opinion of the court was delivered by: Ruiz, Senior Judge:
Before BLACKBURNE-RIGSBY, Associate Judge, and KING and RUIZ,*fn1 Senior Judges.
Vicente Lazo was convicted of one count of misdemeanor sexual abuse, in violation of D.C. Code § 22-3006 (2001). He makes three arguments on appeal:
(1) that the charging document lacked particularity about the date and time of the alleged offense, and thus did not provide adequate notice to appellant of the charges against him; (2) that the trial court abused its discretion in failing to independently inquire about potential Jencks Act material; and (3) that the evidence was insufficient to support his conviction. For the reasons that follow, we conclude that the trial court did not abuse discretion in denying the motion to dismiss the Information and that the evidence was sufficient to convict appellant of the sexual charge. However, we remand the case for an evidentiary hearing and fact findings into the possible existence of undisclosed Jencks material of statements made by the complaining witness and her mother. If the court determines that the government should have been required to disclose Jencks material to the defense, and appellant was prejudiced as a result, the conviction should be vacated and appellant accorded a new trial.
I. Factual and Procedural Background
G.F., who was nine years old at the time of trial, was the
government's principal witness against appellant, whom G.F. knew as
Uncle Chente. G.F. testified that on one afternoon of an unspecified
day when she was eight years old and in the second grade,*fn2
she was watching television and playing card games with her
sister and cousins in appellant's apartment while appellant was in the
next door apartment of G.F.'s aunt, Telma Lazo ("Aunt Telma").
Appellant is Aunt Telma's brother-in-law. At the time G.F. and her
family were living with Aunt Telma and her family. There were no other adults in
either apartment. G.F. testified that she went into Aunt Telma's
apartment to retrieve a deck of cards from her aunt's bed that she had
left there and heard someone eating in the kitchen. As she was leaning
on the bed to get the cards, G.F. said, "somebody jumped behind me and
touched me in an inappropriate way."*fn3 G.F.
specified that it was appellant, and that he "push[ed] [her] towards
the bed" with his pelvis, spread her legs apart, squeezed her
buttocks, and "rubbed" her right breast over her clothes. She
testified that appellant was also attempting to get his hand "inside
[her] shirt." G.F. kicked backward to get appellant off of her and he
warned her, in Spanish, "Don't tell nobody or I'll hurt you." G.F.
then returned to appellant's apartment to be with her sister and
cousins. Upset and crying, she told them what had happened in Aunt
Telma's apartment. G.F. also told Aunt Telma about the encounter when
she returned home later that day. G.F. did not tell her mother about
the incident at that time because she was afraid appellant would hurt
her. Eventually, she decided "[t]hat [she] needed to stop being afraid
of people," and she told her mother. G.F. could not recall whether it
has been "days, weeks, months, [or] years" until she mustered the
courage to tell her mother.
G.F. could not remember when the encounter occurred, and could not recall if the incident happened when she was in school or during the summer. G.F. did remember that her mother was working at a gas station at the time of the incident; her mother later testified that she worked at a gas station from November of 2007 to July 13, 2008. The prosecutor argued that the abuse occurred during the two months that G.F. lived in her aunt's apartment, from August to September 2008.
G.F.'s mother, Josephine Roa, testified that G.F. told her about the encounter with appellant on September 18, 2008, the day of her granddaughter's birthday. Roa stated that G.F. was "crying" and "very upset," but that she did not take G.F. to a doctor after learning of the assault. Roa also testified that she wrote down a statement of what her daughter told her and gave it to a social worker the school had called.
At the close of the government's evidence, defense counsel moved for a judgment of acquittal, arguing "that the government has not proven beyond a reasonable doubt that the alleged abuse occurred reasonably close to the dates within the [I]nformation," from March 20 to September 16, 2008.
The defense focused on the credibility of G.F., in particular, her inability to recall the date and details of the encounter and inconsistencies in the accounts she gave to different people. Counsel also questioned G.F. about a prior inconsistent statement she had made at the Children's Advocacy Center where she claimed appellant had touched her on the chest.*fn4
The defense called four witnesses to point out inconsistencies in G.F.'s account. First, twelve-year-old M.F. confirmed that her sister, G.F., told her that appellant had touched her inappropriately on her chest and "private stuff." She also testified, however, that the assault occurred at Aunt Telma's apartment "a long time ago" and that she did not remember G.F.'s age at the time of the incident. M.F. did recall that G.F. told their mother about the incident two days after they started school at Truesdell Elementary. Second, the defense called G.F.'s cousin, twelve-year-old M.L., who testified that G.F. told her about the incident about "five years" before trial, when M.L. was seven years old. She also said that G.F. was not living with her at Aunt Telma's apartment at the time of the incident. Third, the defense called Aunt Telma, who testified that G.F. and her family lived in her apartment "around September," before she left to go to El Salvador on October 1, 2008. Aunt Telma also recounted for the court an incident that occurred "four or five years ago" in which G.F. and M.L. were fighting on a bed and appellant pushed G.F. off the bed to break up the fight. Lastly, the defense called Metropolitan Police Department (MPD) Detective Maria Flores, who testified that G.F. had told her that appellant had touched her under - not over - her shirt. The defense presented evidence that G.F. was motivated to fabricate the allegation of abuse against appellant. At the time of the incident, G.F. lived with fourteen people, including her mother, brothers, and sisters, in a one-bedroom apartment with her Aunt Telma's family. G.F. testified that she did not like living in the apartment because the family "w[as] too squished in there." Aunt Telma testified that she once overheard G.F. tell M.L., "[T]his is the way you use your brain when your mom and your dad doesn't [sic] have any place to live, you . . . think about it and do something about it and try to take someone out of the apartment," or "try to help your mom where she can get an apartment."
The defense renewed its motion for judgment of acquittal, which the trial court denied. During closing arguments, both parties focused on whether the government had established beyond a reasonable doubt that the offenses occurred on a date reasonably near the dates - between March 20 and September 16, 2008 - alleged in the Information. The trial court reserved ruling until the following day, and allowed both parties to submit briefs on the issue in light of this court's decision in In re E.H., 967 A.2d 1270 (D.C. 2009).*fn5
The trial court found that the incident had "occurred between August and September 2008," based on his belief that G.F. was living with her Aunt Telma at the time and had told her mother "that it occurred approximately two days before school began whe[n] she would enter Truesd[ell] Elementary."*fn6 The trial court found appellant guilty of two counts of sexual abuse, merged the two counts, and sentenced appellant to 180 days of incarceration, execution of the sentence suspended, two years of supervised probation, and ordered appellant to pay a $100 fine to the Victims of Violent Crime Compensation Fund. The court also ordered appellant to stay away from G.F., prohibited his unsupervised contact with minor children (including his own children), and required appellant to register as a Class B sex offender.*fn7 Appellant filed a timely notice of appeal.
II. Sufficiency of the Information
The Information against appellant charged him with two counts of engaging in sexual contact with G.F. "[b]etween on or about March 20, 2008, and September 16, 2008." Appellant contends that the Information failed to provide adequate notice of the charges against him in that it lacked particularity about the date and time of the alleged offense. The government asserts that appellant waived this claim by failing to raise the issue within ten days of arraignment,*fn8 see Super. Ct. Crim. R. 47-I, and that, in any event, appellant was not prejudiced by the lack of greater specificity in the Information.
"An indictment or other charging document must assert a plain and concise statement of an alleged offense sufficient to put the accused on notice of the nature of the offense charged." Patterson v. United States, 575 A.2d 305, 305 (D.C. 1990) (per curiam). We have adopted a two-part test for determining whether an indictment or information is overly broad: "[(1)] whether [the indictment or information] gives the defendant adequate notice of the charges against him so that he can prepare a defense[;] and [(2)] whether, if he is later charged with a similar offense, he may successfully assert a claim of double jeopardy." Olafisoye v. United States, 857 A.2d 1078, 1086 (D.C. 2004).*fn9 If this standard is met, it is not material that the indictment could have been made more definite or certain. See Pearsall v. United States, 812 A.2d 953, 960 (D.C. 2002). "[I]n the absence of demonstrable prejudice, we may not reverse." Craig v. United States, 490 A.2d 1173, 1176 (D.C. 1985).
The charging document here, though far from specific, was not overly broad under the circumstances. Appellant does not dispute that the Information provided adequate notice of the offenses with which he was charged, and the nature of the alleged conduct he would have to defend at trial.*fn10 At the pre-trial hearing, the prosecutor added the exact location where the sexual conduct allegedly took place, 710 Jefferson Street, N.W. The question is whether the six-month range that the Information identifies as the time during which the incident occurred was overly broad. "Good pleading undoubtedly requires an allegation that the offense was committed on a particular day . . . but it does not necessarily follow that the omission to state a particular day is fatal." Olafisoye, 857 A.2d at 1086. In cases involving children similar to the one before us, we have "tolerated some generality as to dates so long as the defendant has not suffered substantial prejudice" because "[a] young victim of rape or sexual molestation often cannot be expected to recall exact dates and times." Roberts, 752 A.2d at 589. Here as well, we tolerate a certain amount of imprecision as to the date of the offense in light of G.F.'s young age, the threats she said appellant made to her, and the traumatic nature of the experience, all of which may have contributed to her difficulty in recollecting the precise date of the abuse. We recognize that the cases we have decided to date have involved multiple or continuing offenses,*fn11 whereas here, appellant was charged with two offenses that were part of a single incident on one day. There may be cases, even involving children, in which a six-month time frame in an information or indictment charging a single instance of abuse cannot stand because it will not suffice to permit a defendant and counsel to investigate and formulate a defense. But this is not such a case. Appellant knew the complaining witness and the other witnesses in the case and was familiar with the location where the offense was alleged to have occurred. Moreover, we see no substantial prejudice to appellant caused by the six-month date range in the Information because appellant's theory of defense was a general denial of the allegations,*fn12 rather than a more specific defense centered on a precise offense date.*fn13 Cf. Roberts, 752 A.2d at 587 (recognizing that a defendant may face difficulty in preparing an alibi defense "where the date of the alleged wrongdoing has not been identified"). Thus, we think appellant had fair notice of the charges against him, even if he was not informed of the specific date when the offense was alleged to have occurred. Therefore, "[wi]th regard to the purpose [of an information] of informing an accused of what he must be prepared to meet," appellant "could not have been misled in any meaningful way" by the six-month date range. See Nichols v. United States, 343 A.2d 336, 344 (D.C. 1975).
Further, appellant faces no significant risk of double jeopardy caused by the six-month date range in the Information. If appellant were charged again with the same type of offense, he would have at his disposal a well-developed evidentiary record, two days of trial testimony, and the factual findings by the trial court that the specific acts of sexual abuse of which he was convicted in this case took place between August and September 2008. This record, we are confident, is "sufficiently detailed to preclude a second prosecution for the same offense." Craig, 490 A.2d at 1177; see Nichols, 343 A.2d at 343 ("In the unlikely event that [appellant] were charged again with the same crimes, the entire record would be available to [him] to show the offenses here.").
Because "an indictment which adequately protects these interests of fair notice of the charges and avoidance of future prosecutions will not be dismissed," Pearsall, 812 A.2d at 961, we conclude that the six-month date range in the Information does not warrant reversal of appellant's convictions.
III. Sufficiency of the Evidence
Appellant argues that the government failed to produce any evidence from which a reasonable fact-finder could have concluded beyond a reasonable doubt that he assaulted G.F. during the six-month period alleged in the Information. "[W]hen an indictment charges that the offense occurred 'on or about' a certain date, as it did here, a defendant is on notice that a particular date is not critical." Jones v. United States, 716 A.2d 160, 166 (D.C. 1998). Therefore, "[t]he evidence will conform to the indictment . . . if it establishes that the offense was committed on a date reasonably close to the one alleged." Id. Here, the Information alleged that the offense occurred "[b]etween on or about March 20, 2008 and September 16, 2008."
Our standard of review in a challenge to the sufficiency of the evidence is well-settled. "We view the evidence in the light most favorable to the government, recognizing the province of the trier of fact to weigh the evidence, determine the credibility of the witnesses and to draw reasonable inferences from the testimony." Dickerson v. United States, 650 A.2d 680, 683 (D.C. 1994). We will reverse a conviction for insufficiency of the evidence only if the government has produced "no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt." Anderson v. United States, 857 A.2d 451, 463 (D.C. 2004); see Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc) ("A court must deem the proof of guilt sufficient if, 'after viewing the evidence in the ...