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Larkin v. State (04/02/2004) ap-1922
Larkin v. State (04/02/2004) ap-1922
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LORY LARKIN, )
) Court of Appeals No.
A-8444
Appellant, )
Trial Court No. 2KB-02-161 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1922 April 2, 2004]
)
Appeal from the Superior Court, Second Judi
cial District, Kotzebue, Richard H. Erlich,
Judge.
Appearances: Robert D. Lewis, Nome, for the
Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Lory Larkin was indicted for second-degree sexual abuse
of a minor (engaging in sexual penetration with a minor under the
age of 16).1 The indictment charged that Larkins offense
occurred on or about February 1, 2001. At trial, the evidence
clearly showed that the victim was away at school starting in
January 2001, and thus the offense could have occurred no later
than the end of December 2000. Larkin claims that, given this
state of the evidence, he is entitled to a judgement of
acquittal.
Larkin seeks a judgement of acquittal, rather than a
reversal of his conviction and a retrial, because he argues that
the State took him to trial and then failed to prove its case.
Specifically, Larkin claims that because of the difference
between the date of the offense shown by the trial testimony and
the date specified in the indictment, reasonable people [would
have to agree] that the evidence [presented at trial] was
insufficient to establish [that] any crime was committed on or
about February 1, 2001.
But this is not truly a sufficiency of the evidence
argument. Rather, it is a variance argument. Larkin concedes
that the evidence presented at his trial was sufficient to
establish that he committed the crime of sexual abuse of a minor.
The problem, according to Larkin, is that the evidence showed
that the offense was committed no later than December 31, 2000
at least five weeks before the date specified in the indictment.
Even though the indictment says on or about February 1, 2001,
Larkin contends that the phrase on or about is not flexible
enough to encompass a variance of five weeks.
Larkin does not assert that this difference in dates
prejudiced his investigation of the case or the planning or
presentation of his defense. Rather, Larkins argument is a
technical one: he contends that an indictment charging the
commission of an offense on or about February 1, 2001 can not, as
a legal matter, support a conviction if the uncontroverted
evidence shows that the offense must have occurred at least five
weeks before that date.
For the reasons explained here, we hold that the date
on which an offense was committed is normally not an element of
that offense. Thus, a variance between the date specified in the
indictment and the date shown by the evidence at trial will
normally be deemed a defect of form (rather than a material
defect) for purposes of Alaska Criminal Rule 7(c), unless the
defendant can show that the variance prejudiced their ability to
prepare or present their defense at trial.
Because Larkin does not assert that the variance
prejudiced him, we affirm his conviction.
The common-law rule regarding variances in the date of
the offense, and the federal law on this subject
Even in the heyday of common-law pleading,
when a murder conviction could be overturned because
the indictment did not set forth the length and depth
of the [victims] mortal wounds or because the
indictment specified that the victim was stabbed in the
brest rather than the breast,2 the courts recognized
one aspect of criminal pleading where exacting
specificity was not required: the allegation as to the
date of the offense.
[T]he common law, although it required the
accusation to mention some date, did not
require the prosecution to stick to that
date; proof of any date within the period of
the statute [of limitations] would suffice to
convict.
Austin Scott, Fairness in the Accusation of
Crime, 41 Minnesota Law Review 509, 532
(1957).3
This same flexibility is carried
forward in the more lenient pleading rules
that govern modern criminal litigation:
Traditionally, time and place have been
viewed as not requiring great specificity
because [these factors] ordinarily do not
themselves constitute an element of [the]
crime. Thus, the time allegation can refer
to the event as having occurred on or about a
certain date and, within reasonable limits,
proof of a date before or after that
specified will be sufficient, provided it is
within the statute of limitations. [The
exception is for cases where] time is a
material element of the offense ... .
Wayne R. LaFave, Jerold H. Israel, and Nancy
J. King, Criminal Procedure (2nd ed. 1999),
19.3(b), p. 773.
LaFaves description of the law on
this point is echoed in Professor Charles
Alan Wrights treatise on modern federal
criminal procedure.4 Professor Wright states
that the Federal Rules of Criminal Procedure
allow substantial flexibility in the
indictments description of the date of the
crime:
[G]ood pleading still includes an
allegation that [the] offense was committed
on a particular day, month, and year, but a
defect in the allegation of the date is a
defect of form only. Obvious errors in the
date alleged will be ignored, and great
generality in the allegation of date will
suffice, though [a] defendant may be entitled
to a bill of particulars if the allegation is
too general to permit him to prepare his
defense. The allegation [of the date] is not
regarded as ... an essential element of the
crime, and, within reasonable limits, proof
of any date before the return of the
indictment and within the statute of
limitations is sufficient [unless] a
particular [date] is made material by the
statute creating the offense.
Federal Practice and Procedure Criminal (3rd
ed. 1999), 125, Vol. 1, pp. 573-77.
When Professor Wright describes a
discrepancy in the date as a defect of form
only, he is using a term of art. Federal
Criminal Rule 52(a) declares that [a]ny
error, defect, irregularity, or variance that
does not affect substantial rights must be
disregarded. This rule is derived5 from
former 18 U.S.C. 556, which stated:
No indictment found and presented by a
grand jury in any district or other court of
the United States shall be deemed
insufficient, nor shall the trial, judgment,
or other proceeding thereon be affected[,] by
reason of any defect or imperfection in
matter of form only, which shall not tend to
the prejudice of the defendant.
Thus, when Professor Wright says that a
variance between the date alleged in the
indictment and the date shown by the evidence
at trial is a defect of form, he means that
the variance will be disregarded, and will
not constitute a basis for overturning an
ensuing conviction, unless the variance
actually prejudiced the defendant.
Several federal cases have upheld
convictions when there was a variance of
weeks or even months between the date alleged
in the indictment and the date revealed by
the trial evidence. For instance, in United
States v. Kimberlin,6 the Fourth Circuit
held that the wording in or about July 1991
was not objectionable when the evidence
showed that the offense occurred in August
1991 (and there was no showing of prejudice).
In United States v. Antonelli,7 the First
Circuit held that an indictment was
sufficient when it alleged that the defendant
made the criminal threat on August 11, but
the testimony put the threat in either
September or October. The court noted that
the exact time of the commission of a crime
is not a substantive element of the
[governments] proof, and that the defendant
had not proved that he was prejudiced by the
variance. And in United States v. Reece,8
the Eighth Circuit held that the defendant
was not prejudiced by an indictment which,
due to a typographical error, alleged that
the crime was committed one year later than
it actually was.
A more striking application of this
rule is found in United States v. Hall, 632
F.2d 500 (5th Cir. 1980). The defendant in
Hall went to a grocery and cashed a womans
benefits check by forging her name and
endorsing the check over to himself. He was
charged with the federal offense of
possessing a check stolen from the mail.9
The indictment charged that Hall possessed
the stolen check on or about December 1,
1975.10
The evidence at Halls trial showed
that the check was mailed to the victim on
November 28, 1975, and that the victim never
received the check.11 An expert on
handwriting analysis testified that the
signature on the check, although purporting
to be the victims, had in fact been written
by Hall.12 But the date of the offense
remained cloudy. The government could prove
only that, at some point during the ensuing
nine months, Hall presented the check for
payment at the grocery.
A former grocery employee testified
that, based on the presence of her initials
on the check, the check must have been
presented for payment during the ten months
that she was employed by the grocery i.e.,
no later than September 1976.13 But the
government could not identify the date any
more precisely than that. Due to an
illegible bank transit stamp on the checks
reverse side, neither the dates of the checks
negotiation nor bank clearance could be
determined.14
On appeal, Hall argued that the
governments failure to prove the date alleged
in the indictment December 1, 1975
prejudiced his ability to defend himself by
hampering his ability to present an alibi.15
But the Fifth Circuit noted that the date of
the offense is generally not a material
element of the offense, and that
[a]ccordingly, the inability of the
government to prove the date of negotiation
with precision is not automatically fatal:
The offense could have occurred no earlier
than November 28, 1975, the date the check
was mailed, so the indictment [returned on]
March 13, 1979, was within the five-year
statute of limitations set forth in 18
U.S.C.A. 3282 (1970). The offense could
have occurred no later than September, 1976,
because the cashier [who accepted] the check
worked at the store only ten months ... .
Thus, the crime necessarily occurred prior to
the return of [the] indictment on March 13,
1979.
Hall, 632 F.2d at 503, n. 6. The court noted
that, because the underlying charge was
knowing possession of a stolen check, Halls
problem at trial was not to prove an alibi
for December 1, 1975, but rather to rebut the
evidence that he had forged the womans
signature on the check.16 Thus, the court
concluded, Hall failed to show that his
substantial rights were prejudiced by the
variance.
Alaska law on this subject
Alaska law has always followed the common-law
rule that the date of the offense is generally not
an element of the governments case, so long as the
offense occurred within the pertinent statute of
limitations. Alaskas earliest organized code of
criminal procedure Part II of the Carter Code of
1900 contained a provision specifically dealing
with variance as to the date of the offense. Here
is the text of Part II, 44 of the Carter Code:
That the precise time at which the crime
was committed need not be stated in the
indictment, but it may be alleged to have
been committed at any time before the finding
thereof, and within the time in which an
action may be commenced therefor, except
where time is a material ingredient in the
crime.
As can be seen, Part II, 44 embodied the
rule stated in Wright: the rule that proof
of any date before the return of the
indictment and within the statute of
limitations is sufficient.
The language of Carter Code, Part
II, 44 was carried forward, verbatim, in the
1913 Compiled Laws of Alaska ( 2153), the
1933 Compiled Laws of Alaska ( 5214),17 and
the 1949 Compiled Laws of Alaska ( 66-9-9).
Another section of Part II of the
Carter Code, 50, incorporated the same
federal approach to defects of form that was
codified in former 18 U.S.C. 556 (quoted
above). Here is the text of Part II, 50 of
the Carter Code:
That no indictment is insufficient, nor
can the trial, judgment, or other proceedings
thereon be affected[,] by reason of a defect
or imperfection in matter of form, which does
not tend to the prejudice of the substantial
rights of the defendant upon the merits.
This language was carried forward,
verbatim, in the 1913 Compiled Laws of Alaska
( 2159), the 1933 Compiled Laws of Alaska
( 5220),18 and the 1949 Compiled Laws of
Alaska ( 66-9-15). Following statehood, this
language (with only stylistic changes) was
incorporated into our present Alaska Criminal
Rule 7(c):
No indictment is insufficient, nor can the
trial, judgment[,] or other proceedings
thereon be affected, by reason of a defect or
imperfection in matter of form in the
indictment which does not tend to prejudice
the substantial rights of the defendant.
Given this legal history, we
readily conclude that Alaska law follows the
same rules described in LaFave and in Wright:
the rules that the date of the offense is
normally not a material element of the
offense, and that a variance between the date
specified in the indictment and the date
revealed by the evidence at trial will not
support an attack on the judgement unless the
variance prejudiced the defendants ability to
prepare or present their defense.
Our conclusion is bolstered by what
the Alaska Supreme Court said on this subject
in Selman v. State, 411 P.2d 217 (Alaska
1966). In Selman, the court approvingly
cited federal cases for rule that
the allegation that a crime was committed on
or about a certain date is sufficient, though
the precise time is not thereby stated,
except in cases in which time is an
ingredient of the offense. Such [an]
allegation is a formal and not a material
matter within the meaning of [former 18
U.S.C.A. 556], which provides that no
indictment shall be deemed insufficient by
reason of any defect in matter of form only.
411 P.2d at 224, n. 21.
Application of this law to Larkins case
Larkin was charged with sexually abusing a
minor. Regardless of whether Larkin committed
this offense in late 2000 (as the evidence showed)
or in early 2001 (as alleged in the indictment),
he was indicted for an act that took place before
the indictment was returned and that was within
the pertinent statute of limitations. Moreover,
at all times within this range of dates, Larkins
victim was under the age of 16. Thus, the date of
the offense was not a material element of the
States proof in Larkins case.
This means that the variance between the date
specified in Larkins indictment and the date shown by
the evidence at his trial will be deemed a mere defect
... in matter of form under Alaska Criminal Rule 7(c)
unless Larkin affirmatively shows that this variance
prejudiced his ability to prepare or present his
defense.19
But this is precisely what Larkin has failed
to do. As explained above, Larkin does not assert that
the variance concerning the date of the offense
prejudiced his investigation of the case or the
planning or presentation of his defense.
Instead, Larkins defense was that the victim
was lying and that the alleged sexual abuse never
happened. Larkin took the stand at his trial and
testified that he never had sex with the victim at any
time. He asserted that the victims accusation against
him stemmed from ill-will. Larkin conceded that, when
he was interviewed by the state troopers, it appeared
that he admitted engaging in sex with the victim. But
Larkin claimed that he had been confused that he had
thought the trooper was asking about another girl with
whom Larkin was having sex at the time.
The date of the crime was irrelevant to this
defense. As our supreme court noted in analogous
circumstances,
The failure of the ... indictment to name the
date ... was a defect or imperfection in
matter of form, within the meaning of [Alaska
Criminal Rule 7(c)], because the evidence
that [the defendant offered] in defense of
the charge ... was equally available [no
matter what the date].
Price v. State, 437 P.2d 330, 332 (Alaska
1968).
Thus, Larkins contention on appeal
reduces to the narrow and technical argument
that, as a matter of law, an indictment
charging the commission of an offense on or
about February 1, 2001 can not support a
conviction if the uncontroverted evidence
shows that the offense must have occurred at
least five weeks before that date. But as we
have explained here, that is not the law.
Indeed, from the days of Alaskas earliest
code of criminal procedure (more than a
century ago), that has not been the law in
Alaska.
A variance between the date alleged
and the date proved will not undermine a
criminal conviction unless the defendant
shows that the variance prejudiced their
substantial rights. Larkin does not allege
that his substantial rights were prejudiced.
Moreover, as explained above, the record
shows that Larkins defense to the charge did
not hinge on the date of the offense.
Accordingly, the judgement of the
superior court is AFFIRMED.
_______________________________
1 AS 11.41.436(a)(1).
2 Wayne R. LaFave, Jerold H. Israel, and Nancy J. King,
Criminal Procedure (2nd ed. 1999), 19.1(a), p. 733.
3 Quoted in Wayne R. LaFave, Jerold H. Israel, and Nancy J.
King, Criminal Procedure (2nd ed. 1999), 19.1(a), p. 733 n. 6.
4 Charles Alan Wright, Federal Practice and Procedure:
Criminal (3rd ed. 1999), 125, Vol. 1, pp. 571-77.
5 See Federal Advisory Committee on Rules, Note to Criminal
Rule 52(a).
6 18 F.3d 1156, 1159 (4th Cir. 1994).
7 439 F.2d 1068, 1070 (1st Cir. 1971).
8 547 F.2d 432, 434-35 (8th Cir. 1977).
9 Hall, 632 F.2d at 501.
10Id. at 504.
11Id. at 501, 503 n. 6.
12Id. at 502.
13Id. at 503 n. 6.
14Id. at 502.
15Id. at 503.
16Id. at 503-04.
17The text of 5214 of the 1933 Compiled Laws omits the
introductory that.
18The text of 5220 of the 1933 Compiled Laws omits the
introductory that.
19 See Berger v. United States, 295 U.S. 78, 82; 55 S.Ct.
629, 630-31; 79 L.Ed. 1314 (1935): The true inquiry ... is
not whether there has been a variance in proof, but whether
there has been such a variance as to affect the substantial
rights of the accused. The general rule that [the
governments] allegations and [its] proof must correspond is
based on the obvious requirements (1) that the accused shall
be definitely informed as to the charges against him, so
that he may be enabled to present his defense and not be
taken by surprise by the evidence offered at the trial; and
(2) that [the accused] may be protected against another
prosecution for the same offense. ... [I]f, upon an
examination of the entire record, substantial prejudice [of
this type] does not appear, [then] the error must be
regarded as harmless.
