State v. Volosin (Jefferey) ( 2015 )

 allegations forwarded his report to the Carson City Sheriffs Department.
Without further investigation, the State filed an information alleging that
Volosin had committed ten counts of sexual assault with a child under age
- fourteen and two counts of lewdness with a child under age fourteen.
The district court dismissed the information on the grounds
that the charges did not allege the dates with enough specificity to give
Volosin adequate notice and that a number of the counts alleged multiple
offenses within a single count. The district court allowed the State to
amend the information to cure the defects. After the State failed to file an
amended information, the district court dismissed the information.
DISCUSSION
On appeal, the State argues that the district court abused its
discretion by (1) dismissing the information for failing to allege
timeframes as close to the exact dates as possible, (2) dismissing counts
six through twelve for alleging multiple offenses in each count, and (3)
dismissing the State's case after the State failed to timely file an amended
information.
This Court reviews a district court's dismissal of a charging
document for abuse of discretion. Hill v. State, 124 Nev. 546, 550, 188
P.3d 51, 54 (2008). However, "we review de novo Whether the charging
document complied with constitutional requirements." West v. State, 119
Nev. 410, 419, 75 P.3d 808, 814 (2003).
The district court did not abuse its discretion by dismissing the
information for failing to allege timeframes as close to the exact dates as
possible
The State argues that the district court abused its discretion
by dismissing the information on the basis that it violated Volosin's due
process rights because the State could have alleged narrower timeframes
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in Counts I to V and IX and failed to demonstrate that the timeframes in
the remaining counts were as close to an exact date as possible.
The Sixth Amendment of the United States Constitution
provides that "[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be informed of the nature and cause of the accusation." The
Fourteenth Amendment prohibits the State from depriving a person of
"life, liberty, or property, without due process of law." Accordingly, the
United States Supreme Court has held:
The object of the indictment is, first, to furnish the
accused with such a description of the charge
against him as will enable him to make his
defen[s]e, and avail himself of his conviction or
acquittal for protection against a further
prosecution for the same cause; and, second, to
inform the court of the facts alleged, so that it may
decide whether they are sufficient in law to
support a conviction, if one should be had . . . . A
crime is made up of acts and intent; and these
must be set forth in the indictment, with
reasonable particularity of time, place, and
circumstances.
United States v. Cruikshank, 92 U.S. 542, 558 (1875) (emphasis added).
Additionally, NRS 173.075 requires that an indictment or information
contain "a plain, concise and definite written statement of the essential
facts" of the charged offense.
In Cunningham v. State, this court addressed a similar issue
to the one in the present case. 100 Nev. 396, 683 P.2d 500 (1984). In
Cunningham, the State filed a criminal information that alleged that the
defendant sexually assaulted a fourteen-year-old girl "on or about the
calendar year of 1981," and on two other occasions "on or about the
calendar years of 1981 and 1982, but prior to November 15, 1982." 100
Nev. at 400, 683 P.2d at 502 (internal quotation marks omitted). This
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court rejected the defendant's argument that the information was deficient
because it did not allege the exact date of the offense. Id. This court noted
that the State may give an approximate date on which it believes a crime
occurred when, as here, time is not an essential element of the offense. Id.This court noted that cases involving child victims "pose
special problems for the state in attempting to allege the exact date of the
commission of the crime," because the child victim often lacks the ability
to recall with any precision exact dates of offenses. Id. This is especially
problematic in sexual abuse cases because there are usually no witnesses
other than the victim and the assailant. Id. In the case of sexual abuse by
family members, such problems are compounded by the child victim's
reluctance to tell anyone until long after the abuse occurred. Id. This
court cited the Idaho Supreme Court in concluding that the State did not
have an absolute obligation to allege the dates with any greater
particularity:
It would be a very weak rule of law that would
permit a man to ravish a fifteen year old girl . . .
and then say in effect: "You cannot convict me of
this crime, as you did not guess the right date."
Id. at 400-01, 683 P.2d at 502 (quoting State v. Rogers, 283 P. 44, 45
(Idaho 1929)).
Still, failure to allege any date whatsoever "would clearly
deprive the defendant of adequate notice of the charge against him," thus
"the state should, whenever possible, allege the exact date on which it
believes a crime was committed, or as closely thereto as possible." Id.Therefore, Cunningham explores how the State's obligation to provide
defendants with a sufficiently detailed charging document may come into
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tension with pursuing sex abuse cases where certain important details
simply are not available.'
A number of jurisdictions have approached this tension in
different ways. See State v. Baldonado, 955 P.2d 214, 219-20 (N.M. Ct.
App. 1998) (surveying the approaches taken by various jurisdictions).
Some have simply concluded that because time is not an element of the
offense, the state is not required to address the timeframe in the
indictment. See, e.g., Dilbeck v. State, 594 So. 2d 168, 174 (Ala. Crim App.
1991). This approach ignores the constitutional notice dimension outlined
in Cunningham, and thus such cases are inconsistent with this Court's
jurisprudence. See Cunningham, 100 Nev. at 400, 683 P.3d at 502 (noting
'The State relies on two other cases where this court has addressed
the sufficiency of evidence supporting a conviction in light of a child
victim's inability to recall the exact instances of abuse. Rose v. State, 123
Nev. 194, 163 P.3d 408 (2007); LaPierre v. State, 108 Nev. 528, 836 P.2d
56 (1992). These cases are inapposite, however, because they each involve
the question of sufficiency of the evidence to support a conviction, which
does not involve the constitutional issue of notice to the defendant.
The State also cites an unpublished disposition in a case
where this court upheld a jury conviction with a criminal information very
similar to the one in this case. Caron v. State, No. 58792, 2012 WL
5992095 (Order of Affirmance, Nov. 29, 2012). This is problematic for two
reasons: First, SCR 123(1) provides that an unpublished order shall not
be cited as legal authority except when the order is relevant under the
doctrines of law of the case, res judicata, or collateral estoppel. The State
recites this rule before proceeding to discuss Caron, but fails to explain
how any of those exceptions apply. Second, even as persuasive authority,
the case is inapposite, as the sufficiency of the criminal information was
not addressed in the unpublished order. Accordingly, we disregard the
State's citations to Caron.
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that the State should allege the timeframe with specificity to the extent
possible).
Other jurisdictions note that time is not an element of the
offense and allow the State to avoid any notice-related issues through full
discovery. See, e.g., State v. Wilcox, 808 P.2d 1028, 1033 (Utah 1991). In
Wilcox, the Utah Supreme Court held that the lack of a specific timeframe
"goes not to the constitutional adequacy of the notice, but to the credibility
of the State's case." Id. Again, this approach does not appear to
sufficiently address the problem of adequate notice. Additionally, such an
approach may discourage effective investigation. The present case serves
as such an example. The entire investigation was performed by a
California detective investigating crimes that occurred in his jurisdiction.
Any crimes that occurred in Carson City were not the focus of the
California investigation. The report arising from the California
investigation was forwarded to the Carson City Sheriffs Department, but
the Carson City District Attorney appears to have filed the information
without performing any independent investigation.
The most persuasive approach is to review whether an
indictment is reasonably particular with respect to the time of the offense
on a case-by-case basis. See, e.g., Baldonado, 955 P.2d at 220; Erickson U.
People, 951 P.2d 919, 925 (Colo. 1998); State v. Mulkey, 560 A.2d 24, 30
(Md. 1989); State v. Martinez, 541 N.W.2d 406, 414 (Neb. Ct. App. 1995),
aff'd, 550 N.W.2d 655, 658-59 (Neb. 1996); In re K.A.W., 515 A.2d 1217,
1222-23 (N.J. 1986); People v. Morris, 461 N.E.2d 1256, 1260-61 (N.Y.
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1984); State v. Fawcett, 426 N.W.2d 91, 94-95 (Wis. Ct. App. 1988). 2 Such
an approach is consistent with our decision in Cunningham, where we
held that although sex abuse cases present special challenges, "the state
should, whenever possible, allege the exact date on which it believes a
crime was committed, or as closely thereto as possible." Cunningham, 100
Nev. at 400, 683 P.2d at 502. Based on an individualized inquiry as to the
reasonableness of the timeframes alleged in the State's information, we
conclude that the State failed to allege the dates of abuse with sufficient
specificity.
Of particular note in this case is the glaring absence of an
investigation into the abuse allegations by the State. In Fawcett, the
Wisconsin Court of Appeals noted that when considering the
reasonableness of timeframes alleged, it is useful to ask whether "the
2In particular, Fawcett lays out seven nonexhaustive factors to determine
on a case-by-case basis whether the information or indictment is too vague
to satisfy the Sixth Amendment's notice requirement:
(1) the age and intelligence of the victim and other
witnesses; (2) the surrounding circumstances; (3)
the nature of the offense, including whether it is
likely to occur at a specific time or is likely to have
been discovered immediately; (4) the length of the
alleged period of time in relation to the number of
individual criminal acts alleged; (5) the passage of
time between the alleged period for the crime and
the defendant's arrest; (6) the duration between
the date of the indictment and the alleged offense;
and (7) the ability of the victim or complaining
witness to particularize the date and time of the
alleged transaction or offense.
426 N.W.2d at 95.
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prosecutor is able but has failed to obtain more specific information due to
a lack of diligent investigatory efforts." 426 N.W.2d at 94-95 n.2 (citing
Morris, 461 N.E.2d at 1260). 3 In the present case, the district court held a
hearing to determine whether the State could have indicated the
timeframe with more particularity. In that hearing, the State argued that
it was not required to do so, and brought no evidence of any investigation
beyond the report it received from the California investigation. The
hearing demonstrated that the State made no additional effort to
investigate the crimes. Indeed the State appears to have failed to even
interview the victims who were, at that point, eighteen and fifteen years
old, and presumably more capable of conveying useful information than
younger victims would be. 4
3 In rejecting the Fawcett defendant's writ of habeas corpus, the
Seventh Circuit adopted a more objective approach, instead asking
whether the charge "contains the elements of the crime, permits the
accused to plead and prepare a defense, and allows the disposition to be
used as a bar in a subsequent prosecution." Fawcett v. Bablitch, 962 F.2d
617, 618 (7th Cir. 1992) (citing Ham,ling v. U.S., 418 U.S. 87, 117 (1974)).
Because this case was a post-conviction habeas review, it appears to set a
lower bar than most state courts that have addressed this issue. See id. at
619 ("Federal courts engaged in collateral review of state judgments do not
superintend the 'reasonableness' of prosecutors" conduct or state judges'
decisions.").
4 The State argues that further interviews of the child victims would
have compromised the victims' competency to testify, citing Felix v. State,
109 Nev. 151, 173, 849 P.2d 220, 235 (1993), superseded on other grounds
by statute as stated in Evans v. State, 117 Nev. 609, 625, 28 P.3d 498, 509-
10 (2001)). Felix involved the testimony of two children testifying about
allegations of abuse that occurred a number of years earlier. Felix, 109
Nev. at 156-57, 849 P.2d at 224-25. We held that district courts must
evaluate a child's competency to testify on a case-by-case basis, and listed
a number of factors to consider. Id. at 173, 849 P.2d at 235. According to
continued on next page...
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We conclude that the district court correctly held that the
State's charging document must allege sufficiently precise timeframes to
provide adequate notice to defendants. Further, giving deference to the
district court's factual findings, we conclude that the district court did not
abuse its discretion by dismissing the present information for failing to
allege the timeframes as specifically as possible. Cunningham, 100 Nev.
at 400, 683 P.2d at 502; Fawcett, 426 N.W.2d at 94-95 n.2.
The district court did not abuse its discretion by dismissing the remaining
counts
The State argues that the district court abused its discretion
by dismissing Counts VI to XII, which according to the district court
violate the requirement that different offenses be charged in different
counts."
Although there is a great deal of case law from other
jurisdictions dealing with the issue of duplicity in the context of long-term
sexual abuse, the only authorities mentioned in the briefs are NRS
173.115, which allows the State to charge multiple counts in the same
indictment or information, and the State's unhelpful reliance on a single,
...continued
the State, it did not conduct further interviews of T.C. and S.C. in order to
avoid tainting their testimony through apparent coaching. T.C. reported
abuse that had been ongoing from age six until just eight days prior to
contacting South Lake Tahoe Police Department when she was fifteen
years old. S.C. made her statement to the California authorities when she
was eighteen years old. Accordingly, the issues of child testimony raised
by Felix are inapplicable here. Furthermore, reliance on Felix does not
explain why the State was unable to make other efforts to narrow the date
range besides further interviews of the victims.
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inapposite case. 5 Accordingly, we affirm the district court's decision on the
sole basis that the State's argument is not adequately argued or
supported. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987)
(noting that this court need not consider allegations of error not cogently
argued or supported by any pertinent legal authority).
The district court did not abuse its discretion by dismissing the State's case
after the State failed to timely file an amended information
The State argues that the district court improperly restricted
the State's prosecutorial discretion by giving the State the opportunity to
amend the information. The State mischaracterizes the district court as
having ordered it to file a proposed amended information for the court's
approval. The district court clearly stated that if the State wanted to
avoid dismissal, the State had the option to file an amended information.
The district court's order did not mention anything about submitting a
proposed amended information. Rather, the district court dismissed the
original information and stated that justice required that the State be
allowed to amend the defective information or face dismissal. We
conclude, therefore, that this argument lacks merit.
Accordingly, we
5 The State cites Wilson v. State, 121 Nev. 345, 114 P.3d 285 (2005).
to support its argument that each and every act does not necessarily need
to be charged as a separate count. The State's reliance on Wilson is
unhelpful, however, as Wilson found that a single act of using a minor in
the production of pornography could only be charged once when four
photographs were taken in the course of that single act. Id. at 358, 114
P.3d at 294. Conversely, this case involves repeated sexual assaults, each
of which does form a separate offense.
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ORDER the judgment of the district court AFFIRMED.
Pickering
J.
Parraguirre
Saitta
cc: Hon. James E. Wilson, District Judge
Attorney General/Carson City
Carson City District Attorney
State Public Defender/Carson City
Carson City Clerk
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