Appeal from the District Court of Laramie County The Honorable Nicholas G. Kalokathis, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] The appellant was charged by Information with two counts of first-degree sexual assault and three counts of third-degree sexual assault. A jury found him guilty of all five crimes. The appellant contended below, and contends again on appeal, that the Information and its supporting affidavit afforded him insufficient notice of the charges against him, that the verdict form was flawed, and that the district court improperly allowed amendment of the Information to conform to the evidence. Finding no error, we affirm.
[¶2] 1. Did the Information and Affidavit of Probable Cause adequately inform the appellant of the nature and cause of the accusation against him, as required by the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Wyoming Constitution, and of the essential facts constituting the offense charged, as required by W.R.Cr.P. 3(b)(2)?
2. Was there a fatal variance between the charges contained in the Information and the charges proven at trial, such as to deprive the appellant of his right to due process of law or his right to notice under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Wyoming Constitution?
3. Did the district court abuse its discretion or deprive the appellant of his right to due process of law or his right to notice under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Wyoming Constitution by granting the State's motion to amend Count I of the Information, after the State had rested and after the appellant had moved for a judgment of acquittal?
[¶3] The victim in this case is a female juvenile who was less than fourteen years of age during all times mentioned herein, and who sometimes lived with her mother and sometimes lived with her grandmother.*fn1 The appellant moved into the basement of the grandmother's house in August or September of 2005.*fn2 He moved out in March of 2007. On March 27, 2007, the victim told her grandmother that the appellant had been ―raping‖ her. A medical examination revealed healed notches and tears in the victim's hymen, irregular tissue and formation of the hymen, and red tears and healed tears in her rectum.
[¶4] The primary issue in this case is whether there was a variance between the facts underlying the original charges and the facts proven at trial. Consequently, we will set out the facts as they appeared at various stages of the proceedings. The five counts of the Information were in statutory format, with the following relevant factual allegations:
1. Count I alleged forcible sexual intrusion between June 1, 2004 and July 31, 2004.
2. Count II alleged forcible sexual intrusion between November 1, 2003 and January 31, 2007.
3. Count III alleged sexual contact with a victim under the age of fourteen years between November 1, 2003 and January 31, 2007.
4. Count IV alleged sexual contact with a victim under the age of fourteen years between November 1, 2003 and January 31, 2007.
5. Count V alleged sexual contact with a victim under the age of fourteen years between November 1, 2003 and January 31, 2007.
[¶5] The Affidavit of Probable Cause filed in support of the Information, which Affidavit was signed by the investigating officer, contained the following relevant factual allegations:
3. That between the 1st day of November, 2003 and 31st day of January, 2007, in Laramie County, Wyoming, 51-year-old Kenneth Nathaniel Spagner did commit multiple acts of sexual intrusion on [the victim].
That on 3/28/07, [the victim] reported to Cheyenne Police Officer L. Koeppel that Kenneth Spagner tried to ―stick his ‗thingie' (penis) inside of her‖ on several occasions within the past several years.
That [the victim] also stated the last incident was in January of this year (2007) in which Kenneth Spagner told her to take off her clothes and lay down. Kenneth then took off his clothes and laid on top of her.
That [the victim] stated Kenneth Spagner has tried to stick his ―thingie‖ in her butt.
That Kenneth Spagner told [the victim] if she told anyone, she would ―end up like the missing girls on TV.‖
That [the victim] said the incidents occurred in her [grandmother's] home.
That on 3/30/07 I, Detective J.F. Gay III, was assigned follow-up ...