State of Utah v. Tucker

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Greg Tucker,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990275-CA

F I L E D
December 14, 2000 2000 UT App 356 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
D. Bruce Oliver, Salt Lake City, for Appellant
William L. Benge, Moab, for Appellee

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Before Judges Greenwood, Billings, and Davis.

DAVIS, Judge:

Defendant argues the trial court erred by allowing the State to proceed to trial on the theory that defendant violated an ex-parte order of protection because the State never specified under which order of protection it was prosecuting in a bill of particulars.(1) Defendant requested a bill of particulars several months before trial, and the State referred him to the information filed against him instead of specifying which of the two orders of protection was violated. Thus, the issue before us is whether the State fulfilled its obligation in this case to furnish defendant with a bill of particulars by merely referring to the information.

A bill of particulars is required upon timely written request. See Utah Const. art. I, § 12 (declaring accused has right to demand nature and cause of accusation against him); Utah Code Ann. § 77-14-1 (1999) (stating, upon demand by defendant, prosecutor must specify place, date, and time of offense); State v. Solomon, 93 Utah 70, 75, 71 P.2d 104, 106 (1937) (holding that granting a bill of particulars was not discretionary with the court, but is a statutory right). When reviewing a trial court's interpretation of a statute, we apply a correction of error standard without deference to the trial court. See State v. Mecham, 2000 UT App 247,¶20, 9 P.3d 777.

"[A] bill of particulars shall be limited to a statement of factual information needed to set forth the essential elements of the particular offense charged." Utah R. Crim. P. 4(e). If defendant is in doubt as to the nature and cause of the accusation against him, the bill of particulars should provide the facts which the State proposes to prove. See State v. Robbins, 102 Utah 119, 123, 127 P.2d 1042, 1044 (1942). A bill of particulars does not expand the inquiry beyond the elements of the crime charged; however, particulars of the charge in the information must be given. See State v. Spencer, 101 Utah 274, 281, 117 P.2d 455 (1941). It is well settled that the purpose of a bill of particulars is to inform the defendant of the particulars of the alleged offense to sufficiently enable him to prepare a defense. See State v. Jameson, 103 Utah 129, 132-33, 134 P.2d 173, 175 (1943).

A defendant in the State of Utah "is entitled as a matter of right to both a bill of particulars and a specification of the date, place, and time of the charged crime." State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991); see also State v. Fulton, 742 P.2d 1208, 1214 (Utah 1987); State v. Robbins, 709 P.2d 771, 773 (Utah 1985). The question we examine is whether "'a criminal defendant [is] sufficiently apprised of the particulars of the charge to be able to "adequately prepare his defense."'" Wilcox, 808 P.2d at 1030 (quoting State v. Fulton, 742 P.2d 1208, 1214 (Utah 1987) (quoting State v. Burnett, 712 P.2d 260, 262 (Utah 1985))). The "adequacy of notice inevitably draws us into a generalized weighing of the completeness of the notice and its adequacy for the defendant's purposes against the background of the information legitimately available to the prosecuting attorney." Wilcox, 808 P.2d at 1032.

Although this statutory right can be waived, here it was not; defendant requested the bill of particulars several months before the start of the trial. Cf. id. at 1230; Fulton, 742 P.2d at 1215. In addition, immediately before the trial, defense counsel brought to the court's attention the State's failure to respond to the demand for a bill of particulars, and that because of that lack of response, defendant did not know which order of protection he allegedly violated.(2)

In the case before us, no particulars were given outside of the statute being charged, the date, and the county where the offense occurred, all of which were given in the information. The information neither specified which of the protection orders defendant allegedly violated, nor did the prosecutor ever clarify this information, even after defendant filed a request for discovery and a bill of particulars. Defendant, here, had a statutory right to know which protection order he was accused of violating.

Thus, because defendant requested a bill of particulars and the State did not specify which of the orders of protection was violated, we reverse and remand for a new trial.
 
 
 

______________________________
James Z. Davis, Judge ----- WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Judith M. Billings, Judge

1. The State elected to forego filing a brief on appeal.

2. However, violating either an ex-parte order of protection or a permanent order of protection is prohibited by Utah Code Ann. § 76-5-108 (1999). See State v. Rudolph, 970 P.2d 1221, 1233 (Utah 1998).