J.B. v. State (In re J.B.)

J.B. v. State (In re J.B.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of J.B.,
 a person under eighteen years of age.

______________________________

J.B.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION (Not For Official Publication)
Case No. 20020637-CA
F I L E D
(April 24, 2003)
 

2003 UT App 123

 

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Third District Juvenile, Salt Lake Department

The Honorable Robert S. Yeates

Attorneys: Douglas H. Weaver and Sam N. Pappas, Salt Lake City, for Appellant

Mark L. Shurtleff, Annina M. Mitchell, and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Orme.

DAVIS, Judge:

J.B. argues that he was denied due process because a variance in the time of the alleged offense existed between the petition and the trial court's findings of fact.(1) "Where there has been a material variance, relief should be granted on appeal." State v. Marcum, 750 P.2d 599, 601-02 (Utah 1988). "A variance is material if it actually prejudices the accused with respect to a substantial right, or where the information is so defective that it results in a miscarriage of justice." Id. at 601. "However, if a defendant's substantial rights are not prejudiced, a variance in the evidence from the date alleged in the information is not grounds for reversal so long as the evidence supports a conviction for the offense within the statute of limitations." Id. at 602.

In this case, J.B. established that a variance existed between the time alleged in the petition and the time in the findings of fact; however, he did not show how this variance prejudiced his substantial rights. J.B. does not contest the findings of fact and does not deny the offense. He also does not raise any issue on appeal where time is a factor.(2) Instead, he argues that the variance violated his due process rights simply because it was "too great a variance." However, the mere existence of a variance does not make the variance material. See id. ("[I]f a defendant's substantial rights are not prejudiced, a variance in the evidence from the date alleged in the information is not grounds for reversal."). Thus, Defendant failed to show a material variance for which relief should be granted.

Therefore, we affirm.

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James Z. Davis, Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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Gregory K. Orme, Judge

1. The petition alleged that J.B. committed the offense "on or about July 2000;" whereas, following the trial held March 29, 2002, the trial court found the offense occurred "about a year ago."

2. Utah Supreme Court cases "make it clear that the time an offense was committed is generally not an element which the prosecution must prove at trial." State v. Fulton, 742 P.2d 1208, 1213 (Utah 1987). However, "there are instances in which time must be proven," including "when time is an express statutory element," "when the defendant argues that the statute of limitations has run on the alleged crime," or "when a defendant asserts that the age of either the victim or the defendant prevents the act from being criminal or reduces the potential punishment." Id. No such circumstance is present in this case.