Peo v. Campbell

20CA0091 Peo v Campbell 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0091

Mesa County District Court No. 18CR516

Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Daniel Campbell,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE HARRIS

Richman and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Philip J. Weiser, Attorney General, Trina Kissel, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-

Appellant

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¶ 1 After a bench trial, defendant, Robert Daniel Campbell, was

found guilty of one count of attempted sexual assault on a child

and four counts of sexual assault on a child as part of a pattern of

abuse.

¶ 2 His sole claim on appeal is that the trial court reversibly erred

by denying his motion for a bill of particulars. We affirm.

I. Background

¶ 3 The victim lived with her mother and brothers in Mesa County.

From August 2013 to January 2014, when the victim was ten years

old and in the fifth grade, her mother dated Campbell. Campbell

was at the house frequently, both during the day and at night. He

often helped mother with home improvement projects and then

stayed for dinner and watched movies with the family.

¶ 4 At the time, Campbell was on parole for a sex offense. As a

condition of parole, he wore an electronic ankle monitor that

recorded the time he left his house and the time he returned. He

was required to be at home between 10 p.m. and 6 a.m.

¶ 5 In late 2017 or early 2018, years after the relationship

between mother and Campbell had ended, the victim saw Campbell

in a supermarket and, according to her mother, “got really upset.”

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At a counseling session soon thereafter, the victim disclosed that

during the time Campbell had been a frequent visitor at the house,

he had sexually assaulted her on multiple occasions.

¶ 6 As a result of the disclosure, the People charged Campbell

with five counts of sexual assault on a child as part of a pattern of

abuse. The original complaint alleged that the assaults had

occurred between May 1, 2014, and August 20, 2014, but the

prosecution amended the complaint twice and ultimately charged

Campbell (in identically worded counts) with committing the

offenses between July 1, 2013, and December 31, 2014.

¶ 7 At the preliminary hearing, the lead detective testified about

the victim’s forensic interview. In the interview, the victim

recounted that on multiple occasions during the summer and

school year of fifth grade, Campbell came into her bedroom at night

and put his fingers and mouth in and on her vagina. The victim

also described an incident that occurred during the day in which

Campbell touched the victim’s vagina with his fingers while she was

watching television in her mother’s bedroom. The detective’s

testimony was generally consistent with her detailed, seven-page

affidavit in support of an arrest warrant filed six months earlier.

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¶ 8 Following the preliminary hearing, Campbell moved for a bill of

particulars. He acknowledged that in child sexual assault cases

involving repeated instances of abuse, the prosecutor need not

provide information regarding the specific time or details of the

charged offenses. Nonetheless, he summarily asserted that without

additional information he could not “properly defend against” the

charges. He did not mention an intent to pursue an alibi defense.

The court denied the request, concluding that Campbell could

obtain adequate information from the charging document, the

preliminary hearing testimony, and the discovery.

¶ 9 The case proceeded to a bench trial. By then, information

provided by Campbell’s former parole officer had confirmed that

Campbell had dated the victim’s mother from about August 13,

2013, to January 31, 2014. Thus, during his opening statement,

Campbell’s lawyer acknowledged that the allegations related to “a

period of time, just a short number of months, between 2013,

2014.”

¶ 10 As relevant here, the victim testified, consistent with the

detective’s testimony at the preliminary hearing, that on at least

four occasions during the time Campbell was associating with her

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mother, Campbell had come into her room in “the middle of the

night” and assaulted her.

¶ 11 Campbell presented a two-pronged defense. First, he argued

that he could not have committed the assaults because the

electronic ankle monitor records showed that he was home in “the

middle of the night,” which he defined as 11 p.m. to 3:30 a.m.

Second, to explain why the victim would fabricate the allegations,

Campbell presented evidence that his relationship with mother had

ended badly, and he posited that she had concocted the

accusations out of spite.

¶ 12 The court rejected both theories of defense. As for the records

defense, the court found that the electronic monitoring records

showed that Campbell had approximately a dozen curfew violations;

on at least six occasions he arrived home after 11 p.m., and on

three other occasions he left his house before 5 a.m. The court

noted that Campbell had failed to offer any explanation for the

violations. With respect to the fabrication defense, the court found

entirely implausible the idea that mother had first extensively

coached the victim and then put her through a nearly two-year

court case to spite Campbell for a breakup that occurred five years

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earlier. In the end, the court concluded that the case “ultimately

c[ame] down to the credibility of [the victim]” and determined that

the victim was credible. The court therefore found Campbell guilty

of four counts of sexual assault on a child as part of a pattern of

abuse and one count of attempted sexual assault on a child.

II. Bill of Particulars

¶ 13 On appeal, Campbell contends that the court violated his due

process rights by denying his request for a bill of particulars. He

says that without knowing more specifically when the assaults

allegedly occurred, he could not present an alibi defense using his

electronic monitoring records.

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A. Standard of Review

¶ 14 We review the trial court’s decision to grant or deny a bill of

particulars for an abuse of discretion. People v. Whitman, 205 P.3d

371, 385 (Colo. App. 2007).

1

Campbell says that with more specific information about the dates

of the alleged assaults, he also could have used work records to

refute the victim’s allegations. But he tried that at trial and was

unsuccessful, not because he did not know when the assaults

allegedly occurred but because his employer testified that he did

not work after dark, and the victim testified that with one exception,

the assaults occurred after dark, in “the middle of the night.”

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B. Analysis

¶ 15 The purpose of a bill of particulars is to enable a defendant to

properly prepare a defense in cases where the charging document is

so indefinite in its statement of a particular charge that the

defendant does not have a fair opportunity to prepare for trial. See

Erickson v. People, 951 P.2d 919, 921 (Colo. 1998). A bill of

particulars is not necessary when a defendant can obtain adequate

information from the charging document, the preliminary hearing,

and the discovery process. See Thomas v. People, 803 P.2d 144,

154 (Colo. 1990).

¶ 16 In cases involving allegations of repeated sexual abuse of a

child over an extended period of time, the prosecution is not

required to provide “precise dates and times.” Erickson, 951 P.2d at

921; see also Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa.

Super. 2007) (referring to seven-month period during which abuse

occurred as an “extended period of time” and explaining that

elementary school children are not expected to remember exact

dates as their lives “do not revolve around the calendar”). Instead,

it is sufficient if a defendant is given “the general time frame within

which the assaults occurred.” Whitman, 205 P.3d at 386 (quoting

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People v. Graham, 876 P.2d 68, 73 (Colo. App. 1994)). This relaxed

specificity requirement applies because “children often have

difficulty recollecting, reconstructing, and identifying the specific

incidents and dates of the alleged acts of sexual misconduct.”

Erickson, 951 P.2d at 922.

¶ 17 Campbell argues, however, that the victim, who was ten years

old at the time of the assaults, was old enough to provide “if not

exact dates, at least seasons, school holidays, birthdays or other

events” that would have narrowed “the time span” so that he could

have presented an alibi defense. As it was, he says, he would have

had to “account for every moment he was at work and at home for

18 months — an impossible endeavor.”

¶ 18 But the victim did narrow the time frame. Campbell had

notice early on that the assaults had allegedly occurred during the

period of time he dated the victim’s mother. During the forensic

interview, a transcript of which was admitted at the preliminary

hearing, the victim said that Campbell had assaulted her four years

earlier, from the end of the summer into the school year. Parole

records confirmed that the time frame was mid-August 2013 to the

end of January 2014. His lawyer did not dispute that the time

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frame had been substantially narrowed to “a short number of

months.”

¶ 19 Campbell does not explain why knowing that the assaults

occurred in the summer and fall, for example, (which is essentially

what he did know), or on Christmas (when his electronic monitor

records showed a curfew violation), would have allowed him to

present a more compelling alibi defense. And to the extent

Campbell sought exact dates and times, the prosecution did not

have that information and, therefore, was not required to provide it.

As the Erikson court explained, “it is unreasonable to require

exactitude from any victim, child or adult, in crimes involving

repeated instances of abuse occurring over a prolonged period of

time.” Id.; see also Graham, 876 P.2d at 73 (explaining that “[t]he

victim was only 10 years old when the assaults began and,

therefore, cannot be expected to relay in detail the dates of the

various incidents”).

¶ 20 In any event, Campbell’s claim of prejudice fails. See People v.

Hoehl, 193 Colo. 557, 561, 568 P.2d 484, 487 (1977) (absent any

showing of prejudice from the lack of a bill of particulars, a

defendant is not entitled to relief). He did present an alibi defense

9

of sorts. His defense was that he could not have committed the

assaults because the victim testified that she was assaulted in “the

middle of the night,” and electronic monitoring records established

that he was home in the middle of the night. He was not home in

“the middle of the night” every night from September to January,

though. And he could not even account for his whereabouts on the

six nights that the electronic monitoring records showed he came

home after 11 p.m. or on the morning he left his home at 3 a.m.

¶ 21 True, if Campbell had known the precise dates and times that

the assaults were alleged to have occurred, he could have tried to

present a more thorough alibi defense. But nothing short of

exactitude would have helped in this regard, and, as we have

explained, exactitude is not required.

III. Conclusion

¶ 22 The judgment is affirmed.

JUDGE RICHMAN and JUDGE GOMEZ concur.