In re L.B. ( 2013 )

GLICKMAN, Associate Judge,

dissenting:

I would affirm the adjudication of delinquency. I doubt that L.B. preserved her claim that she was convicted of a crime different from the one with which she was charged. She did not object to the variance between the trial judge’s findings and the petition with respect to the identity of the person whom she had threatened. But even if L.B.’s claim in this court is not subject to the rigors of plain error review (as the government contends), I think it should be rejected because L.B. sustained no cognizable prejudice as a result of the variance.

The standard for evaluating prejudice in this case is found in Superior Court Juvenile Rule 7(e). Under Rule 7(e), any claim of a variance between a petition and the proof at trial is curable by amending the information to conform to the proof “if no additional or different offense is charged and if substantial rights of the respondent are not prejudiced.”¹ These conditions were satisfied here. The trial judge did not find L.B. guilty of an “additional or different offense” merely because he found that someone other than Bedlion was the target of her threat.² The target’s identity is not an element of the offense of threats to do bodily harm, and the evidence at trial unquestionably supported the judge’s finding that L.B. committed that offense.³ Nor did the variance prejudice L.B.’s “substantial rights” in any way. The primary purposes of a petition, like those of any charging document, are to give the respondent notice of the charge against her and afford her adequate time to prepare her defense.⁴ Those purposes were achieved here. In some cases the identity of the target of a threat may make a material difference, as where it distinguishes one separately chargeable threat incident from another. But that is not so in this case. There was only one incident and one alleged threat, and L.B. was under no illusion as to what exactly those were. L.B. claims she “would not have waived her Fifth Amendment right against self-incrimination by testifying” had she understood it made no legal difference that her threatening utterance was aimed at her friend’s boyfriend rather than at Bedlion.⁵ That may be, but she could not reasonably have thought her testimony exculpatory. More important, L.B. has not shown she would have had a valid defense or a greater chance of securing an acquittal had the petition not named Bedlion as the target of her threat (or had she not testified). To underscore this point, at a new trial on remand with an amended petition that does not name the target, would not a finding of guilt be inevitable?

Because I think the variance of which L.B. complains was not prejudicial, I respectfully dissent.

1 . Super. Ct. Juv. R. (7)(e). Cf. Super. Ct. Crim. R. 7(e); see generally Wright & Leipold, Federal Practice and Procedure: Criminal 4th § 129 (2008).

2 . See In re W.K., 323 A.2d 442, 445 (D.C.1974) (“A change in the name of the victim is not tantamount to charging a new offense.”). The respondent in W.K. was charged with robbing a restaurant. We held it “clearly within the trial court's discretion” to permit the government to amend the petition pursuant to Juvenile Rule 7(e) so as to substitute a different victim in one of the counts. Id.

3 . The majority opinion cites Long v. United States, 687 A.2d 1331 (D.C.1996), and Joseph v. United States, 597 A.2d 14 (D.C.1991), for the proposition that a deviation in the proof at trial with respect to the identity of the victim named in an indictment may effect a constructive amendment necessitating reversal (at least where an objection is preserved). These cases are inapposite, because L.B. was charged by petition, not indictment, and the Fifth Amendment right to have felony charges in criminal prosecutions determined by a grand jury is not implicated here.

4 .See, e.g., Dyson v. United States, 485 A.2d 194, 196 (D.C.1984). The petition also may serve to protect the respondent from being placed in double jeopardy by "spelling] out the offense clearly enough to enable the accused to plead the judgment as a bar to a subsequent prosecution for the same crime.” Id. (quoting Horowitz v. District of Columbia, 291 A.2d 202, 203 (D.C.1972)). There is no double jeopardy concern in this case.

5 . Brief for Appellant at 7.