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
1
¶ 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.”
2
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.
3
¶ 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
4
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
5
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.
1
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.”
6
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
7
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
8
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.