dissenting.
I do not accept the premise that reasonable notice to the defendant of a claimed criminal offense is not an absolute predicate of the constitutional right to defend, and consequently dissent.
Prosecutorial willingness to expand the rules of prosecution and diminish the constitutional rights of the charged defendant are coterminous with inattention of the judiciary, and this case constitutes an undesired example.
My concern is that the avalanche of these sexual-abuse cases can serve to subtly and singularly erode the entire body of constitutional rights, which erosion cannot rationally be restricted to the specific genie now released.
Factually in this case the following occurred.
1. A specific charge was filed against Stewart involving a claimed date of occurrence of March 10, and was later dismissed for invalidity when a verified alibi was afforded at the preliminary hearing.
2. Not to be swayed, the prosecutor then filed a multiple-incident charge, without date specificity, encompassing incidents which allegedly occurred “sometime between March 1 and April 9, 1985.”
3. A motion for a bill of particulars was filed by the defendant to which the response given was “between March 1 and April 9” and “on or about April 9.”
4. At the preliminary hearing, the complainant testified as to events contended to have occurred on April 9.
5. At trial no proof was afforded about events on April 9, and to the contrary a reasonable alibi defense was afforded, but conviction was accomplished based on other alleged episodes of sexual intercourse which occurred at some other indefinite time between March 1 and April 9.
6. Although the defendant moved to dismiss for inadequacy of the bill of particulars, the motion was denied.
The charge in this case, a sex offense in a societal atmosphere where most people are inclined to believe the worst is most seriously impacted by lack of specificity to *444afford the defendant an opportunity to present exculpatory evidence. Given the generalized allegations as to dates of occurrences, conviction in this case became a foregone conclusion. While the complainant must be allowed reasonable parameters within which to recall the dates of the events, the court in this case condones neglect of the prosecutor's obligation to define his case within constitutional constraints.
The issue, of course, is notice to allow the defendant to adequately prepare his defense. The court’s decision to allow such leverage in defining dates of occurrences in a criminal charge favors the prosecution. Requiring trial upon the unclarified bill of particulars defies justice in violation not only of Art. 1, §§ 6 and 10 of the Wyoming Constitution, but also the Sixth and Fourteenth Amendments to the United States Constitution.
In reviewing the authorities used to justify this new posture of this court, I note that Crouse v. State, Wyo., 384 P.2d 321 (1963) did not involve a bill of particulars as is currently provided in Wyoming law by Rule 9(d), W.R.Cr.P.:
“(d) Bill of particulars. — The court for cause may direct the filing of a bill of particulars. A motion for bill of particulars may be made only within ten (10) days after arraignment or at such other time before or after arraignment as may be prescribed by rule or order. The bill of particulars may be amended at any time subject to such conditions as justice requires.”
Likewise, no date of the specific event was implicated in that case of hiding stolen property, which is dissimilar in circumstantial and practical proof from the charge in this case of what we used to call statutory rape and which is now called indecent liberties with a minor. The Hovee embezzlement case, Hovee v. State, Wyo., 596 P.2d 1127 (1979) is likewise clearly different as encompassing a bill of particulars sufficient to “fully [apprise] the appellant of the charges against him with a reasonable degree of certainty,” including one television set and specific checks. 596 P.2d at 1132. The rule advanced in Hovee is not in issue. Rather the issue in this case is the “when” question, and how broadly these specific dates may be presented so that, in violation of his Sixth Amendment rights, the defendant does not know what he must defend.
It is recalled again that the charges in this ease started with a day and went to a month, and I would ask whether a year or a decade would also neither prejudice a defendant nor hinder the availability of a defense of alibi. Grady v. State, 24 Md.App. 85, 329 A.2d 726 (1974). No human being can prove where he was for one month unless in jail or on an extended vacation abroad.
State v. Koch, 64 Wyo. 175, 189 P.2d 162 (1948) also lacks credence as authority. In that case, the discrepancy was within one day, and not somewhere within a month and a week as is the case here. “On or about June 28” was only stretched out to include the alleged date of June 27. The difference is vividly illustrated by a quote from the instruction given in Koch:
“ ‘ * * * The State has elected to prosecute this defendant for an act committed on or about the 28th day of June, 1944, in the Hockett Apartment in the town of Pinedale, Wyoming. The defendant has introduced evidence that neither he nor the prosecutrix was in the Hockett Apartment on or about the 28th day of June, 1944. If after considering all of the evidence you have a reasonable doubt that the defendant committed the rape on or about the 28th day of June, 1944, then, even if you believe that the defendant committed the act at some other time or place, you must acquit the defendant, and return a verdict of not guilty.’ ” 189 P.2d at 166.
Ostrowski v. State, Wyo., 665 P.2d 471 (1983) involved the amendment of an information to correct a statutory citation. State v. Faltynowicz, Wyo., 660 P.2d 368 (1983) was a bill of exceptions relating to the omission of the year as a typographical error. Nimmo v. State, Wyo., 603 P.2d 386 (1979) involved the question of alleging *445criminal intent in addition to “unlawfully and feloniously” in the indictment.
Consequently, I would not find relevant similarities in any of these authorities to support the unspecified-date insufficiencies of the present charge. Rhodes v. State, Wyo., 462 P.2d 722 (1969) also is not supporting authority for this decision. In that case, specific dates charged were included in the information, and the court said, in evaluating an objectionable leading and suggestive question:
“ * * * We can agree that it was indeed unfortunate for such a question to be asked, but we do not view the matter under the circumstances here present as constituting the serious error ascribed to it by counsel, who overlooks the significance of our implied limitation in Esquibel v. State, Wyo., 399 P.2d 395, 399 [ (1965) ], that, where a defense of alibi is interposed, the time of the act of sexual intercourse upon which the State relies for conviction becomes material.” 462 P.2d at 724.
The only straight-up authority invoking a sexual-offense complaint is Esquibel v. State, Wyo., 399 P.2d 395 (1965), which is directly contrary to the decision of this court here and personifies the statutory, common-law and constitutional issues of notice involved in the right to defend. In Esquibel this court said:
“ * * * It was incumbent upon the court at the time of the motion to require the State clearly and specifically to identify the act relied upon the conviction. * * *
******
“ * * * Unfortunately the early view taken by the State and accepted by the trial court that the time of the offense was wholly immaterial continued to prevail. The injustice of that view is readily apparent. * * *
“To hold otherwise would be to deprive the defendant of his defense of alibi. There is abundant authority holding that where a defense of alibi is interposed the time of the act of sexual intercourse upon which the State relies for conviction does become material. State v. Coss, 53 Or. 462, 101 P. 193, 195; State v. Severas, 13 Wash.2d 542, 125 P.2d 659, 667; People v. Waits, 18 Cal.App.2d 20, 62 P.2d 1054; State v. Chittim, Mo., 261 S.W.2d 79, 80; State v. Waid, 92 Utah 297, 67 P.2d 647, 649, 650, 651; Cambron v. State, 86 Okl.Cr. 437, 193 P.2d 888, 893-894. * * * The State, of course, argues to the contrary and predicates its argument on statements made in State v. Koch [supra] and State v. Slane [48 Wyo. 1, 41 P.2d 269 (1939)]. However, those cases are not apropos here because the issue of alibi was not present in either of them.” 399 P.2d at 398-399.
This court said in Borrego v. State, Wyo., 423 P.2d 393, 395 (1967):
“ * * * We indicated in the Wilson case [State v. Wilson, 76 Wyo. 297, 301 P.2d 1056 (1956) ] that although ordinarily the appellate court will not review or revise a trial court’s refusal to grant a bill of particulars, such rule is tempered considerably under constitutional provisions which grant accused the right to be fully informed of the nature of his accusation.”
The only thing that is factually certain from reviewing the record in this case is that the complainant does not say anything occurred on April 9, 1985, and to the contrary:
“Q. Did you have any relations with him on April the 9th?
“A. Not that I remember.
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“Q. It wasn’t April 9th like you testified previously?
“A. I don’t know.
“Q. Was it at 4:00 o’clock?
“A. I don’t remember.”
Actually, the witness had previously said that it specifically occurred on April 10 in the original discussion with the police officer, and then at the preliminary hearing that it occurred on April 9, and at trial was uncertain since defendant had excellent alibi evidence demonstrating the invalidity of the April 9 charge. With the exclusion of *446the one stated date, the prosecutor then moved within the parameters of possible occurrence to encompass a span of 39 days.1
A charge of indecent liberties is obviously a date-event circumstance as determined and discussed in Esquibel, and also considered in the other cited cases which review the use of an alibi defense. See also State v. Graves, Mo., 588 S.W.2d 495 (1979). Not to be repetitive, but it is contention without logical substance to say that there is no problem of proving an alibi defense for the 960 hours related in the bill of particulars. Counsel for either the defense or the prosecution would be similarly challenged to prove, based on a neighbor’s allegations, where they were for 960 hours, if charged with separate limited time events in the criminal complaint. Sadly I contemplate that through misrecognition, and in seeking to affirm this particular conviction, we eliminate the criterion of reasonable notice. The destruction of constitutional rights inculcated in the text of the decision is far broader than a first casual review might reveal.
Not only is the case bad within the context presented, but the rule, broader than the case itself, is disingenuous to guarantees which are less than casually provided by the Constitution of the State of Wyoming and the Constitution of the United States. Even if called to ignore constitutional prerequisites in this case, compliance with Rule 9(a), W.R.Cr.P., cannot be found:
“ * * * The indictment or information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged * *
Prosecutorial leverage by indefiniteness of complaint conflicts with constitutional rights of defense. It is significant in this case that the proof at trial was different than the time stated by information or the testimony afforded at the preliminary hearing. Authorities cited by the court or by the State in its brief do not relate to a comparable situation as an authoritative basis for the decision now made. The “when” of the charge has been eliminated as a requirement of our Rule 9 or of the constitutional directive. Esquibel v. State, supra.
“In all criminal prosecutions the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation * * Sixth Amendment to the United States Constitution.
“In all criminal prosecutions the accused shall have the right to defend in person and by counsel, to demand the nature and cause of the accusation * * Article 1, § 10, Wyoming Constitution.
United States v. Mills, 32 U.S. (7 Pet.) 138, 142, 8 L.Ed. 636 (1833); United States v. Cruikshank, 92 U.S. (2 Otto) 542, 558, 23 L.Ed. 588 (1875):
“ * * * A crime is made up of acts and intent; and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances.”
Directly relating to the principle requiring an adequate response to a bill of exceptions is the comprehensive and thoughtful discussion of Justice Parker in State v. Wilson, 76 Wyo. 297, 301 P.2d 1056, 1064 (1956), wherein he stated:
“It has been said that ordinarily the appellate court will not review or revise a trial court’s refusal to grant a bill of particulars. * * * However, this rule has been tempered considerably under constitutional provisions granting accused the right to be fully informed of the nature of his accusation. * * * Moreover, the trial court’s exercise of discretion must be most carefully examined in a situation like the one at bar where there has, in fact, been a metamorphosis of the information.
“This defendant said he was misled. We do not know whether he was or not, nor *447do we think it was possible for the trial court to be certain. If defendant had been given the benefit of the doubt, as we think he should have been, the motion for the bill of particulars would have been granted.”
The source of the adequate-defense rule can, in part, be traced to the discussion of “information sufficient to afford him a fair and reasonable opportunity to meet it and defend himself,” Neusbaum v. State, 156 Md. 149, 143 A. 872, 876 (1928).
See also Esquibel v. State, supra, and cases therein cited; Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Conlon, 202 A.D.C. 150, 628 F.2d 150 (D.C.Cir.1980); United States v. Chase, 372 F.2d 453, 461 (4th Cir.), cert. denied 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967); Flying Eagle Publications, Inc. v. United States, 273 F.2d 799, 802 (1st Cir.1960); and United States v. Tellier, 19 F.R.D. 164 (1956).
“This constitutional protection is implemented by the requirement of Rule 7(c)(1) that an indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Wright, Federal Practice and Procedure: Criminal 2d § 125, 1986 pocket part.
See also Note, Indictment Sufficiency, 70 Colum.L.Rev. 876, 884 (1970); Scott, Fairness in Accusation of Crime, 41 Minn.L. Rev. 509, 514 (1957).
The conviction should be reversed and the case remanded for a new trial.
. Unfortunately, final argument was not transcribed, if a record was made. Defense counsel should be called to recognize the primacy and recency factors in psychological behavior and decision and always have a record of both opening and closing arguments for jury trials at least. One can frequently look at argument to understand counsel planning and jury behavior in trial verdicts. The "why" is reflective of the “what” that they were told.