State v. Rallo

Finney, Justice: Appellant Joseph P. Rallo was convicted of attempted criminal sexual conduct with a minor in the second degree and sentenced to ten years imprisonment. We reverse and remand for a new trial. Appellant contends the trial court erred in charging the jury that it could find that the offense occurred on or about February 14. Appellant alleges the trial court’s error abridged his right to a fair trial and was a comment on the facts, in violation of Article V, § 21, of the South Carolina Constitution. The pertinent portion of appellant’s original indictment states as follows: . . . That Joe Rallo did in Richland County on or about January . . . attempt to engage in sexual battery, to wit: by attempting to coerce the victim into performing fellatio upon and with the body of Shane [D.] . .. without his consent. Such sexual battery was accomplished by aggravated coercion, the threat of force and violence of a high and aggravated nature ... Prior to trial, the indictment was amended to allege that the [260] offense occurred on or about February 14,1988. After jury selection, the state moved to further amend the indictment by rewording some verbiage. At that time, the solicitor confirmed that he would seek to prove the offense occurred on February 14, not on or about February 14. The court granted the motion to amend, but the indictment was not physically altered to reflect striking of the words “on or about” preceding February 14.1 During the trial, the victim and another witness testified that the alleged incident occurred on Sunday, February 14, 1988. Appellant defended on the basis of alibi. Through the testimony of two clergymen and the junior warden of the Chapel of the Cross Episcopal Church, the appellant presented evidence that he had been engaged in church activities from 7:00 A.M. until 10:00 P.M. on February lip. (Emphasis added.) The appellant objects to the following portion of the court’s jury charge: . . . The specific charge in this indictment is attempted criminal sexual conduct with a minor in the second degree. The state alleges that the defendant, Joseph P. Rallo, did in Richland County on or about February 14, 1988, commit this offense. The state is not required to prove that the offense occurred on the exact day of February 14,1988, but the state is required to prove that the offense occurred on or about February 14,1988. That is, a reasonable time insofar as February 14,1988. A reasonable time relationship is the required parameter ... Appellant asserts the trial court erred in charging the jury that the state is not required to prove that the offense occurred on the exact day of February 14. A defendant is entitled to be sufficiently apprised of the offense charged so that he can adequately prepare his defense. State v. Hardee, 279 S.C. 409, 413, 308 S.E. (2d) 521, 524 (1983). While it is true that the State need not prove the exact [261] date set forth in the indictment unless time is an essential element of the offense or is made a part of the description of it... the State should not be allowed to prove a different date than that set forth in the indictment where the defendant relies upon the defense of alibi, unless the defendant is held to have had knowledge that the State would attempt to prove a different date upon trial. State v. Pierce, 263 S.C. 23, 27, 207 S.E. (2d) 414, 416 (1974), citation omitted. Although the indictment in this case was not physically modified, the record shows the state amended the indictment to specify a date certain, February 14, and presented its proof accordingly. Consequently, appellant presented alibi witnesses to prove his whereabouts on February 14. Notwithstanding the amendment and the fact that both the state and the appellant conformed their proof to the specific date of February 14, the trial court’s instruction permitted the jury to find that the offense could have occurred on or about February 14. This Court finds that the indictment was orally amended from on or about February 14 to February 14. The miscue of failing to physically alter the indictment is not dispositive. We hold that, under the circumstances of this case, the trial judge’s charge constituted error and deprived the appellant of his right to a fair trial. Appellant’s remaining exceptions are disposed of pursuant to Supreme Court Rule 23. For the foregoing reasons, this case is reversed and remanded for a new trial. Reversed and remanded. Gregory, C.J., and Harwell and Chandler, JJ., concur. Toal, J., dissenting in separate opinion. Footnotes [1] The relevant portion of the indictment, after amendment, reads as follows: ... That Joe Rallo did in Richland County on or about February 14,1988 attempt to engage in sexual battery, to wit: by attempting to perform fellatio upon and with the body of Shane [D.]... said victim being more than eleven but less than fourteen years of age...