Amendment of Information Was in Error Despite Lack of Prejudice, But Reversal Not Warranted Because of Lack of Prejudice

Sinatra V. Sutton v. United States (decided June 23, 2016)

Players:  Associate Judges Fisher & Thompson, Senior Judge Ruiz.  Opinion by Judge Ruiz.  Trial Judge:  Harold Cushenberry, Jr.  Richard S. Stolker for Mr. Sutton.

Facts:  A fifteen-year old, V.A., testified that Mr. Sutton masturbated in front of him, grabbed V.A.'s hand and tried to put it on his penis, and then put his arms around V.A. from behind in a "hugging position," at which point V.A. felt what he assumed to be Mr. Sutton's penis against his back near his buttocks.

The government charged Mr. Sutton by information with two counts of misdemeanor sexual abuse (MSA) of a child -- one for touching Mr. Sutton's own penis in front of V.A. and a second for touching V.A. close to the buttocks -- as well as a count of attempted MSA of a child for Mr. Sutton allegedly attempting to grab V.A.'s penis when he wrapped his arms around V.A.  On the day of trial, the government orally moved to amend the charge of attempted MSA of a child to attempted MSA, predicated on Mr. Sutton's alleged attempt to place V.A.'s hand on his own penis.

Issue 1:  Should the trial judge have allowed the government to amend the information?

Holding 1:  No, but the error does not require reversal.  Rule 7(e) allows the judge to "permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Super. Ct. R. Crim. P. 7(e).  Here, the government's amendment charged a "different offense" -- attempted MSA in place of attempted MSA of a minor, which are different crimes set forth in different sections of the Code and with different elements.  Hence, Rule 7(e) prohibited the amendment regardless of whether it prejudiced the defendant.

However, no reversal is required on appeal because there was no prejudice.  The defense did not request a continuance after the amendment, the change was irrelevant to the defense strategy, and, had the amendment been denied, the government could have achieved the same result by dismissing the information (jeopardy had not yet attached) and refiling the charges in a new information.

Issue 2:  Should convictions for MSA of a child and attempted MSA merge?

Holding 2:  No.  MSA of a child and MSA do not merge under the Blockberger test because each contains an element the other does not -- MSA of a child has age requirements, while MSA has an element that the defendant know that the complainant does not consent.  Moreover, the charges in this case arose from discrete acts:  the defendant masturbating in front of a child and attempting to put the child's hand on the defendant's penis.  These two acts were separated by a "fork in the road" at which point the defendant could have ceased his conduct, and separate convictions and punishments were therefore warranted.

Of Note:  The Court also rejected a sufficiency-of-the-evidence challenge under the familiar rule that the testimony of a single witness -- here, V.A. -- is sufficient to establish guilt beyond a reasonable doubt.  DG

Read full opinion here.