VILLACORTA PADILLA v. STATE (2026)

Diego Villacorta-Padilla filed this interlocutory appeal from the trial court's order overruling his special demurrer, contending that the trial court erred, because (1) the date ranges of the offenses alleged in the indictment are overly broad; and (2) the State failed to call a necessary witness. For the reasons that follow, we affirm in part and reverse in part.

“We conduct a de novo review of a trial court's ruling on a special demurrer in order to determine whether the allegations in the indictment are legally sufficient.” Herring v. State, 334 Ga. App. 50, 52, 778 S.E.2d 57 (2015) (quoting State v. Godfrey, 309 Ga. App. 234, 239(3), 709 S.E.2d 572 (2011)).

Villacorta-Padilla's indictment charges him with four offenses involving his stepdaughter, B. G., that took place during two different date ranges — June 1, 2022, to April 30, 2023; and April 1, 2023, to April 30, 2023. Specifically, Villacorta-Padilla was charged with rape between April 1, 2023, and April 30, 2023 (Count 1); and aggravated sexual battery, child molestation, and contributing to the delinquency of a minor between June 1, 2022, and April 30, 2023 (Counts 2, 3, and 4).

At the hearing on Villacorta-Padilla's special demurrer, the forensic interviewer who interviewed B. G. testified.¹ According to her testimony, B. G. lived with her mother and Villacorta-Padilla. B. G. disclosed that Villacorta-Padilla abused her by, among other things, touching her breasts and digitally penetrating her vagina two to three times per week beginning when she was 13. B. G. was unable to provide exact dates for the abuse but remembered that it began around the end of June 2022, which she recalled because the abuse began after a day she and her family had spent at the lake.² B. G. also reported that on the day of the first incident of abuse, Villacorta-Padilla provided her with marijuana and consumed some with her prior to abusing her. Subsequently, Villacorta-Padilla provided B. G. with marijuana or other drugs each time he abused her, which dynamic she described as “transactional.” B. G. reported that these incidents of abuse continued until May 2023, at which point she no longer lived with Villacorta-Padilla.

B. G. reported that the abuse culminated in April 2023, when Villacorta-Padilla raped her. Again, B. G. was unable to provide an exact date for this incident but recalled that it happened while her mother was incapacitated due to the influence of drugs and “passed out” in the bathroom.³

Following the hearing, the trial court overruled Villacorta-Padilla's special demurrer by written order, finding that the date ranges for the offenses alleged in the indictment could not reasonably be narrowed down any further. In particular, the trial court found that even though B. G. reported that Villacorta-Padilla's abuse of, and provision of marijuana to, her began in “late June 2022,” this did not require the indictment to exclude the beginning of June 2022, in its date range for Counts 2, 3, and 4. As to the rape alleged in Count 1, the trial court found that although B. G. had reported that the rape occurred around the time of her mother's third overdose that month, the date range of April 1, 2023, to April 30, 2023, for Count 1 was reasonable because the date of the overdose was unknown, and because the date of the alleged rape was not conclusively tied to the third overdose. The trial court certified its order for immediate review, and we granted Villacorta-Padilla's application for interlocutory review.

1. Villacorta-Padilla contends that the trial court erred by overruling his special demurrer because the date ranges of the offenses alleged in the indictment were overly broad. Specifically, he argues that the date ranges of these alleged offenses should be narrowed because the evidence at the special demurrer hearing was that the rape alleged in Count 1 occurred on the date of the mother's third overdose in April 2023, and the alleged conduct forming the basis of Counts 2, 3, and 4 began at the end of June 2022. We agree with Villacorta-Padilla's contentions as to the date range of Counts 2, 3, and 4 and reverse as to those counts but otherwise affirm the trial court's order.

A charging instrument is subject to special demurrer “if it is not ‘perfect in form as well as substance.’ ” State v. Jones, 251 Ga. App. 192, 193, 553 S.E.2d 631 (2001). “By special demurrer an accused claims, not that the charge in an indictment or accusation is fatally defective and incapable of supporting a conviction (as would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information.” Id.

Under OCGA § 17-7-54(a), an indictment must “state with sufficient certainty the offense and the time and place of committing the same.”

Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. However, where the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates.

State v. Layman, 279 Ga. 340, 340-41, 613 S.E.2d 639 (2005) (footnote and punctuation omitted). “In such a situation, though, ‘the range of dates alleged in the indictment should not be unreasonably broad.’ ” Blanton v. State, 324 Ga. App. 610, 614-15(2), 751 S.E.2d 431 (2013). “[W]here the State [i]s reasonably capable of narrowing the ranges of dates alleged in the indictment, it must do so.” Layman, 279 Ga. at 341, 613 S.E.2d 639. “Accordingly, ․ if an indictment alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment is subject to a special demurrer.” Id.

(a) As to Count 1, we conclude that the evidence at the hearing on the demurrer showed that the State could not reasonably narrow the range of dates during which the indictment alleged the offense of rape to have occurred. The evidence showed that B. G. was unable to identify a date on which the offense allegedly occurred other than to place it at some point in April 2023. Although B. G. reported that her mother was under the influence of drugs and “passed out” in the bathroom at the time of the rape, the testimony was that the mother was frequently under the influence of drugs and overdosed three times in April 2023. Moreover, while the forensic interviewer was under the impression that the alleged rape occurred during the mother's third overdose that month, the exact date of this overdose is unknown, and the forensic interviewer acknowledged that B. G. had never explicitly connected these two events. Accordingly, the trial court properly overruled Villacorta-Padilla's special demurrer as to Count 1 of the indictment.

(b) As to Counts 2, 3, and 4, however, the evidence at the special demurrer hearing showed that the State could have reasonably narrowed the date range of the offenses alleged. Although B. G. could not identify a specific date on which Villacorta-Padilla began abusing her and providing her with marijuana, she claimed that these incidents started “around the back half of June of 2022.” The forensic interviewer testified that when B. G. stated that the incidents began in June 2022, she asked whether B. G. remembered them starting at the “beginning or end” of the month, to which B. G. replied that they happened “closer to the end” of that month.

In upholding the date range for Counts 2, 3, and 4 as reasonable, the trial court found it unreasonable and arbitrary to require the State to shorten the date range for these alleged offenses to exclude the first half of June 2022. However, any date from June 1, 2022, to June 15, 2022, does not reasonably qualify as the end of June 2022, which is when B. G. reported that the conduct giving rise to the offenses alleged in Counts 2, 3, and 4 began. Excluding the beginning of June 2022, in the date range for these counts is not arbitrary but rather based precisely on the time frame provided by B. G.

The trial court's reliance on Blanton, 324 Ga. App. at 614-17(2)(a), 751 S.E.2d 431, in upholding the date range for Counts 2, 3, and 4 as reasonable is misplaced. Blanton did not address a potential date-range discrepancy that existed between the alleged victim's claim that “the first incident occurred in late May or early June 2008,” id. at 616(2)(a), 751 S.E.2d 431, and the indictment's allegation that the defendant had committed the acts at issue between May 1, 2008, and April 30, 2010, id. at 615(2)(a), 751 S.E.2d 431, because the defendant in Blanton did not challenge the start date of May 1, 2008, on appeal, id. at 616(2)(a), 751 S.E.2d 431. See Wolfe v Bd. of Regents of the Univ. System of Ga., 300 Ga. 223, 231(2)(d), 794 S.E.2d 85 (2016) (“ ‘Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.’ ”).⁴

Accordingly, because the evidence showed that the State reasonably could narrow the range of dates alleged in Counts 2, 3, and 4 of the indictment to exclude the beginning of June 2022, we reverse the order of the trial court overruling Villacorta-Padilla's special demurrer as to those counts.⁵

2. Villacorta-Padilla also contends that the trial court erred by overruling his special demurrer because rather than calling the lead investigator in the case or another witness who had testified before the grand jury, the State called only the forensic interviewer at the special demurrer hearing. We disagree.

“In meeting its burden of showing that it is unable either to identify a specific date on which an offense occurred or to narrow the range of possible dates, the State is required to present some evidence and may not rely solely upon argument by counsel or mere speculation.” Blanton, 324 Ga. App. at 615(2), 751 S.E.2d 431 (2013) (emphasis added). Compare Blackmon v. State, 272 Ga. App. 854, 855-56, 614 S.E.2d 118 (2005) (reversing the trial court's order overruling a defendant's special demurrer because the indictment did not allege a specific date for the charged offenses, and the State failed to present any evidence that it could not more specifically identify the dates of these offenses).

In carrying its burden of showing that an indictment cannot specifically identify an offense date and must instead rely on a range of dates, the State will typically call a lead investigator or some other law enforcement witness at a special demurrer hearing. See, e.g., Cole v. State, 334 Ga. App. 752, 755(2), 780 S.E.2d 406 (2015); Herring, 334 Ga. App. at 51, 778 S.E.2d 57; Blanton, 324 Ga. App. at 615(2)(a), 751 S.E.2d 431; State v. Meeks, 309 Ga. App. 855, 858(1), 711 S.E.2d 403 (2011). Nevertheless, there is no formal requirement that the State adduce such evidence or testimony to shoulder its burden in this connection. Neither is there any requirement that the witness who testifies at the special demurrer hearing must also have testified before the grand jury.⁶ The trial court did not err by overruling Villacorta-Padilla's special demurrer on this ground.

Judgment affirmed in part and reversed in part.

FOOTNOTES

1.   No other witness testified at the hearing.

2.   B. G. initially reported that the abuse started in the summer of 2022, but on further questioning from the forensic interviewer narrowed the range to June 2022, and subsequently, the end of June 2022.

3.   B. G.’s mother was a regular drug user and had three drug overdoses in April 2023. The exact dates of these overdoses are not apparent from the record, and although the forensic interviewer had been under the impression that the alleged rape happened on the date of the third overdose in April 2023, the forensic interviewer testified that B. G. never specifically stated that.

4.   Because of the distinction between Blanton and the case at bar on this issue, we do not address Villacorta-Padilla's contention that Blanton should be disapproved or overruled.

5.   This holding does not preclude the State from reindicting Villacorta-Padilla on these counts upon the return of this case to the trial court. See Wallace v. State, 253 Ga. App. 220, 223(3), 558 S.E.2d 773 (2002) (When a defendant specially demurs to the form of an indictment, “the quashing of [the] indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant.”)

6.   The forensic interviewer testified at the special demurrer hearing that she did not testify before the grand jury.

Doyle, Presiding Judge.

Markle and Padgett, JJ., concur.