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State v. Melson10/25/1999
The defendant, John Melson, was convicted by a Blount County jury of violation of the Motor Vehicle Habitual Offender's Act, a Class E felony, criminal impersonation, a Class B misdemeanor, and driving under the influence of an intoxicant, third offense, a Class A misdemeanor. The defendant appeals these convictions, contending that:
(1) His indictments were fatally flawed;
(2) the trial court improperly instructed the jury; and
(3) he was entitled to a dismissal of his indictments based upon the denial of a preliminary hearing.
After careful review of the defendant's claims, we AFFIRM the judgment of the trial court.
BACKGROUND
Tennessee Highway Patrol Officer Danny Thomas testified that on January 9, 1996, he observed the defendant's car dangerously weaving and exceeding the speed limit. Officer Thomas then stopped the defendant. Upon approaching the defendant, Officer Thomas observed a strong odor of alcohol about the defendant. The defendant submitted to and failed a field sobriety test. The defendant was then arrested. Asked for identification, the defendant stated that he did not have a driver's license and supplied the officer with a false name. The defendant was then charged with the instant offenses.
On October 14, 1997, the matter came for a jury trial in Blount County. After the jury had been sworn and as the state called its first witness, Officer Thomas, the defendant objected to all testimony relating to the events of January 9, 1996, on the grounds of irrelevance and immateriality. Specifically, the defendant pointed out that the indictments upon which the charges were brought stated the date of the offense as January 1, 1996; therefore, he argued that any testimony about events occurring January 9, 1996, was irrelevant.
The trial court took the defendant's objection into consideration and allowed both the defendant and the state time to submit relevant legal authority and argument. Unpersuaded by the defendant's argument, the trial court, without amending the indictments, proceeded with the trial and allowed testimony relating to January 9, 1996. The defendant, again noting his objection, cross-examined the state's witnesses and presented one witness, the defendant's father. At the Conclusion of the trial, the jury returned verdicts of guilty on all charges and assessed fines. The trial court then sentenced the defendant to five years as a persistent offender on the charge of driving while restriction in effect, six months on the charge of criminal impersonation, and eleven months and twenty-nine days on the charge of driving under the influence of an intoxicant.
ANALYSIS
Fatally Flawed Indictment
The defendant contends that his indictments were fatally flawed due to the recitation of January 1, 1996, as the date of the offense rather than the correct date of January 9, 1996. We begin our analysis with two general propositions upon which both the defendant and the state agree: first, " nless a special date is essential or time is critical to the case, the time of an offense alleged in the indictment is not material," State v. Hardin, 691 S.W.2d 578, 580 (Tenn. Crim. App. 1985), and second, "the actual date of the commission of the offense may be different than that charged in the indictment so long as the proof establishes that the offense occurred prior to the finding and returning of the indictment. . . ." State v. Chance, 778 S.W.2d 457, 462 (Tenn. Crim. App. 1989). In the instant case, the issue is whether the variance is "material" when the proof established that the offense occurred prior to the finding and returning of the indictment.
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