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Bollinger v. State4/8/2005
dly.
Bollinger argues that the state used the statement, "I promise to leave you alone forever" to support Count Three (offer of a benefit) and the statement, "I do hope you honor my requests to make this split in our relationship peaceful and friendly" to support Count Four (threat of injury). Bollinger argues that since these statements were made in one letter, addressed to one witness, and communicated at the same time, they merge for purposes of sentencing.
The state argues that the convictions on counts three and four of the indictment do not merge because other evidence supports these convictions; thus, its case does not depend solely on the January 9, 2001 letter. The state argues that because the date of January 9, 2001 in the indictment was not material, it can prove these counts with letters sent on other dates within the statute of limitations and before the indictment was issued.
The general rule is that when the exact date of a crime is not a material allegation of the indictment, the crime may be proved to have taken place on any date prior to the return of the indictment, so long as the date is within the applicable statute of limitation.
A date is material if it is an essential element of the charged offense or if a defense, such as alibi, is asserted that makes the date of the offense material. Here, the date of the offense is not an essential element of influencing a witness, and Bollinger's defense was that he did not write any of the eleven letters introduced into evidence by the state. Thus, Bollinger's defense did not render the date in the indictment material and the variance between the date in the indictment and the proof at trial was not prejudicial to his defense. Finally, Bollinger was not surprised by the introduction of the other letters as the indictment stated the offenses occurred on or about January 9, 2001.
Having determined that the date in the indictment was not material, we must now decide if any other letters support Bollinger's conviction on count four as alleged by the state. In a letter sent on January 13, 2001, Bollinger wrote the victim that she made a big mistake when she turned his letters over to the police, that he planned to represent himself at trial and ask questions about skeletons in her closet that would ruin her reputation, that " n the long run if this goes to trial it is going to get ugly," that he did not want a war with her, but if she pushed him "so be it," that he planned to get out of jail soon and would come see her so they could end their relationship "peacefully, quietly and without anyone getting hurt." After telling her it would get ugly if the case went to trial, Bollinger asked the victim to please not make him do this to her. We find this letter sufficient to independently support Bollinger's conviction on count four of the indictment. As a result, the trial court did not err by failing to merge counts three and four for purposes of sentencing.
Judgment affirmed. Andrews, P. J., and Mikell, J., concur.
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