State v. Anderson
| Decision Date | 07 June 1985 |
| Citation | 748 S.W.2d 201 |
| Parties | STATE of Tennessee, Appellee, v. Roy ANDERSON, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Paul J. Morrow, Jr., Charles Ray, Nashville, for appellant.
W.J. Michael Cody, State Atty. Gen. and Reporter, Wm. Barry Wood, Asst. State Atty. Gen., Jack Seaman and Weakley E. Barnard, Asst. Dist. Attys. Gen., Nashville, for the appellee.
The defendant was convicted of aggravated sexual battery and the punishment was fixed at twenty years, assault with the intent to commit sexual battery and the punishment was fixed at one year, aggravated rape with a punishment of life imprisonment, and of assault with intent to commit sexual battery with the sentence fixed at one year. 1
The defendant has raised twelve assignments of error, which we will enumerate as they are discussed. We find no merit in any of the issues raised.
The judgments are affirmed.
The defendant does not attack the sufficiency of the evidence, which shows the defendant committed various acts of sexual nature against female relatives, all of whom were under the age of thirteen years at the time of the occurrences.
The indictment in this case was in four counts. The third count alleged the defendant forced one of the children to submit to unlawful sexual penetration on divers days during the period of April, 1980, to March, 1982. The defendant insists the state should have been required to elect which act of penetration they would rely upon for conviction.
The evidence given by the child named in the third count of the indictment was that at divers times between April, 1980, and March, 1982, the defendant inserted his finger in her vagina and forced her to commit fellatio upon him. At the close of the state's proof, the trial judge directed the state to elect which offense they relied upon for a conviction. The state elected to rely upon the offense of fellatio. The state did not, however, elect a date for one of the divers acts of fellatio they intended to rely on.
The defendant insists this was erroneous under the holding in Burlison v. State, 501 S.W.2d 801 (Tenn.1973) (citing Jamison v. State, 117 Tenn. 58, 94 S.W. 675 (1906)), which held that an election was required to enable the defendant to defend against a particular charge, to protect the defendant against double jeopardy, and to assure that the jury's verdict not be a matter of choice with some convicting on one offense and others on another.
In State v. Fears, 659 S.W.2d 370 (Tenn.Cr.App.1983), this Court held that the election of the state to rely upon oral penetration without specifying the date thereof was not error even though the evidence showed the act was committed on divers dates during the times alleged in the indictment. Our Supreme Court denied the application of the defendant for appeal to that Court.
We are of the opinion that the failure to specify a date upon which one of the acts of fellatio occurred was not error within the holding of Burlison. Further, the defense in this case was a denial that any act of a sexual nature was ever committed by the defendant on the child. There is no showing in this record that the defendant was frustrated or hampered in the presentation of his defense. It is true, as the defendant claims, that the state's failure to elect a date for the offense upon which it relied makes it impossible to determine which offense the jury found guilt upon or whether all convicted on the same offense. However, we do not deem this sufficient to vitiate the verdict of the jury in this case. The evidence was sufficient to support a finding of guilt beyond a reasonable doubt on all of the offenses shown in the proof. We can therefore find that the defendant has not been convicted of an offense on insufficient evidence, and he is not thus denied the constitutional protection requiring his guilt must be shown beyond a reasonable doubt.
In State v. Hardin, 691 S.W.2d 578 (Tenn.Cr.App.1985), we held that the defendant would be protected from a subsequent prosecution, under the double jeopardy clause, for any claimed offense against an alleged victim in an indictment which specified the offense occurred within the times alleged in the indictment. We hold, therefore, that this defendant would be protected against further prosecution for alleged offenses against the victim set out in the third count of this indictment from the period of April 1980 through March 1982.
By adopting this rule, the state may be permitted to bring prosecution in cases of this nature where the proof of the exact date of divers offenses cannot be shown, and thus the rights of the defendant under the double jeopardy clause may be preserved.
The defendant contends also that because of the failure to elect a date of the offense in the second and third counts of the indictment there is a fatal variance in the allegations in the indictment and the proof at trial. He concedes that this issue is intricately connected with the first issue raised on election of offenses.
It is only necessary that the evidence show that the offense was committed prior to the return of the indictment. Sullivan v. State, 513 S.W.2d 152 (Tenn.Cr.App.1974). A claimed variance is not fatal unless it is material and prejudicial, and it is not material unless it would deprive an accused of the protection against double jeopardy or mislead him at trial. State v. Moss, 662 S.W.2d 590 (Tenn.1984). Under our holding in Hardin, supra, and in this case, the defendant would not be denied the right to raise a claim of former jeopardy on future prosecution against the same victim within the period set out in the indictment.
The defendant says that the state did not adequately respond to his motion for a bill of particulars and says the trial court erred in not requiring the state to be more specific in their response thereto.
The purpose of a bill of particulars is to allow a defendant to prepare his defense, to avoid surprise, and to preserve a plea of double jeopardy. See State v. Hicks, 666 S.W.2d 54 (Tenn.1984).
In this case, the state was unable, because of the youth of the victim, to be more specific on the date. In the record before us, there is nothing to show the defendant was unable to prepare a defense to the charges and there is nothing to show he was surprised by the evidence presented. We have dealt with the double jeopardy issue on the previous assignments. We find no error in this regard.
There is no merit to the defendant's claim that count four of the indictment should have been dismissed because he was not granted a preliminary hearing on an arrest warrant charging this offense.
This record shows the defendant, through previous counsel, waived a preliminary hearing. The defendant now asserts he never authorized the action. We are of the opinion the record is insufficient to support that assertion. Further, there is nothing to show the defendant made demand for a preliminary hearing within thirty days of his arrest, as required under Rule 5, Tenn.R.Crim.P.
The trial judge properly denied the defendant's motion for a severance. The evidence shows the sexual...
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