        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                             FILED
                          AT KNOXVILLE
                                                             October 25, 1999

                        JUNE 1999 SESSION                 Cecil Crowson, Jr.
                                                         Appellate Court Clerk




STATE OF TENNESSEE,        *     C.C.A. # 03C01-9712-CC-00531

           Appellee,       *     BLOUNT COUNTY

VS.                        *     Honorable D. Kelly Thomas, Jr., Judge

JOHN HENRY MELSON, JR.,    *     (Criminal Impersonation; Habitual Motor
                                 Vehicle Offender; DUI--Third Offense)
           Appellant.      *



FOR THE APPELLANT:               FOR THE APPELLEE:

KEVIN W. SHEPHERD                PAUL G. SUMMERS
404 Ellis Avenue                 Attorney General & Reporter
Maryville, TN 37804
                                 TODD R. KELLEY
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 MICHAEL L. FLYNN
                                 District Attorney General

                                 PHILIP H. MORTON
                                 Assistant District Attorney
                                 363 Court Street
                                 Maryville, TN 37804




OPINION FILED: _______________



AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                       OPINION

        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.

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       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, “[u]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. Materiality in this context is determined by the impact the variance

had upon the defendant’s “substantial rights.” State v. Mayes, 854 S.W.2d 638,


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640 (Tenn. 1983); see also Berger v. United States, 295 U.S. 78 (1935).

Specifically, a variance does not prejudice a defendant and is thus immaterial

“(1) if the indictment sufficiently informs the defendant of the charges against him

so that he may prepare his defense and not be misled or surprised at trial, and

(2) if the variance is not such that it will present a danger that the defendant may

be prosecuted a second time for the same offense.” Mayes, 854 S.W.2d at 640.



         Applying this standard, we cannot find that the defendant’s substantial

rights were prejudiced. First, the defendant was well aware that the charges

brought related to the events of January 9, 1996. The defendant was arrested

but once in the relevant time period, and that was on January 9, 1996. The

defendant met Officer Thomas, named in the indictment, but once, and that was

on January 9, 1996. The defendant’s arrest warrants recited but one date, and

that was January 9, 1996. Further, the defendant’s counsel presented a defense

entirely unrelated to the date of the offense.1 The defense counsel himself

conceded that both he and the defendant knew the indictment was in error and

that January 9, 1996, was the date intended. Second, the variance places the

defendant in no danger of a second prosecution for the same offense, as the

state presented proof at trial that related to the events of January 9, 1996. See

State v. Goins, 705 S.W.2d 648 (Tenn. 1986). Double jeopardy would bar

another prosecution for the same incident. Therefore, we conclude that this

variance does not fatally flaw the indictment.



                                           Jury Instructions

         Defendant next contends that the trial court improperly instructed the jury

regarding the indictment. The disputed instruction states: “The State is not

required to show these offenses occurred on the date alleged in the indictment,



         1
          Defendant sought to establish that, rather than intoxication, a pre-existing medical
condition , nam ely serious f oot prob lems , impac ted his pe rform ance o n the field so briety test.

                                                     -4-
only that the offenses occurred prior to 9/30/96, the date the Grand Jury returned

the indictment.”



       We recognize that a defendant has a constitutional right to a correct and

complete charge of law, see State v. Teel, 793 S.W.2d 236, 249 (Tenn 1990),

and a right to have every issue of fact raised by the evidence and material to the

defense submitted to the jury on proper instructions, see Poe v. State, 212

S.W.2d 413 (Tenn. 1963). Accordingly, this court will invalidate a charge that,

when read as a whole, fails to fairly submit the legal issues or misleads the jury

to the applicable law. See State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim.

App. 1994).



       We conclude that the disputed instruction correctly states the law.

Further, we conclude that the instruction creates no risk of confusing or

misleading the jury. Therefore, the trial court’s instruction is proper.



                           Denial of Preliminary Hearing

       Defendant next contends that he was denied his right to a preliminary

hearing as mandated by Rule 5(d) of the Tennessee Rules of Criminal

Procedure. Accordingly, he seeks dismissal of his convictions.



       In the instant case, defendant was arrested on January 9, 1996, prior to

indictment. Arrest warrants were issued January 9, 1996, from the Blount

County General Sessions Court. Indictments were issued later from the Blount

County Circuit Court on September 30, 1996. No preliminary hearing on the

arrest warrants was held before the indictments issued. On October 26, 1996,

after the indictments issued, however, the defendant filed a motion to remand

the matter to the Blount County General Sessions Court. The defendant




                                         -5-
subsequently withdrew this motion. Therefore, no preliminary hearing on the

arrest warrants was ever held.



      The defendant’s issue regards a violation of Rule 5 of the Tennessee

Rules of Criminal Procedure, which states in applicable part:



      Any defendant arrested prior to indictment or presentment . . . shall
      be entitled to a preliminary hearing upon [his] request therefor,
      whether the grand jury of the county be in session or not. If the
      defendant is indicted during the period of time in which his
      preliminary hearing is being continued, or at any time before
      accused has been afforded a preliminary hearing on a warrant,
      whether at the defendant’s own request or that of the prosecutor,
      the defendant may dismiss the indictment upon motion to the court.
      Provided, however, that no such Motion to Dismiss shall be granted
      after the expiration of thirty days from the date of the defendant’s
      arrest.


Tenn. R. Crim. P. 5(e). The defendant had thirty days from his arrest January 9,

1996, to file a motion to dismiss and request a preliminary hearing. The

defendant identifies nothing in the record that indicates he filed such a motion in

the allotted time. Further, this Court’s review of the technical record revealed no

such filing nor any indication of bad faith on behalf of the State which would

allow for an extension. See Moore v. State, 578 S.W.2d 78 (Tenn. 1979).

Accordingly, we find that the defendant failed to properly request a preliminary

hearing and conclude that the issue is without merit.



                                  CONCLUSION



      Accordingly, we AFFIRM the decision of the trial court.




                                   ______________________________
                                   JOHN EVERETT W ILLIAMS, Judge



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CONCUR:




___________________________
JOHN H. PEAY, Judge




____________________________
DAVID G. HAYES, Judge




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