                              FOURTH DIVISION
                                BARNES, P. J.,
                            RAY and MCMILLIAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                 September 28, 2015



In the Court of Appeals of Georgia
 A15A1597. HERRING v. THE STATE.

      BARNES, Presiding Judge.

      We granted Curtis Herring Jr.’s interlocutory review of the trial court’s order

overruling his special demurrer. Herring’s indictment charged him with eight sexual

offenses against his stepdaughter that took place during three different date ranges –

January 11, 2013 to October 28, 2013; October 28, 2013 to August 20, 2014; and

August 20, 2014 to September 24, 2014, representing the time periods that Herring and

the victim resided in the homes in which she alleged the sexual contact had occurred.

Specifically, Herring was charged with: (1) incest between January 11, 2013 and

October 28, 2013; (2) incest between October 28, 2013 and August 20, 2014; (3) incest

between August 20, 2014 and September 24, 2014; (4) child molestation between

August 20, 2014 and September 24, 2014; (5) child molestation between January 11,

2013 and October 28, 2013; (6) aggravated child molestation between October 28,
2013 and August 20, 2014; (7) aggravated sodomy between October 28, 2013 and

August 28, 2014; and (8) aggravated sodomy between October 28, 2013 and August

20, 2014.

      Herring filed a special demurrer to quash the indictment on the ground that the

State failed to adequately narrow the three date ranges, even though it had the ability

to do so. Following a hearing, the trial court overruled the demurrer, but certified its

order for immediate review. Herring now appeals from the grant of his interlocutory

application. On appeal, Herring contends that the indictment is imperfect in form

because the State alleged a month-long date range in Counts 3 and 4 even though the

victim was able to specify that she had sex with Herring on September 24, 2014. Upon

our review, and finding the indictment insufficient as to Counts 3 and 4, we reverse the

trial court’s denial of Herring’s demurrer as to those counts.

             In reviewing a ruling on a special demurrer, we apply a de novo
      standard of review, because it is a question of law whether the allegations
      in the indictment are legally sufficient. Further, because we are reviewing
      an indictment before any trial, we do not conduct a harmless error
      analysis to determine if the defendant has actually been prejudiced by the
      alleged deficiencies in the indictment; rather, we must apply the rule that
      a defendant who has timely filed a special demurrer is entitled to an
      indictment perfect in form and substance.

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(Citation omitted.) Blanton v. State, 324 Ga. App. 610, 614 (2) (751 SE2d 431) (2013).

      At the hearing on Herring’s special demurrer, the lead investigator who

interviewed the victim and who established the date ranges in the indictment, testified

that the victim could not remember the exact dates that the sexual contact had occurred.

However, she provided him with the three addresses that she had lived when she was

molested and that he had then derived the three date ranges in the indictment from the

dates on the lease agreements of each address. The victim told him that Herring had

sex with her “four or five” times when they lived at the Bark Avenue address which

was leased from January 11, 2013 to October 28, 2013, representing Counts 1 and 5.

They next leased a residence on El Pino Road from October 28, 2013 to August 20,

2014, Counts 2, 6, 7, and 8, where the victim alleged that sodomy had occurred and she

and Herring had sexual intercourse “ten or more times.”



      Herring and the victim next lived at an address on Highway 111, where the

victim was living when she made her outcry.1 The victim told the investigator that

Herring had sex with her on multiple occasions while at that location, and remembered

      1
      The Department of Family and Children Services removed the victim from the
home on October 6, 2014 after her disclosure.

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that September 24, 2014, between 5:30 and 6:30 p.m., was the last day that Herring

had sex with her. The date range alleged in the indictment was August 20, 2014 to

September 24, 2014, representing Counts 3 and 4. The investigator testified that he

included the range of dates because it represented the time Herring and the victim lived

on Highway 111 until the date the victim recalled as the last day they had sex.2

       The investigator testified that when the victim said that she could not remember

the dates that the sexual conduct had occurred, only where they were living when it

occurred, and once he was able to ascertain the dates in the different residences, he did

not attempt to further narrow the dates by asking the victim questions such as whether

the incidents occurred near Christmas, her birthday, or while she was in or out of

school. The investigator further testified that, rather than bring multiple charges for the

various acts, he had charged Herring with only one count each for the crimes

committed in each of the three residences.

       “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.”

(Citation and punctuation omitted.) State v. Godfrey, 309 Ga. App. 234, 239 (3) (709

       2
        The indictment does not specify any particular location for the alleged crimes,
other than “Grady County.”

                                            4
SE2d 572) (2011). We apply different standards when we review rulings on special

demurrers pretrial and post-trial. When reviewing a ruling before trial, we consider

whether the indictment is perfect in form and substance, but when reviewing it after

trial, we consider whether the defendant suffered actual prejudice from alleged

deficiencies in the indictment. State v. Gamblin, 251 Ga. App. 283, 284 (1) (553 SE2d

866) (2001). Here, we review the indictment pre-trial to consider whether it is perfect

in form and substance.

      “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.” (Citations, punctuation and footnote omitted.) State v. Layman, 279 Ga.

340, 340–341 (613 SE2d 639) (2005); see OCGA § 17-7-54 (a) (indictment should

state with sufficient certainty the time and place of committing offense). However, if

the State can show that the evidence does not permit it to allege a specific date, it may

allege that the crime occurred between two specific dates. Id. In response to a special

demurrer, the State must present evidence to the trial court showing that it cannot

narrow the date of the crime, and absent such a showing, an indictment failing to

charge a specific date is imperfect and subject to special demurrer. Blackmon v. State,


                                           5
272 Ga. App. 854, 855 (614 SE2d 118) (2005) (trial court erred in denying special

demurrer when State introduced no evidence, only argument, that minor victim was

“incapable of adequately articulating exactly when the offense occurred”).       Here, the

State presented evidence that the victim told the investigator that she and Herring last

had sexual intercourse on September 24, 2014 at the Highway 111 address and also

engaged in sexual conduct multiple times during the month they lived at the Highway

111 address. Herring was charged with one count of incest and one count of child

molestation between August 20, 2014 and September 24, 2014. The State contends that

the exception to the single-date rule applies in this case because the victim could not

identify the exact dates of “multiple prior occasions when [Herring] molested [the]

victim” at the Highway 111 address.

      However, the victim’s allegations that Herring committed multiple acts of

molestation and incest on unknown dates during that time period are irrelevant to the

issue here. Herring is charged with only one count each of incest and child molestation

during this date range. The evidence demonstrates that the State is able to identify a

single date on which the conduct occurred, September 24, 2014, and was therefore able

to narrow the date of those two crimes in the indictment. Thus, those counts of the


                                           6
indictment are subject to a special demurrer. See State v. Layman, 279 Ga. at 340-341;

State v. Meeks, 309 Ga. App. 855, 858 (1) (711 SE2d 403) (2011) (trial court did not

err in sustaining special demurrer when State presented no evidence about why an

investigating officer failed to ascertain specific dates of offenses allegedly occurring

during the two-month period alleged in the indictment.)

      Accordingly, because the evidence showed that the State reasonably could

narrow the range of dates alleged in Counts 3 and 4 of the indictment to a single date,

we reverse the order of the trial court overruling Herrings’s special demurrer as to

those counts.

      Our holding does not preclude the State from reindicting Herring on Counts 3

and 4 upon the return of this case to the trial court. Wallace v. State, 253 Ga. App.

220, 223 (3) (558 SE2d 773) (2002) (When a defendant files a special demurrer

challenging the form of an imperfect indictment, “the quashing of [the] indictment

merely bars trial on the flawed indictment; it does not bar the State from reindicting

the defendant.”) (footnote omitted).

      Judgment reversed. Ray and McMillian, JJ., concur.




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