         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    January 9, 2007 Session

                 STATE OF TENNESSEE v. JANICE BURNETTE

                 Direct Appeal from the Circuit Court for Hardeman County
                         No. 05-01-0113   J. Weber McCraw, Judge


                      No. W2006-01203-CCA-R3-CD - Filed June 1, 2007


David G. Hayes, Judge, separate concurring.


         I join with the majority in affirming the defendant’s conviction of theft. I write separately
because I conclude, as argued by the defendant, that a variance exists between the indictment and
the proof presented at trial. The indictment charged the defendant with theft of “pseudoephedrine
products,” whereas the proof at trial established that the defendant had “been sliding merchandise
to five people in the amount of $20.00 every other week” over a period of twenty-four weeks. I find
the proof in the record fails to establish beyond a reasonable doubt, either directly or
circumstantially, that the defendant stole “pseudoephedrine products.” Nonetheless, before a
variance will be deemed fatal to a prosecution, it must be both material and prejudicial. State v.
Moss, 662 S.W.2d 590, 592 (Tenn. 1984). In determining whether a variance is fatal, our supreme
court in Moss held:

       Unless substantial rights of the defendant are affected by a variance, he has suffered
       no harm, and a variance does not prejudice the defendant’s substantial rights (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; all other variances must be considered to be
       harmless error.

Id.

       Because the defendant has failed to satisfy either prong of the test articulated by Moss, I
conclude that the variance did not affect the results of the trial on the merits; thus, the error was
harmless. See Tenn. R. Crim. P. 52(b).


                                                      _______________________________
                                                      DAVID G. HAYES, JUDGE
