          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                              JULY 1998 SESSION
                                                    FILED
                                                    November 6, 1998

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,                   )             Appellate C ourt Clerk
                                      )
              Appellee,               )    C.C.A. No. 02C01-9707-CC-00277
                                      )
vs.                                   )    Madison County
                                      )
JOHN EDWARD CLARK,                    )    Hon. Whit Lafon, Judge
                                      )
              Appellant.              )    (Attempted Aggravated Robbery,
                                           Vandalism)



FOR THE APPELLANT:                         FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR. (appeal only)      JOHN KNOX WALKUP
Attorney at Law                            Attorney General & Reporter
113 N. Court Square
Waverly, TN 37185                          GEORGIA BLYTHE FELNER
                                           Counsel for the State
GEORGE MORTON GOOGE                        425 Fifth Ave. N., 2d Floor
(at trial and of counsel on appeal)        Nashville, TN 37243-0493
District Public Defender

STEPHEN P. SPRACHER                        JAMES G. (JERRY) WOODALL
(at trial and of counsel on appeal)        District Attorney General
Asst. Dist. Public Defender
227 W. Baltimore St.                       JAMES W. THOMPSON
Jackson, TN 38301                          Asst. District Attorney General
                                           P.O. Box 2825
                                           Jackson, TN 38302



OPINION FILED:________________



REVERSED & DISMISSED - ATTEMPTED AGGRAVATED ROBBERY
AFFIRMED - VANDALISM


CURWOOD WITT, JUDGE
                                     OPINION

               The defendant, John Edward Clark, stands convicted of attempted

aggravated robbery and vandalism following his jury trial in the Madison County

Circuit Court. He is presently incarcerated in the Department of Correction serving

the effective ten year sentence imposed for his crimes. In this direct appeal, Clark

challenges (1) the sufficiency of the indictment charging him with attempted

aggravated robbery in that it does not identify the victim, and (2) the length of the

sentence imposed for attempted aggravated robbery. After a review of the record,

the briefs, and the applicable law, we find the attempted aggravated robbery

indictment fatally deficient, although not for the reason advanced by the defendant.

As a result, the prosecution is a nullity, and we have no jurisdiction to consider the

second issue.



               The state's evidence at trial was that Clark approached the owner of

a Madison County shoe store as the owner arrived at his store. Clark stuck a gun

in the man's side and demanded the man give him everything he had. Clark was

scared away when a passerby called him by name. Clark was apprehended later

that day. While being transported by the authorities, he kicked out a window in a

patrol car.1



               Thereafter, the Madison County Grand Jury returned a two-count

indictment of the defendant. Count one alleged

       [T]hat John Edward Clark on or about August 17, 1996, in Madison
       County, Tennessee, and before the finding of this indictment, did
       unlawfully and knowingly attempt to commit the criminal offense of
       Aggravated Robbery, in violation of T.C.A. §39-12-101 and T.C.A.


       1
        Not surprisingly, Clark's version of events differed from the state's
evidence. Clark claimed that both he and the owner of the shoe store were
interested romantically in the same person, and this romantic rivalry resulted in a
false accusation against him. Clark admitted, however, that he kicked out the
window of the patrol car.

                                          2
       §39-13-402, all of which is against the peace and dignity of the State
       of Tennessee.

Count two alleged

       [T]hat John Edward Clark on or about August 17, 1996, in Madison
       County, Tennessee, and before the finding of this indictment, did
       knowingly cause damage to and/or destruction of property, to wit: the
       window in a patrol car belonging to the Jackson Police Department,
       under the value of Five Hundred Dollars ($500.00), in violation of
       T.C.A. § 39-14-408, all of which is against the peace and dignity of
       the State of Tennessee.



                In his first issue, the defendant alleges that count one of the

indictment

is fatally deficient because it fails to name the victim. A lawful accusation is a

condition precedent to jurisdiction, and a judgment obtained in the absence of an

indictment alleging each essential element of the offense is a nullity. State v.

Trusty, 919 S.W.2d 305, 309-10 (Tenn. 1996) (citations omitted). In this regard, a

defendant is entitled to knowledge of "the nature and cause of the accusation."

U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Tennessee law further requires that

an indictment

      state the facts constituting the offense in ordinary and concise
      language, without prolixity or repetition, in such a manner as to enable
      a person of common understanding to know what is intended, and
      with that degree of certainty which will enable the court, on conviction,
      to pronounce the proper judgment . . . .

Tenn. Code Ann. § 40-13-202 (1997) (emphasis added). Furthermore, the purpose

of an indictment is threefold. "First, it must inform the defendant of the precise

charges.     Second, it must enable the trial court upon conviction to enter an

appropriate judgment and sentence; and, last, it must protect defendant against

double jeopardy." State v. Trusty, 914 S.W.2d 305, 309 (Tenn. 1996).



               The defendant argues that the victim's identity is essential to

prosecution of the offense. In this regard, we note that Tennessee courts have


                                         3
allowed amendments of indictments to reflect properly the victims' names. See,

e.g., State v. Preston Carter, No. 02C01-9504-CR-00100, slip op. at 5 (Tenn. Crim.

App., Jackson, July 26, 1996); State v. Hensley, 656 S.W.2d 410, 413 (Tenn. Crim.

App. 1983). In such cases, the appellate courts have observed that a change in the

victim's name has not served to change the identity of the crime charged. See, e.g.,

Preston Carter, slip op. at 5; Hensley, 656 S.W.2d at 413; accord Tenn. R. Crim. P.

7(b) (amendment to indictment without defendant's consent allowed prior to

jeopardy attaching where "no additional or different offense is thereby charged and

no substantial rights of the defendant are thereby prejudiced").            Moreover,

aggravated robbery (or in this case, attempted aggravated robbery) is not classified

as an offense based upon its perpetration against certain classes of individuals,

such as police officers or children under a specified age.2 In other words, the

identity of the victim does not serve to identify the crime. Thus, the identity of the

victim is not an essential element of the crime, and the charging instrument is not

defective merely for failing to identify the victim.3



                      That said, we have discerned a broader flaw in count one, of

which failure to identify the victim may be a facet. We are obliged to notice the flaw

as plain error. See Tenn. R. App. P. 52(b). As Tennessee law provides, defects

in or objections to an indictment based upon failure to show jurisdiction or failure to


       2
       Cf., e.g., Tenn. Code Ann. § 39-13-502(a)(3)(B) (1997) (aggravated rape
- mentally defective, mentally incapacitated or physically helpless victim); Tenn.
Code Ann. § 39-13-504(a)(3)(B), (4) (1997) (aggravated sexual battery - victim
mentally defective, mentally incapacitated or physically helpless, or victim under
13 years of age); Tenn. Code Ann. § 39-16-102 (1997) (bribery of public
servant).
       3
        In such a case, however, a defendant needing more information in order
to adequately prepare for trial on the charges against him might move the court
to order the prosecution to provide a bill of particulars. See Tenn. R. Crim. P.
7(c). The defendant in the case at bar makes no allegation that he was unable
to prepare for trial by virtue of the indictment's failure to identify the victim in
count one. Accordingly, we fail to see how the absence of the victim's name has
rendered this defendant uninformed of the nature of the charge against him.

                                           4
charge an offense "shall be noticed by the court at any time during the pendency

of the proceedings[.]" Tenn. R. Crim. P. 12(b)(2). In the case at bar, count one fails

to charge an offense.



               In Warden v. State, 214 Tenn. 391, 394, 381 S.W.2d 244, 245 (1964),

our supreme court observed that an "indictment must state 'such facts and

circumstances as will constitute the crime, and not merely a legal result' or

conclusion."     (citations omitted).   Furthermore, according to Warden, this

“constitutional” principle has been embodied in (former) Code section 40-1802 (now

40-13-202), the provision which defines the requisites of an indictment. Warden,

214 Tenn. at 394, 381 S.W.2d at 245. “[A] mere statement of a legal result or

conclusion . . . [is] insufficient to charge an offense.” Warden, 214 Tenn. at 395,

381 S.W.2d at 246; see also State v. Cutshaw, 967 S.W.2d 332, 338 (Tenn. Crim.

App. 1997). “By requiring the indictment to allege the facts which constitute the

offense, Tennessee necessarily requires that the factual allegations must relate to

all the essential elements of that offense . . . .” State v. Marshall, 870 S.W.2d 532,

537 (Tenn. Crim. App. 1993) (emphasis added); see also VanArsdall v. State, 919

S.W.2d 626, 630 (Tenn. Crim. App. 1995) (“[I]n addition to alleging the elements,

the indictment must state facts which constitute the offense.”); State v. William E.

Norman, No. 03C01-9309-CR-00306, slip op. at 6 (Tenn. Crim. App., Knoxville, Oct.

25, 1994) (“If Count I of the indictment had merely stated that the Defendant was

being accused of Aggravated Rape, and even if this was coupled with the time,

place and victim of the alleged crime, this would merely be stating a legal result or

conclusion. . . . “)



               "Robbery is the intentional or knowing theft of property from the

person of another by violence or putting the person in fear." Tenn. Code Ann. § 39-

13-401(a) (1997).       The crime is elevated to aggravated robbery if it is

                                          5
"[a]ccomplished with a deadly weapon or by display of any article used or fashioned

to lead the victim to reasonably believe it to be a deadly weapon" or if "the victim

suffers serious bodily injury.” Tenn. Code Ann. § 39-13-402(a) (1997). A person

commits the crime of criminal attempt who

       acting with the kind of culpability otherwise required for the offense:
       (1) Intentionally engages in action or causes a result that would
       constitute an offense if the circumstances surrounding the conduct
       were as the person believes them to be;
       (2) Acts with intent to cause a result that is an element of the offense,
       and believes the conduct will cause the result without further conduct
       on the person's part; or
       (3) Acts with intent to complete a course of action or cause a result
       that would constitute the offense, under the circumstances
       surrounding the conduct as the person believes them to be, and the
       conduct constitutes a substantial step toward the commission of the
       offense.

Tenn. Code Ann. § 39-12-101(a) (1997).


              Judging the language of count one of the indictment against the

statutory definition of the offense, it is clear that the indictment alleges a legal

conclusion -- that the defendant committed attempted aggravated robbery -- without

alleging the facts and circumstances which constitute that crime. Count one does

not, for example, allege that the victim was placed in fear or that the defendant

employed a weapon. Cf., e.g., State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim.

App. 1979) (DUI warrant which failed to allege that defendant was driving held void

because it failed to charge an offense); McCracken v. State, 489 S.W.2d 48, 52-53

(Tenn. Crim. App. 1972) (kidnapping presentment which failed to allege asportation

and secrecy held void, no offense charged). Thus, this count of the indictment fails

to charge an offense, and the judgment based thereon is a nullity and cannot stand.

See Trusty, 919 S.W.2d at 309-10; State v. Perkinson, 867 S.W.2d 1, 5 (Tenn.

Crim. App. 1992).



              We are aware that our supreme court has recently said that “where

the constitutional and statutory requirements outlined in [State v. Hill, 954 S.W.2d

                                          6
725 (Tenn. 1997)] are met, an indictment which cites the statute and uses its

language will be sufficient to support a conviction.” George A. Ruff v. State, ---

S.W.2d ---, No. 03S01-9711-CC-00140, slip op. at 11 (Tenn. Sept. 28, 1998)

(indictment challenged for failure to allege culpable mental state). While the court

in George A. Ruff affirms its statement in Hill that it has “relaxed the strict pleading

requirements of common law,” George A. Ruff, slip op. at 11, there is no indication

that such relaxation goes so far as to overturn the mandate of Warden that the

indictment state facts and not mere results or conclusions. The court in George A.

Ruff used the “constitutional and statutory requirements outlined in Hill” as a

touchstone for indictment sufficiency. George A. Ruff, slip op. at 11 (emphasis

added). The statutory requirement amplified by Hill is the above quoted Code

section 40-13-202 which requires the indictment to “state the facts constituting the

offense.” Hill, 954 S.W.2d 726-27. Thus, we do not read George A. Ruff as

authorizing indictments which merely allege that an accused committed the offense

that is proscribed by a named statute. Such an allegation is patently conclusory and

is, per Warden and its progeny, insufficient to meet either constitutional or statutory

standards for indictments.



              Because the law requires that a conviction be premised upon a lawful

charging instrument and there is none in this case, we are obliged to notice the

deficiency as plain error.4 To be sure, we do not have jurisdiction to affirm a

conviction imposed by a court which had, by virtue of the void charging instrument,

no jurisdiction to impose the conviction.




       4
        Because of the four-year statute of limitations, discussed infra at n.5,
declining to address the issue as plain error on direct appeal would likely result in
expiration of the limitations period for prosecution before conclusion of possible
post-conviction or habeas corpus actions. In such a situation, the state would be
time-barred from seeking a sufficient indictment and prosecuting the defendant.

                                            7
              However, because there has been no lawful prosecution of the

defendant in the case at bar, jeopardy has not attached with respect to the events

which formed the basis of his attempted aggravated robbery conviction. Rivera v.

State, 1 Tenn. Crim. App. 395, 398, 443 S.W.2d 675, 677 (1969) ("[I]t is

fundamental that a defendant is not placed in jeopardy in a void criminal trial.")

Therefore, the state may, within the applicable statutorily prescribed period,5 obtain

a new indictment which conforms to the dictates of Tennessee law and prosecute

the defendant accordingly. See Cutshaw, 967 S.W.2d at 339 n.3 (Byers, J.,

concurring in results).



              Our finding relative to the attempted aggravated robbery conviction

renders moot the defendant's complaint about the length of his effective ten-year

sentence.6 Thus, we decline to engage in a gratuitous discussion of the alleged

errors.



              In sum, we find a fatal deficiency in the attempted aggravated robbery

indictment and reverse and dismiss the attendant conviction. On the other hand,

no error has been alleged or discovered relative to the vandalism conviction, which

we affirm.



                                           _______________________________
                                           CURWOOD WITT, JUDGE

CONCUR:



_____________________________


          5
       The statute of limitations for a Class C felony is four years. Tenn. Code
Ann. § 40-2-101(a)(3) (1997).
          6
       The defendant made no complaint about the 11 month, 29 day
concurrent sentence he received for vandalism.

                                          8
JOE G. RILEY, JUDGE



_____________________________
ROBERT W. WEDEMEYER, SPECIAL JUDGE



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