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Surplusage in an Indictment Does Not Create a Fatal Variance

A fatal variance may occur in a criminal trial where the proof presented at trial differs materially and prejudicially from the specific allegations in the criminal indictment. Such a variance is said to be 'fatal' as it can kill the State's case (and result in dismissal of the charges). It is a violation of an accused person's right to be fairly informed of the criminal charges against him or her. However, for a variance between the indictment and proof to be fatal, it must be both material to the charge and prejudicial to the accused. In the recent Tennessee case of State v. Lewis, E2014-00918-CCA-R3-CD (Tenn.Crim.App. 2-25-2015), the Court of Criminal Appeals rejected an appellant's claim of fatal variance where the variance was with a non-material allegation.

In the Lewis case, the Defendant had been charged with and convicted of rape of a child. One of the Defendant's arguments on appeal was that the State had initially alleged that one of the incidents in question had occurred in Cumberland Mountain State Park, and their proof at trial indicated that incident occurred 'in a state park in Crossville." The Defendant argued that as the State's proof did not specifically establish that incident as having occurred in Cumberland Mountain State Park, this created a fatal variance between the indictment and the proof. The Court of Criminal Appeals rejected that argument, noting that as long as the charges alleged and the proof showed that the crime occurred within the jurisdiction of the trial court, it did not matter in which specific park it occurred. Because the name of the park was not a material element, the State did not have to prove the name of the park where the crime occurred, regardless of having alleged its name in the pleadings. In addition, the Court concluded the Defendant was not misled by the pleadings or surprised at trial. Therefore, any variance regarding this was not fatal. The identification of the specific park in the pleadings was merely surplusage.

For more information regarding the sufficiency of a criminal indictment or fatal variance between indictment and proof, contact Hindman & Associates.

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