Doe v. StateDoe v. State
Following a jury trial, Curtis Lee Doe was convicted of attempting to influence the winning of a prize by tampering with lottery equipment in violation of the Georgia Lottery for Education Act. 1 Doe appeals from the conviction entered on the verdict and the denial of his motion for a new trial, claiming (i) numerous errors related to what he claims was a defective indictment, (ii) that the criminal statute under which he was charged does not apply to his conduct, (iii) that there was a fatal variance between the indictment and the evidence adduced at trial, and (iv) that the trial court erred in charging the jury. We find no error and affirm.
Construed most strongly in support of the verdict, 2 the evidence shows that at approximately 1:30 a.m. on February 23, 2004, Doe *349 entered a convenience store in Tattnall County. Doe lived near the store, and he was a regular customer who was known by the store employees.
While the employee working the night shift was cleaning, she heard a squeaking noise coming from the counter where the lottery tickets were kept. The employee went to the counter and asked Doe, who was the only other person in the store, if he had taken some lottery tickets. Doe denied having taken any tickets and left the store.
When the employee reported the incident to her manager, the manager reviewed the surveillance video for that morning as well as surveillance video for two previous days. On each of the three recordings, Doe could be seen reaching over the counter and taking lottery tickets off the plastic wheels on which they were rolled. The manager of the convenience store conducted an inventory of the remaining lottery tickets and presented evidence as to each type of lottery ticket that was taken on the three days in question.
1. Doe makes several claims regarding what he alleges was a defective indictment. “The true test of the sufficiency of an indictment is not whether it could be made more certain and definite, but whether it contains the elements of the offense charged, apprises the accused of what he must be prepared to defend against, and protects against double jeopardy.” 3 This Court applies a de novo standard of review to a trial court’s determination that the allegations in an indictment were legally sufficient. 4
Here, the indictment charged Doe
with the offense of FALSELY UTTERING A STATE LOTTERY TICKET ([OCGA §] 50-27-27), a Felony, for that the said accused in the County of Tattnall and the State of Georgia on or about the dates between the 19th day of February, 2004 and the 23rd day of February, 2004 . . . did, with intent to influence the winning of Georgia Lottery prizes by tampering with lottery materials, to wit: said accused did take approximately 20 Lucky Seven tickets, 31 Mini Mega Buck tickets, 5 Strike it Rich tickets and 39 Match Money Tickets from Time Saver #86 in Tattnall County, Georgia, contrary to the laws of said State, the good order, peace and dignity thereof.
Doe complains that the indictment was defective because it referenced “falsely uttering” a state lottery ticket, which is pro
*350
scribed under
Here, the indictment informed Doe that he was accused of attempting “to influence the winning of Georgia Lottery prizes by tampering with lottery materials[,]” and Doe was apprised of what he should be prepared to defend against at trial. Indeed, during the proceeding in which the trial court considered Doe’s demurrer, Doe acknowledged he was being charged with “tampering of [sic] the lottery material” based upon having taken the lottery tickets as alleged in the indictment, and the prosecutor acknowledged the error in referencing “uttering” a ticket in the caption of the indictment.
While Doe claims that the reference to “falsely uttering” a lottery ticket was “extraneous and prejudicial[,]” we have already held that “mere surplusage does not vitiate an otherwise sufficient indictment.” 6 Doe was not harmed by the erroneous reference to “falsely uttering” a lottery ticket, and because “[a]ny error in failing to give him a ‘perfect’ indictment is subject after trial to a harmless error test,” the enumerations alleging that the indictment was defective are without merit. 7
2. Doe also claims that the statute under which he was charged does not apply to his conduct. As set forth previously, the indictment charged Doe with attempting to influence the winning of lottery prizes by tampering with lottery materials in violation of
*351
While Doe claims that
As in
Riddle,
Doe’s actions were for the purpose of influencing the winning of a prize offered by the Georgia Lottery Corporation because he took the tickets in order to win lottery prizes for himself even though such conduct deprived other customers of the opportunity to lawfully purchase those tickets.
10
In addition, his action of leaning over the counter that stored the tickets, rolling the tickets off the plastic wheels on which they were housed, ripping the tickets off the rolls, and taking them for his own use constituted “tampering with lottery . . . materials.”
11
Given that the state presented evidence that Doe violated both the “influencing” and “tampering” elements of
3. Doe also claims that there was a fatal variance between the allegations of the indictment and the evidence presented at trial. He bases this claim on the state’s introduction of evidence that, in addition to taking the lottery tickets, he scratched off the concealing material on some of the tickets to see if he had won any prizes.
A fatal variance is created when there is such a variance between the allegations of an indictment and the evidence presented at trial “as to affect the substantial rights of the accused.” 13 Here, however, there was no variance because the state introduced evidence as to every essential element of the indictment. In addition to the testimony of the store employees, video recordings showed Doe taking the lottery tickets just as alleged in the indictment. The video evidence of Doe scratching the concealing material off the tickets served as additional evidence that he sought to influence the winning of lottery *352 prizes and also bolstered the evidence that the items he was seen taking on the video were, in fact, lottery tickets. Given that there was no variance between the allegations in the indictment and the evidence produced at trial, Doe’s claim that there was a fatal variance has no merit. 14
4. Doe also alleges the trial court erred in failing to instruct the jury that the state was required to prove the offense was committed in the same manner as set forth in the indictment. Even if Doe had properly preserved this error for consideration on appeal, 15 his claim is not supported by the record. Instead, the transcript of the trial proceedings shows that the trial court instructed the jury: (i) “No person shall be convicted of any crime unless and until each element of the crime as charged is proven beyond a reasonable doubt”; and (ii) “The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.”
In addition, the trial court did not err in charging the jury as a result of having read the indictment,, including the erroneous reference to “falsely uttering” a lottery ticket. As stated in Division 1, the body of the indictment clearly defined and described the offense Doe was charged with having committed. Because no confusion could have resulted from reading the indictment as written, Doe has failed to establish that the trial court erred in charging the jury. 16
Judgment affirmed.
Notes
See
Riddle v.
State,
Hester v. State,
State v. Pittman,
(Citation and punctuation omitted.)
State v. Eubanks,
State v. Barnett,
Eubanks, supra at 489.
Riddle, supra at 139 (1).
Id.
Id.
See
See Riddle, supra.
(Citation omitted.)
Delacruz v. State,
See
Adcock v. State,
See
Allen v. State,
Zinnamon v. State,