Agg kidnapping by sex assault. In indictment the agg kidnapping alleges victim as pseu 071234, but under the sex asslt number transposed 071243. The typo is not noticed until trial court does jury chg - corrected in jury chg - def guilty. No trial amendment allowed - def counsel objects. Is this a fatal variance or can the rationale of Fuller, 73 S.W.3d 250, etc apply? The problem is that to be agg kidnap there must be sex asslt of same victim. Is this a necessary element, unlike the rationale of Fuller where the name is not a necessary element? Or can we use the rationale of notice - no surprise to defendant? Haven't found any cases yet that address this type of error - any one know of any?

I don't see why Fuller wouldn't apply. The victim's name isn't an element, so it's not a fatal variance so long as the defendant has notice of who he is being charged with assaulting. The pseudonym is just standing in place of the name, so I don't see why it would suddenly become an element.

And the doctrine of idem sonans would apply. Funny to apply the notion that one number "sounds" like another number, when the numbers serve as names.

The problem is that to get agg kidnapping you must show sex assault -- and I would think it would have to be the same victim. So did we show sex assault of "one victim" and kidnapping of "another"? Usually a name would not be a element, but in this case is it? Isn't it like the example in Fuller concurrence that states if a person kills 2 people - and one of them is misidentified, then acquittal is the proper answer, and the State is not double jeopardy barred. Here, the State showed kidnap of one victim but "technically" no sexual assault because the victim was misidentified in the indictment. We have two problems to be addressed - one is the misnomer typo error enough to grant a new trial, and if it is, is the new trial double jeopardy barred?

[This message was edited by pkdyer on 06-02-09 at .]

As long as the defendant has notice that it's the same person and you actually PROVE that it's the same person, I don't see it as being a problem.

If Shaday can be spelled Sade, then six can be nine.

Wasn't Fuller based on Gollihar which dealt with transposed numbers? [I mean, I know it was go karts not names, but the rationale of both cases should apply.]

[This message was edited by David Newell on 06-02-09 at .]

I concur with David. It seems that Gollihar is as good as it gets for this issue--those tricky go-kart serial numbers!

JAS

Iden Sonans is pretty close to Idem Sonans.

I'm glad typos aren't a fatal variance for forum posts.

Thanks for the heads up, I've corrected it.

I thought you were just showing us some of that famous Newell ironic sense of humor.

I'm finishing up a presentation so I'm distracted. I was doing well to get two music references in there.

And what about Stevens v. State, 891 S.W.2d 649? This pre-dates Fuller, but it says that the fatal variance doctrine doesn't even apply when you're using a pseudonym so long as notice is satisfied. So, say he argues Fuller doesn't apply because that was where you don't care about the name of the victim. You respond that fatal variance doesn't apply anyway because of the statute that allows you to use a pseudonym. So you're right back to notice. If he didn't request the true identity under the statute it would seem to suggest that identity wasn't an issue to him.

Am I making sense?

[This message was edited by David Newell on 06-02-09 at .]