☢ test - Í

Adams v. State, 288 Ga. 695, 707 S.E.2d 359 (February 7, 2011). Child molestation and aggravated child molestation convictions affirmed; proof at trial showed that offenses occurred with statute of limitation, even if not within dates alleged in accusation. “Adams ‘offered no alibi evidence, nor did he at any time request a continuance on the ground of surprise, nor did he otherwise express a need for additional time to rebut any evidence presented by the state. Consequently, it does not appear that the failure to allege the specific date of the offense in the indictment materially affected his ability to present a defense....’ [Cit.] Hutton v. State, 192 Ga.App. 239, 241(4) (384 S.E.2d 446) (1989). The victim was unable to give specific dates, but approximate dates can be determined based on the evidence the state did present. The dates proved at trial were prior to the return of the indictment and were within the applicable seven-year statute of limitation period.” Accord, Gordon v. State , 327 Ga.App. 774, 761 S.E.2d 169 (June 26, 2014). Foster v. State, 288 Ga. 98, 701 S.E.2d 189 (November 1, 2010). Convictions for malice murder and related offenses affirmed. “Foster contends that the evidence was insufficient to convict him of malice murder and aggravated assault as the indictment alleged that those crimes were committed on February 6, 2004, when the evidence did not establish that the crimes took place on that date, but rather after midnight and during the early moments of February 7, 2004. ‘The State is not required to prove beyond a reasonable doubt that the crimes occurred on the date alleged in the indictment where, as here, the indictment does not specifically state that the date of the offense is material.’ Waits v. State, 282 Ga. 1, 3(2) (644 S.E.2d 127) (2007). Clark v. State, 302 Ga.App. 156, 690 S.E.2d 466 (January 28, 2010). At defendant’s trial for rape, aggravated assault, false imprisonment, and battery, no fatal variance where indictment “alleged that Clark committed the offense of rape sometime between October 3 and October 5, 2003. J.C. testified, however, that Clark raped her on October 2, 2003. ‘[W]here the date alleged in the [special presentment] is not a material element of the offense, the [s]tate may prove the offense as of any date within the statute of limitation.’ Bradford v. State, 285 Ga. 1, 4(3) (673 S.E.2d 201) (2009) (citation omitted); see Carmichael [ v. State, 228 Ga. 834 (188 S.E.2d 495) (1972)]. The date alleged in the special presentment was not a material element of the offense of rape, see Heath v. State, 269 Ga.App. 872(1) (605 S.E.2d 427) (2004), and it fell within the applicable limitation period. See OCGA § 17-3-1(b). Although Clark contends that the difference in date unfairly surprised him at trial, he did not request a continuance from the court. Compare Bradford, supra.” Martin v. State, 294 Ga.App. 117, 668 S.E.2d 549 (October 20, 2008). “Martin claims that because he was relying on an alibi defense, the trial court erred in instructing the jury that it could disregard the specific date alleged in the indictment. We disagree. ‘It is well established that where the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations. An exception exists where the evidence of the state proving that the offense was committed at a time substantially different from that alleged in the indictment surprises and prejudices the defense in that it deprives the defendant of a defense of alibi or otherwise denies him his right to a fair trial.’ Lloyd v. State, 263 Ga.App. 234, 235, 587 S.E.2d 372 (2003). In this case, Martin does not argue that the State's evidence proved that the offense was committed at a substantially different time from that alleged in the indictment. The victim stated that the next time she saw Martin was on January 22, but from her testimony it could be inferred that it was actually in the early morning hours of January 23. Accordingly, there was no evidence from the State that the offense was committed at a time substantially different from that alleged in the indictment.” See also Dorsey (February 3, 2004). Taylor v. State, 292 Ga.App. 846, 666 S.E.2d 85 (July 3, 2008). Trial court should have merged convictions for aggravated child molestation (and similarly, sodomy), committed against same victim within same time span, where indictment “alleged that the ‘offense in Count 1 occurred at a different time than the offense alleged in Count 2’ but did not make the date an essential element of the offense. “Most recently this court in Hilliard v. State, 193 Ga.App. 54(1), 387 S.E.2d 21 (1989), held that when ‘[t]he two charges were indistinguishable since all of the averments including date (which was not made an essential element), victim, and description of defendant's conduct constituting the offense were identical[,][t]his lack of particularization permits the imposition of only one sentence.’ Compare Williams v. State, 202 Ga.App. 494, 496(2), 414 S.E.2d 716 (1992) (when the indictment states that the alleged commission date is a material averment, separate sentences may be imposed).” McDaniel v. State, 289 Ga.App. 722, 658 S.E.2d 248 (February 22, 2008). “The date range of April 18 to 22, 2003, alleged in the indictment is not an essential element of the burglary offense charged, and McDaniel did not assert a defense – alibi or otherwise – making the date material. Moreover, the date of April 30, 2003, is not substantially different from that alleged in the indictment and McDaniel clearly was not surprised by evidence of that burglary since his pre-trial