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IN THE COURT OF APPEALS 8/20/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-00167 COA

JIMMY LEE JOHNSON APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. EUGENE M. BOGEN COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: LELAND H. HONES, III ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. NATURE OF THE CASE: CRIMINAL TRIAL COURT DISPOSITION: CONVICTED OF ATTEMPTED SEXUAL BATTERY AND SENTENCED TO SERVE TWENTY YEARS IN THE CUSTODY OF MDOC, AND ORDERED TO PAY ALL COURT COSTS.

BEFORE THOMAS, P.J., DIAZ, AND PAYNE, JJ.

THOMAS, P.J., FOR THE COURT: Jimmy Lee Johnson was convicted of attempted sexual battery and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. From this conviction he appeals to this Court assigning two alleged errors. Finding no error, we affirm. FACTS Because Johnson raised neither the weight or sufficiency of the evidence on appeal, a detailed statement of the facts is not needed. The evidence presented at trial showed that in late November or early December of 1991, Johnson took his eleven-year-old second cousin, S.W. to the house in which he was living, threw her down on the bed, pulled down her pants and panties, and attempted to penetrate her sexually. S.W. reported the incident to the police, a few weeks later, on December 7, 1991. Even though S.W. reported the incident on December 7, 1991, stating that the events occurred some time prior to that date, the grand jury returned an indictment alleging that "on the 9th day of December 1991," Johnson committed the act which constitutes sexual battery. The proof at trial showed that the crime occurred prior to December 7, 1991, and not on the date in the indictment. At the close of the State's case in chief, the prosecutor moved the trial court to amend the indictment to allege that the offense had been committed "prior to the 9th of December." Johnson objected to the amendment of the indictment arguing that one of the defenses in his case was that of alibi, in that Johnson could not have committed the crime on December 9, 1991, because he was incarcerated in the Greenwood City Jail. The trial court overruled Johnson's objection and allowed the indictment to be amended, finding that the date on which the incident occurred was not an essential element of the offense. Johnson then moved for a continuance which was denied by the trial court. I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE INDICTMENT TO BE AMENDED?

Johnson submits to this Court that the trial court erred in allowing the indictment to be amended because the amendment destroyed his alibi defense. In support of this argument, Johnson cites to this Court Shelby v. State, 246 So. 2d 543, 545 (Miss. 1971), where our supreme court stated that "[i]t is well settled in this state, as was noted by the learned circuit judge, that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." However, in this case, the amendment of the indictment did not prejudice the Defendant's case. Section 99-7-5 of the Mississippi Code provides the following: An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where the time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been

committed on a day subsequent to the finding of the indictment, or an impossible day, or on a day that never happened, nor for the want of a proper or perfect venue.

Miss. Code Ann.

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