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State v. Combs9/25/2002
se have not been violated.
In conclusion, we find that the statute of limitations concerning the rape offenses was effectively tolled by the allegations of confinement contained in the presentment, as a whole, and that the allegations were proven at trial. Consequently, Defendant's six convictions for rape do not violate his constitutional rights prohibiting conviction for a time-barred crime. Because we also find that the failure to instruct the jury on the tolling issue did not constitute plain error, Defendant is not entitled to relief on this issue.
XI. Modification of Judgment
Our review has revealed a number of clerical errors in the judgments for both Evangeline and Joseph Combs. With regard to the especially aggravated kidnapping convictions, the judgment forms reflect that the Defendants were convicted of the offense in Tennessee Code Annotated section 39-13-301. The correct statute section number for this offense is 39-13-305. In addition, the judgment form for the aggravated rape conviction of Joseph Combs cites the current statute section number for this offense. The judgment form should reflect the statute section number in effect at the time the offense was committed: 39-2-603. We order that the judgments be modified to reflect the changes noted herein.
CONCLUSION
For the foregoing reasons, we reverse Defendant Joseph Combs' conviction for aggravated perjury and remand the matter for a new trial on that charge. In addition, we modify the judgments as stated in this opinion. In all other respects, we AFFIRM the judgments of the trial court.
Gary R. Wade, P.J., concurring.
While I concur in the results reached by the majority, it is my view that the failure to charge the lesser included offenses of facilitation of especially aggravated kidnapping and false imprisonment on the charge of especially aggravated kidnapping and reckless endangerment and assault on the charge of aggravated assault was, in fact, error. The majority implies that but does not so assert. I also believe that the error is harmless beyond a reasonable doubt as to each of those convictions. Most recently, in State v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002), our supreme court established that a contextual analysis of the entire record was necessary in order to determine whether the failure to charge a lesser included offense qualified as harmless beyond a reasonable doubt. In my opinion, the Allen ruling negates any implication in State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998), that the failure to instruct on lesser included offenses will always be harmless when the jury returns a verdict two levels in excess of an omitted lesser included offense.
With regard to defendant Joseph Combs' conviction for aggravated perjury, I fully agree that the trial court's failure to provide an instruction on the lesser included offense of perjury was error that does not qualify as harmless beyond a reasonable doubt and that a new trial should be granted on the primary charge.
GARY R. WADE, PRESIDING JUDGE
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