Lynch v. State

A jury found Raoul Lynch guilty of committing rape, kidnapping with bodily injury, two counts of aggravated assault, and burglary.1 He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his plea in bar and in instructing the jury, that the prosecution on the charges violated his constitutional rights, that he received ineffective assistance of counsel, and that the evidence was insufficient to support his kidnapping conviction. For the reasons set forth infra, we reverse his convictions and remand this case to the trial court for a new trial solely on the rape charge.

Viewed in the light most favorable to the jury's verdict,2 the record shows the following facts. Late on the evening of June 5, 1995, a woman (hereinafter, "the victim") was entering her Fulton County condominium unit ("condo") when a man grabbed her around her throat with "extreme force" and placed her in a headlock. The victim was unable to scream due to being choked. The man pushed her inside the condo while repeatedly demanding "Give me all your money" and "Where [are] we at?" Once inside the condo, the man punched her in the face several times, then pushed her toward the back of the condo and shoved her into a wall, telling her, "Don't make a sound." While the victim begged the man not to kill her, he pushed her into her bedroom and shoved her against a bedpost with such force that it broke in half. The man demanded her money and jewelry, and she told him to take her wallet, her car, and anything in the condo in the hope that he would leave.

The man, however, forced the victim to her knees, used her belt to tie her hands behind her back, and tied a towel around her face so that she could not see and had difficulty breathing. The man picked her up, threw her on her bed, and pulled off her underwear. He grabbed her hair and raped her for a "very, very long time" in a manner the victim described as "brutal," while she begged him to stop. The man also anally sodomized her and forced her to perform oral sex on him.

During the attack, which lasted several hours, the victim was only able to get brief glimpses of the assailant because the lights were off in the condo and, during most of the attack, there was a towel covering her face. Eventually, the man got dressed and, as he was leaving the condo, told her that, if she reported the assault, she "might not make it next time."

After the man left, the victim called her parents and 911 to report the assault. She was transported by ambulance to a hospital, *344where she received treatment for her multiple injuries. An emergency room physician also performed a sexual assault examination on the victim and collected bodily fluids, hair clippings, and other evidence from her for a sexual assault kit that was then provided to the Fulton County Police Department. The police department, in turn, delivered the sexual assault kit, along with evidence collected from the victim's condo, to the Georgia Bureau of Investigation's Division of Forensic Sciences ("crime lab") for testing.

On October 4, 2001, a crime lab forensic biologist compared a profile that had been created from a sample of deoxyribonucleic acid ("DNA") from the assailant in this case to DNA profiles that had been entered into the national Combined DNA Index System ("CODIS") database. According to the forensic biologist, the assailant's DNA profile matched a profile that had been created from a DNA sample obtained from the Appellant.

Based upon the DNA match in the CODIS database, a Fulton County officer obtained an arrest warrant for the Appellant on October 30, 2001. However, the officer failed to enter the warrant into the state-wide Georgia Crime Information Computer ("GCIC") system. It was not until July 2002, when another officer was assigned to the case, that the warrant was entered into the GCIC system. Although officers then obtained addresses where the Appellant had recently lived, when they attempted to locate him at those addresses, they found the residences unoccupied.3 The Appellant was eventually arrested in New York and returned to Fulton County in August 2007.

In May 2005, about four years after the Appellant's DNA was matched with the assailant in this case on the CODIS database, the State filed an indictment charging the Appellant with rape, kidnapping with bodily injury ("kidnapping"), two counts of aggravated assault, and battery.4 In June 2008, the State filed another indictment against the Appellant, charging him with the same crimes as in the 2005 indictment, but adding language to each count stating that his identity as the perpetrator had been established through deoxyribonucleic acid (DNA) evidence.5 The Appellant was arraigned on the 2005 and 2008 indictments on July 18, 2008. Then, in September 2010, the State filed a third indictment that charged the Appellant with the same crimes and included the same DNA-related language as in the previous indictments, but each count also included the statement that "the identity of the accused was not known to the State until October 4, 2001[.]"

In November 2010, the Appellant filed a plea in bar challenging the validity of the indictments, arguing that the 2005 indictment was fatally defective because it was filed outside of the applicable statute of limitation periods and did not allege any tolling provisions or exceptions to the running of the statutes of limitation. He also argued that, because the 2005 indictment was fatally defective, the 2008 and 2010 indictments were impermissible superseding indictments that could not relate back to the invalid 2005 indictment as a matter of law. According to the Appellant, because he could not be tried on an invalid indictment, the charges against him had to be dismissed.

The trial court denied the plea in bar, concluding that the State had timely filed the 2005 indictment and that the 2005 indictment was still pending at the time the State filed the 2008 and 2010 indictments. The court ruled, therefore, that the 2008 and 2010 indictments were valid superseding indictments because they related back to the 2005 indictment. The court also found that, because the Appellant failed to file a demurrer or plea in bar challenging the validity of the 2005 and 2008 indictments within ten days after arraignment on those indictments, he *345had waived his challenge to the validity of those indictments.

The case proceeded to trial and, in April 2011, a jury found the Appellant guilty of rape, kidnapping, two counts of aggravated assault, and burglary. The trial court denied the Appellant's motion for new trial, and this appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia ,6 and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.7

"The standard of Jackson v. Virginia ,8 is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged."9 With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

1. As an initial matter, we must address the Appellant's contention that the trial court erred in applying the 1996 amendment to former OCGA § 17-3-1 (b),10 which extended the statute of limitation period for rape from seven to fifteen years,11 to the 1995 rape in this case, arguing that it constituted an unconstitutional retroactive application of the amendment. We disagree.

(a) Both the federal and state constitutions prohibit the enactment of an ex post facto law.12 "To determine whether a penal statute is an ex post facto law, we employ a three-step analysis: First, we ask whether the law applies retrospectively. If it does not, our inquiry is at an end. A penal statute is retrospective if it alters the consequences for crimes committed prior to its enactment."13 Such consequences include, among other things,

the infliction of a greater punishment than was permitted by the law in effect at the time of the commission of the offense, the subsequent proscription of an act which was not a crime when done, the alteration of the quality or degree of the charge, the requirement of less or different evidence than was necessary at the time of the violation, and the deprivation of any substantial right or immunity possessed at the time the defendant committed the act.14

In Flournoy v. State ,15 this Court rejected the defendant's argument that the 1996 amendment to OCGA § 17-3-1 (a) was unconstitutionally applied in the prosecution of a *346rape that was committed in 1995. Specifically, this Court ruled that,

[w]here a statute extends the period of limitation, the extension applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period. Such a statute, however, cannot operate to revive offenses that were barred at the time of its enactment, since that would make the statute ex post facto.16

Thus, this Court found that the limitation period for the rape committed by Flournoy on December 13, 1995, expired fifteen years from that date under OCGA § 17-3-1 (a), even though the legislature had extended the limitation period from seven to fifteen years in 1996, after the rape occurred, as in this case.17 According to this Court, "[n]o ex post facto violation [arose] because the original seven-year limitation period had not expired at the time OCGA § 17-3-1 was amended in 1996."18

For the same reason, we find that this alleged error lacks merit and that the trial court properly ruled that the applicable statute of limitation period for the rape charge in this case was 15 years.

(b) Further, to the extent the Appellant raises an ineffective assistance claim based upon counsel's failure to argue that the retroactive application of the 1996 amendment violated other constitutional rights besides the protection against ex post facto laws, such claim is moot for the reasons given in Division 6, infra.

2. We also conclude that, in its order denying the Appellant's plea in bar, the trial court properly ruled that former OCGA § 17-3-1 (c.1),19 which eliminated the statutes of limitation for rape and kidnapping when DNA evidence was used to identify the accused, applied only to offenses committed on or after July 1, 2002,20 and, thus, did not apply in the instant case.21

3. The Appellant contends that the trial court erred in denying his plea in bar as to the charges in all three indictments. His arguments attack each of the three indictments independently, as well as collectively to the extent that the court ruled that the 2008 and 2010 indictments were valid superseding indictments that related back to the 2005 indictment.

The appellate standard of review for a plea in bar asserting a statute of limitation[ ] defense is a de novo review of the issue of laws. Since this ruling involves a mixed question of fact and law, we accept the trial court's findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.22

For the following reasons, we find that the trial court erred in denying the Appellant's plea in bar as to the charges for kidnapping, aggravated assault, and battery. However, the trial court properly denied the plea in bar as to the rape charge.

*347(a) (i) The 2005 Indictment . The record shows that, on May 27, 2005, the State indicted the Appellant for rape, kidnapping, aggravated assault, and burglary,23 alleging that the Appellant committed those offenses against the victim on June 6, 1995. The indictment also charged him with committing an aggravated assault against the victim on June 1, 1995.24 Although almost ten years had passed between the date the crimes were committed and the filing of the indictment, the indictment was timely filed within the fifteen-year statute of limitation period for the rape charge.25 However, the seven-year statute of limitation period had expired on the kidnapping charge,26 as had the four-year limitation period for the aggravated assault and burglary charges.27 Despite this, none of those counts contained tolling or other language that explained why the charges were not time-barred even though the indictment had been filed outside of the applicable statute of limitation periods.28

It is axiomatic that the statute of limitation period for charging an individual for a crime begins running at the time of the criminal act.29 Thus, the State must file an indictment charging the accused with the offense within the applicable statute of limitation period for that crime.30 Under certain circumstances, however, the State may file an indictment after the statute of limitation period for the alleged crime has expired.31 In such cases, the State must specifically allege in each count of the indictment the applicable tolling provision or exception to the statute of limitation in order to show that the charged offense is not time-barred.32 And, at trial, "[t]he burden is unquestionably upon the State to prove that [the] crime occurred within the statute of limitation [period], or, if an exception to the statute is alleged, to prove that the case properly falls within the exception."33

In this case, the 2005 indictment showed on its face that it was filed after the applicable *348statute of limitation periods had expired.34 Thus, because the indictment did not include the required language to show that the statute of limitation periods had been tolled, the indictment was fatally defective as a matter of law as to the kidnapping, aggravated assault, and burglary charges, and the Appellant's convictions on those counts must be reversed.35 However, because the 15-year statute of limitation period for the rape charge had not expired in 2005, that count of the indictment was timely filed and sufficient to support the Appellant's rape conviction.36

(ii) We also conclude that the trial court erred in denying the Appellant's plea in bar based on its finding that the Appellant had waived his challenge to the validity of the 2005 indictment because he did not file a demurrer or plea in bar within ten days of arraignment,37 pursuant to OCGA § 17-7-110.38 As noted in State v. Barker ,39 this Court rejected such a time-based limitation over a century ago.40 It follows that a defendant may file a plea in bar or general demurrer challenging the validity of an indictment at any time before trial and, even if the defendant fails to file such a challenge, he "may still assert the defense of the statute of limitation[ ] in the trial of the case."41 Consequently, the trial court erred in ruling that the Appellant had waived his claim that the 2005 indictment was fatally defective by failing to raise such claim within ten days of his arraignment.

*349(b) The 2008 Indictment . As noted above, on June 27, 2008, the State filed a second indictment charging the Appellant with the same crimes as in the 2005 indictment.

(i) In its order denying the Appellant's plea in bar, the trial court ruled that the 2008 indictment was a valid superseding indictment because it related back to the 2005 indictment.

Georgia has adopted the federal rule recognizing that a superseding indictment filed after the expiration of the statute of limitation may relate back to a timely-filed original indictment if certain conditions are met. A superseding indictment brought after the statute of limitation has run is valid as long as (i) the original indictment is still pending; (ii) the original indictment was timely; and (iii) the superseding indictment does not broaden or substantially amend the original charges.42

"A superseding indictment usually refers to an indictment that is returned while a valid indictment is still pending."43

In ruling that the 2008 indictment was a valid superseding indictment, the trial court found that the 2005 indictment had been timely filed, that it was still pending when the 2008 indictment was filed, and that the 2008 indictment did not substantially broaden or amend those pending charges.44 As previously discussed in Division 3 (a) (i), supra, however, the 2005 indictment charged crimes that were committed in 1995, yet it included no language to show that the applicable statute of limitation periods had been tolled. Thus, with the exception of the rape charge, the 2005 indictment showed on its face that it was not "timely filed" within the applicable statute of limitation periods and was, therefore, fatally defective. It follows that the court erred in ruling that the 2008 indictment was valid as to the kidnapping, aggravated assault, and burglary charges because it related back to the 2005 indictment.45

(ii) The issue becomes, therefore, whether the 2008 indictment, standing alone (as if the 2005 indictment had never been filed), showed on its face that it was filed within the applicable statute of limitation periods.

When the 2008 indictment was filed, 13 years had passed since the crimes at issue had been committed in 1995. Therefore, just as with the 2005 indictment, the face of the 2008 indictment clearly showed that the statute of limitation periods for the kidnapping, aggravated assault, and burglary charges had expired, unless the State alleged that the limitation periods had been tolled or an exception to the statutes of limitation applied.46

In contrast to the 2005 indictment, all of the counts in the 2008 indictment (except the burglary charge) included the following language: "[A]s to [this count], deoxyribonucleic acid (DNA) evidence was used to establish the identity of Raoul Lynch and a sufficient portion of the physical evidence tested for DNA [was] preserved and [was] available for testing by Raoul Lynch." This language apparently referred to the statute of limitation exception found in former OCGA § 17-3-1 (c.1). As discussed in Division 2, supra, however, this exception did not apply to the charges in this case and, thus, did not salvage the kidnapping and aggravated assault charges that were otherwise filed outside of the applicable statute of limitation periods.

As for the burglary charge, that count did not include the OCGA § 17-3-1 (c.1) language, but, instead, included the statement that "the identity of the accused was not known to the State until the year 2001." This language apparently referred to OCGA § 17-3-2 (2), which tolled the running *350of the statute of limitation period during any period in which "[t]he person committing the crime is unknown or the crime is unknown[.]"47 However, because the State discovered the Appellant's identity as the victim's assailant in October 2001, the four-year statute of limitation period expired in 2005, well before the State filed the 2008 indictment.

Under these circumstances, the 2008 indictment could not stand on its own merits as to the kidnapping, aggravated assault, and burglary charges because it was filed outside the applicable statute of limitation periods for those crimes and failed to include the required language showing that the statute of limitation periods had been tolled. As with the 2005 indictment, however, the 15-year statute of limitation period for the rape charge had not expired in 2008 (regardless whether the running of the limitation period began in 1995 or 2001), so that count of the indictment remained valid and pending.

(iii) For the same reasons discussed in Division 3 (a) (ii), supra, regarding the 2005 indictment, the trial court erred in finding that the Appellant had waived his challenge to the validity of the 2008 indictment by failing to file a demurrer or plea in bar within ten days of his arraignment.

(c) (i) The 2010 Indictment . On September 17, 2010, the State filed a third indictment that included the same charges as the preceding indictments. For the reasons explained in Divisions 3 (a) and (b), however, the 2010 indictment could not relate back to either previous indictment on the kidnapping, aggravated assault, and burglary charges, because the previous indictments were fatally defective as to those charges. It follows that the trial court erred in finding that the 2010 indictment was a valid superseding indictment on those charges.

In contrast, because the rape charge in the 2008 indictment was still valid and pending at the time the State filed the 2010 indictment, the 2010 indictment constituted a valid superseding indictment on the rape charge.48

(ii) As to whether the 2010 indictment was legally sufficient on its own to timely charge the Appellant with all of the crimes at issue, the record shows that each count of the 2010 indictment included the following tolling language: "the identity of the accused was not known to the State until October 4, 2001 ( OCGA § 17-3-2 (2) )[.]"49 However, even if the inclusion of such language tolled the beginning of the statute of limitation periods until October 2001, the seven- and four-year limitation periods for the kidnapping, aggravated assault, and burglary charges had expired before the State filed the 2010 indictment almost nine years later. Thus, the inclusion of the OCGA § 17-3-2 (2) tolling language in the 2010 indictment could not salvage those charges.

In contrast, because the inclusion of the OCGA § 17-3-2 (2) tolling language in the rape count alleged that the statute of limitation period did not begin running until October 2001, the face of the 2010 indictment showed that it was filed before the 15-year limitation period had expired on the rape charge. Thus, the 2010 indictment, standing on its own, was valid as to that charge.

In summary, the trial court clearly erred in denying the Appellant's plea in bar as to the kidnapping, aggravated assault, and burglary charges, and the convictions on those charges must be reversed.50 The trial court *351did not err, however, in denying the plea in bar as to the rape charge.

4. The Appellant contends that the trial court committed plain error when it erroneously instructed the jury that no statute of limitation applied to the rape and kidnapping charges. We agree.

The record shows that the trial court instructed the jury as follows:

[T]he law of our state sets a time limit upon ... the State in starting the prosecution of most criminal offenses. Where D.N.A. evidence is used to determine the perpetrator and the State has preserved a sufficient amount of evidence for the defendant to test, there is no statute of limitations on the crimes of rape, aggravated sodomy, or kidnapping.

This jury instruction was based upon the provisions of former OCGA § 17-3-1 (c.1), which the trial court had specifically-and correctly-ruled was inapplicable to this case when it denied the Appellant's plea in bar before trial.51 Even so, the Appellant's trial counsel did not object to the charge.52

Under OCGA § 17-8-58,

(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury's hearing and presence.

(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court's attention as provided in subsection (a) of this Code section.53

In reviewing a jury instruction for plain error, we apply the four-pronged test adopted by the Supreme Court of Georgia in State v. Kelly ,54 as follows:

First, there must be an error or defect-some sort of deviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error-discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.55

Stated differently, "the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding."56

Given that it has already been established that the trial court had actual knowledge *352before the trial that former OCGA § 17-3-1 (c.1) did not apply in this case, yet it instructed the jury on that provision anyway, the only remaining issue is whether there is a reasonable likelihood that the erroneous instruction affected the outcome of the trial.57 On that issue, the record shows that the primary defense argued by the Appellant's trial counsel was that numerous human errors by the police and the State caused a significant amount of time to pass since the time the crimes at issue had been committed, and that this unjustified delay in identifying him as a suspect, indicting him, and bringing him to trial negatively affected his defense.58 Under these circumstances, the record supports a finding that there was a reasonably likelihood that the erroneous instruction affected the outcome of the trial and, thus, was not harmless as a matter of law.59

Further, the harmful effect of the erroneous instruction was seriously exacerbated by the prosecutor's closing argument, in which she emphasized to the jury, "When you look at rape, kidnapping, and aggravated sodomy, there is no statute of limitation when D.N.A. evidence is used and preserved. ... So in the end there is no statute of limitations on the rape, kidnapping, or aggravated sodomy. It doesn't matter that we reindicted [the Appellant] in 2010."60

Finally, it is axiomatic that the State is required to prove beyond a reasonable doubt that the crimes charged occurred within the applicable statute of limitation period.61 Given the trial court's clearly erroneous and misleading jury instruction that there was no statute of limitation as to the rape charge, coupled with the court's complete failure to correctly instruct the jury that the actual statute of limitation for rape was 15 years, as well as the prosecutor's similarly erroneous closing argument, the record does not support a conclusion that the court properly instructed the jury that the State had the burden of proving that the rape occurred within the 15-year statute of limitation period beyond a reasonable doubt.62 On the contrary, we find that it is more likely that the erroneous jury instruction and related closing argument misled and/or confused the jurors on the statute of limitation issue and that the jury charge, when considered as a whole, did not resolve the problem.63

Consequently, we conclude that the erroneous jury instruction was not harmless, that *353its harmful effect was exacerbated by the prosecutor's closing argument, and that there is a reasonable likelihood that the jury instruction affected the outcome of the trial.64 As a result, the instruction constituted plain error.65 It necessarily follows that the court erred in denying the Appellant's motion for new trial as to the rape conviction.66 This case is remanded to the trial court for a new trial on that charge.

5. The Appellant contends that his constitutional right to privacy was violated by the warrantless seizure of his DNA pursuant to the 2000 amendment to former OCGA § 24-4-60,67 because that amendment constituted an unconstitutional ex post facto law.

As the Appellant concedes, his counsel failed to challenge the constitutionality of former OCGA § 24-4-60 or move to suppress the DNA evidence on that basis in the trial court. Thus, this alleged error is deemed waived.68

To the extent the Appellant raises an ineffective assistance claim based upon counsel's failure to raise and preserve this issue below, such claim is moot for the reasons given in Division 6, infra.

6. In light of our rulings in Divisions 3 and 4, supra, the Appellant's claims of ineffective assistance of counsel are deemed moot.69 For the same reason, we find that the Appellant's remaining enumerations of error are either moot or are unlikely to recur upon retrial.70

Judgment reversed and case remanded with direction.

Barnes, P. J., concurs.

McMillian, J., concurs fully and specially.

McMillian, Judge, concurring specially.

Although I concur fully with the majority, I write separately as to Division 3, which addresses the relation back of the 2008 and 2010 indictments to the 2005 indictment.1

The majority correctly concludes that the 2005 indictment was untimely since it was filed well after the expiration of the limitations periods for kidnapping, aggravated assault, and burglary, but it appears that if the State had included the allegation that it finally added in the 2010 superseding indictment that "the identity of the accused was not known to the State until October 4, 2001[,]" the 2005 indictment would have been timely for all of the charges. The question then becomes whether the relation back doctrine allows the State to correct this charging error by superseding indictment.

*354As our Supreme Court set out in State v. Outen , 296 Ga. 40, 764 S.E.2d 848 (2014),

A count contained in a subsequent indictment relates back to the date of the prior indictment for purposes of the statute of limitation if: (1) the prior indictment was timely; (2) the prior indictment is still pending; and (3) the later indictment does not broaden or otherwise substantially amend the original charges. See Wooten v. State , 240 Ga. App. 725, 726, 524 S.E.2d 776 (1999) ; United States v. Italiano , 894 F.2d 1280, 1282 (11th Cir. 1990).

Id. at 45 (3), 764 S.E.2d 848. As to the issue of whether the prior indictment is pending, the Court explained that even a defective or insufficient indictment may be considered "validly pending" for relation back purposes "until it is dismissed or until double jeopardy or due process would prohibit prosecution under it[.]" Id. at 46, 764 S.E.2d 848 (quoting United States v. Smith , 197 F.3d 225, 228-29 (6th Cir. 1999) ). Put another way, "the return of a defective (voidable), as opposed to a void, indictment tolls the statute of limitations for the charges contained in it, and even after the limitations period has expired the defect may be corrected by a superseding indictment that meets the relation-back test[.]" Id. n.3.

Since 1848, our Supreme Court has made it clear that fundamental principles of due process require "indictment[s or other charging instruments to] not only show ... that a public law of the State has been violated, but ... [also] that the defendant has been indicted therefor, in the manner, and within the time , prescribed by the laws of the land." McLane v. State , 4 Ga. 335, 340 (1848). Thus, while as a general rule, the statute of limitations is not a material allegation of an indictment, if the indictment shows on its face that it was filed outside the applicable limitations period for the crime charged, it is

incumbent on the prosecuting officer, to have alleged in the indictment the particular exception on which he relied to prevent the operation of the Statute [of limitations], so that it might affirmatively appear that the defendant was liable under the law, to be ... prepared at the trial, to traverse all the material allegations made by the State against him.

Id. at 342. See also Hollingsworth v. State , 7 Ga. App. 16, 17, 65 S.E. 1077 (1909) ; Taylor v. State , 44 Ga. App. 64, 74 (2), 160 S.E. 667 (1931) ; Dixon v. State , 111 Ga. App. 556, 557 (3), 142 S.E.2d 304 (1965).

Not only must an exception to an expired limitation period be pleaded in the indictment, it must also be proved at trial. See Hollingsworth , 7 Ga. App. at 19, 65 S.E. 1077 ; McKeehan v. State , 274 Ga. App. 14, 18 (4), 616 S.E.2d 489 (2005) ("The State may rely on an exception to the statute of limitation only if it alleges the exception in the indictment."). Thus, if an accused is tried on an indictment that is untimely on its face and no exception or tolling provision is alleged, the State cannot introduce evidence of the exception at trial, and any prosecution under that indictment will not be sustained, even if an accused has been tried and convicted thereon.2

McLane and its progeny clearly support that the 2005 indictment was void and not just voidable for all of the charges except for the rape because it failed to allege an exception to the statute of limitations. However, I do not believe that this issue needs to be definitely decided today because the superseding indictments could not be used to correct the State's charging error for a more fundamental reason. As explained in Outen , a *355superseding indictment can only correct a defective (voidable) indictment if the relation back test is met, and the first prong of the relation back test is that the prior indictment must be timely. See Outen , 296 Ga. at 45-46 (3), 764 S.E.2d 848. Because the 2005 indictment was untimely as to the kidnapping, aggravated assault, and burglary charges, I agree with the majority opinion that the trial court erred by denying Lynch's plea in bar, and his convictions on those charges must be reversed.