             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE                   FILED
                          DECEMBER 1998 SESSION
                                                                June 8, 1999

                                                             Cecil W. Crowson
STATE OF TENNESSEE,          )                              Appellate Court Clerk
                             )
             Appellant,      )    No. 01C01-9803-CR-00149
                             )
                             )    Wilson County
v.                           )
                             )    Honorable J.O. Bond, Judge
                             )
WILLIAM KENNEDY              )     (Interlocutory Appeal)
                             )
             Appellee.       )


For the Appellant:                For the Appellee:

Frank Lannom                      John Knox Walkup
102 East Main Street              Attorney General of Tennessee
Lebanon, TN 37087                        and
                                  Lisa A. Naylor
                                  Assistant Attorney General of Tennessee
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Tom P. Thompson, Jr.
                                  District Attorney General
                                  203 Greentop St., P.O. Box 178
                                  Hartsville, TN 37074-0178
                                          and
                                  Robert Hibbett
                                  Assistant District Attorney General
                                  119 S. College St.
                                  Lebanon, TN 37087




OPINION FILED:____________________


REVERSED AND REMANDED

Joseph M. Tipton
Judge
                                       OPINION



              The state brings this interlocutory appeal pursuant to Rule 9, T.R.A.P.,

from an order of the Wilson County Criminal Court denying its motion to amend the

date in an indictment charging William Kennedy with statutory rape. The sole question

for our review is whether the trial court erred in denying the motion to amend. We

reverse the trial court’s denial of the motion.



              The defendant, William Kennedy, was indicted on April 4, 1997, by a

Wilson County grand jury for one count of statutory rape. The indictment alleges in

pertinent part:

              William Kennedy on the ___ day of January, 1996 in Wilson
              County, Tennessee, and before the finding of this indictment,
              unlawfully, intentionally, knowingly, or recklessly did engage in
              sexual penetration of [the victim], a person at least thirteen
              (13) but less than eighteen (18) years of age, and the
              defendant is at least four (4) years older than the victim, in
              violation of T.C.A. 39-13-506.

The victim gave birth to a child before the indictment was returned. On July 29, 1997,

the state filed a motion requesting that the trial court order the defendant to submit to a

blood test to determine the paternity of the victim’s child. In this motion, the state

argued that evidence that the defendant was the father of the child would be relevant to

the alleged statutory rape which occurred during the same period of time that the victim

became pregnant. On September 17, 1997, the state moved to amend the indictment

to change “on the ___ day of January, 1996" to “after May 1st, 1995.”

              The defendant filed a motion for a Bill of Particulars on October 28, 1997,

requesting that the state give the exact date, time and location of the offense or if it

could not give a specific date, to affirm that the proposed amendment was meant to

correspond to the conception of the victim’s child. The state responded with a Bill of




                                              2
Particulars filed on November 7, 1997, which stated, “The crime that is alleged in the

indictment correlates to the date of the conception of [the victim’s] child . . .”



              At the hearing on the state’s motion to amend, the defendant introduced

the statement of Detective Ricky Knight. In this statement, Detective Knight said that

on January 22, 1996, Jenny Warren told Officer Tommy Lamberson that her fourteen-

year-old daughter was six months pregnant and that she believed that the defendant

was the baby’s father. Detective Knight said Mrs. Warren told him that the defendant

continued to visit her daughter despite Mrs. Warren telling him to stay away. He stated

that Mrs. Warren took a ring of her daughter’s to a pawn shop, and an employee told

her that the defendant had purchased the ring. Detective Knight said that Mrs. Warren

told him that she thought the defendant gave the ring to her daughter. He said that she

related that her daughter accused the defendant’s fifteen-year-old son of being the

baby’s father, but she did not believe her.



              In his statement, Detective Knight said that Mrs. Warren brought Melinda

Hall with her and that Ms. Hall said that the defendant told her that he was better for the

victim than anyone and that no one would take the victim away from him. Detective

Knight said that Ms. Hall also told him that during the preceding week, her brother saw

the defendant and the victim together with a boy who worked for the defendant.

              The defendant introduced the statement of Detective Sergeant Jason T.

Locke at the hearing. In this statement, Detective Locke said that he interviewed the

victim with her mother’s consent on February 2, 1996. He stated that the victim said

that she first discovered that she was six months pregnant two weeks earlier at her

doctor’s office. He said that she told him that her mother became suspicious after she

gained weight and took her to the doctor but that the victim did not suspect that she

was pregnant. He stated that she told him that the defendant’s fifteen-year-old son was

the father, that she and the defendant’s son had dated from the summer of 1995 until



                                               3
Christmas of 1995, and that they had first engaged in intercourse in June of 1995. She

also said that aside from the defendant’s son, she had once had sex with one other

person in January of 1995 and that she and this seventeen-year-old boy used

protection.



              In his statement, Detective Locke said that the victim told him that her

family and the defendant’s family were friends and that her mother used to have the

defendant drive her to visit her grandmother. She said that she and the defendant’s

daughter were good friends. She said that the defendant gave her a ring for Christmas

in 1994 and that the defendant purchased a ring from Wal-Mart for her thirteenth

birthday. Detective Locke said that she told him that her parents were present when

the defendant bought this birthday gift and that they helped select it. Detective Locke

said that she told him that the defendant’s son also gave her a ring but that her mother

thought the defendant gave it to her. He said that the victim denied ever having a

sexual relationship with the defendant but that she said that her mother thinks that she

and the defendant have had sex because the defendant has bought things for her.



              The defendant also introduced the juvenile record of the defendant’s son

as an exhibit at the hearing. This record contains a sworn, September 10, 1996

Petition to Establish Paternity filed by the victim’s mother, and it alleges that the

defendant’s son is the father of the victim’s child born May 14, 1996. The juvenile

record also contains an April 2, 1997 order dismissing the petition because a blood test

excluded the defendant’s son as the father.



              The trial court found that although the evidence the grand jury had

considered before indicting the defendant was unknown, the work sheet that went to

the grand jury contained the date of January 1996. The state argued that this date was

given by the victim’s mother who wrote January 1996 because this was when she

learned of the victim’s pregnancy. The state maintained that it knew of nothing that


                                              4
would place the defendant and the victim together in 1996 and that the whole case was

built around the conception of the victim’s child, which the defendant knew from the Bill

of Particulars. The defendant argued that if the grand jury had considered the date in

the proposed amendment, it might have considered exculpatory evidence contained in

the exhibits. The defendant contended that the state’s proposed amendment would

usurp the grand jury’s authority and would charge the defendant with a crime outside of

the statute of limitations. The trial court denied the motion to amend, finding that the

state could not amend the indictment in order to “piggyback” in a date outside of the

statute of limitations and that the proposed amendment would be detrimental to the

defendant.



                    TENNESSEE RULE OF CRIMINAL PROCEDURE 7(b)

                  The state contends that the proposed amendment does not charge the

defendant with an additional offense because both versions of the indictment charge

statutory rape using the same language and because the date of the offense is neither

an essential element of statutory rape, see Tenn. Code Ann. § 39-13-506(a), 1 nor a

required component of the indictment, see Tenn. Code Ann. § 40-13-207.2 The state

further argues that the proposed amendment does not prejudice the defendant because

the defendant was informed of the new date well in advance of trial and because the

proposed amendment does not prevent the defendant from presenting a defense. The

defendant acknowledges that he is not arguing a lack of notice, and he makes no

argument that the amendment would prevent him from preparing a defense for trial.



              1
                     Statutory rape.--(a) Statutory rape is sexual penetration
                     of a victim by the defendant or of the defendant by the
                     victim when the victim is at least thirteen (13) but less
                     than eighteen (18) years of age and the defendant is at
                     leas t four (4) yea rs old er tha n the victim .
      Tenn. Code Ann. § 39-13-506.

              2
                     Time of offense.--The time at which the offense was
                     committed need not be stated in the indictment, but the
                     offense may be alleged to have been committed on any
                     day before the finding thereof, or generally before the
                     finding of the indictment, unless the time is a material
                     ingredient in the offense.
      Tenn. Code Ann. § 40-13-207.

                                                  5
However, he contends that the date is distinctly material in this case because the

proposed amendment would charge him with a different crime, one outside of the

statute of limitations. He argues that the date becomes material when the statute of

limitations would otherwise bar the indictment and that he would suffer prejudice

because the amendment would allow the state to bring him to trial for an offense

outside of the limitations period. We hold that the proposed amendment does not

charge the defendant with a new or additional crime nor does it cause the defendant to

have to defend against a crime outside the statute of limitations.



                 The denial of a motion to amend an indictment is a matter within the trial

court’s discretion, and this court will alter the trial court’s decision only if that discretion

has been abused. State v. Kirkland, 696 S.W.2d 544, 545 (Tenn. Crim. App. 1985).

Rule 7(b), Tenn. R. Crim. P., states:

                 If no additional offense is thereby charged and no
                 substantial rights of the defendant are thereby prejudiced,
                 the court may permit an amendment without the defendant’s
                 consent before jeopardy attaches.

The date in the indictment may be amended pursuant to this rule. See State v. Marlow,

665 S.W.2d 410, 413 (Tenn. Crim. App. 1983) (holding that the defendant was not

prejudiced by the state’s ability to impeach a witness with her prior inconsistent

statement under the amended date); State v. Sexton, 656 S.W.2d 898, 900 (Tenn.

Crim. App. 1983) (holding that the charged offense qualified for Class X classification

under either the original or the amended date); State v. Harrington, 627 S.W.2d 345,

346 (Tenn. Crim. App. 1981) (holding that an amendment correcting the date on which

the witnesses were sworn did not prejudice the defendant). A majority of other

jurisdictions permit the date in an indictment to be amended as long as the date is

immaterial and the amendment would neither change nor add an offense.3 See State


                 3
                    See, e.g., Estes v . State, 650 So .2d 616, 6 17-18 (A la. Crim . App. 199 4); Bell v. State ,
716 P.2 d 1004 , 1005 (A laska C t. App. 198 6); State v. Bruce, 610 P.2d 55, 57 (A riz. 1980); Lewis v. S tate,
831 S.W .2d 145, 1 48 (Ark . 1992); People v. Crosby, 375 P.2d 839, 844 (Cal. 1962) (indicating that the
offens e is not ch anged by an am endm ent addin g an om itted subs tantive elem ent); Akers v. State, 370
So.2d 8 1, 83 (Fla. D ist. Ct. App. 1 979); Melton v . State, 330 S.E .2d 398, 3 99 (Ga . Ct. App. 1 985); Peo ple
v. Miszkiewicz, 602 N.E .2d 1312 , 1322 (Ill. App . Ct. 1992 ); Bucha nan v. Sta te, 332 N.E.2d 213, 219 (Ind.
1975); State v. Brooks, 52 N.W . 240, 241 (Iowa 18 92); Stephe ns v. Co mm onwea lth, 397 S.W.2d 157, 158

                                                        6
v. Spade, 385 A.2d 115, 116 (N.H. 1978); 2 Charles E. Torcia, Wharton’s Criminal

Procedure § 272 (13th ed. 1990); B. H. Glenn & C. C. Marvel, Annotation, Power of

Court to Make or Permit Amendment of Indictment with Respect to Allegations as to

Time, 14 A.L.R. 3d 1297 (1967 & 1998 Supp.).



                 This court has held that the amendment of the date in an indictment does

not charge the defendant with a new or an additional crime. State v. Badgett, 693

S.W.2d 917, 919 (Tenn. Crim. App. 1985); see State v. John Claude Wells, III, No.

01C01-9505-CR-00146, Davidson County, slip op. at 10 (Tenn. Crim. App. June 6,

1997), app. denied (Tenn. Nov. 23, 1998) (holding that an amendment to charges of

unlawful sexual contact which changed “in 1990" and “in 1991" to “on a day before April

22, 1991" did not allege new or different offenses despite the defendant’s argument

that the increased time frame forced him to defend against charges not in the original

indictment). In Badgett, the habitual criminal count of the indictment originally alleged

that in August 1985, the defendant was convicted of an offense occurring in March

1975. The state discovered this discrepancy at trial and asked to amend the date

referring to it as a typographical error charging an impossible date. The defendant in

Badgett argued that the amendment charged him with an additional crime in violation of

Rule 7(b) because without the amendment, the habitual criminal count contained too

few prior convictions to stand. The defendant contended that because the original

indictment failed to charge any offense at all, the corrected indictment constituted an

additional offense. This court likened the situation to that of a variance between the

indictment and the proof at trial and affirmed the amendment. Badgett, 693 S.W.2d at

919. Thus, a defendant is not charged with a new crime when the date in the


(Ky. 1965 ); State v. Strickland, 398 So .2d 1062 , 1064-6 5 (La. 19 81) (affirm ing the ad dition of “on or abou t”
to a spec ific date bec ause it co rrected a n om ission eve n though the date w as ess ential); State v.
Hathorne, 387 A.2d 9, 11-13 (Me. 19 78); Manu el v. State , 581 A.2d 1287, 1295 (M d. App. Ct. 1990);
Comm onwealth v. Dunnington, 457 N.E .2d 1109 , 1113 (M ass. 19 83); People v. Clum , 182 N.W. 136, 137-
38 (Mic h. 1921) ; Baine v. S tate, 604 So . 2d 258, 2 60-61 (M iss. 1992 ); State v. W hite, 674 S.W.2d 551,
553-54 (Mo. C t. App. 198 4); Brimm age v. Sta te, 567 P.2d 54, 58 (N ev. 1977 ); State v. Ste fane lli, 396 A.2d
1105, 11 10 (N.J . 1979); People v. Robbins, 645 N.Y .S.2d 67 1, 672 (N .Y. App. D iv. 1996); State v.
Kam tsiklis , 380 S.E .2d 400, 4 02 (N.C . Ct. App. 1 989); State v. Mundy, 650 N.E.2d 502, 526 (Ohio Ct. App.
1994); Ex parte Williams , 106 P.2d 524, 526 (Okla. C rim. Ap p. 1940) ; State v. Wim ber, 843 P.2d 424,
428-31 (Or. 199 2); Comm onwealth v. Lobel, 440 A.2d 602, 607 (Pa. Sup er. Ct. 198 2); State v. Quarles,
200 S.E .2d 384, 3 85-86 (S .C. 1973 ); Robins on v. Co mm onwea lth, 183 S.E. 254, 255-56 (Va. 1935).

                                                         7
indictment is merely corrected in order for the original charge to stand. In the present

case, the sole change the state requests is to the date in the indictment and, therefore,

the proposed amendment alleges no additional offense.



             The defendant contends that the proposed amendment interferes with his

right to be indicted by a grand jury under Article I, section 14 of the Tennessee

Constitution because no grand jury has ever considered whether enough proof exists to

indict him for the conception of the victim’s child. However, because an amendment to

correct an immaterial date in the indictment does not allege a new crime, Article I,

section 14 concerns are not implicated.



             The defendant argues that permitting the state to amend the indictment

would require him to defend against a crime outside of the statute of limitations. The

statute of limitations relates to the time period between the commission of the offense

and the beginning of prosecution. State ex. rel Lewis v. State, 1 Tenn. Crim. App. 535,

538, 447 S.W .2d 42, 43 (1969) (citing Smith v. State, 168 Tenn. 265, 267, 77 S.W.2d

450, 450 (1935). In the present case, prosecution began with the return of the

indictment. See Tenn. Code Ann. § 40-2-104; Lewis, 1 Tenn. Crim. App. at 538, 447

S.W.2d at 43. “Where there is a statute of limitations that bars prosecution of the

offense charged, there should be a sufficiently definite averment of time in the

indictment to show that the offense was committed within the statutory limit.” State v.

Davidson, 816 S.W.2d 316, 318 (Tenn. 1991) (citing State v. Shaw, 113 Tenn. 536,

538, 82 S.W. 480, 480 (1904)).



             In the present case, the grand jury returned the indictment on April 4,

1997, and the indictment charged the defendant with statutory rape “on the ___ day of

January 1996.” The state must bring a charge of statutory rape, a Class E felony,

within two years from the day the offense is committed. Tenn. Code Ann. § 40-2-

101(b)(4). The defendant contends that the proposed amendment of “after May 1st,


                                            8
1995" falls outside of the limitations period when viewed from either the date the state

filed its motion to amend, September 17, 1997, or the date of the hearing on the

motion, November 10, 1997. However, the defendant is relying upon the wrong

measure of time. Given our conclusion that the amendment of the date does not

charge an additional crime, we look to the date the indictment was returned in order to

determine whether the amended date falls within the statute of limitations. The

amended date of “on a day after May 1, 1995” is within two years of the return of the

indictment on April 4, 1997.



              Even when the date is immaterial, the state may not amend the date back

in time indefinitely. The state is still bound by the time frame set by the applicable

statute of limitations. Our supreme court has recognized two primary purposes served

by a statute of limitations: “to avoid the use of stale evidence and to provide an

incentive for swift governmental action in criminal cases.” State v. Pearson, 858

S.W.2d 879, 886 (Tenn. 1993) (citing United States v. Ewell, 383 U.S. 116, 122, 86 S.

Ct. 773, 777 (1966)). Allowing the state to amend the indictment to reflect an earlier

date for the commission of the offense does not interfere with either of these purposes

because the date must still fall within the applicable statute of limitations.



               The defendant further argues that an amendment to the date would

prejudice him because the date in the indictment becomes material for the purpose of

determining whether the limitations period has expired. Several jurisdictions have

permitted the state to amend an indictment alleging a date outside of the statute of

limitations to bring the offense within the limitations period. Akers v. State, 370 So.2d

81, 83 (Fla. Dist. Ct. App. 1979) (holding that an amendment showing that an arrest

warrant tolled the statute before the limitations period expired was permissible but

reversing the conviction because the state failed to seek pretrial amendment or to

produce proof of this jurisdictional fact at trial); State v. Unsworth, 88 A. 1097, 1099-

1100 (N.J. 1913); Commonwealth v. Streets, 172 A. 31, 32 (Pa. Super. Ct. 1934)


                                              9
(holding that the defendant, who made no pretrial challenge to the amendment bringing

the offenses within the statute of limitations, had no grounds to appeal the conviction

when the proof at trial supported the date as amended). In Unsworth, the court

affirmed the amendment of an indictment returned on October 9, 1911, which originally

alleged that a conspiracy was formed and overt acts were committed on October 6,

1909, but was amended to November 10, 1909. The court held that the amendment

conformed to the following standard:

              Whether [the amendment] was legally permissible depends on
              whether the date is material, for the court cannot by
              amendment make the indictment charge a crime when none is
              presented, or a crime different than that presented, by the
              grand jury.

Id. at 1099. The court stated that time is material when “an act may be innocent at one

time and criminal at another,” but not in instances when the date is merely imperfectly

stated. Id.



              Tennessee courts have permitted the state to amend the indictment to

allege facts which would toll the statute of limitations in cases in which the prosecution

began after the limitations period had expired. Morgan v. State, 847 S.W.2d 538, 542

(Tenn. Crim. App. 1992); see e.g., Davidson, 816 S.W.2d at 319, 321 (holding that the

amendments failed to allege the specific time period during which the offenses were

concealed); State v. Tidwell, 775 S.W.2d 379, 389 (Tenn. Crim. App. 1989) (holding

that the concealment alleged in the amended indictment was not proven at trial).

Notably, these cases, as well as the cases from other jurisdictions permitting the

indictment to be amended to bring the offense within the statute of limitations, do not

deem the defendant to be prejudiced simply because the amendment affects the

calculation of the limitations period, nor do they view the amendment as charging a new

offense, i.e., one that is not time-barred. Because the running of the limitations period

is measured from the amended date of the offense to the date the state began

prosecution, the limitations period was tolled before it expired, and the amendment

does not prejudice the defendant.


                                            10
              In light of the foregoing, we reverse the trial court’s denial of the motion to

amend the indictment and remand this case to the trial court for further proceedings

consistent with this decision.



                                                         __________________________
                                                         Joseph M. Tipton, Judge


CONCUR:

______________________________
John H. Peay, Judge


______________________________
Norma McGee Ogle, Judge




                                             11
