         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     April 24, 2001 Session

                STATE OF TENNESSEE v. JAMES L. HUNSAKER

              Interlocutory Appeal from the Circuit Court for Anderson County
                         No. 99CR0364     James B. Scott, Jr., Judge


                                  No. E2000-02419-CCA-R9-CO
                                          July 10, 2001

The defendant, James L. Hunsaker, was charged with ten counts of rape of a mentally defective
victim, Class B felonies, in violation of Tenn. Code Ann. § 39-13-503. The defendant filed a motion
to dismiss the first nine counts of the indictment, involving offenses alleged to have occurred
between the autumn of 1992 and the spring of 1994, as barred by the statute of limitations. The trial
court ruled that concealment was inherent in the victim’s mental defect and that the statute of
limitations was tolled. See Tenn. Code Ann. § 40-2-101. The defendant filed a motion for
interlocutory appeal to this court. Because the first nine counts of the indictment are barred by the
statute of limitations, the judgment of the trial court is reversed. Each of the nine counts is
dismissed.

                  Tenn. R. App. P. 9; Judgment of the Trial Court Reversed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL , JJ., joined.

Kevin C. Angel, Oak Ridge, Tennessee, for the appellant, James L. Hunsaker.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and
Jan Hicks, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The defendant, James L. Hunsaker, was indicted on October 12, 1999, for 10 counts of rape
of a victim that he knew or had reason to know was mentally defective, mentally incapacitated or
physically helpless. See Tenn. Code Ann. § 39-13-503(a)(2) (1991). The first nine counts of the
indictment were alleged to have occurred between the autumn of 1992 and the spring of 1994.

        The defendant filed a motion to dismiss the first nine counts of the indictment, contending
that the statute of limitations had expired and that the state had failed to present any tolling factors
in the indictment. He argued that under Tennessee Code Annotated § 40-2-101(d) (1990), any
prosecution for any offense committed against a child that constitutes a criminal offense under the
provisions of Tennessee Code Annotated § 39-13-503 must commence no later than the date the
child attains the age of majority or within four years of the commission of the offense, whichever
occurs later. The state argued that the statute of limitations contained in Tennessee Code Annotated
§ 40-2-101(d) did not apply because the offense was not alleged to have been committed against a
child. The state contended that the applicable statute of limitations was the eight-year period for
Class B felonies established by Tennessee Code Annotated § 40-2-101(b)(2) (1990).

       Although the state would not agree to stipulate the age of the victim, it was determined at
hearing that the victim was born on October 27, 1978. By our calculations, the victim was 20 years
old when the indictment was returned and would have been either 13, 14, or 15 years of age at the
time of the offenses. The trial court overruled the motion to dismiss, concluding as follows:

               Proof has now been introduced showing conclusively that the victim was less
       than 18 years of age when nine (9) of the separate crimes alleged in the indictment
       occurred. In other words, the victim was a child when the alleged events in nine (9)
       counts occurred. However, the indictment does not describe the victim as a child, but
       does describe the victim as mentally defective. The statute of limitations would have
       terminated the prosecution on these nine (9) separate counts had the victim been
       referred to in the indictment as a child. No proof is before the Court as to the mental
       capacity of the alleged victim.

                It would appear that the purpose for terminating prosecution when the victim
       is a child within the four year period is to avoid the use of stale evidence and to
       provide an incentive for swift governmental action when the child becomes
       accountable by becoming an adult and is sufficiently mature to timely report sexual
       conduct to the authorities or other responsible adults. However, in this case,
       concealment is inherent in the nature of the mental condition of the victim and this
       Court finds that this fact would toll the statute because reaching the chronological age
       of 21 is not the indices of maturity for the tolling of the statute. Even though it is not
       clearly alleged under the indictment (that the running of the statute would be tolled)
       this Court finds that the prosecution is not barred under the provisions of [Tennessee
       Code Annotated] 40-2-101(d) and is preserved specifically under the provisions of
       [Tennessee Code Annotated] 40-2-101(f) by the statute of limitations extending for
       eight (8) years after the offense is allegedly committed. . . .

(Emphasis added).

       On interlocutory appeal to this court, the state concedes that the first nine counts of the
indictment should be dismissed. It also argues that the ruling rendered by the trial court was
erroneous. We must agree.

        The statute of limitations is tolled for any period "during which the party charged conceals
the fact of the crime, or during which the party charged was not usually and publicly resident within


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the state . . . ." Tenn. Code Ann. § 40-2-103 (1990). The indictment must allege the specific facts
relied upon in order to avoid the statutory bar. State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669
(1959); State v. Hix, 696 S.W.2d 22, 25 (Tenn. Crim. App. 1984). Here, however, there was no
evidence as to how the mental condition of the child served as to conceal the crimes. There is no
explanation as to how the defendant might have "concealed" the crime. Simply stated, the state did
not offer any facts in the indictment to establish that the statute of limitations had been tolled.

        The trial court also ruled that the first nine counts of the indictment were "preserved
specifically under the provisions of [Tennessee Code Annotated] 40-2-101(f) by the statute of
limitations extending for eight (8) years after the offense is allegedly committed." In State v. Oscar
Bernal, No. M1999-00079-CCA-R3-CD (Tenn. Crim. App., at Nashville, Jan. 13, 2000), this court
ruled otherwise. In Bernal, the defendant filed a motion to dismiss 10 counts of a 14-count sexual
abuse indictment, asserting that the statute of limitations had expired. The alleged abuse had ended
in 1992 when the victim was 14 years old but was not reported until the victim was 19 years old.
The indictment contained allegations that the statute of limitations had been tolled by the defendant’s
acts of intimidation and concealment of his crimes. The trial court granted defendant’s motion to
dismiss the 10 counts. In affirming the trial court’s decision, this court ruled as follows:

        [A]s to those counts of the indictment alleging rapes committed from 1990 through
        1992, we make the following observations. Rape is a Class B felony. Tenn. Code
        Ann. § 39-13-503(b) (1991). The standard limitation for prosecution of a Class B
        felony is eight years. Tenn. Code Ann. § 40-2-101(b)(2) (1990). The prosecution of
        all alleged rapes committed from 1990 through 1992 was commenced within the
        eight years. Nevertheless, Tenn. Code Ann. § 40-2-101(d) (1990) expressly lists rape
        involving a child as an offense requiring prosecution within four years of commission
        or when the child reaches majority, whichever is later. Thus, in this case there is a
        shorter limitations period for the child victim than there would be for an adult victim.
        We sincerely doubt that the legislature intended such a result; however, we are bound
        by the unambiguous language of the statute. We note the legislature amended the
        statute in 1997 to remedy this disparity. See Tenn. Code Ann. § 40-2-101(f) (1997).
        The amendment expressly states that it only applies to offenses committed after July
        1, 1997. Id.

Slip op. at 5.

        As our opinion in Bernal indicated, the provision cited by the trial court applies only to
offenses committed on or after July 1, 1997. See 40-2-101(f) (1997). Here, the first nine counts of
the indictment alleged that the offenses were committed between the autumn of 1992 and the spring
of 1994. Thus, under Tennessee Code Annotated § 40-2-101(d) (1990), the prosecution should have
commenced within four years of commission of the offenses or when the victim reached the age of
majority, whichever was later. Because the prosecution in the nine charges at issue commenced after
the four-year period, the victim was over the age of majority when the indictment was returned, and



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the state failed to allege any facts to toll the statute of limitations, the judgment of the trial court must
be reversed and the first nine counts of the indictment must be dismissed.



                                                          ___________________________________
                                                          GARY R. WADE, PRESIDING JUDGE




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