         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                         Assigned on Briefs May 11, 2004 Session

               STATE OF TENNESSEE v. ANDREW NEAL DAVIS

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 2001-A-391    Cheryl Blackburn, Judge


                      No. M2002-02375-CCA-R3-CD - Filed July 9, 2004


DAVID G. HAYES, Judge, concurring in part; dissenting in part.

       I join with the majority in affirming the Defendant’s convictions for first degree felony
murder and aggravated child abuse. I dissent, however, from that portion of the opinion which
concludes that no error occurred in amending the indictment for aggravated child abuse. The result
changed the crime from a Class B felony to a Class A felony on the morning of trial.

        The language of the indictment clearly tracked the statutory language of Class B aggravated
child abuse. Thus, the Defendant was on notice that he would be required to answer to the Class B
felony offense. Indeed, at the Appellant’s first trial, which resulted in a mistrial, he was prosecuted
for Class B aggravated child abuse. Mid-morning of the first day of the second trial, the Defendant
learned for the first time that he was being tried for Class A felony aggravated child abuse. Our
supreme court in State v. Ducker, 27 S.W.3d 889, 899 (Tenn. 2000), held that the statutory provision
regarding the age of the victim is an essential element of Class A felony aggravated child abuse, thus
requiring a jury determination. Moreover, culpability and punishment increases if the child victim
is six years of age or less. Id. at 898.

       Rule 7(b), Tennessee Rules of Criminal Procedure, provides that no amendment may be
made to an indictment, without the defendant’s consent, if an additional offense is charged and if any
substantial right of the defendant is prejudiced. The non-consensual amendment in the instant case
was not merely one of form, e.g., it was not made to correct a typographical error, to correct an
erroneous statutory citation, to correct a misspelling, or to strike surplus language from the
indictment. Rather, the amendment was one of substance in that it impermissibly broadened the
charged offense to a Class A felony, as prohibited by Rule 7. Thus, the Defendant was subjected to
additional punishment impacting a substantial right.

       For these reasons, I find the amendment to the indictment was error.


                                               __________________________________________
                                               David G. Hayes, Judge
