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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE DECEMBER 1998 SESSION

FILED
June 8, 1999 Cecil W. Crowson Appellate Court Clerk

STATE OF TENNESSEE, Appellant,

v.

WILLIAM KENNEDY Appellee.

) ) ) ) ) ) ) ) ) ) )

No. 01C01-9803-CR-00149 Wilson County Honorable J.O. Bond, Judge (Interlocutory Appeal)

For the Appellant: Frank Lannom 102 East Main Street Lebanon, TN 37087

For the Appellee: John Knox Walkup Attorney General of Tennessee 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

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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 fourteenyear-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

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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

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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.

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