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State v. Combs9/25/2002
y 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 amendment of count 1 in this case did not effectively charge the Defendants with an additional or different offense than that in the original presentment. The deletion of the phrase concerning "terrorization" of the victim had no substantive effect on the charge. As shown above, the former statute contained the language " o inflict serious bodily injury on or to terrorize the victim or another." Tenn. Code Ann. § 39-13-301 (Supp. 1989). Clearly, this element may be proven by terrorization of the victim or serious bodily injury, because the two possible circumstances are connected by the disjunctive term "or." Serious bodily injury is an element of both the former and the latter statutes. Hence, deletion of the phrase concerning terrorization is of no consequence in this particular case, since serious bodily injury was also alleged in the original presentment.
The Defendants also argue that changing the date of the commencement of the offense in count 1 from November 16, 1989 to April 30, 1990 removed certain defenses which would have been available to them under the former statute. However, their argument is based on an assertion that they can prove they did not terrorize the victim, and we have concluded that whether they can prove this or not is immaterial, for the reasons given above.
The Defendants also contend that the State's deletion of the reference to the victim's age at the time of the offense prejudiced their case by making unavailable a previously viable defense. They assert that the confinement of Esther was not unlawful due to their status as "foster parents" while she was under the age of thirteen. In this argument, Defendants rely on the statutory definition of "unlawful," which states the following:
"Unlawful" means, with respect to removal or confinement, one which is accomplished by force, threat or fraud, or, in the case of a person who is under the age of thirteen (13) or incompetent, accomplished without the consent of a parent, guardian or other person responsible for the general supervision of the minor's or incompetent's welfare. Tenn. Code Ann. § 39-13-301(1997) (this definition is identical in all material aspects to the definition contained in the former statute. See Tenn. Code Ann. § 39-13-301(b) (1989)).
Apparently, the Defendants believe that the removal or confinement of Esther was, arguably, not "unlawful" because it was clearly accomplished with their consent, as "other person responsible for the general supervision of welfare." Id. Once again, we note the presence of the disjunctive term "or." A plain reading of the statute reveals that removal or confinement by force, threat or fraud remains unlawful, even if accomplished with the consent of a parent, guardian or other person entrusted with the minor's care. Moreover, we further note that Esther turned thirteen years of age on November 16, 1990. Amending the presentment to read April 30, 1990, rather than November 16, 1989, merely reduces the victim's alleged period of confinement while under the age of thirteen from one year to approximately six and one-half months, a reduction of five months and two weeks. Any "defense" arguably available under the old statute would remain not only viable but necessary under the amended presentment, since the presentment as amended only reduced the period of time Esther was confined while under thirteen years of age--it did not eliminate it. Nor did it change the fact that, after Esther turned thirteen, the alleged confinement continued for more than six years and
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