Opinion

State of Tennessee v. Nicholas O'Connor/Nikol Lekin

Court: Court of Criminal Appeals of Tennessee
Filed: Oct 2, 2000
Status: Published
On the bench: Judge John Everett Williams
Cited by: 0 cases
Authority: More cited than 30.1%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

December 1999 Session

STATE OF TENNESSEE v. NICHOLAS O’CONNOR AND NIKOL LEKIN

Direct Appeal from the Criminal Court for Shelby County

No. 97-06205 Carolyn Wade Blackett, Trial Judge

No. W1998-00015-CCA-R3-CD - Decided October 2, 2000

This is a case involving two defendants: O’Connor, the mother’s friend, was convicted of

Aggravated Child Abuse through injury and Aggravated Child Abuse through neglect. Lekin, the

mother, was convicted of Aggravated Child Abuse through neglect. We affirm the conviction of

Aggravated Child Abuse through injury, as we hold that a four-year-old who received a skull

fracture, epidural bleeding, swelling and bruising around the eyes and face, and the pain associated

with said injuries has sustained “serious bodily injury.” Further, we find sufficient evidence to

support both convictions for Aggravated Child Abuse through neglect. Finally, we reject the

arguments that the state was required to elect a specific “serious bodily injury” and that Aggravated

Child Abuse through neglect is not an offense in Tennessee.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

NORMA MCGEE OGLE , J., joined.

Marvin E. Ballin and Mark A. Mesler, Memphis, Tennessee, for the appellant, Nicholas O'Connor.

Michael E. Scholl, Memphis, Tennessee, for the appellant, Nikol Lekin.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Jennifer Smith Nichols, Assistant District

Attorney, for the appellee, State of Tennessee.

OPINION

The defendants, Nicholas O’Connor and Nikol Lekin, appeal from convictions by a Shelby

County jury. Defendant O’Connor was convicted of one count of Aggravated Child Abuse through

injury and one count of Aggravated Child Abuse through neglect. For these offenses, he was

sentenced, as a Range I offender, to two concurrent twenty-year terms. Defendant Lekin was

convicted of one count of Aggravated Child Abuse through neglect. For this offense, she was

sentenced, as a Range I offender, to one fifteen-year term. Both defendants now appeal but raise

different arguments. Defendant O’Connor asserts that:

(1) Insufficient evidence supported the jury’s finding of “serious bodily injury”

necessary for either of his convictions.

Defendant Lekin asserts that:

(1) The trial court erred in its failure to sever her case from defendant O’Connor’s

case;

(2) insufficient evidence supported the jury’s verdict;

(3) the trial court in various regards deprived her of a unanimous verdict; and

(4) she was convicted of an offense that does not exist at statute in Tennessee.

After careful review, this Court affirms the judgments in all respects.

FACTS

At the time of the offense, February 27, 1997, the two defendants, O’Connor and Lekin,

were living together with Lekin’s children in Moscow, Tennessee. On that date, Lekin left her four-

year-old daughter, A1, with O’Connor. O’Connor abused the child. He struck the child on her

bottom, propelling her into a bathroom door-facing. The impact caused A to sustain bruises on her

bottom, significant bruises to the face and eyes, and a skull fracture. In fact, for days following, she

was barely recognizable with large black and yellow eyes swollen nearly shut.

Despite this appearance, neither Defendant O’Connor nor Defendant Lekin took the child to

the hospital. Two days after the offense, Defendant Lekin’s sister, who had seen the child, called

Children’s Services. Under their direction, A was finally transported to the hospital with Defendant

Lekin.

Once admitted to the hospital, A was placed in intensive care for observation. Her injuries,

including a skull fracture and epidural bleeding, were identified as intentionally inflicted blunt force

trauma, and Child Services removed her from the defendants’ care. However, A did not require any

treatment at the hospital; instead, her stay was simply for diagnostic and observation purposes.

On account of this abuse and their failure to more promptly seek medical care for A,

Defendants O’Connor and Lekin were indicted2 and tried. Convicted after a jury trial, their appeal

is now before this Court.

ANALYSIS

Motion for Severance

It is this Court’s policy not to identify child victims by name.

Both defendants were indicted for Aggravated Child Abuse through injury and through neglect. The

indictments state that these offenses occurred “during the period of time between February 26, 1997 and March 1, 1997”

and resulted in “serious bodily injury.”

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Defendant Lekin argues that the trial court erred when it denied her motion to sever her case

from that of O’Connor. After review, we find that the trial court did not abuse its discretion in

denying the defendant’s severance motion.

Defendant Lekin’s principal contention is that as she was tried with Defendant O’Connor,

evidence of intentional abuse, otherwise irrelevant to her case, reached the jury and unfairly

prejudiced them. Specifically, she notes that the testimony of A describing the actual abuse and

certain medical testimony describing the injuries as “intentionally inflicted” served unfairly to harden

the jury against her.

Conversely, the state points out that, in fact, very little evidence concerning the actual

intentional abuse got before the jury. The only testimony, the state claims, that concerned the actual

abuse was the testimony of A. All six of the other witnesses testified to either the events after the

abuse or the medical condition of A, topics which were necessarily relevant to Defendant Lekin’s

neglect charge.

Tenn. R. Crim. P. 14(c) governs the granting or denial of a severance of defendants. The

decision as to whether or not to grant a severance is left to the sound discretion of the trial judge, and

this decision will not be disturbed unless the defendant is unfairly or unduly prejudiced. See State

v. Coleman, 619 S.W. 2d 112, 116 (Tenn. 1981); State v. Woods, 806 S.W.2d 205, 211 (Tenn. Crim.

App. 1990); State v. Kyger, 787 S.W.2d 13, 20 (Tenn. Crim. App. 1989). Stated in another manner,

a trial court will not be found to have abused its discretion in denying a severance unless “the

defendant was clearly prejudiced to the point that the trial court's discretion ended and the granting

of [a] severance became a judicial duty.” State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App.

1988) (quoting Hunter v. State, 227 Tenn. 672, 682, 440 S.W.2d 1, 6 (1969)).

In this case, we conclude that the trial court did not abuse its discretion in denying Defendant

Lekin’s motion for severance. The vast majority of the evidence adduced at trial concerned the

events following the abuse, and while this Court does understand Defendant’s Lekin’s concern that

the evidence of intentional abuse, however limited, had the potential for prejudicing the jury against

her, we conclude that, in reality, no such prejudice occurred. In support of this conclusion, we note

that this evidence describing the abuse was very clear in at least two regards: Lekin was not there,

and Lekin had nothing to do with it. Further, the jury was instructed not to consider the intentional

abuse against Lekin, but instead, to consider the neglect charge separately and carefully. We

presume that the jury followed its instruction. See State v. Cribbs, 967 S.W.2d 773, 784 (Tenn.

1998). Therefore, this Court does not detect any real prejudice in the trial court’s decision to try the

two defendants together and concludes that the trial court did not abuse its discretion.3

In a related matter, Defendant Lekin alleges that certain trial sidebars, initiated by either the prosecution

or counsel for Defendant O’Connor, were overheard by the jury. These sidebars, she claims, concerned information

improper for the jury’s consideration. Therefore, she claims prejudice. While this Court when reviewing the trial

transcripts was concerned by the issue, we now note that the jury was instruc ted prop erly as to which e vidence it co uld

and could not consider. Further, we note that while Defen dant Lekin alleges “prejudice,” she points to no one sidebar

nor any one pa rticular theory o f prejudicia l impact. Therefore, while we find no error or prejudice here, we do note that

it is a trial court’s responsibility to insure that these situations do not occur.

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Sufficiency of the Evidence: Aggravated Child Abuse through Injury

Defendant O’Connor argues that the evidence adduced at trial was insufficient to support his

conviction for Aggravated Child Abuse through injury. Specifically, he does not challenge that the

offense occurred, but rather he argues that the prosecution failed to prove “serious bodily injury” as

required by statute. We disagree with the defendant and find that his conviction of Aggravated

Child Abuse through injury is supported by sufficient evidence.

In this case, the “serious bodily injury” inflicted upon A by the defendant’s abuse was

established through A’s testimony and medical testimony. A’s injuries included:

(1) skull fracture;

(2) epidural bleeding;

(3) swelling around the eyes and face;

(4) non-permanent bruising and discoloration around the eyes and face; and

(5) non-permanent bruising and discoloration on the child’s bottom.

On account of these injuries, A was admitted to the hospital and spent fourteen hours in the

intensive care unit where the concern was the epidural bleeding and skull fracture. In the end, A

healed without receiving any medical treatment other than an aspirin for pain.

Reviewing the jury’s verdict, it is for this Court to determine whether these injuries, as

established at trial, are sufficient to sustain Defendant O’Connor’s conviction for Aggravated Child

Abuse through injury. The relevant statutes, Tenn. Code Ann. §§ 39-15-401and 402, read:

Child abuse and neglect. – (a) Any person who knowingly, other than by accidental

means, treats a child under eighteen (18) years of age in such a manner as to inflict

injury or neglects such a child so as to adversely affect the child’s health and welfare

commits a Class A misdemeanor; provided, that if the abused child is six (6) years

of age or less, the penalty is a Class D felony.

Aggravated child abuse and neglect. -- (a) A person commits the offense of

aggravated child abuse and neglect who commits the offense of child abuse and

neglect as defined in § 39-15-401 and:

(1) The act of abuse results in serious bodily injury to the child . . . .

Further, “serious bodily injury” is defined by Tenn. Code Ann. § 39-11-106(34) as bodily injury

which involves:

(a) A substantial risk of death;

(b) Protracted unconsciousness;

(d) Protracted or obvious disfigurement; or

(e) Protracted loss or substantial impairment of a function of a bodily member, organ

or mental faculty.

Now this Court must determine whether sufficient evidence was adduced at trial to support

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the jury’s finding that the requisite statutory elements, as recited above, were satisfied.4 We review

this claim under a well-established standard of review. When an accused challenges the sufficiency

of the evidence, this Court must review the record to determine if the evidence adduced during the

trial was sufficient “to support the findings by the trier of fact of guilt beyond a reasonable doubt.”

See Tenn. R. App. P. 13(e). In determining the sufficiency of the evidence, this Court neither

reweighs nor reevaluates the evidence. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Nor may this Court substitute its inferences for those drawn by the trier of fact from circumstantial

evidence. See Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). To the contrary, this Court is

required to afford the party prevailing at trial the strongest legitimate view of the evidence contained

in the record as well as all reasonable and legitimate inferences that may be drawn from the evidence.

See State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995).

Questions concerning the credibility of the witnesses, the weight and value to be given the

evidence, and all factual issues raised by the evidence are resolved by the trier of facts, not this

Court. See id. In State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), the Tennessee Supreme Court

stated, “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the

witnesses for the State and resolves all conflicts in favor of the theory of the State.”

Because a verdict of guilty removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden of illustrating to this Court why the evidence is

insufficient to support the verdict returned by the trier of fact. See State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982); Grace, 493 S.W.2d at 476.

Deciding O’Connor’s sufficiency claim, this Court is guided by similar cases dealing with

child abuse. In State v. Jones, 953 S.W.2d 695 (Tenn. Crim. App. 1996 ), this Court held that “a bad

headache, ringing in the ears, and bruising” together with testimony that the injuries “hurt really bad”

were sufficient to constitute “serious bodily injury” and thus support an Aggravated Child Abuse

conviction involving an eleven-year-old victim. Further, in State v. Betty Levandowski, No. 03C01-

9503-CR-00076 (Tenn. Crim. App., filed June 5, 1996, at Knoxville), this Court found that a two-

year-old victim covered with “bruises, abrasions, and scabs” which would have caused “considerable

pain” had suffered “serious bodily injury.” Finally, in State v. Robbie James, No. 01C01-9609-CR-

00388 (Tenn. Crim. App., filed Nov. 14, 1997, at Nashville), an Aggravated Child Abuse conviction

was affirmed on the basis of cuts and bruising accompanied with painful screams.

Considering these cases, this Court concludes that a jury could find that the injuries and pain

inflicted upon A constituted “serious bodily injury.” The evidence is sufficient to support a finding

that A suffered “serious bodily injury” as a result of defendant O’Connor’s abuse. When A was

brought into the emergency room, she was diagnosed with a skull fracture and epidural bleeding and

immediately placed in the intensive care unit. Those injuries, along with their attendant risk of brain

swelling, clearly created “a substantial risk of death.” See Tenn. Code Ann. § 39-11-106(34)(A).

Likewise, those injuries, in addition to the injuries to A’s eyes, resulted in “extreme physical pain”

We no te that the defend ant’s sole challen ge is to the elem ent of “serious b odily injury.” Therefore, as we

agree with the defendant’s apparent concession that all the other elements were proven, our review here is limited to this

one argum ent.

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to A. See Tenn. Code Ann. § 39-11-106(34)(C). A, who was six years old at the time of the trial,

testified that her injuries “hurt” her and caused her to cry. Dr. Mark Bugnitz, who treated A in the

emergency room, testified that A exhibited pain upon examination, three days after she was injured.

Additionally, the injuries to A’s eyes constituted “obvious disfigurement.” See Tenn. Code Ann.

§ 39-11-106(34)(D). Photographs of A taken in the emergency room and introduced by the state

showed that A’s eyes and the surrounding tissue were purple and black due to bruising and that there

was substantial swelling. Indeed, A’s eyes were swollen shut and, as a result, her vision was

“substantially impaired.” See Tenn. Code Ann. § 39-11-106(34)(E). Jo Jones, an emergency room

nurse, testified that one of A’s eyes was completely swollen such that the eyelids were almost fused;

A had only minimal vision through her other eye. Therefore, we find sufficient evidence to affirm

Defendant O’Connor’s conviction of Aggravated Child Abuse through injury.

Sufficiency of the Evidence: Aggravated Child Abuse through Neglect

Both defendants argue that insufficient evidence was adduced at trial to support their

convictions of Aggravated Child Abuse through neglect. Specifically, they argue that the state failed

to prove any injury occurring on account of the neglect. Therefore, they ask that their convictions

for Aggravated Child Abuse through neglect be set aside. We disagree with the defendants and find

sufficient evidence supporting the jury’s conclusion that the neglect caused “serious bodily injury.”

But first, we must note that we review this sufficiency claim under the standard of review set

forth above in our previous analysis of Defendant O’Connor’s sufficiency claim. See, e.g., Cabbage,

571 S.W.2d at 835.

The crux of this claim is that Aggravated Child Abuse through neglect requires a showing

that some discernible injury occurred on account of the neglect. This Court has had occasion to

review this legal assertion before, see State v. Mike Mateyko, No. 01C001-9806-CC-0026 (Tenn.

Crim. App., filed Sept. 22, 1999, at Nashville), and has agreed under different facts that some

discernible injury must be proven. See also State v. Kevin R. Mosley, No. 01C01-9108-CC-00235

(Tenn. Crim. App., filed April 29, 1992, at Nashville). In this case, we distinguish the holdings of

both Mateyko and Mosley in that the instant case involves actual and obvious physical injuries to

the victim.

Now, we must review the evidence and arguments to determine whether any discernible

injury was, in fact, proven in this case. Again, the defendants argue that no such injury was

demonstrated; the State, however, disagrees. It argues that “serious bodily injury” occurring on

account of the neglect was proved at trial through medical testimony and other evidence. After

reviewing these arguments, this Court concludes that the evidence did establish that in the days A

was not taken to the hospital, she lingered under a substantial risk of death due to the possibility of

attendant brain swelling. From this evidence, the jury could have concluded that the neglect, the

failure to take A to the hospital, created a substantial risk of death in and of itself, apart from the

actual infliction of the injury. Therefore, we find the evidence sufficient.

That is, a jury could properly conclude that Defendant O’Connor was guilty of criminal child

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neglect moments after the intentional infliction of injury upon the child and could have found that

the neglect continued until the child was taken to the hospital and placed in intensive care for

observation.

It is granted that this case presents a more difficult question, however, as relates to the

mother, Defendant Lekin. She had no reference point by which to gauge the seriousness of the

child’s injury until the child’s physical anguish became obvious. However, we hold that her decision

to knowingly forego medical treatment after the child displayed obvious physical anguish is the crux

of criminal child neglect. Therefore, we find that sufficient evidence existed to convict Defendant

Lekin as well.

Deprivation of a Unanimous Verdict

Defendant Lekin contends that the trial court’s refusal to grant her motion for a bill of

particulars, to require the state to elect specific injuries as the offenses for which it sought

convictions, and to instruct the jury that it must unanimously find and indicate a specific serious

bodily injury violated her right to a unanimous jury verdict. Conversely, the state contends that no

such violation occurred. After review, we find no reversible error.

Bill of Particulars

Defendant Lekin’s first contention is that the trial court failed in error to grant her motion for

a bill of particulars. A bill of particulars may be ordered to adequately identify the offense charged.

See Tenn. R. Crim. P. 7(c). The function of a bill of particulars is to provide a defendant with

information about the details of the charge that are necessary in the preparation of his or her defense

and to avoid prejudicial surprise at trial. See State v. Hicks, 666 S.W.2d 54, 56 (Tenn.

1984)(quoting 1 Charles Alan Wright, Federal Practice and Procedure, Criminal, § 129, at 434

(1982)); see also State v. Stephenson, 878 S.W.2d 530, 539 (Tenn. 1994). The defendant should be

given enough information about the events charged so that he or she may diligently prepare for trial.

See id. Where the indictment is not sufficiently detailed, a bill of particulars will serve this purpose.

An abuse of discretion must be shown to demonstrate error in denying a bill of particulars. See

Stephenson, 878 S.W.2d at 539.

Defendant Lekin filed a motion for a bill of particulars after the indictment was returned.

Defendant had sought by this motion to know exactly what “neglect” and what “injuries” the

indictment charged. When the trial court denied this motion by written order, the defendant was left

with the language of the indictment which stated the offense, “Aggravated Child Abuse through

neglect,” and the relevant dates. In this case, given court precedent as regards neglect offenses, this

language sufficiently apprised Defendant Lekin of the circumstances or acts alleged as “neglect” and

the injuries to the child alleged as “serious bodily injury.” While it is true that, at that point, at least

two different theories or acts of neglect existed: (1) Defendant Lekin neglected A by leaving her

with Defendant O’Connor and (2) Defendant Lekin neglected A by failing to take A to the hospital

after the abuse, we cannot find any abuse of discretion in the trial court’s denial in light of State v.

John Adams and Rita Adams, ____ S.W.3d _____ (Tenn. 2000), No. W1997-00190-SC-R11-CD

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(filed June 30, 2000, at Jackson),which holds that as a continuing offense, the State is not required

to elect a particular injury and thus a particular act of neglect. See also State v. Lemacks, 996

S.W.2d 166 (Tenn. 1999).

Election of Injury

Next, Defendant Lekin argues that as there exist several different possible theories of abuse

and accordingly several different possible injuries, as outlined above, the trial court should have

required the State to elect either which theory or theories of neglect and which injury or injuries upon

which it was relying for conviction. The State argues that no such election was necessary; in fact,

it argues in its brief that such election is never necessary in a prosecution for neglect. We conclude

that the Tennessee Supreme Court’s recent decision in State v. John Adams and Rita Adams, _____

S.W.3d _____ (Tenn. 2000), No. W1997-00190-SC-R11-CD (filed June 30, 2000, at Jackson),

controls this issue and that, as a consequence, the State was not required to elect any particular

serious bodily injury.

Election of offenses is necessary to protect several important interests of a defendant: (1)

it enables a defendant to prepare and defend against the specific charges; (2) it protects the defendant

from double jeopardy; and (3) it ensures unanimity of the jury verdict. Burlison v. State, 501 S. W.

2d 801, 803 (Tenn. 1973). While all of these interests are crucial, the true import of this doctrine

is its protection of a defendant’s constitutional right to jury unanimity. See Tidwell v. State, 922

S.W.2d 497, 501 (Tenn. 1996). Entitlement to jury unanimity encompasses not only a right that the

jury be unanimous as to which offense constitutes the crime for which the defendant is convicted,

but also a right to unanimity regarding the specific act or acts which constitute the offense. See

Brown, 823 S.W.2d at 582. To protect this right of the defendant, a trial court has a duty to require

the State to elect the particular offenses upon which it relies for conviction and to instruct the jury

so that the verdict of every juror will be united on one offense. See Burlison, 501 S.W.2d at 804;