State of Tennessee v. Sherry Dewitt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 19, 2016 Session

STATE OF TENNESSEE v. SHERRY DEWITT

Appeal from the Criminal Court for Davidson County

No. 2011-D-3631 Steve R. Dozier, Judge

No. M2015-00816-CCA-R3-CD – Filed November 10, 2016

Following a jury trial, the Defendant, Sherry Dewitt, was acquitted of aggravated child

abuse but convicted of aggravated child neglect. She now appeals as of right from that

conviction, challenging the sufficiency of the evidence supporting the requisite mental

state for that crime and that the child suffered an adverse effect to her health and welfare

from the Defendant‟s alleged neglect as statutorily required. Following our review, we

conclude that the evidence was sufficient to support a knowing mens rea, but we reverse

the Defendant‟s conviction because there was insufficient proof that the Defendant‟s

delay in informing the parents about the child‟s injuries or in seeking medical help had an

actual, deleterious effect on the child‟s health and welfare. Therefore, the judgment is

vacated, and the charge is dismissed.

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

Reversed; Case Dismissed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

Peter J. Strianse, Nashville, Tennessee, for the appellant, Sherry Dewitt.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Brian K. Holmgren and

Zoe K. Sams, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The Davidson County Grand Jury indicted the Defendant for aggravated child

abuse happening on March 29, 2011 (count one), and aggravated child neglect occurring

between March 29 and March 31, 2011 (count two). See Tenn. Code Ann. § 39-15-402.

The victim in this case was three-month-old R.M.,1 and the Defendant was her

nanny/caretaker. The Defendant proceeded to a jury trial in October 2014, where the

following facts were adduced.

On September 3, 2010, the Defendant began caring for R.M. and B.M., R.M.‟s

older brother, while their parents worked. Both parents were medical doctors—S.M.,

their mother, was a pediatrician working with a private practice group, and C.M., their

father, was a Vanderbilt resident studying to become an ear, nose, and throat surgeon.

The thirty-three-year-old Defendant was paid $13 an hour and typically worked for the

family on Tuesdays, Thursdays, and Fridays, although her hours often varied. Her duties,

which were detailed in her written contract of employment, included the following:

making and administering 3 meals a day as well as 1 to 2 snacks from food

in the house; getting children dressed and ready for the day in the morning;

taking [B.M.] to music class at Davis Kid[d] Bookstore on Tuesdays at

10:15; interacting with and stimulating children during the day; bathing

children at the end of the day or earlier on days that the child ha[d] gotten

dirty or hot outside; cleaning up with the help of the children the toys or

mess from the day in the evening; preparing dinner for the family from

food that‟s already in the house; loading and unloading the dishwasher[;]

washing and changing children‟s be[dd]ing once a week and doing the

children‟s laundry as needed; communicating with the employer daily by

conversation or written notes about the [day‟s] activities and concerns.

The victim‟s mother became close with the Defendant while she was at home on

maternity leave. Additionally, according to the victim‟s mother, the Defendant was a

“great” caretaker for her family prior to this incident.

In March 2011, the family was considering selling their home, so the victim‟s

father‟s parents came in town for the weekend to assist them in that endeavor, staying

with the family from March 25 to March 27. During that weekend, the victim‟s mother

injured her back. Although not a normal work day for the Defendant, on Monday, March

28, the Defendant came to the home and assisted the injured victim‟s mother with the

children for several hours.

1

It is the policy of this court to refer to minor victims by their initials. To further protect the minor‟s

anonymity, we will refer to her relatives by their initials as well.

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The Defendant worked a normal work day on Tuesday, March 29. The victim‟s

mother testified that there was nothing unusual about R.M.‟s behavior when she left for

work that morning and that R.M.‟s feeding habits had been normal in the preceding days.

The Defendant took the children to Woodmont Park around 10 a.m., where she joined

Karen Hutchinson, who was one of the victim‟s family‟s next-door neighbors and whose

children were “very good friends” with R.M. and B.M. While at the park, the Defendant

did not express any concerns to Ms. Hutchinson about R.M., and Ms. Hutchinson did not

notice anything unusual with regard to R.M. According to Ms. Hutchinson, everyone left

the park sometime between 12:00 and 12:30 p.m., although seeing as “it was a

particularly beautiful, sunny day,” they were possibly going to meet up again “for a play

date after everyone had taken a nap.” However, Ms. Hutchison‟s phone calls and text

messages to the Defendant went unanswered that afternoon. When the Defendant

eventually contacted Ms. Hutchinson, the Defendant, Ms. Hutchinson testified, “said

something along the lines of it was a crazy day, or hectic afternoon or a busy

afternoon[.]”

The victim‟s mother returned home from work around 6:00 or 6:30 p.m. that

evening. According to the victim‟s mother, when she spoke to the Defendant before

coming home, the Defendant “said that everything was fine” and did not indicate that

anything was out of the ordinary. When the victim‟s mother arrived home, the Defendant

was sitting at the dining room table; she was holding R.M., and B.M. was eating dinner.

B.M. showed his mother that he had splinters in his hand, so the victim‟s mother took

him to the bathroom to remove them. While in the bathroom, the victim‟s mother heard

R.M. “start to scream.” And although the cry was “louder and [more] unpleasant . . . than

her normal cry,” the victim‟s mother associated it with R.M.‟s being hungry. The

victim‟s mother then tried to nurse R.M., but she could not get R.M. to eat. R.M. could

not be comforted.

According to the victim‟s mother, R.M. “started just screaming out and then

would fall asleep and stop crying, and then [scream] out and then fall asleep and stop

crying.” The victim‟s mother described that R.M. “was much more fussy” than normal

and that “something was definitely different” with R.M.‟s behavior. The victim‟s mother

asked the Defendant, “how long ha[d R.M.] been like this[,]” and the Defendant said,

“since the bath, around maybe five.” The Defendant also relayed that R.M. “had only

taken an ounce and a half of the last two bottles,” which was about half of her regular

amount. The victim‟s mother stated that she found this information “a little bit strange”

because the Defendant was “always so conscientious in texting [them] and contacting

[them] if there was anything out of the ordinary” but, “when [the victim‟s mother] asked

[the Defendant] how the day was, [the Defendant] said it was fine and hadn‟t brought” up

R.M.‟s abnormal mood. The victim‟s mother explained that “the only time that [R.M.]”

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had “scream[ed] intermittently” like this was “when [R.M.] was sick with” Respiratory

Syncytial Virus.

The victim‟s father came home between 7:00 and 8:00 p.m. that evening, and he

likewise saw that R.M. was acting differently than normal. The Defendant was still there

when he arrived because the victim‟s mother “needed her to stay and help because [R.M.]

was crying so loudly and not doing okay[,] and [she] was still having to take care of some

work on the phone, too.” The Defendant left the home “maybe a little after 8:00” p.m.

Later, the Defendant sent a text message checking on R.M. to see if she was any better.

The victim‟s mother confirmed that the Defendant was “aware that [R.M.] was not acting

in her normal state” that evening.

The victim‟s mother became growingly concerned about her daughter, so she gave

her a physical examination. Not seeing any physical signs or causes for R.M.‟s fussiness,

the victim‟s mother gave the victim some “gas drops” and some Tylenol “for pain[,]”

despite the fact that she “didn‟t know what [she] was treating.” Thereafter, R.M.

appeared to improve because she “sort of stopped screaming out” and went to sleep;

however, it was also the child‟s bedtime. The victim‟s mother testified that R.M. “slept

pretty well through the night[,]” although she woke up “several times that night for a little

fuss but then would be consoled by putting her pacifier back in her mouth.”

Earlier that evening, the victim‟s mother spoke by phone with Dr. Sarah Patterson,

her pediatric group partner, asking Dr. Patterson her opinion of R.M.‟s behavior. Dr.

Patterson could hear R.M.‟s crying in the background. Dr. Patterson advised the victim‟s

mother to continue to monitor R.M. because “[t]hree-month-olds can be fussy” and to

just “watch her and go from there.” Dr. Patterson talked again with the victim‟s mother

later in the evening, and the victim‟s mother was still worried. So Dr. Patterson told the

victim‟s mother that, if she was that worried, then she should take the child to Vanderbilt

hospital and “get her checked out.” The victim‟s mother also sent a text message to

another doctor friend of hers, Dr. Whitney Browning, stating her concern over R.M.‟s

behavior and symptoms. Dr. Browning said that she received at least two text messages

and a voicemail message from the victim‟s mother that evening; however, Dr. Browning

was not able to speak with the victim‟s mother until “much later” when R.M. had already

fallen asleep. Dr. Browning comforted the victim‟s mother by saying that she was not

being an overly anxious mother but that she was “[a]ppropriately concerned” about her

daughter.

Pamela Love lived across the street from the victim‟s family and was B.M.‟s

nanny prior to the Defendant. She trained the Defendant before leaving and returning to

school. Ms. Love communicated with the Defendant frequently. On March 29, the

Defendant invited Ms. Love to accompany them to Woodmont Park in a voicemail

message, but Ms. Love was unable to go. When Ms. Love returned the Defendant‟s call,

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the Defendant did not answer. Later that evening, Ms. Love had another message from

the Defendant, wherein the Defendant “said that she hadn‟t gotten back to me because

things had gotten kind of crazy during bath time and she had missed my call.”

On March 30, the following day, the victim‟s parents were both off work, and the

victim‟s mother stayed at home with the victim while the victim‟s father ran errands and

took the victim‟s brother to school. The victim‟s mother was asked how R.M. behaved

that day: “She seemed better. She woke up with a runny nose and had a bit of a cold that

morning and still wasn‟t maybe as happy as usual, but she was no longer screaming out

in that cry and then falling asleep. That behavior was not there.” The victim‟s mother

further described that R.M. “was a little bit off [her] eating routine” that day. However,

the victim‟s mother believed that the victim “was slowly improving.” The victim‟s father

also observed that R.M. was “a lot less fussy” that day.

During bath time on March 30, the victim‟s mother noticed “bluish discoloration

on the right side of [the victim‟s] head” when she was washing the victim‟s hair. The

victim‟s mother called the victim‟s father into the bathroom to look at the injury;

however, at the point in time, they did not think it was a bruise and were not overly

concerned. R.M. went to sleep that night around 9:00 or 10:00 p.m. and slept through the

night.

After awakening on the morning of March 31, the victim‟s mother observed

swelling on the left side of R.M.‟s head, which was the opposite side of the child‟s head

where they had seen the bluish discoloration the night before. When the Defendant

arrived at the house that morning, the victim‟s mother informed the Defendant of the

swelling on the child‟s head and showed it to her, but according to the victim‟s mother,

the Defendant “seemed as if she had not seen it before.” Now “very concerned,” the

victim‟s father, who was off work again, took R.M. to see her pediatrician, Dr. James

Godfrey; the victim‟s mother arrived separately at the pediatrician‟s office after stopping

by her workplace. According to the victim‟s mother, Dr. Godfrey palpated both sides of

R.M.‟s head, and when he pressed on the swollen side of R.M‟s head, the victim “cried

pretty loud.” Dr. Godfrey recommended that the victim‟s parents take her to Vanderbilt

hospital for further examination.

While en route to Vanderbilt, the victim‟s mother called the Defendant and

explained to the Defendant “that there could be some sort of injury under the swelling

that needed to be examined.” The victim‟s mother asked the Defendant “more than once

if there was anything [the Defendant] could think of, any time that day that she was with

them, when [the Defendant] left the room and came back and [the victim] was crying

more than usual, anything out of the ordinary,” and the Defendant said “no.” She further

explained to the Defendant that an investigation might ensue if the victim had

unexplained injuries when examined at the hospital.

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Once the child was presented to the emergency room, x-rays and a CT scan were

ordered by the emergency room physician. Those images revealed that the victim had

suffered two skull fractures, one to both sides of her head, “going from the top of her

head down both sides[.]” Thereafter, the emergency room physician requested the

services of Dr. Deborah Lowen, an expert in child abuse pediatrics. Dr. Lowen reviewed

the imaging of R.M‟s head, spoke with the victim‟s parents to obtain a medical history,

and examined R.M. During the examination, Dr. Lowen observed the following:

[S]he was awake, alert, and happy, and looked like she was in really good

condition. The . . . findings that were of note were on her head. On the

right side of her scalp she did have a bluish-purple discoloration. It looked

like a bruise.

On the left side she did have a swelling, what‟s called a

cephalohematoma, that was very tender when you touched it.

Dr. Lowen determined that R.M. suffered from two separate skull fractures, known as

“bilateral skull fractures[,]” and the CT scan “showed that [R.M.] had a small bleed, a

small subdural hematoma right underneath the fracture on the left.” Dr. Lowen estimated

that only about fifteen to twenty percent of babies with skull fractures also had bruising

associated with the fracture. However, Dr. Lowen further described that, except for these

injuries, the victim “looked like a very healthy little girl.”

According to Dr. Lowen, a subdural hematoma signified that “the force with

which the fracture was sustained was significant enough to cause bleeding underneath the

skull.” The left-side fracture also had a “depressed component” to it, meaning that “part

of the fracture fragment [was] pushed inward toward the brain.” Dr. Lowen explained

that a depressed skull fracture was “more commonly [seen] when there‟s a higher degree

of force than, for instance, a child simply falling.” In Dr. Lowen‟s medical opinion,

R.M.‟s bilateral skull fractures resulted from two different blows to her head, which

indicated non-accidental trauma and that R.M. was the victim of child abuse. When Dr.

Lowen was asked, “Would there be a potential accidental mechanism that might account

for accidental bilateral skull fractures?” she responded, “There is a case report of one of

an accidental mechanism causing bilateral skull fractures, but that case is very different

than [R.M.‟s] situation.” On the other hand, she could not “think of any other

[accidental] mechanism besides [that] single case report that would account for bilateral

skull fractures[.]” She clarified, “[E]xcept for in maybe a major car accident with an

unrestrained baby who maybe had multiple blows during a car accident.”

Dr. Lowen was then asked about the symptoms “a child that sustained this type of

injury [would] experience contemporaneous with the trauma that produce[d] the

fracture[.]” Dr. Lowen explained that the child would cry and show “signs of pain.”

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However, she also said, “They might not experience very much. They might not eat very

well. They might have some vomiting. At some point they might develop swelling but

maybe not at the same time.” When asked how long the crying and pain would last, Dr.

Lowen replied, “I‟ve seen babies who cried for a little bit, cried for a half an hour, or

hour or two, and then were fine. I‟ve seen babies who were fussy for days. It‟s very

variable depending [on] the baby, but they show signs of pain.”

Although it was very hard to diagnosis a baby with a concussion according to Dr.

Lowen, the symptoms that R.M. exhibited as relayed to Dr. Lowen by the victim‟s

parents—not eating, incessant crying, irritability, and “after crying, falling asleep,

arousing, crying, and falling back asleep”—were consistent with a “concussive injury[.]”

Dr. Lowen explained that this type of injury might “persist for hours or days[,]” but it

varied greatly. Dr. Lowen was asked how giving the child Tylenol might affect these

symptoms, and she said that she would expect the child “[t]o have far less pain and to feel

much better.” And if the child “calm[ed] down” after receiving Tylenol, she might sleep

through the night and feel better the following day, in Dr. Lowen‟s opinion.

Furthermore, Dr. Lowen confirmed that, if R.M. “was not showing signs of more

localized swelling,” then “a doctor, somebody that‟s specifically trained,” could

“[a]bsolutely” have “missed that she had an underlying skull fracture[.]” The bluish

discoloration on R.M.‟s head during bath time on the evening of March 30, likewise,

would not necessarily “lead one to conclude, even as a trained pediatrician, that there‟s an

underlying skull fracture there[.]”

Based upon the imaging of R.M.‟s head, Dr. Lowen could only say that the

injuries occurred within the last week. Dr. Lowen explained that the “signs and

symptoms” are much more important in determining when an injury occurred “[b]ecause

radiology only gives us so much information[.]” Based upon all of the information

provided to Dr. Lowen, she opined that, to a reasonable degree of medical certainty, R.M.

was injured around the time she became symptomatic on March 29 during the “late

afternoon, early evening hours[.]”

After Dr. Lowen‟s consultation, R.M. had a skeletal survey performed, “a series of

x-rays of all the bones in the body[,]” and “an ophthalmology examination to look at her

eyes.” According to Dr. Lowen, “[t]he neurosurgery team was involved” in R.M.‟s case

because she had skull fractures and an “intracranial bleed[,]” so they needed to watch her

“[i]n case it grows or there is a concern that it needs to be evacuated, to be removed.”

R.M. was admitted to the Intensive Care Unit and “woken up every hour through the

night to monitor her . . . clinical symptoms.” If she was “symptomatic,” repeat CT scans

would have been ordered to check “the bleeding and make sure it‟s not growing.” Dr.

Lowen testified that R.M. “was seen in follow-up by a neurosurgery team several months

later.”

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Dr. Lowen did not believe that R.M.‟s two-and-a-half-year-old brother could have

caused these injuries “in the course of typical childhood play” or that he had the strength

to inflict these injuries. When asked if the family dog could have been responsible, Dr.

Lowen said that she “would want to know more about the dog[.]” However, she clarified

that, because there were “two separate skull fractures[,]” “[t]he dog would have to do

something twice[,]” and she could not “imagine” what the dog “could do to cause a skull

fracture without causing skin findings like lacerations or abrasions[.]” Dr. Lowen

described her “interactions with [the victim‟s] parents during [the] consult and the

information [she] imparted to them and their reaction to that information” as “very

appropriate.” She explained that “they were mostly worried about [R.M.,]” that “[t]hey

expressed appropriate sadness about the situation[,]” and that “they were just trying to

figure out what had happened.” Dr. Lowen admitted that she never interviewed the

Defendant or took any history from the Defendant about how R.M. sustained her injuries.

Also on the morning of March 31, the Defendant left Ms. Love another message

saying that “she needed to speak with [her] about [R.M.,]” “nanny to nanny.” According

to Ms. Love, “nanny to nanny” was their “code” for an emergency or something

important. Ms. Love later spoke with the Defendant and told her that the victim‟s father

had taken the victim to see the pediatrician because of a “knot” on the victim‟s head.

According to Ms. Love, the Defendant “was concerned” and asked “if [Ms. Love]

thought that they would be mad at her.”

The victim‟s mother, after becoming suspicious of R.M.‟s injuries, called Ms.

Love and asked her to go over to the house because they did not want B.M. to be alone

with the Defendant. The victim‟s father later called Ms. Love and told her that they had

discovered that R.M. had a fractured skull, and he asked Ms. Love to discretely relieve

the Defendant and let her go home. Ms. Love complied and did not inform the Defendant

of the extent of the victim‟s injuries. According to Ms. Love, the Defendant was upset

because “she didn‟t know what was going on with the baby” and “she was worried about

her job, that she didn‟t know what she would do if they fired her.” The Defendant did not

elaborate. Ultimately, the victim‟s parents fired the Defendant.

Mary Alice Young, a Child Abuse Investigator with the Department of Children‟s

Services (“DCS”), interviewed both the victim‟s parents and the Defendant regarding the

cause of R.M.‟s injuries. The DCS investigation failed to determine how R.M. received

her injuries, although Ms. Young did note that the “timeline provided by all caretakers

indicated that something happened to [R.M.] to cause a significant change in behavior”

on March 29.

The Defendant testified in her own defense and denied ever harming R.M. in any

way. According to the Defendant, R.M. was “fussy” most of Tuesday, March 29, which

she attributed to a lack of appetite and the absence of a bowel movement.

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The Defendant also presented Detective Thomas Rollins of the Metropolitan

Nashville Police Department who was the investigator assigned to R.M.‟s case. After

interviewing all the parties involved, Det. Rollins “suspended” the case on June 28, 2011,

because he could not confidently identify a perpetrator. In his opinion, it could have been

either of the victim‟s parents, her brother, or the Defendant. He elaborated:

I immediately suggested that more than likely the event occurred sometime

around [when] the child was having a bath or right after the bath when [she]

was under the care of the [D]efendant and when the two-year-old sibling

was there. But further on down through the opinion I noted that at that time

I was not able to determine which one of the four subjects who were around

the child within that time period could have caused the injury.

Det. Rollins stated that his efforts to conclude the investigation were frustrated by both

the victim‟s parents, who had obtained legal representation, and the Defendant‟s refusing

to cooperate and speak with him further.

Dr. Jonathan Arden also testified for the Defendant as an expert in the field of

forensic pathology, “with a special interest in pediatric pathology.” Dr. Arden testified

that he could not form an opinion to any reasonable degree of medical certainty about the

specific timing of when R.M.‟s injuries were sustained.

The jury acquitted the Defendant of aggravated child abuse in count one but found

her guilty as charged of aggravated child neglect in count two. The trial court imposed a

sentence of twenty years. The Defendant perfected a timely appeal.

ANALYSIS

The Defendant raises a single issue on appeal: whether the evidence was sufficient

to support her conviction for aggravated child neglect. An appellate court‟s standard of

review when a defendant questions the sufficiency of the evidence on appeal is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). This court does not reweigh the evidence;

rather, it presumes that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Questions regarding witness credibility, conflicts in testimony, and the weight and value

to be given to evidence were resolved by the jury. See State v. Bland, 958 S.W.2d 651,

659 (Tenn. 1997).

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

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury‟s verdict.” Id.; State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon direct

evidence, circumstantial evidence, or a combination of [both] direct and circumstantial

evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). The

standard of proof is the same, whether the evidence is direct or circumstantial. State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the

convicting evidence “is the same whether the conviction is based upon direct or

circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)). The duty of this court “on appeal of a conviction is not to contemplate all

plausible inferences in the [d]efendant‟s favor, but to draw all reasonable inferences from

the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

A person commits child neglect when that person “knowingly abuses or neglects a

child under eighteen (18) years of age so as to adversely affect the child‟s health and

welfare[.]” Tenn. Code Ann. § 39-15-401(b). As charged in the indictment and

submitted to the jury in this case, “[a] person commits the offense of . . . aggravated child

neglect . . . who commits . . . child neglect, as defined in § 39-15-401(b) . . . and: (1) [t]he

act of . . . neglect . . . results in serious bodily injury to the child.” Tenn. Code Ann. § 39-

15-402(a)(1). If the victim is under the age of eight years old, aggravated child neglect is

a Class A felony. Tenn. Code Ann. § 39-15-402(b).

In short, child neglect is composed of three essential elements: “(1) a person

knowingly must neglect a child; (2) the child‟s age must be within the applicable range

set forth in the statute; and (3) the neglect must adversely affect the child‟s health and

welfare.” State v. Sherman, 266 S.W.3d 395, 404 (Tenn. 2008). In order to establish

neglect, the State must first show that a defendant owed a legal duty to the child. Id. A

defendant may be subject to criminal liability for child neglect when the defendant stands

in loco parentis to the child. Id. at 405. A person stands in loco parentis when that

person assumes the full responsibilities of a parent. Id. at 406 (citing Norton v. Ailor,

124 Tenn. 563, 566 (1883) (stating that when a stepfather admits a child into his

household, he assumes “the obligation of the father as respects the support of his minor

child”)).

Further, child neglect is a nature-of-conduct offense, not a result-of-conduct

offense. State v. Ducker, 27 S.W.3d 889, 897 (Tenn. 2000). The statute merely requires

that the act of neglecting the child must be knowing. Id. By way of illustration, a

defendant satisfies the mens rea for child neglect when he or she knowingly leaves a

child in a car for more than eight hours, but the mens rea requirement is not satisfied if he

or she was unaware the child was present in the car at the time. Id. After the knowing

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mens rea is established, then the next inquiry is whether the child suffered an adverse

effect to the child‟s health or welfare. Id. If the child has suffered an adverse health

effect as a result of defendant‟s knowing neglect, then the defendant has committed child

neglect, regardless of whether the defendant knew what the result of the neglect would

be. Id.

A. State’s Theory

At the outset, we feel it important to discuss the State‟s theory of prosecution

regarding the separate counts of aggravated child abuse and aggravated child neglect.

According to the Defendant, “the State made no attempt to elicit proof of neglect nor to

distinguish the evidence supporting the aggravated child abuse charge from the

aggravated child neglect charge.” In essence, the Defendant is contending that the State

pursued a conviction based upon two alternative theories of culpability regarding the

same criminal behavior. However, a close review of the record reveals that the State

presented separate theories for each charge.

Tennessee Code Annotated section 39-15-401(b), in separating the proscription of

child-neglect/adverse-affect from child-abuse/injury contained in subsection (a),2 refers to

“abuse[] or neglect[]” as alternative bases for “adversely affect[ing] the child‟s health and

welfare.” (Emphasis added). Although prior legislative intent was to define child abuse

and child neglect as distinct alternatives,3 the statute at issue in this case defines child

neglect as including abuse. See State v. Jose L. Hidalgo, No. M2011-01314-CCA-R3-

CD, 2013 WL 1197726, at *11 (Tenn. Crim. App. Mar. 26, 2013).

During closing argument, the State presented its theory of the case:

There are two chief differences between the alternative charges in

this case of aggravated child abuse and aggravated child neglect. Child

abuse requires that we prove that it happens other than by accidental means;

that if the child gets injured through an accident it‟s not, by definition, an

abusive act.

2

The current statutes designate three offenses: child abuse, child neglect, and child endangerment. See

Tenn. Code Ann. §§ 39-15-401(a) (child abuse), (b) (child neglect), (c) (child endangerment), 39-15-

402(a) (designating subsections (a), (b), and (c) of Tenn. Code Ann. § 39-15-401 accordingly).

3

Our supreme court has said that the 1998 amendment replaced the language of Tennessee Code

Annotated section 39-15-402 in its entirety, with the purpose of distinguishing criminal conduct that

caused injury to a child from criminal conduct that adversely affected a child‟s health and welfare by

creating two distinct offenses, child abuse and child neglect. See State v. Dorantes, 331 S.W.3d 370, 385

n.15 (Tenn. 2011). Previously, child abuse and neglect had been a single offense that was committed by

the alternate modes of injury or neglect. See State v. Mateyko, 53 S.W.3d 666, 668 n.1 (Tenn. 2001).

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However, other than by accidental means is not part of the neglect

statute. So you can neglect the welfare of a child, and even if the child is

injured through an accident, you can be responsible if your neglect created

the conditions under which the accident occurred.

The second difference is reflected in the indictment itself. . . .

[N]eglect is a continuing course of conduct. Child abuse is a specific act at

a specific time. In this particular case, [the Defendant] is indicted for

events that encompassed not only March 29, 2011, but up and through

March 31st of 2011.

....

In this particular case, not only did [the Defendant] inflict these

injuries but she concealed them. And during that period of concealment,

knowing that this child has sustained some injury, she did not seek out any

medical attention; did not alert the parents to what was going on; concealed

the mechanism of what occurred even after the child was taken to the

hospital demonstrating her continued neglect of the welfare of that little girl

in a continuing course of conduct.

Significantly, the jury instructions for count two (the neglect offense) omitted the option

that the neglect could have been committed by “abuse.” See T.P.I—Crim. 21.02, Part B

(providing the pattern instruction for offenses committed on or after July 1, 2005).

Accordingly, we discern from the record that the State sought one conviction,

aggravated child abuse, based upon specified behavior of the Defendant (inflicting injury

on March 29, 2011) and sought a second conviction, aggravated child neglect, based

upon different behavior (failing to inform or seek medical help from March 29 to March

30, 2011). Stated another way, this is not a case where only one offense is charged, albeit

in two different modes. See, e.g., Hidalgo, 2013 WL 1197726, at *11 (determining that

the State‟s election clearly demonstrated that the prosecution was proceeding with

alternate charges for the same conduct, i.e., treating a child “in a manner as to inflict

injury” or abusing or neglecting a child “so as to adversely affect the child‟s health and

welfare”). It is within this framework of prosecution that we analyze the sufficiency of

the evidence supporting the Defendant‟s aggravated child neglect conviction.

B. Mens Rea

The Defendant first argues that the State failed to show that she engaged in

knowing conduct; she does not dispute that she owed a legal duty to R.M. as the child‟s

contracted caregiver or that R.M. was under eight years of age at the time of the injuries.

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Specifically, the Defendant is contending that the State failed to establish the requisite

knowing mens rea to convict her of aggravated child neglect “because there was no

evidence offered that [she] knew the child was injured” and, moreover, that “it is clear

that [R.M.‟s] symptoms on March 29 were insufficient to establish the knowledge

element of aggravated child neglect.” The Defendant further avers, “[i]n light of the

verdict as to [c]ount [o]ne, there is simply no proof that [the Defendant] was „aware‟ of

the victim‟s injuries and thus would have been under a duty to report, summon help or

call 9-1-1.”

The State responds that the Defendant‟s argument is refuted by the proof adduced

at trial, noting that R.M. suffered two skull fractures, along with bleeding underneath her

skull, during bath time on March 29, while in the exclusive care of the Defendant, and

that the Defendant failed to report to the victim‟s parents that R.M. “might have been

injured.” According to the State, “[t]his evidence, when considered along with Dr.

Lowen‟s testimony that R.M. had been a victim of non-accidental abuse,” supports the

Defendant‟s conviction for aggravated child neglect.

At the motion for new trial hearing, the trial court addressed the Defendant‟s

argument. In determining that the evidence was sufficient to support the Defendant‟s

conviction, the trial court reasoned as follows:

The witnesses that placed this young child . . . in the exclusive care of [the

Defendant] when within the expert testimony that injury could [have]

occurred.

And that State is right in terms of what they are saying here today in

terms of the 3-29 the victim being different, fussy at the park where [the

Defendant] had control. So from 3-29 to 3-30 when the victim was taken to

hospital, was there—is there sufficient proof that there was—from a

medical standpoint injuries that occurred and then lingered for several

hours into the next day prior to getting medical attention? Yes.

Apparently the jury finds that there is not sufficient proof that

beyond a reasonable doubt that [the Defendant] inflicted the injuries but

that she knew the child was injured, failed to give adequate, accurate,

truthful information to the parents that would have [led] to earlier

treatment. I mean, the testimony about the skull fractures, blueness on the

side of the head, swelling on the side of the head, all of that testimony was

presented. I mean obviously from . . . the parents‟ perspective, they would

have addressed that earlier had they known about it, or had they been

informed by [the Defendant] as to what happened.

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Viewing the evidence in the light most favorable to the State, the evidence at trial

established that three-month-old R.M. was left in the sole care of the Defendant on March

29, the day she became symptomatic from her injuries. The victim‟s mother noticed

nothing unusual about R.M.‟s behavior prior to leaving for work about 8:00 a.m. on the

morning of the 29th. According to the Defendant, although R.M. had been “fussy” most

of the day, R.M. began to cry and scream much more loudly than normal around bath

time that evening. Ms. Hutchinson, who lived next door to the victim and her family,

testified that R.M. behaved normally at the park that day. When the victim‟s mother

returned home around 6:00 or 6:30 p.m., she noticed that “something was definitely

different” with R.M., who was screaming and refusing to eat. According to the victim‟s

mother, R.M. oscillated between screaming and sleeping that evening. The victim‟s

mother also found it strange that the Defendant did not inform her of the change in

R.M.‟s behavior prior to her arrival home from work. The Defendant even stayed late

with the family due to R.M.‟s abnormal behavior, finally leaving around 8:00 p.m.

Additionally, the victim‟s mother discussed the child‟s condition with two of her doctor

friends that evening but chose a wait-and-see approach before taking the child for

medical attention. R.M. was not examined at the hospital until two days later, where two

separate skull fractures were detected, one on each side of R.M.‟s head.

Dr. Lowen testified that R.M. would have become symptomatic around the time

the fractures occurred. Ms. Hutchinson stated that she was in frequent contact with the

Defendant, speaking with her “most afternoons”; however Ms. Hutchinson‟s phone calls

and text messages went unanswered on the afternoon of March 29. When she finally did

hear from the Defendant, the Defendant “said something along the lines of it was a crazy

day, or hectic afternoon or a busy afternoon.” Ms. Love, another neighbor of the family‟s

and the family‟s previous nanny, testified that the Defendant left her a voicemail message

on the evening of the 29th saying that “things had gotten kind of crazy during bath

time[.]” Moreover, according to Ms. Love, during the message, the Defendant asked to

speak with her “nanny to nanny” concerning R.M., which was their private code for an

emergency or something of importance. The Defendant later expressed her reservation to

Ms. Love that she might lose her job when R.M. was being examined by doctors. All of

the evidence provides sufficient support for a rational juror to conclude that the

Defendant‟s act of neglecting R.M. was knowing.

Despite this evidence, the Defendant claims that, by acquitting her of aggravated

child abuse in count one, the jury necessarily rejected the State‟s theory that the

Defendant was the cause of R.M.‟s injuries, and thus, there was insufficient proof that she

was aware of R.M.‟s injuries which she knowingly neglected to report. However, we

find this to be, in essence, an argument of inconsistent verdicts, which are permitted in

this State. Our supreme court recently stated that “inconsistent verdicts of multiple

charges against a single defendant may take the form of an inconsistency between a

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conviction and an acquittal.” State v. Davis, 466 S.W.3d 49, 72 (Tenn. 2015); see also

Wiggins v. State, 498 S.W.2d 92, 94 (Tenn. 1973) (“This [c]ourt will not upset a

seemingly inconsistent verdict by speculating as to the jury‟s reasoning if we are satisfied

that the evidence establishes guilt of the offense upon which the conviction was

returned.”). The court “emphasize[d] that „[t]he validity accorded to [inconsistent]

verdicts recognizes the sanctity of the jury‟s deliberations and the strong policy against

probing into its logic or reasoning, which would open the door to interminable

speculation.‟” Davis, 466 S.W.3d at 77 (quoting United States v. Zane, 495 F.2d 683,

690 (2d Cir. 1974)). Accordingly, inconsistent verdicts are unassailable absent a legal

insufficiency. Id. at 73.

The Defendant‟s argument is premised on the notion that, because the jury

acquitted her of aggravated child abuse, i.e., knowingly causing R.M.‟s skull fractures,

the evidence is insufficient to support her conviction for aggravated child neglect due to

her failure to report those injuries to the victim‟s parents or seek medical help for the

child. We disagree with this assertion. Here, any inconsistency in the jury‟s verdict in

this regard can stand because the evidence is sufficient to establish a knowing mens rea

for aggravated child neglect as discussed above. See, e.g., State v. Ashley Bradshaw, No.

W2014-00175-CCA-R3-CD, 2015 WL 523688, at *7 n.3 (Tenn. Crim. App. Feb. 9,

2015) (noting, in a case where a two-year-old victim received extensive burns, that the

verdicts for aggravated child abuse—based upon purposefully holding the victim in the

water—and aggravated child neglect—based upon leaving the victim alone in the bathtub

for five minutes—were “arguably inconsistent” but that such practice was permitted in

this State), perm. app. denied (Tenn. May 18, 2016). The Defendant is not entitled to

relief on this element of her aggravated child neglect conviction.

B. Adverse Effect to R.M.’s Health and Welfare

Challenging a second element of her conviction, the Defendant contends that the

evidence did not show that the Defendant‟s neglect produced an actual, deleterious effect

or harm upon R.M.‟s health and welfare as required in State v. Mateyko, 53 S.W.3d 666,

670-71 (Tenn. 2001). In support of this position, the Defendant cites to several cases in

which this court has held that the evidence underlying the convictions for aggravated

child neglect was insufficient. See, e.g., State v. Marcos Acosta Raymundo, a.k.a.

Marcos Raymundo Acosta, No. M2009-00726-CCA-R3-CD, 2010 WL 4540207 (Tenn.

Crim. App. Nov. 10, 2010) (concluding that the defendant‟s delay in seeking help for the

victim until she collapsed did not have an actual, deleterious effect on her health because

the victim‟s collapse was caused by the abuse, not the delay); State v. John Barlow, No.

W2008-01128-CCA-R3-CD, 2010 WL 1687772 (Tenn. Crim. App. Apr. 26, 2010)

(holding that the evidence failed to demonstrate that the defendant‟s delay in seeking

medical care for the victim caused additional brain damage when medical experts

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testified generally to the risk of continued swelling of the brain but the evidence failed to

show an actual, deleterious effect on the victim caused by the delay); State v. Denise

Wiggins, No. W2006-01516-CCA-R3-CD, 2007 WL 3254716 (Tenn. Crim. App. Nov. 2,

2007) (holding that the burn from an iron, rather than the defendant‟s failure to seek

medical help, caused the child‟s serious bodily injury); State v. Janet Huffine Dykes, No.

E2001-01722-CCA-R3-CD, 2002 WL 1974147 (Tenn. Crim. App. Aug. 16, 2002)

(reversing the defendant‟s conviction for aggravated child abuse through neglect, where

the young victim was diagnosed as having sustained various fractures, some of which

were healing, while others had occurred within forty-eight hours of the x-rays, because

“there [was] no proof from which a rational jury could conclude that the delay—that is,

the neglect—caused serious bodily injury as required by the statute”).

The State does not respond to this portion of the Defendant‟s argument. 4 In her

reply brief, the Defendant cites to State v. Lakeisha Margaret Watkins, No. M2009-

02607-CCA-R3-CR, 2011 WL 2682173, at *24 (Tenn. Crim. App. July 8, 2011), stating

that this court had unequivocally held that there must exist some evidence that the alleged

act of neglect resulted in serious bodily injury in addition to and apart from the serious

bodily injury caused by the initial act of abuse. According to the Defendant, “Dr. Lowen

offered no testimony to support a position that [R.M.] suffered from an injury separate

from the initial fractures.” The Defendant also notes that the State did not argue in its

brief that R.M. “sustained additional injuries from the delay in seeking medical care.”

Analyzing the child abuse and neglect statute in effect at the time, the Tennessee

Supreme Court noted that “the statute itself does not define the phrase „so as to adversely

affect the child‟s health and welfare,‟ nor does it specifically address whether this phrase

requires proof of some actual detriment or harm before criminal liability may be

imposed.” Mateyko, 53 S.W.3d at 666. The court held “that some proof of an actual,

deleterious effect upon the child‟s health and welfare must exist before a conviction may

be sustained” for child neglect. Id. The court noted that “by further including the

„adverse effects‟ element in the statute, the General Assembly must have intended that

the State show something more than a risk of harm to a child‟s health and welfare before

it could subject a defendant to criminal liability[.]” Id. at 671. The Mateyko children

were found in an “indescribably filthy” mobile home overrun with cockroaches. Id. at

668. The Mateyko court summarized the conditions and effect on the children:

Garbage and refuse were scattered throughout the home, and pungent odors

of urine, old fried food, and human feces permeated every corner. . . .

....

4

The State‟s brief focuses on the abuse. However, as discussed above, the alternative theory of abuse as

a basis for the Defendant‟s aggravated neglect conviction was not included in the jury instructions.

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. . . Despite living in these abhorrent conditions, however, the

children appeared by all accounts to be in good health, and they did not

exhibit any signs of illness or other affliction, except that one child was

suffering from a cold. Their grandmother later testified that when the

children first arrived at her house during the early morning hours of May 2,

she believed them to be well-fed and “in perfect health.”

Id. The court concluded that “these vile conditions did produce a risk of harm to the

children‟s health, but fortunately for these children, they were removed from that filthy

environment before any harm actually occurred.” Id. at 672. Therefore, Mateyko

affirmed this court‟s determination that the State had failed to prove child abuse through

neglect. See id. at 677-78.

In accordance with the cases from this court cited by the Defendant, we agree that

her conduct does not fit the definition of neglect under Mateyko. The record is devoid of

any proof concerning what effect, if any, the Defendant‟s failure to inform the victim‟s

parents or seek prompt medical care had on the victim‟s injuries. See Wiggins, 2007

WL 3254716, at *5 (noting that “[w]hile the question of whether the [defendant] sought

medical treatment is relevant to [whether the defendant knowingly neglected the child] . .

. , it is not dispositive of the second element required for conviction,” which is whether

the neglect resulted in serious bodily injury to the child) (alternation in original). There

was also no proof that the victim suffered any injury after the initial trauma or that her

condition worsened due to the passage of time. Given the above authority, we are unable

to conclude that the Defendant‟s failure to inform the victim‟s parents of her injuries or

seek medical treatment for the child resulted in serious bodily injury in addition to and

apart from the serious bodily injury caused by the initial act(s). See id. at *5. Therefore,

we reverse and vacate the judgment of conviction for aggravated child neglect. See, e.g.,

State v. Jeffrey Scott Gold, No. E2012-00387-CCA-R3-CD, 2013 4278760, at *12-14

(Tenn. Crim. App. Aug. 15, 2013) (concluding same where victim had separate skull

fractures on the right and left side of his head, a brain hemorrhage, a leg fracture, rib

fractures, and significant bruising all over his body).

CONCLUSION

In sum, we conclude that the evidence is insufficient to support the Defendant‟s

conviction for aggravated child neglect. Accordingly, we reverse and vacate the

judgment of the trial court. The charge shall be dismissed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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