State v. Sherman

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 7, 2008 Session

STATE OF TENNESSEE v. ARIEL BEN SHERMAN

Appeal by permission from the Court of Criminal Appeals
Criminal Court for Loudon County
No. 10,611A E. Eugene Eblen, Judge

No. E2006-01226-SC-R11-CD - Filed August 15, 2008

A Loudon County grand jury indicted the defendant, Ariel Ben Sherman, and co-defendant,
Jacqueline Crank, for child neglect. The trial court dismissed the indictment against Sherman. The
Court of Criminal Appeals reversed and remanded. We granted Sherman’s application for
permission to appeal to consider the issues presented for review, and hold as follows: (1) When
deciding a motion to dismiss an indictment, a trial court may consider undisputed facts that are
clearly and unequivocally agreed upon by the parties; (2) a person standing in loco parentis to a child
may have a legal duty of care, the breach of which may result in criminal culpability; and (3) the
State is not bound at the outset of a trial by the legal theories espoused in its bill of particulars.
Because the trial court erroneously dismissed the indictment, we affirm the Court of Criminal
Appeals, reinstate the indictment against Sherman, and remand the case for further proceedings
consistent with this opinion.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Affirmed

GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH , JR., JJ., joined.

Donald A. Bosch and Ann C. Short-Bowers, Knoxville, Tennessee, for the appellant, Ariel Ben
Sherman.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth
T. Ryan, Senior Counsel; and Russell Johnson, District Attorney General, for the appellee, State of
Tennessee.

OPINION
 Facts and Procedural History1

Ariel Ben Sherman (“Defendant”) moved to Lenoir City, Tennessee, in April of 2001, rented
a house, and began to conduct religious services in the name of the Universal Life Church. He
permitted eight of his parishioners to move into his six-bedroom residence, including Jacqueline
Crank (“Crank”), her daughter Jessica Crank (“Jessica”), and her son Israel.2

In February of 2002, when Jessica was fourteen, Crank made an appointment with a
chiropractor for an examination of Jessica’s enlarged right shoulder. The Defendant was present.
The chiropractor treated Jessica and scheduled a follow-up appointment. One week later, he
apparently expressed concern about her condition and recommended that Jessica be examined at the
University of Tennessee Medical Center. Jessica did not go to the hospital, and, instead, she was
taken to Physician’s Care, a walk-in clinic. While there, she was not treated by a specialist.
According to the Defendant, Crank did not have adequate health insurance to pay for Jessica’s
medical care, and, in consequence, the church initiated an effort to raise the funds necessary to pay
for future tests on her shoulder. In September of 2002, however, Jessica died of Ewing’s Sarcoma,
a type of bone cancer most commonly found in young people under twenty years of age.3

A grand jury indicted both the Defendant and Crank on one count of misdemeanor child
abuse and child neglect, Tennessee Code Annotated section 39-15-401 (2003),4 charging that the two
had knowingly treated Jessica “in such a manner as to inflict injury or neglect . . . so as to adversely
affect the child’s health and welfare.” Later, in a bill of particulars, the State made the following
allegations:

1
Because the trial court dismissed the indictment against the Defendant prior to trial, no proof was presented.
The factual record on appeal is limited. Our factual summary has been developed from pretrial motions and other
documentation filed by the State and from the transcript of the hearing on the motion to dismiss. Our recitation of the
facts is for contextual purposes only.

2
Jessica’s father died in 1995.

3
According to Dr. Ludwig G. Strauss, the frequency of Ewing’s sarcoma in the United States is at a rate of 0.3
cases per 1,000,000 children under 3 years old, and 4.6 cases per 1,000,000 in adolescents 15-19 years old. See Ludwig
G. Strauss, M.D., Ewing Sarcoma, EMedicine, Nov. 2, 2007, http://www.emedicine.com/radio/topic275.htm. According
to the European Intergroup Cooperative Ewing’s Sarcoma Study, “The 3-year, event-free survival rate was 66% in
patients with localized tumors, 43% in those with lung metastases at the initial diagnosis, and 29% in those with other
metastases. A large tumor volume and/or a tumor primarily localized to the pelvic area were negative prognostic
factors.” Id. (citing M. Paulussen et al., 211(4) Klinische Padiatrie 276 (1999)). Typically, treatment consists of
chemotherapy followed by excision. It may also include radiotherapy. Complete excision may be performed
immediately after the biopsy if malignancy is confirmed at that time. The lengths of treatment vary depending on
location of the tumor and the stage of the disease. Most patients receive chemotherapy for 6-12 months and radiation
therapy for 5-8 weeks. See M eredith Lahl et al., 12(1) Clinical J. of Oncology Nursing 89 (2008).

4
W e cite to the 2003 version of the statute because the 2003 edition was in effect at the time the alleged crime
occurred.

2
 The actions that the State allege constitute the offense in question are the failure by
either defendant to pursue the medical evaluations and treatments recommended by
the Chiropractor and the persons at Physician’s Care. The specifics of these
recommendations include dates, times, and places [and] are of course in the materials
that you will be reviewing as part of open file discovery. There is obviously no
dispute but that defendant Crank stood in a parental relationship with the victim.
With regard to defendant Sherman, it is the State’s position that he repeatedly held
himself out as her father and one of her caretakers, thereby creating a duty on his part
as well.

(emphasis added). The Defendant filed a pretrial motion to dismiss, pursuant to Tennessee Rule of
Criminal Procedure 12(b), as did Crank. He argued that because he had no legal or special duty to
provide care for Jessica, he could not be held criminally liable for her death. Crank also filed a
motion to dismiss, claiming that she had lawfully chosen “spiritual treatment as opposed to taking
her child” for traditional medical services and specifically cited to Tennessee Code Annotated
section 39-15-402(c), which provides, in part, as follows:

Nothing in this chapter shall be construed to mean a child is neglected, abused, or
abused or neglected in an aggravated manner for the sole reason the child is being
provided treatment by spiritual means through prayer alone in accordance with the
tenets or practices of a recognized church or religious denomination by a duly
accredited practitioner thereof in lieu of medical or surgical treatment.

Tenn. Code Ann. § 39-15-402(c) (2003).

At a hearing on the motions, the State conceded that the Defendant had no marital
relationship with Crank and was neither the parental nor the legal guardian of Jessica. The trial court
sustained the Defendant’s motion to dismiss on the grounds that he had not married Crank. The
charges against Crank were also dismissed. After an appeal by the State, the Court of Criminal
Appeals reversed the order of dismissal and remanded for trial.5 The Defendant filed a motion for
permission to appeal. Tenn. R. App. P. 11. Crank did not. We granted the Defendant’s application
for review in order to consider the propriety of the dismissal of the indictment.

5
On his direct appeal to the Court of Criminal Appeals, the Defendant also argued that the General Assembly
“decriminalized” his alleged acts when, in 2005, it changed the victim’s age in the child neglect statute from eighteen
to thirteen. Specifically, the Defendant cited the common law rule that “a party cannot be convicted, after the law under
which he may be prosecuted has been repealed, although the offense may have been committed before the repeal.” Bell
v. Maryland, 378 U.S. 226, 230-31 (1964). Our General Assembly, however, has enacted a savings statute, which
provides that when a penal statute has been repealed, any offense committed “while such statute or act was in full force
and effect shall be prosecuted under the act or statute in effect at the time of the commission of the offense.” Tenn. Code
Ann. § 39-11-112 (2006). Our intermediate court concluded that the savings statute effectively abrogated the common
law rule, and the Defendant was, therefore, subject to prosecution under the child neglect statute that was in effect at the
time the alleged acts were committed. State v. Sherman, No. E2006-01226-CCA-R3-CD, 2007 W L 2011032 (Tenn.
Crim. App. July 12, 2007). That issue is not before this Court.

3
 Scope of Review

The trial court dismissed the indictment based upon the application of law to facts not in
dispute. The Court of Criminal Appeals applied a de novo standard of review. Because the question
presented is one of law, our review is “de novo with no presumption of correctness” as to the
conclusions reached by the trial court. State v. Thompson, 197 S.W.3d 685, 690 (Tenn. 2006).

The issues presented for review also require statutory interpretation. On appeal, those issues
are considered de novo with no presumption of correctness afforded to either the trial court or
intermediate court of appeals. Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn.
2006). When the meaning of a statute is in question, we rely upon well-established canons of
statutory construction. Penal statutes are to be construed giving fair import of their terms in a way
which promotes justice and effectuates the objectives of the criminal code. Tenn. Code Ann. §
39-11-104 (2006). Our chief concern is to carry out legislative intent without broadening the statute
beyond its intended scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn.
2002). We presume that every word in a statute has meaning and purpose and should be given full
effect if the obvious intention of the General Assembly is not violated by so doing. In re C.K.G., 173
S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we simply apply the plain meaning without
complicating the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). When
a statute is ambiguous, however, we may reference the broader statutory scheme, the history of the
legislation, or other sources. Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679
(Tenn. 1998). We presume the General Assembly was aware of its prior enactments at the time it
passed the legislation. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).

Analysis
I. Tennessee Rule of Criminal Procedure 12

Prior to the Tennessee Rules of Criminal Procedure, Tennessee recognized a motion to quash
and a plea in abatement as separate and distinct procedural tools to challenge an indictment. See
Bonds v. State, 421 S.W.2d 87, 88 (Tenn. 1967). Each had nuanced requirements. A motion to
quash could be used to attack an indictment “only where the defect appear[ed] upon the face of the
[instrument].” McKeldin v. State, 516 S.W.2d 82, 83 (Tenn.1974). On the other hand, a plea in
abatement was the appropriate procedure for a challenge to a facially valid indictment; under this
pleading, a defendant was entitled to present extraneous evidence in support of his claims. Id.; see
Pennell v. State, 125 S.W. 445 (Tenn. 1909); 1 Am. Jur. 2d Abatement, Survival, and Revival §§
1, 47 (1994). The accused could not enter a plea in abatement after a plea of “not guilty.” Mendolia
v. State, 241 S.W.2d 606, 611 (Tenn. 1951).

In 1975, the General Assembly eliminated the distinction between a motion to quash and a
plea in abatement by amending the Tennessee Code so as to provide for the motion to dismiss.
Public Acts 1975, ch. 129, § 1. Under the amended section, the trial court could dismiss an
indictment for facial invalidity or other grounds regardless of whether a guilty plea had been entered.
Id. The chief requirement was that the motion “state in clear and concise terms the defects alleged.”

4
Id. This all-encompassing motion to dismiss was later incorporated into Rule 12 of the Tennessee
Rules of Criminal Procedure, which was modeled after the federal rule.6 State v. Thorpe, 614
S.W.2d 60, 62-63 (Tenn. Crim. App. 1980).

A. Undisputed Facts
The Defendant first asserts that the Court of Criminal Appeals erred by ordering the trial
court to consider only “formal stipulations” in the motion to dismiss. Although we do not
necessarily agree with the Defendant’s interpretation of that portion of our intermediate court’s
opinion, we will address the issue as presented. At the pretrial hearing, the State made the following
statement:

I don’t mind saying what I’ve told counsel, and that is that the State is not alleging,
and will not attempt to prove, and as far as I know, could not prove that this
defendant was ever lawfully married to the mother of this child, that he ever adopted
the child, that he is the stepfather, or any way legally connected in that manner.

The trial court sustained the motion to dismiss based upon the State’s concession during the hearing
that the Defendant was neither a parent, a stepparent, nor a legal guardian to Jessica.

When ruling upon a motion to dismiss, a trial court may consider evidence beyond the face
of the indictment. Thorpe, 614 S.W.2d at 63. This may include undisputed facts or stipulations by
the parties. State v. Goodman, 90 S.W.3d 557, 561 (Tenn. 2002). The question does not hinge upon
how the nature of these facts became apparent to the court but upon whether they qualify as “factual
evidence of the defendant’s conduct at the time of the alleged offense” or as “relevant only to the
legal question presented by the defendant’s motion, not to the general issue of guilt or innocence.”
Id. This rationale extends to concessions by parties at any hearing, so long as the facts are not clearly
in dispute and properly become a part of the record. Cf. State v. Messamore, 937 S.W.2d 916, 918
(Tenn. 1996) (holding that an indictment was timely filed, despite facial deficiencies, because “the
record reflects, and the defendants conceded at oral argument, that prosecution had been timely
commenced in each case”). If, on the record, the State and the defense unequivocally agree to those
facts, whether written or verbal, then the trial court may rely upon those stipulations as “formal
enough” to serve as the basis for deciding a motion to dismiss.

B. Standard of Review under Rule 12
Rule 12 of the Tennessee Rules of Criminal Procedure provides, in pertinent part, as follows:

A party may raise by pretrial motion any defense, objection, or request that the court
can determine without a trial of the general issue.
....

6
Rule 12 also provides the proper procedural mechanism for many other pretrial motions, such as a motion to
suppress evidence, motion to dismiss for lack of subject-matter jurisdiction, and motion to dismiss for failure to file
within the statute of limitations.

5
 The court shall decide each pretrial motion before trial unless it finds good cause to
defer a ruling until trial or after a verdict. The court shall not defer ruling on a
pretrial motion if the deferral will adversely affect a party’s right to appeal. When
factual issues are involved in deciding a motion, the court shall state its essential
findings on the record.

Tenn. R. Crim. P. 12(b)(1), (e) (2007). A motion to dismiss under Rule 12 allows the trial court to
decide issues that are ripe for resolution without a full trial on the merits. This preliminary procedure
is designed to avoid “unnecessary interruption and inefficiency” and it secures the right of the State
to appeal without offending double jeopardy. Goodman, 90 S.W.3d at 561. In discussing the
validity of a defense presented in a pretrial motion, the United States Supreme Court has observed
that the issue is “capable of determination” under the analogous federal rule if “the facts surrounding
the commission of the alleged offense would be of no assistance in determining” the issue. United
States v. Covington, 395 U.S. 57, 60 (1969). Generally speaking, pre-trial motions to dismiss that
are “capable of determination” involve questions of law, rather than fact. United States v. Schulman,
817 F.2d 1355, 1358 (9th Cir. 1987) (“A Rule 12 . . . motion to dismiss is appropriately granted
when it is based on questions of law rather than fact.”). When considering such a motion, however,
the trial court may make some findings of fact, so long as it does not encroach upon the province of
the jury. United States v. Jones, 542 F.2d 661, 665 (6th Cir. 1976).

Determining whether the trial court correctly dismissed the indictment under Tennessee Rule
of Criminal Procedure 12 is a two-step process. First, we must determine whether the trial court
based its decision upon findings of law, which would be appropriate, or findings of fact that should
have been presented to a jury. United States v. Miller, 491 F.2d 638, 647 (5th Cir. 1974) (“The
propriety of granting a motion to dismiss an indictment under . . . Rule 12 by pretrial motion is
by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or
involves determinations of fact.”). Second, as to questions of law, we review the trial court’s
holding de novo with no presumption of correctness. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823,
826 (Tenn. 2003); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

As stated, when the trial court interprets a statute and applies it to undisputed facts, the issue
is one of law. Goodman, 90 S.W.3d at 561; State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999).
In this instance, the trial court granted the motion to dismiss after considering that the Defendant was
neither married to Crank nor the legal guardian of her daughter Jessica. Because the State conceded
those facts, the dismissal was based upon an issue of law rather than any resolution of the evidence
and is subject to our de novo review.

II. Duty under Tenn. Code Ann. § 39-15-401

At the time of Jessica’s death, the legislation governing child abuse and neglect provided as
follows:

(a) Any person who knowingly, other than by accidental means, treats a child under

6
 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, however, that if the abused or neglected child is six (6) years
of age or less, the penalty is a Class D felony.

Tenn. Code Ann. § 39-15-401(a) (2003). This statute can be broken down into two
classifications–abuse and neglect. State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). The section
pertaining to 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. Mateyko, 53 S.W.3d 666, 670
(Tenn. 2001); Ducker, 27 S.W.3d at 896. The first element is at issue in this case. In order to
establish neglect, the State must first prove that a defendant owes a legal duty to the child. Mateyko,
53 S.W.3d at 671.

Other jurisdictions have assessed criminal liability for the failure to act on behalf of a child
where the law imposes a duty to do so. See, e.g., Commonwealth v. Twitchell, 617 N.E.2d 609, 613
(Mass. 1993); State v. Stewart, 663 A.2d 912, 928-29 (R.I. 1995); State v. Eagle Hawk, 411 N.W.2d
120, 122 (S.D. 1987); see also 21 Am. Jur. 2d Criminal Law § 32 (1998). In order to be found guilty
of a criminal omission, one must have knowledge of the circumstances that give rise to the duty.7
See Westrup v. Commonwealth, 93 S.W. 646, 648 (Ky. 1906) (“One cannot be said in any manner
to neglect or refuse to perform a duty unless he has knowledge of the condition of things which
require performance at his hands.”). Moreover, our child neglect statute contemplates that the
conduct constituting the offense be made knowingly. Ducker, 27 S.W.3d at 897. A defendant’s duty
to act must arise from a legal duty; a mere moral obligation will not suffice.8 See People v.
Beardsley, 113 N.W. 1128, 1129 (Mich. 1907). One commentator has divided the traditional sources
of legal duties in the criminal context into six categories: (1) duty based on relationship; (2) duty
based on statute; (3) duty arising from contract; (3) duty arising from a voluntary assumption of care;
(4) duty to control others; (5) duty arising from creation of peril; and (6) duty of landowner.9 1 W.
LaFave & A. Scott, Substantive Criminal Law § 6.2(a) (2d ed. 2003); see also Jones v. United States,
308 F.2d 307, 310 (D.C. Cir. 1962) (recognizing four sources of duty). Ordinarily, the legal duty

7
An informative article describing the development of criminal omissions from the time of Roman law to
American statutory law was published in the Harvard Law Review. Otto Kirehheimer, Criminal Omissions, 55 Harv.
L. Rev. 615 (1942).

8
Some commentators have challenged this notion and suggest that the duty to act should be broader than it
traditionally has been applied. See Graham Hughes, Criminal Omissions, 67 Yale L.J. 590, 624 (1958) (“In a civilized
society, a man who finds himself with a helplessly ill person who has no other source of aid should be under a duty to
summon help, whether the person is his wife, his mistress, a prostitute or a Chief Justice.”); but see Joshua Dressler,
Cases and M aterials on Criminal Law 134 (3d ed. 2003) (“Traditionally, American criminal law sets only minimalist
goals. It seeks to prevent people from causing positive harm to others; it does not compel individuals, upon the threat
of criminal punishment, to be virtuous.”).

9
There has been some criticism of this duty-based approach. See Arthur Leavens, A Causation Approach To
Criminal Omissions, 76 Calif. L. Rev. 547 (1988).

7
envisioned by section 39-15-401(a), along with the knowledge of such a duty, arises from a
relationship with a child victim. This necessarily leads to the question of what kind of relationship
gives rise to a duty under section 39-15-401(a).

Our criminal code does not include a definition for “child neglect.” Further, the code does
not address the requisite nature of the affiliation before the duty arises to provide medical care or
treatment. In determining the legislative intent, we have previously relied upon provisions applicable
to the juvenile courts and the Department of Children’s Services, explaining that the “primary
purpose of these statutes, like that of the criminal child abuse statute, is to prevent acts of child
neglect and to protect and care for children who are victims of neglect.” State v. Adams, 24 S.W.3d
289, 295 (Tenn. 2000) (citing Tenn. Code Ann. §§ 37-1-102(b)(12)(D), -102(b)(12)(F),
37-5-103(8)(D), -103(8)(F) (1996 & Supp. 1999)). A familiar canon of statutory construction is that
statutes with a common purpose will use common definitions. See, e.g., Mandela v. Campbell, 978
S.W.2d 531, 534 (Tenn. 1998); Stevens v. Linton, 229 S.W.2d 510, 512 (Tenn. 1950).

In juvenile proceedings, a “dependent and neglected child” is one “[w]hose parent, guardian
or custodian neglects or refuses to provide necessary medical, surgical, institutional or hospital care
for such child.” Tenn. Code Ann. § 37-1-102(b)(12)(D) (emphasis added). Because the State has
stipulated that the Defendant was neither the parent nor legal guardian of the victim, the precise issue
is whether the term “custodian” applies. A “custodian” is defined as “a person, other than a parent
or legal guardian, who stands in loco parentis to the child or a person to whom temporary legal
custody of the child has been given by order of a court.” Tenn. Code Ann. § 37-1-102(b)(7) (2005)
(emphasis added). Our Court of Appeals has ruled, “‘Where one is in loco parentis the rights, duties,
and liabilities of such person are the same as those of the lawful parent.’” Hollis v. Thomas, 303
S.W.2d 751, 761 (Tenn. Ct. App. 1957) (quoting 67 C.J.S. Parent and Child § 71). That assessment
is consistent with the common law. Niewiadomski v. United States, 159 F.2d 683, 686 (6th Cir.
1947) (“At common law a parent is charged with the duty of educating and supporting a minor child
. . . . The same rights and duties exist when the relationship of in loco parentis has been intentionally
assumed and established.”). We hold, therefore, that our criminal code envisions that a person
standing in loco parentis to a child may be subject to criminal liability for child neglect.10

“In loco parentis” is, of course, Latin for “in the place of a parent.” Geibe v. Geibe, 571
N.W.2d 774, 780-81 (Minn. Ct. App. 1997). The term extends as far back as Sir William

10
This scope of this duty for child abuse and neglect has been applied by many of our sister states. See, e.g.,
Bowers v. State, 379 A.2d 748, 753 (Md. Ct. App. 1977); State v. Smith, 485 S.W .2d 461, 467 (Mo. Ct. App. 1972);
People v. Pierson, 68 N.E. 243, 244 (N.Y. 1903) (finding that the duty to furnish necessities to a child applies to those
considered by “the common law as the parents, guardians, or those who by adoption or otherwise have assumed the
relation in loco parentis”). Contrary to our holding here today, Texas has found that only the parent of a child may be
convicted of child neglect under its statute. Ronk v. State, 544 S.W .2d 123, 125 (Tex. Crim. App. 1976). The Texas
Court of Criminal Appeals based its holding on statutory terminology that “[t]he only persons charged with such duty
under Section 12.04 of the [Texas] Family Code are the [natural or adoptive] parents as that term is defined in Section
11.01.” This differs from our statutory scheme. See Tenn. Code Ann. § 37-1-102(b)(12)(D) (stating that a neglected
child is one “[w]hose parent, guardian or custodian neglects or refuses to provide necessary medical, surgical,
institutional or hospital care for such child.”).

8
Blackstone. See 1 Commentaries *453. Generally, someone who holds that status has assumed the
traditional obligations of a parent without a formal adoption. Niewiadomski, 159 F.2d at 686; see
also 67A C.J.S. Parent and Child § 345 (2002). Our state has long recognized the doctrine. See,
e.g., Whitworth v. Hager, 140 S.W. 205, 207 (Tenn. 1910); Norton v. Ailor, 79 Tenn. 563, 566
(1883); Maguinay v. Saudek, 37 Tenn. (5 Sneed) 146, 148 (1857). Years ago, this Court ruled that
“a tutor, teacher, or testamentary guardian, and . . . a legal substitute for a guardian” might stand in
loco parentis.11 State v. Davidson, 184 S.W. 18, 19 (Tenn. 1916). Further, one might be so
classified for a limited time and for a limited purpose. Phillips v. Johns, 12 Tenn. App. 354, 357
(1930) (stating that the “teacher stands in loco parentis, but to a limited extent only”). Finally, a
person also may assume the full responsibilities of a parent under the doctrine. Norton, 79 Tenn. at
566 (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”) (citing Maguinay, 37 Tenn. at 147).12 When
one establishes an in loco parentis relationship, that person assumes both duties and interests with
regard to a child. See Vol. State Life Ins. Co. v. Pioneer Bank, 327 S.W.2d 59, 62 (Tenn. Ct. App.
1959) (holding that someone standing in loco parentis has a sufficient interest to buy valid life
insurance for a child).

Despite our long adherence to the in loco parentis doctrine, none of our rulings address the
nature of the accompanying obligations for the purposes of child neglect. Other states have
determined that the key element is one of intent–whether the adult intended to assume parental
duties. Molock v. Dorchester County Family YMCA, Inc., 779 A.2d 963, 967 (Md. Ct. Spec. App.
2001) (stating that in loco parentis is “a question of intention”) (quoting Vonder Horst v. Vonder
Horst, 41 A. 124, 126 (Md. 1898)); Searle v. Searle, 38 P.3d 307, 319 n.11 (Utah Ct. App. 2001)
(stating that whether someone assumes obligations in loco parentis “depends on whether that person
intends to assume that obligation”) (emphasis in original) (quoting Gribble v. Gribble, 583 P.2d 64,
66 (Utah 1978)); 67A C.J.S. Parent and Child § 346 (“Whether the relationship of loco parentis
exists is a matter of intention to be shown by the facts of the particular case . . . .”). We agree with
this assessment. A fact-finder may infer intent from circumstantial evidence. McConnico v. Third
Nat’l Bank, 499 S.W.2d 874, 885 (Tenn. 1973). While not exclusive, some facts to consider when
determining whether a person had the intent to establish an in loco parentis relationship may include
the child’s age, the child’s dependence upon the person claimed to be in loco parentis, and whether
that person supports the child and exercises the duties and obligations of a natural parent. Gritzner
v. Michael R., 611 N.W.2d 906, 919-20 (Wis. 2000) (quoting McManus v. Hinney, 143 N.W.2d 1
(Wis. 1966)).

11
W e also have used the term metaphorically in describing the Chancery Court’s role in carrying out the intent
of a creator of a trust. Bennett v. Nashville Trust Co., 153 S.W . 840, 841 (Tenn. 1913) (“A court of equity, acting in
loco parentis or occupying the place of the trust creator, in such case, does what it conceives would have been done by
the creator had he foreseen the situation of his beneficiary in a substitution of another course of management in order
to the completer realization of his purposed bounty.”).

12
Norton has been abrogated by modern domestic relations laws. This case does not reflect the modern law
as to the financial obligations of stepparents. W e merely cite to it as part of the historical backdrop for the in loco
parentis doctrine in Tennessee.

9
 To repeat, the only relevant undisputed facts in this case were that the Defendant was not the
biological parent of Jessica Clark, not her legal guardian, and not married to her mother. This is
simply not enough information to warrant a dismissal of the indictment. The State may present other
circumstances that might establish a duty on the part of the Defendant arising out of an in loco
parentis relationship. The Defendant’s relationship with the mother may be circumstantial evidence
of duty, but the ultimate question is the nature and degree of the Defendant’s relationship with
Jessica. In theory, the State might be able to establish that the Defendant failed to perform a
statutory duty to provide adequate medical care for the child.13 For these reasons, we hold that the
Court of Criminal Appeals properly ruled that the trial court erred by granting the Defendant’s
motion to dismiss at this stage in the litigation.14

III. Criminal Responsibility under Tenn. Code Ann. § 39-11-402

The Defendant argues that he cannot be guilty under a theory of criminal responsibility for
conduct of another, which also is known as accomplice liability. Tennessee Code Annotated section
39-11-402 provides that a person may be held liable for the criminal acts of another when:

(1) Acting with the culpability required for the offense, the person causes or aids an
innocent or irresponsible person to engage in conduct prohibited by the definition of
the offense;

(2) Acting with intent to promote or assist the commission of the offense, or to
benefit in the proceeds or results of the offense, the person solicits, directs, aids, or
attempts to aid another person to commit the offense; or

(3) Having a duty imposed by law or voluntarily undertaken to prevent commission
of the offense and acting with intent to benefit in the proceeds or results of the
offense, or to promote or assist its commission, the person fails to make a reasonable
effort to prevent commission of the offense.

This statute codified the common law theory, which “provided equal criminal liability for principals,
accessories before the fact, and aiders and abettors.” State v. Howard, 30 S.W.3d 271, 276 (Tenn.
2000) (citing Tenn. Code Ann. §§ 39-11-401, -402 Sentencing Comm’n Comments); see also State

13
The State’s bill of particulars indicates that it will attempt to show that the Defendant “held himself out as
her father and one of her caretakers.” W e note that even if this were found to be true, the fact that the Defendant “held
himself out” as the victim’s father would not establish an in loco parentis relationship conclusively. The jury might
consider it as circumstantial evidence of Defendant’s intent to establish such a relationship, and his assumption of care.
W hether an in loco parentis relationship was established, however, is a question for the jury.

14
The Defendant also argues that “the state’s theory of prosecution paradoxically creates criminal liability for
failing to do an act that [the Defendant] is legally incapable of performing” because the Defendant would not have been
able to provide medical care as a non-parent. W hile this may be a viable defense at trial, there simply are no facts in the
record to establish it at this point.

10
v. Ward, 396 A.2d 1041, 1046 n.13 (Md. Ct. App. 1978) (quoting R. Perkins, Criminal Law 643 (2d
ed. 1969)), overruled on other grounds by Lewis v. State, 404 A.2d 1073 (Md. 1979), as stated in
Jones v. State, 920 A.2d 1, 10 (Md. Ct. App. 2007). The justification for this theory of criminal
liability is that, in addition to the primary criminal actor, aiders and abettors should be held
accountable for the criminal harms they intentionally facilitated or helped set in motion. Howard,
30 S.W.3d at 276; Key v. State, 563 S.W.2d 184, 186 (Tenn. 1978); State v. Grooms, 653 S.W.2d
271 (Tenn. Crim. App. 1983).

To prove guilt through a theory of criminal responsibility, the State must establish that the
defendant “knowingly, voluntarily and with common intent unite[d] with the principal offender[] in
the commission of the crime.” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994)
(quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)). Mere presence during the
commission of a crime is insufficient to support a conviction. See Flippen v. State, 365 S.W.2d 895,
899 (Tenn. 1963). It is not, however, necessary for one to take a physical part in the crime;
encouragement of the principal is sufficient. State v. McBee, 644 S.W.2d 425, 428 (Tenn. Crim.
App. 1982).

Section 39-11-402(2) does not prescribe a separate and distinct crime; rather, it works in
synergy with the charged offense to establish a defendant’s guilt through the actions of another.
State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Formerly under our common law and now
by statute, defendants convicted under a theory of criminal responsibility are considered to be
principal offenders, just as if they had committed the crime themselves. State v. Carson, 950 S.W.2d
951, 954 (Tenn. 1997). A separate indictment for criminal responsibility is unnecessary when a
defendant has been indicted for the primary offense. Lemacks, 996 S.W.2d at 170; State v. Barnes,
954 S.W.2d 760, 763 (Tenn. Crim. App. 1997).15

In this case, the State did not allege that the Defendant was guilty under a theory of criminal
responsibility by assisting Crank’s neglect of Jessica either in the indictment or the bill of particulars.
Nevertheless, the State is not precluded from pursuing theories of criminal liability that are not
mentioned in the bill of particulars, so long as such theories of liability do not exceed the scope of
the indictment. See Lemacks, 996 S.W.2d at 173 (“An indictment that charges an accused on the
principal offense ‘carries with it all the nuances of the offense,’ including criminal responsibility.”)
(quoting State v. Johnson, 910 S.W.2d 897, 900 (Tenn. Crim. App. 1995)).

Tennessee Rule of Criminal Procedure 7(c) provides, “On defendant’s motion, the court may
direct the district attorney general to file a bill of particulars so as to adequately identify the offense
charged.” A bill of particulars serves three purposes. First, the bill of particulars provides a
“‘defendant with information about the details of the charge against him if this is necessary to the
preparation of his defense.’” State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991) (quoting State v.
Hicks, 666 S.W.2d 54, 56 (Tenn. 1984)). Second, it assures that a defendant has an opportunity to

15
W e recognize that this is not a uniform approach taken in all states. See Michael v. State, 805 P.2d 371
(Alaska 1991); Barren v. State, 669 P.2d 725 (Nev. 1983).

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“‘avoid prejudicial surprise at trial.’” Id. Finally, it enables the defendant to preserve a plea against
double jeopardy. Id.; see also State v. Speck, 944 S.W.2d 598, 600 (Tenn. 1997). A bill of
particulars is not a discovery device and is limited to information a defendant needs to prepare a
defense to the charges. Tenn. R. Crim. P. 7(c), Advisory Comm’n Comments.

The trial court should make every effort to ensure that the State supplies all critical
information in its bill of particulars, but lack of specificity will not result in reversible error unless
a defendant can prove prejudice. Speck, 944 S.W.2d at 601; Byrd, 820 S.W.2d at 741. Such
prejudice cannot be found until after all proof has been presented. We have held that

it is only by post hoc examination of the matter that the court will be able to
determine whether deficiencies in the bill of particulars prevented the defendant from
preparing an adequate defense, caused undue and prejudicial surprise, or made
untenable a later plea of double jeopardy. In other words, the trial court cannot
determine whether or not the defendant has been hampered in his defense until the
court knows what proof the state will offer as to time and place of the offense, and
how this evidence relates to the actual theory of defense.

Byrd, 820 S.W.2d at 741 (emphasis added). In short, the purpose of the bill of particulars is to alert
criminal defendants as to how the State will proceed with the litigation. The purpose is not to lock
the State into a specific theory of prosecution. See State v. Stephenson, 878 S.W.2d 530, 539 (Tenn.
1994) (holding that a trial court does not err by denying a defense motion for a bill of particulars
where the defense is attempting to compel the State to commit to a theory of liability either as a
principal or an accessory). If the State significantly deviates from the bill of particulars at trial, this
potentially could be a ground for reversal, but only if a defendant can, as stated, demonstrate
prejudice in the form of unfair surprise or inability to prepare an adequate defense.16 Byrd, 820
S.W.2d at 741.

In this instance, the Defendant cannot show the requisite degree of prejudice for the obvious
reason that there has yet to be a trial in which prejudice may arise. Because we have not been availed
of the evidence the State will put forward, we cannot predict how it might affect the Defendant’s
ability to present a defense. The same was true of the trial court when it dismissed the indictment.
Because criminal responsibility has not been eliminated as a possible theory of guilt, granting
Defendant’s motion to dismiss was improper.

The Defendant further argues that even if the State was not precluded from proceeding on
a criminal responsibility theory by the bill of particulars, criminal responsibility could not apply to
him, given the facts of the case. The Defendant claims that no reasonable person could interpret his
actions as an intent to promote, assist, benefit from, solicit, direct, aid, or attempt to aid Crank in

16
Interestingly, Federal Rule of Criminal Procedure 7(f) provides procedures for amending a bill of particulars,
but a corresponding provision is absent from the Tennessee Rules of Criminal Procedure. See State v. Noble, No.
E2005-00011-CCA-R3-CD, 2006 W L 317005 (Tenn. Crim. App. Feb. 10, 2006).

12
committing child neglect. This limited record does not place us in a position to either agree or
disagree with this assertion. We cannot determine whether a reasonable juror could find that the
Defendant’s conduct aided, assisted, or encouraged Crank to engage in conduct constituting child
neglect. At the close of the proof, the trial court may consider whether the evidence is insufficient
to sustain a conviction. Tenn. R. Crim. P. 29 (2007). The sufficiency of the evidence then would
be subject to appellate scrutiny. State v. Price, 46 S.W.3d 785, 819 (Tenn. Crim. App. 2000).

Conclusion

When considering a motion to dismiss, a trial court may consider the undisputed facts. On
appeal, a judgment applying undisputed facts to the law is subject to de novo review. Further, a
person in loco parentis to a child may have a duty of care, the violation of which may warrant
criminal penalties. Finally, the failure to assert criminal responsibility for the acts of another in a
bill of particulars does not preclude prosecution under that theory of criminal liability because it is
an integral component of the charged offense. The judgment of the Court of Criminal Appeals is,
therefore, affirmed, and the cause is remanded to the trial court for further proceedings consistent
with this opinion. Costs of the appeal are taxed to appellant.

___________________________________
GARY R. WADE, JUSTICE

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