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.
-16-
 . . . 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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