IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE v. JENNIE BAIN DUCKER
Appeal from the Circuit Court for Warren County
No. F-6967 Charles Haston, Judge
FOR PUBLICATION
No. M1997-00074-SC-R11-CD - Decided July 14, 2000
We granted review to determine (1) whether aggravated child abuse is a lesser-included offense of
the charged offense of first degree murder for the reckless killing of a child; (2) whether the knowing
mens rea of aggravated child abuse refers to the conduct of the defendant or to the result of that
conduct; (3) whether the evidence supports the defendant's convictions; and (4) whether the
defendant was properly convicted of Class A felonies when the trial court failed to charge the jury
on the age element contained in the aggravated child abuse statute. We conclude that aggravated
child abuse is a lesser-included offense of the charged offense of first degree murder for the reckless
killing of a child; that the knowing mens rea required for a conviction of aggravated child abuse
refers to the conduct and not to the result of the conduct; that the evidence was sufficient to support
the defendant’s convictions in this case; and that the defendant was properly convicted of Class A
felonies for injuries to children six years of age or less.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Affirmed.
HOLDER , J., delivered the opinion of the court, in which ANDERSON, C.J., and DROWOTA , BIRCH,
and BARKER, JJ., joined.
David L. Raybin, Nashville, Tennessee, and Michael D. Galligan, McMinnville, Tennessee, for the
appellant, Jennie Bain Ducker.
Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Kim
R. Helper, Assistant Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant, Jennie Bain Ducker, drove with her two children, ages twenty-three months
and twelve months, to the McMinnville Holiday Inn on June 6, 1995. The defendant's boyfriend had
been temporarily residing at the hotel. The defendant and her two small children arrived at the hotel
at approximately 3:45 a.m. She securely fastened her children into their car seats, closed the
windows, and locked the doors. She then left the children alone in the car and went to her
boyfriend's hotel room.
The defendant entered the hotel room where her boyfriend and three other individuals were
playing video games. The record indicates that she drank some wine. Expert testimony at trial
indicated that her blood alcohol level could have been as high as .1925 that morning.
The testimony of individuals present in the hotel room that night indicated that the defendant
left the room on two occasions, once to get ice and once to get analgesics. The defendant, however,
testified that she left the room on five occasions to check on her children. The defendant apparently
never mentioned to anyone that she had left her children locked in her car.
The gathering broke up at approximately 5:00 a.m. The defendant and her boyfriend
remained at the hotel room. They fell asleep shortly thereafter while the defendant's two children
were still locked inside her automobile. The defendant awoke between 12:00 and 1:00 p.m. She
returned to her car and discovered her lifeless children. She drove them to the hospital where they
were pronounced dead at approximately 1:20 p.m. Both children died of systemic hyperthermia, a
condition that results when a human body severely overheats and is unable to cool itself.
The defendant was indicted on two counts of first degree murder for the reckless killing of
a child. At trial, the defendant introduced proof to establish that she suffered from bipolar disorder
with periods of depression and mania. The defendant also offered evidence that she had a sleep
disorder. The defendant’s mother testified that the defendant would remain awake for two or three
days at a time and then go into such a deep sleep that she could not be awakened. The defendant
testified that she did not see any danger in leaving her sons in the car for more than nine hours. She
also testified that she made no excuses for what happened and that she accepted responsibility for
her actions.
A jury acquitted the defendant of murder charges but convicted her on two counts of
aggravated child abuse. She was sentenced to eighteen years on each count to run concurrently for
an effective sentence of eighteen years. The defendant raised numerous issues in the Court of
Criminal Appeals. The Court of Criminal Appeals, however, affirmed both her convictions and her
sentences. We granted review.
ANALYSIS
The defendant has raised four issues on appeal. These issues may be paraphrased as follows:
(1) whether aggravated child abuse is a lesser-included offense of the charged offense of murder for
the reckless killing of a child; (2) whether the knowing mens rea of aggravated child abuse refers to
the conduct of the defendant or to the result of that conduct; (3) whether the evidence supports the
defendant's convictions under that charge; and (4) whether the defendant was properly convicted of
Class A felonies when the trial court failed to charge the jury on the age element contained in the
aggravated child abuse statute.
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Lesser-Included Offense
The defendant was charged in a two-count indictment for first degree murder for the death
of her children. She was not indicted for aggravated child abuse. Count one of the indictment read,
in pertinent part, that the defendant:
unlawfully and recklessly did kill Devin Lee Ducker, D.O.B. 7-2-93 a child
less than sixteen (16) years of age as a result of aggravated child abuse, as
defined by T.C.A. 39-15-402, . . . in violation of T.C.A. 39-13-202.
Count two of the indictment was identical to count one except that count two was for the murder of
"Dustin Jay Ducker, D.O.B. 5-10-94."
The first degree murder statute in effect at the time of the children's deaths recognized four
separate means of committing the crime of first degree murder. The four means provided in Tenn.
Code Ann. § 39-13-202 (1994) are premeditated murder, felony murder, reckless killing by bombing,
and reckless killing of a child. At the time of the offenses, subsection (a)(4) read:
(a) First Degree murder is:
***
(4) A reckless killing of a child less than sixteen (16) years of age, if the
child's death results from aggravated child abuse, as defined by § 39-15-402,
committed by the defendant against the child.
Tenn. Code Ann. § 39-13-202(a)(4) (1994). The 1994 amendment was effective until July 1, 1995.
The children were pronounced dead on June 6, 1995.
During oral argument, the defendant conceded that the crime of which she was convicted,
aggravated child abuse, was a lesser-included offense of the reckless killing of a child. Both the
legal basis for this concession and a portion of the analysis employed by the Court of Criminal
Appeals on this issue were erroneous.1 Accordingly, we will address the defendant’s arguments
1
During oral argument before this Court, the defendant conceded that aggravated child abuse
was a lesser-included offense of murder for the reckless killing of a child. The defendant based this
concession on a footnote from this Court's recent decision in State v. Burns, 6 S.W.3d 453, 467
(Tenn. 1999). Footnote 12 in Burns essentially recognized that the legislature had the ability to
explicitly designate a crime as a lesser-included offense of a greater crime. While child abuse has
been explicitly designated as a lesser-included offense "of any kind of homicide" in Tenn. Code Ann.
§ 39-15-401(d), the legislature has not designated aggravated child abuse as a lesser-included offense
of "any kind of homicide."
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made in her briefs that aggravated child abuse is not a lesser-included offense of murder for the
reckless killing of a child.
Aggravated Child Abuse and Murder for the Reckless Killing of a Child
As Separate Offenses
The defendant argues that aggravated child abuse is not a lesser-included offense of murder
for the reckless killing of a child because aggravated child abuse is a predicate offense that the
legislature has designated as a separate offense subject to separate punishments. She maintains that
"if aggravated child abuse were a lesser included offense of homicide then a conviction for both
murder and aggravated child abuse could not stand because one cannot be convicted of both the
greater and lesser crimes.” The crux of her argument is that Tennessee permits dual convictions for
both the reckless killing of a child and its predicate felony, aggravated child abuse. Tennessee
merger law, however, mandates that dual convictions of both a greater offense and its lesser-included
offense merge, thereby vacating the conviction for the lesser-included offense. See State v. Beard,
818 S.W.2d 376, 379 (Tenn. Crim. App. 1991). Accordingly, she contends that the legislature has
designated predicate felonies under the first degree murder statute as separate crimes subject to
separate punishments and that these crimes are not lesser-included offenses.
In the case now before us, the defendant was not indicted on separate counts for both the
reckless killing of a child and aggravated child abuse. Accordingly, we need not determine whether
the doctrine of merger would preclude dual convictions for both the reckless killing of a child and
aggravated child abuse. We note, however, that a legislative intent to permit dual convictions and
sentences for both felony murder and the predicate felony does not appear to be present under the
reckless killing of a child provision in Tenn. Code Ann. § 39-13-202(a)(4) (1994). The legislature
originally codified the reckless killing of a child by aggravated child abuse in response to State v.
Kerry Phillip Bowers, No. 115 (Tenn. Crim. App., filed Aug. 2, 1989). This codification was known
as the "Scotty Trexler Law." The intent of the Scotty Trexler Law was not to permit dual
convictions but to punish the reckless killing of a child as first degree murder. See State v. Hale, 840
S.W.2d 307, 310 n.3 (Tenn. 1992) ("The amendment was passed by the General Assembly late in
the session in response to the public outcry after the conviction of Kerry Phillip Bowers for the lesser
offense of the second-degree murder of Scotty Trexler . . . ."). Whether to permit dual convictions
is not, however, an issue in this case.2
2
The legislature has since opted to treat the crime as felony murder, and the dual conviction
analysis employed by this case is limited strictly to Tenn. Code Ann. § 39-13-202(a)(4). We
recognize that the Court of Criminal Appeals in State v. Hodges, 7 S.W.3d 609 (Tenn. Crim. App.
1998), affirmed the dual convictions of first degree felony murder and aggravated child abuse. The
murder statute under which Hodges was convicted, however, is different from the murder statute at
issue in this case. Hodges was convicted under Tenn. Code Ann. § 39-13-202(a)(2)(1995), which
prohibits the killing of another during the perpetration of a felony, aggravated child abuse.
(a) First degree murder is:
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Differing Mens Rea and Age Requirements
The defendant argues that the offense of aggravated child abuse is not a lesser-included
offense of murder for the reckless killing of a child because of the different requirements for both
the mens rea and the age of victims. The defendant contends “the more serious homicide offense
. . . had a lesser mental state of ‘reckless’ as compared to the higher mental state of ‘knowing’ in the
less serious aggravated child abuse statute.” The defendant also points out that the more serious
offense of murder for the reckless killing of a child requires the victim to be under the age of sixteen
while the offense of aggravated child abuse requires the victim to be under the age of eighteen. For
the reasons below, we conclude that the offense of aggravated child abuse is a lesser-included
offense of the offense of murder for the reckless killing of a child committed during aggravated child
abuse.
Aggravated child abuse at the time of the children's deaths was defined as follows:
(a) A person is guilty of the offense of aggravated child abuse who commits
the offense of child abuse as defined in § 39-15-401 and:
(1) The act of abuse results in serious bodily injury to the child; or
(2) A deadly weapon is used to accomplish the act of abuse.
(b) A violation of this section is a Class B felony; provided, that, if the
abused child is six (6) years of age or less, the penalty is a Class A felony.
***
(2) A killing of another committed in the perpetration of or attempt to
perpetrate any first degree murder, arson, rape, robbery, burglary, theft,
kidnapping, aggravated child abuse or aircraft piracy; or
***
(b) No culpable mental state is required for conviction under subdivision
(a)(2) or (a)(3) except the intent to commit the enumerated offenses or acts
in such subdivisions.
Tenn. Code Ann. § 39-13-202(a)(2), (b) (1995).
Ducker was indicted for the reckless killing of a child by aggravated child abuse, which was
contained in a separate subsection of the first degree murder statute at Tenn. Code Ann. §
39-13-202(a)(4)(1994) (repealed in 1995).
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Tenn. Code Ann. § 39-15-402(a), (b) (1994). The offense of child abuse was defined as follows:
Any person who knowingly, other than by accidental means, treats a child
under eighteen (18) years of age in such a manner as to inflict injury or
neglects such a child so as to adversely affect the child's health and welfare
is guilty of a Class A misdemeanor; provided, that if the abused child is six
(6) years of age or less, the penalty is a Class D felony.
Tenn. Code Ann. § 39-15-401 (1994).
In State v. Burns, 6 S.W.3d 453, 466 (Tenn. 1999), we adopted a test to determine whether
crimes are lesser-included offenses of other crimes.3 We held in part that an offense is a lesser-
included offense if all of its statutory elements are included within the statutory elements of the
offense charged. Burns further states that an offense is a lesser-included offense of the crime
3
Under Burns an offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory elements of
the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains
a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability;
and/or
(2) a less serious harm or risk of harm to the same person, property or
public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise
meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part (a)
or (b); or
(3) solicitation to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part (a)
or (b).
Burns, 6 S.W.3d at 466-67.
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charged when "the elements of the lesser offense are a subset of the elements of the charged
offense." Id. at 464 (citing Schmuck v. United States, 489 U.S. 705, 716 (1989)).
The offense of murder for the reckless killing of a child is comprised of the following
elements: (1) a reckless killing, (2) of a child victim less than sixteen years of age, (3) by aggravated
child abuse. Thus, the offense of murder for the reckless killing of a child incorporates the offense
of aggravated child abuse into the murder offense. The provisions regarding the reckless mens rea
and the victim’s age are elements required in addition to the requirement that the killing be
committed by aggravated child abuse.
The defendant contends that the more serious homicide charge has a lesser mental state
requirement than the offense of aggravated child abuse. The more serious homicide offense does
include a mental state of recklessness as to the killing. The term “reckless”
refers to a person who acts recklessly with respect to circumstances
surrounding the conduct or the result of the conduct when the person is aware
of but consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk must be of such a nature
and degree that its disregard constitutes a gross deviation from the standard
of care that an ordinary person would exercise under all the circumstances as
viewed from the accused person's standpoint.
Tenn. Code Ann. § 39-11-302(c)(1994). The child murder statute criminalizes the reckless killing
of a child less than sixteen if the child’s death results from aggravated child abuse, which is the
knowing treatment or neglect of a child so as to cause injury or adversely affect the child’s health.
In other words, the more serious charge simply requires an additional element that, along with the
knowing act of child abuse or neglect, the person consciously disregards a substantial and
unjustifiable risk that death could occur.
Similarly, the requirement that the victim be less than sixteen years of age is an additional
element and is not inconsistent with the age requirement for aggravated child abuse as the defendant
alleges. Murder for the reckless killing of a child incorporates the aggravated child abuse offense,
which applies to victims under the age of eighteen. The murder statute then sets forth an additional
element that the victim be less than sixteen years of age. This additional element works to narrow
the universe of potential victims and requires the State to produce proof that the victim is not only
under the age of eighteen but under the age of sixteen as well. In this case, under either Burns or the
pre-Burns Howard test, the offense of aggravated child abuse is a lesser-included offense of murder
for the reckless killing of a child by aggravated child abuse because all of the statutory elements of
the lesser offense are included within the statutory elements of the offense charged. See Howard v.
State, 578 S.W.2d 83, 85 (Tenn. 1979).
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Mens Rea Required for the Offense of Child Abuse:
Nature of Conduct or Result of Conduct
The defendant was found guilty of aggravated child abuse, which requires either child abuse
or neglect under Tenn. Code Ann. § 39-15-401 and the additional element that the abuse or neglect
resulted in serious bodily injury. We will next address whether the knowing mens rea required in
the child abuse statute applies to the conduct of the defendant or to the result of that conduct. The
defendant argues that the child abuse statute defines a result-of-conduct offense and, therefore, the
statute requires that one must actually be aware that her conduct would result in serious bodily injury
to the child victim. We disagree.
A result-of-conduct offense requires that the culpable mental state accompany the result as
opposed to the nature of the conduct. See generally Wallace v. State, 763 S.W.2d 628 (Tex. Ct. App.
1989). The focus is on whether the actor possessed the required culpability to effectuate the result
that the legislature has specified. Generally, an offense may be classified as a result-of-conduct
offense when the result of the conduct is the only element contained in the offense.
An example of a result-of-conduct offense is second degree murder, which is defined as a
"knowing killing of another." Tenn. Code Ann. § 39-13-210(a)(1). In second degree murder, the
result of the conduct is the sole element of the offense. The "nature of the conduct" that causes death
or the manner in which one is killed is inconsequential under the second degree murder statute. The
statute focuses purely on the result and punishes an actor who knowingly causes another's death.
The intent to engage in conduct is not an explicit element of the state's case in second degree murder.
Accordingly, a result-of-conduct crime does not require as an element that an actor engage in a
specified course of conduct to accomplish the specified result.
In contrast, the child abuse statute sets forth both a conduct element and a result element.
The child abuse statute provides, in pertinent part:
Any person who knowingly, other than by accidental means, treats a child
under eighteen (18) years of age in such a manner as to inflict injury or
neglects such a child so as to adversely affect the child's health and welfare
...
Tenn. Code Ann. § 39-15-401 (1994) (emphasis added). Thus, Tennessee’s child abuse and neglect
statute may be broken down into two classifications, abuse and neglect, each of which have both a
conduct and a result element. Child abuse requires that: (1) a person knowingly “treat in such a
manner” a child under eighteen years of age; and (2) the child sustains an injury. Child neglect
requires that: (1) a person knowingly neglect a child under eighteen years of age; and (2) the child's
health and welfare are adversely affected. The defendant argues that the mens rea of “knowing”
applies to the injury prong as well as to the treatment and neglect prong.
The defendant cites Alvarado v. State, 704 S.W.2d 36 (Tex. Crim. App. 1985), in support
of her argument that our child abuse and neglect statute is a result-of-conduct offense. In Alvarado,
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the defendant was convicted of abuse or injury to a child after placing the child in scalding bath
water. The defendant alleged that she did not know the bath water was hot enough to cause injury.
The statute under which she was convicted defined the crime as: "intentionally, knowingly,
recklessly or with criminal negligence engages in conduct that causes serious bodily injury . . . ."
Id. at 37, n.1 (citing Tex. Penal Code Ann. § 22.04, since amended). The court held that the statute
under which Alvarado was convicted was a result-of-conduct offense and that the state had failed
to show that she intended the scalding bath water to burn her baby. Id.
The holding in Alvarado has been described as merely "an effort to lessen the confusion
arising from the legislature's unfortunate choice of words in the statute defining the offense of injury
to a child, as it read at the time of that opinion." Navarro v. State, 863 S.W.2d 191, 196 (Tex. Crim.
App. 1993). Moreover, Alvarado was subsequently interpreted as having "little or no application
in a prosecution under . . . any other 'result of conduct' statute that does not employ the confusing
'engage in conduct' language formerly found in section 22.04." Id. at 196. The State of Texas has
since amended the statute.
Unlike Alvarado, the Tennessee child abuse and neglect statute is clear that “knowingly”
modifies “treats” or “neglects.” The actus reus is modified by the clause "other than by accidental
means." Accordingly, the statute requires that the act of treating a child in an abusive manner or
neglecting the child must be knowing conduct. For instance, the defendant must have knowingly
left or abandoned her children in the car for more than eight hours. If the defendant had been
unaware that her children were present in the car when she left her car parked in front of the hotel,
the neglect of her children would have been accidental or unknowing. Contrary to the defendant's
assertions, application of the mens rea to the actus reus of this statute precludes this statute from
being a strict liability statute.
Once the knowing mens rea is established, the next inquiry under the plain language of the
statute is simply whether the child sustained an injury or, in the case of child neglect, whether the
child suffered an adverse effect to the child’s health or welfare. The legislature has employed the
phrases "so as to injure" and "so as to adversely affect" when defining the injury aspect of the child
abuse statute. These phrases clearly indicate that if an injury results from knowing abuse or neglect,
the actor has committed child abuse.
As a practical matter, the defendant’s argument could render the child abuse statute
ineffectual. Defendants in child abuse cases could argue that, while they in fact knowingly punished
or spanked the child, they did not know harm would occur. See Alvarado, 704 S.W.2d at 37, n.4.
We, therefore, reject the defendant's argument and hold that the mens rea of “knowing” refers only
to the conduct elements of treatment or neglect of a child under the child abuse statute and conclude
that the child abuse offenses are not result-of-conduct offenses.
Sufficiency of the Evidence
In the case now before us, the defendant was convicted of aggravated child abuse. The
record establishes that the defendant knowingly parked her car, rolled up the windows, securely
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fastened the children in the car, locked the car and left them inside the parked car from
approximately 3:45 a.m. to between 12 and 1 p.m. on June 6. The children died of hyperthermia.
The evidence supports a finding that the defendant knowingly and other than by accidental means
neglected the children. The evidence also supports a finding that the neglect adversely affected the
children’s health and welfare. Accordingly, the evidence of the children's deaths overwhelmingly
supports a finding of aggravated child abuse. We conclude a rational trier of fact could have found
the defendant guilty of aggravated child abuse beyond a reasonable doubt based upon the evidence
presented. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994).
Failure to Instruct on Age
The defendant argues that her sentences for Class A aggravated child abuse are unlawful
because the trial court failed to instruct the jury as to a material element of the offense, that the
victims were six years of age or less. She contends that she could be found guilty only of the Class
B version of the offense because the trial court instructed the jury that a “child” is a person under the
age of eighteen. The State, on the other hand, argues that the victim’s age is used merely as a
sentencing enhancement factor and is not a material element.
Age as a material element
We first consider whether the statutory provision regarding a victim six years of age or less
is a material element of the offense of aggravated child abuse. Both the offense of child abuse and
of aggravated child abuse address injuries to and neglect of victims under the age of eighteen.
Additionally, both offenses increase the culpability and punishment if the child victim six years of
age or less.
The conduct prohibited by the child abuse and aggravated child abuse statutes is similar to
the conduct prohibited by the assault and aggravated assault statutes. The child abuse statutes differ
from the assault statutes in that in most scenarios the penalty for an offense under the child abuse
statutes will be greater than if that same conduct were punished under the assault statutes.4
4
Tenn. Code Ann. § 39-15-401, child abuse and neglect, states:
(a) Any person who knowingly, other than by accidental means, treats a child
under eighteen (18) years of age in such a manner as to inflict injury or
neglects such a child so as to adversely affect the child's health and welfare
commits a Class A misdemeanor; provided, that if the abused or neglected
child is six (6) years of age or less, the penalty is a Class D felony.
Tenn. Code Ann. § 39-13-101 defines assault:
(a) A person commits assault who:
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The offenses of child abuse of a child under eighteen and assault are both Class A
misdemeanors. If, however, the victim of child abuse is six years of age or less, the offense becomes
a Class D felony. Aggravated child abuse of a child under eighteen is punished as a Class B felony,
and aggravated child abuse of a child six years of age or less is punished as a Class A felony. The
(1) Intentionally, knowingly or recklessly causes bodily injury to another;
***
(b) Assault is a Class A misdemeanor unless the offense is committed under
subdivision (a)(3), in which event assault is a Class B misdemeanor.
The offenses of aggravated child abuse and aggravated assault are similar offenses in that they are
committed when there is resulting serious bodily injury or a weapon is employed. Aggravated child
abuse is defined:
(a) A person is guilty of the offense of aggravated child abuse who commits
the offense of child abuse as defined in 39-15-401 and
(1) The act of abuse results in serious bodily injury to the child; or
(2) A deadly weapon is used to accomplish the act of abuse.
(b) A violation of this section is a Class B felony; provided, that, if the
abused child is six (6) years of age or less, the penalty is a Class A felony.
Tenn. Code Ann. § 39-15-402(a) (1994).
Tenn. Code Ann. § 39-13-102 defines aggravated assault:
(a) A person commits aggravated assault who:
(1) Intentionally or knowingly commits an assault as defined in § 39-13-101
and:
(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon; or
***
(d) Aggravated assault under subdivision (a)(1) or subsection (b) or (c) is a
Class C felony. . . .
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similar conduct under aggravated assault constitutes a Class C felony. Thus, the legislature has
determined that one who commits child abuse and aggravated child abuse is more culpable than an
offender who commits the same type of crime against an adult.
In State v. Walton, 958 S.W.2d 724, 729 (Tenn. 1997), this Court observed that the
legislature chose to classify sexual offenses perpetrated against children under thirteen years of age
as “aggravated” crimes. We explained that the legislature determined that an offender who sexually
abuses a child is more culpable than an offender who commits the same act against an adult. We
held that age is an essential element of the offenses. Id. Like the sexual offenses involving children,
the legislature has chosen to classify child abuse offenses as “aggravated” crimes because they are
crimes against children. Thus, we hold that the age provisions of the statute are essential elements
of the child abuse offenses.
Failure to instruct on material element
It is the trial court's duty to give a complete charge of the law applicable to the facts of the
case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992); State v. Thompson, 519 S.W.2d 789, 792
(Tenn. 1975). The Fifth and Sixth Amendments to the United States Constitution “require criminal
convictions to rest upon a jury determination that the defendant is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506,
509, 115 S. Ct. 2310, 2313, 132 L. Ed. 2d 444 (1995).
We conclude that the statutory provision regarding the age of the victim is an essential
element of the Class A felony of aggravated child abuse. We also hold that the trial court erred by
failing to instruct the jury that it must find beyond a reasonable doubt that the victims were six years
of age or less. We shall next consider whether this error is subject to harmless error analysis.
Harmless Error Analysis
In Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 1838, 144 L. Ed. 2d 35 (1999),
the United States Supreme Court held that the harmless error inquiry in a failure-to-instruct case
should be whether it is “clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” The Court said:
We believe that where an omitted element is supported by uncontroverted
evidence, this approach reaches an appropriate balance between “society’s
interest in punishing the guilty [and] the method by which decisions of guilt
are made.” . . . In a case such as this one, where a defendant did not, and
apparently could not, bring forth facts contesting the omitted element,
answering the question whether jury verdict would have been the same absent
the error does not fundamentally undermine the purposes of the jury trial
guarantee.
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Of course, safeguarding the jury guarantee will often require that a
reviewing court conduct a thorough examination of the record. If, at the end
of that examination, the court cannot conclude beyond a reasonable doubt
that the jury verdict would have been the same absent the error–for example,
where the defendant contested the omitted element and raised evidence
sufficient to support a contrary finding–it should not find the error harmless.
A reviewing court making this harmless error inquiry does not, as
Justice Traynor put it, “become in effect a second jury to determine whether
the defendant is guilty.” Rather a court in typical appellate-court fashion asks
whether record contains evidence that could rationally lead to a contrary
finding with respect to the omitted element. If the answer to that question is
“no,” holding the error harmless does not reflect a denigration of the
constitutional rights involved.” On the contrary, it “serve[s] a very useful
purpose insofar as [it] block[s] setting aside convictions for small errors or
defects that have little, if any, likelihood of having changed the result of the
trial.”
Id. at 527 U.S. at 18-19, 119 S. Ct. at 1838-39 (citations omitted).
The indictments in this case charging the defendant with the reckless killing of her children
included the victims’ dates of birth. During the proof in the case, one of the defendant’s boyfriends
testified that her children were younger than age four, the age of his child. Other witnesses described
the children as “babies.” The medical examiner’s autopsy reports introduced as evidence listed the
age of Dustin J. Ducker as twelve months old and the age of Devin L. Ducker as twenty-three
months old. The trial court did not instruct the jury as to the victims’ ages other than the instruction
that a “child” is defined as being less than eighteen years old. The trial court did instruct the jury
as to the possible sentence for the crime of Class A aggravated child abuse. Ms. Ducker’s defense
was that she did not knowingly cause the injuries or harm to her children; her defense had nothing
to do with the ages of her children.
We conclude that beyond a reasonable doubt the jury verdict would have been the same
absent the error. Thus, the error was harmless.
CONCLUSION
We hold that aggravated child abuse is a lesser-included offense of murder for the reckless
killing of a child. Additionally, we hold that the knowing mens rea of aggravated child abuse refers
to the conduct and not to the result of the conduct and that the evidence was sufficient in this case.
We also hold that the defendant was properly convicted of Class A felonies for injury to children six
years of age or less. Costs of this appeal are taxed against the defendant Jennie Bain Ducker, for
which execution may issue if necessary.
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