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State of Tennessee v. Shalonda Weems
Case Number: M2018-02288-CCA-R3-CD
Judge: Robert L. Holloway, Jr.
Court: COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Plaintiff's Attorney: Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Pamela S. Anderson, Assistant District Attorney General
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Defendantís child, Karímn JíQua Weems (ďKarímnĒ), was born on September 5, 2004. Defendant and Karímn were discharged from the hospital on September 7, 2004. Karímn died on March 3, 2005. Defendant was interviewed by detectives of the MetropolitanNashville Police Department (MNPD) on March 3, 2005, October 21, 2005, and July 7, 2014.
On June 23, 2015, more than ten years after Karímnís death, the Davidson County Grand Jury indicted Defendant for aggravated child neglect in violation of Tennessee Code Annotated section 39-15-402 and first degree felony murder during the perpetration of or attempt to perpetrate aggravated child neglect in violation of Tennessee Code Annotated section 39-13-202(a)(2). The case was tried by jury on September 25 and 26, 2018. The trial court denied Defendantís motion for judgment of acquittal at the close of the Stateís proof, although the trial court expressed concern about ďthe knowingly aspectĒ of both counts. At the conclusion of the proof, the case was presented to the jury on charges of aggravated child neglect and second degree murder.1 The jury returned a guilty verdict of aggravated child neglect and reckless homicide, a lesser-included offense of second degree murder.2 1 Neither the record nor the briefs explain how the indicted offense of felony murder was reduced to second degree murder, the offense on which the jury was instructed. However, because the sole issue in this appeal relates to the judgment of acquittal dismissing the aggravated child neglect count, that information is not necessary for the purposes of this appeal. 2 Defendant did not appeal the denial of the motion for judgment of acquittal on the reckless homicide count, and the State efficiently abridged the record to provide the transcripts, exhibits, and documents necessary for this court to decide the issue raised by the Stateówhether the trial court erred in granting the judgment of acquittal on the aggravated child neglect count. However, we note that the reckless homicide occurred on March 3, 2005, and that Defendant was indicted on June 23, 2015, well after the expiration of the four-year statute of limitation for Class D felony reckless homicide. See Tenn. Code Ann. ß 40-2-101(b)(3). ď[A]n accused who is indicted for an offense, which is not barred by the statute of limitations, may not be convicted of a lesser-included offense which is time barred by the statuteĒ unless the accused knowingly and voluntarily waives the statute of limitations. State v. Pearson, 858 S.W.2d 879, 885 (Tenn. 1993). The only pleading in this abridged record that even suggests that Defendant waived the statute of limitations for reckless homicide was Defendantís ďMotion for Jury InstructionsóLesser Included OffensesĒ by which Defendant requested the trial court charge voluntary manslaughter, reckless homicide, and criminally negligent homicide as lesser-included offenses of second degree murder. We cannot presume Defendant waived the statute of limitations based on her written request for jury instructions for lesser-included offenses. State v. Marchello Karlando Gossett, No. W2015-02414-CCA-R3-CD, 2017 WL 1163683, at *30 (Tenn. Crim. App. Mar. 28, 2017), perm. app. denied (Tenn. Aug. 18, 2017). However, to address the issues raised on appeal, we do not need to determine whether Defendant knowingly and voluntarily waived the statute of limitations for reckless homicide.
Defendant timely filed a written Motion for Judgment of Acquittal pursuant to Tennessee Rule of Criminal Procedure 29(e)(1). The Motion was argued on October 31, 2018. In its oral ruling, the trial court noted that it had not accepted the juryís verdict in its role as thirteenth juror. The trial court found that there was insufficient evidence to prove that Defendant acted ďknowinglyĒ and set aside the verdict of guilty of aggravated child neglect. The court denied the Motion as to reckless homicide and confirmed the juryís verdict.
In its written order enteredDecember 5, 2018, the trial courtstated:
After careful consideration in observing the evidence in the light favorable to the prosecution, the [c]ourt does not accept the verdict in [c]ount [o]ne for insufficient evidence regarding Defendantís mens rea of ďknowingĒ element of T[ennessee] C[ode] A[nnotated] section39-15-401 and [section] 39-15-402.
Summary of Trial Testimonyand Evidence
Testimony of Detective Joseph L. Cooper
MNPD Detective Joseph L. Cooper, who was assigned to investigate Karímnís death, was the first witness called by the State.3 By the time Detective Cooper arrived at Defendantís home, Karímn had been transported to Vanderbilt University Medical Center (ďVUMCĒ). The detective proceeded to the hospital where he spoke to a social worker who identified Defendant as Karímnís mother.
Detective Cooper spoke with Dr. Olivia Titus who had spoken to Defendant. According to the information obtained from Defendant by Dr. Titus, Defendant ďhad been sick for the last couple of days with the flu and was recovering from that illness.Ē Karímn ďhad also been ill and Defendant had been giving [her] Childrenís Tylenol.Ē Defendant ďfed [Karímn] formula the night before . . . around [eleven] oíclockĒ and put Karímn to bed right after she fed her. Defendant checked on Karímn around 3:00 a.m. and 5:00 a.m., and Karímn ďappeared to be normal at that point.Ē Defendant woke up around 6:30 a.m. and checked on Karímn around 7:15 a.m., at which time Karímn was lying on her back ďbarely breathingĒ and looked ďblue and weird.Ē Defendant telephoned her mother and told her Karímn was not breathing. Defendantís sister, who was present at Defendantís motherís home, called 9-1-1.
3 Detective Cooper had been retired from MNPD for approximately five and a half years when he testified at Defendantís trial on September 25, 2018.
Detective Cooper obtained medical releases from Defendant and contacted the Department of Childrenís Services concerning Defendantís two other children. He obtained consent to search Defendantís home where he took photographs and collected various items, includingďa blanket, an infant bed cover, a circular infant pillow, Kleenex, a bottle with formula, an empty baby bottle, a white shirt[,] and a[n] infant bed sheet.Ē Detective Cooper next interviewed Defendant. The audio recording of that interview was played for the jury, and the photographs taken by Detective Cooper were published to the jury. Detective Cooper also interviewed Laura Owens, the manager of Creative Academy, the daycare provider for Karímn and Defendantís two other children.
Detective Cooper interviewed Defendant again on October 21, 2005, and questioned her about whether the formula she gave Karímn had been watered down. He told Defendant that the autopsy report listed the cause of death as starvation and malnutrition. Detective Cooper said Defendant did not seem concerned or surprised by the autopsy findings. The digital versatile disc (ďDVDĒ) and transcript of the March 3, 2005 audio interview and the October 21, 2005 audio/video interview were admitted for identification.
On cross-examination, Detective Cooper stated that the medical examinertold him on March 7, 2005, that the manner of death had been classified as a homicide and that Karímnhad been ďsuffering from pneumonia and a thyroid disorder.Ē
Testimony of Laura Owens
Laura Owens testified that she was the owner of Creative Academy and had worked there for forty-five years. She said Karímn had attended Creative Academy in 2005 and that she had talked to the police about this case shortly after Karímnís death. She said Creative Academy does not provide formula for infants and that the parents are expected to prepare bottles at home and bring them for their children. She said Defendant brought water and juice for Karímn, and she told Defendant that ď[Defendant] was feeding her baby wrongĒ andthat theďbaby wasnít supposed to have juice and water, the baby should have a formula.Ē She said the workers at Creative Academy would typically feed an infant a bottle every two to three hours. Ms. Owens said that Defendant kept her three children ďall clean and neat.Ē Ms. Owens was shown two autopsy photographs of Karímn. She said Karímn never came to Creative Academy looking like she did in the photographs and that, if she had, ďwe would have had to report that.Ē On cross-examination, Ms. Owens agreed that Defendant brought bottles filled with formula to Creative Academy. Ms. Owens said that Defendant was never told she could not bring Karímn because she was not providing enough formula. When questioned about the last time she saw Karímn, Ms. Owens answered:
Well, the last time I saw her was in her little pink boxers there, but before she was trying to bring her to the daycare, the baby was sick, and we did not accept her, and then the next thing we knew, the baby had died.
Ms. Owens thought the last day she saw Karímn was Friday because ďlike two or three days later the baby was deceased.Ē
Testimony of Detective Selene Julia
Selene Julia, a detective with MNPD, assisted Detective John Grubbs, who in 2013 was assigned to investigate Karímnís death. As part of the investigation, she assembled and reviewed the VUMC medical records. Without objection, the records were admitted into evidence, and Detective Julia testified from them.
The record for September 7, 2004, showed that Karímn was born on September 5, 2004. She weighed six pounds, ten ounces. Defendant was advised how to enroll in WIC4 and TennCare. Defendant also enrolled in the Healthy Start Program that included home visits by nurses. She was already receiving aid from Families First and food stamps. Defendant was provided pamphlets and instructed about bottle-feeding and breastfeeding. Defendant elected to breastfeed, and the nurse reported that the baby ďlatched.Ē Defendant demonstrated to medical personnel that she could properly feed Karímn, and the nurses reported that Karímn tolerated feeding well before they were discharged on September 7, 2004.
On September 10, 2004, Karímn presented to VUMC for a newborn follow-up visit. Defendant reported that she had been breastfeeding for three days and that Karímn was spitting up after feeds. The medical record stated under ďnutritionĒ:
Breast Feeding: per mom, latches well, unsure whether milk has come in, reports that she can see milky fluid going into infantís mouth, however her breast have not started to feel engorged. Does not have breast pump. Formula feeding: Brand of formula: Soy (?) in purple and gold can. WIC participation: yes.
Karímn was found to be jaundiced and dehydrated. Defendant was instructed to give Karímn soy formula.
4 WIC is an initialization for the Special Supplemental Nutrition Program for Women, Infants, and Children.
On September 13, 2004, Karímn presented to VUMC for the second newborn follow-up visit. The report showed that Karímn had been feeding and stooling well since her last appointment and had gained five ounces. Her ďgeneral appearanceĒ was ďwell[-] developed, well[-]nourished; alertand vigorous.Ē
On September 23, 2004, Karímn was presented to VUMC for her two-week checkup. She weighed 6.13pounds. The notes from the checkup stated:
Interval history and ROS update: Kar[í]mn has been seen twice in newborn follow-up clinic for weight and bilirubin checks.5 She has lost approximately [ten percent] of her birth weight and has not shown any gain at this point. Mom says that she takes [five to six ounces] every [two to three] hours but on further questioning this seems unlikely. Mom says that she sleeps through the night and really only takes [three to four] feeds during the day. She is a vigorous feeder and has no respiratory distress with feeds; takes them in [ten to fifteen]minutes.
Mom has her Good Start with her today and can demonstrate how to mix the formula correctly. With her last baby she admitted to occasionally adding extra water to make the formula go further, but denies doing that now.
A note from VUMC dated September 30, 2004, stated that the infant ďcame in for a weight check todayĒ and weighed six pounds andeleven ounces.
On November 24, 2004, the infant was presented to VUMC for her two-month checkup. She weighed nine and a half pounds and her ďgeneral appearanceĒ was ďwellnourished[,] alert[,] and vigorous.Ē The ďimpressionĒ was a well infant, normal growth and normal development. The ďplanĒ was to ď[c]ongratulate mom on Kar[í]mnís excellent growth. Mom has done an excellent job given [her] young age, and having three babies all under the age of [four].Ē
Defendant took the child to the VUMC Emergency Department on December 7, 2004, with complaints of a ďfive-day history of diarrhea without emesis.Ē6 The note said that she had a viral illness causing diarrhea. The diagnosis was ď[e]nteritis without dehydration[,]Ē and the note stated no further ďinterventionĒ was needed.7 5 ROS is an initialization for review of systems. An excess of bilirubin in a babyís blood causes jaundice. 6 Emesis is vomiting. 7 Enteritis is an inflammation of the small intestine.
On January 26, 2005, the infant presented at VUMC for a health maintenance visit. She weighed 11.62 pounds and her ďgeneral appearanceĒ was listed as ďwelldeveloped, well[-]nourished: alert and vigorous.Ē The ďimpressionĒ was a well infant, normal growth andnormal development. Karímnreceived herscheduled immunizations.
The March 3, 2005 VUMC report made on the day of Karímnís death listed the chief complaint as ďapnea,Ē8 after which the report stated:
HISTORY OF PRESENT ILLNESS: Kar[ímn] is a [five]-month-old female with no significant past medical problems, who per mom was found in her crib this morning blue and not breathing. Mom states that she was playful after eating and drinking well yesterday. She gave her a dose of Tylenol for her fever last night. She went to bed per usual. This morning she went into her room to wake her up and she found she was not breathing and appeared blue. She states that she called her mother, who then called the police. Upon EMSís arrival, they stated she was apneic with no spontaneous respirations and no pulses. They intubated her, placed an IO.9 En route they gave four rounds of epinephrine and Atropine and had documented PEA10 on the cardiac monitor. She had no pulses with CPR or without CPR.
The diagnosiswas ď[c]ardiopulmonary arrest.Ē The progress note stated:
Referred today by charge nurse regarding childís family in need of support given fact child had just expired. I met with mother, two grandmother[s] and several other family members and provided support and crisis intervention.
The mother is [nineteen] years old and has two other children ages [two] and [one]. The father of [Karímn] is in prison. Mother asked that I locate Ramona Shelton, the babyís paternal grandmother, at her workplace and ask her to come here. I did reach the grandmother who did come and provide support to the family. I did not ask the mother questions about how she found child as detectives were already involved at this point. I assisted in reaching incarcerated family members via chaplains at the local prisons. Karl Archibald, the babyís father[,] was one of these andhe was able to talk with the mother and his mother via phone. 8 Apnea is the cessation of breathing, especially during sleep. 9 IO is short for intraosseous infusion, a process of injecting fluids directly into the marrow of a bonewhen intravenous access is not available or not feasible. 10 PEA is an initialism for pulseless electrical activity.
At the conclusion of the direct examination of Detective Julia, the DVD of Defendantís March 3, 2005audiointerview was played for the jury.
March 3, 2005 AudioInterview of Defendant
The March 3, 2005 interview was conducted by Detective Cooper and Detective Tom Bowden at VUMC. Defendant stated that, in addition to Karímn, she had two boys both under the age of three. She said Karímnís father had been in custody for about six months. She said that on Wednesday, March 2, she and her three children were at home all day. She had been sick. She woke up close to noon, and the family watched television and ate ice cream. She ďgave [Karímn] milk, cereal, and baby food. Then gave her a water bottle, gave her a bath, and they laid down for a napĒ around 2:00 p.m. Karímn woke from her nap around 4:40 p.m. They watched television, and she said Karímn ďroll[ed] all over the bed.Ē Defendant said that Karímn was ďnormal all dayĒ and that ďshe ate well.Ē She fed Karímn a bottle around 6:00 p.m. and a bottle with milk and cereal around 8:30 p.m. They watched American Idol and then went to bed around 9:15 p.m. Karímn was in her crib, and the two boys were in bed with her. She checked on Karímn around 1:00 a.m. She went to the bathroom around 3:00 a.m., and Karímn was still sleeping so she went back to bed. She woke up at 6:30 a.m. but went back to bed. She got up again around 6:50 a.m. and went to the kitchen to fix the two boys some orange juice. She then checked on Karímn.
The following dialogue concernedwhat occurred after she checked on Karímn:
DETECTIVE COOPER: Okay. So, you run in there and found her and she didnít appear to be breathing?
DEFENDANT: She was like barely, barely, barely, (demonstrates shallow breathing) like a verylittle teeny breath, breaths.
DETECTIVE COOPER: And, uh, she started taking on a blueish color?
DEFENDANT: She lookedjust funny. I donít know, she
DETECTIVE COOPER: Okay. Well, I understand. We, [k]now she laying on her, how was she laying? On her back? Face up?
DEFENDANT: Um, she had flipped on her back. She be rolling in her bed.
DETECTIVE COOPER: Okay. So when you put her to bed she normally sleeps on her, on her?
DEFENDANT: On her back. Well, yeah, on her back.
DETECTIVE COOPER: When, when you, uh, checked on her like at five oíclock, was she on her backor on her stomach?
DEFENDANT: On her back.
DETECTIVE COOPER: Okay. And then when you went in there and checked her at seven-thirty shewas, she was on her back.
DETECTIVE COOPER: Okay. Uh, so you called your mother?
. . .
DETECTIVE COOPER: Okay. Um, is there anything else that you can think of? Is, was there anything you can think of, was there anything about the child yesterday that, sort of, you thought was unusual or odd about, about her behavior or the way she wasbreathing, or?
DEFENDANT: She was fine. I donít understand.
DETECTIVE COOPER: So, and when was, when was the last, the last time that we, that she was fed? Iknow you gave her a bottle at eleven. Did you give her another one at three?
DEFENDANT: No, she wasnít up at three. I said I checked on her at three.
Testimony of Dr. Amy Hawes
Dr. Amy Hawes, a forensic pathologist employed by the Knox County Regional Forensic Center, was qualified as an expert in forensic pathology.11 She explained that part of her duties as a forensic pathologist is to determine and report on the cause and manner of death. She stated that the cause of death is ďthe injury or illness that sets into motion the change of events that lead to deathĒ and that the manner of death ďrefers to the circumstances in which someone has died.Ē 11 In 2005, Dr. Hawes was employed at the Davidson County Medical Examinerís Office.
Dr. Hawes said she performed an external examination, which showed that Karímn weighed ten and a half pounds, her lips were cracked and dried, her skin was slightly doughy, her eyes were slightly sunken in her head, her hair was sparse, and her anterior fontanel was slightly sunken. She opined that her examination showed physical characteristics that were consistent with a child suffering from dehydration and malnutrition.
Dr. Hawes said that she performed an autopsy which she described as ďan extensive surgical procedure where you examine the bodyĒ and document the findings. Dr. Hawes said the autopsy revealed that there was sparse fat around Karímnís bowels, abdomen, and adrenal glands, which was indicative of prolonged malnutrition. The gastrointestinal tract from the stomach to the rectum was empty. A test of the vitreous fluid from the eyes indicated that Karímnís sodium and chlorine levels were high, indicating dehydration.12
Dr. Hawesís diagnosis was:
[Karímn] had severe dehydration. There was evidence of acute and chronic malnutrition, as evidenced by, there was the absence of food and feces in waste products, in other words there was no feces in the colon. The thymus gland [was]shrunken or atrophied[.]
. . .
She had atrophy or loss of a lot of the fat around some of her internal organs, and she had fat in her liver cells where normally in an infant there really should not be any fat in the liver cells.
In response to hypotheticals presented by the State, Dr. Hawes opined that her autopsy findings were not consistent with a child that ďhad been fed cereal, milk and applesauce within [twenty-four] hours of death . . . unless there was some indication that this child was having a lot of diarrhea.Ē She stated that, even with diarrhea, she ďwould expect to see something at least in the lower gastrointestinal tract[.]Ē Dr. Hawes opined that her findings would not be consistent with a child who had been fed formula a few hours prior to being found unresponsive and that she would not expect a child ďwho had nothing in itsgastrointestinal tractĒto be ďrolling back and forth in the bed and acting normalĒ only hoursbefore the child died.
12 Vitreous fluid fills the space between the lens and the retina of the eye.
Based on her external examination and the autopsy, Dr. Hawesís opinion was that the cause of death was ďdehydration and malnutritionĒ and that a contributing cause of death was ďinterstitial pneumonitis.Ē She said the ďmanner of death was classified as homicideĒ and the ďcircumstances of death were neglect.Ē
On cross-examination, Dr. Hawes agreed there were no signs of trauma. She also stated that she would ďnever make the diagnosis of dehydration just based on an external examination alone.Ē Concerning any history of Karímn being sick shortly before her death, the following dialogue occurred during defense counselís cross-examination of Dr. Hawes:
Q. So you wouldnít know if the child had been sick the week before?
A. I wasnít provided that history, so, again, as part of an autopsy, and determination of final cause of death, we ask for history, and that was not provided to me.
Q. Or even just days before obviously, since you didnít have something from the week before, you didnít have anything from the few days before?
A. Not medical records, no. I had a history from other people, but not medical records, so.
Q. Right. So you donít know if the child had been sick on Monday? The child died on Thursday, you donít know if the child had been sick on Monday?
A. I wasnít provided with that information. I was told that she had a bit of a fever, so.
Q. But you didnít have any medical records about that though to compare?
A. Right, but thereís a difference again to just be clear between someone being sick and having medical records, obviously someone can be sick and you donít have medical records necessarily, we donít go to the doctor every time weíre sick. But to clarify, yes, I was told that the child did have a fever I believe a day or so prior to death, but no, I donít have any medical records from that time.
Q. So you couldnít consider any medical issues the child had a few days or even a week prior to the babyís death in your autopsy conclusions?
A. Well I would consider it because, again, we elicit history, and so I take in the account any history that Iíve been provided, so yea, I would take it into account.
Q. All right. But you didnít have any -- you only had some information that the child may have had a fever a few days before?
Q. Thatís the only recent, as in a week or so before the childís death, that you had for purposes of preparing the autopsy?
A. To the best of my recollection, itís been many years ago, but to the best of my recollection, yes.
Q. Now, if a child or a person for that matter consumes or has a liquid or food put in their mouth, and even baby swallows a little bit of it, but either spits it up in the case of where they just had it in their mouth or if they throw it up, if it got down into their stomach, you wouldnít be able to see that in the autopsy if it had happened a day or two before?
The autopsy reportfrom whichDr. Hawes testifiedwas entered as an exhibit. The ďfinal anatomic diagnosisĒ of the autopsy report showed:
A. Severe dehydration.
B. Acute and chronic malnutrition: 1. Absence of food and waste products in gastrointestinal system. 2. Marked involution of thymus gland. 3. Atrophy of visceral fat. 4. Macrovesicular steatosis of the liver.
The autopsy report stated the cause of death was ď[d]ehydration and malnutrition,Ē the contributing cause of death was ď[i]nterstitial pneumonitis,Ē the ďmanner of death was
ď[h]omicide,Ē and the circumstances of death was ď[n]eglect.Ē The infant weighed ten and a halfpounds at the time of the autopsy.
Testimony of Dr. Timothy Robert
Dr. Timothy Robert, Chief Science Officer of Aegis Corporation (Aegis), explained that Aegis is a laboratory that primarily performs mesenteric toxicology testing.13 Dr. Robert explained that, in the past, Aegis performed postmortem toxicology testing for the Davidson County Medical Examinerís Office and medical examiner offices in other counties in Tennessee. In March of 2005, the Davidson County Medical Examinerís Office submitted a specimen of vitreous fluid for testing. Aegis analyzed the fluid to measure sodium, chloride, and blood unit nitrogen. The results were sent to Dr. Hawes at the Davidson County Medical Examinerís Office. On cross-examination Dr. Robert agreed that the Aegisí laboratory was not certified until 2008.
Testimony of Detective John Grubbs
Detective John Grubbs testified that he had worked at MNPD for twenty years. He explained that, in 2013, he worked in the Youth Services Division where he investigated ďchild neglect and deaths of children twelve years of age and under.Ē He said that, in 2013, his superior officer assigned Karímnís case to him. Detective Grubbs began by reviewing everything in the case file, including the two recorded interviews Detective Cooper had with Defendant. He testified that he noticed that Defendant displayed a lack of emotion when Detective Cooper told her the cause and manner of death. He said that there were discrepancies in the times during the day when she fed Karímn. Detective Grubbs interviewed Defendantís mother, Velina Dixon, and Defendantís sister, Shameka Dixon. He reviewed the phone records of Defendant and listened to the 9-1-1 call. He said there was a call from Defendantís phone to her motherís phone at 7:38 a.m. and thatDefendantís sister called 9-1-1 at 7:39 a.m. He said Defendant stated that she woke up around 6:30 a.m. but went back to bed and woke up again at 7:15 a.m. and went to check on Karímn. Defendant stated that she did not realize there was something wrong until around 7:30 a.m.
Detective Grubbs contacted Defendant and arranged for another interview. Detectives Grubbs and Julia interviewed Defendant on July 7, 2014. After the interview, Detective Grubbs obtained an indictment and arrested Defendant. As she was being arrested, a male opened the door and asked what this was pertaining to, and Defendant answered ďthat baby thing.Ē
13 The mesentery is a fold of membrane that is attached to the abdominal walls.
On cross-examination, Detective Grubbs agreed that no other investigator from MNPD had contacted Defendant during the nine-year time span since the last interview. He said Defendant claimed in the 2014 interview that Karímn had vomited but that vomiting never came up during the March 2005 interview. When questioned about Defendant saying Karímn had thrown up in the second 2005 interview, Detective Grubbs said, ďShe may have. I donít remember on the 2005.Ē The following dialogue is from defense counselís cross-examination of Detective Grubbs concerning Defendantís October 21, 2005 interview:
Q. . . . Now, would you be surprised if she had mentioned if [Defendant], in the few days prior to March 3, 2005, had mentioned she was sick seven times?
A. If it was seven times, it was seven times, I didnít count. I didnít count the number of times she mentioned she was sick.
Q. But you wouldnít disagree with that at this point?
Detective Grubbs agreed that he was in the courtroom when Ms. Owens testified that she had not allowed Karímn to come to daycare because she was sick a few days before her death. Concerning Karímn being sick, Detective Grubbs also agreed that the September 10, 2004 medical record indicated that Karímn had problems feeding and was spitting up, that the September 13, 2004 medical record showed that she was dehydrated, and the December 7, 2004 medical record showed that Defendant took Karímn to the emergency room with a five-day history of diarrhea. Detective Grubbs agreed that Defendant stated numerous times during the 2014 interview that Karímn had been sick before she died, even when Detective Julia rhetorically questioned Defendant by stating that Karímn had not been sick.
Near the conclusion of the direct examination of Detective Grubbs, the redacted October 21, 2005 audio/video interview of Defendant and the July 7, 2014 audio/video interview of Defendant wereadmitted as evidence andplayed for the jury.
October 21, 2005 Audio/Video Interview of Defendant
The October 21, 2005 interview was conducted by DetectivesCooperand Bowden at the MNPD station after the autopsy report became available. Defendant was advised that she had the right to remain silent, that she was not being restrained, and that she was free to leave at any time. Defendant stated that she was born on May 15, 1985. She
finished the ninth grade and was planning to get a GED. She stated that Karímn had to be six weeks old before Defendant could take her to daycare. At daycare, Karímn had scheduled feedings at nine, eleven, two, and four oíclock. She sent sufficient bottles for Karímn to daycare each day. For breakfast, she prepared a bottle with formula, baby food, and cereal. The second bottle contained water for Karímn to ďflush the cereal and food down so she wouldnít be constipated.Ē The third bottle contained juice, and the fourth bottle contained formula and baby food. She said Karímn spent the night with her mother on Friday, February 26, and Saturday, February 27. Her mother had formula at her house to feed Karímn. Defendant became ill with a ďreal bad coldĒ on Monday, March 1, and stayed in bed most of the day. She did not take the kids to daycare. She said that she started feeling better on Wednesday, but because her car was not running, she did not take the kids to daycare. She said Karímn was ďrunning a feverĒ so she gave her Infant Tylenol. Defendantís cousin Marcus came over on Tuesday and stayed with the kids for thirty minutes while she ran some errands. Defendant said Karímn was fine when she left and ďwas eating and everything.Ē When asked about how Karímn felt on Wednesday night, Defendant answered:
Yeah, like I said, we was watching TV and I gave them some ice cream. And like I said, she was rolling up and down the bed, up and down the bed, up and down the bed. After we, uh, got out of the tub and stuff I wiped her down and, I mean, after we got out of the tub I fed that last little bottle. It was cereal, milk, and baby food. And then she went right to sleep.
When questioned again about Karímnís condition on Wednesday night, Defendant said:
We got out of the tub, nah, before we got in the tub, whilethey was eating I was feeding her a bottle. And then after that we had ice cream and cake, from what I recall. But she didnít have no cake. And we was watching the TV show that we always watch. And while I was feeding them ice cream and cake she was rolling up and down the bed, up and down the bed. And like I said, after we got out of the tub I fed her that bottle and she went straight to sleep and we went to sleep.
Defendant said she fed Karímn around 8:00p.m. and again around 10:00p.m.
Defendant said that, when they got home from VUMC after Karímn was born, Karímn ďkept gagging and throwing [the milk] back up.Ē She said that, once she switched to Isomil formula, Karímn ďstarted taking the formula much better and she started eating more.Ē Dr. Susan Fowler, Karímnís pediatrician, told Defendant at one of Karímnís appointments that she was putting too much water in Karímnís formula. Defendant changed the way she was preparing the formula. Defendant prepared the
formula and food for daycare. Shesaid thedaycare staffgave her a bottle at nine, eleven, two, and four.
When asked if she knew the cause of Karímnís death, Defendant stated ďcrib deathĒ or ďSIDS.Ē14 This dialogue followed:
DETECTIVE COOPER: Okay, well hereís our problem, the autopsy came back on the child and the cause of death was dehydration and malnutrition.
DETECTIVE COOPER: With secondary cause of pneumonia.
DETECTIVE COOPER: And this has been classified as a homicide.
DETECTIVE COOPER: In other words, the death of the child was caused by another person.
DETECTIVE COOPER: And, uh, the, the reason weíre asking you all these questions is, is we gotta establish the child, all this didnít happen in one day. This is evidently something thatís been going on for a while because the child, you know, stayed on one weight
DETECTIVE COOPER: And the[n] all of a sudden it lost all its fluid and it, it died, you know.
DEFENDANT: No, I
DETECTIVE COOPER: And the thing is during this period you were sick.
14 SIDS is an acronymfor sudden infant death syndrome.
DEFENDANT: Uh-huh, but that still donít got nothing to do with me feeding them.
DETECTIVE COOPER: Well it does because see the other problem we have is the child, they, they didnít find anything in the childís digestive system.
DEFENDANT: What does that mean?
DETECTIVE COOPER: Generally[,] it takes twenty-four hours for food to digest and pass through the system.
DETECTIVE COOPER: The child didnít have anything in its system.
DETECTIVE COOPER: Which tends to indicate the child hadnít had anything to eat the night before, thereís no way
DEFENDANT: No, I fed her beforeshe went to sleep. Yíall didnít find the bottle in the bed? Cause
DETECTIVE COOPER: Well, I mean, the, the bottle was there and I took that. But thereís also a problem with the baby being dehydrated and have
DEFENDANT: I[t] couldíve been because I cut the heat on too. I was, like having being hot then cold, then hot then cold. That couldíve had, thatís what they told me couldíve had a lot to do with it. Because when I was sick it was basically likethe flu. And I kept on cutting the heat on, then the air on, then the heat on,then the air on.
DETECTIVE COOPER: Well, thatís, the cause of death is, is, is basically the child didnít have any water and was, and was so depressed from being malnourished and it
DEFENDANT: What does that mean?
DETECTIVE COOPER: Well it means it wasnít getting sufficient food to surv-, to thrive and survive. I mean, itís just like if
DEFENDANT: Uh-uh, no, that canít be right.
DETECTIVE BOWDEN: The thing is that thereís facts that, that myself or this detective, or you cannot[put]aside.
DETECTIVE BOWDEN: Thereís nothing more than facts that happened and whatís on these reports and with these doctors. Thatís why we wait for the official autopsy reports.
DETECTIVEBOWDEN: Okay, whatís on that paper is what happens.
DEFENDANT: Aww, okay.
DETECTIVE BOWDEN: Alright, thatís, the reason why that child died is because dehydration, and that means no fluids. And malnutrition, not enough food.
DETECTIVEBOWDEN: Thatís why the child died.
DETECTIVEBOWDEN: And youíre the caregiver of this child, correct?
DEFENDANT: Yes, sir.
DETECTIVE BOWDEN: Alright. Weíre here to speak to you because youíre the one that supposed tokeep this child alive.
DETECTIVE BOWDEN: Alright. The childís not alive any longer.
DEFENDANT: I know.
DETECTIVE BOWDEN: Because of someone.
DEFENDANT: Yeah, but I
DETECTIVE BOWDEN: Alright. And, and thatís what we need to find out. Itís just, you canít passthis along.
DEFENDANT: I know I canít, I canít get over it either.
DETECTIVE BOWDEN: You canít pass, you canít pass, you canít pass, um, you know, saying well it couldnít happen this is it. The, the heat and the air condition does not causedehydration.
DETECTIVE BOWDEN: Alright. Fluids are what causes dehydration.
DETECTIVE BOWDEN: Alright. So just try to work and help yourself by telling the truth about whatyou can remember.
DEFENDANT: Aww, Iím telling the truth. Thatís what Iím saying.
DETECTIVE BOWDEN: Okay.
DEFENDANT: Yeah, but I did feed her. Thatís what Iím saying.
DETECTIVE BOWDEN: I mean, accidents happen.
DETECTIVE COOPER: Well
DEFENDANT: Nah, it wasnít no accident.
DETECTIVE BOWDEN: Alright. I mean, as far as, I mean, not an accident, but accidents can happenas far as, without you even knowing
DETECTIVE BOWDEN: If youíre not, if, if you were cutting back on the, on the food.
DEFENDANT: I wasnít cutting back on the food though.
DETECTIVE BOWDEN: If you were, you know, not giving them enough liquids, you know.
DEFENDANT: I was giving her food though, thatís what Iím saying. Thatís what I canít understand.
DETECTIVE BOWDEN: Yeah.
DETECTIVE COOPER: Well you, you can give a child food and still, if youíre not giving them adequate, giving him or her adequate amounts
DETECTIVE COOPER: The, the childís not gonna thrive and digress and
DEFENDANT: The days that, the days that she was feeling bad she wasnít eating as muchthough.
DETECTIVE COOPER: Yeah, well I understand that.
DETECTIVE BOWDEN: Okay, well thatís, I mean, that helps, you know.
DETECTIVE BOWDEN: I mean, if a child doesnít eat
DETECTIVE BOWDEN: And heís, if heís, if youíre trying to feed a child and then he spits upeverything
DETECTIVE WEEMS: Uh-huh.
DETECTIVE BOWDEN: And no matter what you try to do
DETECTIVE BOWDEN: That means heís not eating.
DEFENDANT: Yeah. But Iím saying she took it but she just wasnít taking it as well.
DETECTIVE BOWDEN: Okay.
DEFENDANT: But how I knew that she was getting better because she was eating more. Thatís what Iím saying. But she, the days that she was sick she wasnít just taking asmuch. Thatís what Iím saying.
DETECTIVE BOWDEN: Uh-huh. How, how many days was she actually sick? I know, weíre talking about Tuesday.
DETECTIVE BOWDEN: That was the first day that you were saying that she was sick.
DETECTIVE BOWDEN: But Wednesday night youíre saying that you fed her, you know
DETECTIVE BOWDEN: About ten oíclock. And then Thursday is, you know, the day that she wasdiscovered.
DETECTIVEBOWDEN: Alright. So was it more days than Tuesday?
DEFENDANT: Nah, it wasnít no more days before then. Thatís what Iím saying.
DETECTIVEBOWDEN: Was she coughing?
DEFENDANT: She was coughing.
DETECTIVE BOWDEN: Uh-huh.
DEFENDANT: Like I said, I was sick too though. Thatís what Iím saying.
DETECTIVE BOWDEN: Uh-huh.
DETECTIVE COOPER: Well that, thatís why I was bringing up the question how sick were you, I mean, you
DEFENDANT: I mean, I really wasnít just sick, sick. But I just like had a cold. And I kept, Iím thinking it was like gonna be on the edge of theflu if I didnít do nothing about it. So I got the cough medicine, the cough drops, and the spray. Thatís what Iím saying. And after I took all that it really was, I got better.
DETECTIVE BOWDEN: You were okay. Yeah.
DEFENDANT: Yeah, thatís what Iím saying.
DETECTIVE BOWDEN: Well how many days do you think that, that she may have been sick before she started noticing, before you started noticing it? Is there anything thatwouldíve shown that she was not feeling well
DEFENDANT: If she wasnít playing
DETECTIVE BOWDEN: Over the weekend or the week before?
DEFENDANT: If she wasnít playing regular and stuff, but far as I know she was playing and everything. Thatís what Iím saying. The night before we went to sleep how I knew that she was better because she had ate and everything. She was actually rolling up and down the bed and I ainít never actually seen her do that. Thatís why Iím saying that was different for me and new for me.
DETECTIVE BOWDEN: She was actually rolling?
DEFENDANT: Yeah, like, you know, how they be rolling up and down the bed?
DETECTIVE BOWDEN: Okay.
DEFENDANT: She was rolling.
DETECTIVE COOPER: Was she, was she at that point able to turn herself over?
DEFENDANT: Yeah, she was turning herself over. I was sitting right there watching her.
July 7, 2014 Audio/Video Interview of Defendant
The July 7, 2014 interview of Defendant was conducted by Detective Grubbs and Detective Julia at the MNPD police station. Detective Grubbs told Defendant that the case was still ďopenĒ and they wanted to talk to her to see if they could ďput some closure to it.Ē
Defendant told the detectives thatit was hard to remember what happened because it was so long ago. She said that she was getting over the flu and that Wednesday, March 2, 2005, was the first night Karímn slept in her crib. When she checked on her Thursday morning, Karímn was ďblueĒ and barely breathing. She said Karímn ďwasnít sick or nothing and she had ate and had ate some ice cream before she laid down.Ē She normally fed Karímn formula every three to four hours and would sometimes mix cereal or baby food with the formula. She prepared and sent six or eight bottles for Karímn when she went to daycare. She initially tried to breastfeed, but that did not work out because Karímn spat up whatever milk she got. She said that Karímn had started sitting up and rolling in March and that when she found her in her crib Thursday morning that she had rolled to her opposite side. She could not recall if Karímn could feed herself. She understood that the cause of death was SIDS and thought the case was closed. She could not remember what the detectives told her ten years earlier. The following dialogue concerned how Defendant found Karímn on March 3,2005:
DETECTIVE JULIA: Now did she roll from her belly to her back, or from her back to her belly?
DEFENDANT: I canít remember that far back. I just know she was on the opposite side of whatever she was that night. She was on the opposite side when I found her.
. . .
DETECTIVE JULIA: What do you mean?
DEFENDANT: Like if you was on your back, you was on your stomach.
DETECTIVE JULIA: Okay.
DEFENDANT: If you was on your stomach, you was on your back.
The following dialogue concerned whether Karímn could feed herself:
DETECTIVE JULIA: Okay. Now was she holding her bottle and feeding herself or did you stillhave to hold her?
DEFENDANT: I canít remember that far back. But Iím thinking at that age you supposed todo that.
DETECTIVE JULIA: Do you prop the bottles with the babies?
DETECTIVE JULIA: So you always hold it for them until theyíre big enough to hold it themselves?
DETECTIVE JULIA: Okay. And you donít know whether Karímn could feed herself or not?
DEFENDANT: Uh-uh, Iím sorry itís just blank, everythingís blank. But yeah thatís what Iheard in the paper, I seen in the paper.
When questioned by Detective Julia about the autopsy report showing that Karímn had nothing in her digestive system, Defendant said it made no sense and did not sound right. She thought Karímn died from SIDS and said that was what they told her before she left VUMCon the day she died.
During almost two hours of questioning by Detective Julia and Detective Grubbs, Defendant consistently maintained that she fed Karímn. Even when repeatedly told by Detective Julia that she could not have fed Karímn because her digestive tract was empty, Defendant insisted that she fed Karímn. Defendant stated that she could not explain the autopsy report showing that Karímn died of dehydration and malnutrition. This dialogue followed:
DETECTIVE JULIA: Through her whole body, her whole digestive system was empty. She didníthave a scrap of food in her.
DEFENDANT: See, that just donít sound right.
DETECTIVE: No milk, no formula, no ice cream.
DEFENDANT: Yeah, thatís what we had though, thatís what Iím saying.
DEFENDANT: That just donít sound right unless, I donít know, if she wouldíve throwed up in her bed and I didnít check all that. . . .
DETECTIVE JULIA: And, and even when, when you throw up you still have something through
DETECTIVE JULIA: All your large intestines, your small intestines, you know, something throughyour digestive tract.
DETECTIVE JULIA: Okay, something in your kidneys, something in your bladder, she didnít have anything.
DEFENDANT: That donít sound right.
DETECTIVE JULIA: It donít sound right. It doesnít sound right that she got ice cream, and milk, and formula
DEFENDANT: She did.
DETECTIVE JULIA: And doesnít have anything in her body.
DEFENDANT: Right. But thatís, thatís what I can remember. . . . DETECTIVE JULIA: She didnít get a bottle of formula. She didnít get any ice cream. She didnít get any milk. She didnít get anything. She didnít have anything to eat, or drink, or anything in her body. How did that happen?
DEFENDANT: I donít know, Iím just
DETECTIVE JULIA: Help us out with how that happened. Because you
DEFENDANT: I donít know, unless she was having a stomach virus, thatís what Iím
DETECTIVEJULIA: No, youíre, youíre saying she wasnít sick, okay.
DEFENDANT: That I know of. . . . DETECTIVE JULIA: Cause hereís where weíre at. She didnít get any milk. She didnít get any formula. She didnít get any rice cereal. She didnít get any ice cream.
DETECTIVE JULIA: How did you not feed your baby?
DEFENDANT: I did feed her.
DETECTIVE JULIA: How did you not give her that formula? How did you not give her that rice cereal? Did you not have it?
DEFENDANT: I had it. . . . DETECTIVE JULIA: Okay, why didnít you give it to her?
DEFENDANT: I did, I just donít understand why she didnít have nothing.
DETECTIVE JULIA: She didnít have nothing cause nothing was given to her to eat.
DEFENDANT: I did give her something unless it just wasnít staying down.
In following dialogue, the detectives address Defendantís religious or moral beliefs:
DETECTIVE JULIA: She wasnít, she wasnít given anything to eat.
DETECTIVEGRUBBS: [Defendant], you said you were a child of God and you were gonna pray, what are you gonna pray about?
DEFENDANT: That this come to a closure.
DETECTIVEGRUBBS: Do you think God will forgive you for this?
DEFENDANT: Yeah, if I didnít do nothing. And she couldíve died in her own sleep or something.
DETECTIVE JULIA: By not doing anything do you
DEFENDANT: And maybe the, nah, Iím gonna pray that the truth come out because I know Iwouldíve fed my baby.
DETECTIVE GRUBBS: The truth is out there. We told you what the truth is. The truth is she wasnít fed.
DEFENDANT: Ijust donít know why she wouldnítíve been.
DETECTIVE GRUBBS: Is it just hard for you to come to grips that maybe you didnít feed her or carefor her like you should have?
The following dialogue deals with Karímn possibly not getting formula or food because the bottle propped up for Karímn to self-feed or because the hole in the nipple wastoo small for the formula mixed with cereal or baby foodto flow:
DEFENDANT: The only thing I can think about is the two or three bottles that was up under the bed maybe she didnít get, but I remember giving her that last bottle. And she looked perfectly fine when she laid down. Now far as her being dead when I woke up, now thatís a totally different thing. And then you saying she wasnít fed for two days, that couldnítíve been right.
DETECTIVEGRUBBS: Is it hard for you to come to grips that maybe you didnít care for her or feed her like you should have?
As the following dialogue shows, near the end of the interview, Detective Grubbs and Detective Julia repeatedly questioned Defendant about not feeding Karímn:
DETECTIVE GRUBBS: Because Iíve listened to the, the interviews you did with the other two detectives and they clearly stated to you what she died of. Malnourished and dehydrated, okay. Now how you choose to, to deal with that and accept that is up to you but the bottom line that it is what it is and thereís no getting around that.
DEFENDANT: So what does that mean?
DETECTIVEGRUBBS: It means that doesnít change this.
DETECTIVE GRUBBS: This is always gonna be what it is, okay. It doesnít change the outcome. It just changes whether or not you choose to, to accept what weíre telling you.
DEFENDANT: Oh, itís a hard pill to swallow.
DETECTIVE JULIA: Is there any reason, any reason you have for not feeding her?
DEFENDANT: I canít say that she didnít have no formula cause that wouldnítíve been, I mean, that wouldíve been a reason but far as I know she did.
DETECTIVE JULIA: [Defendant] do you have any reasons for not feeding her?
DEFENDANT: As far as I know I fed her so I donít.
DETECTIVE JULIA: So, donít, you have no reasons for not feeding her? Do you have any reasons for not feeding her?
DEFENDANT: I just, I canít recall it.
DETECTIVEJULIA: So, do you have any reasons for not feeding her?
DEFENDANT: I donít see why she would[not]íve ate.
DETECTIVE JULIA: [Defendant], do you have any reasons for not feeding her?
DETECTIVE GRUBBS: Whether youíre ready to come to grips with this or not, itís a yes or noquestion.
DEFENDANT: I just canít see her not eating. I see her (inaudible), I donít know.
DETECTIVE JULIA: [Defendant], do you have any reasons for not feeding her?
DETECTIVE JULIA: [Defendant], now is your opportunity. Do you have any reasons for not feeding her?
DEFENDANT: Opportunity for what?
DETECTIVE JULIA: To say, to answer the question. Do you have any reasons for not feeding her?
DEFENDANT: Far as I know she ate.
DETECTIVE JULIA: Iím asking you, do you have any reasons for not feeding her?
DEFENDANT: What am I supposed to say?
DETECTIVE JULIA: Do you have any reasons for not feeding her?
DEFENDANT: It wasnít no reason for not feeding her cause I fed her. It wouldnítíve been no reason for not feeding her.
DETECTIVE JULIA: Okay.
DEFENDANT: But I fed her.
Testimony of Velina Dixon
Velina Dixon, Karímnís maternal grandmother, testified that she lived about a tenminute drive from Defendant during the six months of Karímnís life. She said that she visited her daughter and Karímn about once a week. She said that she knew Karímn was having problems digesting. She said that digestive problems ran in her family, that her oldest daughter had problems digesting and holding milk down, and that the doctors had to do surgery on her before she gained weight. She said that she saw cans of milk provided through WIC at Defendantís apartment and that she also bought formula for Karímn. She said that, the week before Karímn died, Defendant had the flu, and Karímn had a cold. She observed Karímn ďconstantlyĒ spitting up milk when Defendant fed her.
Defendant called her on the morning of March 3, 2005, and said Karímn was having trouble breathing and was turning blue. Shameka Dixon immediately called 9-1-1. Shameka and Velina Dixon drove to Defendantís house but could not go in because emergency personnelwere already there. She said that she stayed with Defendantísother two children while Defendant and Shameka Dixon went to the hospital. She said when she finally got to the hospital, she was interviewed by the detectives.
On cross-examination, Velina Dixon agreed that she could have told Detective Cooper during her 2005 interview that Karímn ďwould eat every four hours, usually a combination of milk and cereal, and [Defendant] provide[d] juice and water between meals[.]Ē She also agreed that was consistent with what she recalled being Karímnís ďnormal appetite.Ē
On appeal, the State claimsthe trial court erred in granting Defendantís motion for judgment of acquittal foraggravated child neglect.
Judgment of Acquittal
The trial court may grant a judgment of acquittal at the close of the Stateís proof or at the close of evidence, either before or after the juryís verdict, but only if the evidence is legally insufficient to establish the elements of the offense. Tenn. R. Crim. P. 29(b); State v. Little, 402 S.W.3d 202, 211 (Tenn. 2013); State v. Gregory B. Snow, No. C.C.A. 85-266-III, 1986 WL 13056, at *1 (Tenn. Crim. App. Nov. 20, 1986). ďWhen a motion for a judgment of acquittal is made at the close of all of the evidence, Ďthe trial court must favor the opponent of the motion with the strongest legitimate view of the evidence, including all reasonable inferences, and discard any countervailing evidence.Ēí State v. Collier, 411 S.W.3d 886, 893 (Tenn. 2013) (quoting State v. James, 315 S.W.3d 440, 455 (Tenn. 2010)). ďThe standard by which the trial court determines a motion for a judgment of acquittal is, in essence, the same standard that applies on appeal in determining the sufficiency of the evidence after a conviction.Ē Little, 402 S.W.3d at 211. ďThat is Ďwhether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.íĒ Collier, 411 S.W.3d at 893-94 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In determining whether to grant a judgment of acquittal, the trial court must not reweigh the evidence. State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). The decision to grant a judgment of acquittal is a question of law, and our review is de novo. State v. Lawrence Dewayne Stoner, No. W2018-01230CCA-R3-CD, 2019 WL 2895027, at *6 (Tenn. Crim. App. July 3, 2019) (citing Little, 402 S.W.3d at 211), perm.app.denied(Tenn. Oct. 14, 2019).
Aggravated Child Neglect
At the time of Karímnís death, March 3, 2005, Tennessee Code Annotated section 39-15-402providedin pertinent part:
(a) A person commits the offense of aggravated child abuse or aggravated child neglect who commits the offense of child abuse or neglect as defined in Section 39-15-401 and:
(1) The act of abuse or neglect 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 or neglected child is six (6) years of age or less, the penalty is a Class A felony. Tenn. Code Ann. ß39-15-402(2005).15
On March 3, 2005, child abuse and neglect were defined in Tennessee Code Annotated section 39-15-401(a), whichprovided:
(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 childís 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. ß 39-15-401(a)(2005)(emphasis added).
In summary, reading the two chapters togetheróa person who knowingly neglects a child so as to adversely affect the childís health and welfare commits child neglect under section 39-15-401, and if the neglect results in serious bodily injury to the child, then the person commits the offense of aggravated child neglect undersection 39-15-402.
15 In 2005, Tennessee Code Annotated section 39-15-402 was amended by deleting the section in its entirety and substituting new provisions. However, the new provisions did not become effective until July 1, 2005. See2005 Tennessee Laws Pub. Ch. 487 (S.B. 504).
Mens Reaof Knowing
Concerning the mens rea necessary to convict Defendant of aggravated child neglect, the trial court instructed the jury that:
ďKnowinglyĒ means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware ofthe nature of the conduct or that the circumstances exist. A person acts knowingly with respect to the result of the personís conduct when the person is aware that theconduct is reasonably certain to cause the result.16
The requirement of ďknowinglyĒ is also established if it is shown that the defendant acted intentionally.
ďIntentionallyĒ means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the personís conscious objective or desire to engage in the conduct or cause the result.
De Novo Review
As stated previously, this court reviews the trial courtís granting of a judgment of acquittal after the jury returnsa verdict of guilty de novo.
According to the autopsy report and the testimony of Dr. Hawes, the cause of death was ď[d]ehydration and malnutrition,Ē the contributing cause of death was ď[i]nterstitial pneumonitis,Ē the ďmanner of death was [h]omicide,Ē and the circumstances of death w[ere] ď[n]eglect.Ē The cause of death, the manner of death, and the circumstances of death are not disputed. Dr. Hawes testified that Karímn was severely dehydrated and that ď[t]here was evidence of acute and chronic malnutrition, as evidenced by, there was the absence of food and feces in waste products, in other words there w[ere] no feces in the colon. The thymus gland [was] shrunken or atrophied.Ē Dr. Hawesís testimony is not disputed.
Karímn was born on September 5, 2004, and weighed six pounds, ten ounces at birth. Defendant and Karímn were discharged from the hospital on September 7, 2004, 16 The trial court instructed the jury on the statutory definition of knowingly codifiedat Tennessee Code Annotated section 39-11-106(a)(20). The Committee on Pattern Jury Instructions (Criminal) provides an alternate instruction for ďknowinglyĒ because the ďCommittee is of the opinion that the statutory definition of knowingly (as well as intentionally and recklessly) may be confusing to jurors.Ē See T.P.I. Crim. 2.09.
after nurses determined that Karímn latched and that Defendant knew how to feed her. Defendantís initial attempts to breastfeed Karímn were not successful. At Karímnís first newborn follow-up, three days after discharge, Karímn was found to be jaundiced and dehydrated, and she was switched to soy formula. Defendant received adequate assistance to have a sufficient supply of formula for Karímn. Defendant took Karímn for the second newborn follow-up visit where Karímn was found to have gained five ounces, and her ďgeneral appearanceĒ was stated to be ďwell[-]developed, well[-]nourished; alert and vigorous.Ē Defendant took Karímn for her two-week checkup where Karímn was found to have lost approximately ten percent of her birth weight. At this visit, Defendant admitted that with her last baby she occasionally added extra water to make the formula go further. She denied doing that with Karímn. Defendant took Karímn for her twomonth checkup, and Karímn weighed nine and a half pounds, and her ďgeneral appearanceĒ was found to be ďwell[-]nourished[,] alert[,] and vigorous.Ē Defendant took Karímn to the VUMC Emergency Department on December 7, 2004, with complaints of a ďfive-day history of diarrhea without emesis.Ē On January 26, 2005, Defendant took Karímn to VUMC for a health maintenance visit. Karímn weighed 11.62 pounds, and her ďgeneral appearanceĒ was listed as ďwell[-]developed, well[-]nourished: alert and vigorous.Ē The ďimpressionĒ was a well infant, normal growth, and normal development. Karímn received her scheduled immunizations.
Defendant enrolled Karímn in daycare at Creative Academy after she turned six weeks old. Ms. Owens, the owner of Creative Academy, advised Defendant early on that she was feeding Karímn ďwrongĒ and that Karímn should be fed formula and not juice and water. According to Ms. Owens, Karímn was never denied admission to daycare because Defendant failed to provide enough bottles of prepared formula for the staff at Creative Academy to feed Karímn. Ms. Owens testified that on Friday, a few days before Karímn died, Defendant attempted to bring Karímn to daycare. Because Karímn was sick, Creative Academy did not accept her. Ms. Owens testified that Defendant kept her three children ďall clean and neatĒ and that she never saw Karímn look like she did in the two autopsy photographs Detective Cooper showed her shortly after Karímnís death. Ms. Owens said that, if she had seen Karímn look like she did in the autopsy photographs, she would have contacted the authorities.
Velina Dixon, Defendantís mother and Karímnís grandmother, testified that she saw Karímn ď[m]aybe once a weekĒ and that Karímn typically spent the night with her ď[m]aybe every other weekend.Ē She said she knew Karímn had problems digesting her food, a condition that she said ďran in her family.Ē She said she saw ďcans of milkĒ at Defendantís house. She said she bought formula and took it to Defendantís house about a month before Karímn ďpassed away.Ē She said that Defendant had the flu and that Karímn had a cold over the weekend before Karímndied.
In the two interviews conducted by MNPD detectives in 2005, Defendant steadfastly maintained that she fed Karímn. In the third interview, conducted over ten years after Karímnís death, the detectives repeatedly asked rhetorical questions by telling Defendant that she could not have fed Karímn because Karímn died of starvation and dehydration and had nothing in her gastrointestinal tract. In response to the rhetorical questions, Defendant never wavered in her claim that she fed Karímn. After repeated questioning, Defendant offered as a possible explanation that she may have ďproppedĒ Karímnís bottle so as to allow her to self-feed or that the hole in the nipple might have been too small for the cereal and formula mixture to flowthrough.
Karímn died on Thursday, March 3, 2005, only thirty-six days after her January 26, 2005 health maintenance visit, where the medical records showed that she was ďwell[-]developed, well[-]nourished: alert and vigorousĒ and the ďimpressionĒ was that she was a well infant, with normal growth and normal development. Defendant took Karímn to every scheduled doctorís visit and to the emergency room on one occasion. Throughout three interviews over a ten-year time span, Defendant steadfastly claimed that she fed Karímn. Ms. Owens testified that when she saw Karímn a few days before her death, Karímn was sick but that she did not look like she did in the autopsy pictures. According to Defendant, Karímn spent Friday night, February 26, and Saturday night, February 27, with her mother, Velina Dixon. Velina Dixon testified that Karímn was sick with a cold but otherwise appearedto be okay. Dr. Hawes testified that she was not provided with a history of Karímnís being sick during the week before her death when she performed the autopsy and issued her report stating the cause of death. It is unclear what happened in the last few days of Karímnís short life, but we determine that the evidence was insufficient to prove that Defendant knowingly did not feed Karímn or knowinglyneglected Karímn.
Outcome: The trial courtís judgment of acquittal for aggravated child neglect is affirmed.