Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 11, 2015
Appeal from the Circuit Court for Montgomery County No. 41201263 John H. Gasaway, III, Judge
Eric J. Yow, Clarksville, Tennessee, for the appellant, Otis Quirino Loyola, Sr.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General (Senior Counsel); John Wesley Carney, Jr., District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and Roger A. Page, JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
The indictment charged the defendant and his wife, co-defendant Penselynn Loyola, with one count each of the aggravated neglect and of the aggravated abuse of O.L., their infant son, who sustained significant, permanent injuries and debilities. Following a joint January 2014 bench trial, the trial court entered judgments of conviction against the defendant on both counts and imposed an effective sentence of 20 years to serve in the department of correction. Ms. Loyola, the co-defendant, was convicted of aggravated child neglect.
The evidence at trial showed that the victim was about five weeks old at the time the offenses were committed in December 2011. The victim's eight-year-old sister testified that the defendant, who is her stepfather, hit the victim with a "flat" hand when the victim was in the defendant's lap. She testified that the assault occurred in her parents' bedroom and that the defendant was sitting on the bed. She said the assault caused the victim to cry.
Tyler Barrett, a child advocacy detective with the Clarksville Police Department ("CPD"), testified that he went to Vanderbilt Children's Hospital on December 19, 2011, in response to a call regarding an infant with a life-threatening injury. Upon arriving at the hospital, Detective Barrett learned that the victim had "a lot of swelling to the brain" and "some broken ribs on one side." The detective was unable to locate or contact the victim's parents. A few hours after Detective Barrett left the hospital, he learned that the victim's parents were at the hospital, and the detective returned to the hospital.
In an interview with the detective, the defendant said that the injuries to the victim may have been caused by the couple's two-year-old sibling trying to lift the infant victim; the defendant previously had seen the two-year-old attempting to lift the infant. The detective testified that the defendant interspersed laughter amid his description of the two-year-old's attempts to lift the victim. The defendant said that his wife was the usual care-giver for the children. The detective exhibited to his testimony photographs he took of the victim in the hospital. Another CPD officer testified that in December 2011, 12 steps and a landing separated the ground floor from the upper level of the defendant's apartment and that the apartment was very clean.
CPD officer DeMone Chestnut testified that, during an interview with the defendant, the defendant denied causing the victim's injuries. The defendant told the officer that "he just goes to work" and is "not active in the raising of the kids." Officer Chestnut said that the defendant's wife also denied causing the victim's injuries but admitted that she could have done so accidentally. The defendant's wife said that more than once she had dropped the victim in the bathtub while bathing him, that at least once he had fallen down the apartment stairs, and that the two-year-old had once struck the victim with a remote control device. Ms. Loyola told the officer that two of these incidents may have occurred on Thanksgiving weekend, 2011, when the victim was about nine days old. The officer mentioned that the child had seen a doctor on December 5, 2011, and that no injuries were evident at that time.
On cross-examination, Officer Chestnut agreed that his investigation revealed that Ms. Loyola typically performed all of the childcare functions in the household, that the defendant was away from the home working on a daily basis from about 5:00 a.m. until 5:00 or 6:00 p.m., and that Ms. Loyola did not tell the defendant about the accidents. The officer stated that payday was a major event for the family because the defendant would take them shopping. The payday following the December 5, 2011 well-baby doctor visit was December 15, 2011. Officer Chestnut agreed that the following weekend fell on December 17 through 18, that the defendant was not working that weekend, and that the injured victim went to the hospital on December 19.
Laura Anderson, a pediatric social worker at Vanderbilt Children's Hospital, testified that she met the victim's parents when they arrived at the hospital after the victim had been admitted. She described them as "real quiet, didn't ask a lot, you know." She spoke with them again after Doctor Deborah Lowen had talked with them, and the defendant commented that Doctor Lowen was "so smart" in "that she figured out that someone had hurt the baby."
Doctor Lowen, director of the center for child protection and well-being at Vanderbilt Children's Hospital, was accepted as an expert "in pediatric child abuse" and presented extensive testimony. She testified that, when the victim entered the hospital on December 19, 2011, he was five weeks old and was "very, very sick, very critically ill." Doctor Lowen then spoke with the defendant, who told her that the victim began showing symptoms such as declining to eat and difficulty breathing on Saturday, December 17. Doctor Lowen testified that the defendant told her that he and his wife considered taking the victim to the hospital on Saturday, December 17, but decided against doing so and that the child mostly slept on Sunday.
Doctor Lowen testified that she had difficulty getting a detailed time line of the baby's symptoms from the defendant because some of his answers were not on point or were confusing. Doctor Lowen said she had a difficult time getting the defendant to understand that the victim had a serious brain injury that could be fatal. She testified that the defendant told her that he believed that the victim "was not right since birth, that there was something wrong with [the victim] ...