Court of Criminal Appeals of Tennessee, Nashville
Session July 19, 2016
from the Criminal Court for Davidson County No. 2011-D-3631
Steve R. Dozier, Judge
a jury trial, the Defendant, Sherry Dewitt, was acquitted of
aggravated child abuse but convicted of aggravated child
neglect. She now appeals as of right from that conviction,
challenging the sufficiency of the evidence supporting the
requisite mental state for that crime and that the child
suffered an adverse effect to her health and welfare from the
Defendant's alleged neglect as statutorily required.
Following our review, we conclude that the evidence was
sufficient to support a knowing mens rea, but we reverse the
Defendant's conviction because there was insufficient
proof that the Defendant's delay in informing the parents
about the child's injuries or in seeking medical help had
an actual, deleterious effect on the child's health and
welfare. Therefore, the judgment is vacated, and the charge
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Reversed; Case Dismissed
J. Strianse, Nashville, Tennessee, for the appellant, Sherry
Herbert H. Slatery III, Attorney General and Reporter; M.
Todd Ridley, Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Brian K. Holmgren and Zoe K.
Sams, Assistant District Attorneys General, for the appellee,
State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Timothy L. Easter, JJ.,
KELLY THOMAS, JR., JUDGE
Davidson County Grand Jury indicted the Defendant for
aggravated child abuse happening on March 29, 2011 (count
one), and aggravated child neglect occurring between March 29
and March 31, 2011 (count two). See Tenn. Code Ann.
§ 39-15-402. The victim in this case was three-month-old
R.M.,  and the Defendant was her nanny/caretaker.
The Defendant proceeded to a jury trial in October 2014,
where the following facts were adduced.
September 3, 2010, the Defendant began caring for R.M. and
B.M., R.M.'s older brother, while their parents worked.
Both parents were medical doctors-S.M., their mother, was a
pediatrician working with a private practice group, and CM.,
their father, was a Vanderbilt resident studying to become an
ear, nose, and throat surgeon. The thirty-three-year-old
Defendant was paid $13 an hour and typically worked for the
family on Tuesdays, Thursdays, and Fridays, although her
hours often varied. Her duties, which were detailed in her
written contract of employment, included the following:
making and administering 3 meals a day as well as 1 to 2
snacks from food in the house; getting children dressed and
ready for the day in the morning; taking [B.M.] to music
class at Davis Kid[d] Bookstore on Tuesdays at 10:15;
interacting with and stimulating children during the day;
bathing children at the end of the day or earlier on days
that the child ha[d] gotten dirty or hot outside; cleaning up
with the help of the children the toys or mess from the day
in the evening; preparing dinner for the family from food
that's already in the house; loading and unloading the
dishwasher[;] washing and changing children's be[dd]ing
once a week and doing the children's laundry as needed;
communicating with the employer daily by conversation or
written notes about the [day's] activities and concerns.
victim's mother became close with the Defendant while she
was at home on maternity leave. Additionally, according to
the victim's mother, the Defendant was a
"great" caretaker for her family prior to this
March 2011, the family was considering selling their home, so
the victim's father's parents came in town for the
weekend to assist them in that endeavor, staying with the
family from March 25 to March 27. During that weekend, the
victim's mother injured her back. Although not a normal
work day for the Defendant, on Monday, March 28, the
Defendant came to the home and assisted the injured
victim's mother with the children for several hours.
Defendant worked a normal work day on Tuesday, March 29. The
victim's mother testified that there was nothing unusual
about R.M.'s behavior when she left for work that morning
and that R.M.'s feeding habits had been normal in the
preceding days. The Defendant took the children to Woodmont
Park around 10 a.m., where she joined Karen Hutchinson, who
was one of the victim's family's next-door neighbors
and whose children were "very good friends" with
R.M. and B.M. While at the park, the Defendant did not
express any concerns to Ms. Hutchinson about R.M., and Ms.
Hutchinson did not notice anything unusual with regard to
R.M. According to Ms. Hutchinson, everyone left the park
sometime between 12:00 and 12:30 p.m., although seeing as
"it was a particularly beautiful, sunny day, " they
were possibly going to meet up again "for a play date
after everyone had taken a nap." However, Ms.
Hutchison's phone calls and text messages to the
Defendant went unanswered that afternoon. When the Defendant
eventually contacted Ms. Hutchinson, the Defendant, Ms.
Hutchinson testified, "said something along the lines of
it was a crazy day, or hectic afternoon or a busy
victim's mother returned home from work around 6:00 or
6:30 p.m. that evening. According to the victim's mother,
when she spoke to the Defendant before coming home, the
Defendant "said that everything was fine" and did
not indicate that anything was out of the ordinary. When the
victim's mother arrived home, the Defendant was sitting
at the dining room table; she was holding R.M., and B.M. was
eating dinner. B.M. showed his mother that he had splinters
in his hand, so the victim's mother took him to the
bathroom to remove them. While in the bathroom, the
victim's mother heard R.M. "start to scream."
And although the cry was "louder and [more] unpleasant .
. . than her normal cry, " the victim's mother
associated it with R.M.'s being hungry. The victim's
mother then tried to nurse R.M., but she could not get R.M.
to eat. R.M. could not be comforted.
to the victim's mother, R.M. "started just screaming
out and then would fall asleep and stop crying, and then
[scream] out and then fall asleep and stop crying." The
victim's mother described that R.M. "was much more
fussy" than normal and that "something was
definitely different" with R.M.'s behavior. The
victim's mother asked the Defendant, "how long ha[d
R.M.] been like this[, ]" and the Defendant said,
"since the bath, around maybe five." The Defendant
also relayed that R.M. "had only taken an ounce and a
half of the last two bottles, " which was about half of
her regular amount. The victim's mother stated that she
found this information "a little bit strange"
because the Defendant was "always so conscientious in
texting [them] and contacting [them] if there was anything
out of the ordinary" but, "when [the victim's
mother] asked [the Defendant] how the day was, [the
Defendant] said it was fine and hadn't brought" up
R.M.'s abnormal mood. The victim's mother explained
that "the only time that [R.M.]" had
"scream[ed] intermittently" like this was
"when [R.M.] was sick with" Respiratory Syncytial
victim's father came home between 7:00 and 8:00 p.m. that
evening, and he likewise saw that R.M. was acting differently
than normal. The Defendant was still there when he arrived
because the victim's mother "needed her to stay and
help because [R.M.] was crying so loudly and not doing okay[,
] and [she] was still having to take care of some work on the
phone, too." The Defendant left the home "maybe a
little after 8:00" p.m. Later, the Defendant sent a text
message checking on R.M. to see if she was any better. The
victim's mother confirmed that the Defendant was
"aware that [R.M.] was not acting in her normal
state" that evening.
victim's mother became growingly concerned about her
daughter, so she gave her a physical examination. Not seeing
any physical signs or causes for R.M.'s fussiness, the
victim's mother gave the victim some "gas
drops" and some Tylenol "for pain[, ]" despite
the fact that she "didn't know what [she] was
treating." Thereafter, R.M. appeared to improve because
she "sort of stopped screaming out" and went to
sleep; however, it was also the child's bedtime. The
victim's mother testified that R.M. "slept pretty
well through the night[, ]" although she woke up
"several times that night for a little fuss but then
would be consoled by putting her pacifier back in her
that evening, the victim's mother spoke by phone with Dr.
Sarah Patterson, her pediatric group partner, asking Dr.
Patterson her opinion of R.M.'s behavior. Dr. Patterson
could hear R.M.'s crying in the background. Dr. Patterson
advised the victim's mother to continue to monitor R.M.
because "[t]hree-month-olds can be fussy" and to
just "watch her and go from there." Dr. Patterson
talked again with the victim's mother later in the
evening, and the victim's mother was still worried. So
Dr. Patterson told the victim's mother that, if she was
that worried, then she should take the child to Vanderbilt
hospital and "get her checked out." The
victim's mother also sent a text message to another
doctor friend of hers, Dr. Whitney Browning, stating her
concern over R.M.'s behavior and symptoms. Dr. Browning
said that she received at least two text messages and a
voicemail message from the victim's mother that evening;
however, Dr. Browning was not able to speak with the
victim's mother until "much later" when R.M.
had already fallen asleep. Dr. Browning comforted the
victim's mother by saying that she was not being an
overly anxious mother but that she was "[a]ppropriately
concerned" about her daughter.
Love lived across the street from the victim's family and
was B.M.'s nanny prior to the Defendant. She trained the
Defendant before leaving and returning to school. Ms. Love
communicated with the Defendant frequently. On March 29, the
Defendant invited Ms. Love to accompany them to Woodmont Park
in a voicemail message, but Ms. Love was unable to go. When
Ms. Love returned the Defendant's call, the Defendant did
not answer. Later that evening, Ms. Love had another message
from the Defendant, wherein the Defendant "said that she
hadn't gotten back to me because things had gotten kind
of crazy during bath time and she had missed my call."
March 30, the following day, the victim's parents were
both off work, and the victim's mother stayed at home
with the victim while the victim's father ran errands and
took the victim's brother to school. The victim's
mother was asked how R.M. behaved that day: "She seemed
better. She woke up with a runny nose and had a bit of a cold
that morning and still wasn't maybe as happy as usual,
but she was no longer screaming out in that cry and then
falling asleep. That behavior was not there." The
victim's mother further described that R.M. "was a
little bit off [her] eating routine" that day. However,
the victim's mother believed that the victim "was
slowly improving." The victim's father also observed
that R.M. was "a lot less fussy" that day.
bath time on March 30, the victim's mother noticed
"bluish discoloration on the right side of [the
victim's] head" when she was washing the
victim's hair. The victim's mother called the
victim's father into the bathroom to look at the injury;
however, at the point in time, they did not think it was a
bruise and were not overly concerned. R.M. went to sleep that
night around 9:00 or 10:00 p.m. and slept through the night.
awakening on the morning of March 31, the victim's mother
observed swelling on the left side of R.M.'s head, which
was the opposite side of the child's head where they had
seen the bluish discoloration the night before. When the
Defendant arrived at the house that morning, the victim's
mother informed the Defendant of the swelling on the
child's head and showed it to her, but according to the
victim's mother, the Defendant "seemed as if she had
not seen it before." Now "very concerned, "
the victim's father, who was off work again, took R.M. to
see her pediatrician, Dr. James Godfrey; the victim's
mother arrived separately at the pediatrician's office
after stopping by her workplace. According to the
victim's mother, Dr. Godfrey palpated both sides of
R.M.'s head, and when he pressed on the swollen side of
R.M's head, the victim "cried pretty loud." Dr.
Godfrey recommended that the victim's parents take her to
Vanderbilt hospital for further examination.
en route to Vanderbilt, the victim's mother called the
Defendant and explained to the Defendant "that there
could be some sort of injury under the swelling that needed
to be examined." The victim's mother asked the
Defendant "more than once if there was anything [the
Defendant] could think of, any time that day that she was
with them, when [the Defendant] left the room and came back
and [the victim] was crying more than usual, anything out of
the ordinary, " and the Defendant said "no."
She further explained to the Defendant that an investigation
might ensue if the victim had unexplained injuries when
examined at the hospital.
the child was presented to the emergency room, x-rays and a
CT scan were ordered by the emergency room physician. Those
images revealed that the victim had suffered two skull
fractures, one to both sides of her head, "going from
the top of her head down both sides[.]" Thereafter, the
emergency room physician requested the services of Dr.
Deborah Lowen, an expert in child abuse pediatrics. Dr. Lowen
reviewed the imaging of R.M's head, spoke with the
victim's parents to obtain a medical history, and
examined R.M. During the examination, Dr. Lowen observed the
[S]he was awake, alert, and happy, and looked like she was in
really good condition. The . . . findings that were of note
were on her head. On the right side of her scalp she did have