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State v. Dewitt

Court of Criminal Appeals of Tennessee, Nashville

November 10, 2016


          Session July 19, 2016

         Appeal from the Criminal Court for Davidson County No. 2011-D-3631 Steve R. Dozier, Judge

         Following a jury trial, the Defendant, Sherry Dewitt, was acquitted of aggravated child abuse but convicted of aggravated child neglect. She now appeals as of right from that conviction, challenging the sufficiency of the evidence supporting the requisite mental state for that crime and that the child suffered an adverse effect to her health and welfare from the Defendant's alleged neglect as statutorily required. Following our review, we conclude that the evidence was sufficient to support a knowing mens rea, but we reverse the Defendant's conviction because there was insufficient proof that the Defendant's delay in informing the parents about the child's injuries or in seeking medical help had an actual, deleterious effect on the child's health and welfare. Therefore, the judgment is vacated, and the charge is dismissed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Case Dismissed

          Peter J. Strianse, Nashville, Tennessee, for the appellant, Sherry Dewitt.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Brian K. Holmgren and Zoe K. Sams, Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ., joined.




         The Davidson County Grand Jury indicted the Defendant for aggravated child abuse happening on March 29, 2011 (count one), and aggravated child neglect occurring between March 29 and March 31, 2011 (count two). See Tenn. Code Ann. § 39-15-402. The victim in this case was three-month-old R.M., [1] and the Defendant was her nanny/caretaker. The Defendant proceeded to a jury trial in October 2014, where the following facts were adduced.

         On September 3, 2010, the Defendant began caring for R.M. and B.M., R.M.'s older brother, while their parents worked. Both parents were medical doctors-S.M., their mother, was a pediatrician working with a private practice group, and 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.

         The victim's mother became close with the Defendant while she was at home on maternity leave. Additionally, according to the victim's mother, the Defendant was a "great" caretaker for her family prior to this incident.

         In March 2011, the family was considering selling their home, so the victim's father's parents came in town for the weekend to assist them in that endeavor, staying with the family from March 25 to March 27. During that weekend, the victim's mother injured her back. Although not a normal work day for the Defendant, on Monday, March 28, the Defendant came to the home and assisted the injured victim's mother with the children for several hours.

         The Defendant worked a normal work day on Tuesday, March 29. The victim's mother testified that there was nothing unusual about R.M.'s behavior when she left for work that morning and that R.M.'s feeding habits had been normal in the preceding days. The Defendant took the children to Woodmont Park around 10 a.m., where she joined Karen Hutchinson, who was one of the victim's family's next-door neighbors and whose children were "very good friends" with R.M. and B.M. While at the park, the Defendant did not express any concerns to Ms. Hutchinson about R.M., and Ms. Hutchinson did not notice anything unusual with regard to R.M. According to Ms. Hutchinson, everyone left the park sometime between 12:00 and 12:30 p.m., although seeing as "it was a particularly beautiful, sunny day, " they were possibly going to meet up again "for a play date after everyone had taken a nap." However, Ms. Hutchison's phone calls and text messages to the Defendant went unanswered that afternoon. When the Defendant eventually contacted Ms. Hutchinson, the Defendant, Ms. Hutchinson testified, "said something along the lines of it was a crazy day, or hectic afternoon or a busy afternoon[.]"

         The victim's mother returned home from work around 6:00 or 6:30 p.m. that evening. According to the victim's mother, when she spoke to the Defendant before coming home, the Defendant "said that everything was fine" and did not indicate that anything was out of the ordinary. When the victim's mother arrived home, the Defendant was sitting at the dining room table; she was holding R.M., and B.M. was eating dinner. B.M. showed his mother that he had splinters in his hand, so the victim's mother took him to the bathroom to remove them. While in the bathroom, the victim's mother heard R.M. "start to scream." And although the cry was "louder and [more] unpleasant . . . than her normal cry, " the victim's mother associated it with R.M.'s being hungry. The victim's mother then tried to nurse R.M., but she could not get R.M. to eat. R.M. could not be comforted.

         According to the victim's mother, R.M. "started just screaming out and then would fall asleep and stop crying, and then [scream] out and then fall asleep and stop crying." The victim's mother described that R.M. "was much more fussy" than normal and that "something was definitely different" with R.M.'s behavior. The victim's mother asked the Defendant, "how long ha[d R.M.] been like this[, ]" and the Defendant said, "since the bath, around maybe five." The Defendant also relayed that R.M. "had only taken an ounce and a half of the last two bottles, " which was about half of her regular amount. The victim's mother stated that she found this information "a little bit strange" because the Defendant was "always so conscientious in texting [them] and contacting [them] if there was anything out of the ordinary" but, "when [the victim's mother] asked [the Defendant] how the day was, [the Defendant] said it was fine and hadn't brought" up R.M.'s abnormal mood. The victim's mother explained that "the only time that [R.M.]" had "scream[ed] intermittently" like this was "when [R.M.] was sick with" Respiratory Syncytial Virus.

         The victim's father came home between 7:00 and 8:00 p.m. that evening, and he likewise saw that R.M. was acting differently than normal. The Defendant was still there when he arrived because the victim's mother "needed her to stay and help because [R.M.] was crying so loudly and not doing okay[, ] and [she] was still having to take care of some work on the phone, too." The Defendant left the home "maybe a little after 8:00" p.m. Later, the Defendant sent a text message checking on R.M. to see if she was any better. The victim's mother confirmed that the Defendant was "aware that [R.M.] was not acting in her normal state" that evening.

         The victim's mother became growingly concerned about her daughter, so she gave her a physical examination. Not seeing any physical signs or causes for R.M.'s fussiness, the victim's mother gave the victim some "gas drops" and some Tylenol "for pain[, ]" despite the fact that she "didn't know what [she] was treating." Thereafter, R.M. appeared to improve because she "sort of stopped screaming out" and went to sleep; however, it was also the child's bedtime. The victim's mother testified that R.M. "slept pretty well through the night[, ]" although she woke up "several times that night for a little fuss but then would be consoled by putting her pacifier back in her mouth."

         Earlier that evening, the victim's mother spoke by phone with Dr. Sarah Patterson, her pediatric group partner, asking Dr. Patterson her opinion of R.M.'s behavior. Dr. Patterson could hear R.M.'s crying in the background. Dr. Patterson advised the victim's mother to continue to monitor R.M. because "[t]hree-month-olds can be fussy" and to just "watch her and go from there." Dr. Patterson talked again with the victim's mother later in the evening, and the victim's mother was still worried. So Dr. Patterson told the victim's mother that, if she was that worried, then she should take the child to Vanderbilt hospital and "get her checked out." The victim's mother also sent a text message to another doctor friend of hers, Dr. Whitney Browning, stating her concern over R.M.'s behavior and symptoms. Dr. Browning said that she received at least two text messages and a voicemail message from the victim's mother that evening; however, Dr. Browning was not able to speak with the victim's mother until "much later" when R.M. had already fallen asleep. Dr. Browning comforted the victim's mother by saying that she was not being an overly anxious mother but that she was "[a]ppropriately concerned" about her daughter.

         Pamela Love lived across the street from the victim's family and was B.M.'s nanny prior to the Defendant. She trained the Defendant before leaving and returning to school. Ms. Love communicated with the Defendant frequently. On March 29, the Defendant invited Ms. Love to accompany them to Woodmont Park in a voicemail message, but Ms. Love was unable to go. When Ms. Love returned the Defendant's call, the Defendant did not answer. Later that evening, Ms. Love had another message from the Defendant, wherein the Defendant "said that she hadn't gotten back to me because things had gotten kind of crazy during bath time and she had missed my call."

         On March 30, the following day, the victim's parents were both off work, and the victim's mother stayed at home with the victim while the victim's father ran errands and took the victim's brother to school. The victim's mother was asked how R.M. behaved that day: "She seemed better. She woke up with a runny nose and had a bit of a cold that morning and still wasn't maybe as happy as usual, but she was no longer screaming out in that cry and then falling asleep. That behavior was not there." The victim's mother further described that R.M. "was a little bit off [her] eating routine" that day. However, the victim's mother believed that the victim "was slowly improving." The victim's father also observed that R.M. was "a lot less fussy" that day.

         During bath time on March 30, the victim's mother noticed "bluish discoloration on the right side of [the victim's] head" when she was washing the victim's hair. The victim's mother called the victim's father into the bathroom to look at the injury; however, at the point in time, they did not think it was a bruise and were not overly concerned. R.M. went to sleep that night around 9:00 or 10:00 p.m. and slept through the night.

         After awakening on the morning of March 31, the victim's mother observed swelling on the left side of R.M.'s head, which was the opposite side of the child's head where they had seen the bluish discoloration the night before. When the Defendant arrived at the house that morning, the victim's mother informed the Defendant of the swelling on the child's head and showed it to her, but according to the victim's mother, the Defendant "seemed as if she had not seen it before." Now "very concerned, " the victim's father, who was off work again, took R.M. to see her pediatrician, Dr. James Godfrey; the victim's mother arrived separately at the pediatrician's office after stopping by her workplace. According to the victim's mother, Dr. Godfrey palpated both sides of R.M.'s head, and when he pressed on the swollen side of R.M's head, the victim "cried pretty loud." Dr. Godfrey recommended that the victim's parents take her to Vanderbilt hospital for further examination.

         While en route to Vanderbilt, the victim's mother called the Defendant and explained to the Defendant "that there could be some sort of injury under the swelling that needed to be examined." The victim's mother asked the Defendant "more than once if there was anything [the Defendant] could think of, any time that day that she was with them, when [the Defendant] left the room and came back and [the victim] was crying more than usual, anything out of the ordinary, " and the Defendant said "no." She further explained to the Defendant that an investigation might ensue if the victim had unexplained injuries when examined at the hospital.

         Once the child was presented to the emergency room, x-rays and a CT scan were ordered by the emergency room physician. Those images revealed that the victim had suffered two skull fractures, one to both sides of her head, "going from the top of her head down both sides[.]" Thereafter, the emergency room physician requested the services of Dr. Deborah Lowen, an expert in child abuse pediatrics. Dr. Lowen reviewed the imaging of R.M's head, spoke with the victim's parents to obtain a medical history, and examined R.M. During the examination, Dr. Lowen observed the following:

[S]he was awake, alert, and happy, and looked like she was in really good condition. The . . . findings that were of note were on her head. On the right side of her scalp she did have a ...

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