Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs June 21, 2016
from the Criminal Court for Davidson County No. 2014-A-511 J.
Randall Wyatt, Jr., Judge
Antonio Terrell Pewitte, was convicted of aggravated child
neglect and received a sentence of twenty years. Defendant
raises the following issues in his direct appeal: (1) whether
the trial court erred by failing to require the State to make
an election of offenses; (2) whether the evidence is
sufficient to support his conviction; (3) whether the trial
court abused its discretion by admitting multiple photographs
of the victim's injuries; (4) whether the trial court
erred by admitting hearsay testimony; (5) whether the trial
court abused its discretion by not granting a mistrial based
on prosecutorial misconduct during closing argument; and (6)
whether the trial court abused its discretion during
sentencing. Following a careful review of the record, the
judgment of the trial court is affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Deaner, District Public Defender; Jeffrey A. DeVasher (on
appeal), Emma Rae Tennent (on appeal), Jonathan Wing (at
trial), and Ellen Forrester (at trial), Assistant Public
Defenders, for the appellant, Antonio Terrell Pewitte.
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Brian Holmgren (at trial) and
Katie Miller (at sentencing), Assistant District Attorneys
General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in
which John Everett Williams, J., joined. Norma McGee Ogle,
J., filed a concurring opinion.
TIMOTHY L. EASTER, JUDGE
placing the hands of his girlfriend's daughter under
scalding hot water, Defendant was charged with one count of
aggravated child abuse resulting in serious bodily injury,
see T.C.A. § 39-15-402(a)(1), one count of
aggravated child abuse accomplished by use of a dangerous
instrumentality, see T.C.A. § 39-15-402(a)(2),
one count of aggravated child neglect resulting in serious
bodily injury, see T.C.A. § 39-15-402(a)(1),
and one count of aggravated child neglect accomplished by use
of a dangerous instrumentality, see T.C.A. §
39-15-402(a)(2). All of these charges were indicted as
alternative theories for the same criminal conduct. Defendant
and his girlfriend, Mother, had been dating for almost three
years at the time of the incident. She had a son, M.O., and a
daughter, N.C., who was six years old. Mother and her
children lived with Defendant and his young son.
evening of December 1, 2013, Mother was at work, and
Defendant was watching her children. Before dinner, N.C. went
into the bathroom next to the kitchen and began washing her
hands with cold water. Defendant and the other children were
at the kitchen table waiting on N.C. to finish washing her
hands so that they could begin eating together. Defendant
joined N.C. in the bathroom and turned the faucet handle to
hot water. Defendant then "grabbed" her wrists and
put her hands under the hot water so that the water ran over
the back of her hands and thumbs. N.C. testified that the hot
water was "painful" and that she cried when she
felt it. N.C. said that Defendant did not apply soap to her
hands or rub her hands together while her hands were under
the water. According to N.C., Defendant also "tried to
put [her] face in the water."
thought that Defendant changed the water temperature because
she was "taking too long, " and she thought he was
"angry." N.C. also testified that, prior to the
incident, Defendant believed that N.C. was "messing with
nail polish, " so he punished her by making her
"stand in the corner with one leg up and one leg
down" while raising both of her hands to her head. N.C.
thought that Defendant put her hands under the hot water on
purpose and that it was not an accident.
Defendant told N.C. to go sit down at the kitchen table, and
she complied. During dinner, N.C. 's hands hurt and made
it difficult for her to use her fork. Throughout the night,
N.C. had trouble sleeping because her hands hurt.
who was twelve years old at the time of trial, testified that
he was at the kitchen table and heard N.C. scream after
Defendant went into the bathroom with her. M.O. saw that N.C.
's hands were red, but he did not recall Defendant doing
anything to help treat N.C. 's hands. M.O. also heard
N.C. "moaning" before she went to bed.
Mother was at work, she talked with Defendant on the phone
around half a dozen times. He told her that N.C. was playing
with her nail polish and said that he was going to let Mother
"handle it" when she got home. According to Mother,
Defendant sounded "angry." On one of the phone
calls, Defendant made N.C. tell Mother that she was in
trouble because she "lied" about playing with the
nail polish. Mother testified that she did not believe her
daughter lied about the nail polish because N.C. was crying
on the phone. Although they spoke on the phone numerous
times, Defendant never called Mother to tell her that N.C.
's hands were burned, and he did not mention the incident
to Mother when she returned home from work. Mother's
shift ended at 11 p.m. When she got home, she fell asleep on
the couch in the living room.
following morning, N.C. awakened Mother and said that her
hands hurt. Mother observed that there were blisters on the
front and back of N.C. 's hands. The blisters covered
"most" of her hands. Mother was "shocked"
and "worried." Mother woke up Defendant and asked
him what happened.
the nature of the injuries, Mother thought that N.C. needed
to go to the hospital, but Defendant disagreed. Defendant
told Mother that she was "stupid" and said that
N.C. "didn't need to go to no f***ing
hospital." Then, Defendant soaked N.C. 's hands in
rubbing alcohol and tried to "pop" the blisters
with a safety pin. Mother went to the store and bought gauze
wrap and Neosporin cream. She used both to treat N.C. 's
called her mother, Carla Agins, and told her about what
happened. After learning that N.C. 's hands were burned,
Ms. Agins called 911 and the hotline for the Department of
Children's Services. According to Ms. Agins, Mother
seemed scared because she was whispering on the phone.
Jeffrey Gibson of the Nashville Police Department went to the
house and inspected the bathroom where the incident occurred.
When Detective Gibson arrived, Defendant was cooperative and
seemed "visibly upset." The sink's faucet had a
single lever which turned back and forth horizontally to
change the water temperature. Detective Gibson turned on the
hot water as high as it would go and then he used a digital
thermometer to check the temperature of the water over a
period of about two minutes. The temperature of the water
fluctuated, but the highest reading was 141.6 degrees
Fahrenheit, and the most consistent temperature reading was
around 131.6 degrees Fahrenheit. When Detective Gibson
checked the water temperature with an analog thermometer, it
reached almost 130 degrees Fahrenheit. While the water was
running, steam would come from the water intermittently.
checking the hot water heater, Detective Gibson discovered
that the temperature control dial was on the setting just
below the hottest. The hot water heater was located next to
the bathroom, so the water would not have had to travel far
before reaching the bathroom faucet. Mother testified that
she had not adjusted the hot water heater temperature
settings. She was not aware that anyone had previously been
burned by the hot water in their home. The house in which
they lived was government-owned housing, so the tenants did
not handle maintenance issues.
ambulance took N.C. to the hospital, where she remained for
six days, during which she received aqua therapy and had to
perform exercises "to keep flexibility in her
hands." N.C. stayed on pain medication throughout the
hospitalization. Mother had to change N.C. 's bandages
twice a day after N.C. was discharged, and N.C. had to
continue doing flexibility exercises for two months.
Donnell was a nurse practitioner at Vanderbilt University
Medical Center who evaluated N.C. in the emergency department
on the day after the incident. The trial court certified her
as an expert in child abuse pediatrics without objection. Ms.
Donnell described N.C. 's injuries as a mix of
superficial thickness burns and partial thickness burns
located on "the palm and the back of her hand and then
extended from her wrist down to her fingers" on each
hand. Ms. Donnell explained:
[B]urns are described . . . on a continuum being partial
thickness to full thickness burns. And within partial
thickness, you can have superficial and deep partial
thickness burns. So, if you think about a superficial burn,
it would be like a sunburn, redness to the skin, but no loss
of skin. And then, as the burn progresses and gets . . .
deeper, you will have blistering and loss of skin. In a full
thickness burn, [it] would enter into subcutaneous tissue and
majority of N.C. 's burns were partial thickness burns,
including deep partial thickness burns on both hands. Ms.
Donnell explained that "superficial and partial
thickness burns are actually more painful than full thickness
burns . . . because the nerve endings are exposed but not yet
killed off, . . . and the full thickness burns are so deep
that the nerve endings are just completely [gone], . . . so
you don't actually feel that sensation anymore."
Because N.C. 's burns were of the former type, they
required "ongoing pain management" until they
N.C. sustained the injuries, "her hands would have been
obviously very red. While they might not have been blistered
immediately upon burn-that would have developed over some
time-but it would have been clear to any prudent caregiver
that she had been injured." Ms. Donnell explained that
immediate medical attention is "very important" for
a child with such injuries in order to reduce the risk of
developing "difficulty in flexing that extremity or body
part." Ms. Donnell testified that popping the blisters
and applying burn ointment was not "an appropriate form
of medical intervention" for N.C. 's injuries
because opening a wound increases the risk of infection. N.C.
's injuries caused loss of pigmentation to her skin and
also reduced the range of motion in her hands.
Donnell testified that the burns on N.C. 's hands were
consistent with both hands having been placed
"perpendicular to the floor" with the thumbs
upwards underneath the hot water. According to Ms. Donnell, a
child can comfortably wash in hot water with a temperature of
about 101 degrees, and burns can begin forming at 113 degrees
with prolonged exposure. A child like N.C. would be expected
to cry out in pain and withdraw from 113-degree water.
Accordingly, N.C. 's injuries were not accidentally
self-inflicted. N.C. 's burns required "increased
temperature and increased exposure time" beyond that of
quick contact with 113-degree water. Ms. Donnell testified
that, in water of 130 degrees Fahrenheit, it would take
approximately six to ten seconds for a child to sustain the
injuries that N.C. did. A full thickness burn would result
after approximately one second from a child's exposure to
water of 140 degrees Fahrenheit.
did not testify. The jury convicted Defendant of one count of
aggravated child neglect, a Class A felony, and acquitted him
of the other three counts. The trial court sentenced
Defendant to serve twenty years and denied his motion for new
trial. Defendant timely filed a notice of appeal.
raises the following issues: (1) whether the trial court
erred by failing to require the State to make an election of
offenses; (2) whether the evidence is sufficient to support
his conviction; (3) whether the trial court abused its
discretion by admitting multiple photographs of the
victim's injuries; (4) whether the trial court erred by
admitting hearsay testimony; (5) whether the trial court
abused its discretion by not granting a mistrial based on
prosecutorial misconduct during closing argument; and (6)
whether the trial court abused its discretion during
Election of Offenses
argues that his right to a unanimous jury verdict was
violated when the trial court refused to require the State to
elect which offense it was prosecuting under each count of
the indictment. He maintains that the jury's guilty
verdict for aggravated child neglect could have been based on
either his conduct in holding the victim's hands under
hot water or his conduct in failing to seek prompt medical
assistance for the victim. The State argues that no election
was required because Defendant's continuing course of
conduct was a single offense. We agree with the State.
criminal defendant's constitutional right to a jury trial
includes the right to a unanimous jury verdict. See State
v. Lemacks, 996 S.W.2d 166, 169-70 (Tenn. 1999).
"[W]here the prosecution presents evidence to the jury
that tends to show more than one criminal offense, but the
underlying indictment is not specific as to the offense for
which the accused is being tried, " the trial court must
require the State to elect which offense it is submitting for
the jury's consideration. Id. at 170. The
purpose of the election requirement is to prevent
"patchwork" verdicts, wherein some of the jury base
their decision on one offense, while others base their
decision on another offense. State v. Shelton, 851
S.W.2d 134, 137 (Tenn. 1993). Accordingly, no election is
necessary where there is only evidence of a single offense.
State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000).
Adams, our supreme court declared that child neglect
may be a single, "continuing course of knowing conduct
beginning with the first act or omission that causes adverse
effects to a child's health or welfare" and
continuing "until the person responsible for the neglect
takes reasonable steps to remedy the adverse effects to the
child's health and welfare caused by the neglect."
Id. at 296. Although not always the case, "a
continuing offense may be composed of multiple discrete acts
where a single scheme or motivation is present."
case, the conduct for which Defendant was prosecuted and
convicted was a continuing course of conduct which began when
he caused the victim's hands to be burned by holding them
under hot water and continued for as long as he failed to
properly attend to her injuries. This remains true even
though the course of conduct was composed of more than one
discrete act. While failure to seek medical care, in some
cases, may constitute the entirety of the allegedly criminal
conduct for a charge of neglect, we do not believe that it
necessarily follows that an election of offenses is required
anytime a period of failure to seek medical care accompanies
other discrete conduct which more directly contributes to the
infliction of injury. Under these circumstances, there was no
need for an election of offenses ...