Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Pewitte

Court of Criminal Appeals of Tennessee, Nashville

November 14, 2016

STATE OF TENNESSEE
v.
ANTONIO TERRELL PEWITTE

          Assigned on Briefs June 21, 2016

         Appeal from the Criminal Court for Davidson County No. 2014-A-511 J. Randall Wyatt, Jr., Judge

         Defendant, 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Dawn 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.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         Factual Summary

         For 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.[1] Mother and her children lived with Defendant and his young son.

         On the 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."

          N.C. 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.

         Afterward, 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.

         M.O., 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.

         While 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.

         The 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.

         Given 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 hands.

         Mother 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.

         Detective 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.

         After 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.

         An 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.

         Carrie 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 even bone.

         The 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 healed.

         After 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.

         Ms. 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.

         Defendant 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.

         Analysis

         Defendant 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 sentencing.

         A. Election of Offenses

         Defendant 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.

         A 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).

         In 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." Id.

         In this 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.[2] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.