Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 16, 2016 at Knoxville
from the Circuit Court for Montgomery County No. 41301121
John H. Gasaway III, Judge
Following a jury trial, the Defendant, Nicole Pamblanco, was
convicted of aggravated child neglect and criminally
negligent homicide. She now appeals as of right, challenging
(1) the sufficiency of the evidence by claiming that the
State failed to establish the requisite mental state of
knowing for her aggravated child neglect conviction and (2)
the trial court's erroneous instruction to the jury
during voir dire that, if she were found guilty on both
counts, those counts would merge. Following our review, we
conclude that the evidence was sufficient to support her
aggravated child neglect conviction and that the jury
instruction error was harmless. Therefore, the trial
court's judgments are affirmed.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Christopher G. Clark and Zachary L. Talbot (on appeal),
Clarksville, Tennessee; and Michael J. Flanagan (at trial),
Nashville, Tennessee, for the appellant, Nicole Pamblanco.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; John W. Carney, District
Attorney General; and Kimberly S. Lund, Assistant District
Attorney General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Norma McGee Ogle, JJ.,
KELLY THOMAS, JR., JUDGE
Montgomery County Grand Jury charged the Defendant with
aggravated child neglect and reckless homicide after the
Defendant's seven-month-old daughter ("the
victim") drowned in a bathtub on August 22, 2013.
See Tenn. Code Ann. §§ 39-13-215, -15-402.
The Defendant and her husband ("the Defendant's
husband" or "the victim's father") lived
in Clarksville, along with the victim and their three other
children. The Defendant was a stay-at-home mom, and her
husband worked at Jiffy Lube. A jury trial was held in April
2015, where the following facts were adduced.
Hubbard and the Defendant had been "acquaintances"
for several years. Due to a recent disagreement, Ms. Hubbard
asked the Defendant if she could "come over" for a
visit on August 22, 2013. The Defendant responded
affirmatively and requested Ms. Hubbard to bring with her a
"Strawberrita, " "a tall can of alcohol[,
]" when she came. According to Ms. Hubbard, when she
arrived at the Defendant's home, she "[g]ot out of
[her] car with the Strawberrita, walked up to the door, and .
. . rang the doorbell."
Defendant answered and invited Ms. Hubbard to come inside.
They sat down in the living room to talk. The Defendant
opened her can of Strawberrita and took a drink; Ms. Hubbard
only recalled the Defendant's taking one drink of the
beverage. Ms. Hubbard said that, while they conversed, she
could hear children playing in another room, and although
"they sounded rambunctious and playful[, ]" the
Defendant never got up to check on them. Ms. Hubbard
described the Defendant's demeanor while they spoke:
"She seemed fine and in good spirits. . . . She seemed
pretty relaxed[.]" The Defendant's husband also
testified that the Defendant appeared "[n]ormal"
that day and did not seem to be sad or upset about anything.
Hubbard testified that the Defendant's husband came
inside from mowing the grass "a good ten minutes"
into their conversation. The Defendant's husband
explained that, when he entered, the two women "were
just having a conversation like two normal girls would, just
chatting away." He saw the can of Strawberrita the
Defendant was drinking, and he opined that Ms. Hubbard had to
have brought the alcohol with her because there was not any
in his house prior to that time. He said that he spoke to the
women only briefly because he needed to use the restroom,
speaking to them about three to four minutes at most, in his
estimation. Then, because he could hear the children
"going haywire" in the other room, he went to check
on them-two two-year-old boys, a five-year-old boy, and
five-year-old girl were present in the children's
bedroom. The boys were jumping on the bed, and he told them
to calm down. Hearing "[t]he sound of running bath
water[, ]" he went to the bathroom near the
children's bedroom first but saw nothing. When he went to
the bathroom in the master bedroom, he saw the victim
"face down floating on the tub, water overflowing."
There was an abundant amount of water on the bathroom floor,
which had reached the bedroom carpet, according to the
Defendant's husband. The Defendant's husband said
that he reacted quickly, grabbing the victim from the bathtub
and turning off the water, which was about "halfway
running[.]" He said the victim "was blue, lifeless,
limp, like [he] pulled a noodle out of a pot." He took
the victim to the living room and began performing
cardiopulmonary resuscitation ("CPR").
to Ms. Hubbard, she heard the Defendant's husband's
screaming, and when he emerged from the back of the house
carrying the victim, he was upset and yelling, "[W]hat
happened? What did you do? What's wrong with [her]?"
Ms. Hubbard described the victim's appearance: "She
was blue, there was water coming out of her mouth and nose,
very limp." Ms. Hubbard took over administering CPR on
the victim. Although the victim did not have a pulse, she
performed CPR for "[a] good five minutes[.]" The
Defendant called 911.
Ms. Hubbard was performing CPR, the victim's father went
to a neighbor's house for help. He knocked on Kasi
Sinclair's door around 6:50 p.m., and when she answered,
he asked, "[D]o you know CPR, my baby is dying?"
Ms. Sinclair described the victim's father's demeanor
at that time: "He was panicking, he was breathing
heavily and he was kneeling with his hands on his
knees." Because Ms. Sinclair did know how to administer
CPR to infants, she went next door to help.
Ms. Sinclair entered the home, she saw Ms. Hubbard and the
victim's mother "hovering of the victim" who
was on the living room floor. Ms. Sinclair then observed Ms.
Hubbard pick up the victim, put the victim on her left
shoulder, and start "to pat" the victim as if
"burping a baby." According to Ms. Sinclair, as Ms.
Hubbard did this, "a lot of water" started coming
out of the victim's mouth and nose onto Ms. Hubbard's
shirt, so Ms. Sinclair took the victim from Ms. Hubbard
immediately and began performing CPR. Ms. Sinclair testified
that she put the victim on her knee and "started doing
downward thrusts [and] water started coming out of [the
victim's] mouth[.]" The victim did not have a pulse
at that time, according to Ms. Sinclair. Ms. Sinclair
continued CPR on the victim by "swiping to make sure
that there was nothing in [the victim's] mouth and then
[she] put two small breaths and [the victim's] chest rose
and then [she] began with the two fingers." Although
these tactics appeared to be working in Ms. Sinclair's
opinion, every time Ms. Sinclair would push on the
victim's chest water came out of the victim's mouth.
She continued with CPR until emergency medical services
("EMS") arrived on the scene and took over.
Sinclair was asked if she made any observations of the
Defendant while she was giving the victim CPR. Ms. Sinclair
said that the Defendant "wasn't acting like a
[m]om" and that "[s]he smelled of alcohol";
however, Ms. Sinclair agreed that the Defendant did not
display "any signs that she was under the
influence." Additionally, Ms. Sinclair later visited the
family at the hospital, and according to Ms. Sinclair, while
there, the Defendant "mentioned she did not know how
[the victim] got into the bathtub, that she thought one of
the other children had placed her there[.]"
County EMS Paramedic David Frost responded to an August 22,
2103 call "for an unresponsive child, ten minutes
unresponsive." When he arrived at the victim's home,
she "was lying on the floor on her back, her skin was
pale, her lips were turning blue and the Fire Department was
checking for a pulse in her arm." Mr. Frost, thereafter,
assisted in transporting the victim to the hospital. The
victim still was not breathing, and the administration of CPR
continued. While en route, Mr. Frost was unable to "pass
an endotrach[e]al tube into the child's throat"
because water was "continuously coming out of her
airway." Additionally, Mr. Frost obtained twenty to
twenty-two milliliters of water through suctioning of the
victim's mouth, which was "quite a bit" for a
child that young, in his opinion. Mr. Frost further testified
that the victim's skin felt wet; that her diaper was
soaked; that the bed the victim was placed on in the
ambulance was also wet, the water coming "[f]rom her
hair and from the rest of her body"; and that her
genital area "appeared to be red and swollen with dark
red spots[.]" Once the ambulance arrived at the
hospital, care of the victim, who still had fluid in her
lungs, was turned over to the hospital staff. The hospital
staff was able to get the victim's heart to start beating
again, but she never fully recovered.
Police Department ("CPD") Officer Joshua Swafford
arrived as the victim was being taken to the ambulance. He
first made contact at the home with the Defendant, who was
crying. According to Ofc. Swafford, the Defendant made the
following statement to him at that time:
She stated to me that she was giving the child a bath and she
heard a knock on the door. She came to the door, answered it
and then she heard I believe [the victim's father] holler
from the bathroom and she had went back there and that's
when I guess [someone] called 911.
asked if the Defendant provided a timeframe "as to how
long the child had been left in the tub[, ]" Ofc.
Swafford replied, "I believe the timeframe she gave
me-from the time she left and was at the door talking to
whoever it was that knocked on it, was approximately"
"five to ten minutes[.]"
the family's arrival at the hospital, CPD Detective Tim
Anderson spoke with the Defendant. The Defendant provided
Det. Anderson with the following version of events:
She explained that she was giving [the victim] a bath and
during the procedure of giving her the bath, she had heard a
knock at the door and she left the bathroom-left [the victim]
in the tub and went to see who was at the door and there was
a friend at the door and her and the friend had sat down and
started having a conversation and the father had come in ...