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State v. Pamblanco

Court of Criminal Appeals of Tennessee, Nashville

November 29, 2016

STATE OF TENNESSEE
v.
NICOLE PAMBLANCO

          Assigned on Briefs August 16, 2016 at Knoxville

          Appeal 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

          The 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.

         Jennifer 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."

         The 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.

         Ms. 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").

         According 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.

         While 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.

         When 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.

         Ms. 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[.]"

         Montgomery 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.

         Clarksville 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.

         When 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[.]"

         After 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 ...

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