11, 2017 Session
from the Criminal Court for Shelby County No. 14-00889 J.
Robert Carter, Jr., Judge
defendant, Errol Johnson, was convicted of two counts of
aggravated child neglect, a Class A felony, and two counts of
criminally negligent homicide, a Class E felony. The trial
court merged the two aggravated child neglect convictions and
sentenced the defendant as a violent offender to twenty-two
years in the Department of Correction. The trial court also
merged the defendant's convictions for criminally
negligent homicide and sentenced him to two years. The
defendant's sentences were ordered to be served
concurrently for an effective sentence of twenty-two years in
the Department of Correction. On appeal, the defendant argues
that the evidence is insufficient to support his convictions
for aggravated child neglect and that the trial court imposed
an excessive sentence. We conclude that the evidence is
sufficient to sustain the jury's verdict and affirm the
judgments of the trial court. However, because aggravated
child neglect is not an enumerated offense included in
Tennessee Code Annotated § 40-35-501(i)(2), the trial
court erred in its applying the statute and sentencing the
defendant as a violent offender at 100% release eligibility.
Therefore, we remand the matter for a new sentencing hearing.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed in Part and Reversed in Part; Case Remanded
Stephen C. Bush, Shelby County Public Defender; Harry E.
Sayle, III, Assistant Public Defender (on appeal); and Nigel
Lewis, Kathy Kent, and Erim Sarinoglu, Assistant Public
Defenders (at trial), for the appellant, Errol Johnson.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Carrie Shelton-Bush
and Abby Wallace, Assistant District Attorneys General, for
the appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
Alan E. Glenn and Timothy L. Easter, JJ., joined.
ROSS DYER, JUDGE
and Procedural History
November 24, 2012, the victim, a 12-year-old girl, died as a
result of severe neglect and lack of care. As a result of her
death, the State charged the defendant, the victim's
father; the victim's mother; and the victim's home
healthcare worker, Chasara Jones, each with two counts of
aggravated child neglect and two counts of first degree
murder. The proof presented at trial is summarized as
November 24, 2012, Officer Robert Redditt of the Millington
Police Department responded to a 911 medical call concerning
an "unresponsive or not breathing juvenile female"
at 7684 Arapaho, Millington, Tennessee. According to Officer
Redditt, he entered the home through the carport and
immediately noticed a "horrific odor. It smelled like
death to me." Officer Redditt testified that the odor
grew stronger as he moved deeper into the house and closer to
the victim's room.
entered the victim's bedroom, Officer Redditt found the
victim sitting on the floor leaning against the bed, and her
mother attempting to perform CPR. Officer Redditt noted the
defendant was also in the room and was very upset and
screaming at his wife. Officer Redditt instructed the mother
to lay the victim flat on the floor so CPR could be performed
properly. When she did, Officer Redditt noticed numerous
sores on the victim's legs. Once the medical team
arrived, Officer Redditt left the victim's bedroom and
escorted the defendant to the carport.
County Sheriff's Deputy Darryl Blake testified he was
employed by the Millington Police Department in 2012 and
responded to the 911 call concerning an unresponsive juvenile
on November 24, 2012. Deputy Blake testified that the
"smell in the house took your breath away, " and,
as he walked to the victim's room, "the worse the
smell got." Deputy Blake also noted the house was
unorganized and the kitchen was full of dirty dishes. When
Deputy Blake entered the victim's bedroom, he noticed she
had thick bandages on both feet. He also noticed fly strips
hanging all around her room that were full of flies. Deputy
Blake testified "the floor was very, very sticky and
just brown." He stated that "the white mattress was
completely dark in most spots where you could tell someone
was lying." According to Deputy Blake, the defendant was
very angry and repeatedly stated "someone was going to
pay if something happened to his baby."
Because the defendant refused to take his wife, the
victim's mother, to the hospital with him, Deputy Blake
offered to take her. According to Deputy Blake, the defendant
said his wife could not ride with him because he would do
"something" to her if something happened to the
victim. When they entered the victim's hospital room,
nurses were cutting the bandages off her feet. According to
Deputy Blake, it took the nurses "about 10 minutes for
each foot." Deputy Blake testified that once the
bandages started coming off "maggots and everything
started falling out of the bandages" and "parts of
bones from [the victim's] feet started coming out inside
Blake ran into the defendant as he was leaving the
victim's hospital room. According to Deputy Blake, the
defendant hugged him and stated, "[I] can't believe
we let my baby die." The defendant then immediately
changed from "we" to saying "she" and
blaming the victim's mother. Finally, the defendant told
Deputy Blake, "I work so much. I couldn't believe
this was going on. How can I know all this was going on as
much as I work?" After witnessing the victim's
injuries and speaking with the defendant, Deputy Blake
requested a detective be sent to the hospital.
Slough, a paramedic with the Millington Fire Department, also
responded to the 911 call. In describing the odor in the
home, Mr. Slough testified the odor got stronger as they
moved towards the back of the house. The odor was a
"real putrid, rotting flesh smell." "It
smelled like a gangrenous wound. A real wretched smell."
As he attended to the victim, Mr. Slough could not find a
pulse and noted the victim was not in good health and was not
breathing. He also noticed that the victim did not have on
any clothes from the waist down and she "had blisters
and bedsores on [her] inner thighs." Mr. Slough also
testified the victim's room was very dirty. There were
stains on the floor and the bed. The smell was horrible, and
there were maggots on the floor.
Maiden, an emergency room technician with Methodist Hospital,
was on duty when the victim arrived at the hospital on
November 24, 2012. Ms. Maiden, who also worked as an EMT with
the Millington Fire Department, was familiar with the victim.
On May 2, 2011, the Millington Fire Department had responded
to a "general weakness call" at the victim's
home. That day, they had to help lift the victim out of her
bed and move her to a stretcher so that she could be
transported to the hospital.
November 24, 2012, the emergency room was notified that a
12-year-old girl in full arrest was being transported. When
the victim arrived, the staff "immediately noticed that
she was a lot larger than a normal 12-year-old."
According to Ms. Maiden, the victim looked as if she was full
grown. Ms. Maiden testified they attempted to resuscitate the
victim for almost an hour. Despite all their efforts, they
were unable to save the victim.
Maiden testified she aided in preparing the victim's body
for transport to the medical examiner's office. Per
hospital policy, they are required to keep everything that
was on the victim's body with her body, minus bandages
and anything used to help resuscitate her. Additionally, all
of the victim's sores and wounds needed to be uncovered.
Therefore, Ms. Maiden removed the compression boots on the
victim's feet and began to remove the bandages
underneath. As the new bandages were removed, Ms. Maiden
noticed that the new bandages had been placed over the older,
dirty bandages, meaning no one had changed the bandages or
cleaned the victim's sores in a very long time.
Additionally, Ms. Maiden discovered maggot larvae in the
bandages. Ms. Maiden testified that it took about twenty
minutes per foot to remove the bandages. She even had to
change to sharper, stainless-steel scissors in order to cut
the thick, hardened bandages. As the bandages were removed,
they discovered that the skin was embedded in the bandages,
the victim was missing toes on her right foot, and her bones
began to fall out as the bandages were removed. According to
Ms. Maiden, there was little to no flesh on the victim's
Dennis Brunson with the Millington Police Department was
called to the victim's house to investigate the
circumstances surrounding the victim's death. As part of
his initial investigation, Detective Brunson spoke with the
defendant. The defendant informed Detective Brunson that the
victim was sick and blamed his wife for not caring for the
victim properly. He also informed Detective Brunson that he
was suing Le Bonheur Children's Hospital and commented,
"I guess this will help my lawsuit."
Brunson testified he could smell the "strong putrid odor
associated with death" from outside the house and that
the smell was worse once he entered the house. As he examined
the victim's bedroom, Detective Brunson noted the
victim's mattress was heavily stained. The sheets, the
mattress, and the hospital pad on the victim's bed were
heavily soiled. He also noticed stained and soiled rags and
bandages on the floor of the victim's room. According to
Detective Brunson, the victim's room "smelled of
rotten flesh." Detective Brunson also found a Tylenol PM
bottle and gauze packaging in the victim's trashcan.
Detective Brunson and other officers searched and inventoried
the house, the defendant, who had remained outside, ran into
the house and into his room. When Detective Brunson checked
on him, the defendant stated "he wished he had went to
her when she was crying and moaning" the night before.
Detective Brunson also testified that the defendant was
"very upset" when they informed the defendant the
victim's body could not be released until the medical
examiner had concluded the autopsy. According to Detective
Brunson, the defendant wanted to have the victim cremated and
taken to New Orleans. On cross-examination, Detective Brunson
testified that the defendant refused to allow him to speak
with his son and told him that he preferred if Detective
Brunson would not talk to his wife.
Jones, a victim advocate coordinator for the Memphis Child
Advocacy Center, testified that she was working for the
Tennessee Department of Children's Services at the time
of the victim's death. According to Ms. Jones, on
November 24, 2012, she received a priority one referral
concerning "allegations of neglect and death"
relating to the victim. As a result of the referral, Ms.
Jones went to the victim's home where she was immediately
met by the defendant. After Ms. Jones introduced herself, the
defendant told her that he resented her being there. The
defendant stated, "My daughter has been sick for over
two years and now that's she's dead DCS and MPD are
coming here saying we're bad parents." The defendant
also told Ms. Jones that they were not receiving any help and
that the care of the victim was "all on his wife."
He also informed Ms. Jones of his attempts to sue Le Bonheur
Children's Hospital and TennCare.
Jones testified the first thing she noticed about the
victim's room was it smelled like "rotten flesh or a
dead animal" despite candles and incense burning in the
room. She also noticed the mattress and the carpet were
heavily stained, and the room was full of fly strips. Ms.
Jones testified there were dead flies all over the bathroom
and bloody bandages on the floor.
Ms. Jones left the house that evening, the defendant
presented her with a box containing the victim's medical
records. The defendant told Ms. Jones that the documents in
the box showed they had tried to get help for the victim, but
no one would help them. Ms. Jones testified that the
defendant called her twice after she left, requesting that
the victim's body be ...