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State v. Sweeney

Court of Criminal Appeals of Tennessee, Nashville

March 29, 2018


          Assigned on Briefs December 13, 2017

          Appeal from the Criminal Court for Davidson County No. 2015-A-300 J. Randall Wyatt, Jr., Judge

         Defendant, Mattie Florence Sweeney, was found guilty of gross neglect of an impaired adult as charged in Count One and guilty of neglect of an impaired adult in Count Two. The trial court merged the two convictions into a single conviction for gross neglect of an impaired adult, and sentenced Defendant to a term of five years "to serve." After the denial of a motion for new trial, Defendant initiated this appeal. On appeal, Defendant argues: (1) the trial court committed plain error by constructively amending the indictment during the jury charge; (2) the trial court erred by admitting testimony about the victim's driver's license record; (3) the trial court erred by admitting lay testimony about the victim's cough and the condition of his skin; (4) the trial court erred by admitting a photograph of the victim's buttocks into evidence; and (5) the evidence was insufficient to support the convictions. After a review, we affirm the judgments of the trial court.

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

          Dawn Deaner, District Public Defender, and Emma Rae Tennent (on appeal) and Jonathan Wing and Kathryn Hansel (at trial), Assistant District Public Defenders, for the appellant, Mattie Florence Sweeney.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Jude Santana, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.



         On December 11, 2014, the police found the victim, John Sweeney, living in Defendant's apartment in deplorable conditions. The victim, who was Defendant's father, was in his late 80s. Subsequently, in January of 2015, Defendant was indicted by the Davidson County Grand Jury in a multi-count indictment with one count of abuse or gross neglect of an impaired adult in violation of Tennessee Code Annotated section 71-6-119 and two counts of abuse or neglect of an adult in violation of Tennessee Code Annotated section 71-6-117. Before trial, the State was allowed to amend the indictment to allege one count of gross neglect of an impaired adult and one count of neglect of an adult.

         At trial, Officer Shedie Herbert of the Metropolitan Nashville Police Department testified that he was working as an officer assigned to the Metropolitan Housing and Development Agency Task Force. On December 11, 2014, he responded to Defendant's apartment on a matter unrelated to the victim. Officer Herbert was given consent to search the apartment by Defendant and, as part of his search, started to locate all of the people in the apartment. Defendant informed Officer Herbert that her "Dad" was upstairs. Officer Herbert went upstairs and tried to open what he thought was a closed bedroom door. According to Officer Herbert:

The first thing I noted as I opened the door was that there was something leaning against the door and I had to push a little bit and drag it out. I noticed that there were two to three adult diapers that had been overfilled with feces and had dried by this point that they were leaning against the door. I also noted that the floor immediately in front of the door was matted with different layers of feces, all had dried at different rates . . . .

Officer Herbert peered into the room with white linoleum floors and saw a trail of footprints in the feces that led to two areas in the "mostly empty room." The room contained a small piece of furniture, a set of box springs, and a mattress with no bedframe. There was no bedding on the mattress. There was "another adult diaper in the middle of the floor" and "some food [o]n the floor that had started to turn color and there was a plate of uneaten food also on the box spring and mattress." The victim was lying on the bed with no covers. He was wearing a "dirty" white t-shirt and vest but "nothing" from the waist down besides an adult diaper that was "overflowing with feces in [the] groin area and up the sides." The victim's feet were "too swollen to walk on" and were "covered in feces." Additionally, the victim's toenails were so long that they "curled under his toes." His fingernails were also long and curled, and there was "dark matter" under the victim's fingernails that appeared to be feces.

         When Officer Herbert approached the victim, who was very thin with an unkempt beard, "he sat up and his face lit up and he had a big smile on his face." He told the officer that he "want[ed] to go to the hospital." The victim claimed that he had not had any medication in five months and that no one would "help" him. The victim was "trying to talk fast" and started to cough a "very deep phlegmy cough." The victim told Officer Herbert that he thought that he was "going to freeze to death." Officer Herbert explained that he was comfortable in the room only because he was wearing his winter coat. The victim was unable to stand on his own after trying to do so several times.

         Officer Herbert called the Nashville Fire Department and emergency medical technicians. The victim was placed on a stretcher, wrapped with blankets, and taken via ambulance to the Veterans Administration Hospital in Nashville. The victim told medical personnel that he hurt "all over." Paramedic Rana Eldridge completed a report shortly after responding to the call and transporting the victim to the hospital. In the report, Ms. Eldridge noted the dried feces on the floor. She documented that the victim was wearing jeans over an adult diaper. According to the report, the victim informed her that he had not been out of the room for quite some time and had not seen a doctor even though he had requested to do so. Ms. Eldridge had no independent recollection of the events, relying solely on her report for her testimony.

         Officer Herbert confirmed the victim's identity by looking up his driver's license. The license listed the victim's weight as 126 pounds. Officer Herbert visited the victim at the hospital to take photographs of his condition. The photographs were admitted into evidence at trial and showed the victim's long, overgrown fingernails which had dark matter under them as well as the victim's swollen feet and long toenails. Officer Herbert also took a photograph of the victim's buttocks to highlight a spot just above the rectum that appeared "scaly and dark" and did not appear to "be healthy skin."

         When the victim arrived at the hospital for treatment, he was assisted by Nurse Emily Johnson in the emergency room. At trial, she described the victim as lucid and oriented but that he appeared "emaciated" and "dirty." He weighed 102 pounds. She observed "fecal matter underneath his fingernails" which appeared "long like they had not been clipped, cleaned, [or] taken care of" in an extended period of time. Ms. Johnson described the victim's toenails in a similar manner and observed fecal matter on the victim's feet. The victim had fluid in his lungs, a below-normal body temperature, and slightly elevated blood pressure as well as a stage one bed sore on his buttocks. His medical diagnoses included malnutrition, dehydration, failure to thrive, E. coli bacterium, and inhalation E.coli pneumonia. Ms. Johnson explained that E. coli pneumonia can be contracted by "not being clean" and "inhaling" particles of fecal matter. E. coli bacterium occurs when the bacteria gets into the bloodstream. She considered both to be "very dangerous [medical conditions], especially [for] someone [the victim's] age and in his state of health to begin with." The victim was treated for the pneumonia after he left the emergency room.

         Ms. Johnson was surprised to learn that the victim had been diagnosed with dementia and severe short term memory impairment. The victim told Ms. Johnson that "they" were not taking care of him at home. Specifically, he claimed that he was not being fed or given medication and that he had been lying on the floor for two days when the police found him. The victim suffered from dysphagia, or difficulty swallowing, and required supervision and/or assistance with eating. The victim claimed that his daughter gave him Ensure, a nutritional drink, at home and that he was not consistently fed actual food. The victim's medications had not been filled for several months.

         The defense called Deborah Prieto, a certified nurse assistant who worked with the victim in November 2013, one year prior to the incident at issue. At that time, the victim was living with his step-daughter Markesha.[1] Ms. Prieto helped the victim bathe and walk. The victim's legs were "very weak" at that time and he was "unsteady" on his feet, but they would try to go for walks. The victim suffered from incontinence in November 2013 and had difficulty changing his adult diaper on his own. At the time, the victim weighed 106 pounds and subsisted "[b]asically [on] Ensure."

         The victim's son, Phillip Sweeney, [2] had visited the victim in the summer of 2014 on approximately ten separate occasions. The victim was staying at Defendant's home. Phillip described his father as a proud man who was sometimes hesitant to ask for help. He last saw his father on Thanksgiving in 2014, approximately three weeks prior to this incident, at the home of his other sister, Patricia. Phillip described his father as "full of joy, " and witnessed him walk, eat, and drink without assistance. The victim was wearing adult diapers at the time but was otherwise walking without assistance.

         The victim's grandson, Jakorean Sweeney, was fifteen years old at the time of trial. Jakorean lived at Defendant's apartment when the victim was taken away in an ambulance. Jakorean remembered that the victim stayed at "Markesha['s] house" before coming to stay at Defendant's apartment. Jakorean helped to care for the victim by helping him take a bath, change his diaper, and dispose his diapers in the trash. Jakorean recalled that sometimes the victim would change his own diaper and leave it by the door for someone to take out to the trash. The victim was "walking" and would "be upstairs in his room and he w[ould] come downstairs sometimes." Jakorean claimed that Defendant, his mother, cooked three meals a day for the victim. According to Jakorean, the victim's bedroom was clean when the police came and there was no feces or soiled diapers on the floor. In fact, he claimed that the bed "had sheets on it every day." Jakorean also testified that the victim could walk but "walked slow" because he had pain in his legs.

         Charline Pitt also lived at the apartment with Defendant and the victim. She referred to the victim as "daddy." Ms. Pitt explained that the victim did not live there all the time and had been there since shortly after Thanksgiving. Ms. Pitt recalled that everyone in the apartment helped to care for the victim by "washing clothes" and making sure the victim was eating. Ms. Pitt recalled that the victim was able to get around independently but that he moved slowly, coming downstairs to go outside and smoke or sit on the porch or on the couch. The victim had his own cell phone, a television, a few chairs, and baskets. The victim kept sheets on his bed until they were dirty, and he would throw them in the hallway for someone to wash.

         The victim died on February 9, 2015. The jury was informed that his death was unrelated to the proof at trial. At the conclusion of the proof, the jury found Defendant guilty of one count of gross neglect of an impaired adult and one count of neglect of an impaired adult. The trial court merged the two counts and sentenced Defendant as a Range I offender to five years in incarceration for the conviction for gross neglect.

         After the denial of a motion for new trial, Defendant initiated a timely appeal.


         I. Constructive Amendment of the Indictment

         Defendant argues on appeal that the trial court committed plain error by constructively amending the indictment in its charge to the jury. Specifically, Defendant argues that the definition of neglect used by the trial court in the jury instructions incorporated the concept of abuse, which is not an element of the offense, thereby lowering the burden of proof for the State. The State insists that Defendant is not entitled to plain error review because the trial court did not breach a clear and ...

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