Court of Criminal Appeals of Tennessee, Nashville
October 16, 2019
from the Criminal Court for Davidson County No. 2015-B-1508
Monte Watkins, Judge
Weems, Defendant, was indicted in a two-count indictment for
aggravated child neglect and felony murder in connection with
the starvation death of her six-month-old child. The jury
found Defendant guilty of aggravated child neglect and
reckless homicide. Defendant filed a Tennessee Rule of
Criminal Procedure 29(e) Motion for Judgment of Acquittal
("the Motion") as to both counts. Following a
hearing, the trial court granted the Motion in part, set
aside the guilty verdict for aggravated child neglect, and
entered a judgment of acquittal. The court denied the Motion
as to the reckless homicide verdict and entered a judgment of
conviction. The State appeals claiming that the trial court
erred in granting the Motion. After a thorough review of the
record and applicable law, we affirm the trial court's
judgment of acquittal for aggravated child neglect.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Herbert H. Slatery III, Attorney General and Reporter; James
E. Gaylord, Senior Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Pamela S. Anderson, Assistant
District Attorney General, for the appellant, State of
Michael A. Colavecchio, Nashville, Tennessee, for the
appellee, Shalonda Weems.
L. Holloway, Jr., J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr. and Timothy L. Easter, JJ.,
L. HOLLOWAY, JR., JUDGE
and Procedural History
child, Kar'mn J'Qua Weems ("Kar'mn"),
was born on September 5, 2004. Defendant and Kar'mn were
discharged from the hospital on September 7, 2004. Kar'mn
died on March 3, 2005. Defendant was interviewed by
detectives of the Metropolitan Nashville Police Department
(MNPD) on March 3, 2005, October 21, 2005, and July 7, 2014.
23, 2015, more than ten years after Kar'mn's death,
the Davidson County Grand Jury indicted Defendant for
aggravated child neglect in violation of Tennessee Code
Annotated section 39-15-402 and first degree felony murder
during the perpetration of or attempt to perpetrate
aggravated child neglect in violation of Tennessee Code
Annotated section 39-13-202(a)(2). The case was tried by jury
on September 25 and 26, 2018. The trial court denied
Defendant's motion for judgment of acquittal at the close
of the State's proof, although the trial court expressed
concern about "the knowingly aspect" of both
counts. At the conclusion of the proof, the case was
presented to the jury on charges of aggravated child neglect
and second degree murder. The jury returned a guilty verdict of
aggravated child neglect and reckless homicide, a
lesser-included offense of second degree
timely filed a written Motion for Judgment of Acquittal
pursuant to Tennessee Rule of Criminal Procedure 29(e)(1).
The Motion was argued on October 31, 2018. In its oral
ruling, the trial court noted that it had not accepted the
jury's verdict in its role as thirteenth juror. The trial
court found that there was insufficient evidence to prove
that Defendant acted "knowingly" and set aside the
verdict of guilty of aggravated child neglect. The court
denied the Motion as to reckless homicide and confirmed the
written order entered December 5, 2018, the trial court
After careful consideration in observing the evidence in the
light favorable to the prosecution, the [c]ourt does not
accept the verdict in [c]ount [o]ne for insufficient evidence
regarding Defendant's mens rea of "knowing"
element of T[ennessee] C[ode] A[nnotated] section 39-15-401
and [section] 39-15-402.
of Trial Testimony and Evidence
of Detective Joseph L. Cooper
Detective Joseph L. Cooper, who was assigned to investigate
Kar'mn's death, was the first witness called by the
State. By the time Detective Cooper arrived at
Defendant's home, Kar'mn had been transported to
Vanderbilt University Medical Center ("VUMC"). The
detective proceeded to the hospital where he spoke to a
social worker who identified Defendant as Kar'mn's
Cooper spoke with Dr. Olivia Titus who had spoken to
Defendant. According to the information obtained from
Defendant by Dr. Titus, Defendant "had been sick for the
last couple of days with the flu and was recovering from that
illness." Kar'mn "had also been ill and
Defendant had been giving [her] Children's Tylenol."
Defendant "fed [Kar'mn] formula the night before . .
. around [eleven] o'clock" and put Kar'mn to bed
right after she fed her. Defendant checked on Kar'mn
around 3:00 a.m. and 5:00 a.m., and Kar'mn "appeared
to be normal at that point." Defendant woke up around
6:30 a.m. and checked on Kar'mn around 7:15 a.m., at
which time Kar'mn was lying on her back "barely
breathing" and looked "blue and weird."
Defendant telephoned her mother and told her Kar'mn was
not breathing. Defendant's sister, who was present at
Defendant's mother's home, called 9-1-1.
Cooper obtained medical releases from Defendant and contacted
the Department of Children's Services concerning
Defendant's two other children. He obtained consent to
search Defendant's home where he took photographs and
collected various items, including "a blanket, an infant
bed cover, a circular infant pillow, Kleenex, a bottle with
formula, an empty baby bottle, a white shirt[, ] and a[n]
infant bed sheet." Detective Cooper next interviewed
Defendant. The audio recording of that interview was played
for the jury, and the photographs taken by Detective Cooper
were published to the jury. Detective Cooper also interviewed
Laura Owens, the manager of Creative Academy, the daycare
provider for Kar'mn and Defendant's two other
Cooper interviewed Defendant again on October 21, 2005, and
questioned her about whether the formula she gave Kar'mn
had been watered down. He told Defendant that the autopsy
report listed the cause of death as starvation and
malnutrition. Detective Cooper said Defendant did not seem
concerned or surprised by the autopsy findings. The digital
versatile disc ("DVD") and transcript of the March
3, 2005 audio interview and the October 21, 2005 audio/video
interview were admitted for identification.
cross-examination, Detective Cooper stated that the medical
examiner told him on March 7, 2005, that the manner of death
had been classified as a homicide and that Kar'mn had
been "suffering from pneumonia and a thyroid
of Laura Owens
Owens testified that she was the owner of Creative Academy
and had worked there for forty-five years. She said
Kar'mn had attended Creative Academy in 2005 and that she
had talked to the police about this case shortly after
Kar'mn's death. She said Creative Academy does not
provide formula for infants and that the parents are expected
to prepare bottles at home and bring them for their children.
She said Defendant brought water and juice for Kar'mn,
and she told Defendant that "[Defendant] was feeding her
baby wrong" and that the "baby wasn't supposed
to have juice and water, the baby should have a
formula." She said the workers at Creative Academy would
typically feed an infant a bottle every two to three hours.
Ms. Owens said that Defendant kept her three children
"all clean and neat." Ms. Owens was shown two
autopsy photographs of Kar'mn. She said Kar'mn never
came to Creative Academy looking like she did in the
photographs and that, if she had, "we would have had to
report that." On cross-examination, Ms. Owens agreed
that Defendant brought bottles filled with formula to
Creative Academy. Ms. Owens said that Defendant was never
told she could not bring Kar'mn because she was not
providing enough formula. When questioned about the last time
she saw Kar'mn, Ms. Owens answered:
Well, the last time I saw her was in her little pink boxers
there, but before she was trying to bring her to the daycare,
the baby was sick, and we did not accept her, and then the
next thing we knew, the baby had died.
Owens thought the last day she saw Kar'mn was Friday
because "like two or three days later the baby was
of Detective Selene Julia
Julia, a detective with MNPD, assisted Detective John Grubbs,
who in 2013 was assigned to investigate Kar'mn's
death. As part of the investigation, she assembled and
reviewed the VUMC medical records. Without objection, the
records were admitted into evidence, and Detective Julia
testified from them.
record for September 7, 2004, showed that Kar'mn was born
on September 5, 2004. She weighed six pounds, ten ounces.
Defendant was advised how to enroll in WIC and TennCare.
Defendant also enrolled in the Healthy Start Program that
included home visits by nurses. She was already receiving aid
from Families First and food stamps. Defendant was provided
pamphlets and instructed about bottle-feeding and
breastfeeding. Defendant elected to breastfeed, and the nurse
reported that the baby "latched." Defendant
demonstrated to medical personnel that she could properly
feed Kar'mn, and the nurses reported that Kar'mn
tolerated feeding well before they were discharged on
September 7, 2004.
September 10, 2004, Kar'mn presented to VUMC for a
newborn follow-up visit. Defendant reported that she had been
breastfeeding for three days and that Kar'mn was spitting
up after feeds. The medical record stated under
Breast Feeding: per mom, latches well, unsure whether milk
has come in, reports that she can see milky fluid going into
infant's mouth, however her breast have not started to
feel engorged. Does not have breast pump. Formula feeding:
Brand of formula: Soy (?) in purple and gold can. WIC
Kar'mn was found to be jaundiced and dehydrated.
Defendant was instructed to give Kar'mn soy formula.
September 13, 2004, Kar'mn presented to VUMC for the
second newborn follow-up visit. The report showed that
Kar'mn had been feeding and stooling well since her last
appointment and had gained five ounces. Her "general
appearance" was "well[-] developed,
well[-]nourished; alert and vigorous."
September 23, 2004, Kar'mn was presented to VUMC for her
two-week checkup. She weighed 6.13 pounds. The notes from the
Interval history and ROS update: Kar[']mn has been seen
twice in newborn follow-up clinic for weight and bilirubin
checks. She has lost approximately [ten percent]
of her birth weight and has not shown any gain at this point.
Mom says that she takes [five to six ounces] every [two to
three] hours but on further questioning this seems unlikely.
Mom says that she sleeps through the night and really only
takes [three to four] feeds during the day. She is a vigorous
feeder and has no respiratory distress with feeds; takes them
in [ten to fifteen] minutes.
Mom has her Good Start with her today and can demonstrate how
to mix the formula correctly. With her last baby she admitted
to occasionally adding extra water to make the formula go
further, but denies doing that now.
from VUMC dated September 30, 2004, stated that the infant
"came in for a weight check today" and weighed six
pounds and eleven ounces.
November 24, 2004, the infant was presented to VUMC for her
two-month checkup. She weighed nine and a half pounds and her
"general appearance" was "well[-]nourished[, ]
alert[, ] and vigorous." The "impression" was
a well infant, normal growth and normal development. The
"plan" was to "[c]ongratulate mom on
Kar[']mn's excellent growth. Mom has done an
excellent job given [her] young age, and having three babies
all under the age of [four]."
took the child to the VUMC Emergency Department on December
7, 2004, with complaints of a "five-day history of
diarrhea without emesis." The note said that she had a
viral illness causing diarrhea. The diagnosis was
"[e]nteritis without dehydration[, ]" and the note
stated no further "intervention" was
January 26, 2005, the infant presented at VUMC for a health
maintenance visit. She weighed 11.62 pounds and her
"general appearance" was listed as
"well[-]developed, well[-]nourished: alert and
vigorous." The "impression" was a well infant,
normal growth and normal development. Kar'mn received her
March 3, 2005 VUMC report made on the day of Kar'mn's
death listed the chief complaint as "apnea,
" after which the report stated:
HISTORY OF PRESENT ILLNESS: Kar['mn] is a
[five]-month-old female with no significant past medical
problems, who per mom was found in her crib this morning blue
and not breathing. Mom states that she was playful after
eating and drinking well yesterday. She gave her a dose of
Tylenol for her fever last night. She went to bed per usual.
This morning she went into her room to wake her up and she
found she was not breathing and appeared blue. She states
that she called her mother, who then called the police. Upon
EMS's arrival, they stated she was apneic with no
spontaneous respirations and no pulses. They intubated her,
placed an IO.En route they gave four rounds of
epinephrine and Atropine and had documented PEA on the
cardiac monitor. She had no pulses with CPR or without CPR.
The diagnosis was "[c]ardiopulmonary arrest." The
progress note stated:
Referred today by charge nurse regarding child's family
in need of support given fact child had just expired. I met
with mother, two grandmother[s] and several other family
members and provided support and crisis intervention.
The mother is [nineteen] years old and has two other children
ages [two] and [one]. The father of [Kar'mn] is in
prison. Mother asked that I locate Ramona Shelton, the
baby's paternal grandmother, at her workplace and ask her
to come here. I did reach the grandmother who did come and
provide support to the family. I did not ask the mother
questions about how she found child as detectives were
already involved at this point. I assisted in reaching
incarcerated family members via chaplains at the local
prisons. Karl Archibald, the baby's father[, ] was one of
these and he was able to talk with the mother and his mother
conclusion of the direct examination of Detective Julia, the
DVD of Defendant's March 3, 2005 audio interview was
played for the jury.
3, 2005 Audio Interview of Defendant
March 3, 2005 interview was conducted by Detective Cooper and
Detective Tom Bowden at VUMC. Defendant stated that, in
addition to Kar'mn, she had two boys both under the age
of three. She said Kar'mn's father had been in
custody for about six months. She said that on Wednesday,
March 2, she and her three children were at home all day. She
had been sick. She woke up close to noon, and the family
watched television and ate ice cream. She "gave
[Kar'mn] milk, cereal, and baby food. Then gave her a
water bottle, gave her a bath, and they laid down for a
nap" around 2:00 p.m. Kar'mn woke from her nap
around 4:40 p.m. They watched television, and she said
Kar'mn "roll[ed] all over the bed." Defendant
said that Kar'mn was "normal all day" and that
"she ate well." She fed Kar'mn a bottle around
6:00 p.m. and a bottle with milk and cereal around 8:30 p.m.
They watched American Idol and then went to bed around 9:15
p.m. Kar'mn was in her crib, and the two boys were in bed
with her. She checked on Kar'mn around 1:00 a.m. She went
to the bathroom around 3:00 a.m., and Kar'mn was still
sleeping so she went back to bed. She woke up at 6:30 a.m.
but went back to bed. She got up again around 6:50 a.m. and
went to the kitchen to fix the two boys some orange juice.
She then checked on Kar'mn.
following dialogue concerned what occurred after she checked
DETECTIVE COOPER: Okay. So, you run in there and found her
and she didn't appear to be breathing?
DEFENDANT: She was like barely, barely, barely, (demonstrates
shallow breathing) like a very little teeny breath,
DETECTIVE COOPER: And, uh, she started taking on a blueish
color? DEFENDANT: She looked just funny. I don't know,
she-DETECTIVE COOPER: Okay. Well, I understand. We, [k]now
she laying on her, how was she laying? On her back? Face up?
DEFENDANT: Um, she had flipped on her back. She be rolling in
DETECTIVE COOPER: Okay. So when you put her to bed she
normally sleeps on her, on her?
DEFENDANT: On her back. Well, yeah, on her back.
DETECTIVE COOPER: When, when you, uh, checked on her like at
five o'clock, was she on her back or on her stomach?
DEFENDANT: On her back.
DETECTIVE COOPER: Okay. And then when you went in there and
checked her at seven-thirty she was, she was on her back.
DETECTIVE COOPER: Okay. Uh, so you called your mother?
DETECTIVE COOPER: Okay. Um, is there anything else that you
can think of? Is, was there anything you can think of, was
there anything about the child yesterday that, sort of, you
thought was unusual or odd about, about her behavior or the
way she was breathing, or?
DEFENDANT: She was fine. I don't understand.
DETECTIVE COOPER: So, and when was, when was the last, the
last time that we, that she was fed? I know you gave her a
bottle at eleven. Did you give her another one at three?
DEFENDANT: No, she wasn't up at three. I said I checked
on her at three.
of Dr. Amy Hawes
Hawes, a forensic pathologist employed by the Knox County
Regional Forensic Center, was qualified as an expert in
forensic pathology. She explained that part of her duties as
a forensic pathologist is to determine and report on the
cause and manner of death. She stated that the cause of death
is "the injury or illness that sets into motion the
change of events that lead to death" and that the manner
of death "refers to the circumstances in which someone
Hawes said she performed an external examination, which
showed that Kar'mn weighed ten and a half pounds, her
lips were cracked and dried, her skin was slightly doughy,
her eyes were slightly sunken in her head, her hair was
sparse, and her anterior fontanel was slightly sunken. She
opined that her examination showed physical characteristics
that were consistent with a child suffering from dehydration
Hawes said that she performed an autopsy which she described
as "an extensive surgical procedure where you examine
the body" and document the findings. Dr. Hawes said the
autopsy revealed that there was sparse fat around
Kar'mn's bowels, abdomen, and adrenal glands, which
was indicative of prolonged malnutrition. The
gastrointestinal tract from the stomach to the rectum was
empty. A test of the vitreous fluid from the eyes indicated
that Kar'mn's sodium and chlorine levels were high,
Hawes's diagnosis was:
[Kar'mn] had severe dehydration. There was evidence of
acute and chronic malnutrition, as evidenced by, there was
the absence of food and feces in waste products, in other
words there was no feces in the colon. The thymus gland [was]
shrunken or atrophied[.]
She had atrophy or loss of a lot of the fat around some of
her internal organs, and she had fat in her liver cells where
normally in an infant there really should not be any fat in
the liver cells.
response to hypotheticals presented by the State, Dr. Hawes
opined that her autopsy findings were not consistent with a
child that "had been fed cereal, milk and applesauce
within [twenty-four] hours of death . . . unless there was
some indication that this child was having a lot of
diarrhea." She stated that, even with diarrhea, she
"would expect to see something at least in the lower
gastrointestinal tract[.]" Dr. Hawes opined that her
findings would not be consistent with a child who had been
fed formula a few hours prior to being found unresponsive and
that she would not expect a child "who had nothing in
its gastrointestinal tract" to be "rolling back and
forth in the bed and acting normal" only hours before
the child died.
on her external examination and the autopsy, Dr. Hawes's
opinion was that the cause of death was "dehydration and
malnutrition" and that a contributing cause of death was
"interstitial pneumonitis." She said the
"manner of death was classified as homicide" and
the "circumstances of death were neglect."
cross-examination, Dr. Hawes agreed there were no signs of
trauma. She also stated that she would "never make the
diagnosis of dehydration just based on an external
examination alone." Concerning any history of Kar'mn
being sick shortly before her death, the following dialogue
occurred during defense counsel's cross-examination of
Q. So you wouldn't know if the child had been sick the
A. I wasn't provided that history, so, again, as part of
an autopsy, and determination of final cause of death, we ask
for history, and that was not provided to me.
Q. Or even just days before obviously, since you didn't
have something from the week before, you didn't have
anything from the few days before?
A. Not medical records, no. I had a history from other
people, but not medical records, so.
Q. Right. So you don't know if the child had been sick on
Monday? The child died on Thursday, you don't know if the
child had been sick on Monday?
A. I wasn't provided with that information. I was told
that she had a bit of a fever, so.
Q. But you didn't have any medical records about that
though to compare?
A. Right, but there's a difference again to just be clear
between someone being sick and having medical records,
obviously someone can be sick and you don't have medical
records necessarily, we don't go to the doctor every time
we're sick. But to clarify, yes, I was told that the
child did have a fever I believe a day or so prior to death,
but no, I don't have any medical records from that time.
Q. So you couldn't consider any medical issues the child
had a few days or even a week prior to the baby's death
in your autopsy conclusions?
A. Well I would consider it because, again, we elicit
history, and so I take in the account any history that
I've been provided, so yea, I would take it into account.
Q. All right. But you didn't have any -- you only had
some information that the child may have had a fever a few
Q. That's the only recent, as in a week or so before the
child's death, that you had for purposes of preparing the
A. To the best of my recollection, it's been many years
ago, but to the best of my recollection, yes.
Q. Now, if a child or a person for that matter consumes or
has a liquid or food put in their mouth, and even baby
swallows a little bit of it, but either spits it up in the
case of where they just had it in their mouth or if they
throw it up, if it got down into their stomach, you
wouldn't be able to see that in the autopsy if it had
happened a day or two before?
autopsy report from which Dr. Hawes testified was entered as
an exhibit. The "final anatomic diagnosis" of the
autopsy report showed:
A. Severe dehydration.
B. Acute and chronic malnutrition:
1.Absence of food and waste products in gastrointestinal
2.Marked involution of thymus gland.
3.Atrophy of visceral fat.
4.Macrovesicular steatosis of the liver.
autopsy report stated the cause of death was
"[d]ehydration and malnutrition," the contributing
cause of death was "[i]nterstitial pneumonitis,"
the "manner of death was "[h]omicide," and the
circumstances of death was "[n]eglect." The infant
weighed ten and a half pounds at the time of the autopsy.
of Dr. Timothy Robert
Timothy Robert, Chief Science Officer of Aegis Corporation
(Aegis), explained that Aegis is a laboratory that primarily
performs mesenteric toxicology testing. Dr. Robert
explained that, in the past, Aegis performed postmortem
toxicology testing for the Davidson County Medical
Examiner's Office and medical examiner offices in other
counties in Tennessee. In March of 2005, the Davidson County
Medical Examiner's Office submitted a specimen of
vitreous fluid for testing. Aegis analyzed the fluid to
measure sodium, chloride, and blood unit nitrogen. The
results were sent to Dr. Hawes at the Davidson County Medical
Examiner's Office. On cross-examination Dr. Robert agreed
that the Aegis' laboratory was not certified until 2008.
of Detective John Grubbs
John Grubbs testified that he had worked at MNPD for twenty
years. He explained that, in 2013, he worked in the Youth
Services Division where he investigated "child neglect
and deaths of children twelve years of age and under."
He said that, in 2013, his superior officer assigned
Kar'mn's case to him. Detective Grubbs began by
reviewing everything in the case file, including the two
recorded interviews Detective Cooper had with Defendant. He
testified that he noticed that Defendant displayed a lack of
emotion when Detective Cooper told her the cause and manner
of death. He said that there were discrepancies in the times
during the day when she fed Kar'mn. Detective Grubbs
interviewed Defendant's mother, Velina Dixon, and
Defendant's sister, Shameka Dixon. He reviewed the phone
records of Defendant and listened to the 9-1-1 call. He said
there was a call from Defendant's phone to her
mother's phone at 7:38 a.m. and that Defendant's
sister called 9-1-1 at 7:39 a.m. He said Defendant stated
that she woke up around 6:30 a.m. but went back to bed and
woke up again at 7:15 a.m. and went to check on Kar'mn.
Defendant stated that she did not realize there was something
wrong until around 7:30 a.m.
Grubbs contacted Defendant and arranged for another
interview. Detectives Grubbs and Julia interviewed Defendant
on July 7, 2014. After the interview, Detective Grubbs
obtained an indictment and arrested Defendant. As she was
being arrested, a male opened the door and asked what this
was pertaining to, and Defendant answered "that baby
cross-examination, Detective Grubbs agreed that no other
investigator from MNPD had contacted Defendant during the
nine-year time span since the last interview. He said
Defendant claimed in the 2014 interview that Kar'mn had
vomited but that vomiting never came up during the March 2005
interview. When questioned about Defendant saying Kar'mn
had thrown up in the second 2005 interview, Detective Grubbs
said, "She may have. I don't remember on the
2005." The following dialogue is from defense
counsel's cross-examination of Detective Grubbs
concerning Defendant's October 21, 2005 interview:
Q. . . . Now, would you be surprised if she had mentioned if
[Defendant], in the few days prior to March 3, 2005, had
mentioned she was sick seven times?
A. If it was seven times, it was seven times, I didn't
count. I didn't count the number of times she mentioned
she was sick.
Q. But you wouldn't disagree with that at this point?
Grubbs agreed that he was in the courtroom when Ms. Owens
testified that she had not allowed Kar'mn to come to
daycare because she was sick a few days before her death.
Concerning Kar'mn being sick, Detective Grubbs also
agreed that the September 10, 2004 medical record indicated
that Kar'mn had problems feeding and was spitting up,
that the September 13, 2004 medical record showed that she
was dehydrated, and the December 7, 2004 medical record
showed that Defendant took Kar'mn to the emergency room
with a five-day history of diarrhea. Detective Grubbs agreed
that Defendant stated numerous times during ...