### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs S eptem

ber 19, 200 1 STATE OF TENN ESSEE v. CAROLY N A. WOOSTER Appeal from the Criminal Court for Dickson County No. CR-4134 Leonard W. Martin, Judge

No. M2000–02992-CCA-R3-CD - Filed Mar ch 18, 2002

The defendant, Caroly

n A. Wooster, was convicted of agg ravate d child abuse and n eglec t, a Class A felony. The

trial court imposed a sentence of 15 y ears. In this appeal, the defenda nt asserts that (1) the evide

nce was insuffic ient to support her conviction and (2) the trial court’s failure to give an augmented

unanimity

instructi on was re

versible error. The judgment of the trial court is affirmed. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
G ARY R. W ADE , P.J., deliver ed th e opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. John Edward Herbison, Nashville, Tennessee, for the appellant, Caroly n A. Wooster.
Paul G. Summers , Attorney Genera l & Repor ter; Eliza beth T. Ry

an, Assist ant Attor ney Genera l; and Suzanne Lockert, Assistant District Attorney General, for the appellee, the State of Te nnessee. OPINION
At approximately 7:00 A.M. on March 5, 1998, the defendant brought the victim, a newborn girl, t o Horizon Medical Center in Dickson. The defendant explained that she had given birth a t home the night before and desired to offe r the infant for adoption.
Dr. Valerie Beck, a pediatricia n at Horizon Medical Center, examined the infant in the labor and deliver

y a rea at a bout 7 :15 A.M. Because the victim’s heart rate w as only about 70 beats pe r minute, Dr. Bec

k classif ied the vi ctim’s co nditio n as criti c al. She explained that a newly born, crying infant should have a

heart rate of between 130 and 140 bea ts per minute. Dr. Beck observed that the victim

was cy anotic and grunting, indicating that the victim was in distress. She determined that there was a substantial risk of death.
At trial, D r. Beck tes tified that the low heart rate was due to a low body temperature. According to Dr. Beck, theheart rate drops when exposed to cold temperatures, impairing the heart’s-2-

ability to operate cor

rectly. When neither

a digital thermometer

or a glass thermometer registered a body temperatur

e, Dr. Beck

made a diagnosis of severe hy

pothermia. The victim was placed under a radiant warmer with heat ed saline bags wr apped in w arm towels to raise her temperature. By

7:40 A.M., the baby ’s temper

ature ha d risen to 97 degr ees. Helen Murphy, a re gistered nurse testified that the defendant

claimed t hat she ha d given birth at her home on the pre viou s evening and had b een assi sted by her boy friend a nd two nur ses. According to Ms. Murphy, the defenda ntclaimed t

hat she ha d visited a n obstetr ician on s ix separa

te occasions before

moving to

Tenness ee. The

defenda nt i n formed Ms. Murphy that he r water had broken between 10:30 and 11:00 P.M. and that her contractions began immediately thereafter. She expl ained that she came to the hospital in order to offer the infant for adoption. B ecause the defendant claimed that she was not

experiencing an

y bl eeding , Ms. Murphy initially suspected that the defenda

nt might n ot have g

iven birth to the baby. Because her suspicions were further aroused when she discovered that the defendant was not producing breast milk and had declined a phy sical examination, Ms. Murphy asked the Dickson Police De partment to investigate. Later, the def

endant con sented to a physica l examination. After being examined, she was interviewed

by Detec tive Mike Fleaner of the Dickson Police Department a nd Rosie Skinner of the Department

of Childre

n’s Servi ces. The

defenda nt again claimed t

hat she ha d given birth at home and that her boyfr

iend and two nurses had assisted in the deliv ery. Dur ing the interview, the defendant expressed particular concer n about being late for work.
After interviewing the defendant, Detec tive Fleaner and Ms. Skinner trav eled to t he defendant’s residence to question her boyfriend, Jason Huler. Ac cording to Detective Fleaner , Huler stated that he was unaware that the defendant

was pregnant and had not helped in any delivery. Af

ter interviewing Huler, Detective Fleaner drove to the defendant’s place of employment and questioned her a second time. When he arrived, the defendant was in her vehic le, a camper, which was parked in her em ploy er’s lot.
After recei ving pe

rmission to

search the camp er, Dete

ctive Fl eaner f

ound a shir

t that th e defendant had used to clean the infant. Upon further examination at the police depa rtment, th e defendant admitted that

she was a lone at the time of b irth, and had plac ed the victim under t he house during t he cours e of the n

ight.
At trial, the defendant confirmed that she was alone w hen she gave birth to a baby girl at her home at approximately 6:20 P.M. on March 4, 1998. Acc ording to the defendant, her water broke two and a half day s before the delivery . She held and breast fe d the baby until about 10:00 P.M., when he r b oyf

ri en d, wh o w as un aw ar e o f h er pr eg na nc y, was scheduled to return from work. The defendant stated tha

t she wra pped th e infant in a shirt, placed her in a cardboard box, covered her with two towels, and then placed the box in a storage area underneath her house.
The defendant acknowledged that she heard the baby

cry around 1:00 A.M., but

did not check on her. After hearing whimpering at 4:00 A.M., the defendant claimed that s he went to th e stor age-3-

area, held the infant for a few minutes, and then placed he r back in the box . Even though she detected that the infant was cold, the defendant conceded that she returned to the house, leaving the baby outside. The de

fendant estimated that about one and a half hours later, she came back to the baby and took her intoa camper that was parked outside. The def endant testified that she cleaned the baby and a

ttempted to breast feed her while in the camper. She state d that when the baby

would notnurse, she took the infant into her residence and at 6:45 A.M., she drove her to Horizon Medical Center.
I The def endant con tends that the evidence was insufficient to support her conviction for aggravated

child abuse and neglect because the state failed to prove that the victim suffered

serious bodily injury. On

ap peal, of course, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which might be drawn therefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 ( Tenn. 197 8). The c redibilit y of the witne sses, the

weight to be giv en their te st im on y, and the r

econcil iation of c onflicts in the proof are matters entrusted to the jury as the trier of fact. By rge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is ch allenged, the relevant question is whether, after revie wing the evidence in the light most favorable to the state, any rational trier of fact could have found the e ssential elements of the crime beyond a reaso nable dou

bt. Tenn. R. App. P. 13 (e); State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the cred i bility of the witnesses, the weig ht and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. St ate , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of g uilt removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defe ndant bears the burden of showin g that the evidence was le gally insuffic ient to sust

ain a gu ilty verdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).
Tenness ee Code A

nnotated section 3 9-15-402

providesin pertine

nt part a s follows: (a) A person commits the offense of aggra vated child abuse and

neglect who commits the offense of child abuse and neglect as defined in § 39-15-401 and: (1) The act of abuse results in serious bodily injury to the child; * * * (b) A violation of this section is a Class B felony; provide d, that, if the abused ch il d i s s ix (6 ) ye ar s o f a ge or le ss , t he pe na lt y is a C la ss A fel on y.
Tenn. Code Ann. § 39-15-402(a)(1), (b). Child abuse and ne gl ec t o cc ur s w he n a pe rs on “k no wi ng ly, other than by acc idental means, treats a child under eightee n (18) years of

age in such a

manner as to i nf li ct in

ju ry or neglects such a child so as to adversely affect the child’s health and welfar e.” Tenn. Cod

e Ann. § 39 -15-401( a). Seri ous bodily injury is define d as follo ws: “Seriousbodily

injury” means b odily

injury which inv olves: (A) A substantial risk of death; (B) Pro tracted

unconsc iousness;-4- (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or

substantia

l impairme

nt of a fu

nction of a bodily member, organ, or mental faculty [.]
Tenn. Code Ann. § 39-11-106(a)(34). “‘Bodily injury’ includes a c

ut, abrasion, bruise, b urn or disfigu rement; physical pain or tempora ry illness or impairment of the func tion of a bodily member, organ, or mental faculty [.]” Tenn. Code Ann. § 39-11-106(a)(2). Here, the defendant chose to g ive birth without medical assistance. Four hours after birth, the defendant wrapped the newborn victim in a shirt, put her in a box, and placed the bo x in a stor age area under her house for ap proximately sev en and a half hours. The low

tempera ture tha t night, according to a reading taken by the Dickson Water Plant, was twenty-five de grees. The defendant acknowledged

that she w as awar

e her actions coul d cause h arm to the victim and admitted that

her infant wa s cold to the touch du ring he r 4:00 A.M . visit. Some

three hours later, thevictim’s body temperature would not ev en register on hospital equipment. A medical expert confirmed that the victim faced a substantial risk of death. Thu s, there was evi dence of each of the elements of the crime. I n our view , the jury

acted w ithin its pr

eroga tive in re turning a verdict of guil

t.
II The defenda

nt ne xt contends that the trial court’s instruction on the offense of agg ravated child abuse and neglect deprived he r of the right to a unanimous jury verdict. A defendant has the fundamental constitutional right under Tennessee law to a unanimous verdict be fore a conviction for a criminal offense may

be imposed. State v. Shelton , 851 S.W.2d 134, 137 (Tenn. Crim. App. 1993); State v. Brown , 823 S.W.2d 5 76, 581 (T enn. Crim A pp. 1991) ; see also State v. Brown , 762 S.W.2d 135, 137 (Tenn. 1988). Protection of this right may r equire special precautions by the trial court to ensure that the jury doe s not reach a "patchwork verdict " based

on diffe rent off enses. State v. Forbes , 918 S.W.2d 431, 4 45 -46 (Tenn. Crim. App. 1995). When the proof shows the commission of multiple acts with multiple results, the results being separate criminal offenses, and there are insufficient counts in the charging instrument to accommodate all of the offenses shown, the usual precaution t

o assure j ury

unanimity

is to require the election of offenses. State v. Burlison , 501 S.W.2d 801, 8 04 (Tenn . 1973); State v. Clabo , 905 S.W.2d 197, 205 (Tenn. Crim. App. 1995); Shelton , 851 S.W.2d at 137. Where there is only one offense resulting from multiple actions of the defenda nt, however, the proper precaution is to give the jury an aug

mented instruction relative to the unani mit y

requirement. See State v. Phillips , 924 S.W.2d 662 (Tenn. 1996) ; Brown , 823 S.W.2d at 581-83. Here, th e trial c ourt instr

ucted the jury as follow s:
For you to find the

defenda nt guilty of this off

ense, th e s tate must have proven bey ond a rea sonable d oubt the e xistence o f the foll owing e ssential e lements: (1) [t]hat the defe

ndant did k

nowingl y, o ther tha

n by accide ntal mean s, treat a c

hild in such a manner as to inflict injury; or neg lect a child so as to adversely affect the-5-

child’s health a

nd welfa re; and t he act of abuse or neglect resulte d in serious bodily injury to the chi ld; and tha

t the child was six y ears of age or less.
The defendant complains that this instruction invited the jury to reac h a “patchwork ve

rdict” w ith some jurors finding that the defendant committed an act of abuse and

others finding she committed an act of neglect.
As pointed ou

t by the state , this cas e is analogous to the holding in State v. Lemacks , 996 S.W.2d 166 (Tenn. 1999). In L emacks , the defendant was charged with DUI and claimed that he was not driving his car when the accident occurred. The trial c ourt instructed the jury that it could find the defendant guilty

if it found that he was driving while intoxicate d or that h

e had all owed his friendto drive while intoxicated. The defendant argued tha t the instruction deprived him of the right to a unanimous jury verdict. Our supreme court

affirmed his conviction, ruling that the trial court properl y charged the jury

on both theories of the defendant’s guilt. Our high court held that “ [t]he right of jury unanimity

has neve r required mor e than a general verdic t in cases where only one offense is at issue based upon a single criminal occurrence.” Id. at 171. Further, the court stated that “where the [s]tate seeks to prove one crime arising from one e vent, we may pr

esume that the jury’s general verdict was unanimous.” Id.
In our view, no "real potential" for a non-unanimous ver dict exist s. The defendant was charged withonly one offe nse resulting fr

om a sing le act, th at of expos ing a newborn ch ild to below freezing temperatures for as many as seve n a nd a half hours. Under these circumstances, a n au gm en te d i ns tr uc ti on on th e u na ni mi ty r eq ui re me nt wa s n ot ne ce ss ar y. Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE