IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 11, 2015

STATE OF TENNESSEE v. OTIS QUIRINO LOYOLA, SR.

Appeal from the Circuit Court for Montgomery County

No. 41201263 John H. Gasaway, III, Judge

No. M2014-01621-CCA-R3-CD – Filed May 18, 2015

The defendant, Otis Quirino Loyola, Sr., appeals his Montgomery County Circuit Court 

convictions of aggravated child neglect and aggravated child abuse which resulted in an 

effective 20-year sentence to confinement. On appeal, the defendant challenges the 

sufficiency of the convicting evidence of aggravated child abuse and aggravated child 

neglect. Following our review, we affirm the judgments of the circuit court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and ROGER A. PAGE, JJ., joined.

Eric J. Yow, Clarksville, Tennessee, for the appellant, Otis Quirino Loyola, Sr.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant 

Attorney General (Senior Counsel); John Wesley Carney, Jr., District Attorney General; 

and Kimberly Lund, Assistant District Attorney General, for the appellee, State of 

Tennessee.

OPINION

The indictment charged the defendant and his wife, co-defendant Penselynn 

Loyola, with one count each of the aggravated neglect and of the aggravated abuse of 

O.L., their infant son, who sustained significant, permanent injuries and debilities. 

Following a joint January 2014 bench trial, the trial court entered judgments of 

conviction against the defendant on both counts and imposed an effective sentence of 20 

years to serve in the department of correction. Ms. Loyola, the co-defendant, was 

convicted of aggravated child neglect. 

The evidence at trial showed that the victim was about five weeks old at the 
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time the offenses were committed in December 2011. The victim‟s eight-year-old sister 

testified that the defendant, who is her stepfather, hit the victim with a “flat” hand when 

the victim was in the defendant‟s lap. She testified that the assault occurred in her 

parents‟ bedroom and that the defendant was sitting on the bed. She said the assault 

caused the victim to cry.

Tyler Barrett, a child advocacy detective with the Clarksville Police 

Department (“CPD”), testified that he went to Vanderbilt Children‟s Hospital on 

December 19, 2011, in response to a call regarding an infant with a life-threatening 

injury. Upon arriving at the hospital, Detective Barrett learned that the victim had “a lot 

of swelling to the brain” and “some broken ribs on one side.” The detective was unable 

to locate or contact the victim‟s parents. A few hours after Detective Barrett left the 

hospital, he learned that the victim‟s parents were at the hospital, and the detective 

returned to the hospital.

In an interview with the detective, the defendant said that the injuries to the 

victim may have been caused by the couple‟s two-year-old sibling trying to lift the infant 

victim; the defendant previously had seen the two-year-old attempting to lift the infant. 

The detective testified that the defendant interspersed laughter amid his description of the 

two-year-old‟s attempts to lift the victim. The defendant said that his wife was the usual 

care-giver for the children. The detective exhibited to his testimony photographs he took 

of the victim in the hospital. Another CPD officer testified that in December 2011, 12 

steps and a landing separated the ground floor from the upper level of the defendant‟s

apartment and that the apartment was very clean.

CPD officer DeMone Chestnut testified that, during an interview with the 

defendant, the defendant denied causing the victim‟s injuries. The defendant told the 

officer that “he just goes to work” and is “not active in the raising of the kids.” Officer 

Chestnut said that the defendant‟s wife also denied causing the victim‟s injuries but 

admitted that she could have done so accidentally. The defendant‟s wife said that more 

than once she had dropped the victim in the bathtub while bathing him, that at least once 

he had fallen down the apartment stairs, and that the two-year-old had once struck the 

victim with a remote control device. Ms. Loyola told the officer that two of these 

incidents may have occurred on Thanksgiving weekend, 2011, when the victim was about 

nine days old. The officer mentioned that the child had seen a doctor on December 5, 

2011, and that no injuries were evident at that time. 

On cross-examination, Officer Chestnut agreed that his investigation 

revealed that Ms. Loyola typically performed all of the childcare functions in the 

household, that the defendant was away from the home working on a daily basis from 

about 5:00 a.m. until 5:00 or 6:00 p.m., and that Ms. Loyola did not tell the defendant 
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about the accidents. The officer stated that payday was a major event for the family 

because the defendant would take them shopping. The payday following the December 

5, 2011 well-baby doctor visit was December 15, 2011. Officer Chestnut agreed that the 

following weekend fell on December 17 through 18, that the defendant was not working 

that weekend, and that the injured victim went to the hospital on December 19.

Laura Anderson, a pediatric social worker at Vanderbilt Children‟s 

Hospital, testified that she met the victim‟s parents when they arrived at the hospital after 

the victim had been admitted. She described them as “real quiet, didn‟t ask a lot, you 

know.” She spoke with them again after Doctor Deborah Lowen had talked with them, 

and the defendant commented that Doctor Lowen was “so smart” in “that she figured out 

that someone had hurt the baby.”

Doctor Lowen, director of the center for child protection and well-being at 

Vanderbilt Children‟s Hospital, was accepted as an expert “in pediatric child abuse” and 

presented extensive testimony. She testified that, when the victim entered the hospital on 

December 19, 2011, he was five weeks old and was “very, very sick, very critically ill.” 

Doctor Lowen then spoke with the defendant, who told her that the victim began showing 

symptoms such as declining to eat and difficulty breathing on Saturday, December 17. 

Doctor Lowen testified that the defendant told her that he and his wife considered taking 

the victim to the hospital on Saturday, December 17, but decided against doing so and 

that the child mostly slept on Sunday.

Doctor Lowen testified that she had difficulty getting a detailed time line of 

the baby‟s symptoms from the defendant because some of his answers were not on point 

or were confusing. Doctor Lowen said she had a difficult time getting the defendant to 

understand that the victim had a serious brain injury that could be fatal. She testified that 

the defendant told her that he believed that the victim “was not right since birth, that there 

was something wrong with [the victim] from when he was born and that this was solely a 

manifestation, a sign of – that something was wrong with his baby.”

Doctor Lowen recalled that Ms. Loyola told the doctor that the victim had 

been sick “since the week prior.” She said the victim was “not latching on and breast 

feeding well at all.” The doctor said that both parents denied any accidents with the 

victim such as the victim‟s being dropped.

Doctor Lowen was concerned about the lack of promptness in having the 

child treated. She said that the victim exhibited “no tone,” was “very floppy,” and “had 

respiratory problems” that required the use of a breathing machine. The child‟s left eye 

was “not reactive,” and the pupil in that eye was dilated. She testified that the victim‟s 

lack of reactivity would have been obvious to a care-giver. In reviewing the radiological 
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scans, Doctor Lowen noticed a skull fracture and some fractures of ribs “one through four 

or six” on the victim‟s left side. She testified that the victim was “thin” and that his 

“head looked too big for his body.” Doctor Lowen stated the victim‟s weight on 

December 19 was very close to his birth weight, and he had lost weight since his 20-day 

checkup on December 5. The fontanel, the soft spot in the top of an infant‟s head, was 

“bulging outward,” and the lines between the bony plates of the infant‟s skull were 

separated. She testified that she “could feel where the skull fracture was” although no 

swelling was present at the fracture location. Doctor Lowen explained that the lack of 

swelling around the skull fracture indicated that the fracture was not “brand new.”

Doctor Lowen testified she diagnosed the victim as having sustained “child 

physical abuse.” She was “less clear” about whether an older brain injury – manifested in 

the disappearance of brain material – was the result of either neglect or abuse. She 

opined that the rib fractures required a squeezing pressure from the victim‟s front to his 

back. She stated, “These fractures are highly associated with abuse in the absence of a 

clear accidental history of that type of mechanism.”

The doctor testified that on December 20 she detected swelling of the 

victim‟s right knee. After obtaining x-rays, she found fractures of the “bottom end of his 

right thigh bone and the top end of his right shin bone.” She described these injuries as 

“corner fractures” that “occur when an extremity is yanked, pulled, or twisted.” The 

doctor denied that the treatment and diagnosis procedures at Vanderbilt could have 

caused these injuries.

Doctor Lowen reviewed the victim‟s birth records and found no indication 

of any event that would have resulted in the head and brain injury, but she testified that 

some anomalies occurred. She said that, first, the victim‟s umbilical cord was wrapped 

tightly around his neck at birth, causing the obstetrician to cut the cord so as to facilitate 

the delivery of the rest of the victim‟s body. Second, the victim had passed a “little baby 

stool” before birth, and when that happens, the fetus can inhale some of that material, 

causing lung problems upon the baby‟s taking his first large breath of air; the situation 

calls for suction of the airway before that breath is taken. This was done in the victim‟s 

case; however, postponement of the first breath of air resulted in the need to “jumpstart” 

his breathing. Doctor Lowen said that, according to the birth records, once the victim‟s 

breathing was jumpstarted, “he was fine, pinked up, heart rate was fine the whole entire 

time and he was fine enough that they didn‟t even take him to the newborn nursery, they 

left him with Mom and the OB nurse.” Doctor Lowen opined that it was “very unlikely” 

that a combination of these anomalies could have caused the victim‟s brain injury. She 

said he would have been “neurologically abnormal,” and the obstetrical personnel would 

have noticed.
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The doctor opined that the newer brain injury – the injury resulting in the 

swelling of the fontanel – was the result of abuse that occurred within the week preceding 

the victim‟s hospital admission. She opined that the history of the victim‟s being ill for 

three days would be consistent with the occurrence of the newer brain injury.

Doctor Lowen testified that the brain injuries had caused 

neurodevelopmental delays and that the victim would never be “„normal‟” in a 

“developmental way.” She stated that she recently had observed the victim, age two at 

the time of trial, and that he was not performing the normal functions of a two-year-old. 

He is mostly blind because “the areas of the brain that process his vision no longer are 

there.” The victim has a seizure disorder and is fed “via a G tube, a tube in his stomach.” 

She said the victim cannot “roll from his back to this tummy and he cannot sit 

independently, he cannot feed himself at all.” She noted he requires “total care” but 

“does smile,” “laughs a little bit,” and “likes to be touched.” The doctor described his 

deficits as basically permanent, stating that the victim “will never walk.”

Doctor Lowen opined that the skull fracture resulted from a single blow, 

that one of the rib fractures may have been newer than the others, and that the leg 

fractures occurred at a different time than the rib fractures. The doctor believed that 

dropping the victim or striking him with a remote control device would not have caused

the “totality” of injuries. She stated that the injuries will ultimately cause the victim‟s 

death from pneumonia or infection resulting from pneumonia or from “unrelenting 

seizures.” 

Doctor Lowen further opined that, in addition to the injuries sustained by 

the victim, he had also been neglected. On cross-examination, Doctor Lowen explained a 

reference to “two areas of old infarc” in her report and said that the “infarcs” are areas of 

the brain that died through insult that could have been sustained before or during 

delivery. She referred to these “infarcs” as the old brain injuries which, later in her 

testimony, she described as “large but . . . in two focal areas of the brain.” She denied 

that the skull fracture happened at birth. She said that the child‟s weight gain as recorded 

at his 20-day checkup was normal. She testified that, in the last couple of days before his 

hospital admission, the victim‟s symptoms would have been obvious and that, whenever 

the skull fracture occurred, the resulting swelling would also have been obvious to a caregiver. She testified further that the date of the skull fracture was difficult to determine. 

Doctor Lowen denied that the impact that caused the fracture was necessarily the cause of 

the victim‟s most serious brain injury, which she characterized as the “newer” injury. 

She opined that dropping the victim in the shower could cause a “very localized brain 

injury” and perhaps a skull fracture but would not cause the type of extensive injury 

found in the victim‟s brain. Doctor Lowen clarified that the “newer” brain injury caused 

the significant damage; that injury was “widespread and extensive.” Based on the areas 
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of the brain affected by the older injuries, those injuries did not cause the victim‟s 

blindness or his difficulty eating.

Doctor Lowen testified she performed no testing for genetic etiology 

because “no genetic condition . . . causes this compilation of injuries.” On redirect 

examination, Doctor Lowen testified that a slap to the side of the victim‟s head could not 

have caused the “severe brain injury [the victim] came in with.” She clarified that an 

impact of some type caused the skull fracture but that the “extensive brain injury” could 

have been caused by an impact or by “violent shaking.” The rib and leg fractures were 

“outside that of normal caretaking or caregiving.”

After the State rested its case, Ms. Loyola testified that despite feeding the 

newborn victim breast milk and formula, he did not gain weight and was skinny with “his 

head swollen big” when he went for his 20-day examination.1She said that she told the 

defendant in November that the victim was sick. Ultimately, she told the defendant to 

take the victim to the hospital; she had no driver‟s license and no telephone.

The co-defendant testified that she witnessed the defendant‟s slap of the 

victim as described by her other child earlier in the trial. She added, “[H]e slap and then 

he punch.” She said that she had lied when she told an officer that she had dropped the 

victim in the bathtub and on the stairs. She denied that she caused any injury to the 

victim. She stated that the defendant began hitting the victim in November. She 

described the defendant‟s treatment of the victim when the victim would not stop crying: 

“He just pick up and then slap hard, so hard and then he punch him and then he pinch 

him, drop bed and pinch again and slap and punch.” She testified that she did not report 

the assaults because the defendant “tell me don‟t say anything.” She said that the 

defendant hit the victim on the weekend before the victim was taken to Vanderbilt.

The co-defendant agreed that she originally told the police that the 

defendant had not injured the victim and that, before suggesting that the injuries resulted 

from an accident, she did not know how the victim sustained his injuries. She testified 

that her earlier statements were the result of the defendant‟s telling her what not to say. 

She agreed that she had not come forward with the version that the defendant caused the 

injuries for more than two years and only did so a few weeks before trial. She admitted 

that she and her attorney went to the prosecutor‟s office with this later version of events 

because she was told that she might get a resolution of her case that would be more 

acceptable than going to trial.

 

1 Ms. Loyola‟s native language was described as “Micronesian,” and she testified with the

assistance of an interpreter.
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The co-defendant testified that she performed all of the household and 

childcare chores. She said that on weekends and in the evenings when the defendant 

came home from work, he spent most of his time playing video games.

The defendant testified that he did not harm the victim. He said he was 

typically away from home attending to his military job from 4:00 a.m. until 5:00 p.m. or 

later on weekdays and sometimes on Saturdays. He said that his wife maintained an 

immaculate household and that she provided the childcare.

The defendant testified that over the weekend of December 17 and 18, 

2011, he noticed that the victim felt warm to the touch and thought that the victim might 

have influenza. The defendant said this prompted him to take the victim to the hospital. 

He did not know the child had been injured and had not suspected illness before 

December 17. He denied that his wife told him to take the victim to the hospital. On 

Monday morning December 19, he noticed the victim‟s “making noise when he was 

trying to breathe.”

The defendant denied telling Ms. Loyola to claim responsibility for the 

victim‟s injuries. The defendant testified that, during questioning by the police and the 

doctor, he did not initially understand that anything was seriously wrong with the victim, 

who he thought had contracted influenza. He agreed he may have laughed during the 

conversations but that, if so, it would have been because he thought the idea of the 

victim‟s being injured was “ridiculous.” He opined that the descriptions of his laughing 

had been exaggerated.

The defendant denied squeezing the victim‟s ribs, jerking him around by 

his leg, suspending him in the air by his legs, hitting him with an open or closed hand, 

pinching him, or doing anything else “intentionally or accidentally” to injure the victim. 

He testified that, on one occasion, he saw the co-defendant smack the victim on the lips 

because he was crying, although at the time he did not think it was “anything serious.” 

He said he did not interrupt his video game on that occasion to check on the victim‟s 

crying but yelled for his wife, adding, “[t]o my understanding, she knows how to take 

care of the kids more than me.” He said that the children‟s crying made him sad but not 

angry.

The defendant said that he did not notice anything “out of the ordinary” 

with the victim‟s head on the weekend of December 17 and 18, 2011. He knew, 

however, that the victim was not eating properly. He denied that the co-defendant told 

him in November 2011 that the victim‟s head was swollen and that he needed medical 

attention.
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The defendant had seen the couple‟s two-year-old child in the crib with the 

victim, but the co-defendant told him that the two-year-old had hit the victim with the 

video controller. He said that he heard from the police about the co-defendant‟s

statements about dropping the victim and that the co-defendant had never told him this. 

He stated, “I love my kids . . . . I would not hit my kids in a way – you know, like in a 

crazy way where to injure, it‟s just – it don‟t even make sense, that‟s not me.”

The defendant agreed that he filed for divorce after the co-defendant was 

arrested, but he withdrew the divorce action because he could not financially afford to 

pursue it.

The trial court convicted the defendant of aggravated child neglect and 

aggravated child abuse and imposed incarcerative, concurrent Range I sentences of 15 

years and 20 years respectively. The court overruled the defendant‟s timely motion for 

new trial, and the defendant filed a timely notice of appeal.

In his first issue, the defendant claims that the evidence is insufficient to 

support his conviction of aggravated child abuse in violation of Code section 39-15-

402(a)(1).2 When an accused challenges the sufficiency of the evidence, the appellate 

court considers the evidence in the light most favorable to the prosecution to determine 

whether any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt, Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 

324 (1979), regardless whether the conviction is based upon direct evidence, 

circumstantial evidence, or a combination of direct and circumstantial evidence, State v. 

Winters, 137 S.W.3d 641, 654-55 (Tenn. Crim. App. 2003). Especially inimical to the 

defendant‟s claim is the well-rooted axiom that the appellate court neither re-weighs the 

evidence nor substitutes its inferences for those drawn by the trier of fact. Winters, 137 

S.W.3d at 655. Also, the credibility of the witnesses, the weight and value of the 

evidence, and all other factual issues raised by the evidence are resolved by the trier of 

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The appellate court affords 

the State of Tennessee the strongest legitimate view of the evidence contained in the 

record as well as all reasonable and legitimate inferences which may be drawn from the 

evidence. Id.

At the time of the offenses in the present case the proscriptive statutes for 

aggravated child abuse provided as follows:

 

2

The defendant‟s brief is unclear whether he is challenging both convictions or only the 

convictions of aggravated child abuse rooted in Code section 39-15-401(a). We will review both 

convictions.
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Any person who knowingly, other than by accidental 

means, treats a child under eighteen (18) years of age in such 

a manner as to inflict injury commits a Class A misdemeanor; 

provided, however, that, if the abused child is eight (8) years 

of age or less, the penalty is a Class D felony.

T.C.A. § 39-15-401(a) (Supp. 2011).

A person commits the offense of aggravated child 

abuse, aggravated child neglect or aggravated child 

endangerment, who commits child abuse, as defined in § 39-

15-401(a) . . . and:

(1) The act of abuse results in serious bodily injury to 

the child . . . .

Id. § 39-15-402(a) (Supp. 2011).

The defendant posits that the co-defendant admitted pretrial that she had 

dropped the victim on at least two occasions and that her negligence, as admitted, was 

consonant with the injuries sustained by the victim. The defendant emphasizes that his 

denial of responsibility for the injuries remained constant throughout the pendency of the 

trial proceedings. He maintains that the co-defendant‟s recantation of her pretrial 

statements came virtually on the eve of trial and was prompted by her desire to obtain a 

favorable plea offer. He says her resulting testimony that her pretrial statements were 

false is not worthy of belief. He argues that his version of events remained consistent 

although hers was “self-contradicting.” Essentially, then, the defendant challenges the 

co-defendant‟s credibility.

These types of cases, wherein the trier of fact could have believed either of 

two conflicting accounts of the charged crimes, underscore the importance in our judicial 

system of a defendant‟s “day in court” because, when the evidence favoring the 

prosecution supports a finding of the elements of the offense, the appellate court 

reviewing the case must defer to the fact-finder‟s determinations of fact and credibility. 

See Cabbage, 571 S.W.2d at 835; Winters, 137 S.W.3d at 654-55. We have long been 

committed to this policy of deference because to do otherwise would be to circumvent the 

trial process as the crucible for discerning truth. In the present case, the State‟s evidence 

established the elements of aggravated child abuse, and the trial court not only accredited 

this evidence but obviously discredited the defendant‟s testimony. Accordingly, the 

evidence legally supports the judgments of the trial court.
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In a somewhat conclusory fashion, the defendant states in his brief that the 

convictions are based upon the uncorroborated testimony of an accomplice. Certainly, “a 

conviction may not be based solely upon the uncorroborated testimony of an accomplice 

to the offense.” State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001) (citing State v. Stout, 33 

S.W.3d 531 (Tenn. 2001); State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. 

State, 379 S.W.2d 34, 43 (Tenn. 1964)). By way of explanation, our supreme court has 

stated:

There must be some fact testified to, entirely independent of 

the accomplice‟s testimony, which, taken by itself, leads to 

the inference, not only that a crime has been committed, but 

also that the defendant is implicated in it; and this 

independent corroborative testimony must also include some 

fact establishing the defendant‟s identity. This corroborative 

evidence may be direct or entirely circumstantial, and it need 

not be adequate, in and of itself, to support a conviction; it is 

sufficient to meet the requirements of the rule if it fairly and 

legitimately tends to connect the defendant with the 

commission of the crime charged. It is not necessary that the 

corroboration extend to every part of the accomplice‟s 

evidence.

Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803); see also State v. Fowler, 

373 S.W.2d 460, 463 (Tenn. 1963).

An accomplice is an individual who knowingly, voluntarily, and with 

common intent participates with the principal offender in the commission of an offense. 

State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). “When the facts 

concerning a witness‟s participation are clear and undisputed, the trial court determines 

as a matter of law whether the witness is an accomplice.” State v. Robinson, 146 S.W.3d 

469, 489 (Tenn. 2004) (citing Ripley v. State, 227 S.W.2d 26, 29 (1950); State v. 

Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)). When “the facts are disputed or 

susceptible to different inferences,” however, the determination of whether the witness is 

an accomplice is a question for the trier of fact. Robinson, 146 S.W.3d at 489 (citing 

Perkinson, 867 S.W.2d at 7); see also Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim.

App. 1975). “The test generally applied is whether the witness could be indicted for the 

same offense charged against the defendant.” Robinson, 146 S.W.3d at 489 (citing 

Monts, 379 S.W.2d at 43).

The present case was bench-tried, obviating any necessity for jury 

instructions about the issue of corroboration or the status of the co-defendant as an 
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accomplice. Next, we discern that even if the trial court should have viewed the codefendant as an accomplice to the defendant‟s commission of aggravated child abuse and 

aggravated child neglect, her testimony about the abuse was corroborated by the 

testimony of the eight-year-old sibling, and the co-defendant‟s testimony about the 

neglect was corroborated by Doctor Lowen who established the visible nature of the 

victim‟s symptoms and the failure of the defendant to seek timely medical attention. 

Consequently, the claim of lack of corroboration is unavailing.

As a result of our analysis, we affirm the judgments of conviction of 

aggravated child abuse and aggravated child neglect.

 _________________________________ 

 JAMES CURWOOD WITT, JR., JUDGE