IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 12, 2011

STATE OF TENNESSEE v. DEANDRE BLAKE

Appeal from the Criminal Court for Shelby County

No. 08-06637 John T. Fowlkes, Jr., Judge

No. W2010-00468-CCA-R3-CD - Filed September 23, 2011

JOSEPH M. TIPTON, P.J., concurring.

I concur with the conclusion in the majority opinion that sufficient evidence supports

the conviction in count one. I also concur with the majority’s conclusion that the evidence

is sufficient to support the conviction in count two and agree that the two felony murder

convictions should have been merged into a single judgment. I write separately, however,

to address a conflict between the language in the first degree murder statute and the language

of the child abuse and child neglect statutes that the majority does not mention. I also note

that the trial court erred by giving an incomplete instruction for count two, murder in the

perpetration of aggravated child neglect, although I conclude that the error was harmless

beyond a reasonable doubt.

Sufficiency of the Evidence

“First degree murder is . . . [a] killing of another committed in the perpetration of or

attempt to perpetrate any . . . aggravated child abuse [or] aggravated child neglect.” T.C.A.

§ 39-13-202(a)(2) (2010). At the time of the crime, the Code provided the following with

respect to the underlying felonies:

39-15-402. Aggravated child abuse and aggravated

child neglect or endangerment. – (a) A person commits the

offense of aggravated child abuse or aggravated child neglect or

endangerment, who commits the offense of child abuse, as

defined in § 39-15-401(a), or who commits the offense of child

neglect or endangerment, as defined in § 30-15-401(b), and:
(1) The act of abuse or neglect results in serious bodily

injury to the child;

(2) The act of neglect or endangerment results in serious

bodily injury to the child . . . .

T.C.A. § 39-15-402(a)(1), (2) (2006) (amended 2009). The Code also stated:

39-15-401. Child abuse and child neglect or

endangerment. – (a) Any person who knowingly, other than by

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

in such a manner as to inflect injury commits a Class A

misdemeanor; provided, however, that, if the abused child is six

(6) years of age or less, the penalty is a Class D felony.

(b) Any person who knowingly abuses or neglects a child

under eighteen (18) years of age, so as to adversely affect the

child’s health and welfare, commits a Class A misdemeanor;

provided, that, if the abused or neglected child is six (6) years of

age or less, the penalty is a Class E felony.

Id., § 39-15-401(a), (b) (Supp. 2008) (amended 2009). I note that the Defendant was charged

in count two with felony murder in the perpetration of aggravated child neglect and that the

definition of “aggravated child neglect or endangerment” penalizes a defendant “who

knowingly abuses or neglects a child . . . so as to adversely affect the child’s health and

welfare.” Id. at (b) (emphasis added).

The felony murder statute proscribes murder in the perpetration or attempt to

perpetrate aggravated child abuse or aggravated child neglect, as if they are separate crimes.

The child abuse and child neglect statute at issue in this case, however, defines child neglect

as including abuse. The question arises whether acts of abuse that result in homicide may

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be prosecuted as either aggravated child abuse felony murder or aggravated child neglect

I note that the current statutes designate three offenses: child abuse, child neglect, and 1

child endangerment. See T.C.A. §§ 39-15-401(a) (2010) (child abuse), (b) (child neglect), (c)

(child endangerment), 39-15-402(a) (2010) (designating subsections (a), (b), and (c) of T.C.A. §

39-15-401 accordingly). Further amendments were made to sections -401 and -402 in the 2011

legislative session that prohibit a person convicted of an offense under these statutes from

contacting the victim, although those changes do not affect the subsections considered here. See

2011 Tenn. Pub. Acts, ch. 313.

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felony murder. In light of the present statutes, I question whether the felony murder statute

retains a meaningful distinction between “aggravated child abuse” and “aggravated child

neglect.”

Historically, our felony murderstatute proscribed homicide resulting from child abuse

but was silent as to child neglect. See T.C.A. § 39-2-202 (1988 Supp.) (repealed by 1989

Tenn. Pub. Acts, ch. 591, § 1). In State v. Cynthia Denise Smith, No. 1153, Hamilton County

(Tenn. Crim. App. Sept. 20, 1990), this court stated that the 1982 child abuse statute created

“two separate ways (abuse and neglect) by which the offense could be committed and that

two separate verdicts would be appropriate.” Slip op. at 6.

In 1989, the child abuse and neglect statute was re-enacted in the 1989 Code with a

similar definition. At that time, the legislature also created the aggravated child abuse statute

which provided in part:

Aggravated child abuse.–(a) A person is guilty of the offense of

aggravated child abuse who commits the offense of child abuse

as defined in § 39-15-401 and:

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

child . . . .

T.C.A. § 39-15-401(a) (1991) (amended 1994, 1996, 1998, 2005, 2006, 2008, 2009). The

Sentencing Commission Commentsto this provision viewed both abuse and neglect offenses

to be covered under -402(a).

Beginning in 1988, the first degree murder statute provided in part:

First-degree murder.– . . . (2) It shall also be murder in the first

degree to kill a child less than thirteen (13) years of age if the

child’s death results from one (1) or more incidents of a

protracted pattern or a multiple incident of child abuse

committed by the defendant against such child, or if such death

results from the cumulative effects of such pattern or incidents.

T.C.A. § 39-2-202 (Supp. 1988) (repealed by 1989 Tenn. Pub. Acts, ch. 591, § 1).

Noting Cynthia Denise Smith, this court reversed a conviction for child abuse murder

under the 1988 first degree murder statute, when the proof showed only, if anything, neglect.

State v. Denise Maupin, No. 272, Washington County (Tenn. Crim. App. Oct. 7, 1991), aff’d,

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859 S.W.2d 313, 315 (Tenn. 1993) (agreeing with court of criminal appeals that the evidence

was insufficient). In so doing, this court concluded that “the legislature did not intend for

criminal neglect to be covered by the child abuse murder statute.” Slip op. at 10. “Mere

proof of child neglect is not proof of child abuse so as to sustain a conviction for child abuse

murder.” Id.

In 1992, our supreme court ruled that the child murder statute discussed in Maupin

was unconstitutional. State v. Hale, 840 S.W.2d 307, 313 (Tenn. 1992). In response, the

legislature amended the first degree murder statute in part as follows:

First degree murder.–(a) First degree murder is:

. . .

(4) A reckless killing of a child less than thirteen (13) years of

age, if the child’s death results from aggravated child abuse, as

defined by § 39-15-402, committed by the defendant against the

child.

T.C.A. § 39-13-202(a)(4) (Supp. 1993). Effective in 1995, however, the legislature amended

the first degree murder statute to provide in part as follows:

First degree murder.– (a) First degree murder is:

. . .

(2) A killing of another committed in the perpetration of or

attempt to perpetrate any first degree murder, arson, rape,

robbery, burglary, theft, kidnapping, aggravated child abuse, or

aircraft piracy . . . .

T.C.A. § 39-13-202(a)(2) (Supp. 1995) (amended 1998, 2002, 2007).

In 1998, the legislature added aggravated child neglect to the predicate felonies listed

in the first degree murder statute. See T.C.A. § 39-13-202(a)(2) (Supp. 1998) (amended

2002, 2007). At the same time, the legislature amended the child abuse and neglect statutes

to add the terms “neglected,” “neglect,” and “aggravated child neglect.” For example,

Tennessee Code Annotated section 39-15-402(a) (Supp. 1998) (amended 2005) provided in

part:

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Aggravated child abuse and neglect.–(a) A person commits the

offense of aggravated child abuse or aggravated child neglect

who commits the offense of child abuse or neglect as defined in

§ 39-15-401 and;

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

the child . . . .

(Emphasis added). Our supreme court has said that at this juncture, the legislature intended

to distinguish criminal conduct that caused injury to a child from criminal conduct that

adversely affected a child’s health and welfare by creating two distinct offenses, child abuse

and child neglect. See State v. Dorantes, 331 S.W.3d 370, 385 n.15 (Tenn. 2011).

Previously, child abuse and neglect had been a single offense that was committed by the

alternate modes of injury or neglect. See State v. Mateyko, 53 S.W.3d 666, 668 n.1 (Tenn.

2001).

In 2005, the legislature enacted a statute that penalized (1) treating a child “in a

manner as to inflict injury” or (2) abusing or neglecting a child “so as to adversely affect the

child’s health and welfare.” 2005 Tenn. Pub. Acts ch. 487, § 1. Unlike the previous version

of the statute, the 2005 amendments listed the offenses in separate subsections. In the

contemporaneous amendmentsto the aggravated child abuse statute, the legislature identified

the first alternative as “child abuse” and the second alternative as “child neglect or

endangerment.” Id., § 2 The legislature did not, however, amend the felony murder statute

to conform with the language of the amended child abuse statutes. To the present date, the

felony murder statute retains the predicate felonies of “aggravated child abuse” and

“aggravated child neglect” even though the offense of “aggravated child neglect” contains

the alternative that it may be committed through “abuse.” See T.C.A. §§ 39-13-202(a)(2),

39-15-401(a), (b), 39-15-402(a). I note, as well, that the present child abuse statutes

designate “child endangerment” as a separate offense under Code section 39-15-401(c) and

30-15-402(a), although “aggravated child endangerment” is not listed as a predicate felony

in the felony murder statute. See id., §§ 39-15-401(c) (2010), 39-15-402(a) (2010), 39-13-

202(a)(2) (2010).

As noted in Dorantes, the 1998 amendments to the first degree murder statute were

significant in the context of separating aggravated child abuse

from aggravated child neglect when considering what

constitutes a particular felony murder . . . . [U]nder that

provision, murder in the perpetration of aggravated child abuse

is a separate offense from murder in the perpetration of

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aggravated child neglect, no different than murder during the

perpetration of air piracy, for example. . . . I believe that under

the statute, charging murder in the perpetration of aggravated

child abuse did not charge murder in the perpetration of

aggravated child neglect.

Dorantes, 331 S.W.3d at 384 (quoting State v. Genaro Edgar Espinosa Dorantes, No. M2007-

01918-CCA-R3-CD, Davidson County) (dissenting opinion of Tipton, P.J.)). With respect

to felony murder, our supreme court stated, “Our General Assembly chose to provide two

separate and distinct courses of conduct, aggravated child abuse and aggravated child

neglect, upon which a felony murder may be predicated.” Dorantes, 331 S.W.3d at 384.

Dorantes also noted that the legislative history of the 1998 amendments to the felony murder

statute made clear that their purpose was to define aggravated child abuse and aggravated

child neglect as separate offenses. Id., 331 S.W.3d at 370, n.13.

I note that Dorantes interpreted the felony murder statute in light of a previous version

of the aggravated child abuse and aggravated child neglect statute. The first degree murder

statute addressed in Dorantes, however, remains the same, save the addition of the predicate

felonies of rape of a child and aggravated rape of a child in 2007. I question whether in

adding “abuse” as a means of committing the offense of “child neglect and endangerment,”

the legislature intended, without having said so, to eliminate its previous designation of these

two separate and distinct means of committing felony murder. See Wilson v. Johnson Co.,

879 S.W.2d 807 (Tenn. 1994) (stating that when enacting legislation, the General Assembly

is presumed to know the existing law). Construing the statutes in the same manner as

Dorantes, felony murder through aggravated child abuse is defined primarily by the injury

inflicted on the victim and corresponds with child abuse as proscribed by Code section 39-

15-401(a). Felony murder through aggravated child neglect is defined primarily by the effect

on the child’s health and welfare from a defendant’s abusive or neglectful conduct and

corresponds with child neglect and endangerment as proscribed by Code section 39-15-

401(b).

On the other hand, I recognize that a rule of statutory construction requires this court

to presume that the legislature did not intend an absurd result and to avoid such a result by

reasonable construction, to the extent possible. See, e.g., State v. Harrison, 692 S.W.2d 29,

31 (Tenn. Crim. App. 1985). Given this rule, I cannot say that the majority’s sufficiency-ofthe-evidence analysis of aggravated child neglect felony murder as charged in count two is

incorrect. I cannot ignore the presence of the word “abuse” in Code section 39-15-401(b),

the child neglect and endangerment statute. It, therefore, permits construction of felony

murder by aggravated child neglect asincluding acts of abuse, even though separate statutory

provisions exist proscribing child abuse and aggravated child abuse felony murder, and

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although prior legislative intent was to define child abuse and child neglect as distinct

alternatives.

Thus, the evidence in the light most favorable to the State reflects that the Defendant

abused the victim by beating her, that his actions had an adverse effect on her health and

welfare, and that she suffered serious bodily injury. See T.C.A. §§ 39-15-401(b) (child

neglect and endangerment), 39-15-402(a)(2) (aggravated child neglect and endangerment

through serious bodily injury to a child). The record likewise reflects that the victim was

killed in the perpetration of these acts. See id., § 39-13-202(a) (felony murder by aggravated

child neglect). Following this logic, the evidence was sufficient to support the conviction

in count two. I agree with the majority that counts one and two should have been merged

into a single conviction of felony murder.

Jury Instructions

Although not raised by the parties and not addressed by the majority opinion, I note

an error in the jury instructions for count two. The trial court gave the following instructions:

COUNT TWO

FIRST DEGREE MURDER

(KILLING IN PERPETRATION OF OTHER CRIMES)

Any person who commits first degree murder is guilty of

a crime.

For you to find the defendant guilty of this offense, the

state must have proven beyond a reasonable doubt the existence

of the following essential elements:

that the defendant unlawfully killed the alleged

victim;

and

that the killing was committed in the perpetration

of or the attempt to perpetrate the alleged

Aggravated Child Neglect; that is, that the killing

was closely connected to the alleged Aggravated

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Child Neglect and was not a separate, distinct and

independent event;

and

that the defendant intended to commit the alleged

Aggravated Child Neglect.

The elements of Aggravated Child Neglect will be

defined [and] explained to you later in these instructions.

The intent to commit the underlying felony must exist

prior to or concurrent with the commission of the act causing the

death of the victim. Proof that such intent to commit the

underlying felony existed before, or concurrent with, the act of

killing is a question of fact to be decided by the jury after

consideration of all the facts and circumstances. Consideration

of such factors as time, place and causation is helpful in

determining whether a killing was committed in the perpetration

of the alleged Aggravated Child Neglect. The killing may

precede, coincide with, or follow the Aggravated Child Neglect

and still be considered as occurring in the perpetration of the

Aggravated Child Neglect, so long as there is a connection in

time, place and continuity of action.

AGGRAVATED CHILD NEGLECT

The state must have proven beyond a reasonable doubt

the existence of the following essential elements:

that the defendant knowingly neglected a child

under eighteen (18) years of age so as to adversely

affect the child’s health and welfare;

and

that the act of neglect resulted in serious bodily

injury to the child;

and

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that the child was eight (8) years of age or less.

Significantly, the jury instructions for count two omit the option that the predicate felony of

aggravated child neglect may be committed by “abuse.” See T.C.A. §§ 39-13-202(a)(2)

(2010), 39-15-402(a) (2006); 39-15-401(b) (Supp. 2008); T.P.I.–Crim. 21.02(b), Part B

(pattern jury instruction for offenses committed on or after July 1, 2005). The instruction

given was the proper instruction for offenses committed under an earlier version of the child

neglect statute. See generally T.P.I.–Crim. 21.02(a).

In criminal cases, the trial court has the duty to charge the jury on all of the law that

applies to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing

State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). Anything short of a complete

charge denies the defendant his constitutional right to a trial by jury. See State v. McAfee,

737 S.W.2d 304, 308 (Tenn. Crim. App. 1987). An erroneous jury instruction may deprive

the defendant of the constitutional right to a jury trial and is subject to a harmless error

analysis. See State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000). “In such a case, the

inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would

surely have been rendered, but whether the guilty verdict actually rendered in this trial was

surely unattributable to error.” State v. Hollis, 342 S.W.3d 43, 51-51 (Tenn. Crim. App.

2011) (internal quotations omitted).

In this regard, I note that the Defendant’s conduct does not fit the definition of

“neglect” of a child. See Mateyko, 53 S.W.3d at 671 (applying the definition of “neglect”

from the child welfare provisions of the Code to a previous version of the child neglect

statute: “a child is neglected whenever the breach of a legal duty endangers the health or

welfare of that child or otherwise places the child’s health or welfare at some risk of harm”);

State v. Adams, 24 S.W.3d 289, 295 (Tenn. 2000) (same). Thus, the jury’s finding of

aggravated child neglect in count two was error under the instruction given because the State

did not prove beyond a reasonable doubt that the Defendant neglected the victim. I note,

though, that Code section 39-13-401(b) provides the alternative of “abuse” as the other

option by which a defendant commits the offense. By virtue of its finding in count one, the

jury found that the Defendant abused the victim. Notwithstanding the lack of proof to

support a finding of neglect, the jury’s finding of abuse in count one supplies the necessary

action by the Defendant that adversely affected the victim’s health and welfare.

I conclude that the jury’s verdict on count two was not attributable to the instructional

error. The jury found the Defendant guilty of felony murder in count two despite the

omission of “abuse” as the alternative means of committing the predicate offense that was

actually supported by the proof. Although the instruction was deficient, the jury’s finding

of abuse in count one conclusively establishes that it would have found abuse as the means

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by which the Defendant adversely affected the victim’s health and welfare in count two. The

error was harmless beyond a reasonable doubt.

In all other respects, I concur.

_________________________________

JOSEPH M.TIPTON, PRESIDING JUDGE

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