        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




J OSEPH M. T IPTON, 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.1 The question arises whether acts of abuse that result in homicide may
be prosecuted as either aggravated child abuse felony murder or aggravated child neglect


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



                                              -4-
              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 amendments to 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-of-
the-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 as including acts of abuse, even though separate statutory
provisions exist proscribing child abuse and aggravated child abuse felony murder, and

                                               -6-
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



                                               -7-
       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

                               -8-
                      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

                                              -9-
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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