         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   August 22, 2000 Session

          STATE OF TENNESSEE v. CORNELIUS MICHAEL HYDE

                       Appeal from the Circuit Court for Blount County
                         No. C-10230    D. Kelly Thomas, Jr., Judge



                                 No. E2000-00042-CCA-R3-CD
                                      December 28, 2000


JOSEPH M. TIPTON, J., concurring and dissenting.


        I concur in the reasoning and most of the results reached in the majority opinion. I depart
only in my opinion that the failure to instruct on aggravated assault constitutes reversible error.

         First, I believe that we need to begin by recognizing the significance of State v. Ducker, 27
S.W.3d 889 (Tenn. 2000), in the extent that it limits the culpable mental state of “knowing” needed
for the offense of child abuse. The offense of child abuse is committed by a “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 or neglects such a child so as to adversely affect the child’s health and welfare.”
Tenn. Code Ann. § 39-15-401(a). In Ducker, the defendant’s two young children died after being
left in their car seats in the car for more than eight hours during hot weather. Convicted of
aggravated child abuse, the defendant argued that the mens rea of “knowing” applied to the injury
prong as well as the treatment and neglect prongs of the child abuse statute. However, our supreme
court disagreed, concluding that the “mens rea of ‘knowing’ refers only to the conduct elements of
treatment or neglect of a child under the child abuse statute,” thus concluding that child abuse is not
a result-of-conduct offense. 27 S.W.3d at 897.

        In reaching its conclusions, the supreme court viewed “knowingly” in the statute as clearly
modifying “treats” and “neglects,” noting as well that the “actus reus” is modified by the clause
“‘other than by accidental means.’” The court then stated the following:

       Accordingly, the statute requires that the act of treating a child in an abusive manner
       or neglecting the child must be knowing conduct. For instance, [Ducker] must have
       knowingly left or abandoned her children in the car for more than eight hours. If the
       defendant had been unaware that her children were present in the car when she left
       her car parked in front of the hotel, the neglect of her children would have been
       accidental or unknowing. Contrary to the defendant’s assertions, application of the
       mens rea to the actus reus of this statute precludes this statute from being a strict
       liability statute.

                Once the knowing mens rea is established, the next inquiry under the plain
        language of the statute is simply whether the child sustained an injury or, in the case
        of child neglect, whether the child suffered an adverse effect to the child’s health or
        welfare. The legislature has employed the phrases “so as to injure” and “so as to
        adversely affect” when defining the injury aspect of the child abuse statute. These
        phrases clearly indicate that if an injury results from knowing abuse or neglect, the
        actor has committed child abuse.

                As a practical matter, the defendant’s argument could render the child abuse
        statute ineffectual. Defendants in child abuse cases could argue that, while they in
        fact knowingly punished or spanked the child, they did not know harm would occur.
        We, therefore, reject the defendant’s argument and hold that the mens rea of
        “knowing” refers only to the conduct elements of treatment or neglect of the child
        under the child abuse statute and conclude that the child abuse offenses are not a
        result – of – conduct offenses.

27 S.W.3d at 897.

        Strictly construed, Ducker stands for the proposition that no mens rea attaches to the
occurrence of an injury, only to the treatment that results in injury. If such be so, then the defendant
in the present case would not be entitled to a jury instruction on aggravated assault. This is because
no question exists about the defendant knowing he was spanking or hitting the victim. Thus,
whatever ignorance or level of awareness he claimed to have regarding the injuries that resulted from
his spanking the victim would be wholly irrelevant.

        However, several points militate against such a limited interpretation of Ducker. The first
point relates to the fact that another part of the child abuse statute refers to an allegation “that
unreasonable corporal punishment was administered” to a child by a “parent, guardian or custodian.”
Tenn. Code Ann. § 39-15-401(b)(1). The necessary implication by the legislature’s use of these
words is that reasonable corporal punishment by a child’s parent, guardian or custodian does not fall
within the ambit of child abuse. To conclude otherwise would render a parent’s disciplining a child
by corporal punishment a thing of the past. Bodily injury “includes a cut, abrasion, bruise, burn or
disfigurement; physical pain or temporary illness or impairment of the function of a bodily member,
organ, or mental faculty.” Tenn. Code Ann. § 39-11-106(a)(2). Needless to say, the discipline of
spanking is intended to have a painful result. However, we also note that a statute provides that
teachers and school principals “may use corporal punishment in a reasonable manner against any
pupil for good cause in order to maintain discipline and order within the public schools.” Tenn.
Code Ann. § 49-6-4103. I seriously doubt that the legislature intended for parents, guardians and
custodians to be criminally liable for corporal punishment that would be condoned for use by school
principals.


                                                  -2-
        With the existence of lawful corporal punishment, what remains is a consideration of what
constitutes “unreasonable corporal punishment.” Given the fact that the nature of corporal
punishment is that it is intentionally or, at least, knowingly done, the determination of reasonableness
must include consideration of the actor’s level of awareness relative to the conduct, the
circumstances surrounding the conduct, and the resulting injury. In this respect, I do not believe that
a parent may be held liable for child abuse unless it is shown that the parent, at least, should have
known that the conduct, the circumstances surrounding the conduct or the result – those matters that
make up corporal punishment – was unreasonable.

        Relative to the present case, a question arises regarding whether the defendant, who is the
live-in boyfriend of the victim’s mother, is to be considered a guardian or custodian of the victim
as those terms are used in the child abuse statute. When viewed as a matter of fact, if the victim’s
mother had entrusted the victim to the defendant’s care, then the defendant could be said to have
physical custody of the victim. Under these circumstances, the defendant cannot be liable for
reasonable corporal punishment and the jury should have been so instructed.

         The second point relates to the fact that in Ducker, the supreme court did not consistently
limit the “knowing” mens rea to the treatment of the victim. It stated that “the statute requires that
the act of treating a child in an abusive manner . . . must be knowing conduct.” 27 S.W.3d at 897
(emphasis added). It also referred to the injury resulting from “knowing abuse.” Id. In other words,
the court implied that more is required than just knowing treatment of a child that results in injury.
However, when knowing treatment constitutes knowing abuse is left unstated. We recognize that
our supreme court has stated that the child abuse statute should be read in pari materia with other
provisions sharing the same subject matter and purpose and that statutory construction should
involve considering the other statutes. State v. Adams, 24 S.W.3d 289, 295-96 (Tenn. 2000). In this
respect, we note that regarding juveniles and juvenile court proceedings, “abuse” is deemed to exist
“when a person under the age of eighteen (18) is suffering from, has sustained, or may be in
immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental
condition caused by brutality, neglect or other actions or inactions of a parent, relative, guardian or
caretaker.” Tenn. Code Ann. § 37-1-102(b)(1). On the other hand, the child abuse statute limits the
result to actual injury. In this respect, a “knowing” abusive treatment necessarily entails awareness
that the risk of injury results from the conduct. In other words, by saying that a defendant must know
that his treatment of a child is in an abusive manner, the supreme court necessarily implies that some
level of mental culpability regarding the circumstances surrounding the conduct and the potential
result must exist, even if the actual injury or its extent need not be known for the defendant to be
guilty of child abuse.

       In any event, I believe that the facts in the present case would justify an instruction on
aggravated assault regarding the issue of abuse. Considering it in the light most favorable to the
defendant, I believe that the evidence would easily cast a reasonable doubt as to the defendant’s
knowledge that his treatment of the victim was abusive. Thus, the jury should have been instructed
regarding aggravated assault.



                                                  -3-
         I believe that the failure to instruct the jury regarding the next lesser-included offense that
the evidence would support to exist – as opposed to the greater offense – violates due process and
the state constitutional right to have the jury determine what facts make out what crime. See Tenn.
Const. art. IV, § 9. When the evidence, in the light most favorable to the lesser-included offense,
supports a conviction for the lesser offense, as opposed to the greater offense, the failure of the trial
court to instruct on the lesser operates as an improper determination by the trial court as to a matter
of fact.

         Thus, the failure to instruct on lesser-included offenses in the present case constituted error
of a constitutional dimension. Such error places the burden upon the party who benefitted from it,
in this case the state, to show that the error was harmless beyond a reasonable doubt. I do not believe
that the state has met its burden in this case. Therefore, I would reverse the conviction and remand
the case to the trial court for a new trial.




                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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