         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 8, 2005

            STATE OF TENNESSEE v. PATRICIA MARIE JENSON

                     Appeal from the Criminal Court for Davidson County
                           No. 2001-A-308 Steve R. Dozier, Judge



                                 No. M2003-02848-CCA-R3-CD



JOSEPH M. TIPTON, J., dissenting.

        I respectfully disagree with the majority opinion’s upholding the conviction. I do not believe
the evidence is sufficient to convict the defendant of child neglect as that offense is described in
State v. Mateyko, 53 S.W.2d 666 (Tenn. 2001). In Mateyko, our supreme court held that “a mere
risk of harm” was insufficient and that the state was required to show “that the defendant’s neglect
produced an actual, deleterious effect or harm upon the child’s health and welfare.” Id. 53 S.W.3d
at 671-72.

        Although the police officers testified about the heavy smoke which caused one officer’s eyes
to water and bothered other officers, no such evidence was presented regarding the child. Also, the
evidence wholly fails to connect the child’s “hyperactivity” or recent placement on medication for
Attention Deficit Hyperactivity Disorder to the crack cocaine smoke. Moreover, Dr. Greeley’s
statement that a “great likelihood” existed that exposure to “passive” crack cocaine smoke would
have an effect on a child may tell us the risk of harm through exposure, but it does not tell us that
the child was in fact harmed by the approximately one-hour exposure and previous presence in the
house which was proven in the trial. As in Mateyko, I believe the evidence would sustain a
conviction for attempted child abuse through neglect. I would reduce the defendant’s conviction to
attempt to commit child abuse by neglect, a Class E felony, and sentence her to two years in the
community corrections program under conditions to be imposed by the trial court.



                                                      ____________________________________
                                                      JOSEPH M. TIPTON, JUDGE
