         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 20, 2008

  STATE OF TENNESSEE v. DENARO EDGAR ESPINOSA DORANTES

                    Appeal from the Criminal Court for Davidson County
                       No. 2006-D-3184       Steve R. Dozier, Judge



                  No. M2007-01918-CCA-R3-CD - Filed November 30, 2009


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

       I concur with most of the decisions and reasoning in the majority opinion, including the
reversal of the aggravated child abuse conviction for insufficient evidence. I respectfully dissent,
however, from the opinion’s affirming the felony murder conviction. I would reverse and vacate the
felony murder conviction, as well.

       My position stems from the legislative intent regarding the first degree murder statute and
regarding child abuse and child neglect. See T.C.A. § 39-15-401(a) (Supp. 1998) (Amended 2005,
2006). Before 1989, Tennessee Code Annotated section 39-4-401(a) (1982) (repealed by 1989 Tenn.
Pub. Acts ch. 591 § 1) provided as follows:

               Child abuse and neglect–Penalty–Procedure–Relation of section to
               other law.–(a) Any person who maliciously, purposely, or knowingly,
               other than by accidental means, treats a child under eighteen (18)
               years of age in such manner as to inflict injury or neglects such a
               child so as to adversely affect its health and welfare is guilty of a
               misdemeanor . . . .

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). I note that the Sentencing Commission Comments to this provision
view 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 (1988 Supp.) (repealed by 1989 Tenn. Pub. Acts, ch. 591, § 1).

        Noting 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 859 S.W.2d 313, 315 (Tenn.
1993) (agreeing with court of criminal appeals that 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-
               (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). Relevant and applicable to
this case, the legislature again amended the first degree murder statute in 1998 to provide 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, aggravated child neglect,
               or aircraft piracy . . . .

T.C.A. § 39-13-202(a)(2) (Supp. 1998) (emphasis added) (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:

               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 stated that Tennessee Code Annotated section 39-15-401(a) (1997)
proscribed “a single offense that may be committed through one of two courses of conduct: child
abuse through injury and child abuse through neglect.” State v. Mateyko, 53 S.W.3d 666, 668 n.1
(Tenn. 2001). For “ease of reference,” the court referred to child abuse through neglect as “child
neglect.” The fact that the offense could be committed in separate ways has carried significance in
the context of charging instruments. In State v. John E. Parnell, No. W1999-00562-CCA-R3-CD,
Shelby County (Tenn. Crim. App. Feb. 6, 2001), count one alleged aggravated child abuse by
treating the child in a manner so as to inflict injury and count two charged aggravated child abuse
by neglecting the child so as to adversely affect his health and welfare. The trial court instructed the
jury that if it found guilt under count one, it was not to consider count two. The jury convicted the
defendant on count one. This court concluded that the evidence was insufficient under count one
but that the evidence overwhelmingly established neglect as alleged in count two. Under these
circumstances, this court reversed the conviction for aggravated child abuse in count one but
remanded count two for a new trial.




                                                  -3-
        Obviously, the majority opinion in this case thinks significant the fact that the aggravated
child abuse count specified that the Defendant treated the victim in such a manner as to inflict
serious bodily injury but did not allege anything regarding neglect. In reversing the abuse conviction
for insufficient evidence, it is apparent that my colleagues concluded that the specific allegation
distinguishes this count from the murder count which alleged “generally” that the Defendant killed
the victim “during the perpetration of or attempt to perpetrate aggravated child abuse, in violation
of Tennessee Code Annotated § 39-13-202.”

        No case has analyzed the significance of the 1998 addition of aggravated child neglect to the
predicate felonies for first degree felony murder. However, I view it to be significant in the context
of separating aggravated child abuse from aggravated child neglect when considering what
constitutes a particular felony murder. In other words, under that provision, murder in the
perpetration of aggravated child abuse is a separate offense from murder in the perpetration of
aggravated child neglect, no different than murder during the perpetration of air piracy, for example.
In this regard, even though the aggravated child abuse statute is viewed to cover both abuse and
neglect, such is not the case under the 1998 first degree murder statute.

        I assume that if the murder count in the present case had specified that the killing occurred
in the perpetration of the Defendant’s knowingly treating the victim in a manner as to cause serious
bodily injury, my colleagues would then conclude that the evidence did not prove the crime charged.
The 1998 first degree murder statute, however, already distinguished aggravated child abuse from
aggravated child neglect. 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. The
very fact that the State in this case chose to allege aggravated child neglect in a separate count
reflects the same belief. Also, the State did not argue to the jury that the Defendant was guilty of
child abuse through neglecting the injured victim’s need for treatment. Rather, the State assailed the
Defendant regarding the injuries inflicted upon the victim, including the final blow the victim
received near the time of his death. The State’s one or two references to the Defendant’s concealing
the victim’s injuries without obtaining treatment were not in the context of child neglect but in the
context of concealing the injuries inflicted upon the victim, i.e., child abuse through injury.

        Last, and material to this issue, I note that the aggravated child abuse instruction given to the
jury by the trial court provided that an essential element was “that the defendant did knowingly,
other than by accidental means, treat a child in such a manner as to inflict injury.” It did not provide
the jury with the alternative of aggravated child neglect or of aggravated abuse through child neglect.
Under these circumstances, I do not believe we are in a position to replace a jury finding regarding
one offense with a judicial finding of another offense that was not submitted to the jury. I would
reverse both the felony murder and aggravated child abuse judgments of conviction and dismiss the
charges.


                                                        ____________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE


                                                  -4-
