                                                                                           07/05/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 17, 2018

            JENNIFER MARIE LOPEZ v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2012-A-435     J. Randall Wyatt, Jr., Judge
                     ___________________________________

                           No. M2017-00841-CCA-R3-PC
                       ___________________________________


A Davidson County jury convicted Petitioner, Jennifer Marie Lopez, of the Class A
felony offense of aggravated child neglect. She was sentenced to serve seventeen years
in the Tennessee Department of Correction. The judgment was affirmed on direct appeal.
State v. Jennifer Lopez and Sergio H. Gonzalez, No. M2014-01701-CCA-R3-CD, 2015
WL 6083216 (Tenn. Crim. App. Oct. 16, 2015), perm. app. denied (Tenn. March 24,
2016). Petitioner filed a timely petition for post-conviction relief. Following an
evidentiary hearing, the post-conviction court dismissed the petition. Petitioner has
appealed, asserting that she is entitled to relief based upon her trial counsel’s ineffective
assistance of counsel. Following a review of the briefs of the parties and the entire
record, we affirm the judgment of the post-conviction court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

David M. Hopkins, Murfreesboro, Tennessee, for the appellant, Jennifer Marie Lopez.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and Tammy Meade, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

Background

       The victim of the aggravated child neglect is Petitioner’s son, who was two years
old at the time of the offense. A detailed statement of the facts can be found in this
court’s opinion in the direct appeal. State v. Jennifer Lopez and Sergio H. Gonzalez, No.
M2014-01701-CCA-R3-CD, 2015 WL 6083216 at *1-8 (Tenn. Crim. App. Oct. 16,
2015). In summary, Petitioner’s co-defendant was charged in one count with aggravated
child abuse by causing a liver laceration and a separate jejunal tear to the victim (N.L.).
The jury deadlocked on this count and a mistrial was declared. Id. at *6, *8. Co-
defendant Gonzalez was convicted as charged in Count 2 which referred to the same
conduct as Count 1 but alleged a different theory of aggravated child neglect. Id.
Petitioner was only indicted in Count 3, which charged her and her co-defendant with
aggravated child neglect based upon Petitioner’s and Gonzalez’s failure “to obtain
appropriate medical care for [N.L.’s] worsening medical condition between September
22, 2011[,] and September 23, 2011[,] resulting in [N.L.] going into shock, collapsing,
and suffering a separate hypoxic injury to his brain.” Id. at *6. Petitioner and Gonzalez
were both convicted as charged in Count 3.

        The serious injuries sustained by N.L. were described in the testimony of Dr.
Deborah Lowen, a child abuse pediatrician at Vanderbilt Children’s Hospital. N.L. was
in a coma and on a ventilator. Lab reports indicated N.L. was near death upon arrival at
Vanderbilt Children’s Hospital. His liver and pancreas functions were not normal. N.L.
was “completely nonresponsive, his pupils were dilated, and his eyes were sunken. Id. at
*3. N.L. had been in shock for a considerable period of time. He had bruises on his
body, and blood flow to his extremities and skin was low. He was only taking one to two
breaths per minute. N.L. had a lacerated liver, a perforated small intestine, and an injury
to his pancreas. Importantly, Dr. Lowen testified that Petitioner stated that she had
noticed N.L.’s abdomen “getting big.” Dr. Lowen added that “a ‘rigid belly’ was a
symptom of inflammation in the lining of the abdomen that was caused by the contents of
his intestines leaking into his abdominal cavity.” Id. at *4.

       The evidence at trial that supported Petitioner’s conviction of aggravated child
neglect was summarized as follows in the opinion on direct appeal:

        Defendant Lopez claims that no reasonable jury could have found that
        she knowingly neglected N.L. by failing to obtain appropriate medical
        care for his injuries when she spent the day of September 22, 2011,
        trying to get N.L. to eat and drink, buying him medicine, calling medical
        providers for advice, and observing N.L.’s condition. Defendant Lopez
        also asserts that, based on the information she had available and her own
        observations, she would not have been aware that N.L. would suffer
        serious bodily injury as a result of her conduct. However, as noted
        above, child neglect is a nature-of-conduct offense, not a result-of-
        conduct offense. [          ]. The statute did not require Defendant Lopez
        to know that N.L. would suffer serious bodily injury; it simply required
        that she knowingly declined to seek medical treatment for N.L. See id. In
        this case, Defendant Lopez owed a duty to N.L. as his mother. [          ].

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        She knew that N.L. was sick and that his stomach was “hard” but failed
        to take him to the doctor for medical treatment until he had collapsed. At
        that point, N.L. had suffered serious abdominal and brain injuries. Dr.
        Lowen stated that, while it would have been reasonable to treat N.L.’s
        symptoms as a virus initially, his condition would have gotten
        progressively worse as the day went on. According to Dr. Lowen,
        eventually a prudent caregiver would have recognized that N.L. needed
        medical attention, regardless of that caregiver’s medical knowledge or
        lack thereof. She also stated that N.L.’s brain injury was a direct result of
        the delay in seeking medical care. Based on this proof, any rational juror
        could conclude that N.L.’s condition had continued to worsen despite
        Defendant Lopez’s efforts to treat it and that Defendant Lopez
        knowingly declined to seek medical attention for N.L. Further, a rational
        juror could conclude that N.L. was under the age of eighteen and that
        Defendant Lopez’s failure to seek medical attention adversely affected
        N.L.’s health and welfare, resulting in serious bodily injury.
        Accordingly, the evidence is sufficient to support Defendant Lopez’s
        conviction for aggravated child neglect.

State v. Jennifer Lopez and Sergio Gonzalez, 2015 WL 6083216, at *19. (citations
omitted).

Post-Conviction Hearing

       Petitioner asserts trial counsel rendered ineffective assistance of counsel by (1)
failure to call Petitioner as a witness at trial, and by (2) failure to call certain other
witnesses to testify at trial. Other issues raised in the amended petition for post-
conviction relief in which evidence was presented are not argued on appeal and thus are
waived. Terry L. Hall v. State, No. 01C01-9710-CC-00448, 1998 WL 670650, at *3
(Tenn. Crim. App. Sept. 30, 1998). Thus, our summary of the testimony at the post-
conviction hearing is limited to the evidence regarding the claims asserted on appeal.

       Petitioner testified that she was the person who took her son to the hospital. She
stated that her son was not as severely ill as was described by witnesses called to testify
by the State at trial. She took him to the hospital after he vomited his medicine and then
fell when she “tried to stand him up.”

        Petitioner testified that she discussed with trial counsel whether or not she should
testify at trial. She said that a decision was reached that she would not testify. Petitioner
recalled having an in-court discussion with the trial court concerning her decision to not
testify at trial. She stated that trial counsel advised her not to testify.



                                            -3-
       Petitioner believed afterwards that she should have testified at trial and provided
her “part of the side of the story.” Petitioner stated that she would not have been
convicted if she had the opportunity to tell the jury that she did not know the severity of
her son’s condition, and she would have sought medical attention sooner if she had
known. As to the day leading up to the victim being taken to the hospital, Petitioner
described the situation:

             In that day, um, it was, he was just throwing up a lot. He wouldn’t
        keep nothing down, but I kept giving him, I bought him Pedialyte and
        Tylenol and anti-nausea medicine, um, I thought he had the flu or a
        stomach virus and I made sure he didn’t sleep or you know, I kept an eye
        on him. I kept him in my reach.

       Petitioner claimed that she had called Vanderbilt hospital earlier in the day and
was told “if his condition worsens to bring him that they could not give me any advice
over the phone.” She took her son with her to work to give him his medicine and watch
his condition.

       On cross-examination, Petitioner admitted that she had observed one bruise on the
victim’s arm, but had not seen multiple bruises on his back and his thighs. Petitioner
added that her co-defendant’s mother saw the victim at 2:30 p.m. and her boss and his
family members saw the victim about 8:30 p.m. the night before he was taken to the
hospital around 5:00 a.m.

        Petitioner also acknowledged on cross-examination that it was her decision to not
testify at trial with the advice from trial counsel. She and trial counsel had discussed the
“pros and cons” of her testifying, and she advised the trial court during trial that based on
her discussions with trial counsel, she chose not to testify.

       Trial counsel was called to testify by the State. He testified that he was appointed
to represent Petitioner about a year before the trial. He met with Petitioner on several
occasions prior to trial. He went over all of the discovery with Petitioner, including the
medical records. Due to her limited education, she had a difficult time understanding the
information as written, but he did the best he could to describe the information to her.

       Trial counsel testified that he met with Petitioner’s two prior attorneys, consulted
with an expert witness to understand medical records, and prepared Petitioner to testify.
He was unable to contact Petitioner’s employer. Trial counsel discussed with Petitioner
her assertion that she was a victim of domestic violence by her co-defendant. Trial
counsel felt that submitting proof that Petitioner exposed her child on a daily basis to a
violent person “was a nonstarter for a strategy to seek a not guilty verdict.”



                                            -4-
        Trial counsel acknowledged that he prepared pre-trial with Petitioner for her to
testify at the trial. He initially believed she would be a good witness, but after three days
of the State presenting its evidence, it was clear to trial counsel that Petitioner would be
“outmatched” by the prosecutor. Thus, trial counsel concluded that Petitioner testifying
would create “bigger problems than it would have resolved.” Trial counsel discussed the
pros and cons of testifying with Petitioner, and advised her not to testify. The discussion
was based in part on Petitioner’s being “out of her depth” regarding the medical
testimony, what the proof showed, and how the proof was going to be evaluated by the
jury. He testified that due to Petitioner’s limited education, she did not understand the
medical records relied upon by the State. Trial counsel reached the conclusion that “there
is no way to properly prepare [Petitioner] for some of the testimony that we would have
had to have rebutted in that trial and that is unfortunate.” Petitioner made the decision to
not testify.

        Regarding the other witnesses who Petitioner claimed should have been called to
testify at trial, as noted above, trial counsel was unable to contact Petitioner’s employer.
Also, counsel for the co-defendant unsuccessfully tried to contact Petitioner’s employer.
Even counsel for the co-defendant was unable to get co-defendant’s mother to come to
court to testify or even to cooperate by talking to the attorneys representing Petitioner and
her son.

       Trial counsel obtained the services of an expert to review the victim’s medical
records. Due to the fact that the expert’s conclusions were consistent with the State’s
theory of the case, the expert was not called to testify at trial.

       On cross-examination, trial counsel clarified his earlier testimony that there was
no way to properly prepare Petitioner to successfully testify. He stated that the problem
was not a lack of preparation on his part. Rather, it was a situation where there “could
not have been enough preparation on [Petitioner’s] part to get her to the educational level
necessary to understand the medical testimony that was taking place and how to answer
those questions in a way that would have been beneficial to her if she had taken the
stand.”

        As to the co-defendant’s mother’s lack of cooperation with the attorneys, trial
counsel acknowledged that the mother showed up the last day or two of the trial, but she
still had nothing helpful to offer for Petitioner or the co-defendant.

       The post-conviction court took the matter under advisement at the conclusion of
the hearing. The post-conviction court entered an order denying relief. Relevant to the
issues raised in this appeal, the post-conviction court made the following factual findings.
Trial counsel worked with co-defendant’s counsel to seek cooperation from co-
defendant’s mother, Ms. Ruiz, in order to corroborate Petitioner’s version of the facts.
They were unable to even communicate with Ms. Ruiz until the last day or so of the trial

                                            -5-
when she did come to the courthouse. After being finally advised of what Ms. Ruiz’s
potential testimony would likely be, trial counsel concluded that Ms. Ruiz should not be
called to testify. Trial counsel made efforts to contact Petitioner’s employer, Mr. Ahmed,
but trial counsel was unable to locate him with the information provided by Petitioner.

       The post-conviction court also found that trial counsel worked with Petitioner to
prepare her to testify, and he concluded that Petitioner, because of her limited
understanding of the technical aspects of the case, would have been “outmatched” by the
prosecutor. Accordingly, trial counsel advised Petitioner to not testify, and that Petitioner
made the ultimate decision to not testify. The post-conviction court found that trial
counsel did not refuse to call Petitioner as a witness and did not make the final decision
that Petitioner would not testify. Further, Petitioner participated in a hearing conducted
pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999) and waived her right to testify.

       Based upon these facts, the post-conviction court concluded that trial counsel’s
representation was not deficient. In addition, the post-conviction court concluded that
even if trial counsel had been deficient by failing to call the co-defendant’s mother, Ms.
Ruiz, and Petitioner’s employer and members of his family to testify, Petitioner failed to
prove prejudice. Thus, the post-conviction court denied post-conviction relief.

Analysis

       Petitioner contends that trial counsel rendered ineffective assistance of counsel
because trial counsel failed to call Petitioner as a witness at trial and failed to call certain
other witnesses to testify at trial. However, we find that the evidence does not
preponderate against the post-conviction court’s findings that Petitioner received
effective assistance of counsel.

        To obtain post-conviction relief, a petitioner must prove that his or her conviction
or sentence is void or voidable because of the abridgement of a right guaranteed by the
United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103; Howell v.
State, 151 S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner bears the burden
of proving his or her allegations of fact by clear and convincing evidence. T.C.A. § 40-
30-110(f); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “Evidence is clear
and convincing when there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an
appeal of a court’s decision resolving a petition for post-conviction relief, the court’s
findings of fact “will not be disturbed unless the evidence contained in the record
preponderates against them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

       A petitioner has a right to “reasonably effective” assistance of counsel under both
the Sixth Amendment to the United States Constitution and article I, section 9, of the

                                             -6-
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington,
466 U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective
assistance of counsel, a petitioner must prove both deficient performance and prejudice to
the defense. Strickland, 466 U.S. at 687. Failure to satisfy either prong results in the
denial of relief. Id. at 697.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of inadequate preparation. See
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is
satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.

        First, Petitioner asserts that trial counsel failed to call her as a witness at trial
because she could have testified about the measures that she took concerning the victim’s
care up until the time that he was taken to the hospital and that she did not intentionally
delay in getting him medical care because “his symptoms did not appear to be as serious
as the State alleged.” Petitioner also contends that she could have testified that “once [the
victim’s] condition worsened, she did take immediate action and left work to seek
medical attention for [the victim], and therefore did not neglect him.” However, as stated
above, the post-conviction court found that trial counsel worked with Petitioner to
prepare her to testify. Trial counsel testified that Petitioner, because of her limited
understanding of the technical aspects of the case, would have been “outmatched” by the
prosecutor, and trial counsel concluded that Petitioner’s testifying would create “bigger
problems than it would have resolved.” Trial counsel testified that he discussed the pros
and cons of testifying with Petitioner, and he advised her not to testify. He said that
Petitioner made the ultimate decision to not testify. Petitioner herself admitted at the
post-conviction hearing that trial counsel discussed the pros and cons of testifying with
her, and she advised the trial court during trial that based on her discussions with trial
counsel, she chose not to testify. Therefore, the post-conviction court properly found that
trial counsel did not refuse to call Petitioner as a witness and that trial counsel did not
make the final decision that Petitioner would not testify. Furthermore, as pointed out by
the post-conviction court, Petitioner waived her right to testify by participating in a
Momon hearing. Petitioner is not entitled to relief on this ground.



                                            -7-
       Next, Petitioner contends that trial counsel failed to call “several witnesses that
could have contradicted the State’s assertions at trial that the victim would have been
obviously seriously ill long before [Petitioner] took him to the hospital.” She specifically
mentions that Ms. Ruiz should have been called to testify. However, neither Ms. Ruiz
nor any other witness who Petitioner claims should have testified at trial, testified at the
post-conviction hearing. In cases where a petitioner contends that trial counsel failed to
present a witness in support of the petitioner’s defense, the petitioner should present such
witness at the post-conviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). Neither a trial nor an appellate judge can speculate as to whether that
witness’s testimony would have been favorable to the defense. Id. Therefore, the
petitioner should “produce a material witness who . . . would have testified favorably in
support of his defense if called [at trial]. Otherwise, the petitioner fails to establish the
prejudice requirement mandated by Strickland v. Washington.” Id. at 758. Because none
of the witnesses testified at the post-conviction hearing, the Petitioner has failed to show
that she was prejudiced by the failure of trial counsel to call any witnesses at trial. See id.
at 757-58. The Petitioner is not entitled to relief on this ground.

                                      CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the post-conviction
court’s dismissal of the petition.

                                    ____________________________________________
                                    THOMAS T. WOODALL, JUDGE




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