            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

                STATE OF TENNESSEE v. RAYMOND D. SIMPSON

                                   Circuit Court for Dickson County
                                            No. CR-6451A



                      No. M2003-02951-CCA-R3-CD - Filed January 7, 2005


JOHN EVERETT WILLIAMS, J., Separate concurring opinion.

        I write separately to call attention to what I believe is disparate treatment of two cases which,
on all pertinent points, seem to be identical. The case presently before this Court involves an
inattentive or negligent driver having a single-vehicle accident while transporting two of his children
and his new wife in a vehicle with no seat belts or child restraint devices. In a tragic, yet foreseeable,
turn of events, eleven-month-old Jonathan was fatally injured when the truck rolled over on its side
and his head struck a pillar on the passenger side of the truck. Despite the efforts of his father, the
defendant in this case, young Jonathan died from cardiac arrest resulting from his head trauma.

       The defendant was subsequently indicted on eight counts, including: aggravated child abuse
and neglect (a Class B felony); criminally negligent homicide (a Class E felony); reckless homicide
(a Class D felony); reckless endangerment (a Class A misdemeanor); vehicular homicide (a Class
C felony); aggravated assault (a Class C felony); violation of the child passenger restraint law (a
Class C misdemeanor); and violation of the safety belt law (a Class C misdemeanor).1 Following
the indictment, the defendant pled guilty to criminally negligent homicide, and received the
maximum sentence of two years in split confinement, which included the maximum amount of
incarceration allowed by law, seven months.

        Although I initially believed that failure to have a child properly restrained in a vehicle while
traveling could support a conviction for criminally negligent homicide, I was in error. In State v.
Latrece Jones, No. E2002-00893-SC-R11-CD, 2004 Tenn. LEXIS 992 (Tenn. 2004), a mother was
convicted of criminally negligent homicide when her child, who was unrestrained, was killed when
an airbag deployed in a minor accident, breaking the child’s neck. Id. at *8. In that case, our
supreme court held that failing to have a child properly restrained in a vehicle, while constituting a
substantial and unjustifiable risk, did not amount to a gross deviation from the standard of care. Id.
at *16-17. As part of its reasoning the supreme court opined:



        1
          As of the time of this defendant’s indictment and guilty plea, the Tennessee Supreme Court had not yet
decided State v. Latrece Jones, which is used extensively for comparison purposes in this opinion.
        Third, the very fact that there was a need for a large-scale public information
        campaign aimed at educating parents about child car safety indicates, sadly, how
        many people in the community simply were not using child safety restrained at the
        time of the accident. . . If 40% of the children being transported in Ms. Jones’
        community were being transported without being properly restrained at the time of
        the accident, it would be difficult for a rational trier of fact to conclude that it was a
        gross deviation from the standard of care at the time of the accident for Ms. Jones to
        transport her child improperly.
Id. at *17-18.

         Accordingly, Ms. Jones’s conviction for criminally negligent homicide did not stand. In this
case, I revisit the same issue and am unable to find any material distinction between the two cases.

                             State v. Simpson                           State v. Jones
 Defendant              Father (Driver)                          Mother (Passenger)
 Victim’s Age           11 Months                                2 Years
 Placement in           Held in lap on front passenger seat      Held in lap on front passenger seat
 Vehicle
 Type of Vehicle        Pick-up Truck                            Mid-size Passenger Vehicle
 Type of Safety         None                                     Seatbelts and Airbags
 Equipment in
 Vehicle
 Type of Accident       Single vehicle which left the            Two-car accident; the result of a
                        roadway and rolled onto its side         failure to yield
 Warning of             Defendant was aware of the law           Defendant was advised at the
 Danger Received        requiring child restraint; received      hospital pursuant to statute; public
                        order from juvenile judge; multiple      service announcements; three
                        requests from mother of child to         specific warnings visible in the
                        comply                                   interior of the vehicle
 Cause of               Child’s head struck a pillar; child      Child suffered a broken neck when
 Victim’s Death         died of cardiac arrest resulting         passenger-side air bag deployed
                        from head trauma

        While there are minor factual differences, I am bothered by the striking disparity in the results
of the two cases: the defendant in Jones was not guilty, while the defendant in the present case
received the maximum sentence. I recognize that, unlike in Jones, the defendant in the present case
pled guilty and that the sufficiency of the evidence is not contested. Moreover, although I agree that
such behavior should not go unpunished, as evidenced by my opinion in Jones, I feel that these
diametrically opposed results undermine judicial consistency and detract from the lawmaking
function of the legislative branch.

       As aforementioned, the supreme court in Jones noted that 40% of the children being
transported in Ms. Jones community (Hamilton County) were being transported unrestrained;

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therefore, the court reasoned, her conduct was not a gross deviation from the standard of care. In the
instant case, the State offered similar statistics from Dickson County showing that approximately
52% and 49% of the children of like age as the victim were being transported unrestrained in 2000
and 2001, respectively. These statistics further showed that there had been no fatal injury to children
under age twelve, restrained or unrestrained, in Dickson County from 1998-2001. The trial judge,
in turn, used these statistics to bolster a deterrence theory and sentence the defendant to the
maximum period of incarceration. I question how, on the one hand, a statistic can be used to show
no criminal culpability and, on the other hand, justify maximum incarceration.

        Undoubtedly, the death of a child is tragic. When a death could have easily been prevented,
it seems to cry out all the more for justice and punishment for the individuals responsible for failing
to protect those who cannot protect themselves. As such, I do believe that there is a need for strictly
defined treatment for situations such as are presented by these cases. It is the distinct province of
our legislature to define and enact criminal laws; therefore, until our lawmaking body addresses the
circumstances that have emerged in these cases, I am of the opinion that we are bound to follow the
precedent set in Jones.

        The mother of the victim in this case submitted a very moving statement that describes the
hurt and pain caused by the loss of her child. Her statement reflected the love shared for the victim,
and impact their loss had on her and the victim’s siblings. I am obligated to follow what I believe
is the guidance of our supreme court. I chose to write separately to draw attention to this tragic case;
perhaps the Legislature will choose to act. At present, failing to have a child properly restrained in
a vehicle is punished as a Class C misdemeanor, the minimum offense of our criminal code.




                                                        ____________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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