        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  July 23, 2013 Session

               STATE OF TENNESSEE v. JACQUELINE CRANK

                 Appeal from the Criminal Court for Loudon County
                      No. 10611 B    E. Eugene Eblen, Judge


              No. E2012-01189-CCA-R3-CD - Filed September 26, 2013


Jacqueline Crank (“the Defendant”) was convicted after a bench trial of one count of
misdemeanor child abuse or neglect. The trial court sentenced the Defendant to eleven
months, twenty-nine days, suspended to probation. In this direct appeal, the Defendant
challenges the constitutionality of the “spiritual treatment exemption” provision set forth in
Tennessee Code Annotated section 39-15-402(c). The Defendant also contends that, if this
Court affirms her conviction, this matter must be remanded for a hearing under Tennessee’s
“Preservation of Religious Freedom” statute, codified at Tennessee Code Annotated section
4-1-407. Upon our thorough review of the record and relevant authority, for the reasons
stated herein, we conclude that it is not necessary to address the constitutional issue or to
remand this matter. We affirm the judgment of the trial court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and N ORMA M CG EE O GLE, JJ., joined.

Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Jacqueline Crank.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Russell Johnson, District Attorney General; and Frank Harvey, Assistant District Attorney
General, for the appellee, State of Tennessee.

Catherine Emma Swan, Steamboat Springs, Colorado, and A Wayne Henry, Loudon,
Tennessee, for the Amici Curiae Children’s Healthcare Is a Legal Duty; Tennessee Chapter
of the American Academy of Pediatrics; Tennessee Medical Association; Prevent Child
Abuse Tennessee; National Child Protection Training Center; Institute for Science in
Medicine; First Star; and Donald N. Duquette.
                                              OPINION

                             Factual and Procedural Background

        The Defendant was charged with one count of child abuse or neglect related to the
2002 death of her teenage child.1 See Tenn. Code Ann. § 39-15-401(a) (Supp. 2002). The
trial court initially granted the Defendant’s motion to dismiss the indictment. The State
appealed the dismissal to this Court. This Court reversed the trial court’s dismissal of the
charges and remanded the case for further proceedings on the reinstated indictment. See
State v. Ariel Ben Sherman & Jacqueline P. Crank, No. E2006-01226-CCA-R3-CD, 2007
WL 2011032, at *8 (Tenn. Crim. App. July 12, 2007), perm. app. granted (Tenn. Jan. 28,
2008). This Court’s decision was affirmed by the Tennessee Supreme Court. See State v.
Sherman, 266 S.W.3d 395, 410 (Tenn. 2008).

       On remand, the trial court ruled on additional defense motions that previously had
been held in abeyance. Additionally, in 2009, after consideration of some proof presented
by the parties, the trial court denied the Defendant’s renewed motion to dismiss the
indictment again on constitutional grounds but granted the Defendant permission to seek
interlocutory review. In June 2009, this Court denied the Defendant’s application for
interlocutory review. In September 2009, the Tennessee Supreme Court also denied
interlocutory review.

       During the pendency of the Defendant’s request for interlocutory review in 2009, the
Tennessee General Assembly passed the “Preservation of Religious Freedom Act.” See 2009
Tenn. Pub. Acts ch. 573, § 1. After this Court and the Tennessee Supreme Court denied
interlocutory review of her renewed motion to dismiss the indictment, the Defendant
attempted to convince the trial court to apply this newly-enacted statute to this prosecution.
The trial court concluded that this new statute did not apply in this case.

        Subsequently, the Defendant waived her right to a jury trial and stipulated to a bench
trial based upon affidavits and prior sworn testimony. We have summarized the proof below.

        Dr. Guy Wells, a doctor of chiropractic, testified by affidavit as follows:

        [O]n February 11, 2002[,] I had an occasion to examine and x-ray a child
        identified to me as Jessica Crank. She was brought to my office by her


        1
          Ariel Ben Sherman also was charged with child abuse or neglect in connection with the teenage
child’s death. Mr. Sherman was convicted of this offense, but he died during the pendency of this appeal.


                                                  -2-
       mother, Jacqueline Crank. A brief exam of the child was given, an x-ray was
       taken, and based upon the same she was instructed to return on February 18,
       2002. Jacqueline Crank, along with the child Jessica Crank and an individual
       identified as Ariel Sherman, who signed Jessica Crank in as her father, did
       return on February 18, 2002. Based upon an additional x-ray and examination
       of Jessica Crank, I informed Jacqueline Crank and Ariel Sherman that I could
       not treat her and that she needed to be taken to an emergency room
       immediately. . . . I was able to determine to a reasonable degree of medical
       certainty that her condition was quite serious and it appeared likely to be some
       sort of malignancy. Before leaving my office, Jacqueline Crank and Ariel
       Sherman indicated they would take Jessica Crank to an emergency room.

              Later on February 18, 2002, Ariel Sherman called me, identifying
       himself as Jessica Crank’s father, and informed me that he was not taking her
       to an emergency room but that he had gotten a telephone diagnosis from a
       Boston doctor of Green Stick Fracture and was taking her to Boston to see the
       doctor there.

        Tracy Gartman, a nurse practitioner practicing in Lenoir City in May 2002, set forth
the following in her affidavit:

       On May 6, 2002[,] I had occasion to examine a child identified to me as
       Jessica Crank who presented with a severely swollen left shoulder and
       appeared to be in severe pain. An x-ray of Jessica Crank’s shoulder was taken
       and I was able to identify bone disintegration and other indications of a serious
       medical condition requiring immediate treatment.

              To that end, these indications on the x-ray were pointed out to her
       mother, Jacqueline Crank, the significance and seriousness of her medical
       condition was discussed and she was instructed to take her child, Jessica
       Crank, immediately to the U. T. Emergency Room. I arranged with a
       physician at the U. T. Emergency Room to be ready for her arrival for further
       diagnosis and treatment of her condition. Thereafter, as follow-up to this exam
       and visit, U. T. was contacted and at that time I discovered that Jacqueline
       Crank and Jessica Crank had never arrived at the Emergency Room. Based
       upon this finding, local law enforcement was notified of the above described
       incident.




                                              -3-
        Lynette Ladd, an officer with the Lenoir City Police Department, testified by affidavit
as follows:

       I received a complaint of possible child neglect from Physician’s Care, a
       medical facility located in Loudon County, Tennessee. Based upon the
       information provided, I began a search for an individual identified as Jessica
       Crank who I had reason to believe was in need of medical care.

              On June 24, 2002[,] I located Jessica Crank at 1805 Wheat Road,
       Lenoir City, Tennessee which is an address located within Loudon County,
       Tennessee. Along with Department of Children Services and other law
       enforcement officials, Jessica Crank was removed from that home and from
       the custody of Jacqueline Crank and was promptly placed in East Tennessee
       Children’s Hospital in Knoxville, Tennessee.

              After a period of time in said facility, Jessica Crank was released back
       to her mother under hospice care and she died on September 15, 2002.

       Dr. Victoria Castaneda, a pediatric oncologist, testified by affidavit as follows:

       In the year 2002[,] I was affiliated with East Tennessee Children’s Hospital in
       Knoxville, Tennessee working in the Pediatric Oncology and Hematology
       Department. In my capacity there I had occasion to examine and provide care
       and treatment for the minor child Jessica Crank who was diagnosed as
       suffering from terminal Ewing’s Sarcoma. I was aware from her medical
       records that she was initially taken to see a Doctor of Chiropractic in February
       2002 and thereafter in May 2002 to a medical clinic (Physician’s Care) in
       Lenoir City, Tennessee where she was examined by a Nurse Practitioner. I am
       aware from her medical records that on both occasions the adult or adults
       present with her were told to immediately take her to an emergency room for
       treatment.

              Jessica Crank, then in the custody of the Department of Human
       Services, was admitted to East Tennessee Children’s Hospital in late June
       2002 where she remained undergoing treatment and care until being released
       under hospice care, eventually succumbing to her cancer on September 15,
       2002.

              I can state, based upon my training, experience and treatment of Jessica
       Crank, that her death was a proximate result of Ewing’s Sarcoma. A delay in
       the treatment of her disease results in a more massive tumor and renders the

                                              -4-
       patient more symptomatic. While earlier treatment would not likely have
       resulted in her being cured, it would have helped in dealing with her condition
       and symptoms and positively impacted the quality of her life.

              With prompt treatment beginning in February 2002 the quality and
       length of her remaining life would have been improved and medical personnel
       would have been better able to manage her pain and disability.

        The Defendant testified that she had two children, Jessica and Israel. She stated that
Jessica was twenty-two years old, “living but not here.” The Defendant acknowledged that,
in her lawyer’s “terms,” Jessica “would be deceased.” In 2002, Jessica was fifteen years old.
The Defendant described her daughter as “a very outgoing, athletic, fun loving, responsible
young lady. She was a believer in Jesus Christ. Jesus Christ was her Lord, her Savior, her
King, her Redeemer.”

       In 2002, the Defendant “knew that [Jessica] had had a problem with her shoulder.”
She took Jessica to see a nurse practitioner. According to the Defendant, Jessica’s condition
“was improving” but, eventually, Jessica developed “a grapefruit size tumor on her
shoulder.”

       The Defendant testified that, for treatment, she

       decided to turn to Jesus Christ, my Lord and my Savior, my Healer, Defender
       for her healing. That being a believer in the Lord, being a believer in this
       Word, that He was the only Healer. And through that belief we took it in our
       hands to pray for her, to heal her with prayer, to know that Jesus Christ is the
       Healer, is the Deliverer.

Accordingly, she and Jessica prayed together and read the scriptures. Jessica also was put
on the prayer list of several ministries, and “[t]here were churches, believers, all over, all
denominations all over the country praying for her.” The Defendant described her faith as
“devout Christianity.”

      The Defendant acknowledged that, at some point, the State took Jessica from the
Defendant’s home.

      The Defendant testified that at Jessica’s memorial service the Defendant and others
prayed and “laid hands upon her” in an attempt to resurrect her.




                                             -5-
       On cross-examination, the Defendant acknowledged that she had taken Jessica to
doctors on at least two occasions. She stated that, nevertheless, she “turned to Jesus Christ”
to heal Jessica from her condition.

        On the basis of this proof, the trial court found the Defendant guilty as charged. The
trial court sentenced the Defendant to eleven months and twenty-nine days, suspended to
unsupervised probation.

        In this direct appeal, the Defendant contends that the “spiritual treatment exemption”
provision contained in Tennessee Code Annotated section 39-15-402(c) is unconstitutional.
The Defendant further posits that, if we conclude that this provision is unconstitutional, we
must reverse her conviction and dismiss the charge. Finally, in the alternative, the Defendant
contends that, if this Court affirms her conviction, she is entitled to a hearing under
Tennessee’s “Preservation of Religious Freedom” statute, codified at Tennessee Code
Annotated section 4-1-407, to determine if this statute applies to the Defendant in a manner
to vitiate her conviction.

                                          Analysis

                  The Statutory Spiritual Treatment Exemption Provision

       In 2002, the year of the instant offense, Tennessee Code Annotated section 39-15-
402(c) provided as follows:

               Nothing in this chapter [Tennessee Code Annotated Title 39, Chapter
       15, setting forth certain offenses against children, including child abuse and
       neglect] shall be construed to mean a child is neglected, abused, or abused or
       neglected in an aggravated manner for the sole reason the child is being
       provided treatment by spiritual means through prayer alone in accordance with
       the tenets or practices of a recognized church or religious denomination by a
       duly accredited practitioner thereof in lieu of medical or surgical treatment.




                                             -6-
Tenn. Code Ann. § 39-15-402(c) (Supp. 2002).2 The Defendant argues that this provision
“violates due process as unconstitutionally vague” and that it “violates the Establishment
Clause and equal protection guarantees.” The Defendant also contends that, in light of the
provision’s unconstitutionality, her conviction must be reversed and the charge dismissed.

        The State disagrees that the provision is unconstitutionally vague and asserts that,
even if it violates the First Amendment, the Defendant is not entitled to relief. Amici Curiae,
in addition to agreeing that the provision is unconstitutionally vague, contend that the
provision violates the equal protection rights of children. They also advocate that the remedy
in this case is solely to strike the exemption provision, resulting in our upholding the
conviction.

       Our research convinces us that this issue is controlled by our supreme court’s decision
in State v. Murray, 480 S.W.2d 355 (Tenn. 1972). In Murray, the defendant was charged
with violating Tennessee Code Annotated section 39-1957, which made it a felony for a
person to dispose of or conceal collateral subject to a security interest with the intention of
depriving the secured party of the collateral. The statute also provided that, “‘If the person
so disposing of the property shall pay the debt to secure which the security agreement was
executed before he is arraigned for trial, he shall not be held liable hereunder.’” Murray, 480
S.W.2d at 356 (quoting Tenn. Code Ann. § 39-1957). The defendant filed a motion to quash
the indictment on the grounds that the statute was unconstitutional because a resulting
conviction “would constitute imprisonment for debt in violation of Article 1, Section 18, of
the [Tennessee] Constitution.” Id. The trial court relied upon the latter statutory language
quoted above in finding the statute unconstitutional and dismissing the indictment.

        The State appealed. The Tennessee Supreme Court reversed the trial court and
reinstated the charge. Id. at 357. Our supreme court first recognized that the “[s]tatutes of
this State are severable,” id. (citing Tenn. Code Ann. § 1-310), and that “[t]he fact that one
provision of a statute is unconstitutional does not affect the validity of other independent
provisions.” Id. at 356 (citing State v. Scott, 39 S.W. 1 (Tenn. 1897), State v. Wilson, 80
Tenn. 246 (1883)). The court then concluded that the portion of the statute held

       2
           The statute currently provides as follows:

                Nothing in this part shall be construed to mean a child is abused, neglected, or
       endangered, or abused, neglected or endangered in an aggravated manner, for the sole reason
       the child is being provided treatment by spiritual means through prayer alone, in accordance
       with the tenets or practices of a recognized church or religious denomination by a duly
       accredited practitioner of the recognized church or religious denomination, in lieu of
       medical or surgical treatment.

Tenn. Code Ann. § 39-15-402(c) (Supp. 2012).

                                                        -7-
unconstitutional by the trial court “would not destroy the entire statute because the balance
of the statute is capable of being enforced in accordance with the apparent legislative intent.”
Id. at 357. On this basis, the Tennessee Supreme Court held as follows:

               This Court will not pass on the constitutionality of a statute, or any part
        of one, unless it is absolutely necessary for the determination of the case and
        of the present rights of the parties to the litigation.

               Where, as in this case, to ascertain rights of a party, it was only
        necessary to decide whether a portion of the statute could be elided if
        unconstitutional, and actual decision as to constitutionality was not necessary,
        actual decision as to constitutionality of the paragraph in question should be
        pretermitted.

Id. (emphasis added) (citations omitted).

       We hold that the same result is required in the instant case. Tennessee Code
Annotated section 39-15-402, which currently describes the offenses of aggravated child
abuse and aggravated child neglect or endangerment, originally was passed in 1989 as part
of a major restructuring of our criminal code. See 1989 Tenn. Pub. Acts ch. 591, § 1 (“the
Original Act”). The spiritual treatment exemption provision originally was passed by the
Tennessee General Assembly in 1994 as an amendment to section 39-15-402. See 1994
Tenn. Pub. Acts ch. 978, § 8 (“the Spiritual Treatment Exemption Act”). Significantly, one
of the provisions of the Original Act provides as follows:

        If any provision of this act or the application thereof to any person or
        circumstance is held invalid, such invalidity shall not affect the other
        provisions or applications of the act which can be given effect without the
        invalid provision or application, and to that end the provisions of this act are
        declared to be severable.

1989 Tenn. Pub. Acts. ch. 591, § 120. Nothing in the Spiritual Treatment Exemption Act
purported to impact this severability provision of the Original Act.3



        3
          Although Tennessee Code Annotated section 39-15-402 was amended in 1996 and 1998 (prior to
the time at which the instant offense was committed), those amendments also did not purport to impact the
severability provision of the Original Act. See 1996 Tenn. Pub. Acts ch. 1069, §§ 1-2; 1998 Tenn. Pub. Acts
ch. 1040, §§ 1-4. We note, moreover, that when the General Assembly amended the Spiritual Treatment
Exemption Act in 2005, after the instant offense, a severability clause was added. See 2005 Tenn. Pub. Acts
ch. 487, §§ 2, 3.

                                                   -8-
       Tennessee Code Annotated section 39-15-401, the provision under which the
Defendant was convicted, was also passed in the Original Act.4 See 1989 Tenn. Pub. Acts
ch. 591, § 1. The Defendant has cited us to no authority for the proposition that section -401
was unconstitutional during the period between the time it was enacted and the time at which
the Spiritual Treatment Exemption Act was passed. Clearly, then, if we were to hold the
Spiritual Treatment Exemption Act unconstitutional, “it would not destroy the entire statute
because the balance of the statute is capable of being enforced in accordance with the
apparent legislative intent.” Murray, 480 S.W.2d at 357.

       In short, even if we were to hold the Spiritual Treatment Exemption Act
unconstitutional, as urged by both the Defendant and Amici Curiae, such a holding would
not impact the Defendant’s conviction.5 Rather, we simply would elide the Spiritual
Treatment Exemption Act from the statute, as contemplated by the severability provision of
the Original Act. Accordingly, the Defendant’s conviction would stand. Therefore, we are
bound by Tennessee Supreme Court precedent to consider pretermitted the issue of the
constitutionality of the Spiritual Treatment Exemption Act. See id. As a result, the
Defendant is entitled to no relief on this basis.6

                  Applicability of Tennessee Code Annotated Section 4-1-407

        In 2009, the Tennessee General Assembly enacted a statute referred to as the
“Preservation of Religious Freedom Act.” See 2009 Tenn. Pub. Acts ch. 573, § 1. The
statute contains the following provisions:




        4
          The statute proscribing the offense of which the Defendant was convicted provided as follows:
“Any 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 commits a Class A misdemeanor[.]” Tenn. Code Ann. § 39-15-401(a) (Supp. 2002).
        5
         Although the Spiritual Treatment Exemption Act amended Tennessee Code Annotated section 39-
15-402, it was also applicable to section 39-15-401(proscribing the offense of which the Defendant was
convicted) because it referred to all of the statutes in Title 39, Chapter 15 of our criminal code. See Tenn.
Code Ann. § 39-15-402(c) (Supp. 2002) (“Nothing in this chapter shall be construed . . . .”) (emphasis
added). Chapter 15 includes section 39-15-401.
        6
          Our decision on this issue also accords with our supreme court’s directive that, “‘under Tennessee
law, courts do not decide constitutional questions unless resolution is absolutely necessary for determination
of the case and the rights of the parties.’” Dellinger v. State, 279 S.W.3d 282, 290 (Tenn. 2009) (quoting
Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)).

                                                     -9-
               (b) Except as provided in subsection (c), no government entity shall
       substantially burden a person’s free exercise of religion even if the burden
       results from a rule of general applicability.

              (c) No government entity shall substantially burden a person’s free
       exercise of religion unless it demonstrates that application of the burden to the
       person is:

              (1) Essential to further a compelling governmental interest; and

             (2) The least restrictive means of furthering that compelling
       governmental interest.

Tenn. Code Ann. § 4-1-407 (b), (c) (2011).

        Prior to her bench trial, the Defendant sought a ruling from the trial court that
Tennessee Code Annotated section 4-1-407 applied to her case and that, therefore, the State
could not proceed in its prosecution of her until it demonstrated that the prosecution was (1)
“[e]ssential to further a compelling governmental interest” and (2) the “least restrictive
means of furthering that compelling governmental interest.” Id. As her basis for seeking the
application of section -407, the Defendant claimed that the State’s prosecution was a burden
on her free exercise of religion. The trial court denied the Defendant’s motion on the basis
that the statute, enacted in 2009, did not apply retroactively to her prosecution, which was
commenced in April 2003 on the basis of an offense committed in 2002. The Defendant
argues on appeal that the trial court’s ruling was in error. The State disagrees.

        As pointed out by the State in its brief, our supreme court has declared that “it is a
well-settled rule that statutes are to be applied prospectively in the absence of clear
legislative intent to the contrary,” and that “the absence of express language providing for
retroactive application supports the conclusion that the legislature did not expressly intend
such an application.” Van Tran v. State, 66 S.W.3d 790, 797-98 (Tenn. 2001); see also State
v. Odom, 137 S.W.3d 572, 582 (Tenn. 2004) (refusing to apply statute retrospectively where
statute was silent as to retrospective application, in part on basis that, “had the legislature
intended to depart from the long-established rule that statutes are presumed to apply
prospectively, it could have so indicated”). Certainly, the express language of the
“Preservation of Religious Freedom” statute includes no indication that the General
Assembly intended retroactive application, and the Defendant has cited us to no authority
indicating that our legislature did intend retroactive application.




                                             -10-
      Moreover, our General Assembly has made clear that criminal conduct is to be
prosecuted according to the statutes in effect at the time of the offense, regardless of
subsequent legislation:

              Whenever any penal statute or penal legislative act of the state is
       repealed or amended by a subsequent legislative act, any offense, as defined
       by the statute or act being repealed or amended, committed while such statute
       or act was in full force and effect shall be prosecuted under the act or statute
       in effect at the time of the commission of the offense.

Tenn. Code Ann. § 39-11-112 (1997).7 The Defendant would have section 4-1-407 applied
in such a way as to effect an amendment to section 39-15-401. We reject this application as
contrary to the General Assembly’s expressed intent.

        We recognize, of course, that “statutes that are remedial or procedural in nature may
be applied retroactively to causes of action arising before the acts became law and to suits
pending when the legislation took effect.” State v. Hanners, 235 S.W.3d 609, 612 (Tenn.
Crim. App. 2007) (citing In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004)). We disagree
with the Defendant, however, that section 4-1-407 is merely remedial or procedural, at least
if it were interpreted in the manner advanced by the Defendant. Rather, if applied as argued
by the Defendant, it may have the effect of completely defeating the State’s right to prosecute
a criminal offense. Certainly, this result is substantive in nature, and “the long standing legal
principle [is] that statutes changing substantive rights will not be given retrospective
application.” Hays v. Hays, 709 S.W.2d 625, 627 (Tenn. Ct. App. 1986) (citing Saylors v.
Riggsbee, 544 S.W.2d 609 (Tenn. 1976)). Accordingly, we hold that the trial court
committed no error in refusing to apply section 4-1-407 retroactively. The Defendant is
entitled to no relief on this basis.




       7
           Currently, this statute provides as follows:

               When a penal statute or penal legislative act of the state is repealed or amended by
       a subsequent legislative act, the offense, as defined by the statute or act being repealed or
       amended, committed while the statute or act was in full force and effect shall be prosecuted
       under the act or statute in effect at the time of the commission of the offense.

Tenn. Code Ann. § 39-11-112 (2010).

                                                     -11-
                                 Conclusion

For the reasons set forth above, we affirm the trial court’s judgment.




                                            _ _ _ ________________________ _ _ _
                                            JEFFREY S. BIVINS, JUDGE




                                     -12-
