                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                                     June 14, 2001 Session

                  STATE OF TENNESSEE v. MILES MATEYKO

                  Appeal by Permission from the Court of Criminal Appeals
                             Circuit Court for Lincoln County
                         No. S9700139     Hon. Charles Lee, Judge



                     No. M1998-00275-SC-R11-CD - Filed August 29, 2001



The defendant was charged and convicted of child abuse through neglect in violation of Tennessee
Code Annotated section 39-15-401(a). The Court of Criminal Appeals reversed the conviction,
finding that the State did not establish that the defendant’s children suffered any actual, deleterious
effect or harm from the neglect. However, the intermediate court found that the defendant was guilty
of attempted child abuse through neglect, and it remanded the case for resentencing. The State
requested permission to appeal to this Court, and we hold that section 39-15-401(a) does require
proof of an actual, deleterious effect or harm to the child’s health and welfare and that the mere risk
of harm is insufficient to support a conviction. We also hold that in those cases in which no such
actual, deleterious effect or harm is shown, a defendant may be convicted of attempted child abuse
through neglect under Tennessee Code Annotated section 39-12-101, provided that the State is
successful in making the required showing. Because the record in this case contains conflicting
evidence as to the required intent necessary for the attempted crime, we remand this case to the
Lincoln County Circuit Court for a new trial on the lesser-included offense of attempted child abuse
through neglect. The judgment of the Court of Criminal Appeals is affirmed in part and reversed
in part.

        Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the
      Court of Criminal Appeals Affirmed in Part, Reversed in Part; Case Remanded

WILLIAM M. BARKER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and
FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee.

N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellee, Miles Mateyko.
                                               OPINION

                                    FACTUAL BACKGROUND

         During the late evening of May 1, 1997, emergency medical personnel responded to a call
at the home of the defendant, Miles Mateyko, whose wife was suffering from chest pains. When the
medical personnel arrived, Ms. Mateyko met them in the yard, and they treated her inside the
ambulance. Although the paramedics offered to take her to the hospital, Ms. Mateyko said that she
felt better and would rather stay home.

        One of the paramedics then helped her back to her mobile home, and upon opening the front
door, he found the conditions inside to be almost indescribably filthy. Garbage and refuse were
scattered throughout the home, and pungent odors of urine, old fried food, and human feces
permeated every corner. The paramedic further observed a baby lying in a pile of trash and dirty
clothes with only the top of its head visible, and he saw two children asleep on a couch under a
roach-infested blanket.

         Local police authorities were then summoned to the defendant’s residence, where they also
observed a pool of vomit in front of the door, filthy dishes in the kitchen, and moldy and rotten food
littered throughout the trailer. The officers also found feces on the floor next to the commode in the
bathroom, which was likewise exceptionally filthy. Later describing the terrible conditions in the
mobile home, one officer testified that the refuse strewn about was so considerable that he could not
see any part of the floor, and another officer stated that he had to go outside periodically to breathe
fresh air and to shake the roaches off his pants.

       The officers contacted the Department of Children’s Services, who removed the defendant’s
three children that night and took them to their grandmother’s house. Despite living in these
abhorrent conditions, however, the children appeared by all accounts to be in good health, and they
did not exhibit any signs of illness or other affliction, except that one child was suffering from a
cold. Their grandmother later testified that when the children first arrived at her house during the
early morning hours of May 2, she believed them to be well-fed and “in perfect health.”

        On December 16, 1997, a Lincoln County grand jury indicted the defendant on three counts
of neglect of children less than six years of age in violation of Tennessee Code Annotated section
39-15-401(a). At trial, the State introduced several witnesses who described the appalling conditions
of the mobile home, but it did not introduce any evidence showing that these conditions produced
an adverse effect to the health of the children. In fact, while all of the State’s witnesses testified that
the children’s health and welfare were at risk of harm, they also all agreed that the children were in
good health at the time of their removal. One officer further admitted that, apart from the deplorable
conditions of the mobile home, he had no reason to believe that the children were unhealthy in any




                                                   -2-
way. Nevertheless, the jury returned a guilty verdict on all three counts of child neglect,1 and the
court sentenced the defendant to serve an effective term of three years, four months in the
Department of Correction.

        The defendant then appealed to the Court of Criminal Appeals, arguing that because the State
introduced no proof that the conditions inside the mobile home caused or produced an actual,
deleterious effect upon the children’s health and welfare, the evidence was insufficient to support
a conviction for child neglect under section 39-15-401(a). The intermediate court agreed, and it
vacated the defendant’s conviction upon finding that “the record is devoid of any proof of a medical
or scientific nature that these conditions in and of themselves equated to harm.”

        However, despite the absence of actual harm to the children, the Court of Criminal Appeals
concluded that the defendant was guilty of attempted child neglect. The court stated that under
Tennessee Code Annotated section 39-12-101(a)(3), a defendant could be guilty of attempted child
neglect if he or she intended to complete a course of action resulting in child neglect and had taken
a substantial step toward the commission of that offense. Further finding that “the jury’s verdict is
necessarily a finding on each count that the defendant committed acts which constitute an attempt
to commit child neglect,” the court remanded the case for resentencing.

        We granted the State’s request for permission to appeal on the issue of whether the offense
of child abuse through neglect contained in Tennessee Code Annotated section 39-15-401(a) requires
proof of an actual, deleterious effect upon the child’s health and welfare.2 The defendant has also
raised the issue of whether the Court of Criminal Appeals correctly held that one may be lawfully
convicted of attempted child neglect. For the reasons given herein, we hold that some proof of an
actual, deleterious effect upon the child’s health and welfare must exist before a conviction may be
sustained under Tennessee Code Annotated section 39-15-401(a). We also hold that the defendant
may be guilty of attempted child neglect under Tennessee Code Annotated section 39-12-101(a)(3),
provided that the State proves that the defendant’s conscious object or desire was to engage in


         1
            The offense of child abuse and neglect proscribed by Tennessee Code Annotated section 39-15-401 (a) is a
single offense that may be committed through one of two courses of conduct: child abuse throu gh injury and child abuse
through neglect. See State v. Hodges, 7 S.W.3d 609, 622 (Tenn. Crim. App. 1998). Although the criminal code contains
no specific offense labele d “child neglect,” we will generally refer to the child abuse through neglect prong of section
39-15-401(a) as “child neglect” for ease of reference.

         2
            Oral argument in this case was heard on June 14, 2001 in Nashville. Although Chief Justice Anderson was
unavoida bly absent from argument, the parties were informed in open court of his participation in the discussion and
decision o f this case pursua nt to Rule 1( a)(ii) of the Intern al Opera ting Proce dures of the T ennessee S upreme C ourt:
                    Absent exception al circumstan ces, all membe rs of this Court sh all participate in the hearing
         and determination of all cases unless disqualified for co nflicts. However, a hearing shall proceed as
         scheduled notwithstanding the unavoidable absence of one or more justices. Any justice wh o is
         unavoida bly absent from the hearing m ay participate in the determ ination of the case either by
         teleconferencing, videoconferencing, or by reviewing the tape of oral argument, subject to the
         determination of the Chief Justice. Cou nsel shall be advised in open co urt that the abse nt justice will
         fully participate in the discussion and decision of the case.

                                                            -3-
conduct constituting neglect and that he took a substantial step toward the commission of the
offense. Because the record contains conflicting evidence as to the defendant’s intent in this regard,
we remand this case to the Lincoln County Circuit Court for a new trial on the lesser-included
offense of attempted child neglect.

           NECESSITY OF PROVING AN ACTUAL, DELETERIOUS EFFECT
                   UPON A CHILD’S HEALTH AND WELFARE

       Because the first issue in this case concerns the proper construction given to Tennessee Code
Annotated section 39-15-401(a), we begin our analysis with a review of its text. This section
provides that

       [a]ny 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; provided, that if the abused or neglected child is six (6) years of age
       or less, the penalty is a Class D felony.

(emphasis added). As we have recognized before, the offense of child neglect requires proof of three
material elements: (1) that a person knowingly neglected a child, (2) that the child’s age is within
the applicable range set forth in the statute, and (3) that the neglect adversely affected the child’s
health and welfare. See State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). However, the statute
itself does not define the phrase “so as to adversely affect the child’s health and welfare,” nor does
it specifically address whether this phrase requires proof of some actual detriment or harm before
criminal liability may be imposed.

        A cardinal rule of statutory construction is that statutes are construed according to the plain
and ordinary meaning of their terms. See, e.g., State v. Mallard, 40 S.W.3d 473, 480 (Tenn. 2001).
Accordingly, the State argues that, based on the common, ordinary meaning of the terms, the phrase
“adversely affect” essentially requires only that the defendant place the child’s health and welfare
at risk of suffering some harm and that no harm needs actually to occur. Relying upon the same
canon of construction, but supplying different definitions of the terms, the defendant argues that the
statute requires proof of some actual harm and that a conviction cannot be sustained when nothing
more than a mere risk of harm is present. As can be seen by these arguments, the parties legitimately
dispute the ordinary meaning of the language used in this statute, and we should therefore look
beyond the language to examine “the entire statutory scheme for interpretive guidance.” McCoy v.
T.T.C., Ill. Inc., 14 S.W.3d 734, 738 (Tenn. 2000); Mandela v. Campbell, 978 S.W.2d 531, 534
(Tenn. 1998).

        Although this issue is one of first impression for this Court, some of our recent decisions
have thoroughly examined the statutory scheme underlying section 39-15-401(a), and these decisions
indicate that some actual detriment or harm is in fact required to impose criminal liability for child



                                                 -4-
neglect. For example, in State v. Ducker, we discussed the elements of this offense and concluded
that

         [o]nce the knowing mens rea [for the neglect element] is established, the next inquiry
         under the plain language of the statute is simply whether the child sustained an injury
         or, in the case of child neglect, whether the child suffered an adverse effect to the
         child’s health [and] welfare. The legislature has employed the phrases “so as to
         injure” and “so as to adversely affect” when defining the injury aspect of the child
         abuse statute. These phrases clearly indicate that if an injury results from knowing
         abuse or neglect, the actor has committed child abuse.

27 S.W.3d at 897 (emphasis added). As is evident from this discussion, the State must prove, as an
essential element of the offense, that the child “suffered” some adverse effect to his or her health and
welfare. Our use of the terms “suffer” and “injury” in the neglect context was not unintentional, and
these terms serve to indicate that the showing of harm in the neglect context is not materially
different in kind than the showing required in the abuse context. Just as the statute does not
contemplate that a mere risk of injury is sufficient in the abuse context, Ducker makes clear that a
mere risk of harm in the neglect context is also insufficient.

        In addition, our decision in State v. Adams, 24 S.W.3d 289 (Tenn. 2000), a case decided less
than two weeks before Ducker, further indicates that an actual, deleterious effect or harm to the child
must be shown under section 39-15-401(a). In Adams, we held that child neglect is a continuing
offense and that, therefore, the State does not need to make an election of offenses when it shows
that several adverse effects have resulted from one period of neglect. In addressing the nature of
child neglect itself, we concluded that the offense of child abuse through neglect continues “until the
person responsible for the neglect takes reasonable steps to remedy the adverse effects to the child’s
health and welfare caused by the neglect.” Id. (emphasis added and citation omitted). Again, our
use of the phrase “to remedy the adverse effects” strongly suggests that something more than a mere
risk of harm needs to be present. After all, if no actual harm or detriment to a child’s health and
welfare is present to be remedied, then simple logic dictates that the offense itself cannot exist.3

       Most importantly, though, the State’s argument that a mere risk of harm is sufficient for
criminal liability improperly renders the “adverse effects” element of the offense without meaning.


         3
             The State also cites our decision in Adams in support of its argument that the statute only requires a risk of
harm, and quoting language from that opinion, the State main tains that a child co ntinues to be in a state of neglect “‘so
long as the morals or health of the child is end angered.’” Conseq uently, the State concludes, the statute only requires
that the child’s hea lth and welfare be endan gered, no t that actual harm occurred .
           W e believe that the State has misread our decision in Adams. That portion of the opinio n quoted by the State
was narrowly focused upon defining only the neglect element of the crime, and as we clearly stated later in that opinion,
“the General Assembly intended for the offense of aggravated child ab use through neglect to punish a co ntinuing course
of knowing conduct beginning with the first act or omission that causes adv erse effects to a child’s hea lth or welfare.”
Id. at 296 (em phasis add ed). In no p lace did we contemp late that a mere risk of harm would suffice to establish criminal
liability under the sta tute.

                                                            -5-
As we acknowledged in Adams with our discussion of the statute’s “neglect” element, a child is
neglected whenever the breach of a legal duty endangers the health or welfare of that child or
otherwise places the child’s health or welfare at some risk of harm. See 24 S.W.3d at 295-96 (citing
Tenn. Code Ann. §§ 37-1-102(b)(12)(F), 71-6-102(1)). It is clear, therefore, that the risk of harm
to a child’s health and welfare contemplated by the State is already present in the statute as
evidenced by its “neglect” element.

        However, were we to adopt the State’s position that the “adverse effects” element of the
statute also contemplates a risk of harm, the showing required for each element of the offense would
be virtually identical, and we simply find no indication that the legislature intended a tautological
interpretation of this statute such that satisfaction of one element effectively satisfies the other as
well. Therefore, by further including the “adverse effects” element in the statute, the General
Assembly must have intended that the State show something more than a risk of harm to a child’s
health and welfare before it could subject a defendant to criminal liability under section 39-15-
401(a). See, e.g., State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995) (stating that statutes should
be construed to avoid rendering some parts inoperative, void, or without effect). Accordingly, we
hold that before a conviction for child neglect may be sustained, the State must show that the
defendant’s neglect produced an actual, deleterious effect or harm upon the child’s health and
welfare.

        Reviewing the record in this case, we find no evidence that the children suffered any actual,
deleterious effect or harm to their physical or mental health in any way. The State’s witnesses all
admitted that the children appeared physically healthy at the time of their removal—except that one
child was suffering from a cold—and that none of the children possessed any other signs of injury
or harm. Admittedly, these vile conditions did produce a risk of harm to the children’s health, but
fortunately for these children, they were removed from that filthy environment before any harm
actually occurred. Therefore, because the statute contemplates something more than the risk of harm
already inherent in its neglect element, we must affirm the judgment of the Court of Criminal
Appeals that the evidence is insufficient to support the defendant’s conviction under Tennessee Code
Annotated section 39-15-401(a).

        THE OFFENSE OF ATTEMPTED CHILD ABUSE THROUGH NEGLECT

        Although the proof in this case is insufficient to sustain the defendant’s conviction for child
neglect, we must address whether he may be guilty of attempted child neglect. The Court of
Criminal Appeals in this case held that the defendant could be guilty of attempted child neglect under
Tennessee Code Annotated section 39-12-101 and that the jury’s verdict was “necessarily a finding
on each count that the defendant committed acts which constitute an attempt to commit child
neglect.” Raising the issue before this Court, the defendant argues that attempted child neglect is
a logical and legal impossibility. He asserts that because child neglect is essentially a failure to
perform one’s duty to care for his or her children, a court cannot logically hold that a defendant may
attempt to fail to perform that duty. We believe that the defendant has misconstrued the nature of



                                                 -6-
attempt offenses in this state and that he may indeed be convicted of the offense of attempted child
abuse through neglect under the conditions set forth herein.

        As part of the 1989 Criminal Code Revision, the General Assembly enacted Tennessee Code
Annotated section 39-12-101 setting forth the elements of criminal attempt. This new attempt statute
abandoned the prior practice of listing attempt offenses individually, see Tenn. Code Ann. §§ 39-1-
501 to -507 (1982 & Supp. 1988), and in relevant part, it reads as follows:

              (a)     A person commits criminal attempt who, acting with the kind of
       culpability otherwise required for the offense:

                        (1)      Intentionally engages in action or causes a result that would
        constitute an offense if the circumstances surrounding the conduct were as the person
        believes them to be;

                       (2)     Acts with intent to cause a result that is an element of the
        offense, and believes the conduct will cause the result without further conduct on the
        person’s part; or

                       (3)    Acts with intent to complete a course of action or cause a
        result that would constitute the offense, under the circumstances surrounding the
        conduct as the person believes them to be, and the conduct constitutes a substantial
        step toward the commission of the offense.

                (b)     Conduct does not constitute a substantial step under subdivision (a)(3)
        unless the person’s entire course of action is corroborative of the intent to commit the
        offense.

See Tenn. Code Ann. § 39-12-101 (1997). As the Sentencing Commission comments to this statute
express the general philosophy supporting attempt offenses, “Criminal attempt is an offense directed
at the individual whose intent is to commit an offense, but whose actions, while strongly
corroborative of criminal intent, fail to achieve the criminal objective intended.” Acknowledging
these principles, the Court of Criminal Appeals in this case found that the defendant was guilty of
criminal attempt under subsection (a)(3), which requires that a defendant possess the intent to
complete a course of action or cause a result, but whose conduct “is incomplete in the sense that it
is cut short at some point in time before accomplishment of the intended criminal objective.” Tenn.
Code Ann. § 39-12-101 Sentencing Commission comments.

        We have previously held that the offense of child abuse through neglect is a nature-of-
conduct offense, meaning that the offense seeks principally to proscribe the nature of the defendant’s
conduct, as opposed to the result that the defendant’s conduct achieves. See Ducker, 27 S.W.3d at
896-97. Consequently, reading section 39-12-101(a)(3) in terms of its nature-of-conduct element,
the statute requires that the State prove (1) that the defendant intended to complete a course of action


                                                  -7-
that would constitute the offense, under the circumstances as the defendant believed them to be at
the time; (2) that the defendant’s actions constituted a substantial step toward the commission of
offense; and (3) that the defendant acted “with the kind of culpability otherwise required for the
offense” with respect to the other elements of the attempted crime. See also Tenn. Pattern
Instructions - Criminal § 4.01 (5th ed. 2000). Stated more specifically in terms of this case, the
attempt statute would hold the defendant criminally liable for attempted child neglect if the State
were to prove the following essential elements: (1) that the defendant’s conscious object or desire
was to engage in conduct constituting child neglect, see Tenn. Code Ann. § 39-11-302(a); (2) that
the defendant took a substantial step toward the commission of that offense; and (3) that the ages of
his children were six years or less.

         When viewed in terms of the statute, therefore, we cannot accept the defendant’s argument
that the offense of attempted child neglect is a logical or legal impossibility. Although the defendant
is correct that one cannot attempt to fail to perform a duty, this is simply not the focus of the inquiry.
Rather than imposing liability for trying to fail in a duty, attempt liability presumes that the
defendant actually failed in performing a legal duty and that this failure was intentional. In other
words, the issue is not whether the defendant attempted to fail in performing a duty imposed by law;
it is whether his actual failure to perform that duty was intentional. Subsection (a)(3) of the statute
is quite clear that a defendant whose conscious objective or desire is to engage in conduct
constituting child neglect may be criminally liable for attempted child neglect if the child suffers no
actual, deleterious effect to its health and welfare.

       The State disagrees that the defendant must have had an “intent” to engage in conduct to be
criminally liable for attempted child neglect, and it argues instead that the defendant needs only to
“knowingly” engage in a course of neglect to be liable under the statute. It cites the first sentence
of subsection (a)—“A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense”—and maintains that because child neglect only requires a
“knowing” mental state, it follows that the attempt statute can only require a “knowing” course of
conduct as well. Essentially, therefore, the State argues that the only mens rea required under section
39-12-101 is that otherwise required by the completed offense. We disagree.

        An examination of the cases discussing section 39-12-101 reveals some confusion as to how
one may simultaneously apply the mental state “otherwise required for the offense” and the mental
state specifically required by subsection (a)(3), which is that the defendant act “with intent” to
complete a course of action that would constitute the offense. Because of the statute’s inartful
language regarding the precise mental state required for any particular attempted offense, most cases
have focused their analysis upon only one of these mental states to the exclusion of the other.4

         4
            Although various types of analysis under section 39 -12-101 can be fou nd in the case law, co urts generally
follow one of three approaches. First, and most often, courts tend to overlook the specific intent portion of (a)(3) and
focus instead only upon the mens rea accompanying the underlying offense. Dicta from our decisions in State v. Denton,
938 S.W.2d 373, 382 (Tenn. 1996), and Wyatt v. State, 24 S.W.3d 319, 323 (Tenn. 2000), may be cited as examples
of this type of analysis. To be sure, however, the specific intent portion of subsection (a)(3) is an essential element of
                                                                                                            (continued ...)

                                                           -8-
Following the approach of most of these decisions, the State’s argument in this case disregards the
specific intent language of subsection (a)(3), and its interpretation renders that additional
requirement without any consequential meaning or effect. On the other hand, if some specific intent
to engage in conduct or to cause a result is in fact required for attempted crimes, then our current
case law seems to give little effect to the “culpability otherwise required for the offense” when the
completed offense does not require proof of an intentional mental state. Therefore, while the issue
of the proper mental state to be applied in attempted crimes appears somewhat abstract upon first
consideration, as a practical matter, its proper resolution is critical in this case to determine the scope
of the defendant’s liability for attempted child neglect.

        As we stated earlier, this Court seeks to give effect to statutes as a whole, and we will avoid
constructions that render some parts of a statute void, inoperative, or without effect. See, e.g.,
Turner, 913 S.W.2d at 160. Although section 39-12-101 seems to possess contradictory
requirements as to the precise mental state needed for the offense of criminal attempt, a brief
examination of similar criminal attempt statutes reveals that both mental states can be applied
without conflict. As we noted in State v. Reeves, 916 S.W.2d 909, 913 (Tenn. 1996), section 39-12-
101 was substantially derived from section 5.01 of the Model Penal Code (MPC), which also
contains the requirement that the State prove two separate mental states: (1) that the defendant acted
with the “kind of culpability otherwise required for the offense,” and (2) that the defendant also acted
“purposefully” in attempting to commit the crime. As is the case with our statute, in those instances


         4
             (...continued)
any criminal attempt according to the plain language of the statute, and this language cannot be merely surplusage as the
State would have us declare. Indeed, virtually all of the cases cited for our statement in Wyatt recognize that some
specific intent to engage in conduct or to accomplish a result is generally required for attempt crimes, and those cases
cited in Wyatt that do not require a specific intent are interpretations of statutes that are materially different than our own
in this respect.
          Second, courts in some cases have chosen to focus only upon the specific intent required by subsection (a)(3)
without analyzing the import o f the mental state o therwise req uired for the o ffense. For exa mple, in State v. Kimbrough,
924 S.W.2d 888 (Tenn. 1996), we first highlighted the specific intent portions of the criminal attempt statute and then
stated that
          “[a]n attempt, by nature, is a failure to accomplish what on e intended to do. Attem pt means to try;
          it means an effort to brin g about a d esired result.” T he conce pt of attemp t seems nece ssarily to involve
          the notion of an intended consequence, for when one attempts to do something one is endeavoring or
          trying to do it. Hence, an attempt requires a desired, or at least an intended, consequence. The nature
          of an attemp t, then, is that it requires a specific intent.
Id. at 890 (citations omitted). Essentially concluding that one could not intend an unintended consequence, we held that
one could not specifically intend to co mmit attemp ted reckless fe lony murde r. Id. at 891-92. W e did not address,
however, whether the reckless mental state of that offense could have any other application in the attempted crime.
          Finally, some co urts have attem pted to eq uate knowle dge of one’s actions with an intent to engage in those
actions. The Court of Criminal Appeals has recently used this rationale in State v. Palmer, 10 S.W.3d 638, 644 (Tenn.
Crim. App. 1999), when it stated that mere knowledge would suffice for the specific intent language of subsection (a)(3):
“unlike a mens rea of recklessness, the mental states of intentional or knowing both ‘involve a level of conscious
awareness and volitiona l, affirmative con duct.’” (citations omitted). Importantly, though, this approach, without more,
leaves one unsatisfied because it ignores the critical fact that the criminal code does not equate mere knowledge or
awareness of one’s actio ns with one’s inten t or conscio us objective to engage in th ose actions. Compare Tenn. Code
Ann. § 39 -11-302 (a), with Tenn. Code Ann. § 39-11-302 (b).

                                                             -9-
where the mental state “otherwise required for the offense” is less than intentional or purposeful, it
initially appears that the MPC requires proof of two differing, and two very conflicting, mental
states.

        However, once it is understood that no single mental state applies to all of the elements of
the attempted crime, it is immediately apparent that no actual conflict exists. As the comments to
MPC section 5.01 demonstrate, the State’s burden of proving a specific intent is limited only to
showing that the defendant intended to engage in certain conduct or to cause a particular result.
However, with respect to those elements not involving the nature or the result of the defendant’s
conduct, the State need only prove that the defendant acted with the mental state “otherwise required
for the offense.” In the language of the MPC Comments,

         [t]he requirement of purpose [or intent] extends to the conduct of the actor and to the
         results that his conduct causes, but his purpose need not encompass all of the
         circumstances included in the formal definition of the substantive offense. As to
         them, it is sufficient that he acts with the culpability that is required for commission
         of the completed crime.
                 ....

                 The judgment is thus that if the defendant manifests a purpose to engage in
         the type of conduct or to cause the type of result that is forbidden by the criminal law,
         he has sufficiently exhibited his dangerousness to justify the imposition of criminal
         sanction, so long as he otherwise acts with the kind of culpability that is sufficient for
         the completed offense. The objective is to select out those elements of the completed
         crime that, if the defendant desires to bring them about, indicate with clarity that he
         poses the type of danger to society that the substantive offense is designed to prevent.

American Law Institute, Model Penal Code and Commentaries, Comment to § 5.01(1), at 301-03
(1985) (emphasis added).5 Indeed, this conclusion—that the language “kind of culpability otherwise
required for the offense” pertains only to those elements not involving the nature or the result of the
defendant’s conduct—has also been followed by at least two other states with statutes similar to
ours. See State v. Nunez, 769 P.2d 1040, 1042 (Ariz. Ct. App. 1989); State v. Vigil, 842 P.2d 843,
845-47 (Utah 1992). Therefore, in view of these authorities, we cannot accept the State’s position
that a “knowing” mental state is the only mens rea required in this case for attempt liability under
section 39-12-101. In fact, as we demonstrate below, the “knowing” mens rea otherwise required
for the offense of child neglect effectively has no application in the attempted crime at all.




         5
           Footnote 9 of the MPC Commentaries in this section cite the following examples of attendant circumstance
elements: “The elem ents of ‘nighttime’ in b urglary, ‘property of another’ in theft, ‘female not his wife’ in rape, and
‘dwelling’ in arson.” By way of contrast, the MPC distinguishes conduct elements in these same examples as follows:
“‘Conduc t’ refers to ‘break ing and ente ring’ in burglary, ‘tak ing’ in theft, ‘sexual intercourse’ in rape[,] and ‘burning’
in arson.”

                                                            -10-
        For ease and clarity of analysis, we address the State’s burden as to the defendant’s mental
state in terms of each element of the attempted crime. First, with respect to the “neglect” element
of section 39-15-401(a), the attempt statute clearly requires the State to show that the defendant acted
“with intent” to complete a course of conduct constituting the offense. Therefore, as required by the
plain language of the statute, the State must prove that the defendant intentionally engaged in
conduct constituting child neglect or that his conscious objective or desire was to neglect his
children. See Tenn. Code Ann. § 39-11-302(a).

        Second, with respect to the “adverse effects” element of section 39-15-401(a), we conclude
that the attempt statue does not require the State to show any particular mental state. Importantly,
subsection (a)(3) does not require that the State prove a specific intent with respect to both the
defendant’s conduct and its result. Because the specific intent requirement of subsection (a)(3) is
addressed in the disjunctive, the specific intent “to cause a result” apparently has no particular
application in cases where the attempted crime is principally a nature-of-conduct offense. We have
previously held that the offense of child abuse through neglect is principally a nature-of-conduct
offense, Ducker, 27 S.W.3d at 896-97, and as such, the focus of the specific intent requirement of
subsection (a)(3) is more properly placed upon the intent to engage in conduct, rather than upon that
to cause a result.6 Consequently, we conclude that the State has no burden under section 39-12-
101(a)(3) to show that the defendant intended that his children suffer adverse effects to their health
and welfare.

        Therefore, because no specific intent is required by the attempt statute for the “adverse
effects” element of section 39-15-401(a), the mental state required for this element is that “otherwise
required” by the offense. We held in Ducker that child neglect requires no specific mens rea for its
result element, and as such, a defendant may be held criminally liable despite his or her ignorance
that the neglect produced any adverse effects to the child’s health and welfare. See 27 S.W.3d at
897. Accordingly, because no mental state is “otherwise required” by the completed offense for this
element, the State is not required to establish, for the attempted crime, that the defendant acted with



         6
              We do not mean to suggest that in those cases where the attempt statute requires the defenda nt to act “with
intent” to cause a result, the State must prove that the defendant’s conscious ob jective or desire was for the resu lt to
occur. Rather, as the MPC Comm ents make c lear, the State ne eds only to sh ow that the de fendant believed that the result
would follow from the conduct. See Model Penal Code and Comm entaries at 304-05. As one federal court citing the
MPC Comments has stated with regard to result-of-conduct offenses, “Under the Code, the defendant must either
affirmatively desire to cause the result that will constitute the principal offense or believe that the result will occur
(whether or not he affirm atively desires the result to occur).” United S tates v. Padilla , 771 F. Supp. 35, 39 n.7 (E.D.N.Y.
1991) (emphasis in original).
           In this manner, result-of-conduct offenses otherwise requiring a non-intentional mental state may be attempted
even if the defenda nt did not co nsciously des ire for the pro scribed re sult to occur. Taking second degree murder as one
such exam ple, it is clear that the d efendant d oes not hav e to “intend” th at death occur, at least not in the sense that the
victim’s death is the defendant’s conscious objective or desire. Instead, so long as the State shows that the defendant
believed that death wo uld follow fro m his or her c onduct, criminal attempt liability may be im posed. Although cases
in this state dealing with attempted second d egree murder have not relied upon this precise method of analysis, they have
nevertheless r eached a result comp atible with the ana lysis set forth under the MP C. Cf. Palmer, 10 S.W.3d at 644.

                                                             -11-
any intent to cause an actual, deleterious effect or harm. Cf. Model Penal Code and Commentaries
at 302 (noting same).

       Finally, the age element in section 39-15-401(a) is properly classified as an attendant
circumstance element, and as such, the criminal attempt statute likewise only requires that the
defendant act with the “kind of culpability otherwise required for the offense.” Because section 39-
15-401(a) requires no specific mental state regarding the age of the children in child abuse or child
neglect cases, see Ducker, 27 S.W.3d at 899 (discussing a proper jury instruction on this element
without reference to mental state), no culpability is “otherwise required” by the attempt statute either.
Therefore, the attempt statute places no requirement upon the State to show that the defendant was
aware of the ages of his children before criminal attempt liability may be imposed.

        In summary, therefore, we hold that the defendant may be criminally liable for attempted
child neglect under Tennessee Code Annotated section 39-12-101(a)(3), so long as the State proves
(1) that the defendant’s conscious object or desire was to engage in conduct constituting child
neglect; (2) that he took a substantial step toward the commission of that offense; and (3) that his
children were of six years of age or less. We note that even were we to agree that the State’s position
represents the more appropriate view regarding the scope and extent of criminal attempt liability, this
Court “does not typically function as a forum for resolution of public policy issues when interpreting
statutes.” Lavin v. Jordon, 16 S.W.3d 362, 369 (Tenn. 2000). Consequently, we are bound by the
law as it is, not as we would have it be, and to that end, we are not free to adopt constructions that
are plainly contrary to the language of the statute.

         With regard to the proof establishing the attempted offense in this case, we agree with the
Court of Criminal Appeals that some evidence exists in the record that, especially if viewed in a light
most favorable to the State, tends to establish the crime of attempted child neglect under section 39-
12-101(a)(3). Specifically, we agree with the intermediate court that the jury’s finding of knowing
neglect indicates that it found the presence of the second and third elements needed to establish
criminal attempt liability in this case. However, we disagree with the Court of Criminal Appeals that
the jury’s finding of knowing neglect necessarily establishes that the defendant’s conscious object
or desire was to engage in conduct constituting child neglect. Although the record contains some
evidence from which a reasonable jury could conclude that the defendant’s conscious desire or object
was to neglect his children, other evidence admittedly weighs against this finding. Because the jury
in this case did not reach a verdict as to the attempted offense, and because it is not the function of
an appellate court to resolve conflicts in the evidence with regard to the defendant’s intent to commit
an offense, we conclude that the most appropriate course of action is to remand this case to the
Lincoln County Circuit Court for a new trial on the lesser-included offense of attempted child abuse
through neglect.

                                           CONCLUSION

        We hold that because the State introduced no proof that the defendant’s neglect produced an
actual, deleterious effect upon the health and welfare of his children, the evidence is insufficient to


                                                  -12-
sustain the defendant’s conviction for child neglect under Tennessee Code Annotated section 39-15-
401(a). We also hold that the defendant may be guilty of attempted child neglect under Tennessee
Code Annotated section 39-12-101(a)(3), provided that the State proves that the defendant’s
conscious object or desire was to engage in conduct constituting neglect; that he took a substantial
step toward the commission of that offense; and that the ages of his children were six years or less.
Because the record contains conflicting evidence as to the defendant’s intent in this regard, we
remand this case to the Lincoln County Circuit Court for a new trial on the lesser-included offense
of attempted child abuse through neglect. The judgment of the Court of Criminal Appeals is
affirmed in part and reversed in part.

       Costs of this appeal are assessed to the State of Tennessee.




                                                       ____________________________________
                                                       WILLIAM M. BARKER, JUSTICE




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