        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 21, 2016

        STATE OF TENNESSEE v. ANTONIO TERRELL PEWITTE

                Appeal from the Criminal Court for Davidson County
                 No. 2014-A-511       J. Randall Wyatt, Jr., Judge



              No. M2015-02103-CCA-R3-CD – Filed November 14, 2016



        I join the majority in affirming Defendant‟s conviction of child neglect. However,
I write separately because I conclude that the trial court erred by allowing Ms. Donnell to
testify about statements made to her by the victim and the victim‟s mother.

       The majority concludes that the trial court did not err because the statements were
admissible under Tennessee Rule of Evidence 803(4), the hearsay exception for
statements made for the purpose of medical diagnosis and treatment. The Rule provides
the exception for “[statements] made for purposes of medical diagnosis and treatment
describing medical history; past or present symptoms, pain, or sensations; or the
inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis and treatment.” The Advisory Commission Comments
for Rule 803(4) clarify that such statements “must be for both diagnosis and treatment.”
Our supreme court has explained that “if physicians or other medical personnel rely upon
the statement in diagnosing and treating the patient, then the statement should be
sufficiently trustworthy to be admissible in a court of law.” State v. McLeod, 937
S.W.2d 867, 870 (Tenn. 1996).

       At trial, Ms. Donnell testified that she had been trained “in the specific field of
Child Abuse Pediatrics” and that she was a member of the Child Abuse Response and
Evaluation (CARE) team at Vanderbilt. She stated that “when a child presents to our
hospital with injuries or concerns for neglect or abuse the treating team will ask for our
consultation. We evaluate the child directly.” She said the CARE team‟s evaluation of
the child differed from the treating team‟s evaluation in that “we go into greater detail in
terms of asking about the specifics of the injury.” She then stated as follows:

              [W]e also examine the child and photo document any injuries
              that the child might have and then we order specific tests that
              might be helpful in, uh, that might be helpful in obtaining
              more information about other injuries that the child might
              have, so other labs or other x-rays that might be necessary
              and we put all of that information together and formulate an
              opinion about the child‟s injuries whether we think it is
              consistent with abuse or neglect or an accidental mechanism
              or medical condition.

(Emphasis added.)

       Ms. Donnell testified that she spoke with the victim about 3:30 p.m. on December
2 in the hospital‟s emergency department and that she asked how the victim had hurt her
hands. The victim told Ms. Donnell that Defendant “„put them under hot water‟” and that
he was angry because she “didn‟t hurry up and wash [her] hands.‟” Ms. Donnell
acknowledged that the victim also described being placed in a corner as a form of
discipline. Ms. Donnell said that in addition to talking with the victim and the victim‟s
mother, she examined the victim “from head to toe looking for any other signs of other
injuries she might have had.” The victim‟s hands already had been wrapped in bandages
when Ms. Donnell evaluated her, and Ms. Donnell did not unwrap or “manipulate her
hands in any way” so as not to cause the victim additional pain. Ms. Donnell said she
used photographs taken of the victim‟s hands on December 2 to “formulate[] her
opinion,” and she testified about the victim‟s burns and the burn patterns caused by the
flowing water. The State asked if she requested that the victim reenact the event, and she
answered, “The purpose of my evaluation is strictly medical. It has an investigative
value, but we are not investigators and so I wouldn‟t want to further traumatize her by
asking her to re-enact that in the emergency department setting.” At the conclusion of
her testimony, the State asked if she had formulated an opinion as to whether the victim‟s
burns were accidental, and she said that the victim‟s injuries were consistent with a
person having held the victim‟s hands in hot water but that she could not determine the
person‟s intent.

       On cross-examination, Ms. Donnell testified that she could not be “100 percent
certain” that the victim‟s injuries were abusive in nature but that “based on the history
provided and the injuries of the child . . . , it is clear that these were inflicted.” Ms.
Donnell acknowledged that according to the victim‟s medical records, the victim told
someone on December 2 that Defendant did not mean to hurt her. Defense counsel asked
Ms. Donnell if the victim‟s statement affected her opinion as to Defendant‟s intent, and
Ms. Donnell answered, “So when I evaluate for abuse I am looking at the history that is
provided along with the injuries to see if they are consistent with that history and I would
not comment other than to say that I might be concerned about intentionality, but I
couldn‟t be definitive about that.” (Emphasis added.) She acknowledged writing in her
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report that she was “extremely concerned” that the victim‟s hands had been placed in hot
water intentionally and that DCS and law enforcement should interview the victim‟s
brother in order to help determine whether “„this may have been abusive in nature.‟” On
redirect examination, Ms. Donnell again stated that she was “a medical provider,” not an
investigator.

       At the conclusion of Ms. Donnell‟s testimony, the jury left the courtroom, and
defense counsel requested to question Ms. Donnell further. In an offer of proof, defense
counsel asked Ms. Donnell, “[W]ould it change your opinion if you learned that [the
victim‟s brother] also stated that [Defendant] didn‟t mean to and that he is really sad
about what happened, would that change your opinion?” Ms. Donnell said no, and the
following exchange occurred:

                    Q. So even though your report includes a section that
             suggests interviewing him [is] necessary for determining
             whether this is abuse learning that he said that to a medical
             professional wouldn‟t change your opinion?

                     A. As a medical professional I am very cognizant of
             not making a diagnosis based on intent, that is not my role as
             a medical provider, so as I have said over and over is that I
             take the history, combine with the injuries and whether or not
             that is consistent with abusive or accidental injury, but . . .
             intent it is nothing that I can evaluate as a medical provider,
             while that information is extremely valuable for the
             investigative process in determining overall finding of abuse
             or neglect in a legal setting that is not something that I can
             say as a medical provider.

                    Q. But and maybe I had it wrong when you testified in
             front of the jury, my understanding is what you were offering
             was an opinion that this must have been abuse or neglect?

                    A. It was inflicted.

                    Q. Inflicted?

                    A. Yes.

                    Q. Which means something different to you?

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                      A. It means that a force acted on her by somebody
              else and, you know, that is, it is what it is, and I haven‟t said
              that this is definitively abuse.

                     Q. Thank you.

                     ....

                     THE COURT: And the word “inflicted”, what does
              that mean to you?

                     THE WITNESS: It means that somebody, that another
              person has inflicted and it has caused an injury to another
              individual in this case, a child, so the child would not have
              had this injury if the other person had not acted upon the
              child.

       In concluding that the statements were admissible, the majority opinion notes that
“Ms. Donnell testified that she was conducting a medical evaluation not an
investigation.” However, Ms. Donnell‟s testimony demonstrates that she was well-aware
of the language necessary to distinguish statements made for the purpose of medical
diagnosis and treatment from statements made for the purpose of evaluating child abuse
and that she attempted to tailor her testimony accordingly.

       Such language is not dispositive, though. Ms. Donnell testified that her evaluation
of the victim was “strictly medical” but offered no testimony as to how she medically
treated or diagnosed the victim regarding the victim‟s burns. She also offered no
testimony as to how she medically treated or diagnosed the victim for any emotional or
psychological injury. To me, her testimony shows that she was asked to evaluate the
victim, after the victim already had been treated by another physician in the emergency
room, for the sole purpose of determining whether the victim‟s burns were accidentally or
intentionally inflicted and not for the purpose of medical diagnosis and treatment.
Therefore, I believe the victim‟s and her mother‟s statements to Ms. Donnell were
inadmissible.

       Nevertheless, I also believe that the trial court‟s error in allowing the statements
into evidence was harmless. Ms. Donnell testified that the victim said Defendant was
angry and put her hands under the hot water and that Mother said Defendant dipped a
needle in rubbing alcohol, began popping the blisters, and wanted to apply itch and burn
cream to the burns. The victim and Mother gave similar testimony at trial. Moreover,
the victim‟s statement that Defendant did not mean to hurt her, introduced through Ms.
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Donnell‟s testimony, was actually helpful to Defendant, and the jury acquitted him of
both counts of aggravated child abuse and one count of aggravated child neglect. In my
view, the jury‟s lone guilty verdict was based more on Defendant‟s refusal to seek
medical treatment for the victim despite the obvious seriousness of her burns than it was
on Defendant‟s placing the victim‟s hands under the hot water. Mother‟s trial testimony
was particularly damaging in this regard. Thus, I think the error was harmless beyond a
reasonable doubt.



                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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