                                                                                        11/13/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 June 4, 2019 Session

                  STATE OF TENNESSEE v. SHELBY ISAAC

                 Appeal from the Criminal Court for Shelby County
                   No. 16-01734      James M. Lammey, Judge
                     ___________________________________

                           No. W2018-00871-CCA-R3-CD
                       ___________________________________


THOMAS T. WOODALL, J., concurring.

       I concur with the majority opinion, but am writing separately in order to explain
my analysis of why the evidence is sufficient beyond a reasonable doubt to sustain
Defendant’s conviction for criminally negligent homicide of the unborn child of Ms.
Thomas. I must admit that initially I was skeptical that the evidence was sufficient to
support the conviction in light of the specific facts of this case as they applied to the
statutory definition of “criminal negligence” set forth in T.C.A. § 39-11-106(a)(5) (Supp.
2019).

       The evidence in this case conclusively shows that Defendant had no actual
knowledge that Ms. Thomas was pregnant prior to Defendant’s shooting of Ms. Thomas
at close range. To me, this case is not analogous to the criminally negligent conduct of a
person who shoots into a house or even into a car without knowing whether or not a
person or persons are inside the home or car. See State v. Wilson, 924 S.W.2d 648, 652
(Tenn. 1996) (The defendant who fired shots into a residence, when there were no facts
indicating the house was occupied, acted criminally and recklessly.); “When the law
provides that criminal negligence suffices to establish an element of an offense, that
element is also established if a person acts intentionally, knowingly or recklessly.”
T.C.A. § 39-11-301(a)(2). It is obvious to me that a person ought to be aware that any
vehicle which can be observed in public, and any residence, may have a person or
persons inside which cannot be seen. T.C.A. § 39-11-106(a)(5) (Supp. 2019) states in
part that,

               “Criminal negligence” refers to a person who acts with criminal
        negligence with respect to the circumstances surrounding that person’s
        conduct or the result of that conduct when the person ought to be aware
        of a substantial and unjustifiable risk that the circumstances exist or the
        result will occur. (emphasis added).

Criminally negligent homicide occurs when a person’s criminally negligent conduct
results in another person’s death. T.C.A. § 39-13-212(a). Accordingly, the result of a
defendant’s conduct is the sole conduct element of criminally negligent homicide. The
circumstances which surround the defendant’s conduct are immaterial. Therefore,
criminally negligent homicide is a result-of-conduct offense. See State v. Page, 81
S.W.3d 781, 788 (Tenn. Crim. App. 2002).

       The actus reus of the crime was clearly shown in this case. The shots fired by
Defendant which caused Ms. Thomas’s death caused the death of her unborn child. The
pathologist specifically testified that the cause of the fetus’s death was secondary to the
gunshot wounds to Ms. Thomas.

         However, the State was also required to prove beyond a reasonable doubt
Defendant’s applicable mens rea as to the death of Ms. Thomas’s unborn child at the time
Defendant shot Ms. Thomas. The pathologist testified that the fetus was six to seven
weeks old. There was no testimony as to the length of the fetus, but a photograph of the
uterus, which included the fetus within it, appeared to show the uterus was approximately
five inches long based upon a ruler included in the photograph. The fetus took up very
little space in the photograph. The website of the Mayo Clinic indicates that seven weeks
after conception, the fetus is only about three-fourths of an inch long, or approximately
the diameter of a penny. Fetal Development: The 1st Trimester, The Mayo Clinic (Oct.
23, 2019, 9:30 a.m. CT), http://www.mayoclinic.org/healthy-lifestyle/pregnancy-week-
by-week/in-depth/prenatal-care/art-20045302.

       At the time of her death, Ms. Thomas was thirty-three years old. A photograph of
Ms. Thomas admitted into evidence is consistent in its appearance with her age at the
time of death. She clearly was of normal child-bearing age.

       In addition to the above-quoted portion of T.C.A. § 39-11-106(a)(5) (Supp. 2019),
the second sentence of this subsection, quoted in part below, caused me to initially
conclude that a person could not be criminally negligent, as that term has been defined by
the Tennessee General Assembly, as to the death of a seven-week-old fetus under the
specific circumstances of this case. In order for criminal conduct to be criminally
negligent, the risk which a defendant “ought to be aware of,” id., must be both a
substantial and an unjustifiable risk, and it “must be of such a nature and degree that the
failure to perceive it constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as viewed from the accused
person’s standpoint.” Id. (emphasis added).
                                           -2-
        The proof showed that Defendant approached a vehicle which, to an “ordinary
person” from Defendant’s standpoint, contained a male and a female of an age in her
thirties. Defendant shot both Mr. Tate and Ms. Thomas. The unborn child was the size
of a small coin. No ordinary person could perceive that Ms. Thomas was pregnant with
an unborn child six to seven weeks old.

       I am unable to extend by judicial decision alone that based upon the specific facts
of this case that criminal negligence, as strictly defined in T.C.A. § 39-11-106(a)(5),
includes a situation such as in the case sub judice.

       However, after consideration, I have concluded that the Tennessee General
Assembly, in T.C.A. § 39-13-214, provided sufficient notice that an ordinary person
should perceive the “substantial and unjustifiable risk,” T.C.A. § 39-11-106(a)(5), that a
criminal act which involves a female of apparent child-bearing age could cause the death
of an unborn child at any stage of growth of the fetus. It is well-settled that the General
Assembly defines crimes and sets the punishments, subject to constraints contained in the
United States Constitution and/or the Constitution of Tennessee. State v. White, 362
S.W.3d 559, 567 (Tenn. 2012).

       Tennessee Code Annotated section 39-13-214(a) states as follows:

               (a) For the purposes of this part [which includes T.C.A. § 39-13-
        212, Criminally negligent homicide], “another” and “another person”
        include a human embryo or fetus at any stage of gestation in utero, when
        any such term refers to the victim of any act made criminal by this part.
        (emphasis added).

       The wording in this statute, to me, justifies a conclusion beyond a reasonable
doubt that Defendant ought to have been “aware of a substantial and unjustifiable risk”
that the six to seven weeks old fetus would die as a result of Defendant’s shooting Ms.
Thomas. This is a correct analysis even though the proof conclusively showed that
Defendant did not have knowledge by direct or circumstantial evidence that Ms. Thomas
was pregnant until after Defendant had shot Ms. Thomas.

       Accordingly, I join with the majority in affirming Defendant’s convictions.


                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE

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