         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    May 13, 2009 Session

             STATE OF TENNESSEE v. MARCIE LYNN PURSELL

                    Appeal from the Criminal Court for Davidson County
                      No. 2007-B-948    J. Randall Wyatt, Jr., Judge



                     No. M2008-01625-CCA-R9-CD - Filed July 23, 2009


The Defendant, Marcie Lynn Pursell, aka Marcie Pursell Frazier, was indicted in the Davidson
County Criminal Court for three counts of aggravated child abuse. Thereafter, the Davidson County
Juvenile Court concluded that the State had not proved allegations, in a dependent and neglect
petition, that the Defendant had injured her child or allowed the child to be injured. The Defendant
sought to dismiss the felony child abuse charges in criminal court on collateral estoppel grounds.
The trial court denied her motion. The trial court and this Court granted her Rule 9 application for
an interlocutory appeal. Following our review of the record, the judgment of the Davidson County
Criminal Court finding that the State was not collaterally estopped from pursuing criminal
prosecution against the Defendant is affirmed. This case is remanded to the trial court for further
proceedings.


    Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT W.
WEDEMEYER, JJ., joined.

Ronald Pursell and Jodie A. Bell, Nashville, Tennessee, for the appellant, Marcie Lynn Pursell.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                       OPINION

                                          Factual Background
        On April 17, 2007, a Davidson County grand jury indicted the Defendant for three counts of
aggravated child abuse of her infant son, J.P. (DOB: 11/16/06).1 See Tenn. Code Ann. § 39-15-402.
Specifically, the indictment alleges that the Defendant “did knowingly, other than by accidental
means, treat [J.P.], a child of eight (8) years of age or less, in such a manner as to inflict injury, and
the act of abuse resulted in serious bodily injury to the child . . . .” According to the facts relayed
in the bill of particulars, these charges stemmed from the following events. Count 1: X-rays taken
on December 14, 2006, evidenced possible, multiple, acute (within five to seven days) rib fractures;
J.P. was again examined on December 27, 2006, and these fractures were observed as healing at that
time. Count 2: Multiple leg fractures were detected on December 27, 2006; it was noted that several
of these fractures “require a different mechanism to cause than the rib fractures and differing natures
of healing indicate these likely occur at different times.” Count 3: A fracture to the humerus was
first observed on January 12, 2007, during a “repeat skeletal survey suggesting this was an acute
injury on 12-27-06 such that it could not be detected at that time but only after healing had begun.”

        Previously, on January 3, 2007, the Department of Children’s Services (DCS) had sought an
Emergency Protective Custody Order in the juvenile court of Davidson County. A Petition for
Custody with Request for Emergency Removal and Request to Set for Child Support had been filed
against the Defendant to declare J.P. a dependent and neglected child as a result of severe child abuse
pursuant to Tennessee Code Annotated section 37-1-102(b)(12)(B), (F), (G).2 The petition asserted
that J.P. was a severely abused child who was not protected from abuse and who failed to thrive
under his mother’s care. Only the multiple rib fractures confirmed by the December 27, 2006
examination were referenced in the petition; while the skeletal survey had been conducted, the
results were not available to DCS at the time the petition was filed. On January 4, 2007, the juvenile
court conducted a hearing on the Emergency Protective Custody Order, concluding that the status
quo was to be maintained and a Shelter hearing ordered. A Shelter hearing was held on January 22,
2007, and an initial plan of care for J.P. was established.


        1
            As is the custom of this Court, the victim, a minor, will be referred to by his initials.

        2
           As relevant here, under subsection (b)(12) of Tennessee Code Annotated section 37-1-102, a “dependent and
neglected child” means a child:


                 (B) W hose parent, guardian or person with whom the child lives, by reason of cruelty, mental
        incapacity, immorality or depravity is unfit to properly care for such child;

                   ....

                 (F) Who is in such condition of want or suffering or is under such improper guardianship or
        control as to injure or endanger the morals or health of such child or others; [or]

                   (G) W ho is suffering from abuse or neglect . . . .

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        The neglect, dependent, and abuse trial began on February 14, 2008. The State alleged that
J.P. sustained rib fractures, leg fractures, and a humerus fracture (the exact injuries forming the basis
of the criminal indictment). On March 4, 2008, the juvenile court entered an order dismissing the
dependent and neglect petition filed against the Defendant. The juvenile court made certain specific
findings in its order:

                  (1) That the [c]ourt has already dismissed all neglect and dependent issues.

                 (2) There is no evidence that [the Defendant] inflicted any injuries on [J.P.].
         Further, there is no evidence that [the Defendant] was aware, knew of, or had any
         reason to know of the injuries sustained by [J.P.].

                 (3) That the State has asserted that [J.P.’s] injuries were the result of non-
         accidental trauma. During the course of the State’s proof, the defense demonstrated
         other alternative theories that the injuries could have resulted from metabolic bone
         disease, vitamin deficiencies or iatrogenic injuries. Based upon the proof presented
         by the State, there is not clear and convincing evidence that establishes how the
         injuries of [J.P.] were incurred.

The juvenile court also re-instituted visitation between the Defendant and J.P. There was no appeal
of this order, and all rights to do so have since expired.

         Thereafter, on April 10, 2008, the Defendant, relying on the juvenile court’s determinations,
filed a motion to dismiss the criminal abuse charges against her, arguing that any subsequent
criminal prosecution was barred by the doctrines of res judicata and collateral estoppel, an element
of double jeopardy as protected by the Fifth Amendment of the United States Constitution. The
State responded, contesting the applicability of the doctrines of collateral estoppel and res judicata
in this situation and arguing that the principles of double jeopardy had not been violated. A hearing
was held on May 28, 2008.

         The trial court denied the Defendant’s motion by order dated June 24, 2008. First, regarding
the Defendant’s collateral estoppel claim, the trial court, interpreting Tennessee Code Annotated
section 37-1-103(a)(4),3 concluded that the juvenile court did not have the authority to adjudicate
a charge of aggravated child abuse. Because the juvenile court did not have jurisdiction over the
aggravated child abuse allegation, the juvenile court was not a court of “competent jurisdiction” and
its findings were not entitled to issue-preclusive effect. As for the doctrine of res judicata, the trial
court determined that the juvenile courts and criminal courts were not courts of concurrent

         3
            Pursuant to section 37-1-103(a)(4), the juvenile court has exclusive original jurisdiction of “[p]rosecutions
under § 37-1-412 or § 39-15-401 [child abuse and neglect] unless the case is bound over to the grand jury by the juvenile
court or the defendant is originally charged with a greater offense of which violation of § 37-1-412 or § 39-15-401 is
a lesser included offense . . . .” As noted by the trial court, child abuse and neglect is a lesser included offense of
aggravated child abuse and neglect.



                                                          -3-
jurisdiction regarding the crime of aggravated child abuse and, thus, the order of the juvenile court
was not entitled to claim-preclusive effect over the criminal court.

        The Defendant sought permission to file an interlocutory appeal pursuant to Rule 9 of the
Tennessee Rules of Appellate Procedure. The trial court and this Court granted the Defendant’s Rule
9 application.

                                              Analysis
        As presented by the Defendant, the issue before us is whether the doctrines of collateral
estoppel or res judicata, as encompassed by double jeopardy principles, bar the State from
proceeding against the Defendant in criminal court for three counts of aggravated child abuse
because the same factual issues were resolved in the Defendant’s favor in the juvenile proceeding.
The state and federal constitutions protect against multiple convictions or punishments for a single
offense. U.S. Const. amend. V; Tenn. Const. art. 1, § 10. Double jeopardy typically and essentially
protects (1) against a second prosecution after an acquittal; (2) against a second prosecution after
conviction; and (3) against multiple punishments for the same offense. State v. Denton, 938 S.W.2d
373, 378 (Tenn. 1996) (citations omitted). In Ashe v. Swenson, 397 U.S. 436 (1970), the United
States Supreme Court recognized that the doctrine of collateral estoppel is “embodied in the Fifth
Amendment guarantee against double jeopardy,” and it “means simply that when an issue of ultimate
fact has once been determined by a valid and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit.” 397 U.S. at 443, 445. In Tennessee, collateral
estoppel has been recognized as a part of our criminal jurisprudence for a relatively short period of
time. See State v. Joey Dewayne Thompson, -- S.W.3d --, 2009 WL 1228309, at *7 (Tenn. May 6,
2009).

        In Massengill v. Scott, 738 S.W.2d 629 (Tenn. 1987), our supreme court summarized the
related doctrines of res judicata and collateral estoppel:

               The doctrine of collateral estoppel or estoppel by judgment is an extension
       of the principle of res judicata, and is generally held to be applicable only when it
       affirmatively appears that the issue involved in the case under consideration has
       already been litigated in a prior suit between the same parties, even though based
       upon a different cause of action, if the determination of such issue in the former
       action was necessary to the judgment. . . .

               Res judicata bars a second suit between the same parties and their privies on
       the same cause of action as to all issues which were or could have been litigated in
       the former suit. Collateral estoppel operates to bar a second suit between the same
       parties and their privies on a different cause of action only as to issues which were
       actually litigated and determined in the former suit. To support a plea of res judicata,
       it must be shown that the judgment in the prior case was final and concluded the
       rights of the party against whom it is asserted. It is also necessary to show that both
       cases involved the same cause of action. To sustain a plea of collateral estoppel it


                                                 -4-
       must be shown, inter alia, that the issue sought to be concluded not only was litigated
       in the prior suit but was necessary to the judgment in that suit.

738 S.W.2d at 631-32 (quoting 22 Tenn. Jur. pp. 111-12). “Once an issue has been actually or
necessarily determined by a court of competent jurisdiction, the doctrine of collateral estoppel
renders that determination conclusive on the parties and their privies in subsequent litigation, even
when the claims or causes of action are different.” Gibson v. Trant, 58 S.W.3d 103, 113 (Tenn.
2001). The doctrine of collateral estoppel “applies only when the issue involved in the case under
consideration has already been litigated in a prior suit between the same parties . . . if the
determination of such issue in the former action was necessary to the judgment.” State v.
Scarbrough, 181 S.W.3d 650, 654-55 (Tenn. 2005) (quotation omitted).

        The burden is on the defendant to demonstrate that the issue he seeks to foreclose from
consideration was necessarily decided in the first trial. Dowling v. United States, 493 U.S. 342, 350
(1990); see also State v. Vickers, 985 S.W.2d 1, 7-8 (Tenn. Crim. App. 1997) (“[T]he burden is on
the appellant to prove by clear and convincing evidence that, in the earlier trial, the court or a jury
necessarily decided the issue of fact which is an element at issue in the present indictment.”)
(emphasis in original) (citations omitted). To determine whether a defendant has met this burden,
a court must examine the record of the first trial, “taking into account the pleadings, evidence,
charge, and other relevant matter, and conclude whether a rational jury could have grounded its
verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”
Ashe, 397 U.S. at 444 (footnote and internal quotation marks omitted).

        This appears to be a matter of first impression in the State of Tennessee: whether the doctrine
of collateral estoppel acts to bar the relitigation of a factual finding in a juvenile dependency
proceeding in a subsequent criminal trial. We have found guidance in the decisions of other
jurisdictions that have addressed the issue.

        An Illinois appellate court, in People v. Moreno, 744 N.E.2d 906 (2001), held that collateral
estoppel did not bar a criminal prosecution against the defendant for aggravated battery of a child
even though every factual issue to be tried was resolved in the Defendant’s favor in a prior wardship
proceeding in juvenile court. 744 N.E.2d at 912. In Moreno, the State filed juvenile wardship
petitions alleging the defendant’s four children were abused. Id. at 907. The State also charged the
defendant with aggravated battery of a child. Id. The juvenile and criminal cases were grounded on
the defendant’s alleged abuse of her seven-month-old nephew, G.M. Id. Following the juvenile
adjudicatory hearing, the trial court ruled that the State failed to prove by a preponderance of the
evidence that the defendant abused G.M. Id. at 909. The defendant then sought to have the criminal
charges dismissed, arguing that the State was collaterally estopped from proceeding in criminal court
because the same factual issues were resolved in her favor in the juvenile proceeding. Id. at 910.
The criminal trial court disagreed. Id. On appeal, the Illinois appellate court affirmed, distinguishing
juvenile and criminal proceedings and relying on public policy considerations:




                                                  -5-
       In the juvenile proceeding, the ultimate litigated issue was whether the minor
       children of defendant were abused due to defendant’s involvement with the injuries
       of G.M.; in the subsequent criminal proceeding, the ultimate litigated issue will be
       whether the defendant is criminally culpable for the injuries to G.M. In the juvenile
       proceeding, the State’s purpose is protection of defendant’s minor children; in the
       criminal proceeding, the State’s purpose is discovering if defendant injured G.M. and
       punishing her if found guilty. The differences of purpose and goal in the civil and
       criminal procedures are ‘very real.’

Id. at 912 (citation omitted). The court also noted that a criminal trial is “the exclusive forum for
determining guilt or innocence” and that the State lacked “a full and fair opportunity to litigate” the
defendant’s criminal culpability in the juvenile proceedings. Id.

       The Moreno Court relied, in part, on two appellate court decisions from California and
Washington—People v. Percifull, 12 Cal. Rptr. 2d 331 (Cal. Ct. App. 1992), and State v. Cleveland,
794 P.2d 546 (Wash. Ct. App. 1990):

               In Percifull, the California appellate court accepted that the threshold
       requirements of collateral estoppel had been established where a juvenile court
       concluded that the State had not proved allegations in a dependency petition that the
       parents had injured their child or allowed him to be injured, and the parents then
       moved to dismiss felony child abuse and endangerment charges against them arising
       out of the same facts. 12 Cal. Rptr. 2d at 331-32. Nonetheless, the court determined
       that policy considerations required that prosecution be allowed. The court noted in
       particular the importance of preserving the criminal trial process as the exclusive
       forum for determining guilt or innocence, and the ability of a trial, as opposed to a
       dependency proceeding, to vindicate society’s insistence that every citizen obey the
       penal laws. Id. at 333-34.

               In Cleveland, the Washington appellate court addressed the trial court’s
       finding that the State had not shown by a preponderance of the evidence that sexual
       abuse alleged in a petition for dependency had occurred, and defendant thereafter
       moved for dismissal of criminal charges of statutory rape and indecent liberties,
       asserting that the criminal charges were based on allegations of sexual abuse arising
       from the same facts. 794 P.2d at 547. The appellate court found that collateral
       estoppel could not be applied because of public policy. Id. at 551. The court
       explained that because dependency proceedings are often attended with a sense of
       urgency, are held as promptly as reasonably possible, and are narrowly focused on
       the welfare of the child, the State neither needs nor performs the extensive
       preparation typically required for felony trials. Id. The appellate court also
       considered that more resources are used in developing a felony prosecution than in
       a dependency hearing, dependency is not decided by a jury, and if faced with the
       application of collateral estoppel, the State may become reluctant to conduct


                                                 -6-
        dependency proceedings in cases where one or more of the same issues would arise
        in subsequent criminal prosecutions. Id.

Moreno, 744 N.E.2d at 911. Other states have reviewed the issue to varying degrees and reached
similar results. See, e.g., Carlene Northcutt v. Commonwealth, No. 2002-CA-000491-MR, 2003
WL 22061637 (Ky. Ct. App. Sept. 5, 2003); State v. Chad A. Felter, No. H-99-001, 1999 WL
727096 (Ohio Ct. App., 6th Cir., Sept. 17, 1999); People v. Gates, 452 N.W.2d 627 (Mich. 1990);
Gregory v. Commonwealth, 610 S.W.2d 598 (Ky. 1980).

         Here, the juvenile court action was brought to determine whether J.P. was a dependent and
neglected child pursuant to Tennessee Code Annotated section 37-1-102(b)(12), in that he was
allegedly a severely abused child who had not been protected from abuse and who failed to thrive
under the care of his mother, the Defendant. Under Tennessee law, in a prosecution for aggravated
child abuse and neglect, the State must prove: (1) a defendant knowingly, other than by accidental
means, treated a child eight years of age or less, in such a manner as to inflict injury; and (2) the act
of abuse resulted in serious bodily injury. See Tenn. Code Ann. §§ 39-15-401(a) & -402(a)(1). One
is for the protection of the child, and the other is to punish individuals found guilty of wrongdoing.
The importance of the criminal trial process must be preserved. We find the rationale of Moreno and
the other cases cited herein persuasive. The juvenile court dependent and neglect proceeding did not
have collateral estoppel effect blocking the State from bringing criminal charges against the
Defendant. We emphasize that, in the juvenile court proceeding, the Defendant was not being
prosecuted for a crime; her freedom was not in jeopardy.

                                             Conclusion
        The trial court did not err in determining that the State was not estopped from maintaining
criminal prosecution against the Defendant for three counts of aggravated child abuse. The judgment
is affirmed, and this case is remanded to the trial court for further proceedings.



                                                        ______________________________
                                                        DAVID H. WELLES, JUDGE




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