         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE           FILED
                         JULY 1999 SESSION
                                                 September 22, 1999

                                                 Cecil Crowson, Jr.
                                                Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )
            Appellee,            )   C.C.A. No. 01C01-9806-CC-00268
                                 )
vs.                              )   Lincoln County
                                 )
MILES MATEYKO,                   )   Honorable Charles Lee, Judge
                                 )
            Appellant.           )   (Child Neglect)
                                 )

FOR THE APPELLANT:                   FOR THE APPELLEE:

N. ANDY MYRICK, JR.                  PAUL G. SUMMERS
Attorney At Law                      Attorney General & Reporter
116 West Market Street
Fayetteville, TN 37334               KIM R. HELPER
                                     Assistant Attorney General
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     W. MICHAEL MCCOWN
                                     District Attorney General
                                     17th Judicial District
                                     P.O. Box 904
                                     Fayetteville, TN 37334

                                     WEAKLEY E. BARNARD
                                     Assistant District Attorney General
                                     Lincoln County Courthouse
                                     Fayetteville, TN 37334




OPINION FILED: _____________

CONVICTIONS VACATED AND MODIFIED, REMANDED


JAMES CURWOOD WITT, JR., JUDGE
                                   OPINION


              The defendant, Miles Mateyko, appeals his Lincoln County Circuit

Court jury convictions of child abuse and neglect. See Tenn. Code Ann. § 39-15-

401 (a) (1997). A three-count indictment charged the defendant with the abuse and

neglect of each his three children. Each child was under six years of age. The jury

convicted the defendant in all three counts, and he was sentenced to serve six

months in jail with the balance of the effective sentence of three years and four

months to be served on probation. In this appeal, the defendant complains that

evidence was obtained in violation of his constitutional right to be protected from

unreasonable searches and seizures and that the evidence introduced at trial was

insufficient to support the convictions. After review of the case, we reverse and

vacate the convictions, impose convictions of attempted child neglect and remand

the case to the trial court for sentencing.



              The defendant, his wife and their three children, ages six months, two

years, and four years, lived in a mobile home in the “Bates Trailer Park” in Lincoln

County. On May 1, 1997, the defendant’s wife complained of chest pains and

called emergency medical personnel. The responding medical teams met Mrs.

Mateyko in her front lawn, but after she decided not to go to the hospital, some of

the team members escorted her back to the trailer. When she opened the front door

to go in, the medical personnel detected a very pungent odor emanating from the

interior. The odor suggested a mixture of urine, feces, and garbage that was bad

enough to “take your breath away.” Although the medical personnel remained

outside the trailer, they looked through the open door into the living room and

kitchen area and saw deplorable conditions of filth and squalor. Amidst garbage

and trash in the floor, they saw an infant who, at first, did not appear to be moving;

however, before leaving, one of the team members saw the infant move. There

were two other young children who appeared to be “stacked” on a couch in the living

room. The team members’ testimony at trial concerning the filth, clutter and odor

was graphic; however, the medical team felt they had no right to enter the private


                                          2
dwelling, even though they believed that the health and welfare of the children was

in danger. Instead, they returned to their base and notified the police of the

situation.



              Officers immediately went to the defendant’s trailer and knocked on

the door. When the defendant opened the door, an officer informed him that the

officers had come to look into the welfare of the children. Although the officer was

uncertain about whether the defendant said “okay” or “come in,“ he testified at a

suppression hearing that the defendant gave his consent to the officers’ entering the

dwelling and then backed away to allow the officers to enter. At trial, the officers

and the responding Department of Children’s Services (DCS) worker testified about

the disturbing, deplorable environment in the trailer. They found a puddle of vomit

in the floor near the front door and within two feet of where the infant was laying.

The child lay amidst dirty clothes, trash, remnants of fast food meals, and bugs that

crawled about. The entire floor space was covered with dirty clothes and refuse.

The adjoining kitchen was cluttered with open cans, rotting food, grease, and

mounds of dishes and pans which contained mold-covered food. In other areas of

the trailer, they found human feces in the floor. The smell of urine, feces, and

garbage was overwhelming, so “intense it was unreal” and caused the nostrils to

burn. The trailer was infested with “roach bugs,” and the officers testified to having

to exit the trailer periodically in order to breathe fresh air and to shake the roaches

off their shoes and trousers. An officer found the two older children asleep in a

back bedroom. They were nude, under a blanket, and when the officer found them,

he discovered several roaches crawling upon the blanket.



              Based upon the discovery of the conditions at the trailer, the DCS

removed the children from the home. However, none of the investigating personnel,

including the DCS worker who removed the children, noticed any signs that the

children were injured or ill. A subsequent medical examination revealed that the

children were healthy, except that the infant appeared to have a cold. In short,



                                          3
except for the infant’s cold, there was no proof that the children suffered from being

sick, injured or emotionally distraught.



              The trial court instructed the jury that it should consider the charged

offense and that, should the jury acquit the defendant of the charged offense, it

should then consider as a lesser included offense the charge of attempted child

abuse and neglect. The jury convicted the defendant on all three counts of the

charged offense of child abuse and neglect.



              In his first issue, the defendant asserts that the police officers’

warrantless entry into his home was unreasonable and, therefore, unlawful. See

U.S. Const., amend. IV; Tenn. Const., art. I, § 7; State v. Clark, 844 S.W.2d 597,

599 (Tenn. 1992). The trial court conducted a pretrial suppression hearing and

concluded that the warrantless entry was supported by alternative theories which

are based upon recognized exceptions to the warrant requirement -- that the entry

was reasonable because of the presence of exigent circumstances and that the

entry was accommodated by the defendant’s consent. The trial court denied the

motion to suppress. As a result, at trial the court admitted the officers’ testimony,

as well as photographs the officers took while they were on the scene.



              The trial court’s findings at a suppression hearing are entitled to the

weight of a jury verdict, and we will not disturb the trial court’s ruling unless the

evidence preponderates against it. State v. Odom, 928, S.W.2d 18, 23 (Tenn.

1996).



              Generally, the state and federal constitutions require that police

officers obtain a warrant before they enter a citizen’s home. Clark, 844 S.W.2d at

599. However, the courts recognize exceptions to the warrant requirement. See

State v. Bartram, 925 S.W.2d 227, 229-30 (Tenn. 1996).             For instance, the

existence of exigent circumstances may justify a warrantless entry, Rippy v. State,



                                           4
550 S.W.2d 636, 641 (Tenn. 1977), and the citizen’s consent to the entry may

excuse the absence of a warrant. Bartram, 925 S.W.2d at 230.



              We hold that the record supports the trial court’s finding that the

defendant consented to the officers’ entry into the trailer. The trial court accredited

the officer’s testimony that the defendant assented to the entry by a combination of

words and actions. The trailer door opened outwardly. The defendant’s words of

assent and his backing away from the open door and sitting on the couch, while the

officers stood at the threshold and the infant was on the floor in plain view, support

a conclusion that consent was given. We conclude that the present case is

distinguishable from Clark, in which our supreme court said that Clark “stepped

back as he opened the door” and the detectives “merely identified themselves and

entered the apartment.” Clark, 844 S.W.2d at 598, 599 (emphasis added). Based

upon the defendant’s consent, the entry into the trailer was reasonable, and the

resulting discoveries were admissible.



              In his second issue, the defendant asserts that the evidence is

insufficient to support this convictions.



              It is well established that a jury verdict, approved by the trial judge,

accredits the testimony of the witnesses for the state and resolves all conflicts in

favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.

1978); State v. Townsend, 525 S.W.2d 842, 843 (Tenn. 1975). On appeal, the

state is entitled to the strongest legitimate view of the evidence and all reasonable

or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571

S.W.2d 832, 836 (Tenn. 1978).



              Moreover, a verdict against the defendant removes the presumption

of innocence and raises a presumption of guilt on appeal, State v. Grace, 493 S.W.

2d 474, 476 (Tenn. 1973); Anglin v. State, 553 S.W.2d 616, 620 (Tenn. Crim. App.



                                            5
1977), which the defendant has the burden of overcoming. State v. Brown, 551

S.W.2d 329, 331 (Tenn. 1977).



              Most significantly, where the sufficiency of the evidence is challenged,

the relevant question for an appellate court is whether, after reviewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2782 (1979); Tenn R. App. P. 13. See also,

State v. Williams, 657 S.W.2d 405 (Tenn. 1983). This rule applies to findings based

on both direct and circumstantial evidence. State v. Thomas, 755 S.W.2d 838, 842

(Tenn. Crim. App. 1988). Circumstantial evidence alone may be sufficient to convict

one of a crime. State v. Boling, 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992).



              The applicable statute in this case is Tennessee Code Annotated

section 39-15-401(a), which provides in pertinent part:

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

Tenn. Code Ann. § 39-15-401(a) (1997).



              As a preliminary matter, we must first determine which mens rea

element applies where the means of committing the crime is alleged to be child

neglect. See Tenn. Code Ann. § 39-11-301, -302 (1997). Upon review of Code

section 39-15-401(a), it is not immediately apparent whether the "knowingly" mens

rea applies only to the child abuse clause and not the child neglect clause, or

alternatively, to both the child abuse and child neglect clauses.        In previous

decisions, this court has applied the knowing mens rea to the offense of child

neglect. State v. John Adams and Rita Adams, No. 02C01-9707-CR-00246, slip op.

at 7-8 (Tenn. Crim. App., Jackson, Jul. 14, 1998), perm. app. granted (Tenn., Feb.

8, 1999); State v. Roberson, 988 S.W.2d 690, 694 (Tenn. Crim. App. 1998)

                                          6
(aggravated child abuse and neglect), perm. app. denied (Tenn. 1999).

Furthermore, section 39-15-401(a) treats child neglect on a parity with knowing child

abuse that results in injury, and we believe it is unlikely that the legislature would

equate knowing child abuse to mere neglect that is less than knowing. Accordingly,

we conclude that section 39-15-401(a) proscribes the knowing neglect of a child

which adversely affects the child's health and welfare.



              A second preliminary issue we must resolve is whether the

requirement that the neglect "adversely affect the child's health and welfare"

mandates discernible detriment. See Tenn. Code Ann. § 39-15-401(a) (1997). The

defendant argues that the statute requires proof that the child victim suffered some

objective harm. The state, on the other hand, contends that objective harm is not

required.



              In support of his argument, the defendant relies upon State v. Kevin

R. Mosley, No. 01C01-9108-CC-00235 (Tenn. Crim. App., Nashville, Apr. 29, 1992).

In Kevin R. Mosley, the defendant burglarized a home while a female resident and

her five-week-old infant were present. Kevin R. Mosley, slip op. at 4. He bound the

mother, and the child “was left in her crib unattended and undisturbed” while the

defendant and his accomplice gathered the items they wanted to take. Id. Mosley

asked for a telephone number which he could use to call the victim’s neighbor to

report that she needed help. Id. at 4-5. The woman furnished the number, and the

defendant left. Id. at 5. A short while later he called the number to report the

mother’s status. Id. The defendant was convicted of an number of offenses,

including child abuse and neglect. Id. at 2. This court reversed this latter conviction

because, inter alia, it found that the record contained no evidence that “any harm

was inflicted upon the child . . . [or] that the defendant’s conduct adversely affected

the welfare of the child.” Id. at 9.



              On the other hand, the state relies upon State v. Jeffrey Lloyd



                                          7
Winders, No. 88-1142-III (Tenn. Crim. App., Nashville, Sept. 14, 1989) (Reid, J.,

dissenting). At 5:20 am, Winders and his female companion left her two young

children outside a closed gas station while the adults left to engage in sexual

relations. Jeffrey Lloyd Winders, slip op. at 2. Approximately 20 minutes later, the

children were found in a distressed and upset condition by the station attendant.

Id. Winders was convicted of child neglect, and on appeal, he argued that “some

adverse effect must have resulted from the neglect.” Id. at 4. In a split opinion, the

majority of the panel of this court affirmed the conviction and said, “The term ‘so as

to adversely affect its health and welfare’ does not require that some ‘injury’ be

inflicted on the child.” Id. at 5.



               In determining which interpretation of the child neglect statute

represents the better-reasoned approach, we are guided by the general statutory

scheme as it applies to offenses relative to child safety. The crime of which the

defendant was convicted, child neglect, is a Class A misdemeanor unless the victim

is six years of age or less, in which case the crime is a Class D felony. See Tenn.

Code Ann. § 39-15-401(a) (1997). Contributing to the neglect of a child is a Class

A misdemeanor, and this crime contains no requirement of detriment to the child.

See Tenn. Code Ann. § 37-1-157 (1996). Likewise, reckless endangerment, which

is either a Class A misdemeanor or a Class E felony, depending on whether a

deadly weapon is employed, does not require that the victim1 suffer detriment. See

Tenn. Code Ann. § 39-13-103 (1997). In addition, the attempt statute provides the

possibility of prosecuting any inchoate crime which requires a knowing or intentional

mens rea as the next-lesser class offense as the principal crime. See Tenn. Code

Ann. §§ 39-12-101, -107(a)(1997) (attempt and classification); State v. Dale Nolan,

No. 01C01-9511-CC-00387, slip op. at 18-19, n. 9 (Tenn. Crim. App., Nashville,

Jan. 26, 1997) (inchoate crimes requiring knowing mental state are subject to

prosecution for attempt), perm. app. denied (Tenn. 1998).


1

       The reckless endangerment statute does not limit the class of victims to
children only.

                                          8
              Additionally, we find guidance in the definitions of the words used in

the statute itself. “Affect” means “[to] act upon or have an effect upon.” Funk &

Wagnall’s Standard College Dictionary 24 (Text ed. 1963). “Adverse” means

“antagonistic” and “detrimental.” Id. at 21. “Health” refers to the “[g]eneral condition

of body or mind.” Id. at 617.



              Upon consideration, we are persuaded that the better-reasoned

interpretation is that advanced by Kevin R. Mosley. Thus, “to adversely affect the

health and welfare” as contemplated by the child neglect statute means that the

offending action must have an actual, deleterious effect. This interpretation is

harmonious with the statutory scheme; child abuse and neglect, at least as to

victims who are six or fewer years of age, is classified as a more serious offense

than the offenses of contributing to the neglect of a child or reckless endangerment.

It is logical to classify as more serious a crime involving actual harm. Moreover,

neglect which has occurred knowingly but without an adverse affect to the child's

health and welfare is punishable as an attempt. Furthermore, this interpretation is

harmonious with the plain meaning of the words chosen by the legislature to define

the proscribed conduct in section 39-15-401.



              With the elements of the crime at hand, we proceed with analysis of

the sufficiency of the evidence. As noted above, elements of criminal offenses may



be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d

237 (Tenn. 1973); State v. Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995).

When circumstantial evidence excludes all other hypotheses except that a child was

harmed as a result of knowing neglect, a conviction of child neglect is supportable.



              In the present case, the evidence in the light most favorable to the

state demonstrates that the Mateyko children were discovered in an environment

where the air was so malodorous and pungent that the investigator’s nostrils



                                           9
burned, food prepared there would be unfit for human consumption, and nude

children slept under a blanket teeming with roaches.          Nonetheless, medical

examinations of the Mateyko children were unremarkable other than that the

youngest child had a cold. It is certainly possible that adverse effects to the

children's health and welfare could result from these offensive and extreme

conditions. However, that is not the only conclusion which could be drawn from this

evidence, particularly where the record is devoid of any proof of a medical or

scientific nature that these conditions in and of themselves equated to harm. Had

medical or scientific proof been offered to show the harm per se from the living

conditions, the conviction for child neglect might well be supported despite the lack

of evidence of injury or illness.2 In the absence of such proof of record, there is no

basis for a jury concluding that the Mateyko children's health and welfare was

adversely affected, as that phrase is contemplated by the child neglect statute. For

this reason, the convictions of child neglect must be vacated.



              However, the record provides a sound basis for determining that the

defendant is guilty of the lesser offense of attempted child neglect. Thereby, acting

knowingly and with the “intent to complete a course of action . . . that would

constitute the offense [of child neglect], under the circumstances surrounding the

conduct as the [defendant] believe[d] them to be,” the defendant engaged in

conduct that “constitutes a substantial step toward the commission of the offense.”

Tenn. Code Ann. § 39-12-101(a)(3) (1997) (proscribing and defining criminal

attempt). The record reflects that the trial court instructed the jury as to the lesser

offense of an attempted child neglect. See Tenn. Code Ann. § 39-12-107(a) (1997)

(“Criminal attempt is an offense one (1) classification lower than the most serious


2

       We do not believe that the requirement of detriment equates to a
requirement in all cases that, to establish a violation, the detriment must be
discernible to the eye or that the result of the neglect must be apparent. Harm
may be transitory, and at the time of examination, a child victim may manifest no
lasting effects from an earlier infliction of harm. In the appropriate case,
circumstantial and/or expert evidence might establish some past harm suffered
by the child prior to discovery of the neglect.


                                          10
crime attempted . . . . “). Under the circumstances of this case, we conclude 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.



             We therefore impose in each of three counts a conviction of the Class

E felony offense of attempted neglect of a child who is six years of age or less. We

remand the case to the trial court for sentencing the defendant.




                                          ________________________________
                                          JAMES CURWOOD WITT, JR., JUDGE




CONCUR:



______________________________
JOSEPH M. TIPTON, JUDGE



______________________________
JOHN EVERETT WILLIAMS, JUDGE




                                        11
