         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 5, 2000

                  STATE OF TENNESSEE v. JOHN E. PARNELL

                 Direct Appeal from the Criminal Court for Shelby County
                 Nos. 96-12806 and 96-12807   Joseph B. Brown, Jr., Judge



                   No. W1999-00562-CCA-R3-CD - Filed February 6, 2001


The defendant was convicted by a Shelby County jury of criminally negligent homicide and
aggravated child abuse. The trial court sentenced him to concurrent sentences of two years for the
homicide charge and twenty years for the aggravated child abuse charge. In this appeal as a matter
of right, the defendant alleges (1) he was incompetent to stand trial, and (2) the evidence was
insufficient to sustain the guilty verdict for aggravated child abuse. The defendant was indicted in
count one for aggravated child abuse by treating the child in a manner so as to inflict injury; the
defendant was indicted in count two for aggravated child abuse by neglecting the child so as to
adversely affect his health and welfare; the jury was instructed to consider count two only if the
defendant was found not guilty of count one; the jury found guilt only as to count one; the jury never
returned a verdict on count two; and the evidence is insufficient to sustain the verdict under count
one. Although the evidence overwhelmingly establishes guilt of aggravated child abuse by neglect
as alleged in count two, the jury’s failure to return a verdict on this count requires a remand for
retrial on count two. We affirm the conviction for criminally negligent homicide.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part;
                               Reversed in Part; Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.

Glenn I. Wright, Memphis, Tennessee, for the appellant, John E. Parnell.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                       OPINION

         The defendant received an effective sentence of 20 years for aggravated child abuse and
criminally negligent homicide. In this appeal, the defendant claims he was incompetent to stand
trial, and the evidence was insufficient to sustain the conviction for aggravated child abuse. We
reverse the defendant's conviction for aggravated child abuse by “treatment” and remand for a new
trial on aggravated child abuse by “neglect.” The conviction for criminally negligent homicide is
affirmed.


                                                       I. FACTS

       The defendant met Anna Robertson in 1991 or 1992.1 The defendant pursued Robertson
romantically, although he was in his thirties and aware that Robertson had a mental disability and
was a minor in high school. Robertson resided with her grandmother, and her two aunts lived on the
same street; therefore, she was adequately supervised. The defendant asked Robertson's
grandmother for permission to marry her, but her grandmother refused permission until Robertson
graduated from high school. Robertson resided with her family until she and her two sons by the
defendant moved into the defendant's apartment in August of 1995.

       On Friday, February 16, 1996, the defendant returned home from work at approximately 1:00
a.m. and Robertson met him at the door. She informed him that their twenty-month-old son, Andre,
was "sick." The defendant immediately examined the victim and concluded that the victim was
deceased.

        Officer Stanley Johnson testified that upon entering the defendant’s apartment, he noticed
that the deceased child appeared malnourished. The defendant and Robertson were taken into
custody, informed of their Miranda rights, and the defendant gave a statement to Officer Donna
Marie Roach.

        Officer Roach testified that the defendant, when asked if he knew how the victim died,
answered, "probably malnutrition." The defendant also stated that he last saw the victim alive on
Thursday, February 15, 1996, between 10:30 a.m and 3:00 p.m., when he tickled the victim’s foot
before leaving for work. The defendant said the victim was wrapped in his blanket in his normal
sleeping area located on the floor. The defendant further stated that the last time he saw the victim
eat was on Wednesday, February 14, 1996, when he fed the victim. The defendant stated that the
victim appeared undernourished on prior occasions because Robertson failed to feed him; however,
he was unaware that the victim was not being fed on this occasion.



         1
          Anna Robertson, the victim's mother and co-occupant of the defenda nt's residence, wa s jointly indicted with
the defendant. Her case w as severed from the defen dant’s case. Although it does not ap pear in this record, defense
counsel alleg es in his brief that A nna Rob ertson was fo und not guilty b y reason of insa nity in a separate proceed ing.

                                                            -2-
       Barbara Thomas, Anna Robertson’s aunt, testified that she assisted in the care of Robertson
and her two children. She further stated that although the victim was diagnosed with a birth defect,
she assisted in his feeding, and he ate well and comprised a healthy weight before Robertson
removed him from their household.

        After the victim’s death, Thomas went to the defendant’s apartment. She stated that she saw
no baby clothes. She also remarked that she saw two large rats scurry into hiding, and the apartment
was filthy. On cross-examination, she said that she called DHS to report Robertson while Robertson
was living in her family’s neighborhood, because Robertson would not properly feed the victim and
would fail to adequately change his diaper.

       Francie Foster, Robertson’s grandmother, testified that when Robertson moved from her
home, she left her WIC vouchers. Neither Robertson nor the defendant returned to request them.

        Dr. Jerry Francisco performed the autopsy on the victim. The victim had various abrasions
and suffered from severe malnutrition and dehydration. The victim was 76 centimeters in height and
weighed only 16 pounds. His height was below normal, and his weight was so low that it was off
the weight-scale chart. Dr. Francisco further testified that the abrasions on the victim’s face were
consistent with rodent bites. Internally, the victim suffered from edema of the kidneys - a
characteristic of malnutrition; fat in his liver - indicating his body was burning his own fat in an
attempt to sustain itself; cerebral atrophy of his brain - a birth defect; and lack of food in his stomach.
Dr. Francisco opined that the victim died of malnutrition, and his birth defect did not contribute to
his death. Furthermore, Dr. Francisco testified that if the victim had been fed by the defendant on
the day before his death as the defendant claimed in his statement, then the victim would have
survived.

         During cross-examination, Dr. Francisco admitted that his autopsy report indicated the cause
of death was “Malnutrition and Internal Hydrocephalus.” He further stated that Internal
Hydrocephalus is a birth defect, and it may or may not get progressively worse over one’s life.
Additionally, Dr. Francisco testified that he wrote on March 15, 1996, “[d]eath was the result of
failure to thrive. This was associated with central nervous system disease that appears to have been
present at birth.” Dr. Francisco explained that, although in 1996 he believed that the victim’s birth
defect was a factor in his death, he discounted that conclusion after examination of several
photographs of the victim.

        A photograph of the victim taken prior to Robertson’s departure from her family’s home was
admitted, and it showed a well-fed nine-month-old baby on March 21, 1995. At thirteen months,
the victim weighed 20 pounds and two ounces. At the time of death seven months later, the victim
weighed only 16 pounds. From an examination of the photographs and the victim’s weight history,
Dr. Francisco opined that the victim did not suffer from anorexia or any condition associated with
his birth defect, and the victim’s death was caused solely by severe malnutrition.




                                                   -3-
        The defendant offered the testimony of his employer, Harold Houston Payne. Payne testified
concerning the defendant’s time records and work activity prior to the victim’s death. For six weeks
prior to the victim’s death, the defendant worked 53.4, 53.0, 56.7, 52.3, 45.9, and 57.6 hours per
week. Perry further testified that the defendant requested as much overtime as possible.

        The defendant testified in his defense. He claimed that when Robertson and their two
children moved in his apartment, the victim was “skinny but not frail.” He said that he was working
as much as possible so they could move closer to Robertson’s family. Furthermore, the defendant
stated that there was always food in the house, and he bought groceries weekly or twice-weekly. He
knew that Robertson failed to feed the victim on previous occasions and instructed her to feed him
on those occasions, but failed to notice that the victim was malnourished on this occasion. He
attributed the victim’s “frailty” to his birth defect.

        On cross-examination, the defendant admitted that the blanket on which the victim slept was
“nasty,” and he never took the victim to the doctor. He further explained that he failed to notice the
victim’s severe malnutrition because it was dark inside the apartment. Additionally, the defendant
stated that he was unsure how long the victim lay deceased on the floor, and he testified that the
victim could have been deceased for a period of days.

        The jury found the defendant guilty of aggravated child abuse by treating the victim in a
manner so as to inflict injury, as alleged in count one of the indictment. Pursuant to the jury
instructions, the jury did not render a verdict as to count two, charging aggravated child abuse by
neglect. The jury also found the defendant guilty of criminally negligent homicide.


                                       II. COMPETENCY

       The defendant argues that he was incompetent to stand trial. We disagree.

       The Fourteenth Amendment to the United States Constitution and Article I, Section 8 of the
Tennessee Constitution prohibit the trial of a person who is mentally incompetent. Pate v. Robinson,
383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Berndt v. State, 733 S.W.2d 119 (Tenn. Crim.
App. 1987). Furthermore, our supreme court has noted,

       the standard for determining competency to stand trial is whether the accused has
       "the capacity to understand the nature and object of the proceedings against him, to
       consult with counsel and to assist in preparing his defense." State v. Black, 815
       S.W.2d 166, 174 (Tenn.1991) (quoting Mackey v. State, 537 S.W.2d 704, 707 (Tenn.
       Crim. App. 1975)); see also Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct.
       788, 789, 4 L. Ed. 2d 824 (1960) (ability to consult with lawyer and a "rational as
       well as factual understanding of the proceedings").

State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000).


                                                 -4-
        The defendant underwent psychological evaluations twice prior to his scheduled trial date
and was found to be competent each time. On the trial date, defense counsel again sought a
psychological evaluation claiming that the defendant’s mental condition had further deteriorated.
The trial court ordered Dr. Lynne Zager, who had previously examined the defendant, to reevaluate
the defendant and report her conclusions at a hearing the following morning. Dr. Zager complied
and found that the defendant understood the nature of the legal process, the charges against him, and
the consequences of the proceedings; was able to confer with counsel; could focus on and recall the
facts; and could listen to and properly assess testimony. However, she stated that she had some
concern about his ability to “participate.” Dr. Zager qualified her statement saying that the defendant
was of the opinion, which could be delusional, that he was the victim of a conspiracy. Dr. Zager did
not state that the defendant was, in fact, delusional. Regardless, she acknowledged that even a
delusional person could be competent to stand trial. Based upon the record, the trial court found the
defendant competent to stand trial.

         After a thorough review of Dr. Zager’s testimony, we conclude the record supports the ruling
of the trial court; namely, the defendant had the capacity to understand the nature and object of the
proceedings, consult with counsel, and assist in preparation of his defense. Accordingly, the
defendant was competent to stand trial. This issue is without merit.


                           III. SUFFICIENCY OF THE EVIDENCE

       Defendant does not challenge his conviction for criminally negligent homicide, and we
conclude the evidence was sufficient to sustain this conviction. However, defendant contends the
evidence was insufficient to establish guilt of aggravated child abuse by treating the child in such
a manner as to inflict injury. For reasons not advanced by the defendant, we conclude the evidence
was indeed insufficient to support the jury’s guilty verdict for this offense.

A. Standard of Review

        When a defendant challenges the sufficiency of the convicting evidence, we must review the
evidence in the light most favorable to the prosecution to determine whether “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, 318, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). We do not reweigh
or reevaluate the evidence and are required to afford the state the strongest legitimate view of the
proof contained in the record as well as all reasonable and legitimate inferences which may be drawn
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). It is the defendant’s burden to
show this court why the evidence is insufficient to support the verdict returned by the trier of fact
in his or her case. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).




                                                 -5-
B. Indictment

       The grand jury returned a two-count indictment in No. 12806, both of which charged
aggravated child abuse. Count one alleged the defendant

               ... did knowingly, other than by accidental means, treat ANDRE
               ROBERTSON, a child six (6) years of age or less, in such manner as
               to inflict injury to the said child, such act resulting in serious bodily
               injury to the said child . . .

Count two alleged the defendant

               . . . did knowingly, other than by accidental means, neglect ANDRE
               ROBERTSON, a child six (6) years of age or less, so as to adversely
               affect the health and welfare of the said child, such act resulting in
               serious bodily injury to the said child . . .

C. Jury Instructions

       The trial court instructed the jury to first consider the charge of aggravated child abuse as
charged in count one (treating the child in such manner as to inflict injury). The instructions further
provided that if the jury found defendant not guilty of count one, only then should the jury consider
aggravated child abuse as charged in count two (neglect). The instructions further expressly
provided that the defendant could be convicted of only one count of the indictment.

D. Jury Verdict

        After deliberations, the jury’s verdict was announced as follows: “We, the jury, find the
defendant guilty of aggravated child abuse as charged in the first count of the indictment.” In view
of this verdict and in accordance with the jury instructions, the jury announced no verdict with
respect to count two (aggravated child abuse by neglect). As a result, the only verdict returned by
the jury was guilty of aggravated child abuse by treating the child in such manner as to inflict injury.

E. Applicable Statutes

        The statutes in effect at the time of the offense provided in pertinent part as follows:

               Child abuse and neglect. – (a) 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 is guilty of 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.


                                                  -6-
Tenn. Code Ann. § 39-15-401 (Supp. 1995).

               Aggravated child abuse. – (a) A person is guilty of the offense of
               aggravated child abuse who commits the offense of child abuse as
               defined in § 39-15-401 and:
                      (1) The act of abuse results in serious bodily injury to the
                      child; or
                      (2) A deadly weapon is used to accomplish the act of abuse.
                      (b) A violation of this section is a Class B felony; provided,
                      that, if the abused child is six (6) years of age or less, the
                      penalty is a Class A felony.

Tenn. Code Ann. § 39-15-402 (Supp. 1995).

F. Analysis

        It is apparent that a violation of Tenn. Code Ann. § 39-15-401, child abuse and neglect, may
be established in two separate ways – “by either inflicting injury upon or neglecting a child.” State
v. Hodges, 7 S.W.3d 609, 622 (Tenn. Crim. App. 1998). Tenn. Code Ann. § 39-15-401 creates one
crime which can be committed by two different courses of action, not two separate crimes. Id.
Likewise, aggravated child abuse is established by either of these two methods, plus serious bodily
injury to the child. Tenn. Code Ann. § 39-15-402(a)(1) (Supp. 1995); State v. Ducker, 27 S.W.3d
889, 895-96 (Tenn. 2000); Hodges, 7 S.W.3d at 622-23.

       In view of the two-count indictment and guilty verdict only as to count one, we must
determine whether the evidence was sufficient to establish that the defendant “treated” the child in
such a manner as to inflict injury, as opposed to whether the defendant “neglected” the child so as
to adversely affect the child’s health.

        The word “treat” is not defined by the Code. “Treat” is defined in the dictionary as “to act
or behave toward (a person) in some specified way.” Websters New Universal Unabridged
Dictionary 2015 (1996). “Neglect,” on the other hand, is a failure to take action. In interpreting the
words “abused” and “neglected” relating to nursing homes, the Tennessee Court of Appeals stated,
“[t]he word, ‘abuse,’ implies an overt active deed. . . On the other hand, neglect is the failure to
perform a deed. . .” Claiborne & Hughes Conval. v. State, 881 S.W.2d 671, 677 (Tenn. App. 1994).

        We conclude the legislature intended that the “treatment” provision of the child abuse statute
refer to physical abuse by an act or acts that inflict injury, and the “neglect” provision of the child
abuse statute refer to the failure to take appropriate action.

        Viewing the evidence in a light most favorable to the state, the evidence is insufficient to
establish guilt under the “treatment” provision of the child abuse statute. The state’s proof
established that the child died from severe malnutrition. As to the physical injuries observed on the


                                                 -7-
child, there is no indication, nor was it the state’s theory, that these injuries were inflicted by the
defendant, or the child’s mother, or any other person. Instead, the evidence revealed that these
horrifying injuries were consistent with rodent bites.

         In summary, the evidence reveals a classic case of “neglect” which ultimately and tragically
led to the child’s death. Although the evidence overwhelmingly supports aggravated child abuse by
neglect as alleged in count two of the indictment, the jury was not authorized to consider that charge.
Pursuant to the jury instructions, the guilty finding under count one precluded any consideration of
count two. We are without the authority to make or affirm a finding of guilt on count two since the
jury returned no verdict on that count.

G. Remand

         Although we reverse the conviction under count one of the indictment, we remand for a new
trial on count two charging aggravated child abuse by neglect. The jury never returned a verdict as
to this offense, and double jeopardy does not bar a retrial for this offense. See State v. Madkins, 989
S.W.2d 697, 699 (Tenn. 1999); State v. Burns, 979 S.W.2d 276, 279 n.2, 292-93 (Tenn. 1998).

H. Alternative Theories of Criminal Liability

         Many offenses may be committed in various ways. Where there are separate counts in an
indictment charging the same offense but by different means, the better practice is to submit all
counts to the jury. In the event the jury returns a verdict of guilty on more than one count, the proper
remedy is to merge the counts into a single conviction for the offense. See State v. Cribbs, 967
S.W.2d 773, 788 (Tenn. 1998) (suggesting trial courts secure verdicts on both premeditated murder
and felony murder, which can then be merged if there is a conviction for both). Had this been done
in this case, a remand for new trial would have been unnecessary, assuming the jury would also have
found guilt under count two.

                                          CONCLUSION

        We affirm the judgment of the trial court with regard to the conviction for criminally
negligent homicide in indictment no. 12807. We reverse the judgment of the trial court with regard
to the conviction for aggravated child abuse in count one in indictment no. 12806, but remand for
a new trial with regard to count two of that indictment.


                                                        ______________________________________
                                                        JOE G. RILEY, JUDGE




                                                  -8-
