        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              November 17, 2009 Session

                  STATE OF TENNESSEE v. HAVIN HAMEED

         Interlocutory Appeal from the Criminal Court for Davidson County
                     No. 2006-A-409    Monte D. Watkins, Judge


               No. M2009-00152-CCA-R9-CD - Filed September 15, 2010


Defendant-Appellant, Havin Hameed, was indicted in the Davidson County Criminal Court
for two counts of aggravated child abuse and two counts of aggravated child neglect, Class
A felonies, that were associated with leg and wrist fractures sustained by Hameed’s ten-
month-old daughter from September 1, 2004, to October 1, 2004. Prior to Hameed’s
indictment, the Davidson County Juvenile Court made a factual finding in a dependent and
neglect hearing that there was no clear and convincing evidence that Hameed perpetrated the
aforementioned injuries against her daughter. Hameed filed a motion to dismiss the
indictment in criminal court, which was denied. The criminal court granted permission for
an interlocutory appeal and this court subsequently granted Hameed’s application to appeal
under Rule 9 of the Tennessee Rules of Appellate Procedure. On appeal, Hameed argues that
the criminal court erred in failing to dismiss her indictment based on the doctrines of
collateral estoppel, res judicata, and double jeopardy after identical allegations between the
same parties were dismissed following a trial in juvenile court. Upon review, we affirm the
judgment of the Davidson County Criminal Court denying Hameed’s motion to dismiss her
indictment.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and
T HOMAS T. W OODALL, JJ., joined.

Robert L. Tennent, Nashville, Tennessee, for the Defendant-Appellant, Havin Hameed.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Brian K. Holmgren,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION
                       FACTS AND PROCEDURAL HISTORY

        This case concerns the alleged physical abuse of D.G., a ten-month-old girl, who
sustained a fracture to her leg while being cared for by her mother, Hameed, at their home.
A skeletal survey ordered the same day as the leg injury revealed that D.G. had also sustained
a wrist fracture that was more than one week old. At the time of these injuries, Hameed was
D.G.’s primary caregiver.

        Factual Background. On October 1, 2004, Hameed brought D.G. to the Vanderbilt
walk-in clinic. Hameed stated that she and D.G. were in their home alone and she was in the
kitchen when she heard D.G. crying. She found D.G. at the bottom of the stairs. The child’s
right leg was “slightly distorted” under her body. After her attempts to comfort D.G. failed,
Hameed called her cousin, Reijin Tayar, a medical assistant at Vanderbilt Hospital, who told
her to give the child “another dose of Tylenol.” D.G. had apparently been “feverish and
crying a lot since Monday when she received her ten month Booster shot.” When the Tylenol
failed to calm D.G., Hameed called her cousin Tayar again. Tayar told Hameed to bring the
child to the Vanderbilt walk-in clinic to be examined. Upon D.G.’s examination at the walk-
in clinic, an x-ray of the child’s leg was taken. Dr. Shelia Stein read the x-ray and
determined that D.G. had a fracture of her “right distal femur.” The clinic then transferred
D.G. to the emergency room at the Vanderbilt Children’s Hospital for additional treatment.

        Dr. Truc Le, the physician in charge of D.G.’s care in the emergency room said that
the child’s leg fracture was unusual and suspicious because of D.G.’s age and the fact that
she was not yet walking. Dr. McMorrow performed a full skeletal survey on D.G., which
revealed a fracture on her right wrist that was in the process of healing in addition to her leg
fracture. Dr. Shelia Stein, who read the skeletal survey, determined that the healing wrist
fracture was more than one week old. Dr. Stein concluded that D.G. had “two fractures of
different ages [which was] consistent with non-accidental trauma.” In addition, Dr. Le
opined that the wrist fracture could not have happened the same day as the leg fracture and
had to be at least a few days old. D.G. was placed in a full arm and wrist cast for her healing
wrist fracture and was placed in a Hip Spica cast that covered two-thirds of her body for her
leg fracture.

       After learning of the second fracture on D.G.’s wrist, Dr. McMorrow contacted Ms.
Cindy Miller, the social worker at Vanderbilt’s Children’s Hospital. Ms. Miller then
contacted the Department of Children’s Services Child Abuse Hotline to make a referral.

       D.G. was not admitted to the Vanderbilt Children’s Hospital after receiving her two
casts. Instead, she stayed the evening at the pediatric emergency department of the hospital
and was discharged to a foster family for a period of time before a paternal uncle was given


                                              -2-
temporary custody of her. D.G.’s father was later given custody, with the condition that
Hameed could not be with D.G. unsupervised.

       Hameed told the case manager for the Department of Children’s Services that two or
three hours passed before she brought D.G. to the clinic. However, she told Detective Curtis
that only one hour passed between the time of the incident and the time she brought D.G. to
the emergency room, where she waited approximately two hours before D.G. was examined.
When the case manager asked Hameed about D.G.’s wrist fracture, Hameed told her that she
did not know about the fracture and did not know how it occurred. Hameed’s husband also
did not know the cause of the wrist fracture.

       D.G. was later seen by Dr. Greg Mencio, a pediatric orthopedist. Dr. Mencio removed
her casts and took x-rays which indicated that both fractures were healing well. The
radiologist reading the x-rays also determined that D.G.’s bones “appear[ed] normal in their
mineralization and in their structure and that there was no Wormian bone identified.”

       Detective Melvin Curtis talked to Hameed following D.G.’s treatment at the
Vanderbilt Children’s Hospital. He examined the stairs where D.G. was allegedly injured
and determined that the home was “neat with no obvious safety hazards.” Detective Curtis
also observed that Hameed had purchased two safety gates, one for the top of the stairs and
one for the bottom of the stairs. The case manager for the Department of Children’s Services
also examined the condition of Hameed’s home. The case manager determined that the
distance from the second step to the floor was approximately three feet. She also noted that
Hameed had installed gates at the top and bottom of the stairs as she stated that she would
at the hospital after the D.G.’s injury. The case manager also found that the house was
“clean [with] no apparent safety hazards.”

        Dr. Christopher S. Greeley reviewed all of D.G.’s available medical records and wrote
a report of his findings. Dr. Greeley determined that D.G. had normal-appearing bones with
no abnormalities. He found that the single event of falling down the stairs could not be used
to explain both of D.G.’s fractures because of their different ages. Dr. Greeley opined that
the wrist fracture appeared to be one to two weeks old at the time of the x-ray at the
Vanderbilt Children’s Hospital. He also expressed concern that neither Hameed nor anyone
else provided an explanation for this fracture. Dr. Greeley stated, “[F]emur fractures in
infants in the first year of life are caused by an inflicted injury in approximately 70[%] to
80% of the time” which “would indicate that the majority of femur fractures in infants are
the result of actions done to the child by someone with the strength and coordination of an
adult.” He also was concerned with the delay in seeking medical attention for D.G. Dr.
Greeley noted that although the fall occurred at 9:00 a.m., Hameed was not taken to the clinic
until 3:35 p.m. that day. Dr. Greeley concluded the following regarding D.G.’s injuries:


                                             -3-
               In summary, it is possible that a newly ambulatory child can fall onto
       an outstretched hand and receive a fracture. That fracture would result in
       significant discomfort and decreased mobility. It is also possible (but unlikely)
       that a fall of four feet under the proper biomechanical parameters could result
       in a femur fracture, but the constellation of a history of a trivial event resulting
       in a fracture of a major bone and subsequently finding an occult, older fracture
       is quite concerning. It is impossible in this situation to exclude abuse. It is
       possible, albeit less likely, that two separate accidental falls could account for
       both of these injuries. That being said, the clinical scenario (a child with
       normal bones having two fractures in various stages of healing absent two
       well-documented traumatic events) is more consistent with these being the
       result of a series of inflicted events[,] but [the clinical scenario where these
       fractures were] the result of a series of accidental events can not [sic] be
       definitively excluded.

        Procedural History. On October 4, 2004, the Tennessee Department of Children’s
Services filed a Petition for Custody with Request for Emergency Removal in the Juvenile
Court of Davidson County asserting that the victim was a “dependent and neglected child”
pursuant to Tennessee Code Annotated sections 37-1-102(b)(12)(B), (F), and (G). The
petition also claimed that the abuse sustained by D.G. constituted severe abuse pursuant to
section 37-1-102(b)(21) and that the alleged perpetrators of D.G.’s abuse that resulted in the
leg and wrist fractures were D.G.’s mother, Hameed, and D.G.’s father. The petition asserted
that it was in the best interest of D.G. and the public for temporary custody of the victim to
be awarded to the Tennessee Department of Children’s Services or an appropriate relative.

        Section 37-1-102(b)(12) in pertinent part defines a “defendant and neglected child”
for the purposes of the juvenile court as a child:

       (B) Whose 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;

       (G) Who is suffering from abuse or neglect[.]

T.C.A. § 37-1-102(b)(12) (Supp. 2002).

                                               -4-
       In addition, section 37-1-102(b)(21) defines “severe child abuse” within the context
of juvenile court as:

         (A) The knowing exposure of a child to or the knowing failure to protect a
         child from abuse or neglect that is likely to cause great bodily harm or death
         and the knowing use of force on a child that is likely to cause great bodily
         harm or death;

         (B) Specific brutality, abuse or neglect towards a child which in the opinion
         of qualified experts has caused or will reasonably be expected to produce
         severe psychosis, severe neurotic disorder, severe depression, severe
         developmental delay or retardation, or severe impairment of the child’s ability
         to function adequately in the child’s environment, and the knowing failure to
         protect a child from such conduct;

         (C) The commission of any act towards the child prohibited by §§ 39-13-502–
         39-13-504, 39-13-522, 39-15-302, and 39-17-1005 or the knowing failure to
         protect the child from the commission of any such act towards the child; or

         (D) Knowingly allowing a child to be present within a structure where the act
         of creating methamphetamine, as that substance is identified in § 39-17-
         408(d)(2), is occurring.

T.C.A. § 37-1-102(b)(21) (Supp. 2002).

         Finally, section 37-1-102(b)(1) defines “abuse” within the context of the juvenile
court:

         “Abuse” exists when a person under the age of eighteen (18) is suffering from,
         has sustained, or may be in immediate danger of suffering from or sustaining
         a wound, injury, disability or physical or mental condition caused by brutality,
         neglect or other actions or inactions of a parent, relative, guardian or caretaker.

T.C.A. § 37-1-102(b)(1) (Supp. 2002).

       Following an October 6, 2005 trial in the Davidson County Juvenile Court, the
juvenile court referee made the following determination:




                                                 -5-
        [T]his Court cannot find clear and convincing evidence that Ms. Hameed
        perpetrated [these injuries] upon her daughter. While the femur fracture
        certainly occurred while [Hameed] cared for [D.G.], her explanation for the
        injury is plausible. There is no substantive proof that links her with the wrist
        fracture other than she is the child’s primary caregiver. While concerning, the
        Court cannot find that probability dictates culpability. Accordingly, the
        petition is dismissed.

       On February 17, 2006, approximately sixteen months after the alleged incident and
approximately four months after the dismissal in juvenile court, Hameed was indicted in the
the Davidson County Criminal Court for two counts of aggravated child abuse and two
counts of aggravated child neglect based on the leg and wrist fractures sustained by D.G.1
Hameed asserts that she was not served with this indictment until the spring of 2007,
approximately one year after the indictment was issued. The record does not explain the
delay in the indictment being issued or served.

       The criminal offenses of aggravated child abuse and aggravated child neglect are
defined by section 39-15-402, in pertinent part:

        (a) A person commits the offense of aggravated child abuse or aggravated
        child neglect who commits the offense of child abuse or neglect as defined in
        § 39-15-401 and:

        (1) The act of abuse or neglect 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, however, that, if
        the abused or neglected child is six (6) years of age or less, the penalty is a
        Class A felony.

T.C.A. § 39-15-402(a), (b) (Supp. 2002).

        The criminal offense of child abuse and neglect is defined as the following:


        1
          Hameed’s brief notes that pursuant to Rule 7 of the 20th Judicial District Local Rules of the
Juvenile Court, audiotapes of juvenile proceedings are to be kept for ninety days, and any request to maintain
tapes longer than this deadline must be ordered by the court. Hameed asserts that she was not indicted for
the charges in this case until after the ninety-day deadline for maintaining the audiotapes from her juvenile
court trial had lapsed.

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

T.C.A. § 39-15-401(a) (Supp. 2002).

       On September 15, 2008, Hameed filed a motion to dismiss the indictment based on
the doctrines of collateral estoppel, double jeopardy, and res judicata in the Davidson County
Criminal Court. Following a hearing, the court denied the motion by written order on
November 13, 2008, and made the following findings:

              The Court finds that the Juvenile Court Order regarding dependency
       and neglect is not a binding preclusive determination on the criminal act of
       Aggravated Child Abuse and/or Neglect. The Juvenile Court order decided
       dependency and neglect as it relates to custody of the minor child and not the
       criminal act of Aggravated Child Abuse and/or Neglect. Thus, the burden of
       proof enumerated in Beaty v. McGraw which the defendant relies on [has] not
       been met because the issue sought to be precluded was not identical or decided
       on by the Juvenile Court. Therefore, the defendant’s motion to dismiss the
       indictment is respectfully DENIED.

         Also on November 13, 2008, Hameed filed a motion for permission to appeal
pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure in the Davidson County
Criminal Court, which was granted on the issue regarding the application of the doctrines of
collateral estoppel, res judicata, and double jeopardy but was denied on the issue regarding
Hameed’s motion to prohibit medical expert testimony. The Tennessee Court of Criminal
Appeals subsequently granted Hameed’s application for a Rule 9 interlocutory appeal on
February 26, 2009, regarding the issue of collateral estoppel, res judicata, and double
jeopardy. However, it declined to grant Hameed’s application for extraordinary relief under
Rule 10 of the Tennessee Rules of Appellate Procedure regarding the trial court’s evidentiary
ruling to admit the medical expert testimony.

                                        ANALYSIS

       Hameed contends that the indictment charging her with two counts of aggravated
child abuse and two counts of aggravated child neglect must be dismissed based on the
doctrines of collateral estoppel and res judicata because identical allegations involving the
same parties were dismissed following a juvenile court trial. Although she argues in her brief

                                              -7-
that her indictment should also be dismissed based on the doctrine of double jeopardy,
defense counsel conceded during oral argument before this court that double jeopardy does
not provide relief for Hameed in this case. Therefore, our opinion will be limited to whether
the doctrines of collateral estoppel and res judicata require dismissal of Hameed’s indictment.

        The State contends that the trial court properly determined that the doctrines of
collateral estoppel and res judicata do not apply to this case. Specifically, the State asserts
that collateral estoppel is not applicable to this case because the juvenile court determined
the issue of D.G.’s custody rather than the issue of whether Hameed committed the criminal
offenses of aggravated child abuse and neglect against D.G. In addition, the State asserts that
the doctrine of res judicata does not apply to this case because res judicata requires
concurrent jurisdiction between courts of competent jurisdiction and the juvenile court does
not have concurrent jurisdiction with the criminal court.

       Importantly, we note that on July 23, 2009, in State v. Marcie Lynn Pursell, No.
M2008-01625-CCA-R9-CD, 2009 WL 2216562 (Tenn. Crim. App., at Nashville, July 23,
2009), perm. to appeal denied (Tenn. Jan. 25, 2010), this court decided a case nearly identical
to Hameed’s case. In Marcie Lynn Pursell this court considered the issue of “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.” Id. at *4. At the time that this
opinion was decided, the court acknowledged that this issue appeared to be a matter of first
impression in Tennessee. See id. Notably, the Marcie Lynn Pursell case was decided by this
court during the pendency of Hameed’s Rule 9 interlocutory appeal. In fact, the opinion was
issued approximately one-and-a-half months after the filing of Hameed’s appellate brief and
one day prior to the filing of the State’s appellate brief in this case. We conclude that Marcie
Lynn Pursell is determinative of the issues in Hameed’s case; thus, a full analysis of that case
is appropriate.

       In Marcie Lynn Pursell, the defendant was indicted for three counts of aggravated
child abuse in the Davidson County Criminal Court after fractures to her infant son’s ribs,
leg, and arm were discovered. See id. Subsequently, the Tennessee Department of
Children’s Services filed a Petition for Custody with Request for Emergency Removal and
Request to Set Child Support in the Davidson County Juvenile Court against the defendant
in order to declare that the defendant’s son, J.P., was a “dependent and neglected child”
pursuant to Tennessee Code Annotated section 37-1-102(b)(12)(B), (F), and (G) because of
the severe child abuse he had sustained. See id. The juvenile court subsequently made a
factual finding that although the State had asserted that J.P.’s injuries were the result of “non-
accidental trauma,” the defense had “demonstrated other alternative theories that the injuries
could have resulted from metabolic bone disease, vitamin deficiencies, or iatrogenic
injuries.” Id. at *2. Ultimately, the juvenile court found that there was no evidence that the

                                               -8-
defendant was aware of or had any reason to know of the injuries that J.P. sustained. See id.
Following this hearing, the juvenile court “re-instituted” visitation between the defendant and
J.P., and there was no appeal of the juvenile court order. Id. Approximately one month after
entry of the juvenile court order, the defendant filed a motion in the criminal court to dismiss
the indictment charging her with three counts of aggravated child abuse based on the
doctrines of “res judicata and collateral estoppel, an element of double jeopardy as protected
by the Fifth Amendment of the United States Constitution.” Id. Following a hearing, the
criminal court denied this motion. See id. Regarding the applicability of the doctrine of
collateral estoppel, the criminal court found that the juvenile court was not a court of
“competent jurisdiction” because the juvenile court did not have the authority to adjudicate
a criminal charge of aggravated child abuse and, therefore, the juvenile court’s findings were
not “entitled to issue-preclusive effect.” Id. Regarding the applicability of res judicata, the
criminal court noted that the juvenile court and the criminal court were not courts of
concurrent jurisdiction over the criminal offense of aggravated child abuse and found that
the juvenile court order was not entitled to “claim-preclusive effect over the criminal court.”
Id. The defendant was then granted a Rule 9 interlocutory appeal regarding the application
of the doctrines of collateral estoppel and res judicata to the case. Id.

      On appeal, the Marcie Lynn Pursell court compared the doctrines of collateral
estoppel and res judicata:

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

                      ....

                      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 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.

                                              -9-
       738 S.W.2d at 631-32 (quoting 22 Tenn. Jur. pp. 111-12).

Id. at *3. The Marcie Lynn Pursell court then emphasized that the defendant has the burden
of showing that the issue he or she seeks to preclude was fully decided in the previous
proceeding:

               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 [v. Swenson], 397 U.S. [436,] 444 [(1970)]
       (footnote and internal quotation marks omitted).

Id. at *4.

       Marcie Lynn Pursell then looked to the Illinois case of People v. Moreno, 744 N.E.2d
906 (2001), for guidance on whether a juvenile court judgment precluded a criminal
prosecution based on the same facts:

               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



                                              -10-
       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:

              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 [Moreno] 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.

Marcie Lynn Pursell, 2009 WL 2216562, at *4-5.

       The Marcie Lynn Pursell court then noted with approval the two cases cited in
Moreno, People v. Percifull, 12 Cal. 2d 331 (Cal. Ct. App. 1992), review denied (Cal. Nov.
25, 1992), and State v. Cleveland, 794 P.2d 546 (Wash. Ct. App. 1990). It further noted that
other states had reviewed similar issues and had reached similar results to those in Moreno,
Percifull, and Cleveland and cited as examples Carlene Northcutt v. Commonwealth, No.
2002-CA-000491-MR, 2003 WL 22061637 (Ky. Ct. App. Sept. 5, 2003), discretionary
review denied (Ky. March 10, 2004); State v. Chad A. Felter, No. H-99-001, 1999 WL
727096 (Ohio Ct. App. Sept. 17, 1999); People v. Gates, 452 N.W.2d 627 (Mich. 1990);
Gregory v. Commonwealth, 610 S.W.2d 598 (Ky. 1980).

       After relying on these authorities, the Marcie Lynn Pursell court concluded that the
juvenile court judgment did not preclude the State from bringing criminal charges against the
defendant:

              Here, the juvenile court action was brought to determine whether J.P.
       was a dependent and neglected child pursuant to Tennessee Code Annotated

                                            -11-
       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.

Marcie Lynn Pursell, 2009 WL 2216562, at *6. Although we have previously concluded that
Marcie Lynn Pursell is determinative of the issues in the instant case, we will address the
arguments raised by Hameed in this appeal.

       I.      The Application of the Doctrines of Collateral Estoppel and Res Judicata.

                A. Collateral Estoppel. Hameed contends that her indictment should be
dismissed pursuant to the doctrine of collateral estoppel based on the test articulated in Beaty
v. McGraw, 15 S.W.3d 819, 824 (Tenn. Ct. App. 1998), which states that the party invoking
the doctrine of collateral estoppel must establish that: (1) the issue sought to be precluded
is identical to the issue decided in the earlier suit; (2) the issue sought to be precluded was
actually litigated and decided on its merits in the earlier suit; (3) the judgment in the earlier
suit has become final; (4) the party against whom collateral estoppel is asserted was a party
or is in privity with a party to the earlier suit; and (5) the party against whom collateral
estoppel is asserted had a full and fair opportunity in the earlier suit to litigate the issue now
sought to be precluded. Given this court’s decision in Marcie Lynn Pursell, we find that
application of the test as articulated in Beaty is unnecessary. After applying the rule in
Marcie Lynn Pursell that a juvenile court judgment does not preclude the State from bringing
criminal charges based on the same conduct, we conclude that the doctrine of collateral
estoppel does not bar Hameed’s criminal prosecution. See Marcie Lynn Pursell, 2009 WL
2216562, at *6.

        Hameed argues that the issue sought to be precluded in the criminal case is identical
to the issue decided in the juvenile trial. She asserts that the “factual theory of guilt” asserted

                                               -12-
by the State of Tennessee in the criminal case is the same as that presented by the State of
Tennessee in the juvenile court case. Specifically, she argues that the allegations in both
cases were that she inflicted a leg and wrist fracture on the victim. We disagree. While the
sole purpose of the juvenile case was to protect D.G., the sole purpose of the criminal case
is to determine whether Hameed committed the criminal offenses of aggravated child abuse
and aggravated child neglect against D.G. See Marcie Lynn Pursell, 2009 WL 2216562, at
*6. The custody issue regarding the welfare of the child is not identical to the issue regarding
whether Hameed committed the criminal offenses of aggravated child abuse and aggravated
child neglect.

        Hameed cites State of Tennessee, Department of Children’s Services v. R.R.’s, No.
E2006-02785-COA-R3-PT, 2006 WL 3431938, at *2 (Tenn. Ct. App. Nov. 29, 2006), perm.
to appeal denied (Tenn. March 12, 2007), for the rule that final juvenile court judgments are
given preclusive effect pursuant to the doctrine of collateral estoppel. However, in R.R.’s,
the parents argued that the juvenile court erred in refusing to admit the deposition of a
physician who indicated that the children had never been abused. See id. at *1. The juvenile
court refused to admit the doctor’s deposition because it had already determined in a prior
adjudicatory hearing that the two children had been sexually abused. See id. On appeal to
the Tennessee Court of Appeals, the State argued that “the doctrine of collateral estoppel
bar[red] consideration of whether the children suffered sexual abuse because the Juvenile
Court previously ruled at the adjudicatory hearing that [both children] suffered sexual abuse.”
Id. In response, the parents argued that the prior adjudicatory hearing was not a final
judgment. See id. The Tennessee Court of Appeals ultimately held that the juvenile court
adjudicatory order that the children were dependent and neglected and that the children had
been sexually abused “was a final order and was appealable as of right.” Id. at *2 (citing
T.C.A. § 37-1-159(a) (2005); Tenn. R. Juv. P. 36). It further held that the parents were
barred from raising this issue on direct appeal because they did not appeal the juvenile court
order. See id. (citing Massengill, 728 S.W.2d at 631; Beaty, 15 S.W.3d at 824). In R.R.’s,
the issue sought to be precluded was identical to the one on appeal and both of the courts
were civil courts. However, in the instant case, Hameed argues that the juvenile court’s
dismissal of the petition for custody precludes her prosecution for the criminal charges of
aggravated child abuse and aggravated child neglect. In Hameed’s case, the issues as
explained above are not identical, and the earlier suit was before a civil court while the later
case is pending before the criminal court. Accordingly, Hameed is not entitled to relief based
on this argument.

       Hameed also cites In re T.H., No. 01-A-01-9412-JV-00600, 1996 WL 165511, at *3
(Tenn. Ct. App. April 10, 1996), for the proposition that criminal convictions for sexual
abuse are factually binding and can be used by the juvenile court to terminate rights. In In
re T.H., a father argued that the juvenile court in a termination of parental rights proceeding

                                              -13-
should not have considered certified copies of the judgments of his criminal convictions
which related to the juvenile case because the criminal convictions were on appeal at the time
of the juvenile hearing. See id. at *2. The Tennessee Court of Appeals noted that the
criminal convictions were relevant in the termination proceeding in juvenile court in light of
Tennessee Code Annotated section 37-1-147(d)(3) (1991), which allows a termination of the
parental rights of a parent “who has been sentenced to more than two (2) years’
imprisonment for conduct which has been or is found to be severe child abuse.” Id. at *3.
The court ultimately concluded that, pursuant to Tennessee Rule of Evidence 803(22), the
juvenile court properly considered the judgments of conviction despite the fact that they were
on appeal at the time of the termination proceeding. See id. Because In re T.H. does not
involve the issues of collateral estoppel or res judicata, we fail to see how this case is relevant
to Hameed’s appeal.

        Second, Hameed argues that “the issue sought to be precluded, whether [she] is guilty
beyond a reasonable doubt of abuse or neglect was previously litigated under a lesser
evidentiary standard, more favorable to the State of Tennessee, and [that issue was] decided
on its merits in [her] favor.” Again, we disagree. As we previously stated, the issue litigated
and decided on its merits at the juvenile court trial was whether the victim was a “dependent
and neglected child” that needed protection by the State. Because this issue is not the same
as the issue sought to be precluded, Hameed has not established that she is entitled to relief
on this issue.

       Third, Hameed argues that the November 4, 2005 juvenile court judgment of dismissal
was final because no appeal was filed and this judgment has preclusive effect on her criminal
case. See T.C.A. § 37-1-107; Tenn. R. Juv. P. 4(c); Tenn. R. Juv. P. 36(e). However,
because the custody issue litigated and decided on its merits in juvenile court was not
identical to the issue of whether Hameed committed the criminal offenses of aggravated child
abuse and aggravated child neglect, the finality of the juvenile court judgment has no effect
on the criminal prosecution.

        Fourth, Hameed argues that the party against whom collateral estoppel is asserted,
namely the State of Tennessee, was a party or was in privity to a party from the previous suit,
namely the Tennessee Department of Children’s Services. Hameed asserts that the State of
Tennessee was the captioned party in both the juvenile case and the criminal case. Moreover,
she interprets the language in Article I, section 1 of the Tennessee Constitution to mean that
“the party in interest to all actions undertaken by the government is actually the people of
Tennessee,” therefore, she asserts that the people of the State of Tennessee were a party in
both the juvenile case and the criminal case. Hameed cites section 37-1-124(b), which
states, “The district attorney general or city or county attorney, or any attorney, upon request
of the court, shall present the evidence in support of the petition [in juvenile court] and

                                               -14-
otherwise conduct the proceedings on behalf of the state.” See Tenn. R. Juv. P. 2(15); see
also Tenn. R. Juv. P. 19(c) (“Whenever required by statute or rule, or at his or her discretion,
the district attorney general shall appear in the juvenile court and prosecute the complaint on
behalf of the State.”). In addition, she cites section 40-3-104, which states, “All criminal
actions are prosecuted in the name of the state of Tennessee against the party charged with
the offense.” Therefore, she claims the State of Tennessee “prosecuted” her in both the
juvenile case and the criminal case and asserts that “there is plainly common identity of
parties.” She also argues that, even if the parties were not the same, the Office of the District
Attorney General was “in privity” with the Department of Children Services “since each
party was prosecuting actions based upon the same alleged wrongful conduct, involving the
same alleged victim, claiming the same injuries, claiming the same alleged perpetrator, and
relying on the same proof.” Regardless of whether the Tennessee Department of Children
Services and the Tennessee Office of the District Attorney are at a minimum in privity with
one another, any connection between these two entities is meaningless in light of the decision
reached in Marcie Lynn Pursell. Because Hameed failed to establish that the issue
determined in the prior juvenile case was identical to the issue in the criminal case, she is not
entitled to relief on this issue.

        Fifth, Hameed argues that the State of Tennessee had a full and fair opportunity to
litigate whether she abused or neglected the victim in the juvenile proceeding, which resulted
in a dismissal, and therefore, the State should be precluded from litigating this same issue in
the criminal case. We disagree. Because the issue in the juvenile proceeding was whether
the victim was a “dependent and neglected child” that needed protection by the State, we
cannot conclude that the State had a full and fair opportunity to litigate in the juvenile
proceeding whether Hameed was guilty beyond a reasonable doubt of committing the
criminal offenses. Accordingly, Hameed has not established that the State should be
precluded from prosecuting her under the doctrine of collateral estoppel.

           B. Res Judicata. Hameed alternatively argues that her indictment should be
dismissed under the doctrine of res judicata. Specifically, she claims that the juvenile court’s
dismissal is considered a final judgment rendered upon the merits pursuant to the definition
of res judicata as stated in Shelly v. Gipson, 400 S.W.2d 709, 714 (Tenn. 1966): “The
doctrine of res judicata is that an existing final judgment rendered upon the merits by a court
of competent jurisdiction is conclusive of the rights, questions and facts in issue as to the
parties and their privies in the same action in other judicial tribunals of concurrent
jurisdiction.”

      As we discussed above, the juvenile court’s dismissal of the petition for custody was
not conclusive of the rights, questions, and facts in issue regarding Hameed’s criminal
prosecution. Moreover, the Davidson County Juvenile Court and the Davidson County

                                              -15-
Criminal Court do not have concurrent jurisdiction. The juvenile court has original
jurisdiction to determine whether a child is “dependent and neglected.” T.C.A. § 37-1-
103(a)(1). In addition, the juvenile court has concurrent jurisdiction with the probate court
to determine the custody of a child and has concurrent jurisdiction with the chancery and
circuit courts to terminate parental rights. See id. § 37-1-104(a)(2), (c). However, the circuit
and criminal courts “have original jurisdiction of all criminal matters not exclusively
conferred by law on some other tribunal.” Id. § 40-1-108. Because the juvenile court and
the criminal court do not have concurrent jurisdiction, Hameed is not entitled to relief under
the doctrine of res judicata.

        Hameed cites Department of Human Services v. Wanda Lee Tate, No. 01-A-9409-
CV-00444, 1995 WL 138858, at *5 (Tenn. Ct. App. Mar. 31, 1995), for the rule that a
juvenile court’s factual finding has preclusive effect in circuit court. In Wanda Lee Tate, the
juvenile court determined that the children were dependent and neglected partially based on
its finding of severe child abuse by the defendant. See id. At the circuit court’s de novo
dependency and neglect hearing, it also found that the defendant had committed severe child
abuse. See id. In a later termination proceeding, the circuit court noted in its findings that
the defendant failed to appeal its previous finding of severe child abuse and found that the
defendant was barred from challenging its prior finding of severe child abuse. See id. On
appeal, the Tennessee Court of Appeals concluded that “the circuit court did not err in
finding that the doctrine of res judicata barred the defendant from challenging the prior
findings of severe child abuse.” Id. In Wanda Lee Tate, the issue sought to be precluded
was identical to the one on appeal and both the juvenile court and the circuit court were civil
courts. This posture varies dramatically from that of the instant case. Here, Hameed argues
that the juvenile court’s dismissal of the petition for custody precludes her prosecution for
the criminal charges of aggravated child abuse and aggravated child neglect. In contrast to
Wanda Lee Tate, the issue determined in Hameed’s juvenile court case is not identical to the
issue in her criminal case. Accordingly, Hameed is not entitled to relief based on this
argument.

        II. Application of Collateral Estoppel in North Carolina and California. Further,
citing State v. Summers, 528 S.E.2d 17, 21 (N.C. 2000); People v. Garcia, 141 P.3d 197, 210
(Cal. 2006); and People v. Sims, 651 P.2d 321,334 (Cal. 1982), Hameed argues that the states
of North Carolina and California have held that the doctrine of collateral estoppel may
preclude criminal prosecutions where an individual has been exonerated in an administrative
hearing. In light of this court’s decision in Marcie Lynn Pursell, we need not consider how
other jurisdictions handle this issue.

      III. Differences in the Burdens of Proof, Elements of the Offenses, and the Lesser
Included Offenses. Hameed attempts to refute several arguments made by the State at the

                                              -16-
hearing on her motion to dismiss the indictment. The State first argued at the hearing that
the doctrines of collateral estoppel and res judicata were not applicable because the burdens
of proof for the criminal offenses and the juvenile charge differed. In response, Hameed
claims that because the evidence presented by the State at the juvenile court hearing was
insufficient to meet the “clear and convincing” standard required by that court, the State is
precluded from attempting to meet the higher standard of “beyond reasonable doubt”
required in criminal court. She asserts that both she and the State of Tennessee were parties
in the juvenile court case and the criminal court case and that in both of these cases the State
was attempting to establish that she abused or neglected D.G. on or before October 1, 2004.
Hameed contends that “[i]t is utterly inappropriate and grossly illegal to allow the State of
Tennessee a ‘do-over’ and another try to strip [her] of custody (via a mandatory minimum
sentence of fifteen years in prison) with a different expert witness (Dr. Adele Lewis) who is
reciting the same argument that previously was found unavailing.”

        The State also argued at the motion hearing that the doctrines of collateral estoppel
and res judicata were not applicable because the elements of the criminal offenses and the
juvenile charge were not the same. After acknowledging that the elements of the juvenile
offense and the elements of the criminal offense are different in her brief, Hameed contends
that although the criminal offense has more elements, the criminal offense includes all of the
elements charged in the juvenile case, and both the juvenile case and the criminal case
required a finding that the victim was either “abused” or “neglected.” She contends that the
juvenile court’s finding that the victim was not abused or neglected “negates one of the
essential elements of all indicted offenses.”

        The State further argued at the motion hearing that the doctrines of collateral estoppel
and res judicata were not applicable because the juvenile offense and the criminal offenses
have different lesser included offenses. In response, Hameed argues that she cannot envision
a lesser included offense with which she could have been charged that would not have “the
same factual predicate found wanting in the Juvenile Court.” Although Hameed admits that
the State might not have been precluded from charging her with the lesser included offense
of assault under sections 39-13-101(a)(2) or (a)(3), neither the element of assault by fear of
imminent bodily injury nor the element of assault by offensive or provocative contact are
supported by the facts of this case.

        We conclude that Hameed’s aforementioned arguments are unnecessary to address in
light of this court’s decision in Marcie Lynn Pursell that a juvenile court judgment does not
have preclusive effect on a criminal prosecution based on the same facts. See Marcie Lynn
Pursell, 2009 WL 2216562, at *6. Accordingly, we affirm the judgment of the trial court.

                                       CONCLUSION

                                              -17-
Upon review, we affirm the judgment of the trial court.




                                           ________________________________
                                           CAMILLE R. McMULLEN, JUDGE




                                    -18-
