State v Ducker

• Decision Date: 14 July 2000
• Docket Number: 97-00074
• Citation: State v Ducker, 27 S.W.3d 889 (Tenn. 2000)
• Parties: STATE OF TENNESSEE v. JENNIE BAIN DUCKERIN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
• Court: Tennessee Supreme Court

STATE OF TENNESSEE v JENNIE BAIN DUCKER

No. M1997-00074-SC-R11-CD

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

Decided July 14, 2000

FOR PUBLICATION

Appeal from the Circuit Court for Warren County No. F-6967

Charles Haston, Judge

We granted review to determine (1) whether aggravated child abuse is a lesser-included offense of the charged offense of first degree murder for the reckless killing of a child; (2) whether the knowing mens rea of aggravated child abuse refers to the conduct of the defendant or to the result of that conduct; (3) whether the evidence supports the defendant's convictions; and (4) whether the defendant was properly convicted of Class A felonies when the trial court failed to charge the jury on the age element contained in the aggravated child abuse statute. We conclude that aggravated child abuse is a lesser-included offense of the charged offense of first degree murder for the reckless killing of a child; that the knowing mens rea required for a conviction of aggravated child abuse refers to the conduct and not to the result of the conduct; that the evidence was sufficient to support the defendant's convictions in this case; and that the defendant was properly convicted of Class A felonies for injuries to children six years of age or less.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed.

David L. Raybin, Nashville, Tennessee, and Michael D. Galligan, McMinnville, Tennessee, for the appellant, Jennie Bain Ducker.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Kim R. Helper, Assistant Attorney General, for the appellee, State of Tennessee.

HOLDER, J., delivered the opinion of the court, in which ANDERSON, C.J., and DROWOTA, BIRCH, and BARKER, JJ., joined.

OPINION

The defendant, Jennie Bain Ducker, drove with her two children, ages twenty-three months and twelve months, to the McMinnville Holiday Inn on June 6, 1995. The defendant's boyfriend had been temporarily residing at the hotel. The defendant and her two small children arrived at the hotel at approximately 3:45 a.m. She securely fastened her children into their car seats, closed the windows, and locked the doors. She then left the children alone in the car and went to her boyfriend's hotel room.

The defendant entered the hotel room where her boyfriend and three other individuals were playing video games. The record indicates that she drank some wine. Expert testimony at trial indicated that her blood alcohol level could have been as high as .1925 that morning.

The testimony of individuals present in the hotel room that night indicated that the defendant left the room on two occasions, once to get ice and once to get analgesics. The defendant, however, testified that she left the room on five occasions to check on her children. The defendant apparently never mentioned to anyone that she had left her children locked in her car.

The gathering broke up at approximately 5:00 a.m. The defendant and her boyfriend remained at the hotel room. They fell asleep shortly thereafter while the defendant's two children were still locked inside her automobile. The defendant awoke between 12:00 and 1:00 p.m. She returned to her car and discovered her lifeless children. She drove them to the hospital where they were pronounced dead at approximately 1:20 p.m. Both children died of systemic hyperthermia, a condition that results when a human body severely overheats and is unable to cool itself.

The defendant was indicted on two counts of first degree murder for the reckless killing of a child. At trial, the defendant introduced proof to establish that she suffered from bipolar disorder with periods of depression and mania. The defendant also offered evidence that she had a sleep disorder. The defendant's mother testified that the defendant would remain awake for two or three days at a time and then go into such a deep sleep that she could not be awakened. The defendant testified that she did not see any danger in leaving her sons in the car for more than nine hours. She also testified that she made no excuses for what happened and that she accepted responsibility for her actions.

A jury acquitted the defendant of murder charges but convicted her on two counts of aggravated child abuse. She was sentenced to eighteen years on each count to run concurrently for an effective sentence of eighteen years. The defendant raised numerous issues in the Court of Criminal Appeals. The Court of Criminal Appeals, however, affirmed both her convictions and her sentences. We granted review.

ANALYSIS

The defendant has raised four issues on appeal. These issues may be paraphrased as follows: (1) whether aggravated child abuse is a lesser-included offense of the charged offense of murder for the reckless killing of a child; (2) whether the knowing mens rea of aggravated child abuse refers to the conduct of the defendant or to the result of that conduct; (3) whether the evidence supports the defendant's convictions under that charge; and (4) whether the defendant was properly convicted of Class A felonies when the trial court failed to charge the jury on the age element contained in the aggravated child abuse statute.

Lesser-Included Offense

The defendant was charged in a two-count indictment for first degree murder for the death of her children. She was not indicted for aggravated child abuse. Count one of the indictment read, in pertinent part, that the defendant:

unlawfully and recklessly did kill Devin Lee Ducker, D.O.B. 7_2_93 a child less than sixteen (16) years of age as a result of aggravated child abuse, as defined by T.C.A. 39_15_402, . . . in violation of T.C.A. 39_13_202.

Count two of the indictment was identical to count one except that count two was for the murder of "Dustin Jay Ducker, D.O.B. 5_10_94."

The first degree murder statute in effect at the time of the children's deaths recognized four separate means of committing the crime of first degree murder. The four means provided in Tenn. Code Ann. 39_13_202 (1994) are premeditated murder, felony murder, reckless killing by bombing, and reckless killing of a child. At the time of the offenses, subsection (a)(4) read:

(a) First Degree murder is:

* * *

(4) A reckless killing of a child less than sixteen (16) years of age, if the child's death results from aggravated child abuse, as defined by 39_15_402, committed by the defendant against the child.

Tenn. Code Ann. 39_13_202(a)(4) (1994). The 1994 amendment was effective until July 1, 1995. The children were pronounced dead on June 6, 1995.

During oral argument, the defendant conceded that the crime of which she was convicted, aggravated child abuse, was a lesser-included offense of the reckless killing of a child. Both the legal basis for this concession and a portion of the analysis employed by the Court of Criminal Appeals on this issue were erroneous.¹ Accordingly, we will address the defendant's arguments made in her briefs that aggravated child abuse is not a lesser-included offense of murder for the reckless killing of a child.

Aggravated Child Abuse and Murder for the Reckless Killing of a Child

As Separate Offenses

The defendant argues that aggravated child abuse is not a lesser-included offense of murder for the reckless killing of a child because aggravated child abuse is a predicate offense that the legislature has designated as a separate offense subject to separate punishments. She maintains that "if aggravated child abuse were a lesser included offense of homicide then a conviction for both murder and aggravated child abuse could not stand because one cannot be convicted of both the greater and lesser crimes." The crux of her argument is that Tennessee permits dual convictions for both the reckless killing of a child and its predicate felony, aggravated child abuse. Tennessee merger law, however, mandates that dual convictions of both a greater offense and its lesser-included offense merge, thereby vacating the conviction for the lesser-included offense. See State v. Beard, 818 S.W.2d 376, 379 (Tenn. Crim. App. 1991). Accordingly, she contends that the legislature has designated predicate felonies under the first degree murder statute as separate crimes subject to separate punishments and that these crimes are not lesser-included offenses.

In the case now before us, the defendant was not indicted on separate counts for both the reckless killing of a child and aggravated child abuse. Accordingly, we need not determine whether the doctrine of merger would preclude dual convictions for both the reckless killing of a child and aggravated child abuse. We note, however, that a legislative intent to permit dual convictions and sentences for both felony murder and the predicate felony does not appear to be present under the reckless killing of a child provision in Tenn. Code Ann. 39_13_202(a)(4) (1994). The legislature originally codified the reckless killing of a child by aggravated child abuse in response to State v. Kerry Phillip Bowers, No. 115 (Tenn. Crim. App., filed Aug. 2, 1989). This codification was known as the "Scotty Trexler Law." The intent of the Scotty Trexler Law was not to permit dual convictions but to punish the reckless killing of a child as first degree murder. See State v. Hale, 840 S.W.2d 307, 310 n.3 (Tenn. 1992) ("The amendment was passed by the General Assembly late in the session in response to the public outcry after the conviction of Kerry Phillip Bowers for the lesser offense of the second_degree murder of Scotty Trexler . . . ."). Whether to permit dual convictions is not, however, an issue in this case.²Ducker was indicted for the reckless killing of a child by aggravated child abuse, which was contained in a separate subsection of the first degree murder statute at Tenn. Code Ann. 39_13_202(a)(4)(1994) (repealed in 1995).

Differing Mens Rea and Age Requirements

The defendant argues that the...