State v. Sherman
| Decision Date | 15 August 2008 |
| Docket Number | No. E2006-01226-SC-R11-CD.,E2006-01226-SC-R11-CD. |
| Citation | 266 S.W.3d 395 |
| Parties | STATE of Tennessee v. Ariel Ben SHERMAN. |
| Court | Tennessee Supreme Court |
Donald A. Bosch and Ann C. Short-Bowers, Knoxville, Tennessee, for the appellant, Ariel Ben Sherman.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; and Russell Johnson, District Attorney General, for the appellee, State of Tennessee.
GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined.
A Loudon County grand jury indicted the defendant, Ariel Ben Sherman, and co-defendant, Jacqueline Crank, for child neglect. The trial court dismissed the indictment against Sherman. The Court of Criminal Appeals reversed and remanded. We granted Sherman's application for permission to appeal to consider the issues presented for review, and hold as follows: (1) When deciding a motion to dismiss an indictment, a trial court may consider undisputed facts that are clearly and unequivocally agreed upon by the parties; (2) a person standing in loco parentis to a child may have a legal duty of care, the breach of which may result in criminal culpability; and (3) the State is not bound at the outset of a trial by the legal theories espoused in its bill of particulars. Because the trial court erroneously dismissed the indictment, we affirm the Court of Criminal Appeals, reinstate the indictment against Sherman, and remand the case for further proceedings consistent with this opinion.
Ariel Ben Sherman ("Defendant") moved to Lenoir City, Tennessee, in April of 2001, rented a house, and began to conduct religious services in the name of the Universal Life Church. He permitted eight of his parishioners to move into his six-bedroom residence, including Jacqueline Crank ("Crank"), her daughter Jessica Crank ("Jessica"), and her son Israel.2
In February of 2002, when Jessica was fourteen, Crank made an appointment with a chiropractor for an examination of Jessica's enlarged right shoulder. The Defendant was present. The chiropractor treated Jessica and scheduled a follow-up appointment. One week later, he apparently expressed concern about her condition and recommended that Jessica be examined at the University of Tennessee Medical Center. Jessica did not go to the hospital, and, instead, she was taken to Physician's Care, a walk-in clinic. While there, she was not treated by a specialist. According to the Defendant, Crank did not have adequate health insurance to pay for Jessica's medical care, and, in consequence, the church initiated an effort to raise the funds necessary to pay for future tests on her shoulder. In September of 2002, however, Jessica died of Ewing's Sarcoma, a type of bone cancer most commonly found in young people under twenty years of age.3
A grand jury indicted both the Defendant and Crank on one count of misdemeanor child abuse and child neglect, Tennessee Code Annotated section 39-15-401 (2003),4 charging that the two had knowingly treated Jessica "in such a manner as to inflict injury or neglect ... so as to adversely affect the child's health and welfare." Later, in a bill of particulars, the State made the following allegations:
The actions that the State allege constitute the offense in question are the failure by either defendant to pursue the medical evaluations and treatments recommended by the Chiropractor and the persons at Physician's Care. The specifics of these recommendations include dates, times, and places [and] are of course in the materials that you will be reviewing as part of open file discovery. There is obviously no dispute but that defendant Crank stood in a parental relationship with the victim. With regard to defendant Sherman, it is the State's position that he repeatedly held himself out as her father and one of her caretakers, thereby creating a duty on his part as well.
(emphasis added). The Defendant filed a pretrial motion to dismiss, pursuant to Tennessee Rule of Criminal Procedure 12(b), as did Crank. He argued that because he had no legal or special duty to provide care for Jessica, he could not be held criminally liable for her death. Crank also filed a motion to dismiss, claiming that she had lawfully chosen "spiritual treatment as opposed to taking her child" for traditional medical services and specifically cited to Tennessee Code Annotated section 39-15-402(c), which provides, in part, as follows:
Nothing in this chapter shall be construed to mean a child is neglected, abused, or abused or neglected in an aggravated manner for the sole reason the child is being provided treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment.
Tenn.Code Ann. § 39-15-402(c) (2003).
At a hearing on the motions, the State conceded that the Defendant had no marital relationship with Crank and was neither the parental nor the legal guardian of Jessica. The trial court sustained the Defendant's motion to dismiss on the grounds that he had not married Crank. The charges against Crank were also dismissed. After an appeal by the State, the Court of Criminal Appeals reversed the order of dismissal and remanded for trial.5 The Defendant filed a motion for permission to appeal. Tenn. R.App. P. 11. Crank did not. We granted the Defendant's application for review in order to consider the propriety of the dismissal of the indictment.
The trial court dismissed the indictment based upon the application of law to facts not in dispute. The Court of Criminal Appeals applied a de novo standard of review. Because the question presented is one of law, our review is "de novo with no presumption of correctness" as to the conclusions reached by the trial court. State v. Thompson, 197 S.W.3d 685, 690 (Tenn. 2006).
The issues presented for review also require statutory interpretation. On appeal, those issues are considered de novo with no presumption of correctness afforded to either the trial court or intermediate court of appeals. Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn.2006). When the meaning of a statute is in question, we rely upon well-established canons of statutory construction. Penal statutes are to be construed giving fair import of their terms in a way which promotes justice and effectuates the objectives of the criminal code. Tenn. Code Ann. § 39-11-104 (2006). Our chief concern is to carry out legislative intent without broadening the statute beyond its intended scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). We presume that every word in a statute has meaning and purpose and should be given full effect if the obvious intention of the General Assembly is not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn.2005). When a statute is clear, we simply apply the plain meaning without complicating the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.2004). When a statute is ambiguous, however, we may reference the broader statutory scheme, the history of the legislation, or other sources. Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn.1998). We presume the General Assembly was aware of its prior enactments at the time it passed the legislation. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
I. Tennessee Rule of Criminal Procedure 12
Prior to the Tennessee Rules of Criminal Procedure, Tennessee recognized a motion to quash and a plea in abatement as separate and distinct procedural tools to challenge an indictment. See Bonds v. State, 220 Tenn. 555, 421 S.W.2d 87, 88 (1967). Each had nuanced requirements. A motion to quash could be used to attack an indictment "only where the defect appear[ed] upon the face of the [instrument]." McKeldin v. State, 516 S.W.2d 82, 83 (Tenn.1974). On the other hand, a plea in abatement was the appropriate procedure for a challenge to a facially valid indictment; under this pleading, a defendant was entitled to present extraneous evidence in support of his claims. Id.; see Pennel v. State, 122 Tenn. 622, 125 S.W. 445 (1910); 1 Am.Jur.2d Abatement, Survival, and Revival §§ 1, 47 (1994). The accused could not enter a plea in abatement after a plea of "not guilty." Mendolia v. State, 192 Tenn. 656, 241 S.W.2d 606, 611 (1951).
In 1975, the General Assembly eliminated the distinction between a motion to quash and a plea in abatement by amending the Tennessee Code so as to provide for the motion to dismiss. Public Acts 1975, ch. 129, § 1. Under the amended section, the trial court could dismiss an indictment for facial invalidity or other grounds regardless of whether a guilty plea had been entered. Id. The chief requirement was that the motion "state in clear and concise terms the defects alleged." Id. This all-encompassing motion to dismiss was later incorporated into Rule 12 of the Tennessee Rules of Criminal Procedure, which was modeled after the federal rule.6 State v. Thorpe, 614 S.W.2d 60, 62-63 (Tenn.Crim.App.1980).
The Defendant first asserts that the Court of Criminal Appeals erred by ordering the trial court to consider only "formal stipulations" in the motion to dismiss. Although we do not necessarily agree with the Defendant's interpretation of that portion of our intermediate court's opinion, we will address the issue as presented. At the pretrial hearing, the State made the following statement:
I don't mind saying what I've told counsel, and that is that the State is not alleging, and will not attempt to prove, and as far as I know, could not prove that this defendant was ever lawfully married to the mother of this child, that he ever adopted the child,...
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