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State v. Ducker

3/25/1999



The appellant, Jennie Bain Ducker, was indicted in June, 1995, on two counts of first degree murder resulting from the aggravated child abuse of her two children, ages 13 months and 23 months. A Warren County jury, on October 3, 1995, found the appellant guilty of two counts of the lesser charged offense of aggravated child abuse. Concurrent sentences of eighteen years were imposed for each of the class A felony convictions. In this appeal as of right, the appellant raises the following issues:


"I. Whether the trial court erred in denying the appellant's motions to suppress: (1) her statement to law enforcement officials, (2) the results of her blood alcohol test, and (3) the results of the search of her vehicle (appellant's issues VI, VII, VIII, IX);"


"II. Whether the crimes of Child Abuse, Tenn. Code Ann. § 39-15-401(1994 Supp.) and Aggravated Child Abuse, Tenn. Code Ann. § 39-15-402 (1994 Supp.), are unconstitutionally void for vagueness (appellant's issue V);"


"III. Whether the evidence is insufficient to support convictions for two counts of aggravated child abuse because the trial court failed to properly instruct the jury as to the definition of "knowingly" (appellant's issues I & IV);"


"IV. Whether aggravated child abuse is a lesser included offense of first degree murder (appellant's issue II);"


"V. Whether the trial court erred in admitting evidence that Micah Majors had previously engaged in sexual relations with the appellant (appellant's issue X);"


"VI. Whether the trial court erred by permitting the prosecution to erroneously argue facts that were not in evidence (appellant's issue XI);"


"VII. Whether the trial court erred by permitting the prosecution to cross-examine the appellant regarding prior bad acts, and, subsequently, by permitting the prosecution to introduce rebuttal testimony concerning these prior bad acts (appellant's issue XII);"


"VIII. Whether the introduction of testimony and the State's argument regarding the appellant's sexual relationship with Mr. Majors and prior bad acts of the appellant constituted cumulative error (appellant's issue XIII); and"


"IX. Whether the trial court erred by imposing class A felony sentences for the appellant's convictions for aggravated child abuse since the jury was only instructed as to the class B version of the offense (appellant's issue III)."


After a review of the record and the applicable law, we affirm the judgment of the trial court.


Background


The events leading to the tragic deaths of thirteen month old Dustin Ducker and twenty-three month old Devin Ducker began in the early evening hours of June 5, 1995. At around 6:30 p.m., the appellant, the twenty year old mother of the victims, arrived with her two children at the home of her boyfriend, Jimmy Turner. Although married, the appellant was estranged from her husband. She spent the evening cleaning Turner's home and playing with her two children. Around 10:30 p.m., Turner retired to his bedroom accompanied by his own small child, while the appellant and her two children continued to play video games. Sometime during the early morning hours, the appellant and her children left Turner's residence.


McMinnville Police Officer Alan Dalton testified that he was on duty during the early morning hours of June 6, 1995. He stated that it had been raining "on and off" throughout the night and it was "real foggy." Around 3:30 a.m., Officer Dalton, while patrolling Old Smithville Highway, observed a white vehicle with dark tinted windows traveling in the northbound lane. The white vehicle pulled into the Pioneer S

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