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State v. Wooster3/18/2002
bt the existence of the following essential elements: (1) hat the defendant did knowingly, other than by accidental means, treat a child in such a manner as to inflict injury; or neglect a child so as to adversely affect the child's health and welfare; and the act of abuse or neglect resulted in serious bodily injury to the child; and that the child was six years of age or less.
The defendant complains that this instruction invited the jury to reach a "patchwork verdict" with some jurors finding that the defendant committed an act of abuse and others finding she committed an act of neglect.
As pointed out by the state, this case is analogous to the holding in State v. Lemacks, 996 S.W.2d 166 (Tenn. 1999). In Lemacks, the defendant was charged with DUI and claimed that he was not driving his car when the accident occurred. The trial court instructed the jury that it could find the defendant guilty if it found that he was driving while intoxicated or that he had allowed his friend to drive while intoxicated. The defendant argued that the instruction deprived him of the right to a unanimous jury verdict. Our supreme court affirmed his conviction, ruling that the trial court properly charged the jury on both theories of the defendant's guilt. Our high court held that " he right of jury unanimity has never required more than a general verdict in cases where only one offense is at issue based upon a single criminal occurrence." Id. at 171. Further, the court stated that "where the tate seeks to prove one crime arising from one event, we may presume that the jury's general verdict was unanimous." Id.
In our view, no "real potential" for a non-unanimous verdict exists. The defendant was charged with only one offense resulting from a single act, that of exposing a newborn child to below freezing temperatures for as many as seven and a half hours. Under these circumstances, an augmented instruction on the unanimity requirement was not necessary.
Accordingly, the judgment of the trial court is affirmed.
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