See Mateyko, 53 S.W.3d at 67172 (stating that "a mere risk of harm in the neglect context is . . . insufficient" and that "before a conviction for child neglect may be sustained, the State must show that the defendant's neglect produced an actual, deleterious effect or harm upon the child's health and welfare"); State v. Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053, at *6 (Tenn. Crim. App. Mar. 16, 2011) (concluding that the evidence was insufficient to sustain the defendant's two convictions for aggravated child neglect because the record was "devoid of any evidence that the victim suffered further harm or injury subsequent to the initial abuse"); State v. Barlow, No. W2008-01128-CCA-R3-CD, 2010 WL 1687772, at *11 (Tenn. Crim. App. Apr. 26, 2010) (concluding that the evidence was insufficient to sustain a conviction for aggravated child neglect because the proof failed to show that Barlow's delay in seeking medical care for the victim caused additional brain damage when the medical experts testified generally to the risk of continued swelling of the brain but the proof failed to establish an actual, deleterious effect on the victim caused by the delay); State v. Dewitt, No. M2015-00816-CCA-R3-CD, 2016 WL 6638857, at *11 (Tenn. Crim. App. Nov. 10, 2016) (reversing and vacating the convictio
Defendant relies on a line of cases holding that, when a defendant is convicted of both child abuse and child neglect, there must "exist some evidence that the alleged act of neglect resulted in serious bodily injury in addition to and apart from the serious bodily injury caused by the initial act or abuse." State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053, at *5 (Tenn. Crim. App. Mar. 16, 2011), no perm. app. filed. However, those cases are distinguishable.
In contrast, prior to the 2009 amendment to the serious bodily injury to a child statute that provided a definition for serious bodily injury, this court held that a cigarette burn on a child's palm was sufficient to meet the threshold of serious bodily injury. See State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053, at *7 (Tenn. Crim. App. Mar. 16, 2011) (finding serious bodily injury although burns such as the one inflicted upon the victim were generally treated with antibiotic ointment). When a statute is ambiguous or does not address a precise issue, courts may reference the broader statutory scheme, the history of the legislation, the "objective and spirit behind the legislation," or other sources in ascertaining its intent.
We will review the authorities relied upon by the defendant to support her claim that the State failed to show "her neglect of the victim resulted in serious bodily injury beyond that caused by her reckless aggravated assault of the victim." In State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053, at *5 (Tenn. Crim. App. Mar. 16, 2011), the defendant burned the palm of the child victim with a cigarette, resulting in convictions for both aggravated child abuse and aggravated child neglect. The injury was treated with Neosporin ointment and a band-aid, which a physician acknowledged was the correct treatment.
Gold relies upon State v. Mateyko, 53 S.W.3d 666 (Tenn. 2001) and State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053 (Tenn. Crim. App. Mar. 16, 2011), to support his argument that the trial court erred in denying his motion for judgment of acquittal on the aggravated child neglect charge. In Mateyko, the Tennessee Supreme Court held that "before a conviction for child neglect may be sustained, the State must show that the defendant's neglect produced an actual, deleterious effect or harm upon the child's health and welfare."
See State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008); State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053, at *10 (Tenn. Crim. App. Mar. 16, 2011). With respect to enhancement factor (6), applicable where the victim's personal injuries are "particularly great," Tenn. Code Ann. § 40-35-114(6), we reiterate that the record before us is incomplete as to the trial court's assessment that the victim suffered particularly great injuries.
T.C.A. § 39-15-402(d) (2009). In applying this principle to instances where a defendant is convicted of both aggravated child abuse and aggravated child neglect, this Court has held that there must exist some evidence that the alleged act of neglect resulted in serious bodily injury in addition to and apart from the serious bodily injury caused by the initial act of abuse. State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053, at *6 (Tenn. Crim. App., at Knoxville, Mar. 16, 2011) (holding the evidence was insufficient to support the defendant's convictions for aggravated child neglect because record devoid of evidence that any delay in seeking medical attention caused the victim any injury), no Tenn. R. App. P. 11 application filed; State v. Marcos Acosta Raymond, a.k.a. Marcus Raymundo Acosta, No. M2009-00726-CCA-R3-CD, 2010 WL 4540207, at *14-15 (Tenn. Crim. App., at Nashville, Nov. 10, 2010) (holding evidence of aggravated child neglect to be insufficient where proof did not show that alleged act of neglect-defendant's delay in seeking medical attention-had any harmful effect on the victim's health), no Tenn. R. App. P. 11 application filed; State v. John Barrow, No. W2008-01128-CCA-R3-CD, 2010 WL 1687772, at *11 (Tenn.