Judge Witt delivered the opinion of the court: "we reverse (aggravated child neglect) convictions and dismiss those charges. We further conclude that the trial court erroneously excluded evidence of the victim’s inconsistent statement that was admissible pursuant to Rule 806 and that the State failed to prove beyond a reasonable doubt that the trial court’s error did not contribute to the verdict. In consequence, the remaining convictions of aggravated child abuse in counts one and two are reversed, and those counts are remanded for a new trial."
A Sullivan County grand jury charged the defendant with one count of aggravated child abuse causing serious bodily injury, one count of aggravated child abuse committed by the use of a deadly weapon, one count of aggravated child neglect causing serious bodily injury, and one count of aggravated child neglect committed by the use of a deadly weapon. All counts involved a single allegation that the defendant burned the palm of her eight-year-old daughter, with a cigarette.
Based upon the evidence introduced at trial, the jury convicted the defendant on all charges. At sentencing, the trial court entered judgments of conviction sentencing the defendant to 20 years to be served at 100 percent.
On appeal, the defendant raised several issues that attacked the sufficiency of the evidence. The court agreed as to the child neglect counts and dismissed those. The court found there was enough evidence to convict on the aggravated child abuse counts, but because of a problem over excluded testimony the case is reversed and a new trial granted.
Specifically, the defendant claimed that the trial court erroneously excluded the testimony of a forensic interviewer with the Children’s Advocacy Center who would have testified that the victim reported that another person burned her hand.
For context you should know that the victim did not testify in this case. The state introduced a hearsay statement of the victim made to a doctor in which she identified the defendant as the person who inflicted a cigarette burn to her hand. This statement was admissible as an exception to the rule against hearsay because the statement was made in the course of medical diagnosis and treatment of her injuries.
Once admitted, the credibility of the victim was then subject to attack through the use of any inconsistent statement made by the victim regardless of the victim's having an opportunity to deny or explain the inconsistent statement. See Tenn. R. Evid. 806. The offered inconsistent statement need not itself satisfy the terms of a hearsay exception. Because it is offered as impeachment evidence, it is not offered to show the truth of the matter asserted and, therefore, is not hearsay.
By excluding this impeachment statement, the trial court erred by excluding the victim’s statement made identifying someone other than the defendant as the person who inflicted the burn to her hand. And, that is why the case is coming back for a retrial.