Preview:

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
February 3, 2004 Session STATE OF TENNESSEE v. SANDY MARIE MCKAY
Direct Appeal from the Criminal Court for Davidson County No. 2000-C-1292 Cheryl Blackburn, Judge

No. M2002-03066-CCA-R3-CD - Filed March 12, 2004

The Defendant, Sandy Marie McKay, pled guilty to attempted aggravated child neglect, a Class B felony. After a hearing, the trial court sentenced the Defendant as a Range I standard offender to nine years in the Department of Correction. The Defendant now appeals, contesting both the length and manner of service of her sentence. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T. WOODALL, JJ., joined. David A. Collins, Nashville, Tennessee, for the appellant, Sandy Marie McKay. Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Victor S. Johnson, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION In January 2000, the Defendant was living with her boyfriend, Andre Webster, and their two children, daughter Tonatica and son Deandre. Tonatica was two years old at the time; Deandre was five months old. The Defendant was employed at a fast-food restaurant. One of Deandre's aunts visited the Defendant's apartment and determined that Deandre needed medical care. She took him to the hospital, and he was treated by pediatrician Dr. Aida Yared. Dr. Yared testified that Deandre was "very malnourished." Upon admission, Deandre weighed only seven pounds, two ounces; at birth he had weighed six pounds, ten ounces. Dr. Yared testified that a five-month-old infant "should have doubled their weight from what it was at birth on an average." Her examination of the child indicated that the baby had initially gained weight normally, but then lost most of his fat. In her opinion, Deandre had been suffering from malnutrition for a period of approximately three months. She further testified that there was "no obvious physical

reason" for his failure to thrive and that, during his treatment at the hospital, he "was very willing to feed and was swallowing properly, was not vomiting other than normal baby spit-up and did not have any diarrhea." In Dr. Yared's opinion, the baby had suffered from child neglect and could have died had the aunt not intervened. Detective Kristin Vanderkooi Dyer testified that she interviewed the Defendant about Deandre's condition. Det. Dyer stated that the Defendant told her "a couple of different things" about the baby's condition. Det. Dyer testified that the Defendant told her "that the child appeared to be allergic or unable to digest a certain kind of formula that she had been feeding the child, and then she also said that sometimes they run out of food in the house and that she feeds Deandre bottles of water." Det. Dyer further stated that the Defendant told her that Deandre had seemed to be growing fine for the first couple of months but began to "look skinny" in his third month. At that point, the Defendant told her, Deandre began having trouble digesting the food she was giving him. She had not taken him to a doctor because, when she tried earlier to take him in for his shots, she was turned away because Deandre did not have a TennCare card. The Defendant also told Det. Dyer that, after Deandre became so skinny, she was afraid to take him to the doctor for fear that she would get in trouble. Det. Dyer saw Tonatica during her visit to the Defendant's home and testified that she appeared "fine." Dr. Geraldine Bishop testified that she is a clinical and developmental psychologist. She examined the Defendant in May 2002. Dr. Bishop testified that her assessment of the Defendant established that the Defendant is mildly mentally retarded with a full-scale IQ of 70, has deficits in intellectual behavior, deficits in adaptive behavior, and has attention deficit disorder. Other proof established that the Defendant's live-in boyfriend, Deandre's father, is also mentally retarded with a full-scale IQ of 59. The presentence report reflects that at the time of sentencing the Defendant was twenty-three years old and unmarried. Although the information was not verified, the Defendant reported that she completed the eleventh grade in school and had worked toward obtaining a GED. She reported being physically and sexually abused as a child. She had been employed at three different fast-food restaurants during the two-year period preceding her arrest and incarceration for the instant offense. The presentence report further reflects that the Defendant's criminal history includes convictions for misdemeanor assault, driving on a suspended license, and child neglect. In this case, as set forth above, the Defendant pled guilty to attempted aggravated child neglect, a Class B felony. See Tenn. Code Ann.

Download mckaysm.pdf

Tennessee Law