State of Tennessee v. Phillip Jerome Gardner, III & Latonia Maria Gardner

In a joint trial, a Davidson County jury convicted Phillip Jerome Gardner, III, and Latonia Maria Gardner of felony murder committed in the perpetration of aggravated child neglect and three counts of aggravated child neglect. Additionally, Latonia Gardner was convicted of felony murder committed in the perpetration of aggravated child abuse and one count of aggravated child abuse. Each was sentenced to life plus seventeen years. On appeal, the Defendants raise separate issues. Ms. Gardner argues that the evidence is insufficient to support her convictions. She also alleges that the trial court erred when it failed to sever offenses; improperly admitted expert testimony and video evidence; gave a misleading supplemental jury instruction; and imposed consecutive sentencing. Mr. Gardner similarly challenges the sufficiency of the evidence supporting his convictions. He also argues that the trial court erred when it took under advisement his motion for a judgment of acquittal; failed to sever the Defendants; failed to exclude evidence of the victim’s prior injuries; failed to instruct the jury on his alibi defense; and gave the same misleading supplemental jury instruction. Upon review, the court affirms Ms. Gardner’s conviction and life sentence for felony murder in perpetration of aggravated child abuse. However, the court agrees with the parties that the jury was improperly instructed on one aggravated child neglect count, and we remand that count and its associated felony murder count for a new trial as to both Defendants. With the parties’ agreement, we also reverse the order for consecutive sentences in Ms. Gardner’s cases and remand for the trial court to consider the factors outlined in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Finally, we remand both cases for entry of corrected judgments of conviction. In all other respects, we respectfully affirm the judgments of the trial court.