Trial hits wall over lesser charges

Becky Campbell • Mar 5, 2012 at 10:38 PM

An aggravated child neglect trial hit a proverbial brick wall Monday on an issue that could cost prosecutors six of the eight counts they want the jury to consider.

Robert Simons III, 55, and Mary Ella Tittle, 39, of Jonesborough, are charged with a total of eight counts of aggravated child neglect, five that involve a child age 8 or younger and three involving a child under 18 years old.

A jury heard testimony all of last week and one witness Monday. The state and defense rested their cases with no evidence from Simons or Tittle.

But Criminal Court Judge Robert Cupp determined the trial could go no further until he and attorneys in the case — Assistant District Attorneys Dennis Brooks and Erin McArdle, Simons’ attorney Matt Bolton and Tittle’s attorney Jim Lonon — iron out how to instruct the jury to consider lesser-included charges during deliberation.

All crimes have statutory lesser-included charges, or a less serious offense, that a jury can convict on if they determine the state did not prove the original crime beyond a reasonable doubt. An example would be if a defendant were charged with first-degree murder and found guilty of something less, such as second-degree murder or some type of manslaughter.

The problem with the Simons and Tittle case sits with how the state legislature changed the laws pertaining to the age of a child victim in a neglect case. There are two age cutoffs in the law. One is neglect of a child age 8 or younger and the other is neglect of a child age 18 or younger.

The child victims in this case, Simons and Tittle’s five children, ages 13 to 7 during the time frame of the offenses, fit the aggravated child neglect statute, but apparently not the lesser-included charges.

That’s because legislators changed the law twice during the last decade, which caused the lesser charges to not apply to the child during the time frame of the offense.

Two of the counts fit all the criteria of the primary charge and all the lesser included charges, but Cupp said at this point in the case those are the only two the jury could consider.

The issue will be moot if the jury convicts Simons and Tittle on the primary charge.

Cupp said Monday he will allow prosecutors to file an interlocutory appeal — an appeal to a higher court while a case is pending in state court — if he rules that the six counts in question cannot go to the jury.

The lone witness Monday was Brenda Jordan, the foster mother to the Simons children.

Much of her testimony mirrored that of her husband, Junior Jordan, on Friday. Both testified the Simons kids are doing much better now, but initially they had to learn basic living skills like bathing, brushing their teeth, using the toilet properly and picking up behind themselves.

“They’re beautiful children,” Brenda Jordan said.

If convicted of aggravated child neglect, a Class A felony, Simons and Tittle face 15 to 25 years in prison.

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