State of Tennessee v. Dwaniko Martez Sudberry

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 18, 2012

STATE OF TENNESSEE v. DWANIKO MARTEZ SUDBERRY

Appeal from the Criminal Court for Davidson County

No. 2008-C-3011 Mark J. Fishburn, Judge

No. M2011-00432-CCA-R3-CD- Filed November 14, 2012

A Davidson County jury found appellant, Dwaniko Martez Sudberry, guilty of three counts

of reckless aggravated assault, one count of attempted aggravated child neglect, and one

count of reckless homicide stemming from the death of his infant daughter. The trial court

merged the convictions of reckless aggravated assault with the conviction for reckless

homicide and sentenced appellant to four years. The trial court sentenced appellant to twelve

years for attempted aggravated child neglect and ordered the sentences to be served

consecutively for an effective sixteen-year sentence. Appellant contests his convictions and

sentences on the following grounds: (1) the convicting evidence was insufficient; (2) the

combination of his convictions offends the principles of double jeopardy; (3) the trial court

erred in failing to order the State to make an election on the offense of aggravated child

neglect; (4) the trial court erred in admitting certain expert testimony; and (5) the trial court

committed multiple errors in sentencing him. Following our careful review of the record and

the briefs of the parties, we discern no error and affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and

A LAN E. G LENN, JJ., joined.

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal); and Gary C.

Tamkin and Jonathan F. Wing (at trial), Assistant Public Defenders, Nashville, Tennessee,

for the appellant, Dwaniko Martez Sudberry.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Victor

S. Johnson, III, District Attorney General; and Katrin Novak Miller and Brian Holmgren,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Procedural History

On September 15, 2008, a Davidson County grand jury indicted appellant for three

counts of aggravated child abuse, one count of aggravated child neglect, and two counts of

felony murder (one count during the perpetration of or attempt to perpetrate aggravated child

abuse and one count during the perpetration of or attempt to perpetrate aggravated child

neglect) for his involvement in the death of his infant daughter in June of 2008. Before

submitting the case to the jury, the trial court required the State to make an election of the

facts underlying the counts of aggravated child abuse. The State elected the following

offenses for the counts of aggravated child abuse: for Count I, appellant caused blunt head

trauma to the victim, including bleeding of the brain, subdural hemorrhages, subarachnoid

hemorrhages, damage to the axons of the brain, and multiple subgagleal hemorrhages; for

Count II, appellant caused blunt trauma to the victim’s abdomen, including bruising and

lacerations to multiple organs; for Count III, appellant caused multiple fractures to the

victim’s ribs. The trial court did not require the State to elect facts underlying the count of

aggravated child neglect.

Following a trial, the jury returned verdicts of guilty for the lesser included offenses

of three counts of reckless aggravated assault, one count of attempted aggravated child

neglect, and one count of reckless homicide (as a lesser offense of felony murder committed

during the perpetration or attempt to perpetrate aggravated child abuse). The jury acquitted

him of felony murder committed during the perpetration of or attempt to perpetrate

aggravated child neglect. At sentencing, the trial court merged the three convictions for

reckless aggravated assault with each other and with the conviction for reckless homicide.

The court sentenced appellant to the maximum terms of four years on the merged convictions

and twelve years on the conviction for attempted aggravated child neglect and ordered that

the sentences be served consecutively. The trial court denied appellant’s timely motion for

new trial.1 This appeal follows.

1

Appellant’s fourth point in his motion for a new trial alleges that the trial court erred in denying

his pretrial motion to dismiss counts two and three of the indictment because they alleged the same conduct.

Although the statement is unclear and further argument in court did not clarify it, this court liberally

construes this claim of error as alleging the double jeopardy violation he has briefed as issue number two on

appeal. Additionally, appellant did not challenge the length of his sentence or imposition of consecutive

sentences in his motion for new trial; notwithstanding, we will review his sentencing arguments on appeal.

See State v. Boxley, 76 S.W.3d 381, 390 (Tenn. Crim. App. 2001).

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II. Facts

The State’s first witness at trial was Helen Sneed,2 the victim’s maternal grandmother.

Helen testified that the victim, Shiloh Sneed, was born on August 6, 2007, to her daughter,

Vanessa Sneed. During the time in question, Vanessa, the victim, and Vanessa’s other two

children lived with her. When Vanessa was at work, Helen was the victim’s primary

caregiver. Helen identified appellant as the victim’s father and Tiara Sudberry as appellant’s

mother and stated that appellant lived with his mother during this time. She further testified

that when Vanessa was not working, Vanessa and the victim would go to Ms. Sudberry’s

home to visit appellant and his mother. On the weekend preceding the victim’s death, Helen

attended a retirement celebration at her church for her brother-in-law, and Vanessa and

Shiloh visited appellant and his mother for the weekend.

On cross-examination, Helen admitted that she and Vanessa had several

disagreements about Vanessa’s involvement with appellant because of what Helen observed

and how she felt about him. Helen testified that Vanessa spent more time with appellant in

the weeks preceding the victim’s death but stated, “[T]he baby was with me.” Helen

explained that the victim was in her care more than ninety percent of the time.

Vanessa Marie Sneed, the victim’s mother, testified that she and her two children

lived with her parents at the time of the trial. Appellant is the father of one of the surviving

children. After becoming pregnant with the victim, Vanessa ended her relationship with

appellant but renewed the relationship after the victim’s birth because appellant expressed

a desire to be involved in the victim’s life and to help raise her. Vanessa continued to live

with her parents, but she and the victim would sometimes visit appellant for one or two

nights at a time. An unrelated individual, Monica Woods, also lived at appellant’s residence.

On overnight visits, Vanessa slept with appellant in his bedroom; the victim slept in the bed

with Ms. Sudberry; and Ms. Woods slept downstairs in the living room. Vanessa admitted

that on occasion, she would allow appellant or Ms. Sudberry to keep the victim but “not very

often.” She testified that she never left the victim completely alone with appellant, and either

Ms. Sudberry or Ms. Woods was present.

Vanessa recalled that on Memorial Day weekend, prior to the victim’s death on June

3, 2008, her car had broken down, and Ms. Sudberry picked her up after work and drove her

to the Sudberry residence where she and the victim spent the weekend. On the morning of

June 3, 2008, Ms. Sudberry brought the victim into appellant’s bedroom where appellant and

Vanessa played with her for a while. Vanessa stated the victim “was kind of fussy, kind of

2

With Sneed being the surname of the victim, the victim’s mother, and grandmother, for clarity,

we will refer to these witnesses by their first names. By doing so, we intend no disrespect.

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crying,” because she was teething, but normally she was a “happy baby.” She explained that

the victim was in line with all the developmental milestones. She had just begun standing

on her own without support, preparing to walk, crawling, and holding her bottle to feed

herself. Vanessa explained that on the morning in question, she handed the victim back to

Ms. Sudberry and dressed to go to the bank and apply for a loan to get her car repaired.

When Vanessa last saw the victim, she was sitting on Ms. Sudberry’s bed crying. Vanessa

testified she told appellant “to go into the room and see about her.” Vanessa and Ms.

Sudberry then left the residence around 9:00 a.m., and Ms. Sudberry drove her to the bank.

They were away for approximately two to three hours and returned between 11:40 a.m. and

noon. While they were gone, Vanessa received a cellular “call, possibly a text,” from

appellant about a model number on a computer at his residence, but he did not mention the

victim at all.

When Vanessa arrived at the home, the victim appeared to be sleeping. She stated the

victim was in Ms. Sudberry’s room where she always slept, “[a]nd [she] went in the room

and glanced at her.” She continued, “And as I said, she appeared to be asleep. And so I went

back to [appellant’s] room and began changing my clothes.” Vanessa stated that when she

checked on the victim, she was about three or four feet away from her, but she did not touch

the victim because she did not want to disturb her sleep. She acknowledged that there was

a crib in the Sudberry residence, but there was clothing in it. There was also a crib at her

parents’ home, but it was not assembled, and the victim slept with her except as a newborn

when she slept in a bassinet. Vanessa testified that almost immediately after she finished

changing clothes, she heard the appellant scream for his mother, saying that something was

wrong with the victim. She stated, “Then all of us ran into the room, myself, Ms. Sudberry.

[Appellant] was already there, and Monica Woods.” Ms. Sudberry had the victim in her

arms, speaking to her and trying to revive her. Vanessa said that from where she was

standing, she could not tell if the victim was breathing, “[b]ut just from the way her body

was, it did not seem right.” They all ran downstairs and Vanessa called 9-1-1, placed the

victim on the couch, and began CPR while talking to the 9-1-1 operator. The 9-1-1 operator

instructed Vanessa to let someone else administer CPR and to give instructions from the

telephone. Vanessa testified she put the telephone on speaker mode and Ms. Sudberry began

performing CPR on the victim. A police officer was the first individual to arrive on the

scene. He picked the victim up and began giving breaths and chest compressions. The fire

department arrived next, and Vanessa assumed a paramedic performed CPR on the victim.

An ambulance also arrived. One of the emergency responders asked Vanessa to go outside

and she complied. Vanessa testified that she and appellant were escorted to the hospital in

a patrol unit. Upon arriving at the hospital, personnel continued efforts to revive the victim,

but she died. A police department chaplain escorted them home. As they traveled to and

from the hospital, Vanessa stated she did not ask appellant if anything had happened to the

victim while she was with him that day. After appellant was arrested and Vanessa learned

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of the reports from the medical examiner, she was forced to leave her parents’ home because

an order from the Department of Children’s Services placed her other children in emergency

custody with her parents. She was not allowed to be in the same house with the children.

She moved into the Sudberry residence. At that point, Vanessa was still supportive of

appellant and did not think he killed their daughter.

Vanessa’s opinion later changed, and she moved from the Sudberry residence. After

appellant’s arrest, Vanessa questioned him about the victim’s death. She related that he first

told her that the dog was loose and tripped him on the stairs, causing him to fall on top of the

victim while he was carrying her. Appellant told her that he did not tell her before because

he was scared. Vanessa asked appellant a second time about what happened the day the

victim died. Appellant told her he was playing with the victim in the bed, throwing her up

into the air and catching her, and the last time he threw her she fell limp in his arms. He told

her he performed CPR on the victim, revived her, calmed her down, and gave her a bottle,

and then she went to sleep. Vanessa stated that is when she and Ms. Sudberry arrived at the

residence. Appellant also told Vanessa that he thought the medical personnel handled the

victim too roughly and caused her injuries.

On cross-examination, Vanessa acknowledged that at first, she did not think appellant

hurt the victim, and she stood by him because she thought he loved their daughter. She felt

comfortable leaving the victim with appellant on the morning of her death because Ms.

Woods was also at home. It was a normal morning, and nothing about the appellant alarmed

her or worried her about leaving the victim in appellant’s care. She recalled that she

telephoned appellant around 11:20 a.m., and he told her the victim was sleeping. Vanessa

testified that after she returned home, when appellant screamed for help, she entered Ms.

Sudberry’s bedroom and could clearly see that the victim’s lips were blue.

On redirect examination, Vanessa stated that she saw no injuries or bruises on the

victim when Ms. Sudberry brought her into appellant’s bedroom to play that morning.

Monica Woods testified that she became friends with appellant and his mother

through dating one of appellant’s friends, and she began living with them toward the end of

2007. She slept downstairs on the couch and kept her clothes in a downstairs closet. Ms.

Woods testified she babysat the victim “probably just once. It wasn’t many times at all.” On

the morning of the victim’s death, Ms. Woods slept late but was awake when Vanessa and

Ms. Sudberry left the house around 10:45 a.m. She then realized they did not take the victim

with them. She remained on the couch another five minutes after Vanessa and Ms. Sudberry

left. She then went upstairs to take a shower. Ms. Woods testified that she was in the

bathroom the whole time that Vanessa and Ms. Sudberry were gone and never heard the baby

crying or screaming. Ms. Woods reviewed exhibit photographs and commented that the

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house was small, the bathroom shared a wall with both bedrooms, the walls and floors were

thin, and when in the bathroom, you could hear noises from the bedrooms. Ms. Woods saw

appellant that morning when “he came in the bathroom and set a towel down in there.” He

appeared normal, and there was nothing different about him. Ms. Woods testified that she

was in the house with appellant and the victim during the entire morning, and when she was

upstairs, “[she] just heard footsteps walking around.”

The 9-1-1 call from the 614 Ashmont Court address was received at 12:02:48 p.m.

Officer Dale Tomlin, a twenty-five-year veteran of the Metro Police Department, testified

that he was the first person to respond to the scene. He received the call at 12:08 p.m. and

arrived two to three minutes later. Officer Tomlin ran into the residence and observed a

female administering CPR to a child lying on the floor. The adult appeared to be struggling

with the CPR, so she agreed to allow him to take over the procedure. He checked the

victim’s pulse and listened for breathing. Because he did not detect any breathing, he

immediately began CPR until the paramedics arrived approximately two to three minutes

later. Office Tomlin left the scene after the paramedics arrived “to go gather [himself] for

a few minutes.” He testified that pursuant to his sergeant’s instructions, he returned to the

residence to transport the victim’s father and mother to the hospital.

On cross-examination, Officer Tomlin testified that when he initially arrived at the

scene, Ms. Sudberry and Vanessa were frantic and panicking. He stated that this was the first

time in his career that he had given CPR to an infant. He testified that he found no pulse for

the victim. After Officer Tomlin transported appellant and Vanessa to the hospital, appellant

shook his hand and thanked him “for doing whatever I did or being nice about it or whatever

– whatever his reasons were.”

Kevin Thomas Bloomfield, a firefighter-paramedic with the Nashville Fire

Department, testified that when he entered the house, his colleague was performing CPR on

the victim. During his basic assessments, Mr. Bloomfield determined that the victim’s

airway was not secure and attempted intubation. His efforts were unsuccessful because the

victim’s airway was obstructed by blood. He inserted an oropharyngeal tube and continued

chest compressions as the victim was placed in the ambulance.

Mr. Bloomfield estimated that in his lengthy career as a paramedic, he administered

CPR to infants thirty to forty times per year and has never been advised that an infant

suffered any internal injuries from his procedures. He rode in the ambulance with the victim

to the hospital, and the victim’s condition did not change from his initial contact.

Brian David Himes, a paramedic/special operations officer with the Nashville Fire

Department, testified that during the six-minute ambulance transport, he assisted Mr.

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Bloomfield with the treatment of the victim and was present at the hospital when the victim

was pronounced dead. Mr. Himes intubated the victim and established an IO, a form of IV

that is placed through the bone of a child to administer epinephrine and general resuscitation

efforts. In intubating the victim, he encountered a small amount of blood in the airway

which, he stated, was “very” unusual in his opinion. He could not recall intubating an infant

and finding blood in the trachea. Mr. Himes estimated he performed CPR on infants

“[a]nywhere from five to ten times a year” and had never been advised of rib fractures or

internal injuries inflicted as a result of performing CPR on an infant. Mr. Himes could not

obtain spontaneous breath sounds or a pulse during his treatment of the victim and conceded

that the victim was essentially dead on first contact except for the CPR intervention he and

Mr. Bloomfield were providing.

On cross-examination, Mr. Himes testified that he was not aware that the victim had

suffered rib fractures and stated that he had never seen a rib fracture in an infant due to CPR.

However, he agreed that no one would have called him and said, “[T]he CPR caused the rib

fractures,” and that they would have attributed it to something else. Mr. Himes testified that

a map error delayed his arrival time, and he admitted getting to the scene later than he

normally would have.

On redirect examination, Mr. Himes testified that he has administered CPR to infants

who ultimately died from natural causes where there is no suspicion of abuse or homicide

and that he has never been contacted, as a result of an autopsy report, to account for a rib

fracture.

Randy Kroll, a detective with the Metro Police Department Youth Services Division,

testified that his office received a call between 12:30 and 1:00 p.m. informing him that patrol

units were responding to a ten-month-old child who had stopped breathing. He and Detective

Don Long traveled to Southern Hills Hospital, while two other detectives went to the scene.

Upon arriving in the emergency room, Detective Kroll learned that the victim had already

been pronounced dead. Detective Long asked him to speak with appellant and ascertain what

happened. Appellant told Detective Kroll that his mother and Vanessa went out around

11:00 a.m. Afterwards, appellant picked up the victim, laid her on the bed, propped her up

with pillows, gave her a bottle, and went into his room. Appellant told Detective Kroll that

he checked on the victim twice, and she appeared to be sleeping each time. The third time

appellant checked on the victim was around the time his mother and Vanessa arrived at

home. This time, appellant explained to Detective Kroll, the victim did not look right, and

as he moved closer to the victim, he yelled to his mother and Vanessa that something was

wrong. When his mother and Vanessa came upstairs, they all looked at the victim and said

her lips were blue.

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Detective Kroll made some notes about his interview with appellant and included

them in his report. He attended the autopsy of the victim and relayed the autopsy findings

to Detective Long, after which they decided to arrest appellant.

On cross-examination, Detective Kroll testified that appellant was upset and emotional

at the hospital, and he allowed appellant time to calm down before they walked outside to

talk. Appellant was willing to answer his questions. He further testified that appellant was

arrested without incident or trouble and gave a statement immediately.

Detective Don Long of the Metro Police Department Youth Services Division was the

lead detective in the investigation of the victim’s death. He recalled arriving at the hospital

and finding appellant, Vanessa, and Ms. Sudberry there. Appellant became upset and caused

a scene sufficient to cause hospital security to be summoned. Once appellant calmed down,

Detective Kroll went outside to talk with him, and Detective Long went into a room to speak

with Vanessa. Detective Long testified that the next investigative step was a re-enactment

at the scene, if the family was well enough and agreeable. Detective Long stated that

appellant was ready to participate in a re-enactment.

Detectives Long and Kroll, appellant, and Vanessa returned to Ms. Sudberry’s home

to begin the re-enactment using a doll to represent the victim and a video camera to film the

victim’s care while with the appellant. Detective Long testified that after Detective Kroll

attended the autopsy, the arrest warrant was served on appellant. Appellant was cooperative

and gave a lengthy statement.

On cross-examination, Detective Long acknowledged that he was aware of the

autopsy findings when he interviewed appellant and that he believed this was a potential case

of child abuse. He agreed with trial counsel that during the interview, appellant told them

numerous times that he did not intentionally hurt his daughter.

Dr. Steven Terry Turner, an emergency room doctor at Southern Hills Medical Center,

testified that he was on duty June 3, 2008, when the victim arrived at 12:30 p.m. Upon

arrival, the victim had no pulse, no spontaneous respirations, and no heartbeat, and for all

practical purposes, she was dead when she arrived. However, he and his staff continued

attempts at lifesaving or resuscitating efforts for approximately thirty-five to forty minutes.

Dr. Turner testified that none of the measures or interventions utilized would have resulted

in any type of injury to the victim.

Dr. Turner examined the photographs of the victim and testified that the bruises on

the victim’s upper chest and face depicted in the photographs were not visible when he first

saw the victim. Dr. Turner explained that although the bruises were not apparent in the

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emergency room, they could appear in the photographs taken later because “[i]t can take

some time for bruising to appear.” He denied that anything done at the hospital contributed

to the bruises. Dr. Turner further testified neither CPR nor any other medical intervention

administered to the victim would have caused the posterior rib fractures or the additional

bruising on the victim’s side and back that were noted during the autopsy.

On cross-examination, Dr. Turner did not remember being advised of the “bystander

CPR,” or CPR started by the family, and admitted he could not speak about the home

interventions attempted before the victim arrived at the hospital. With the victim in his care

for thirty-five minutes and after a thorough examination, Dr. Turner testified that in his report

he noted no bruising, no soft tissue swelling, and no injuries, trauma or deformities on the

victim.

On redirect examination, Dr. Turner agreed that a bruise from an injury would not

appear for several hours, and there is no difference between the bruising appearing after an

injury to a living child and the bruising appearing post-mortem after an injury to a child

shortly before death. He also agreed that bruises tended to worsen over time.

Dr. Adele Lewis, an Assistant Medical Examiner for the Davidson County Medical

Examiner’s Office, was declared by the trial court to be an expert in the field of forensic

pathology. She performed the autopsy on the victim on June 4, 2008. Dr. Lewis summarized

that nine of the victim’s organs had contusions, hemorrhages or lacerations, and the victim’s

ribs had thirty or more fractures. The victim’s brain showed deep bruising inside the scalp,

subdural hematomas or fresh hemorrhages, subarachnoid hemorrhages (a deeper layer of the

brain), optic nerve hemorrhaging, and multiple hemorrhages within both eyes, all of which

were associated with shaking or shaken impact syndrome and not resuscitative measures. Dr.

Lewis opined that an infant with these injuries could live “[p]robably only a matter of a few

hours, at most” without medical intervention.

On cross-examination, Dr. Lewis acknowledged, “I’m speculating based on my

medical training and experience, yes.” She admitted that she did not talk with any of the

witnesses and could not say what the specific mechanism of the injuries was. However, she

testified, “But I can say to a reasonable degree of certainty and actually beyond that, that

these are inflicted injuries.”

On redirect examination, Dr. Lewis testified that an adult’s hands are large enough

to go around the victim’s torso to inflict these injuries and that this type of assault would not

necessarily cause a lot of noise. The injury patterns were consistent with patterns she

observed in other cases and also documented in medical literature. Dr. Lewis personally

performs approximately thirty to forty autopsies on children each year, and her office

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performs approximately 150 autopsies on children per year, the majority of whom received

CPR.

The State also presented Dr. Mark William Becher, director of neuropathology at

Vanderbilt University Medical Center, who was “responsible for the diagnoses of all

specimens from the brain, spinal cord, from surgery and autopsy” and also provided

consultation services to the Davidson County Medical Examiner’s Office. His examination

of the victim was limited to the brain, spinal cord, and eyes. Dr. Becher testified that he

found hemorrhages beneath the dura and beneath the arachnoid layer, which are referred to

as subdural and subarachnoid hemorrhages respectively, in “multiple locations, multiple parts

of the brain, multiple sides.” He characterized the victim’s hemorrhages on the spectrum of

severity as “very extreme.” He further opined that the subdural and subarachnoid

hemorrhaging were not injuries caused by any autopsy procedure conducted by Dr. Lewis.

Dr. Becher’s examination also revealed limited abnormal concentrations of protein

in the corpus callosum, an accumulation of processes in the midline of the brain and the pons,

an area in the brain stem. Normally, he explained, these proteins are equally concentrated

throughout the brain. The significance of the victim’s limited abnormalities is that they

“raise the mechanism of acceleration and deceleration injury of the axons.” He explained

that an “acceleration and deceleration injury to the brain [occurs] when rapid forces are made

of the brain so that it rapidly goes forward and stops, sloshes against the skull[,] . . . comes

back[,] and then goes back the other way again rapidly . . . .” He also opined that the

rotational component is important because it was significant to the damage in the pons. Dr.

Becher opined that there was evidence of an acceleration and deceleration injury to the

victim’s brain, and the constellation of all the features were consistent with the mechanism

of shaken baby syndrome.

Dr. Becher acknowledged that he was unable to assess how long this mechanism

lasted, stating, “We cannot assess time, but we are able to assess severity, so this, to me, is

a very severe injury.” He further explained, with regard to his examination of the victim’s

eyes, that “[b]oth eyes had acute hemorrhages of the retina as well as the optic nerves, the

nerves that come off the back of the eye.” He stated that the extent of hemorrhages in both

retinas and both optic nerves qualified as “traumatic.”

On cross-examination, Dr. Becher admitted he was not at the scene of the incident and

did not see anyone physically shake, squeeze, or strike the victim. He said, “My examination

is limited to the fixed autopsy.” He acknowledged reading the autopsy overview from Dr.

Lewis, learning Dr. Lewis’s summary noted broken ribs and other injuries, and knowing Dr.

Lewis had classified the case as a homicide. When asked if he believed advanced cardiac

life support can cause retinal hemorrhaging, Dr. Becher replied, “There are reports in the

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literature, and in practice we see hundreds of people who have resuscitation ten times as long

as you described in this case and none of them have it in my experience.” Dr. Becher did not

examine the victim’s heart and did not think he was qualified to address the condition of

hypertrophic cardiomyopathy because he was not a heart specialist.

On redirect testimony, Dr. Becher agreed that the mechanism of grabbing a child

about the chest and shaking the child backwards and forwards is a mechanism that on

occasion produces rib fractures. He further testified that reviewing Dr. Lewis’s findings did

not affect his opinion in any way and that occasionally his examination results in a different

opinion from his colleagues.

On recross examination, Dr. Becher responded to the questioning of his qualifications

to offer an opinion as to the squeezing mechanism or shaken baby syndrome causing rib

fractures and stated that when they are presented with the overview of cases, they commonly

find bruises on the arms or fractures of the ribs as a mechanism of holding the baby. He

continued, stating that observing the neurological findings, he considered himself qualified

to include that in his summary because there is no speciality of rib fractures. He further

acknowledged that he was not an orthopedic doctor.

Dr. Thomas Young, a forensic pathologist in private practice, is a former chief

medical examiner in Kansas City, Missouri. Dr. Young was an independent consultant. The

trial court allowed Dr. Young to testify as an expert for the defense in the field of forensic

pathology.

Dr. Young testified, “It is my opinion, made to a reasonable degree of medical

certainty, that the cause of death is a cardiac arrest from hypertrophic cardiomyopathy, a

natural disease, and that the manner of death is natural.” Dr. Young explained that “whatever

blood that is collecting in its body cavities is from oozing from repetitive chest

compressions.” Dr. Young testified that the victim did not have skull fractures or tears in or

bleeding beneath the scalp that would indicate an impact and that the injuries were “what you

would expect in a child that had a sudden heart stoppage from an abnormality of the heart.”

He contributed the internal bleeding to chest compressions, stating, “[I]f you’re propelling

blood through vessels that are leaking because they’re starving from oxygen, there’s going

to be oozing.” Dr. Young also blamed the victim’s retinal hemorrhaging on prolonged CPR,

explaining that just as the skin bruises due to CPR, the retinas are also susceptible to

“oozing” as a result of repetitive chest compressions. Dr. Young attributed many of the

victim’s injuries to CPR but stated that “[s]cientists, for the most part, do not believe that

cardiopulmonary resuscitation causes severe internal injuries.”

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Dr. Young disagreed with Dr. Lewis’s testimony regarding shaken baby with impact,

opining that “[n]obody has ever seen any child shaken violently like this to cause these kinds

of injuries.” He continued, “In fact, there really hasn’t been any kind of study. There have

basically been studies to demonstrate, even as far back as 1987, that if you were to shake the

child hard enough, you would break the neck first before there would be any kind of lesion

in the head.”

Dr. Young summarized his opinion, stating, “The child [had] a hypertrophic

cardiomyopathy, an inherited heart condition that [led] to sudden heart stoppage and sudden

cardiac death. And that is my opinion made to a reasonable degree of medical certainty.”

On cross-examination, Dr. Young admitted he resigned in December 2006 as a

medical examiner in Jackson County, Missouri, as a result of a letter to the Jackson County

Executive signed by six prosecutors from separate jurisdictions complaining they could not

rely on his opinions.

Dr. Young did not place importance on appellant’s changing his account of the

victim’s injuries. He stated that forensic pathologists look at witness accounts and the

medical findings to determine whether the two are consistent. He further testified, “I don’t

make diagnoses of child abuse from an autopsy. That’s improper. That’s speculative.

Basically, I just compare the story and the account with the findings and I tell you whether

it’s consistent or inconsistent. And that’s basically the limit of what I can do as a scientist,

as a person who wasn’t there to see what happened.” Dr. Young declined to testify as to

shaken baby syndrome, stating, “I don’t make calls of shaken baby syndrome, never have,

never will . . . . Never. I don’t do shaken baby syndrome. I don’t even think it exists . . . .

Shaken baby syndrome currently is a very, very controversial area. And even though the

pediatric community is full fledged behind the shaken baby thing, there is – in the medical

examiner community, there’s quite a bit of division on the whole thing.”

The State recalled Dr. Lewis, who further examined Dr. Young’s diagnosis that he

made based on a slide of heart tissue and two medical articles. She explained:

Those articles are explaining that it’s very difficult or impossible, actually, to

make the diagnosis of hypertrophic cardiomyopathy in this particular area of

the heart, the interventricular septem because that area of the heart normally

has myocyte disarray or the fibers of the heart are disorganized. So the

diagnosis cannot be made from looking at a section taken from the

interventricular septum and that’s what Dr. Young was trying to do. It’s sort

of a rookie mistake.

-12-

She responded to Dr. Young’s observation that one section of the heart showed a heart

condition, opining, “that he has taken the section of the exact place that the articles explain

is fraught with false positives and interpreted that as a positive finding.”

At the close of the evidence, the jury deliberated and returned verdicts of guilt on the

lesser-included offenses of reckless aggravated assault (three counts), attempted aggravated

child neglect, reckless homicide, and a verdict of not guilty on the count of felony murder

during perpetration or attempt to perpetrate aggravated child neglect. The trial court

sentenced appellant to four years on each of the counts of aggravated assault and reckless

homicide and twelve years for attempted aggravated child neglect. It merged the convictions

for reckless aggravated assault with reckless homicide and ordered that the four-year

sentence run consecutively to the twelve-year sentence, for an effective sentence of sixteen

years in incarceration.

III. Analysis

A. Sufficiency of the Convicting Evidence

1. Standard of Review

The standard for appellate review of a claim of insufficiency of the State’s evidence

is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson v. Louisiana, 406

U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729

(Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant must

demonstrate that no reasonable trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of review

is identical whether the conviction is predicated on direct or circumstantial evidence, or a

combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Brown,

551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “‘we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.

2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and

the weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

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has afforded the State all reasonable inferences from the evidence and resolved all conflicts

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

2. Attempted Aggravated Child Neglect

Although convicted on five counts of a six-count indictment, appellant challenges the

sufficiency of the convicting evidence solely with respect to his conviction for attempted

aggravated child neglect.

The statutory elements of aggravated child abuse and neglect define the offense as the

knowing abuse or neglect of a child “so as to adversely affect the child’s health and welfare”

that “results in serious bodily injury to the child.” Tenn. Code Ann. §§ 39-15-401(b), -402

(a)(1) (2010). The State indicted appellant for three counts of aggravated child abuse under

this statute and one count of aggravated child neglect. Our supreme court has held that a

defendant may be criminally liable for attempted child neglect under

Tennessee Code Annotated section 39-12-101(a)(3), so long as the State

proves (1) that the defendant’s conscious object or desire was to engage in

conduct constituting child neglect; (2) that he took a substantial step toward

the commission of that offense; and (3) that his [child was] six years of age or

less.

State v. Mateyko, 53 S.W.3d 666, 677 (Tenn. 2001). The court further concluded that “the

State has no burden under section 39-12-101(a)(3) to show that the defendant intended that

his children suffer adverse effects to their health and welfare.” Id. at 676-77.

Viewing the evidence in the light most favorable to the State, the evidence at trial

established that the victim was left in the sole care of appellant on the day she died.

Although another individual was in the home at the time of the incident, she neither cared

for the child nor witnessed any incident involving the child. When Vanessa and Ms.

Sudberry left the home on the morning in question, the child was alive and healthy. Shortly

after they returned, the victim was lifeless and her lips were blue. In the intervening time,

appellant was practically alone with the victim. The State presented medical testimony that

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the victim endured several injuries, any number of which could have been the cause of death.

The jury’s verdicts of guilt of reckless aggravated assault established, at a minimum, that the

victim suffered her injuries at the hands of appellant. Being aware of the victim’s injuries,

appellant never summoned help by calling out to Ms. Woods or by calling 9-1-1. Not until

his mother and Vanessa arrived home did he acknowledge that the victim was in distress.

Dr. Lewis testified that without medical treatment, the victim could have survived for a few

hours, at most. Testimony at trial established that from the time the 9-1-1 call was placed

until the time police arrived, approximately six minutes elapsed. Emergency medical

personnel arrived approximately two to three minutes after that. Appellant failed to take the

necessary steps to seek medical attention for the victim, and the evidence at trial established

that his failure adversely affected the child’s welfare, resulting in serious bodily injury, in this

case death, to the child. Appellant is not entitled to relief on this issue.

B. Claim of Double Jeopardy for Convictions of

Reckless Aggravated Assault and Attempted Aggravated Child Neglect and/or

Reckless Homicide and Attempted Aggravated Child Neglect

In this issue, appellant claims two double jeopardy violations. He first claims that his

convictions for reckless aggravated assault and attempted aggravated child neglect do not

pass constitutional muster and violate the prohibition against double jeopardy. He next

contends, in the alternative, that should this court instead review the convictions of reckless

homicide and attempted aggravated child neglect for double jeopardy, both convictions

cannot stand. Notably, he does not challenge the convictions for reckless aggravated assault

in light of his conviction for reckless homicide, ostensibly because the most significant

sentence, that of twelve years, is attached to the conviction for attempted aggravated child

neglect. We address each combination of convictions in turn.

1. Standard of Review

Both parties to this appeal thoroughly outlined and applied our supreme court’s

opinion in State v. Denton, 938 S.W.2d 373, 378-81 (Tenn. 1996), to the facts of this case.

Through no fault of their own, the parties have applied a standard of review that is no longer

in effect in our state. See State v. Watkins, 362 S.W.3d 530 (Tenn. 2012). The supreme

court’s Watkins opinion was released on March 9, 2012, long after the parties’ briefs were

filed. Watkins changed our State’s double jeopardy analysis and abrogated the Denton rule.

In Watkins, appellant was indicted for felony murder and aggravated child abuse and

convicted of the lesser included offense of reckless homicide and aggravated child abuse as

charged. Id. at 538. On direct appeal, this court found that the dual convictions violated the

prohibition against double jeopardy, merged the convictions, and remanded the case to the

-15-

trial court for resentencing. Id. Our supreme court granted the State permission to appeal

the issue of double jeopardy. Id.

The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, made applicable to the states through the Fourteenth Amendment, provides that

“[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. Courts have interpreted the Double Jeopardy Clause as

providing three distinct protections: “(1) protection against a second prosecution for the same

offense after acquittal; (2) protection against a second prosecution for the same offense after

conviction; and (3) protection against multiple punishments for the same offense.” Watkins,

362 S.W.3d at 541 (citations omitted). “The United States Supreme Court has declared that

‘[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause

does no more than prevent the sentencing court from prescribing greater punishment than the

legislature intended.’” Id. at 542 (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)).

In such cases, also known as “single prosecution cases,” the Double Jeopardy Clause

functions to prevent trial courts from fixing punishments in excess of that which was

authorized by the legislature. Watkins, 362 S.W.3d at 542. “Single prosecution cases” lend

themselves to claims of multiple punishment claims in two distinct ways,

“unit-of-prosecution” and “multiple description” claims. Id. at 543. “Unit-of-prosecution

claims arise when defendants who have been convicted of multiple violations of the same

statute assert that the multiple convictions are for the ‘same offense.’” Id. Our appellant at

bar, as appellant in Watkins, was convicted of violating two different statutes, requiring this

court to employ an analysis of a “multiple description claim” on direct appeal. See id.

“Multiple description claims arise in cases in which defendants who have been convicted of

multiple criminal offenses under different statutes allege that the convictions violate double

jeopardy because the statutes punish the ‘same offense.’” Id. at 544.

In Watkins, our supreme court held:

In multiple description cases, when determining whether two statutes define

the same offense, the United States Supreme Court long ago declared that

“where the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which

the other does not.”

Id. at 544 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). An analysis of

Blockburger examines “the statutory elements in the abstract, without regard to the proof

offered at trial in support of the offenses.” Watkins, 362 S.W.3d at 544. Under Blockburger,

“[i]f each offense includes an element that the other offense does not, ‘the Blockburger test

-16-

is satisfied, notwithstanding a substantial overlap in the proof offered to establish the

crimes.’” Id. (quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)); see also

Illinois v. Vitale, 447 U.S. 410, 416 (1980) (noting that Blockburger “focuses on the proof

necessary to prove the statutory elements of each offense, rather than on the actual evidence

to be presented at trial”). Our supreme court opined:

The Blockburger test has been credited with serving at least two

purposes. First, the Blockburger test is described as remaining “loyal” to the

text of the Double Jeopardy Clause, which proscribes multiple punishment for

the “same offense” and does not proscribe multiple punishment for the “same

conduct.” Second, the Blockburger test has been characterized as preserving

the appropriate separation of powers by focusing the analysis upon legislative

intent, rather than upon a defendant’s conduct or the proof introduced at a

particular trial.

The Blockburger test also has been described as promoting “two

important practical implications.” First, because the Blockburger test evaluates

the statutory elements of the offenses without reference to the proof offered at

trial, “a motion to dismiss one count or one indictment based on multiple

punishment grounds can be decided prior to trial by simply comparing the

statutes, and a defendant who is charged improperly will not have to undergo

the anxiety of a trial before the error is redressed.” Second, because the

Blockburger test focuses on statutory elements rather than proof, “a court can

review a multiple punishment claim without a time-consuming review of the

trial transcript.”

Watkins, 362 S.W.3d at 544-45.

Application of Blockburger involves a two-prong analysis; courts must determine the

threshold inquiry under Blockburger, which is “whether the alleged statutory violations arise

from ‘the same act or transaction.’” Id. at 545. If the answer is negative, there cannot be a

violation of double jeopardy, thus courts may end the analysis here. Id. If the answer is

affirmative, a double jeopardy violation could be present, and the court must look to the

second factor of Blockburger. Id. (emphasis added). “Where the threshold is met, meaning

the convictions arose from the same act or transaction, a court next examines the statutes to

determine whether the crimes of which the defendant was convicted constitute the same

offense.” Id. (citing Blockburger, 284 U.S. at 304). If each offense includes an element not

contained in the other offense, the statutory offenses are distinct. Id. at 545-46 (citing

Blockburger, 284 U.S. at 304). In this case, courts presume that the legislative body intended

to allow for multiple or separate punishments for the offenses. Id. at 546.

-17-

After reviewing the proper application of Blockburger to claims of double jeopardy,

our supreme court noted that Tennessee had not previously adopted the Blockburger test but

rather employs “a unique test consisting of four factors that are weighed to determine

whether multiple convictions violate double jeopardy.” Id. at 547; see State v. Denton, 938

S.W.2d 373, 381 (Tenn. 1996). The first step under the four-prong Denton test requires our

courts to compare the statutory elements “in the abstract,” as directed by Blockburger.

Watkins, 362 S.W.3d at 547. Next, courts look to Duchac v. State, 505 S.W.2d 237 (Tenn.

1973), to consider whether the offenses are proven by the same evidence. Id. Third, our

courts “consider whether the offenses involved multiple victims or discrete acts.” Id.

“Finally, Tennessee courts determine whether the purpose of the respective statutes is the

same or different.” Id. (citing Denton, 938 S.W.2d at 381). “‘No single aspect of this

analysis is given controlling weight,’” and “‘each factor must be weighed and considered in

relation to the others.’” Id. (quoting Cable v. Clemmons, 36 S.W.3d 39, 42 (Tenn. 2001)).

The Watkins court reviewed several difficulties inherent in our state’s current analysis

of double jeopardy claims: (1) “its application produce[s] inconsistent results that defy

reconciliation;” (2) “the test itself suffers from analytical defects and an incongruity with the

key constitutional consideration in multiple punishment cases—that of ascertaining

legislative intent;” (3) “the Denton test fails to focus sufficiently upon the distinct categories

of multiple punishment claims—unit of prosecution and multiple description;” and (4) “the

Denton test rests upon an uncertain constitutional foundation.” Watkins, 362 S.W.3d at 549-

50. The court next opined, “Given the analytical shortcomings of the Denton test[,] . . . we

conclude that the time has come to abandon the Denton test. We adopt the Blockburger same

elements test currently utilized by the federal courts and the vast majority of our sister

states.” Id. at 556. The supreme court concluded that the Blockburger test can be applied

in “a more straightforward manner” in determining “whether multiple convictions under

different statutes violate the state constitutional double jeopardy prohibition against multiple

punishment.” Id. Our court determined that

[i]n nearly all cases involving multiple description claims, application of the

Blockburger test will provide a definitive answer to the question of whether

the Legislature intended to permit multiple convictions under separate statutes.

In the rare case where doubt as to legislative intent remains after application

of the Blockburger test, courts may consider other evidence of legislative

intent, including the purposes and history of the relevant statutes.

Id. at 557-58. Thus, for purposes of appellate review, this court will employ the Blockburger

analysis adopted by the Tennessee Supreme Court without regard to Denton or Duchac.

-18-

2. Reckless Aggravated Assault and Attempted Aggravated Child Neglect

Appellant first argues that convictions for reckless aggravated assault and attempted

aggravated child neglect run afoul of the prohibition against double jeopardy.

Reckless aggravated assault as it applies to this case is defined by Tennessee Code

Annotated section 39-13-102(a)(2)(A) as the reckless commission of assault (causing bodily

injury to another) which results in serious bodily injury to another. See also Tenn. Code Ann.

§ 39-13-101(a)(1) (2010). The statutory elements of aggravated child abuse and neglect

define the offense as the knowing abuse or neglect of a child “so as to adversely affect the

child’s health and welfare” that “results in serious bodily injury to the child.” Id. §§ 39-15-

401(b), -402(a)(1).

A comparison of the two statutes reveals that attempted aggravated child neglect is

limited to victims who are “children,” i.e., under the age of eighteen years.3 Reckless

aggravated assault contains no such limitation. Moreover, aggravated child neglect is

founded upon “neglect,” or an absence of action, which leads to serious bodily injury.

Reckless aggravated assault is based upon “causing” serious bodily injury to another, an

affirmative action.

Each of the offenses includes an element that is different from the other offense.

Neither offense is a lesser included offense of the other. We thus conclude that our

legislature intended to permit multiple convictions in this context. See Watkins, 362 S.W.3d

at 558. Because appellant’s convictions for these two offenses are not prohibited by federal

or state prohibitions against double jeopardy, appellant is not entitled to relief.

3. Reckless Homicide and Attempted Aggravated Child Neglect

In Watkins, our supreme court developed the procedure to be followed in determining

claims of double jeopardy. Notably, it did so in the context of a claim involving reckless

homicide and attempted aggravated child abuse. In reviewing the claim under Blockburger,

the court held:

Applying the foregoing principles in this case, we first consider whether

the defendant’s dual convictions arose from the same act or transaction. Here,

there was only one victim, and Defendant was charged with committing both

3

Child abuse and child neglect or endangerment is a Class A misdemeanor if the child is less than

eighteen years of age. Tenn. Code Ann. § 39-15-401(b) (2010). If the child is eight years old or younger,

the penalty then increases to a Class E felony. Id.

-19-

offenses on August 30, 2004, without reference to any specific or discrete acts.

Thus, the threshold is surpassed, meaning the potential for a double jeopardy

violation exists in this case. The General Assembly has not expressed its intent

either to permit or to preclude dual convictions of reckless homicide and

aggravated child abuse. Thus, we must next examine the statutes defining the

crimes of which the defendant was convicted in order to discern legislative

intent.

Reckless homicide is statutorily defined as the “[r]eckless killing of

another.” Aggravated child abuse as charged in this case is statutorily defined

as follows: “A person commits the offense of aggravated child abuse . . . who

commits the offense of child abuse . . . and . . . [t]he act of abuse . . . results

in serious bodily injury to the child . . . ” Child abuse . . . occurs when “[a]ny

person . . . knowingly, other than by accidental means, treats a child . . . in such

a manner as to inflict injury . . . ” At the time of this offense, “serious bodily

injury” was defined as including a “substantial risk of death,” “[p]rotracted

unconsciousness,” “[e]xtreme physical pain,” “[p]rotracted or obvious

disfigurement,” or “[p]rotracted loss or substantial impairment of a function

of a bodily member, organ or mental faculty.”

Obviously, the definitions of reckless homicide and aggravated child

abuse differ markedly. Reckless homicide requires proof of a killing;

aggravated child abuse does not. Aggravated child abuse requires proof that

the victim was a “child,” that is, a person less than eighteen years of age;

reckless homicide has no age-based element. Having applied the Blockburger

test, we conclude that the defendant’s convictions of reckless homicide and

aggravated child abuse are not the same offenses for purposes of double

jeopardy. Each offense includes an element different from the other offense.

Neither offense is a lesser included of the other. Accordingly, we conclude that

the General Assembly intended to permit multiple convictions in this context.

Thus, we hold that Defendant’s dual convictions do not offend either the

Double Jeopardy Clause of the Fifth Amendment or article I, section 10 of the

Tennessee Constitution.

Id. at 558 (internal citations omitted).

The same rationale applies to the instant case. Although appellant was convicted of

attempted aggravated child neglect, the offenses of aggravated child abuse and aggravated

child neglect are codified in the same statute, Tennessee Code Annotated section 39-15-402

(2010). Analysis of the elements, for purposes of a Blockburger analysis, are the same. The

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outcome of this case is dictated by our supreme court’s holding in State v. Watkins; as such,

we conclude that appellant’s convictions for reckless homicide and attempted aggravated

child neglect do not violate the double jeopardy clauses of either the United States or the

Tennessee Constitution, and appellant is entitled to no relief.

C. Election of Act(s) Relied Upon for Aggravated Child Neglect

Appellant argues that the trial court erred in denying his motion to compel the State

to make an election of act(s) underlying the indictment for aggravated child neglect. The

trial court granted the motion with respect to the counts of aggravated child abuse but denied

it with respect to aggravated child neglect. Appellant contends that the trial court’s error

permitted the jury to deliberate on different facts and thus created the potential for a non-

unanimous verdict on that count.

The State argued to the jury that although appellant claimed the victim’s injuries were

accidentally inflicted, “he can’t rely on that, because he’d still be guilty of neglect, because

he did absolutely nothing to provide medical treatment for that child when in his own words,

she was unconscious and not breathing.” The trial court charged the jury with respect to

child neglect:

Neglect is a continuing course of knowing conduct beginning with the first act

of omission that causes adverse affect [sic] to [the victim] and her welfare.

Neglect is an act of omission. Neglect can occur when an parent or guardian

neglects, fails[,] or refuses to provide the necessary medical, surgical,

institutional[,] or hospital care for a child.

The trial court’s instruction to the jury was proper and appropriately limited the facts upon

which the jury could render its verdict on aggravated child neglect.

In a similar case, our supreme court opined:

This Court has consistently held that when the evidence indicates the

defendant has committed multiple offenses against a victim, the prosecution

must elect the particular offense as charged in the indictment for which the

conviction is sought. This election requirement serves several purposes. First,

it ensures that a defendant is able to prepare for and make a defense for a

specific charge. Second, election protects a defendant against double jeopardy

by prohibiting retrial on the same specific charge. Third, it enables the trial

court and the appellate courts to review the legal sufficiency of the evidence.

The most important reason for the election requirement, however, is that it

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ensures that the jurors deliberate over and render a verdict on the same offense.

This right to a unanimous verdict has been characterized by this Court as

“fundamental, immediately touching on the constitutional rights of an accused

. . . .”

When the evidence does not establish that multiple offenses have been

committed, however, the need to make an election never arises. To this end,

this Court has made a distinction between multiple discrete acts that

individually constitute separate substantive offenses and those offenses that

punish a single, continuing course of conduct. In cases when the charged

offense consists of a discrete act and proof is introduced of a series of acts, the

state will be required to make an election. In cases when the nature of the

charged offense is meant to punish a continuing course of conduct, however,

election of offenses is not required because the offense is, by definition, a

single offense.

....

[A]s evidenced by . . . other statutes in the Tennessee Code, we hold

that the General Assembly intended for the offense of aggravated child abuse

through neglect to punish a continuing course of knowing conduct beginning

with the first act or omission that causes adverse effects to a child’s health or

welfare.

Indeed, it would be an absurd construction to hold that criminal child

neglect is complete as soon as the child’s health and welfare are first adversely

affected, especially when the child remains in this condition for a substantial

period of time. Neglect simply does not lend itself to division into segments

of discrete acts each having various points of termination. Rather, a more

reasonable construction of the offense supports the view that the offense

continues until the person responsible for the neglect takes reasonable steps to

remedy the adverse effects to the child’s health and welfare caused by the

neglect.

State v. Adams, 24 S.W.3d 289, 294-96 (Tenn. 2000) (internal citations omitted). Further,

this court has held:

Given the defendant’s knowledge and awareness of the victim’s

obvious physical injuries, [his] decision to knowingly forego [sic] medical

treatment, at whatever point in time [h]e made it, was child neglect. This

-22-

neglect continued until the victim ultimately died. In this case, the defendant’s

neglect was continuous and without interruption, and we cannot break the

defendant’s conduct into separate and discrete periods of time and space.

Accordingly, we conclude that the state was not required to make an election

of offenses, and the trial court did not commit an error in failing to require the

State to make an election.

State v. Martha Patlan, No. M2011-01175-CCA-RM-CD, 2011 WL 2848395, at *11-12

(Tenn. Crim. App. July 18, 2011) (internal citations and quotations omitted). Based on the

foregoing authorities, the trial court correctly ruled that the State was not required to make

an election on the offense of aggravated child neglect and properly instructed the jury.

Appellant is not entitled to relief on this issue.

D. Expert Testimony

Appellant argues that the trial court erred in admitting a comment made by the

medical examiner during her testimony, characterizing it as testimony that “a changing or

inconsistent version of events by a person suspected of child abuse is suggestive of non-

accidental trauma.”

We begin our analysis with the proposition that admissibility of expert testimony is

governed by the Tennessee Rules of Evidence:

If scientific, technical, or other specialized knowledge will substantially assist

the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise.

Tenn. R. Evid. 702. The trial court is vested with broad discretion in resolving questions

regarding the admissibility of expert testimony. State v. Copeland, 226 S.W.3d 287, 301

(Tenn. 2007). On appellate review, we will not disturb a trial court’s decision regarding the

admission or exclusion of expert testimony absent an abuse of discretion. State v. Scott, 275

S.W.3d 395, 403 (Tenn. 2009). A trial court abuses its discretion when it applies incorrect

legal standards, reaches an illogical conclusion, bases its decision on a clearly erroneous

assessment of the evidence, or employs reasoning that causes an injustice to the complaining

party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d

319, 337 (Tenn. 2006)).

Prior to trial, appellant filed a motion in limine seeking to exclude any medical

testimony that appellant’s changing his story several times was indicative of guilt. The trial

-23-

court held a hearing, after which it ruled that a doctor could testify that he or she considers

a history that is inconsistent with the injuries as determining whether the injuries were

intentional or accidental.

Both the State and appellant refer this court to an excerpt of the testimony of Dr.

Adele Lewis, an expert in forensic pathology. The State’s cited excerpt is lengthier than

appellant’s, thus, to distinguish between them, we emphasize appellant’s quoted portion in

italics below:

Q: Dr. Lewis, I think one of the things you mentioned is that you also, in

addition to looking at the medical findings, have to look at her, consider

the history that’s provided to explain that.

A: Yes, absolutely.

Q: In formulating diagnosis of whether some – whether a child has non-

accidental trauma or child abuse trauma, do you look at and evaluate

whether the history is consistent or not with the nature of the injuries?

A: Yes.

Q: In this particular case, are you aware that Mr. Sudberry provided

varying histories to police officers in connection with the investigation?

A: Yes. I was aware that the story had changed several times.

Q: Initially, Mr. Sudberry said, I don’t have any idea, nothing happened to

the child, the child was perfectly fine.

A: Yes.

Q: That he attributed many of the injuries, if not all of the injuries, to

resuscitative measures involving rescue personnel?

A: I learned that later, yes.

Q: That he provided a history, ultimately, to police officers that he had

fallen on the stairs while holding the child and fell on her with his

knee?

-24-

A: And again, I learned that after the autopsy, yes.

Q: And that he had provided a statement where he claimed to have shaken

the baby mildly in order to revive the baby.

A: Yes.

Q: Were any of those explanations, in your opinion, consistent with the

nature of injuries that [the victim] sustained?

A: No, they are not.

Q: The fact that somebody provides a history that is inconsistent with those

injuries, how does that factor into the diagnosis of non-accidental

trauma from a medical standpoint?

A: Well, not only is changing stories or varying histories suggestive of an

abuse or inflicted injury, injuries – or histories that are not supportive

of the injuries that we see. So if someone says, oh, the child rolled off

the sofa and they have injuries like this, that’s clearly not consistent

with this type of injuries. So we have a pattern of injuries here, the

severity of injuries here, and the location of these injuries that all

indicate a non-accidental source.

Here, appellant urges this court to review Dr. Lewis’s few words in the answer above in a

vacuum in support of his position that she improperly testified with regard to behavioral

characteristics of an accused. We decline to do so. The State reviewed appellant’s different

versions of the events to lay the foundation for asking Dr. Lewis if any of appellant’s stories

were consistent with the victim’s injuries. Dr. Lewis began to answer the State’s question

cited above in a manner that was not responsive to the question asked, then she corrected

herself to say “histories that are not supportive of the injuries.” The State did not elicit

testimony from Dr. Lewis regarding appellant’s changing stories, and Dr. Lewis stopped

herself mid-sentence before finishing her sentence.

The State’s questioning of Dr. Lewis was permissible; the State must prove, usually

through its medical experts, that the injuries sustained by the victim were not accidental. One

commonly accepted method to do so is for the expert to offer testimony that the injuries in

a particular case are inconsistent with the story or history provided by the accused. Our

courts have approved this line of questioning in child abuse cases. See State v. Hanson, 279

S.W.3d, 265, 270-73 (Tenn. 2009) (noting that expert testimony that a child’s injuries were

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inconsistent with the factual scenario advanced by defendant was admissible to establish

intentional injury as opposed to accidental injury); State v. Henry Dequan Rhodes, No.

M1999-959-CCA-R3-CD, 2000 WL 264327, at *4 (Tenn. Crim. App. Mar. 10, 2000) (noting

that at trial, expert testimony established that injuries were consistent with child abuse and

inconsistent with an accidental injury).

Moreover, appellant was “acquitted” of aggravated child abuse and was instead

convicted of the lesser-included offense of reckless aggravated assault on all three such

counts, demonstrating that any error in Dr. Lewis’s testimony regarding appellant’s behavior

was harmless. Appellant is not entitled to relief on this issue.

E. Sentencing Issues

Appellant challenges the sentences imposed by the trial court on two grounds: (1) the

trial court erred in imposing the maximum sentence on each conviction; and (2) the trial court

erred in imposing consecutive sentences.

1. Standard of Review

In determining an appropriate sentence, a trial court must consider the following

factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the

presentence report; (3) the principles of sentencing and arguments as to sentencing

alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence

and information offered by the parties on mitigating and enhancement factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement the defendant makes on his

own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-

35-103(5), -113, -114, -210(b) (2010). In addition, “[t]he sentence imposed should be the

least severe measure necessary to achieve the purposes for which the sentence is imposed.”

Tenn. Code Ann. § 40-35-103(4) (2010).

When imposing a sentence within the appropriate range of punishment for a

defendant,

the court shall consider, but is not bound by, the following advisory sentencing

guidelines:

(1) The minimum sentence within the range of punishment is the sentence

that should be imposed, because the general assembly set the minimum

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length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as appropriate,

by the presence or absence of mitigating and enhancement factors set

out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c) (2010). From this, “the trial court is free to select any

sentence within the applicable range so long as the length of the sentence is ‘consistent with

the purposes and principles of [the Sentencing Act].’” State v. Carter, 254 S.W.3d 335, 343

(Tenn. 2008) (quoting Tenn. Code Ann. § 40-35-210(d)).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory

minimum sentence and rendered enhancement factors advisory only. See Tenn. Code Ann.

§§ 40-35-114, 40-35-210(c) (2010). The 2005 amendments set forth certain “advisory

sentencing guidelines” that are not binding on the trial court; however, the trial court must

nonetheless consider them. See id. § 40-35-210(c). Although the application of the factors

is advisory, a court shall consider “[e]vidence and information offered by the parties on the

mitigating and enhancement factors in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5).

The trial court must also place on the record “what enhancement or mitigating factors were

considered, if any, as well as the reasons for the sentence, to ensure fair and consistent

sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing factors is left to

the sound discretion of the trial court. Carter, 254 S.W.3d at 345. The burden of proving

applicable mitigating factors rests upon appellant. State v. Mark Moore, No. 03C01-9403-

CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial court’s

weighing of the various enhancement and mitigating factors is not grounds for reversal under

the revised Sentencing Act. Carter, 254 S.W.3d at 345 (citing State v. Devin Banks, No.

W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007),

aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

When a trial court orders a sentence involving confinement, the court should consider

whether: (A) “confinement is necessary to protect society by restraining a defendant who has

a long history of criminal conduct;” (B) “confinement is necessary to avoid depreciating the

seriousness of the offense” or to “provide an effective deterrence to others likely to commit

similar offenses;” or (C) less restrictive measures have been frequently or recently applied

to defendant unsuccessfully. Tenn. Code Ann. § 40-35-103(1) (2010).

When an accused challenges the length and manner of service of a sentence, this court

reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, ___ S.W.3d ___, No.

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E2011-00005-SC-R11-CD, 2012 WL 4380564, at *17 (Tenn. Sept. 26, 2012). If a trial court

misapplies an enhancing or mitigating factor in passing sentence, said error will not remove

the presumption of reasonableness from its sentencing determination. Id. at 17. This court

will uphold the trial court’s sentencing decision “so long as it is within the appropriate range

and the record demonstrates that the sentence is otherwise in compliance with the purposes

and principles listed by statute.” Id. Moreover, under such circumstances, appellate courts

may not disturb the sentence even if we had preferred a different result. See Carter, 254

S.W.3d at 346. The party challenging the sentence imposed by the trial court has the burden

of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2010),

Sentencing Comm'n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

2. Maximum Sentences

Appellant was convicted of three counts of reckless aggravated assault and one count

of reckless homicide, Class D felonies that carry a sentence of two to four years as a Range

I offender. Attempted aggravated child neglect of a child less than eight years of age is a

Class B felony, for which the range of punishment as a Range I offender is eight to twelve

years. The trial court sentenced appellant to the maximum allowable sentence on each

conviction. Appellant argues that his sentences are excessive and inconsistent with the

purposes of the sentencing guidelines. See Tenn. Code Ann. § 40-35-401(b)(2), (3) (2010).

In arriving at the appropriate sentence, the trial court considered, on the record, the

appropriate factors set forth by the sentencing guidelines. See Tenn. Code Ann. §§ 40-35-

103, -210 (2010). The court next reviewed appellant’s criminal history to determine his

offender range. The trial court noted one prior conviction for felony child abuse, several

misdemeanor convictions, and a conviction for statutory rape. It sentenced appellant as a

Range I offender.

The court then considered applicable enhancing and mitigating factors. As enhancing

factors, the trial court found that appellant had a previous history of criminal convictions or

behavior greater than those necessary to establish the appropriate range of punishment; that

the victim was particularly vulnerable because of age; that appellant allowed the victim to

be treated with exceptional cruelty during the commission of the offenses; that appellant had

previously failed to comply with the conditions of a sentence involving release into the

community (probation); that appellant had no hesitation about committing a crime when the

risk to human life was high; that appellant was serving a sentence of probation when he

committed the crimes; and, that appellant abused a position of private trust, i.e, he was the

victim’s father. Tenn. Code Ann. §§ 40-35-114 (1), (4), (5), (8), (10), (13)(c), (14) (2010).

The court found no mitigating factors from the record.

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Appellant specifically challenges the trial court’s finding of enhancement factor (5),

that appellant allowed the victim to be treated with exceptional cruelty, claiming that the

evidence of cruelty failed to “demonstrate[ ] a culpability distinct from and appreciably

greater than that incident to” the offenses. See State v. Poole, 945 S.W.2d 93, 98 (Tenn.

1998) (quoting State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1994)). As in Poole, our analysis

of the statutory offenses for which appellant was convicted reveals that “exceptional cruelty”

is not an element of any of his convicted offenses. See id.; Tenn. Code Ann. § 35-13-

102(a)(2)(A), -15-402(a)(1)4 , -13-215 (2010). However, “serious bodily injury” is an

element of the offenses of reckless aggravated assault and attempted aggravated child

neglect. Our supreme court’s opinion in Poole held that “proof of serious bodily injury . .

. does not necessarily establish the enhancing factor of exceptional cruelty” and that “the

facts in a case may support a finding of ‘exceptional cruelty’ that ‘demonstrates a culpability

distinct from and appreciably greater than that incident to’ the crime[s for which appellant

was indicted].” Id. (citations omitted).

We conclude that the medical evidence at trial supports the trial court’s finding of the

enhancement factor that appellant allowed the victim to be treated with exceptional cruelty.

In summary, the medical examiner testified that nine of the victim’s organs had contusions,

hemorrhages, or lacerations; the victim’s ribs had thirty or more fractures; the victim’s brain

showed deep bruising inside the scalp, subdural hematomas, and subarachnoid hemorrhages;

and the victim’s eyes revealed optic nerve hemorrhaging and multiple hemorrhages within

both eyes. This level of injury far exceeds the level of “serious bodily injury” required to

sustain convictions for reckless aggravated assault and attempted aggravated child neglect.

Appellant is not entitled to relief on this issue.

Appellant further contends that the trial court’s finding of enhancement factor (10),

that appellant had no hesitation about committing a crime when the risk to human life was

high, was erroneous. Appellant correctly asserts that this enhancement factor is inapplicable

to this case because “risk to human life” was inherent in the offenses, and the victim was the

only individual at risk of being harmed.

In general, factor (10) applies only where the facts that establish that the

defendant created a high risk to human life also demonstrate a greater

culpability than that incident to the offense underlying the enhancement. As

a result, where a high risk to human life is inherent in the underlying

4

The State indicted appellant for aggravated child neglect pursuant to Tennessee Code Annotated

section 39-15-402(a)(1), which requires a finding of serious bodily injury, rather than section 39-15-

402(a)(3), which requires a finding that the abuse or neglect was “especially heinous, atrocious, or cruel.”

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conviction, enhancement factor (10) applies only if the defendant disregarded

a high risk to the life of a person other than the victim.

State v. Lance Sandifer, No. M2008-02849-CCA-R3-CD, 2010 WL 5343202, at *20 (Tenn.

Crim. App. Dec. 21, 2010) (internal citations omitted), perm. app. denied (Tenn. May 26,

2011); see State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994); State v. Zonge, 973 S.W.2d

250, 259 (Tenn. Crim. App. 1997). The facts establish that the victim was the only

individual at risk of harm from appellant’s attack. Thus, the trial court incorrectly applied

this enhancement factor.

Notwithstanding, the “trial court’s misapplication of an enhancement or mitigating

factor does not invalidate the sentence imposed unless the trial court wholly departed from

the 1989 Act, as amended in 2005.” Bise, 2012 WL 4380564, at *17. We conclude, after

thorough review of the record, that the trial court did not “wholly depart” from the sentencing

act, and we decline to adjust appellant’s sentence. Appellant is not entitled to relief on the

issue of excessive sentences.

3. Consecutive Sentences

The trial court ordered appellant’s four-year sentence for the conviction for reckless

homicide to run consecutively to his twelve-year sentence for attempted aggravated child

neglect. Appellant argues first that the trial court erred in its application of one of the factors

supporting consecutive sentencing and finally that the resulting sixteen-year sentence is

“greater than that deserved for the offense committed” and is not “the least severe measure

necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann.

§ 40-35-103(2), (4) (2010).

The determination of whether to order consecutive rather than concurrent sentences

is a matter primarily within the discretion of the trial court. See State v. Hastings, 25 S.W.3d

178, 181 (Tenn. Crim. App. 1999). The procedure is governed by Tennessee Code

Annotated section 40-35-115, which lists seven factors that are relevant to a trial court’s

sentencing decision. The court may order consecutive sentences if it finds by a

preponderance of the evidence that one or more of the seven statutory criteria exists. Tenn.

Code Ann.§ 40-35-115(b) (2010). Of the seven factors, the trial court found the following

applicable to appellant’s case:

(2) The defendant is an offender whose record of criminal activity is

extensive; and

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(4) The defendant is a dangerous offender whose behavior indicates little

or no regard for human life and no hesitation about committing a crime

in which the risk to human life is high.

Appellant does not contest the trial court’s finding of the first factor, but correctly notes that

when a trial court applies section 40-35-115(4), the court, in addition to finding that a

defendant is a “dangerous offender whose behavior indicates little or no regard for human

life and no hesitation about committing a crime in which the risk to human life is high,” must

also make a finding that consecutive sentencing is “necessary to protect the public against

further criminal conduct by the defendant and that the consecutive sentences must reasonably

relate to the severity of the offenses committed.” See State v. Wilkerson, 905 S.W.2d 933,

939 (Tenn. 1995). He argues that the trial court failed to make the necessary Wilkerson

findings. However, our review of the record contradicts appellant’s assertions.

The sentencing hearing transcript reflects that the trial court, in finding that appellant

is a dangerous offender, opined:

The Court finds that confinement for an extended period of time is necessary

to protect society, minors, babies, those are the ones he seems to perpetrate his

crimes on through statutory rape, child abuse, reckless aggravated assault,

reckless homicide, to protect society from his unwillingness to lead a

productive life, which he has never really done. The defendant’s resort to

criminal activity and furtherance of anti-societal lifestyle; a child cries and he

beats or kills it. The Court finds that the aggregate length of the sentence

being 16 years is reasonably related to the offenses for which he stands

convicted. Quite frankly, the Court feels that the sentence should be

significantly greater than that, but unfortunately that is nothing that the Court

can do [anything] about . . . , but I can assure you that for the brutality that was

perpetrated upon this child that 16 years is a slap on the hand, which is not

consideration he has ever given to the children that’s been in his life, he

doesn’t believe in a slap on the hand; he believes in a brutal beating.

The trial court clearly and thoroughly made the requisite findings under Wilkerson.

Following our review of the record, we conclude that the record supports the trial court’s

finding that appellant is a dangerous offender.

Appellant’s final argument, that his sentence is excessive and in contravention of

Tennessee Code Annotated section 40-35-103(2), (4), must also fail. In another child abuse

case, our supreme court held, “Because the defendant, at a minimum, demonstrated extreme

callousness toward the health and welfare of the victim, and the results were fatal, the trial

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court, in our view, had a reasonable basis for imposing consecutive sentences.” State v.

Dorantes, 331 S.W.3d 370, 392 (Tenn. 2011). Following this precedent, we deny appellant

relief on this issue.

CONCLUSION

Following our thorough review of the record, the parties’ briefs, and applicable case

law, we discern no error and affirm the judgments of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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