State of Tennessee v. Nigel Kavic Watkins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

December 8, 2009 Session

STATE OF TENNESSEE v. NIGEL KAVIC WATKINS

Appeal from the Criminal Court for Smith County

No. 04-194 John Wootten, Judge

No. M2009-00348-CCA-R3-CD - Filed March 1, 2010

The Defendant, Nigel Kavic Watkins, was charged with one count of first degree felony

murder and one count of aggravated child abuse. Following a jury trial, he was convicted

of one count of reckless homicide, a Class D felony, and one count of aggravated child

abuse, a Class A felony. See Tenn. Code Ann. §§ 39-13-215(b), -15-402(b). He was

sentenced as a Range I, standard offender to four years for reckless homicide and, as a

violent offender, to twenty-five years for aggravated child abuse. The trial court ordered him

to serve these sentences consecutively, for a total effective sentence of twenty-nine years in

the Department of Correction. In this direct appeal, the Defendant contends that: (1) the trial

court erred in denying his motion to suppress his statement; (2) the trial court erred in

allowing the introduction of certain autopsy photographs; (3) the State presented evidence

insufficient to convict him of aggravated child abuse; and (4) the trial court erred in setting

the length of his sentence and in ordering consecutive service. We notice as plain error that

the Defendant’s rights under the Fifth Amendment to the United States Constitution’s double

jeopardy clause were violated by his dual convictions. After our review, we affirm the

Defendant’s conviction for aggravated child abuse. We merge the Defendant’s reckless

homicide conviction into his aggravated child abuse conviction and remand for resentencing.

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

in Part; Reversed in Part; Remanded

D AVID H. W ELLES, J., delivered the opinion of the Court, in which A LAN E. G LENN and

R OBERT W. W EDEMEYER, JJ., joined.

Shawn P. Sirgo, Nashville, Tennessee, for the appellant, Nigel Kavic Watkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth T. Ryan, Associate Deputy

Attorney General; Angele M. Gregory, Assistant Attorney General; Tom P. Thompson,

District Attorney General; and David E. Durham, Assistant District Attorney General, for the

appellee, State of Tennessee.

OPINION

Factual Background

Testimony in this case was heard at a March 13, 2007 hearing on the Defendant’s

motion to suppress his statement and at his January 8-10, 2008 trial. Testimony at the

hearing on the Defendant’s motion to suppress established that the events underlying this

case began on August 30, 2004. Chief Steve Hopper of the Carthage Police Department

(“CPD”) testified that on that day, he received a call asking for a responder to go to Carthage

General Hospital’s (“CGH”) emergency room. Chief Hopper sent Assistant Chief Carl

Brown and Patrick Warren of the Department of Children’s Services. Chief Hopper went

to CGH as well. Upon arrival, he spoke with Warren, Asst. Chief Brown, and Emergency

Medical Services Director Ricky Slack. He learned that the thirteen-month-old victim had

been admitted with serious, possibly non-accidental head injuries. He also learned that the

victim’s residence contained two other children. Acting on that information, Chief Hopper

drove to that residence, on Project Circle in Carthage, intending to remain there until the

Department of Children’s Services (“DCS”) arrived to pick up the other children.

Chief Hopper found the two children at the residence with the Defendant. He asked

to speak to the Defendant, telling him that he was not in custody and not under arrest. Chief

Hopper did not restrain the Defendant’s movement in any way and believed the conversation

to be voluntary. The conversation took place in front of Chief Hopper’s police vehicle and

was recorded by his in-vehicle recording system.

DCS arrived to take the victim’s siblings shortly thereafter. Chief Hopper then asked

the Defendant if he would go to CPD headquarters to answer some questions about the

events preceding the 911 call that resulted in the victim being transported to CGH. The

Defendant agreed. After arriving at CPD headquarters, Chief Hopper read the Defendant his

rights under Miranda v. Arizona, 384 U.S. 436 (1966). The Defendant initialed each

enumerated right on an advice of rights form. He also signed the form, along with Chief

Hopper, Asst. Chief Brown, and Mr. Warren, at 4:30 p.m. on August 30. The Defendant was

again told that he was not under arrest. The Defendant never indicated any unwillingness to

talk.

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After the interview, Asst. Chief Brown drove the Defendant back to his Project Circle

residence. The victim had since been moved to the emergency room at Vanderbilt Children’s

Hospital (“VCH”); Chief Hopper spoke on the phone with a doctor there, and then met with

Agent Russ Winkler of the Tennessee Bureau of Investigation (“TBI”), whose assistance he

had requested. Chief Hopper, Agent Winkler, and Mr. Warren then proceeded to VCH; after

about thirty minutes, the Defendant arrived with the victim’s mother, Ashley Cannon. They

learned from one of the victim’s doctors that the victim was still alive, but that a CT scan

showed both old and new “bleeds” in his brain. The doctor told Chief Hopper that the victim

would probably die.

Another TBI Agent named Locke arrived about that time and asked the Defendant if

he would agree to answer some questions at TBI headquarters. The Defendant agreed. The

Defendant lacked his own transportation, so he rode to TBI headquarters in the front

passenger seat of Agent Locke’s vehicle. Chief Hopper sat in the back seat and noted that

the vehicle was not equipped with any cages or bars to restrain occupants. Agent Winkler

drove his own car to TBI headquarters. They arrived at TBI headquarters at about 10:00 p.m.

Chief Hopper testified that the Defendant was again told he was not in custody or

under arrest. They did not restrain the Defendant’s movement in any way. The Defendant

was offered food, drink, and bathroom breaks. The Defendant never said he wanted to leave.

The interview at TBI headquarters produced the statement the Defendant wished to suppress

at the hearing; after the interview, Chief Hopper and the others drove the Defendant back to

his residence, stopping to eat at a restaurant on the way. Chief Hopper asked the Defendant

for consent to search his residence; the Defendant agreed and signed a consent to search

form. Chief Hopper took some photographs of the inside of the residence.

On cross-examination, Chief Hopper noted that TBI headquarters was secured such

that a person could not enter without a key card. He also noted that the Defendant said he

loved the victim and hoped he would recover. The Defendant also claimed to be manic

depressive, and noted that he took Zoloft, Xanax, and Celexa.

Agent Winkler also testified at the suppression hearing. He noted that Chief Hopper

requested his help with the investigation. In interviewing the Defendant, Agent Winkler

noted that law enforcement policy dictated that any caregiver be interviewed when a child

has potentially non-accidental injuries. Agent Winkler otherwise corroborated Chief

Hopper’s account of events, beginning at VCH: the Defendant was told he was not in custody

or under arrest either at the hospital or at TBI headquarters. Agent Winkler told the

Defendant he was free to leave at any time. He clarified that a key card was not needed in

order to exit TBI headquarters. He also testified that he would have arranged transportation

had the Defendant wanted to leave. The Defendant signed his statement at 11:59 p.m. on

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August 30. The Defendant was read his statement in its entirety before he signed it. Agent

Winkler typed the Defendant’s statement for him based on the Defendant’s answers to the

TBI agents’ questions. The interview at TBI headquarters was not recorded.

At about 3:00 p.m. the next day, Agent Winkler and Chief Hopper went to arrest the

Defendant at his parents’ house in Smith County. The Defendant’s father answered the door

and told them the Defendant was sleeping. Chief Hopper then received information that the

victim had died. Agent Winkler and Chief Hopper left the Smith County residence and

obtained a new warrant. They returned at about 5:00 p.m. and arrested the Defendant.

The trial court denied the Defendant’s motion to suppress his statement. The

Defendant’s trial began on January 8, 2007. Nancy Boulton, the victim’s grandmother and

Ms. Cannon’s mother, identified a photograph of the victim taken on his first birthday, about

a month before his death. Ms. Boulton testified that, at the time of the victim’s death, the

Defendant and Ms. Boulton’s daughter, Ms. Cannon, lived with her at her Project Circle

residence. The victim had two brothers, Wylie and Oliver, who were three and four years

old, respectively. The Defendant and Ms. Cannon were romantically involved at the time,

although the Defendant was not the father of any of Ms. Cannon’s three children. At the

time of trial, they were married.

Chief Hopper also testified at trial. He largely reiterated the testimony he had given

at the hearing on the Defendant’s motion to suppress. The State played the VHS tape

containing Chief Hopper’s interview with the Defendant outside the Project Circle residence;

on the tape, the Defendant claimed that, on August 30, he simply picked up the victim, at

which point the victim went limp. On cross-examination, Chief Hopper noted that the

Defendant seemed concerned about the victim, that the other children at the Project Circle

residence seemed unharmed, and that the Defendant was generally cooperative and “very

chatty.” He also testified that he spoke to Ms. Cannon before speaking to the Defendant; she

spoke to him for a few minutes but then got up and left. Chief Hopper did not speak to her

again. As to the events at TBI headquarters, Chief Hopper noted that the Defendant, had he

wished to leave, could have called for transportation from the front desk. He also said the

Defendant never asked for a lawyer. Chief Hopper did not actively participate in taking the

Defendant’s statement at TBI headquarters, and he did not take notes on the interview.

Agent Winkler testified at trial. He also largely reiterated his testimony from the

hearing on the Defendant’s motion to suppress. He added that Chief Hopper relayed to him

the information he received from the Defendant upon first interviewing him in front of the

Project Circle residence, that the Defendant had said the victim simply went limp after being

picked up. Agent Winkler believed that the information he had regarding the victim’s head

injuries was inconsistent with that account. As to the statement the Defendant gave at TBI

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headquarters, Agent Winkler noted that he asked the Defendant questions and typed the

Defendant’s answers into what became his statement. The Defendant revised his original

story two or three times, in ways that Agent Winkler did not find credible, before settling on

the version memorialized in his final statement. Agent Winkler provided the statement at

trial:

I understand that I am not under arrest. I have come to the TBI office in

Nashville voluntarily to be interviewed about what happened to [the victim].

No threats have been made to me, and no promises have been made to me for

giving this statement. I live with Ashley Cannon. We have dated for about a

year. We have lived together for about six months. Ashley has three kids that

live with us. Her kids are Oliver, Wylie and [the victim]. Oliver is 4. Wylie

is 3. [The victim] is 1. The kids’ daddy is John Bennett. Earlier today, around

3:00 this afternoon I was just getting up from a nap. Ashley had been taking

a nap with me, but she was already up. Ashley and I napped in our bedroom.

When we got up [the victim] and the other boys were in their bedroom.

Ashley went and got [the victim] and took him downstairs. Then Ashley came

back upstairs. She told me she had put [the victim] on the couch in the living

room. Ashley then went to the bathroom upstairs. While Ashley was in the

bathroom [the victim] started crying downstairs. He was crying really loud.

He was crying louder than normal. I went downstairs, and when I got to the

bottom of the stairs [the victim] was at the bottom of the stairs. He was on the

other side of the baby gate. The baby gate runs across the bottom of the stairs

to keep [the victim] from going up the stairs. [The victim] was sitting on the

floor. He was crying loud. I stepped over the baby gate. I jerked him up, and

when I did he hit his head on the handrail. Even after he hit his head on the

handrail he wouldn’t stop crying. I lost my temper and I hit his head on the

wall opposite of the handrail. I hit his head against the corner of the wall on

the opposite side of the handrail. I hit his head against the wall hard. When

I hit his head against the wall he went limp in my arms. His eyes rolled back

in his head, and he just went limp. When he went limp I got scared and took

him up to Ashley. I just told Ashley that [the victim] had gone limp. She told

me to call 911, and I did. I waited outside the apartment for the ambulance.

Ashley waited outside the apartment with me, and she was holding [the victim]

in her arms. He never woke up before the ambulance got there. In the past

I’ve been too rough with [the victim]. I’ve lost my temper with him some in

the past. About a week ago [the victim] was in his crib and he was throwing

things at me, and it made me mad. I got up and went over to the crib and I

took his head and hit it up against the side of the crib. He just cried real loud,

and I gave him his bottle. I knew then I had hit him too hard, and I was

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rubbing the back of his head. I’ve never seen Ashley be rough with [the

victim] or the other two boys. Ashley has never seen me be rough with the

boys. Today I just lost my temper a bit. It would be fair to say that any

injuries [the victim] has I caused.

Signed: [Defendant’s signature] 8-30[-]04 11:59 pm

Witness: [Agent Winkler’s signature] 8/30/04 11:59 PM

Witness: [Agent Locke’s signature] 8/30/04 11:59 pm

Agent Winkler testified that, during the search of the Project Circle residence, the

Defendant demonstrated the manner in which he had hit the victim’s head against the

handrail and the wall. The State introduced pictures of this area into evidence. Agent

Winkler confirmed that the stair walls showed no evidence of an impact.

Doctor Richard Rutherford, qualified as an expert witness in the field of medicine,

testified that he examined the victim upon his arrival at the CGH emergency room a little

after 3:00 p.m. on August 30. The victim was pale, unresponsive to external stimuli, and had

bruises on his head and neck. Doctor Rutherford stabilized the victim and, given CGH’s lack

of imaging technology and expert personnel, had him airlifted to VCH at about 4:00 p.m.

After examining the victim, Dr. Rutherford noted “[a]pparent closed head trauma, probably

non-accidental.” He believed the victim had sustained a severe head injury on the day he was

brought to CGH.

Doctor Bradly Strohler, a pediatric intensivist at VCH, was qualified as an expert in

pediatrics and pediatric intensive care. He testified that the victim was already intubated

upon arrival at VCH. The state introduced a picture of the intubated victim. A neurological

exam showed evidence of brain damage. Doctor Strohler concluded that the victim had

suffered from traumatic brain injury and multiple bruises “consistent with non-accidental

trauma.” His secondary diagnoses included shock, hypertension, and bilateral retinal

hemorrhages consistent with shaken baby syndrome. Doctor Strohler noted that the victim’s

August 31 death was caused by brain herniation. He also opined that the victim’s injuries

were not typical of those usually suffered in the course of routine child activities. He

considered the injuries consistent with the Defendant’s statement.

Doctor Bruce Levy, Tennessee’s Chief Medical Examiner and the Medical Examiner

for Davidson County, performed the victim’s autopsy. The State introduced a number of

autopsy photographs, to which Dr. Levy referred during his testimony. After being qualified

as an expert in forensic pathology, Dr. Levy testified that he found evidence of blunt force

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injuries on the victim’s head, as well as scattered injuries on his body, arms, and legs. He

also found evidence of brain swelling. The victim had injuries around and behind his ears

and inside his lip, which rarely occurred from accidents. The victim also suffered partial

detachment of his retinas, which caused a pooling of blood in his optic nerves. Doctor Levy

said this injury was most common in cases of shaken baby syndrome, but could also be

caused by blunt force trauma. He believed the autopsy results were consistent with the

Defendant’s statement; Dr. Levy acknowledged that he had information about the

Defendant’s confession before performing the autopsy. Doctor Levy concluded that the

cause of the victim’s death was non-accidental head injury and that the manner of his death

was homicide.

The Defendant chose not to testify, but he presented witnesses in his defense. Eudelle

Mundy, a retired school teacher, had known the Defendant since serving as his first grade

teacher. She also had contact with him during ninth and tenth grade, when she served as a

guidance counselor. She testified that the Defendant had no behavioral problems in school,

and was known for his peacefulness and nonviolence. She would “never have dreamed” the

Defendant could be accused of the crimes charged in this case. On cross-examination, Ms.

Mundy admitted she had not known until recently that the Defendant still lived with his

parents. She also read the Defendant’s statement, and said it “was not the [Defendant] she

knows.”

Richard Brower had known the Defendant since he was a child. He testified that the

Defendant “wouldn’t hurt a fly.” The Defendant was not a violent person, and Mr. Brower’s

knowledge of the charges against the Defendant did not change his opinion. Mr. Brower was

not aware of the Defendant’s statement but said it would not change his opinion.

Daniel Watkins, the Defendant’s twenty-five-year-old brother, testified that the

Defendant had a reputation for peacefulness in his community and that the charged crimes

were totally out of character for him. On cross-examination, Mr. Watkins clarified that he

lived in the Project Circle residence with the Defendant, their mother, and Ms. Cannon, but

was not present during the events underlying this case.

The jury convicted the Defendant of one count of aggravated child abuse and one

count of reckless homicide. He now appeals.

Analysis

I. Denial of Motion to Suppress

The Defendant first contends that the trial court erred in denying his motion to

suppress the statement he gave at TBI headquarters because he was subjected to custodial

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interrogation without being given Miranda warnings. See Miranda, 384 U.S. 436, 444. “[A]

trial court’s findings of fact in a suppression hearing will be upheld unless the evidence

preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We review a

trial court’s applications of law to fact de novo, however. See State v. Walton, 41 S.W.3d

75, 81 (Tenn. 2001). The party prevailing at the suppression hearing is further “entitled to

the strongest legitimate view of the evidence adduced at the suppression hearing as well as

all reasonable and legitimate inferences that may be drawn from such evidence.” Odom, 928

S.W.2d at 23.

“[P]olice officers are only obligated to administer Miranda warnings prior to

‘custodial interrogation’ which has been defined as a ‘formal arrest or restraint on freedom

of movement of the degree associated with a formal arrest.’” State v. Bush, 942 S.W.2d 489,

499 (Tenn. 1997) (quoting Stansbury v. California, 511 U.S. 318, 323 (1994)). We need not

address whether the Defendant was in custody at TBI headquarters, however, because we

agree with the trial court’s holding that the Miranda warnings given to the Defendant earlier

that day were still in effect. Our supreme court has noted that “[a] valid waiver of Miranda

rights remains valid unless the circumstances change so seriously that the suspect’s answers

to interrogation are no longer voluntary or unless the suspect is no longer making a knowing

and intelligent waiver of his rights.” State v. Rogers, 188 S.W.3d 593, 606 (Tenn. 2006)

(citing Wyrick v. Fields, 459 U.S. 42, 47 (1982)). “Courts must examine the totality of the

circumstances to determine whether renewed warnings are required.” Id. (citing Wyrick, 459

U.S. at 48).

Factors to be considered when assessing the totality of the circumstances

include: 1) the amount of time that has passed since the waiver; 2) any change

in the identity of the interrogator, the location of the interview, or the subject

matter of the questioning; 3) any official reminder of the prior advisement; 4)

the suspect’s sophistication or past experience with law enforcement; and 5)

any indicia that the suspect subjectively understands and waives his rights.

Because of the infinite variety of circumstances a case may present, the list of

factors is by no means exhaustive. The weight to be accorded different factors

will vary depending on the particular facts of the case.

Id. (internal citations omitted).

Testimony at the Defendant’s suppression hearing established that he signed a

Miranda rights waiver form at 4:30 p.m on August 30. The interview at TBI headquarters

began at about 10:00 p.m., some five-and-one-half hours later. Chief Hopper was still

present, although Agent Watkins, who was not present during the Defendant’s first interview,

appears to have done most of the questioning. The interview location had also changed, but

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the subject matter had not. No one appears to have reminded the Defendant of his earlier

Miranda waiver. The trial court had little information regarding the Defendant’s

sophistication or prior experience with law enforcement. Finally, testimony established that

the Defendant was “chatty” and very willing to speak to police; the record contains no

indication that he resisted signing a Miranda waiver, speaking to Chief Hopper, being

interviewed at TBI headquarters, or consenting to a search of his residence.

Under the totality of the circumstances, we conclude that the Defendant’s previous

Miranda waiver was still in effect at TBI headquarters. Very little time had passed since he

initialed and signed a written waiver outlining each of his Miranda rights, and he was

questioned about exactly the same subject matter: the circumstances surrounding the victim’s

death. Multiple law enforcement agents also told him, throughout the day, that he was not

obligated to speak to them and could leave at any time. The Defendant took no action

indicating a desire to stop his interaction with law enforcement. This issue is without merit.

II. Admission of Autopsy Photographs

The Defendant next contends that the trial court erred in allowing the State to

introduce a number of photographs taken by Dr. Levy during his autopsy of the victim. Only

relevant evidence is admissible. See Tenn. R. Evid. 402. Tennessee Rules of Evidence 401

and 403 govern whether evidence is relevant. Trial courts have broad discretion in assessing

relevance, and we will not overturn their decisions absent an abuse of discretion below. State

v. Stinnet, 958 S.W.2d 329, 331 (Tenn. 1997), State v. Dubose, 953 S.W.2d 649, 653 (Tenn.

1997). The trial court’s exercise of discretion may not be reversed unless the court “applied

an incorrect legal standard, or reached a decision which is against logic or reasoning that

caused an injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn.

1997).

The Defendant objected to the introduction of the autopsy photographs as violative

of Rule 403, which states that “[a]lthough relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice . . . or needless

presentation of cumulative evidence.” Admission of evidence under Rule 403 is also

governed by an abuse of discretion standard. State v. Banks, 271 S.W.3d 90, 116 (Tenn.

2008). The Defendant contended at trial that some of the photographs were inflammatory

and tended to unfairly prejudice the jury against him, and that others were cumulative. On

appeal, he argues that all of the photographs “were of a gruesome character merely used to

inflame and prejudice the jury.”

The Defendant notes our holding that “[a]s a general rule, where medical testimony

adequately describes the degree or extent of an injury, gruesome and graphic photographs

should not be admitted.” State v. Collins, 986 S.W.2d 13, 21 (Tenn. Crim. App. 1998)

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(citing State v. Duncan, 698 S.W.2d 63, 69 (Tenn. 1985)). In Collins, the State introduced

photographs taken during the autopsy of a newborn child, purportedly for the purpose of

demonstrating that the child was a live birth and, thus, that the child’s mother could have

committed second degree murder by ending the child’s life. Id. These issues were not

contested, however, leading us to conclude that “the photographs were not probative at all.”

Id.

We cannot reach a similar conclusion in this case. The Defendant argued at trial that

the injuries he inflicted on the victim were wholly accidental. Although medical testimony

described those injuries in detail, our review shows that the admitted autopsy photographs

remained quite probative in their ability to give context to the State’s medical testimony,

depict the extent and relative positions of the victim’s injuries, and facilitate the jury’s

decision regarding their accidental or non-accidental character. The photographs are

distressing in that they show a deceased thirteen-month-old boy, but we cannot, as the

Defendant seems to suggest, simply hold them inadmissible based on that fact alone. Under

these circumstances, we conclude that the trial court did not abuse its discretion in admitting

the photographs under Rules 401-403. This issue is without merit.

III. Merger

The Defendant was originally charged with one count of first degree felony murder

and one count of aggravated child abuse. Had he been convicted of felony murder rather

than reckless homicide, his convictions would not have violated the double jeopardy

protections of the Fifth Amendment to the United States Constitution, which states that “[n]o

person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.”

See State v. Godsey, 60 S.W.3d 759, 778 (Tenn. 2000) (holding that aggravated child abuse

is not a lesser-included offense of felony murder and permitting convictions for both).

Although the Defendant does not raise the issue, we are required to determine whether the

trial court committed plain error by allowing the Defendant to be punished twice for the same

instance of criminal conduct.

This Court recently considered a similar issue in State v. Erica D. Goodner and Troy

Allen Goodner, No. E2007-01048-CCA-R3-CD, 2009 WL 605141 (Tenn. Crim. App.,

Knoxville, Mar. 10, 2009), perm. to appeal denied, (Tenn. Aug. 17, 2009), a case in which

the defendants were convicted of reckless aggravated assault and criminally negligent

homicide. In Goodner we applied the double jeopardy principles explicated by our supreme

court in State v. Denton, 938 S.W.2d 373 (1996):

To ensure that a defendant has not been twice punished for the same offense,

Denton requires reviewing courts to engage in the following:

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(1) a [Blockburger v. United States, 284 U.S. 299 (1932)] analysis of

the statutory offenses;

(2) an analysis, guided by the principles of [Duchac v. State, 505

S.W.2d 237, 239 (Tenn. 1973)], of the evidence used to prove the

offenses;

(3) a consideration of whether there were multiple victims or discrete

acts; and

(4) a comparison of the purposes of the respective statutes.

Goodner, 2009 WL 605141, at *30-31 (citing Denton, 938 S.W.2d at 381). “None of these

steps is determinative; rather the results of each must be weighed and considered in relation

to each other.” Denton, 938 S.W.2d at 381.

A. Blockburger

In Blockburger, the United States Supreme Court held that, in order to satisfy double

jeopardy protections,

[e]ach of the offenses created requires proof of a different element. The

applicable rule is 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.

Blockburger, 284 U.S. at 304. We therefore must compare the elements of reckless homicide

and aggravated child abuse.

Reckless homicide is “a reckless killing of another.” Tenn. Code Ann. § 39-13-

215(a). Recklessness refers to a person who is

aware of but consciously disregards a substantial and unjustifiable risk that the

circumstances exist or the result will occur. The risk must be of such a nature

and degree that its disregard constitutes a gross deviation from the standard of

care that an ordinary person would exercise under all of the circumstances as

viewed from the accused person’s standpoint.

Tenn. Code Ann. § 39-11-302(c). A person commits aggravated child abuse, as applied to

the facts of this case, who “commits child abuse . . . and: (1) the act of abuse . . . results in

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serious bodily injury to the child.” Tenn. Code Ann. § 39-15-402(a). A person commits

simple child abuse who “knowingly, other than by accidental means, treats a child under

eighteen (18) years of age in such a manner as to inflict injury.”

Reckless homicide thus requires a death, whereas aggravated child abuse does not.

Aggravated child abuse requires knowing infliction of injury, whereas reckless homicide

does not. The Defendant’s convictions therefore do not violate double jeopardy protections

under the Blockburger test.

B. Duchac

The Duchac “same evidence” test states that

[a] defendant has been in jeopardy if on the first charge he could have been

convicted of the offense charged in the second proceeding. One test of identity

of offenses is whether the same evidence is required to prove them. If the same

evidence is not required, then the fact that both charges relate to, and grow out

of, one transaction, does not make a single offense where two are defined by

the statutes. If there was one act, one intent, and one volition, and the

defendant has been tried on a charge based on that act, intent, and volition, no

subsequent charge can be based thereon, but there is no identity of offenses if

on the trial of one offense proof of some fact is required that is not necessary

to be proved in the trial of the other, although some of the same acts may

necessarily be proved in the trial of each.

Duchac, 505 S.W.2d at 239 (quoting 21 Am. Jur. 2d Criminal Law, § 82).

The Goodner defendants were each convicted of one count of reckless aggravated

assault and one count of criminally negligent homicide arising from the violent death of a

nineteen-month-old child. The evidence in Goodner encompassed only one instance of

violent conduct toward the victim therein; the Goodner victim was then taken to the hospital,

where he died shortly thereafter. As such, both the facts and conviction offenses at issue in

Goodner bear a striking similarity to those at issue in the instant case.

A reckless homicide conviction does not, of course, rely on exactly the “same

evidence” as an aggravated child abuse conviction because the former requires evidence that

the victim died. The evidence supporting the Defendant’s convictions is identical, however,

as it relates to the Defendant’s criminal conduct: both of his convictions rest on the same act,

namely the impact he caused between the victim’s head and the stairway wall in his

residence. As in Goodner, we hold that this constitutes the same evidence and, thus, violates

principles of double jeopardy.

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C. Multiple Victims and Legislative Purpose

Our application of the “same evidence” test above obviously indicates that the

Defendant was not charged with criminal conduct against multiple victims, and was charged

as a result of one, discrete act, thus violating the third Denton double jeopardy factor. As to

the fourth factor, our reasoning in Goodner again holds true here: “we recognize that the

purpose behind both statutes is to protect people from assaultive-type conduct.” 2009 WL

605141, at *32.

D. Plain Error

Based on the analysis above, we conclude that the Defendant has received multiple

punishments for the same act, in violation of the Fifth Amendment. The Defendant has

waived the merger issue by failing to raise it at trial or in his appellate brief. See Tenn. R.

App. P. 36(a) (stating that “[n]othing in this rule shall be construed as requiring relief be

granted to a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error”). We must

consider, however, whether the Defendant has established plain error. See Tenn. R. App. P.

52(b). Plain error requires that five factors be established: (1) “the record must clearly

establish what happened in the trial court”; (2) “a clear and unequivocal rule of law must

have been breached”; (3) “a substantial right of the accused must have been adversely

affected”; (4) “the accused did not waive the issue for tactical reasons”; and (5)

“consideration of the error is necessary to do substantial justice.” State v. Adkisson, 899

S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).

As to factor (1), the record in this case clearly establishes events in the trial court. As

to factors (2) and (3), we conclude that our supreme court’s interpretation of the Fifth

Amendment was breached, adversely affecting a substantial right of the Defendant. See

Adkisson, 899 S.W.2d at 639 (noting that a “substantial right” is a right of “fundamental

proportions in the indictment process, a right to the proof of every element of the offense,

and . . . constitutional in nature.”). We see no reason why the Defendant would have waived

the issue for tactical reasons, fulfilling factor (4). Finally, under factor (5), we conclude that

consideration of a double jeopardy violation is necessary to do substantial justice.

“‘Where commission of one crime necessarily involves commission of the second, the

offense so involved is said to be merged in the offense of which it is a part . . . . [T]he

doctrine of merger does not apply where the offenses are separate and distinct, but only

where the identical criminal acts constitute both offenses.’” Goodner, 2009 WL 605141, at

*32 (quoting 21 Am. Jur. 2d Criminal Law, § 21 (citations omitted)). We accordingly

conclude that the Defendant’s conviction for reckless homicide must be merged into his

conviction for aggravated child abuse.

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IV. Sufficiency of the Evidence

The Defendant next contends that the State presented evidence insufficient to convict

him of aggravated child abuse. He does not present argument challenging the sufficiency of

the evidence that he committed reckless homicide. Tennessee Rule of Appellate Procedure

13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier of fact of

guilt beyond a reasonable doubt.” A convicted criminal defendant who challenges the

sufficiency of the evidence on appeal bears the burden of demonstrating why the evidence

is insufficient to support the verdict, because a verdict of guilt destroys the presumption of

innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237

(Tenn. 2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s

challenge to the sufficiency of the evidence if, after considering the evidence in a light most

favorable to the prosecution, we determine that any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.

307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all

reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35

S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the

testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the

prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions

about the credibility of witnesses, the weight and value of the evidence, as well as all factual

issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh

or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor

will this Court substitute its own inferences drawn from circumstantial evidence for those

drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

Again, a person commits aggravated child abuse, as applied to the facts of this case,

who “commits child abuse . . . and: (1) the act of abuse . . . results in serious bodily injury

to the child.” Tenn. Code Ann. § 39-15-402(a). A person commits simple child abuse who

“knowingly, other than by accidental means, treats a child under eighteen (18) years of age

in such a manner as to inflict injury.” “A person acts knowingly with respect to a result of

the person’s conduct when the person is aware that the conduct is reasonably certain to cause

the result.” Tenn. Code Ann. § 39-11-302(b).

The Defendant argues this issue in his brief as if the statement he made at TBI

headquarters contained only an admission to accidentally hitting the victim’s head on a

handrail after reaching over a baby gate to lift him up. Having endeavored to read the

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Defendant’s full statement, however, we point out the sentences following that admission:

Even after [the victim] hit his head on the handrail he wouldn’t stop crying.

I lost my temper and I hit his head on the wall opposite of the handrail. I hit

his head against the corner of the wall on the opposite side of the handrail. I

hit his head against the wall hard.

In addition, three medical experts testified that their examinations of the victim led

to the belief that the victim’s injuries were probably not accidental. This evidence was

sufficient to allow any rational jury to conclude that the Defendant, having lost his temper,

non-accidentally hit the victim’s head against a wall. Any rational jury could also have

concluded that the Defendant was aware that such an impact was reasonably certain to cause

serious bodily injury to a thirteen-month-old child. This issue is without merit.

IV. Sentencing

The Defendant argues that the trial court erred in its sentencing determination. The

State concedes sentencing error and agrees a remand is necessary. Before a trial court

imposes a sentence upon a convicted criminal defendant, it must consider (a) the evidence

adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles

of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics

of the criminal conduct involved; (e) evidence and information offered by the parties on the

enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-

113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s

own behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70

S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate review, the trial court is required to

place on the record its reasons for imposing the specific sentence, including the identification

of the mitigating and enhancement factors found, the specific facts supporting each

enhancement factor found, and the method by which the mitigating and enhancement factors

have been evaluated and balanced in determining the sentence. See State v. Samuels, 44

S.W.3d 489, 492 (Tenn. 2001).

Upon a challenge to the sentence imposed, this Court has a duty to conduct a de novo

review of the sentence with a presumption that the determinations made by the trial court are

correct. See Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned

upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and that the trial

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court’s findings of fact are adequately supported by the record, then the presumption is

applicable, and we may not modify the sentence even if we would have preferred a different

result. See State v. Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991). We will uphold

the sentence imposed by the trial court if (1) the sentence complies with the purposes and

principles of the 1989 Sentencing Act and (2) the trial court’s findings are adequately

supported by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden

of showing that a sentence is improper is upon the appealing party. See Tenn. Code Ann. §

40-35-401, Sentencing Commission Comments; Arnett, 49 S.W.3d at 257.

A. Length of Sentence

The Tennessee legislature recently amended several provisions of the Criminal

Sentencing Reform Act of 1989, those changes becoming effective June 7, 2005. The

Defendant’s conduct occurred prior to that date, and he was sentenced after it. As such, the

Defendant could have elected to be sentenced under the revised Act by executing a waiver

of his ex post facto protections. See Tenn. Pub. Acts ch. 353, § 18. He did not execute such

a waiver, however, and therefore should have been sentenced under the 2003 codification of

the Act. That codification violated the United States Supreme Court’s requirement that,

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a

reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The statutory

maximum “is not the maximum sentence a judge may impose after finding additional facts,

but the maximum he may impose without any additional findings.” Blakely v. Washington,

542 U.S. 296, 305-06 (2004). As such, a trial judge may impose a sentence that exceeds the

presumptive sentence based only on the fact of a defendant’s prior conviction(s) or on other

enhancement factors found by the jury or admitted by a defendant. Id. at 301-04.

The Defendant’s sentencing hearing occurred on March 28, 2008. In sentencing the

Defendant, the trial court appears to have proceeded under the 2005 codification of the

Sentencing Act, noting that it planned to “[use] enhancement factors in an advisory fashion.”

The court quoted with some approval the State’s suggested enhancement factors, including

the victim’s age and particular vulnerability. See Tenn. Code Ann. § 40-35-114(4). The

court, however, declined to make specific factual findings, sentencing the Defendant to

twenty-five years for aggravated child abuse “considering these enhancement factors that the

State has outlined and all the facts that I’ve heard in the case.” Because the court should

have sentenced the Defendant under the old Act, using only prior convictions and facts

“submitted to a jury and proved beyond a reasonable doubt” as enhancement factors, see

Apprendi, 530 U.S. at 490, we vacate the sentences imposed and remand for resentencing on

the Defendant’s remaining conviction for aggravated child abuse.

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B. Consecutive Sentencing

The trial court sentenced the Defendant to serve his sentence for reckless homicide

consecutively to his sentence for aggravated child abuse. The trial court did so despite its

belief that “our consecutive sentencing statute . . . is unconstitutional as written . . . because

it tells a judge to make specific finds of fact beyond that which a jury could have heard,”

thus, in the trial court’s opinion, violating Apprendi and Blakely. The trial court instead

relied on the “inherent power of the court to run sentences consecutively.” Our decision that

the Defendant’s reckless homicide conviction must be merged into his aggravated child

abuse conviction obviates the need for the trial court to reconsider the issue of consecutive

sentencing on remand. We simply wish to note that, shortly after the sentencing hearing in

this case, our supreme court held that our consecutive sentencing statute, Tennessee Code

Annotated section 40-35-115, does not violate Apprendi or Blakely. See State v. Allen, 259

S.W.3d 671 (Tenn. 2008).

Conclusion

Based on the foregoing authorities and reasoning, we conclude that the Defendant’s

reckless homicide conviction must be merged into his aggravated child abuse conviction.

We also conclude that this case must be remanded for resentencing on the aggravated child

abuse conviction.

_________________________________

DAVID H. WELLES, JUDGE

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