State of Tennessee v. Marktrail Lee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 14, 2009

STATE OF TENNESSEE v. MARKTRAIL LEE

Direct Appeal from the Criminal Court for Shelby County

No. 07-03893 W. Mark Ward, Judge

No. W2008-02278-CCA-R3-CD - Filed August 21, 2009

The defendant, Marktrail Lee, was convicted of aggravated child abuse and aggravated child abuse

by neglect. The trial court merged the two convictions and sentenced the defendant as a Range I

offender to twenty-three years at 100 percent. On appeal, the defendant asserts that the evidence is

insufficient to support his convictions and that the court erred in sentencing. Following our review,

we affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

NORMA MCGEE OGLE , JJ., joined.

Robert Wilson Jones, District Public Defender; Barry W. Kuhn (on appeal) and Amy Mayne and

Sherrye Brown (at trial), Assistant Public Defenders, for the appellant, Marktrail Lee.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Marianne Bell and Robert Carter, Assistant

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

OPINION

FACTS

The defendant was convicted of seriously and permanently injuring his son, who was less

than three months old at the time.

The victim’s mother, Erica Warren, testified that she became pregnant with the victim

shortly after meeting the defendant. They moved into the home of the defendant’s parents, where

they had their own bedroom. The defendant’s cousin, Marilyn Strong, and her three children also

lived in the home. Warren cared for the victim during the day, and the defendant did so at night,

both feeding the victim and changing his diapers. Warren said that the defendant sometimes mocked

the victim when he cried and once accused the victim of purposefully urinating on him.

Warren said that on February 7, 2007, the victim acted normal and she last fed him at 10:00

p.m. She went to bed between 11:00 p.m. and midnight, sleeping on the side closest to the wall, with

the defendant on the side closest to the victim’s crib. Warren awoke at approximately 4:00 a.m. the

following morning and saw that the victim was not in his crib. As she went into the living room to

look for the victim, she saw emergency vehicles leaving. The defendant, who was in the kitchen

smoking a cigarette, told her that he had called emergency services because the victim had milk

flowing out of his nose and was barely breathing. Warren called her sister for transportation to the

hospital, and the defendant joined them. As soon as they arrived at the emergency room, nurses

began questioning them about the victim’s injuries. Warren said she and the defendant were arrested

at the hospital, and she later gave a statement to the police and was released.

Describing the victim’s appearance when she saw him at the hospital, Warren said that he

had bruises on his forehead, his hand was swollen and purple, and a cast was being placed on his leg.

The victim was not breathing on his own and was unconscious. A shunt was subsequently placed

in his brain to remove fluid and blood. Warren said that, as a result of the victim’s injuries, he will

have to take medication for seizures and muscle spasms for the rest of his life and that he requires

physical therapy every day.

Marilyn Strong testified that in February 2007 she and her three children were living in the

home of her cousin, Patricia Johnson, who was the defendant’s mother. On February 7, 2007, Strong

got off work at 11:00 p.m., picked up her children from a babysitter, and saw no one up when she

arrived home between 12:30 and 1:00 a.m. Strong said that Johnson and her husband, who were

over-the-road truck drivers, were not home at the time.

Beverly Johnson, Warren’s sister, testified that she drove Warren and the defendant to the

hospital on the morning of February 8, 2007. The defendant did not say anything to her about what

had happened.

Vickie Mabon-Partee testified that she was employed by the City of Memphis Fire

Department Dispatch and received a 9-1-1 call from the victim’s residence on February 8, 2007 at

3:54 a.m. The man with whom she spoke was calm and relaxed and told her that the victim was

having difficulty breathing and was not alert. John Sanders, a paramedic with the Memphis Fire

Department, testified that he was dispatched to the victim’s home at 3:54 a.m., arriving at 4:05 a.m.

He spoke with a man who was carrying a garbage can from the residence, who indicated that the

problem was inside the house. Sanders entered the house and found the victim, gasping for breath,

on the couch in the living room. He said that the victim was taking fewer than ten breaths a minute

and that his breathing was agonal. Sanders observed that the victim had facial trauma and bruises

to the upper body. He saw no bottle or milk near the victim and said the victim was posturing, as

might be caused by a head injury. Otherwise, the victim was not responsive to Sanders’

examination. Sanders offered to allow the man with whom he had first spoken ride with the victim

to the hospital, but the man declined to do so.

Otice Spears, Jr., a paramedic with the Memphis Fire Department, testified that his

ambulance arrived on the scene at 4:10 a.m., and he observed that the defendant was quiet and calm

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in a nonchalant sort of way. As the victim was being transported to the hospital, Spears noticed a

bruise on the right side of the victim’s face and skin irritation on his hands and arms.

Dr. Frederick Boop testified that he was chief of pediatric neurosurgery at Le Bonheur

Children’s Hospital and was on duty when the victim arrived. He said that the victim was basically

comatose and experiencing agonal respirations, which was a breathing pattern of patients close to

death. The victim’s pupils were small and sluggishly reactive, and he had burns on the back of his

right hand, a broken right leg, and bruises on the right side of his neck around the collarbone. CT

scans showed that the victim had sustained a severe brain injury within two to four hours of his

arrival at the emergency room. The victim’s brain was bleeding into his skull and into the dural

space separating the two hemispheres of the brain. The effect of this was that the victim’s brain was

dying. Although the victim was given medication, irreversible damage already had occurred. CT

scans taken four days later showed that the victim’s brain had been deprived of oxygen for a

significant period of time. Dr. Boop testified that the lack of oxygen could have been caused by

strangulation, severe shaking, or a combination of these. He said that the victim was dying when

he reached the emergency room.

Dr. Boop said that, as the victim’s brain died, fluid began collecting in his skull, which put

additional stress on the living tissue that remained. A shunt was installed to drain the excess fluid

from the victim’s brain into his stomach. As the result of his injuries, the victim will be able to eat,

breathe, and smile but never will be able to talk, see, or understand what he hears. Only his brain

stem now functions. Dr. Boop opined that the victim will require around-the-clock care for the rest

of his life.

Lieutenant Evertina Halfacre with the Memphis Police Department testified that in February

2007 she was assigned to the Child Abuse Unit. She was dispatched to Le Bonheur Children’s

Hospital on February 8, 2007, and observed that the victim had a broken leg, swelling and burns to

his hand, bruises on his face, and bruises in the shape of fingers around his neck. Later that day, she

interviewed the victim’s mother and the defendant after advising them of their rights. The defendant

agreed to give a statement which was tape-recorded. The defendant told her that he fed the victim,

went to use the bathroom, and, upon his return, found the victim with milk coming from his nose.

He said he sprinkled water on the victim’s hand and noticed that the victim’s leg was swelling. The

defendant admitted that he had been in total control of the victim during the time the injuries

occurred but denied that he inflicted the injuries.

Dr. Karen Lakin, a pediatrician and medical director for the Child Assessment Program at

Le Bonheur Children’s Hospital, testified that the victim was in extremely critical condition when

he was admitted to the hospital on February 8, 2007. The victim had second-degree burns on his

right hand, significant bruising on his face and neck, and obvious swelling. Dr. Lakin said that the

bruises on the victim’s neck were “[m]ost likely” caused by fingertips and opined that the burns on

his hand were caused by a hot liquid. The victim had bleeding over both lobes of the brain and

behind his eyes, as well as a broken right femur which would have required a significant amount of

force to fracture. She said the victim was hospitalized for nineteen days, eight of which he was on

a ventilator. In Dr. Lakin’s opinion, the victim’s injuries were not consistent with accidental trauma

and the “combination of injuries is such that and the severity is such that it would have to take very

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violent actions.” As a result of the victim’s injuries, his motor and cognitive capabilities are severely

limited and he is blind.

The defendant did not testify at trial and, otherwise, presented no evidence.

ANALYSIS

I. Sufficiency of the Evidence

On appeal, the defendant argues that the evidence was not sufficient to sustain his conviction

for aggravated child abuse. As we will explain, we disagree.

In considering this issue, we apply the familiar rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court 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, 99 S. Ct. 2781, 2789 (1979); see also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992);

State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P. 13(e)

(“Findings 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.”). All questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d

620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory

of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the

rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their demeanor

on the stand. Thus the trial judge and jury are the primary instrumentality of justice

to determine the weight and credibility to be given to the testimony of witnesses. In

the trial forum alone is there human atmosphere and the totality of the evidence

cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,

370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted

defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

Tennessee Code Annotated section 39-15-402 sets out the elements of aggravated child

abuse:

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(a) A person commits the offense of aggravated child abuse or aggravated

child neglect or endangerment, who commits the offense of child abuse, as defined

in § 39-15-401(a), or who commits the offense of child neglect or endangerment, as

defined in § 39-15-401(b), and:

(1) The act of abuse or neglect results in serious bodily injury to the child;

(2) The act of neglect or endangerment results in serious bodily injury to the

child;

(3) A deadly weapon, dangerous instrumentality or controlled substance is

used to accomplish the act of abuse, neglect or endangerment; or

(4) The act of abuse, neglect or endangerment was especially heinous,

atrocious or cruel, or involved the infliction of torture to the victim.

(b) A violation of this section is a Class B felony; provided, however, that,

if the abused, neglected or endangered child is eight (8) years of age or less, or is

vulnerable because the victim is mentally defective, mentally incapacitated or suffers

from a physical disability, the penalty is a Class A felony.

The evidence in this matter, taken in the light most favorable to the State, showed that as the

victim’s mother put him to bed on February 7, 2007, he was in normal health. The other persons in

the house were the defendant, who was to care for the victim during the night, and Marilyn Strong

and her three children, all of whom were sleeping. Despite the victim’s obvious physical problems,

the defendant did not awaken any of the other persons in the house for assistance. When the victim

arrived at the hospital, he had burns on the back of his right hand, bruises around his collarbone, and

a broken right leg. CT scans showed that the victim had sustained a severe brain injury two to four

hours prior to his arrival at the emergency room. Dr. Boop testified that the victim’s injuries were

consistent with strangulation, severe shaking, or both. As a result of these injuries, the victim never

will be able to talk, see, or understand what he hears. Only his brain stem functions.

By its verdict, it is apparent that the jury accredited the testimony of the State’s witnesses,

concluding that the defendant was responsible for the injuries to the victim, and the record supports

this determination.

II. Sentencing

The defendant argues that the trial court used inapplicable enhancement factors in sentencing

him. The record shows that the trial court carefully considered the sentencing factors:

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The defendant is before me convicted of aggravated child abuse in two

counts. These are A felonies sentencing as a Range One offender because of his lack

of prior felony convictions. The sentence range is in between fifteen and twenty-five

years.

As far as enhancement factors are concerned, I do find the following

enhancement factors:

“No. 1, the defendant has a previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the

appropriate range.”

The defendant does have one prior misdemeanor conviction, and I will place

weight upon this factor, but I will not place great weight on . . . this factor.

“No. 4, the victim of the offense was particularly vulnerable because

of age or physical or mental disability.”

In this situation, the child was two months and nine days old, which I find to

be extremely young, and by virtue of this age the child was incapable of resisting the

various attacks. Also incapable of summoning help, and obviously, could not have

testified in this matter.

I think all three of those are applicable in this particular case, and I also think

that this particular aggravator is appropriate for this offense. There’s an unreported,

Singo v. State, . . . 2007 Westlaw 1836050 Court of Criminal Appeals from 2007.

It stands for the proposition that the fact that an offense can only be committed

against a child does not preclude application of this particular factor.

And I think it is appropriate to the offense, and I also think that the defendant

took advantage of this extremely young age in the course of the various attacks that

were committed against this child. So I think this is an applicable enhancement

factor.

I also find that . . . the next two enhancement factors are – this is Factor No.

5, exceptional cruelty[,] and No. 6[,] . . . particularly great personal injuries. These

enhancement factors have caused a great deal of concern in their application in the

appellate courts, and obviously, from a lay person’s standpoint, I find that both of

these are applicable. The defendant did treat the victim with exceptional cruelty, and

I do find that the personal injuries were particularly great.

On first blush of reading of those, those seem to be clearly applicable in the

case. As I was mentioning though, these courts have had a great deal of difficulty

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applying these particular enhancement factors because of concepts, number one, are

these enhancement factors inherent in the offense. Are they – there’s one thing to

consider[,] are they inherent in all of these aggravated child abuse cases[?]

And the second thing is are they essential elements of these aggravated child

abuse cases, and they’ve caused a great deal of concern in their applications so I need

to be extremely careful in these. I am going to apply No. 5:

“The defendant treated or allowed the victim to be treated with

exceptional cruelty during the commission of the offense.”

And for this factor to appl[y], I must find a culpability distinct from and

appreciably greater than that incident to the crime, and I am cognizant that the crime

for which the defendant has committed requires serious bodily injury.

....

A number of cases have seemed to apply this, but – and to apply it there must

be something over and above the serious bodily injury that’s required, and you can

see how theoretically speaking you can treat someone in an exceptional[ly] cruel way

or you can commit serious bodily injury without treating someone . . . in an

exceptional[ly] cruel way. These are not synonymous factors at all.

And in this particular case we have I think ample evidence of treating this

child in an exceptional[ly] cruel manner, and I’m not just talking about the multiple

injuries inflicted or the seriousness of those injuries, and I’m not just talking about

permanent brain injuries or the fracture to the leg, or the burns. We have multiple

injuries that’s also a factor, but not just that alone.

We have this gentleman who is taking the garbage out when the emergency

personnel arrive at the scene instead of being by the child’s side, and we have a

gentleman who had an opportunity to wake the [victim’s] mother and another lady

who was in the house to help render assistance and didn’t take that opportunity.

And we have a gentleman who, according to the proof, did not do anything

but stand there when the emergency personnel were trying to treat the victim and

chose not, even though requested to do so, to ride with the child to the hospital. I

think we have a number of things here in this case that make this exceptional cruelty

over and above just the fact that serious bodily injury is needed.

I do find a culpability distinct from and appreciably greater than that incident

to the crime. So I’m going to find that particular enhancement factor.

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....

The [S]tate has also asked me to consider and apply:

“That the defendant abused a position of public or private trust.”

And I think that’s clear in this particular case and it’s not in dispute that[] this

was a position of private trust that was abused in this family relationship that

exi[s]ted in this situation.

....

When talking in terms of confinement, I should apply confinement when it’s

necessary to avoid depreciating the seriousness of the offense.

These are some of the factors that I’ve taken into consideration of this

particular matter. I do find the presence in this case of one, two, three, four

enhancement factors. I don’t find any mitigating factors applicable. I will note that

the defendant has no record of prior violent criminal activities so I will place weight

on that as a non-statutory mitigating factor.

I don’t place a great deal of weight on Factor 1[,] his previous history of

criminal convictions. I do place a great deal of weight on Factor No. 4, “The victim

of the offense was particularly vulnerable because of age,” and on Factor No. 5, the

exceptional cruelty committed in the course of this.

All these factors considered, I’m going to sentence the defendant to a term of

imprisonment in the Tennessee Department of Correction[] twenty-three years.

....

. . . And we’re going to merge those. I’m going to sentence him to twenty-

three years on each, but I’m going to merge those two convictions together.

....

In determining this sentence, I have considered the evidence presented at trial

and this sentencing hearing, the pre-sentence report, which I’ve made an exhibit, the

principles of sentencing, and the arguments made as to sentencing alternatives, the

nature and characteristics of the criminal conduct involved, the evidence and

information offered by the parties on mitigating and enhancement factors, any

statistical information provided by the AOC as to sentencing practices, any statement

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that the defendant made in his own behalf and his potential for rehabilitation and

treatment.

And I guess . . . if he had any significant record at all, he’d be getting the

twenty-five years, but I think all things considered, I’ll give him the twenty-three, and

we’ll set this for a motion for a new trial[.]

In sentencing the defendant, the trial court applied factor (1), the defendant had a previous

history of criminal convictions, which was not given great weight; factor (4), the victim was

particularly vulnerable because of age; factor (5), the defendant treated the victim with exceptional

cruelty; and factor (14), the defendant abused a position of trust. See Tenn. Code Ann. § 40-35-

114(1), (4), (5), (14).

As we will explain, we find that each of these factors was applicable. The defendant does

not dispute application of factor (1), which, as we have said, the court gave little weight.

As for factor (4), our supreme court explained in State v. Adams, 864 S.W.2d 31, 35 (Tenn.

1993), that “[the child’s age] alone does not prohibit the use of the vulnerability enhancement factor.

The reason is that the relevant inquiry is not simply whether the victim is under the age of thirteen,

but instead whether the victim was particularly vulnerable because of age or physical or mental

disability.” In this matter, the victim was less than three months old. Accordingly, we conclude that

the factor was applicable.

As to factor (5), exceptional cruelty, this court has upheld application of this factor in an

aggravated child abuse case, State v. Hodges, 7 S.W.3d 609, 631 (Tenn. Crim. App. 1998). In

making the determination, this court relied upon the conclusion of our supreme court that “the

element of ‘serious bodily injury,’ as included in the offense of especially aggravated robbery, does

not necessarily constitute ‘exceptional cruelty.’” Id. (quoting State v. Poole, 945 S.W.2d 93, 98

(Tenn. 1997)). Additionally, Poole explained 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 charged offense. 945 S.W.2d at 98. In this matter, the victim was shaken, strangled,

and burned; and, as the trial court explained, the defendant “did not do anything but stand there when

the emergency personnel were trying to treat the victim and chose not, even though requested to do

so, to ride with the child to the hospital.” We agree with the trial court that this factor was applicable.

As for enhancement factor (14), the defendant abused a position of trust, our supreme court

concluded in State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999), that “[w]here the adult perpetrator

and minor victim are members of the same household, the adult occupies a position of ‘presumptive

private trust’ with respect to the minor.” We conclude that the trial court properly applied this factor

in sentencing the defendant.

CONCLUSION

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Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.

___________________________________

ALAN E. GLENN, JUDGE

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