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

10/30/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 14, 2024 Session

STATE OF TENNESSEE v. PHILLIP JEROME GARDNER, III &

LATONIA MARIA GARDNER

Appeal from the Criminal Court for Davidson County

No. 2019-C-1895 Walter C. Kurtz, Judge

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No. M2022-01131-CCA-R3-CD

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In a joint trial, a Davidson County jury convicted Phillip Jerome Gardner, III, and Latonia

Maria Gardner of felony murder committed in the perpetration of aggravated child neglect

and three counts of aggravated child neglect. Additionally, Latonia Gardner was convicted

of felony murder committed in the perpetration of aggravated child abuse and one count of

aggravated child abuse. Each was sentenced to life plus seventeen years. On appeal, the

Defendants raise separate issues. Ms. Gardner argues that the evidence is insufficient to

support her convictions. She also alleges that the trial court erred when it failed to sever

offenses; improperly admitted expert testimony and video evidence; gave a misleading

supplemental jury instruction; and imposed consecutive sentencing. Mr. Gardner similarly

challenges the sufficiency of the evidence supporting his convictions. He also argues that

the trial court erred when it took under advisement his motion for a judgment of acquittal;

failed to sever the Defendants; failed to exclude evidence of the victim’s prior injuries;

failed to instruct the jury on his alibi defense; and gave the same misleading supplemental

jury instruction. Upon review, the court affirms Ms. Gardner’s conviction and life sentence

for felony murder in perpetration of aggravated child abuse. However, the court agrees

with the parties that the jury was improperly instructed on one aggravated child neglect

count, and we remand that count and its associated felony murder count for a new trial as

to both Defendants. With the parties’ agreement, we also reverse the order for consecutive

sentences in Ms. Gardner’s cases and remand for the trial court to consider the factors

outlined in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Finally, we remand both cases

for entry of corrected judgments of conviction. In all other respects, we respectfully affirm

the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right;

Judgments of the Criminal Court Affirmed in Part, Reversed in Part;

Cases Remanded

TOM GREENHOLTZ, J., delivered the opinion of the court, in which J. ROSS DYER and

KYLE A. HIXSON, JJ., joined.

Phillip Jerome Gardner, III, Pro Se (on appeal), Nashville, Tennessee, and Shaw

Cunningham (at trial), Nashville, Tennessee, for the appellant, Phillip Jerome Gardner, III.

Emma Rae Tennent and Chris Street-Razbadouski (on appeal), Nashville, Tennessee, and

William Allensworth and Jon Wing (at trial), Nashville, Tennessee, for the appellant,

Latonia Marie Gardner.

Jonathan Skrmetti, Attorney General and Reporter; Lacy E. Wilber, Senior Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman and

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

OPINION

FACTUAL BACKGROUND

This case involves a four-year-old child, J.H.,1 who died while in the Defendants’

care. Latonia Gardner was J.H.’s stepmother, and her codefendant, Phillip Jerome Gardner,

was J.H.’s biological father. J.H.’s biological mother had asked the Defendants to care for

J.H. during the holiday season while she worked as a postal carrier for the United States

Postal Service in Ohio. J.H.’s autopsy revealed that he had numerous scars, burn marks,

thermal burns, broken bones, and brain injuries.

A. THE EVENTS LEADING TO DECEMBER 7, 2016

On November 27, 2016, Officer Rico Jones with the Goodlettsville Police

Department received a call from a friend of the Defendants’ teenage daughter, directing

him to the Defendants’ residence. When he arrived at their residence, the Defendants’

teenage daughter met Officer Jones outside and showed him a video that showed a mark

under J.H.’s left eye and marks on his back. Officer Jones then went into the residence

with his supervisor. The Defendants and two other children were inside.

The officers asked the Defendants about J.H.’s injuries, and they told the officers

that he had fallen into the bathtub and injured his eye. As for an explanation for the marks

on his back, the Defendants told the officers that he hurt his back while he was playing

1

It is the policy of this court to identify minor victims by only their initials.

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outside. Officers then asked J.H. what had happened, and he corroborated the Defendants’

statements. The officers looked at J.H.’s back and saw two to three marks. Officer Jones

observed no other injuries, although he did not look at J.H.’s stomach or buttocks. The two

officers subsequently determined that further investigation was not necessary.

Ten days later, on December 7, 2016, Officers Charles Hausken and David Reid

with the Goodlettsville Police Department responded to a call of an unresponsive child in

possible cardiac arrest at the Defendants’ address. Upon their arrival, Ms. Gardner

answered the door screaming, and she pointed upstairs when one of the officers asked

where the child was. Officer Hausken entered the bathroom and saw J.H. lying on the floor

beside the bathtub with clear liquid in his ear, leading Officer Hausken to assume that he

had drowned.

J.H. did not have a pulse and was cold to the touch. Officer Hausken began

performing CPR. Every time he gave J.H. a breath, J.H. vomited into Officer Hausken’s

mouth. Officer Hausken spit the vomit into the bathtub and then continued CPR.

After paramedics took J.H. to the hospital, Officer Hausken asked Ms. Gardner what

had happened. Ms. Gardner told Officer Hausken that J.H. had started to vomit, so she

placed him over the side of the bathtub, and he subsequently went limp. Five days later,

on December 12, 2016, J.H. passed away.

B. DEPARTMENT OF CHILDREN ’S SERVICES AND LAW ENFORCEMENT

INVESTIGATION

After J.H. arrived at the hospital, the staff called the Department of Children’s

Services (“DCS”) to investigate his injuries. Moneshiuna Perry, an investigative

caseworker, responded and immediately went to J.H.’s hospital room, where he was

unresponsive and on a ventilator. Ms. Perry observed the injuries to J.H.’s body, noting

that his left eye was bruised and had scratches underneath it. She also observed that J.H.

had bruising on the left side of his chest and burns on his buttocks. Ms. Perry concluded

that these injuries were not accidental.

Ms. Perry then spoke with Mr. Gardner, who was calm and showed no emotion

throughout the interview. Mr. Gardner explained that J.H. had lived with him, Ms. Gardner,

and two other children since October 2016. Mr. Gardner also stated that he did not allow

his extended family in his home because they disliked Ms. Gardner.

Mr. Gardner stated that J.H. had been defecating on himself and having various

behavioral issues. Mr. Gardner told Ms. Perry that he punished J.H. by spanking him on

the buttocks with a belt. He further stated that he was frustrated with J.H.’s behavior, did

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not want to deal with him any longer, and would have driven J.H. back to his mother as

soon as possible if it were an option. Mr. Gardner told Ms. Perry that Ms. Gardner was

“good with the kids” and stayed home to care for them. Mr. Gardner had no issues with

how Ms. Gardner treated J.H.

When Ms. Perry asked about J.H.’s injuries, Mr. Gardner said that his wife told him

that J.H. had fallen once when he got out of the bathtub and fell again when she put him

on the toilet. Ms. Perry further asked Mr. Gardner about the burns on J.H.’s hands, and he

stated that he did not see the burns for two days because he worked. However, he then

elaborated by saying that when he saw the bandages on J.H.’s hands, Ms. Gardner told him

that J.H. was cleaning with bleach and had an allergic reaction. Mr. Gardner confirmed

that he did not take the victim for medical treatment at any point.

Ms. Perry then observed the other two children and found no marks or bruises. She

discovered that they were clean and well-kept, and when asked about discipline, the oldest

child stated that they did not get disciplined. However, she also indicated that J.H. would

get disciplined because Ms. Gardner was frustrated with him when he defecated on himself

and that Ms. Gardner would make J.H. clean up the feces. Ms. Gardner told this child that

the burns on J.H.’s hands were from bleach.

Next, Ms. Perry spoke to Ms. Gardner, who was unhappy that J.H. was living with

them. Ms. Gardner consistently told Mr. Gardner that J.H. needed to return to his mother

because he had several issues; in fact, they attempted to reach her, but she blocked their

calls. She also believed that J.H. was purposefully defecating on himself and acting out

because he missed his mother. She initially stated that J.H. had arrived at their house with

scratches on his back but then later claimed that they were from J.H. scratching his dry

skin.

As for J.H.’s injuries, Ms. Gardner claimed that the eye injury came from her placing

him on the toilet and him falling off. Ms. Gardner said that she had heard a noise in the

bathroom. She found J.H. in the bathtub and assumed the bruise on his forehead came

from him falling in the bathtub. As for the burns on his hands and buttocks, Ms. Gardner

claimed that she found J.H. cleaning the bathtub with bleach one day. However, she could

not confirm the specific type of cleaner he used.

When asked about the events on December 7, Ms. Gardner showed no emotion

while explaining that she had awoken J.H. from a nap and then took him to the bathroom,

where he started vomiting. She claimed that after vomiting, J.H.’s stomach “went limp,”

and she called 911.

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J.H.’s biological mother, LaShawna Hunter, arrived at the hospital, and she was

hysterical. Ms. Hunter told Ms. Perry that she had taken J.H. to a doctor in Ohio before he

came to Tennessee. Ms. Perry later contacted that doctor, who confirmed that there were

no concerns about abuse or neglect at that time.

Goodlettsville detectives specializing in child abuse cases interviewed both Mr. and

Ms. Gardner. Ms. Gardner told the officers the same stories that she had told Ms. Perry

but distinguished that J.H. had used a spray bottle to clean the bathtub the day he got the

burns on his hands and buttocks. One of the detectives then went into J.H.’s hospital room

and took photographs of his body. She noted that there was discoloration on his chest, his

head seemed enlarged, his hands had burns on them, his toes had blisters, he had marks on

his face, and various scars and marks were on his back, legs, and buttocks.

Detectives confirmed that Mr. Gardner clocked in for work at 1:34 p.m. on

December 7, 2016. Detectives also discovered that Mr. Gardner had spoken to family

members about wanting to cut off communication with J.H.’s biological mother, claiming

that J.H. would be depressed after speaking with her. Mr. Gardner then sent messages to

his family members, instructing them not to contact him or Ms. Gardner.

C. THE TRIAL

On August 13, 2019, a Davidson County grand jury issued a superseding indictment

charging Mr. and Ms. Gardner with one count of felony murder committed during the

perpetration of or attempt to perpetrate aggravated child abuse, one count of felony murder

committed during the perpetration of or attempt to perpetrate aggravated child neglect, one

count of aggravated child abuse resulting in serious bodily injury, and two counts of

aggravated child neglect.2 The trial started on March 21, 2022.

1. State’s Proof

At trial, the State presented testimony about J.H.’s physical condition from Ms.

Perry, Detective Vaughn, and nurse practitioner Danielle Knox. Nurse Knox worked for

the Child Abuse Response and Evaluation Team at Vanderbilt Children’s Hospital in 2016,

and the trial court qualified her as an expert in the field of pediatric child abuse. Nurse

2

The original indictment charged the Defendants with one count of felony murder in the

perpetration of aggravated child abuse. The superseding indictment also charged the Defendants with two

additional counts of aggravated child abuse and aggravated child neglect arising from the treatment of J.H.

during his time in their care. These counts were subsequently severed by the trial court and are not at issue

in this appeal.

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Knox completed a report on J.H.’s case. During her investigation, the Defendants told

Nurse Knox the same story about the prior injuries and December 7 that they had told the

others. Nurse Knox noted that she was “highly concerned” about J.H.’s injuries and

determined that many were unusual and not accidental.

Nurse Knox’s report included a burn team consult, during which an expert in burns

examined J.H. This consult noted that the various burns on J.H. were likely from different

methods, including chemical burns and cigarette burns, and were made at different times.

The report determined that the burns affected several layers of skin, including the layer that

involved the nerves, and J.H. would have been in pain.

Nurse Knox ultimately concluded that J.H.’s pain could have been lessened if he

had received medical attention for any of his injuries. Nurse Knox concluded that J.H.

would have been in pain and exhibiting physical symptoms for many of his injuries and

that a prudent caregiver would have sought medical treatment. Finally, Nurse Knox

concluded that “[t]he constellation of skin findings indicate[s] that [J.H.] has been a victim

of child abuse on multiple occasions.”

Ms. Hunter testified that she took J.H. to the Defendant’s house on September 28,

2016, and that the Defendants did not allow her to speak to J.H. the entire time he was in

their care. J.H. did not have any injuries before he visited the Defendants’ house, and

friends and family members testified that J.H. was a normal, happy child before his stay

with the Defendants.

The State also presented the testimony of Dr. Thomas Deering, the Deputy Medical

Examiner who performed J.H.’s autopsy, to offer an expert opinion on the cause and

manner of J.H.’s death. As part of that opinion, he testified that the cause of death was

hypoxic/anoxic encephalopathy, or the brain not receiving sufficient oxygen following a

blunt force injury to the head. Dr. Deering also testified that a contributing cause of death

was battered child syndrome or battered child appearance, which he characterized as a

series or pattern of injuries that were indicative of child abuse because of the type and

unexplained nature of the injuries suffered by the child. He further opined that the manner

of death was a homicide, and he offered this testimony as part of a larger opinion that the

December 7 injury suffered by J.H. was not the result of an accident but was “probably

inflicted.”

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2. Defense Proof

Ms. Gardner testified on her own behalf. She stated that she did not abuse J.H. in

any way and loved him as her own son. She also said that J.H. had several marks on him

when he arrived at their house in September and that she wanted Mr. Gardner to confront

Ms. Hunter about them. She did not report the marks or take J.H. to the doctor because the

marks were “old” and Mr. Gardner assured her that J.H. was “never going back.” Ms.

Gardner eventually admitted to spanking J.H. with a thin belt and “pop[ping]” him on his

hands.

Ms. Gardner made J.H. clean his own clothes if he defecated on himself. She

testified that she never got frustrated with J.H. and said that if she spanked him, it only

made him angrier. To explain his injuries and scars, Ms. Gardner described that J.H. wore

a diaper, picked and scratched at his wounds, scratched his face with a zipper, cleaned the

bathroom with bleach when she was not watching, was tackled while playing, and fell in

the bathroom several times. Despite J.H.’s injuries being “dramatic looking,” she did not

seek medical care because J.H. never said he was in pain, and she knew how to take care

of children.

Ms. Gardner testified that two days before she called 911 about J.H., he began to act

“loopy,” slurring his words and walking strangely. According to Ms. Gardner, J.H. acted

like nothing had happened the next morning, so she did not seek medical help. As for the

events on December 7, Ms. Gardner testified that J.H. was complaining about his head

hurting and did not want to get out of bed when instructed. When she took him to the

bathroom, J.H. vomited twice and then became unresponsive. Ms. Gardner then called

911.

Regarding the video taken by the Defendants’ daughter, Ms. Gardner claimed that

she filmed it and sent it to a friend to be “vindictive.” She stated that during her daughter’s

visit to their house, she questioned Ms. Gardner on why she had hit J.H. Ms. Gardner

explained that she just “popped him on his forehead” and that she was not “popping him

hard.” She further testified that her daughter left early because the visit became “tense”

due to her daughter’s behavior.

Ms. Gardner’s seventeen-year-old daughter, who lived with the Defendants,

testified at trial. She remembered J.H. visiting them once before and said that he was very

different when he came to see them this time. J.H. defecated on himself, and Ms. Gardner

punished him by making him do exercises, such as push-ups and holding phone books, or

spanking him. Ms. Gardner’s daughter confirmed that J.H. had cleaned the bathtub and

then developed blisters on his hands, which she witnessed him picking at and told him to

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stop. She also stated that she was in the house when J.H. fell in the bathtub and off the

toilet.

Dr. John Hunsaker, an expert in the field of forensic pathology, reviewed Dr.

Deering’s report and findings and agreed with Dr. Deering’s cause of death and signs of

abuse. However, he disagreed with Dr. Deering’s conclusion that the fatal head injury was

inflicted on December 7, instead believing that the trauma occurred at least three days

earlier. He also disagreed with Dr. Deering’s conclusion that the brain injuries would have

been immediately apparent. Dr. Hunsaker also questioned Dr. Deering’s decision to

include multimodality trauma as a contributory cause of J.H.’s death, claiming that he had

never seen an autopsy characterize a cause of death in this manner and believing that it

went beyond what a medical examiner should do in a case. Dr. Hunsaker believed that the

Defendants’ version of events was plausible.

3. Verdict, Sentences, and Appeal

The jury found Ms. Gardner guilty as charged of two counts of first degree felony

murder, one count of aggravated child abuse, and three counts of aggravated child neglect.

It also found Mr. Gardner guilty of felony murder accomplished through aggravated child

neglect and three counts of aggravated child neglect. However, the jury acquitted Mr.

Gardner of the charges related to felony murder during the perpetration of aggravated child

abuse and aggravated child abuse.

After a sentencing hearing on June 9, 2022, the trial court sentenced each Defendant

to an effective sentence of life imprisonment plus seventeen years. Both Defendants filed

timely motions for a new trial, which the trial court denied on August 10, 2022. Mr.

Gardner filed a timely notice of appeal nine days later. Ms. Gardner also filed a timely

notice of appeal twenty-nine days later.

ANALYSIS

Although the Defendants were tried in a joint trial, they largely raise different issues

and arguments in this appeal. As such, in this consolidated case, we will address the issues

raised by each Defendant separately. We address the issues in Ms. Gardner’s appeal first

and refer to her as “the Defendant” until we turn to the issues raised by Mr. Gardner.

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I. ISSUES RAISED BY LATONIA GARDNER

In this appeal, the Defendant argues that the evidence is legally insufficient to

support her conviction for felony murder that was committed during the perpetration of or

attempt to perpetrate aggravated child neglect and one of her aggravated child neglect

convictions. She also asserts that the trial court erred by permitting Dr. Deering to testify

about battered child syndrome without ensuring that his testimony was based upon relevant

scientific methods. She also argues that the trial court erred by failing to sever some of the

offenses, allowing the State to introduce a video of the victim, and providing a misleading

jury instruction. Finally, she contends that the trial court abused its discretion in imposing

consecutive sentences. We address each of these issues in turn.

A. LEGAL SUFFICIENCY OF THE EVIDENCE

The Defendant argues that the evidence is legally insufficient to support her

conviction for felony murder based on aggravated child neglect and one of her convictions

for aggravated child neglect.3 Specifically, she asserts that the State failed to prove that

there was serious bodily injury arising out of aggravated child neglect separate and apart

from J.H.’s injuries alleged in the aggravated child abuse charges. In response, the State

argues that the proof was sufficient to establish that J.H. experienced several other injuries

while in the Defendant’s care, therefore establishing separate injuries between the neglect

and abuse. We agree with the State.

1. Standard of Appellate Review

“The standard for appellate review of a claim challenging the sufficiency 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.’” State v. Miller, 638 S.W.3d 136, 157 (Tenn. 2021) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard of review is “highly

deferential” in favor of the jury’s verdict. See State v. Lyons, 669 S.W.3d 775, 791 (Tenn.

3

The Defendant seems to argue that the evidence is also insufficient to support her other

aggravated child neglect convictions in Counts 9 and 10, respectively. However, she does not raise this in

her issue statement or point heading, and she offers no argument on this point. For these reasons, we find

that the challenge to the sufficiency of the evidence on those counts is waived. See State v. Molthan, No.

M2021-01108-CCA-R3-CD, 2022 WL 17245128, at *2 (Tenn. Crim. App. Nov. 28, 2022), no perm. app.

filed. Additionally, the Defendant does not argue that the evidence is legally insufficient to support her

aggravated child abuse and corresponding felony murder conviction. As such, we do not address the

evidence supporting these convictions further. See Tenn. R. App. P. 13(b) (“Review generally will extend

only to those issues presented for review.”).

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2023). Indeed, “[w]hen making that determination, the prosecution is afforded the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences

which may be drawn therefrom.” State v. Thomas, 687 S.W.3d 223, 249 (Tenn. 2024)

(citation and internal quotation marks omitted). To that end, “[w]e do not reweigh the

evidence, because questions regarding witness credibility, the weight to be given the

evidence, and factual issues raised by the evidence are resolved by the jury, as the trier of

fact.” State v. Shackleford, 673 S.W.3d 243, 250 (Tenn. 2023) (citations omitted). “The

standard of review is the same whether the conviction is based upon direct or circumstantial

evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citation and internal

quotation marks omitted).

2. First Degree Felony Murder and Aggravated Child Neglect

The Defendant does not challenge her conviction for first degree felony murder

committed in the perpetration of aggravated child abuse. However, she does challenge her

convictions for felony murder committed in the perpetration of aggravated child neglect,

as well as the underlying charge of aggravated child neglect. First degree felony murder is

defined as the “killing of another committed in the perpetration of or attempt to perpetrate

any . . . aggravated child neglect[.]” Tenn. Code Ann. § 39-13-202(a)(2) (2018). No

culpable mental state is required for a felony murder conviction except the intent to commit

the underlying felony, id. § 39-13-202(b), and the defendant “must intend to commit the

underlying felony at the time the killing occurs[.]” State v. Buggs, 995 S.W.2d 102, 107

(Tenn. 1999). In determining whether the killing occurred during the perpetration of the

felony, our supreme court has stated that “consideration of such factors as time, place, and

causation is helpful in determining whether a murder was committed ‘in the perpetration

of’ a particular felony.” Id. at 106. Further, “the killing may precede, coincide with, or

follow the felony and still be considered as occurring ‘in the perpetration of’ the felony

offense, so long as there is a connection in time, place, and continuity of action.” Id.

To sustain the Defendant’s conviction for first degree felony murder, the State must

first establish that the underlying felony of aggravated child neglect occurred. As charged

in this case, aggravated child neglect occurs when a person commits the offense of child

neglect, and the neglect “results in serious bodily injury to the child[.]” Tenn. Code

Ann. § 39-15-402(a)(1) (2018). The offense of child neglect is defined as “[a]ny person

who knowingly abuses or neglects a child under eighteen (18) years of age, so as to

adversely affect the child’s health and welfare.” Id. § 39-15-401(b) (2018); see State v.

Mateyko, 53 S.W.3d 666, 671-72 (Tenn. 2001).

The code does not provide for a specific definition of “neglect.” State v. Sherman,

266 S.W.3d 395, 405 (Tenn. 2008). However, our supreme court has recognized that “a

child is neglected whenever the breach of a legal duty endangers the health or welfare of

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that child or otherwise places the child’s health or welfare at some risk of harm.” Mateyko,

53 S.W.3d at 671. Consistent with Mateyko, Black’s Law Dictionary defines neglect as

meaning “to omit, fail, or forbear to do a thing that can be done, or that is required to be

done, but it may also import an absence of care or attention in doing or omit a given act.”

Neglect, Black’s Law Dictionary (6th ed. 1990); State v. Goodwin, No. M2022-00540-

CCA-R3-CD, 2023 WL 7324497, at *38 (Tenn. Crim. App. Nov. 7, 2023) (“This court has

repeatedly held that the common understanding of ‘neglect’ is ‘to ignore or disregard’ or

‘to fail to care for or attend to sufficiently or properly.’” (cleaned up)), no perm. app. filed.4

As the statute makes clear, the neglect of a child must adversely affect the child’s

health or welfare. Tenn. Code Ann. § 39-15-401(b); Mateyko, 53 S.W.3d at 671-72. These

effects include, but are not limited to, “adverse effects on the emotional and mental health

and welfare of the child, the natural effects of starvation or dehydration, or acts of female

genital mutilation[.]” Tenn. Code Ann. § 39-15-401(h). And, of course, the requirement

of serious bodily injury to the child in this context

includes, but is not limited to, second- or third-degree burns, a fracture of any

bone, a concussion, subdural or subarachnoid bleeding, retinal hemorrhage,

cerebral edema, brain contusion, injuries to the skin that involve severe

bruising or the likelihood of permanent or protracted disfigurement,

including those sustained by whipping children with objects and acts of

female genital mutilation as defined in § 39-13-110.

Tenn. Code Ann. § 39-15-402(c). Where the child is eight years of age or less, the offense

of aggravated child neglect is a Class A felony. Id. § 39-15-402(b).

In this case, no party disputes that J.H. was in the Defendant’s care for over one

month before his death and that, as his stepmother, the Defendant had a legal duty to care

for him. See Sherman, 266 S.W.3d at 404. Before his stay with the Defendant, J.H. lived

with Ms. Hunter in Ohio. Immediately before taking him to stay with the Defendant in

Tennessee, Ms. Hunter took J.H. to his pediatrician, and J.H. did not have any concerning

injuries at that time. However, after his death, it was discovered that J.H. had several

4

In interpreting statutory language, we look to the natural and ordinary meaning and ask

“how a reasonable reader, fully competent in the language, would have understood the text at the time it

was issued.” Williams v. Smyrna Residential, LLC, 685 S.W.3d 718, 723 (Tenn. 2024) (citation and internal

quotation marks omitted). In this task, we may consult “authoritative dictionaries published around the

time of a statute’s enactment.” State v. Deberry, 651 S.W.3d 918, 925 (Tenn. 2022). Although the courts

have looked to several different dictionaries, our supreme court has often looked to the sixth edition of

Black’s Law Dictionary, published in 1990, to construe our criminal statutes first enacted at that time. See,

e.g., State v. Perry, 656 S.W.3d 116, 128 (Tenn. 2022); Deberry, 651 S.W.3d at 927. As such, we do so

here.

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injuries that were inflicted in the weeks before the fatal strike to his head. In fact, the

medical examiner attributed these injuries as a contributory cause of death. Specifically,

during the autopsy, he discovered various scars, healing burns, and healing rib fractures,

and the age of these injuries indicated that J.H. was abused by someone before his death.

The medical examiner further testified that the injuries, at the very least, would have

justified a visit to a medical professional. Yet, it is undisputed that the Defendant failed to

seek help from a medical professional for any of J.H.’s injuries, except for the final one.

The Defendant does not challenge any particular element of her convictions.

Instead, the Defendant asserts that the State erroneously linked the brain injury to the two

separate offenses of aggravated child abuse and aggravated child neglect, and as such, one

of them must be vacated. Specifically, during the closing argument, the State told the jury,

“If you find them guilty of count four, aggravated child neglect, . . . for the brain injury,

then the only thing you have to find for count two is that [J.H.] died from the course of that

neglect.” The Defendant argues that the State also connected the brain injury to the

separate offense of Count 3 aggravated child abuse and, therefore, there was no separate

and apart injury caused by the neglect. In response, the State argues that the evidence was

legally sufficient to support the Defendant’s convictions.

Importantly, the State specifically noted in its closing argument and bill of

particulars that the aggravated child neglect in Count 4 was an alternate theory to the

aggravated child abuse in Count 3. Thus, the child abuse allegations in Count 3 proceeded

under a theory that the Defendant intentionally inflicted the blunt force trauma to J.H.’s

head. Alternatively, the child neglect allegations in Count 4 proceeded under a theory that

the Defendant ignored J.H.’s pattern of significantly injuring himself and that this neglect

led to his fatal head injury. We address both alternative theories in turn.

First, the evidence is legally sufficient to support the Defendant’s conviction for

aggravated child abuse in Count 3. The medical examiner testified that the constellation

of injuries leading up to December 7 allowed him to deduce that the blunt force trauma to

the head was intentional and not an accident. He also testified that J.H. died from a lack

of oxygen to the brain after the blunt force injury to his head. Viewing this evidence in the

light most favorable to the State, we conclude that a rational juror could find that the

Defendant intentionally inflicted the blunt force trauma to J.H.’s head, resulting in the

child’s death.

Second, the evidence is also legally sufficient to support the Defendant’s conviction

for aggravated child neglect as alleged in Count 4. At trial, the State described Count 4 as

an alternative to its prior child abuse theory. The Defendant testified that she knew, or was

aware of, multiple falls before December 7, including the three incidents where J.H. fell

before December 7. For example, she referred to a time when she heard a “boom” and

found J.H. in the tub, holding his head, and she knew he had slipped. Indeed, she further

12

stated that “the way of the sound that he hit his head, he hit pretty hard,” but she never

sought medical treatment. The following day, he woke up with a black eye. She still did

not seek medical treatment. Another time, she “lotion[ed] him down” and left him alone

in the bathroom. She heard a thud and surmised that he had fallen again. Next, three days

before the fatal head injury, she described J.H. falling and hitting his head while playing

with other children. The Defendant recalled that after this fall, J.H. was acting “like he’s

drunk, like he’s loopy” because he could not even stand up in the shower or stay on the

toilet without falling.

After describing the last incident during her testimony, the following exchange

occurred:

[Defense Counsel:] Looking back, knowing now that [J.H.] died two days –

well, that he went into cardiac arrest two days later as a result of a severe

brain injury, how do you feel about your decision not to take [J.H.] to the

doctor after he was staggering and slurring his speech?

[Defendant:] I wish I did. I wish I took him. I didn’t know. I didn’t know,

but what I know now – if I could turn that time back, I wish I could.

This exchange, in conjunction with the Defendant’s testimony, makes it clear that the

Defendant knew something was wrong with J.H. yet did not seek medical treatment. She

specifically recalled that J.H. was unable to stand on his own and that he was acting loopy,

yet she did not seek medical treatment. Instead, she continued to leave him alone with no

supervision, as she did on December 7. That day, she left J.H. alone to nap and, once again,

heard a loud noise. Upon investigating the noise, she found J.H. unable to stand, grabbing

his head, and a clear liquid coming out of his nose and mouth. After she rushed him to the

bathroom, J.H. vomited multiple times and went limp. Only at this point did the Defendant

finally seek the long-needed medical treatment by calling 911.

In this version of events, the Defendant’s ongoing neglect continued until

December 7 and climaxed with the fatal injury to the head. As such, a reasonable jury

could have accepted the Defendant’s testimony as true. Therefore, discarding all

countervailing evidence, the jury could have found that a failure to seek medical treatment

or to investigate further the cause of J.H.’s constant falls through medical treatment or

otherwise could have resulted in a blunt force trauma to the head on December 7. As such,

this neglect adversely affected J.H.’s health and welfare and ultimately resulted in his death

five days later.

Put simply, the State presented two different theories to the jury. The first theory

was that the head trauma was intentionally inflicted. The second theory was, alternatively,

13

that the Defendant was aware that J.H. fell and injured himself multiple times before

December 7 and never sought to identify the cause of the falls through medical treatment

or otherwise.

The Defendant seems to argue that the jury could not return a guilty verdict for both

versions of the events. We respectfully disagree. Even if the verdicts are inconsistent, the

supreme court has recognized that “[i]nconsistent verdicts may occur in trials . . . of

multiple charges against a single defendant.” State v. Davis, 466 S.W.3d 49, 72 (Tenn.

2015). Further, “this [c]ourt will not upset a seemingly inconsistent verdict by speculating

as to the jury’s reasoning if we are satisfied that the evidence establishes guilt of the offense

upon which the conviction was returned.” Wiggins v. State, 498 S.W.2d 92, 94 (Tenn.

1973). As such, we will not attempt to peek behind the curtain of the jury’s deliberations.

Viewing the evidence in the light most favorable to the State, as we must, a rational

juror could find that the Defendant knowingly neglected the victim, which adversely

affected his health and welfare and subsequently resulted in serious bodily injury, including

burns, rib fractures, brain injuries, and, ultimately, his death. A rational juror could also

find that the death of J.H. occurred during and because of this constant neglect and that his

death was closely connected to the neglect in time, place, causation, and continuity of

action. We, therefore, conclude that the proof is legally sufficient to support the

Defendant’s convictions for the first degree felony murder and the aggravated child neglect

of J.H.

B. EXPERT TESTIMONY

The Defendant next argues that the trial court erred when it allowed Dr. Deering to

testify about battered child syndrome because it did not ensure that his testimony was based

upon scientific methods, processes, and data. Specifically, the Defendant claims that the

trial court abused its discretion by applying an incorrect legal standard when deciding the

admissibility of Dr. Deering’s testimony. The State responds that the trial court properly

admitted expert testimony on the cause and manner of death, including battered child

syndrome. We agree with the State.

1. Background

Before trial, the trial court held a hearing to determine whether Dr. Thomas Deering,

the Deputy Chief Medical Examiner for Davidson County, could testify that J.H.’s injuries

demonstrated a pattern consistent with battered child syndrome. Dr. Deering conducted

J.H.’s autopsy and concluded that he died from a lack of oxygen to the brain after a blunt-

force injury to the head. In addition to this, Dr. Deering determined that a contributing

cause of death was also various scars, burns, and fractures, which he called “multimodality

14

trauma.” Dr. Deering opined that the combination of J.H.’s injuries, with some being older

and some being recent, formed a pattern that he diagnosed as battered child syndrome.

Dr. Deering testified that medical personnel created battered child syndrome to

assist in reporting more cases of child abuse. Specifically, medical personnel learned what

to look for when evaluating cases of potential child abuse or neglect. If medical personnel

diagnosed a patient with battered child syndrome, they would have to report the case to the

Department of Children’s Services.

To explain his diagnosis in J.H.’s case, Dr. Deering first noted that there were several

scars with various patterns on J.H. in unusual places, indicating the possibility of cigarette

burns and the use of a belt or wire. J.H. also had healing burns in several places on his

body. When informed of the Defendant’s explanation that J.H. was cleaning with bleach

for those burns, Dr. Deering determined that the appearance of the burns was not consistent

with the Defendant’s story. Due to the age of these wounds, Dr. Deering believed it

indicated that J.H. had been abused; however, he noted that the wounds were not fatal.

Additionally, Dr. Deering observed that J.H. had a swollen, bruised eye and several brain

injuries.

Of significant note to Dr. Deering, he discovered at the autopsy that J.H. had healing

rib fractures. He testified that J.H. would have been in pain with noticeable symptoms and

that there was no history to suggest J.H. “ever got hurt” or received any medical care.

Dr. Deering testified that the previous injuries were all inflicted within a two-month

window and were different forms of trauma, which stood out as “highly suspicious.” After

analyzing all the injuries and wounds, Dr. Deering believed that someone had abused J.H.

and that he could not testify at trial about how he determined the cause of death without

discussing battered child syndrome.

The trial court allowed Dr. Deering to testify about battered child syndrome during

the trial. In making this determination, the trial court analyzed Tennessee Rules of

Evidence Rules 702 and 703 and various case law cited by the State. The court held that

the diagnosis of battered child syndrome was well-accepted in the medical community. As

such, the Rules of Evidence did not prohibit Dr. Deering’s testimony about battered child

syndrome.

2. Standard of Appellate Review

A trial court’s decision regarding the “admissibility, qualifications, relevancy and

competency of expert testimony” is subject to review under an abuse of discretion standard.

State v. Watkins, 648 S.W.3d 235, 260 (Tenn. Crim. App. 2021) (quoting McDaniel v. CSX

15

Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997)). Our supreme court has emphasized that

“[d]iscretionary decisions must take the applicable law and relevant facts into account.”

Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn.

2008). To that end, “an abuse of discretion occurs when a court strays beyond the

applicable legal standards or when it fails to properly consider the factors customarily used

to guide the particular discretionary decision.” State v. McCaleb, 582 S.W.3d 179, 186

(Tenn. 2019) (citation and internal quotation marks omitted). “A court abuses its discretion

when it causes an injustice to the party challenging the decision by (1) applying an incorrect

legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision

on a clearly erroneous assessment of the evidence.” Moore v. Lee, 644 S.W.3d 59, 63

(Tenn. 2022) (citation and internal quotation marks omitted).

3. Admission of Dr. Deering’s Opinions

The admissibility of expert testimony is governed by Rules 702 and 703 of the

Tennessee Rules of Evidence. State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007). More

specifically, Rule 702 addresses “when expert testimony is needed and the expert’s

qualifications.” State v. Davidson, 509 S.W.3d 156, 207 (Tenn. 2016). Rule 703 “focuses

on [the] reliability of expert testimony.” Id.

Our supreme court has consistently acknowledged that

[t]rial courts act as gatekeepers when it comes to the admissibility of expert

testimony. Their role is to ensure that an expert, whether basing testimony

upon professional studies or personal experience, employs in the courtroom

the same level of intellectual rigor that characterizes the practice of an expert

in the relevant field.

State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (citation and internal quotation marks

omitted)). As such, the trial court “must determine that the expert testimony is reliable in

that the evidence will substantially assist the trier of fact to determine a fact in issue and

that the underlying facts and data appear to be trustworthy.” Brown v. Crown Equip. Corp.,

181 S.W.3d 268, 274 (Tenn. 2005).

In applying these standards, our jurisprudence sometimes characterizes the overall

framework for the admission of expert testimony in different terms. For example, in Scott,

our supreme court recognized “four general inter-related components” for the reliability

analysis: “(1) qualifications assessment, (2) analytical cohesion, (3) methodological

reliability, and (4) foundational reliability.” Scott, 275 S.W.3d at 402. In other cases, the

supreme court has noted that, assuming the testimony is relevant and helpful to the trier of

16

fact, the admission of expert testimony essentially involves three steps. In State v. Ferrell,

277 S.W.3d 372, 378 (Tenn. 2009), for example, the supreme court recognized,

As a threshold issue, the trial judge must first consider whether a witness

qualifies by knowledge, skill, experience, training, or education to offer an

opinion within the area of his or her expertise. If the expert is so qualified,

the trial judge must then analyze the science and not merely the

qualifications, demeanor or conclusions of experts. When those two criteria

are met, it is only when there is too great an analytical gap between the data

and the opinion proffered, that the evidence may be excluded.

(citation and internal quotation marks omitted). Importantly, though, these different

descriptions are merely variations on the essential theme: “the reliability of the testimony

and whether it provides substantial assistance to the jury serve as the essential guidelines

for the determination of admissibility.” Payne v. CSX Transp., Inc., 467 S.W.3d 413, 455

(Tenn. 2015). Using these frameworks, we conclude that the trial court acted within its

discretion in admitting Dr. Deering’s testimony as to the cause and manner of J.H.’s death.

a. Relevance

After determining whether the witness was qualified to testify as an expert, the next

step in the analysis is to determine whether the expert’s opinion is relevant and helpful to

the trier of fact. See State v. Bonds, 502 S.W.3d 118, 141 (Tenn. Crim. App. 2016)

(“Additionally, an expert witness’s testimony must be relevant to the issues at trial.”).

Evidence is relevant when it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Tenn. R. Evid. 401.

In this case, Dr. Deering offered an expert opinion on the cause and manner of J.H.’s

death. As part of that opinion, he testified that the cause of death was hypoxic/anoxic

encephalopathy, or the brain not receiving sufficient oxygen following a blunt force injury

to the head. According to Dr. Deering, battered child syndrome refers to a series or pattern

of injuries that suggest child abuse, rather than accidental harm, due to the type and

unexplained nature of the injuries sustained by the child. See also State v. Patlan, No.

M2011-01175-CCA-RM-CD, 2011 WL 2848395, at *15 (Tenn. Crim. App. July 18, 2011)

(describing battered child syndrome as being “a medical diagnosis used to describe a child

who has been subjected to repeated bouts of severe physical child abuse.”), no perm. app.

filed; see also Estelle v. McGuire, 502 U.S. 62, 66 (1991) (defining battered child syndrome

as “[the] syndrome [that] exists when a child has sustained repeated and/or serious injuries

by nonaccidental means.”). Dr. Deering further opined that the manner of death was a

17

homicide, and he offered this testimony as part of a larger opinion that the December 7

injury suffered by J.H. was not the result of an accident but was “probably inflicted.”

The trial court found that “the prior injury evidence” was “relevant to whether these

injuries were due to accidents or were inflicted intentionally.” We agree. The United States

Supreme Court has recognized that “evidence demonstrating battered child syndrome helps

to prove that the child died at the hands of another and not by falling off a couch, for

example; it also tends to establish that the ‘other,’ whoever it may be, inflicted the injuries

intentionally.” Estelle, 502 U.S. at 68. The trial court acted within its discretion in finding

that if Dr. Deering was properly qualified as an expert and his opinion was sufficiently

reliable and demonstrated analytical cohesion, then his opinion about the cause and manner

of J.H.’s death was relevant evidence for the jury’s consideration. See Tenn. R. Evid. 402,

702.

b. The Expert’s Qualifications

The next step was for the trial court to determine whether Dr. Deering was qualified

by knowledge, skill, experience, training, or education to offer an opinion within the area

of his expertise. See Tenn. R. Evid. 702. Without objection, the State tendered Dr. Deering

as an expert in forensic pathology. He testified that he worked in “medical examining or

forensic pathology” for about twenty-five years in Memphis and Nashville. Among other

things, he stated that he had a medical degree from the University of Iowa and a residency

in pathology. He estimated that he had personally performed more than 5,000 autopsies,

and he confirmed that he had been previously admitted as an expert in forensic pathology

in other cases as well. The trial court acted within its discretion in finding that Dr. Deering

was qualified by knowledge, skill, experience, training, and education to offer an opinion

within the field of forensic pathology.

c. Foundational Reliability of the Expert’s Field of Expertise

The next inquiry is whether the field of Dr. Deering’s expertise was sufficiently

reliable, both in terms of methodological and foundational reliability, to enable him to offer

an opinion. Scott, 275 S.W.3d at 402. As Dr. Deering defined the field of his expertise,

“[P]athology studies a lot of things. From surgical pathology to what happens in a

laboratory is kind of the area of pathology. And forensic is a word that means legal. So

there are times when a death has legal implications[.]” He stated that he seeks to identify

“the cause of death of an individual” and “the manner of death.”

In this context, Dr. Deering explained that the “cause of death” is a conclusion based

on the circumstances and the physical examination of the body. For example, he noted that

the cause of death could include natural diseases, environmental conditions, trauma,

18

gunshot wounds, and blunt force injuries. In this case, Dr. Deering concluded that the cause

of J.H.’s death was hypoxic/anoxic encephalopathy, or the brain not receiving sufficient

oxygen following a blunt force injury to the head. However, Dr. Deering also testified that

a contributing cause of death was battered child syndrome or battered child appearance.

This contributing cause of death helped him to identify the manner of death as a homicide,

as he believed that the injuries to J.H. on December 7 were inflicted injuries and not

accidental. It is with this conclusion that the Defendant takes issue.

The Defendant asserts that the trial court erred in allowing testimony about battered

child syndrome, arguing that the trial court did not apply the appropriate factors under

McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997), to determine the reliability

of testimony about battered child syndrome. We respectfully disagree.

Our supreme court has clarified that trial courts must assess “the expert’s field or

discipline by focusing on the reliability of the studies, articles, and data that compose the

field and provide the underlying foundation for the expert’s testimony.” Davidson, 509

S.W.3d at 211 (citing Scott, 275 S.W.3d at 402-03). As part of this assessment, the trial

court may consider several nonexclusive factors as identified by our supreme court in

McDaniel:

(1) whether scientific evidence has been tested and the methodology with

which it has been tested; (2) whether the evidence has been subjected to peer

review or publication; (3) whether a potential rate of error is known;

(4) whether . . . the evidence is generally accepted in the scientific

community; and (5) whether the expert’s research in the field has been

conducted independent of litigation.

McDaniel, 955 S.W.2d at 265. Importantly, however, these factors are “not requirements

for [the] admissibility” of an expert opinion. Davidson, 509 S.W.3d at 208. Indeed,

individual factors may not even “fit” in a particular case. Scott, 275 S.W.3d at 404. As

such, applying the McDaniel factors to assess reliability depends upon the nature of the

issue, the witness’s particular expertise, and the subject of the expert’s testimony. Brown,

181 S.W.3d at 277.

In this case, the trial court focused on the fourth McDaniel factor when admitting

Dr. Deering’s testimony, finding that it was a “well-accepted diagnosis in the medical

community.” This was certainly an appropriate consideration and one that is supported in

our case law. For example, our trial courts have admitted evidence of battered child

syndrome for nearly five decades. See, e.g., Dorantes, 331 S.W.3d at 376 (affirming

convictions for aggravated child abuse and felony murder by aggravated child abuse; proof

at trial involved testimony by the medical examiner classifying the cause of death as

19

battered child syndrome); Hawkins v. State, 555 S.W.2d 876, 876 (Tenn. Crim. App. 1977)

(affirming a conviction for second degree murder; the State’s theory at trial involved the

child dying as a result of battered child syndrome); State v. Taylor, No. M2015-02142-

CCA-R3-CD, 2017 WL 2179952, at *12 (Tenn. Crim. App. May 16, 2017) (affirming a

conviction for reckless homicide; proof at trial involved the medical examiner classifying

the circumstances of the victim’s death as being battered child syndrome), perm. app.

denied (Tenn. Sept. 21, 2017); State v. Mark, No. M2014-00651-CCA-R3-CD, 2015 WL

4720038, at *21 (Tenn. Crim. App. Aug. 10, 2015) (affirming convictions for felony

murder and aggravated child abuse; proof at trial included testimony by a forensic

pathologist, Dr. Deering, that “[t]he pattern of the chronic injuries with the now fatal acute

injury to the brain suggests a pattern of ongoing child abuse, battered child syndrome”),

perm. app. denied (Tenn. Dec. 10, 2015); State v. Branam, No. E2014-01345-CCA-R3-

CD, 2015 WL 4594158, at *18 (Tenn. Crim. App. July 31, 2015) (affirming convictions

for aggravated child abuse and felony murder; proof at trial included medical examiner’s

expert testimony that the child was a “victim of battered child syndrome and the manner

of [her] death was homicide”), perm. app. denied (Tenn. Feb. 14, 2018); State v. Mathis,

No. M2009-00123-CCA-R3-CD, 2012 WL 4461767, at *28 (Tenn. Crim. App. Sept. 26,

2012) (affirming convictions for felony murder, aggravated child abuse, and aggravated

child neglect; proof at trial included testimony from a forensic pathologist that the victim

suffered from battered child syndrome and ultimately died from strangulation), perm. app.

denied (Tenn. Feb. 25, 2013); Patlan, 2011 WL 2848395, at *15 (affirming convictions for

aggravated child abuse and felony murder during the perpetration of aggravated child

abuse; proof at trial established that cause of death was battered child syndrome, defined

as “a medical diagnosis used to describe a child who has been subjected to repeated bouts

of severe physical child abuse”) (internal quotation marks omitted); State v. Maze, No.

M2004-02091-CCA-R3-CD, 2006 WL 1132083, at *4 (Tenn. Crim. App. Apr. 28, 2006)

(affirming convictions for felony murder and aggravated child abuse; proof at trial involved

expert testimony diagnosing the victim with battered child syndrome which “is a

recognized [medical] diagnosis that can actually be coded for billing and insurance

purposes”), perm. app. denied (Tenn. Aug. 28, 2006); State v. Wester, No. E2004-02429-

CCA-R3-CD, 2006 WL 304700, at *5 (Tenn. Crim. App. Feb. 9, 2006) (affirming a

conviction for felony murder in the perpetration of aggravated child abuse; proof at trial

involved the Chief Medical Examiner of Tennessee testifying that the victim suffered from

battered child syndrome), perm. app. denied (Tenn. June 26, 2006); State v. Toporan, No.

M2004-00561-CCA-R3-CD, 2005 WL 2255692, at *4 (Tenn. Crim. App. Aug. 24, 2005)

(affirming convictions for felony murder and aggravated child abuse; proof at trial involved

testimony by the Chief Medical Examiner for Tennessee that the victim’s cause of death

was “due to multiple blunt force injuries and that the manner of death was homicide under

the circumstances of being a battered child”), no perm. app. filed; State v. Pipes, No.

02C01-9410-CC-00222, 1995 WL 146125, at *2 (Tenn. Crim. App. Apr. 5, 1995)

(affirming a conviction for aggravated child abuse; proof at trial included a medical

diagnosis of the child with battered child syndrome), perm. app. denied (Tenn. July 3,

1995).

20

In addition, the United States Supreme Court has recognized the admissibility of

testimony related to battered child syndrome evidence “when a child has sustained repeated

and/or serious injuries by nonaccidental means.” Estelle, 502 U.S. at 66. And courts in

our sister states have also long affirmed admission of expert testimony in this field. For

example, some twenty-five years ago, the Kansas Supreme Court recognized that “battered

child syndrome has gained wide judicial acceptance and is not novel scientific evidence[.]”

State v. Heath, 957 P.2d 449, 465 (Kan. 1998) (citing cases). Twenty years before that, the

North Carolina Supreme Court recognized that “[a]s far as our research reveals, all courts

which have considered the question, including our own Court of Appeals, have concluded

that such expert medical testimony concerning the battered child syndrome as was offered

in this case is properly admitted into evidence.” State v. Wilkerson, 247 S.E.2d 905, 912

(N.C. 1978). More recently, admission of battered child syndrome testimony has been

described as “well-settled law” when offered “to refute a claim of accidental death.”

Cardona v. State, 299 So. 3d 1142, 1145 (Fla. Dist. Ct. App. 2020); see also State v.

Martinez, 68 P.3d 606, 616-17 (Haw. 2003) (“[E]vidence of [battered child syndrome] is

admissible in a trial in which a defendant is charged with an offense implicating the breach

of a legal duty to seek and obtain timely medical treatment for an injured child in order to

prove that the child’s injury was not accidental, regardless of whether the prosecution is

able to link the child’s prior injuries directly to the defendant.”).

As we noted above, the McDaniel factors are not requirements, and the trial court

need not consider all of the factors in determining the reliability of the expert’s field of

expertise or discipline. This may be particularly true when courts in Tennessee and other

jurisdictions have widely accepted the field or discipline. Cf. Davidson, 509 S.W.3d at

211-12 (finding testimony about the ACE-V methodology for fingerprinting to be

sufficiently reliable against a challenge to the methodology when the method “has been

widely accepted by courts,” even without proof supporting other McDaniel factors). We

conclude that the trial court properly found that testimony in the field of battered child

syndrome possessed sufficient reliability to be considered by the jury.

d. Methodological Reliability and Analytical Cohesion of

Dr. Deering’s Opinion

Finally, we examine whether Dr. Deering’s opinion about the cause and manner of

death was analytically cohesive and whether there was a significant analytical gap between

his opinion and the data upon which it was based. See Davidson, 509 S.W.3d at 210. As

the supreme court has recognized, a trial court “may conclude that an expert’s opinions are

reliable if the expert’s conclusions are sufficiently straightforward and supported by a

rational explanation which reasonable [persons] could accept as more correct than not

21

correct.” Brown, 181 S.W.3d at 275 (citation and internal quotation marks omitted;

alteration in original).

The Defendant argues that Dr. Deering’s opinion was based on speculation about

the nature of J.H.’s prior injuries. More specifically, the Defendant asserts that Dr. Deering

speculated when he testified that the wounds on J.H.’s hands showed a splash pattern. He

also claims that the expert further speculated about the source of the circular scars on J.H.

In essence, we understand this argument to assert that too great an analytical gap existed

between Dr. Deering’s conclusion that J.H.’s injuries were inflicted and the facts (or data)

he relied upon to reach that conclusion.

We respectfully disagree that Dr. Deering’s opinions as to the cause and manner of

death were mere speculation. Dr. Deering testified in detail as to his observations, the lack

of any reasonable explanation given for the injuries that J.H. suffered, and the inexplicable

absence of medical care for injuries that would have been painful to J.H.

With respect to the splash pattern, Dr. Deering testified that the “pattern” was

unusual and that the burns varied in depth. He stated that the location of the chemical burns

did not “match” the explanation he was given, which was that J.H. had an allergic reaction

after using a bleach cleaner and that it appeared to him as though the chemical burns on

each hand happened at different times. He also testified that he had not seen this type of

injury previously from a child cleaning with bleach.

Regarding the circular scars, Dr. Deering testified that he did not definitively know

the source of the scars. But he testified that he saw healed blistered skin on the tips of

J.H.’s fingers and toes. He also believed that other scars were healed burns. Dr. Deering

noted that, while he could not say conclusively, the small circular scars on J.H.’s back

appeared to be cigarette burns, given their appearance and location.

Although Dr. Deering could not definitively identify the source of these scars, this

inability did not render his opinion as to the cause and manner of death so speculative as

to be unreliable or unhelpful to the jury. It was not. On the contrary, the expert explained

that his testimony was based on his training in forensic pathology and his experience and

observations in other cases. From this training and experience, he believed that the scars

were found in places that were not typical for accidents, and he had no information showing

any “other reasonable mechanism to explain [the scars].” Moreover, he offered his

observations as to these scars in the context of other injuries, such as rib fractures, that also

occurred in the absence of any medical treatment or credible information as to the causes.

Thus, from his education, experience, and observations, Dr. Deering testified that,

to a degree of medical certainty, the head injury suffered by J.H. on December 7 was

22

inflicted and was not accidental. Notably, Dr. Deering did not opine as to the mere

possibility of a causal relationship. Instead, he identified the most likely cause of the head

injury and gave a “rational explanation which reasonable [persons] could accept as more

correct than not correct.” Brown, 181 S.W.3d at 275. Thus, the trial court was “entitled to

admit the opinion and leave its weight to the jury.” Lindsey v. Miami Dev. Corp., 689

S.W.2d 856, 862 (Tenn. 1985) (citations omitted); State v. Cannon, 642 S.W.3d 401, 441

(Tenn. Crim. App. 2021) (“Any deficiencies in the theory, methodology, or application can

be explored on cross-examination, and the jury can then give the opinion whatever weight

it deems appropriate.”). We conclude that the trial court acted within its discretion in

admitting the evidence for the jury to consider.

4. Expert’s Testimony as to Injuries Generally Caused by Falls

In a related argument, the Defendant asserts that the trial court erred in allowing Dr.

Deering to testify about the relationship between falls and injuries. More specifically, the

Defendant takes issue with the following testimony offered by the expert, asserting that the

testimony as to the ratio of injuries to deaths is speculative:

This is child abuse to me. These old injuries that didn’t -- didn’t themselves,

in his death, point me to look at that last event and say I don’t think it’s an

accident. I think it’s inflicted. It would be important to know that kids fall

all the time. Kids fall and hit their head[s] all the time. And maybe one in a

million of those falls dies. So a kid – if the explanation is well, he must have

fallen, it’s a really rare event and it was quite the fall.

Even if this testimony were objectionable—and in the overall context of the expert’s

testimony, we do not so hold—the Defendant did not object when offered at trial.

Ordinarily, before a party can challenge the admission of evidence on appeal, the party

must have preserved the issue in the trial court. “To preserve an issue, the party should

first assert a timely objection identifying a specific ground.” State v. Thompson, No.

W2022-01535-CCA-R3-CD, 2023 WL 4552193, at *3 (Tenn. Crim. App. July 14, 2023),

no perm. app. filed.

Because the Defendant did not raise an objection in the trial court based on this

testimony, we conclude that the Defendant has waived plenary review of this issue on

appeal. See State v. Dotson, 450 S.W.3d 1, 95 (Tenn. 2014). Moreover, because the

Defendant does not request review of this issue for plain error, we respectfully decline to

address the issue sua sponte. See State v. Funk, No. E2022-01367-CCA-R3-CD, 2023 WL

7130289, at *2 (Tenn. Crim. App. Oct. 30, 2023), no perm. app. filed. The Defendant is

not entitled to relief.

23

5. Trial Court’s Pretrial Assessment of the Evidence

The Defendant makes one final argument on this issue, claiming that the trial court

erred by allowing the admission of the expert testimony following an erroneous assessment

of the evidence supporting the opinion. More specifically, she asserts that the court

erroneously found that Dr. Deering believed all of J.H.’s injuries were caused in the two

months before December 2016. From this, she argues that because the expert’s testimony

did not support the trial court’s findings, the expert’s testimony was inadmissible. In

response, the State argues that the Defendant is confusing “injuries” with “marks” and

“scars,” which could not be dated, and therefore, the trial court’s findings of facts are not

erroneous. We agree with the State.

The trial court issued a written order concerning Dr. Deering’s testimony. In the

order, it made several findings of fact. Among those findings, the court found that “Dr.

Deering is of the opinion that the injuries found on the victim were caused within the two

months prior to his admittance to the hospital in December of 2016.” Another finding was

that “[t]here are pediatric records reflecting the child did not have any injuries prior to

leaving Ohio in September of 2016.”

These findings were consistent with the testimony offered by Dr. Deering in the

pretrial hearing. During that testimony, Dr. Deering distinguished between “injuries” on

the one hand and scars and marks on the other. When he referred to J.H.’s “injuries,” the

expert referred generally to the healed rib fractures that occurred, in his view, some four to

six weeks before J.H.’s death. When he discussed other evidence of abuse to J.H., such as

the “numerous scars,” the expert did not definitively date these marks, and he did not refer

to them as “injuries.”

Dr. Deering’s testimony fully supports the trial court’s findings that no injuries, such

as rib fractures, existed before September 2016. The court simply did not conclude, as the

Defendant suggests, that “all injuries,” defined as bone fractures, scars, and marks,

occurred between September and December 2016. More importantly, even if the findings

were as the Defendant believes them to be—and they are not—they are not sufficiently

material in light of the trial testimony to reveal an abuse of discretion. We conclude that

Dr. Deering’s expert testimony related to the cause and manner of J.H.’s death and that it

was admissible for the jury to consider for whatever weight it believed appropriate.

24

C. SEVERANCE OF OFFENSES

1. Background

The Defendant next argues that two counts of aggravated child neglect, Counts 9

and 10, should have been severed from the remainder of the offenses and tried separately.

As background for this issue, the grand jury charged the Defendant with ten offenses

grouped into five separate offense dates.5 The offenses were as follows:

• Count 1 charged the felony murder during the perpetration of or attempt to

perpetrate aggravated child abuse, with the predicate offense of aggravated

child abuse charged in Count 3. Count 1 had an offense date of December

12, 2016, which was the date of J.H.’s death, and Count 3 had an offense date

of December 7, 2016, which was the date of the fatal blow to J.H.’s head.

• Count 2 also charged the felony murder during the perpetration of or attempt

to perpetrate aggravated child neglect, with the predicate offense of

aggravated child neglect charged in Count 4. As before, Count 2 had an

offense date of December 12, 2016, which was the date of J.H.’s death, and

Count 4 had an offense date of December 7, 2016, which was the date of the

fatal blow to J.H.’s head.

• Counts 5 and 6 charged aggravated child abuse and aggravated child neglect

with an offense date of November 25, 2016. In its bill of particulars, the

State specified that these counts referred to injuries to J.H.’s “left cheek, left

nasal bone fracture, and associated injuries.” Count 6 was noted as an

alternate theory to Count 5, citing that the Defendant failed to seek proper

treatment for the injuries.

• Counts 7 and 8 also charged aggravated child abuse and aggravated child

neglect but with an offense date between September 28, 2016, and December

1, 2016. The State specified that these counts referred to J.H.’s healing rib

fractures. Count 8 was noted as an alternate theory to Count 7, again

charging that the Defendant failed to seek proper treatment for these injuries.

5

Originally, the State charged the Defendant with one count of felony murder committed

during the commission of aggravated child abuse that was later dismissed. The State issued a superseding

indictment that charged ten offenses, as discussed here.

25

• Counts 9 and 10 charged alternative theories of aggravated child neglect with

the offense date as a continuing course of conduct between September 28,

2016, and December 7, 2016. In its bill of particulars, the State specified that

these counts included “head injuries, broken ribs, severe and painful burns to

the victim’s hands, feet and other parts of his body[.]” Count 9 referred to

the Defendant’s failure to seek proper medical treatment. Count 10 was an

alternate theory to Count 9, alleging that the Defendant’s conduct amounted

to especially heinous conduct, atrocious or cruel conduct, and the infliction

of torture.

Before trial, the Defendant filed a motion to sever the offenses. At a pretrial hearing,

she requested that the trial court sever the offenses based on their separate offense dates.6

Specifically, she asked the trial court to conduct separate trials for Counts 1 through 4;

Counts 5 and 6; Counts 7 and 8; and Counts 9 and 10.

At the hearing, the parties did not present any proof apart from incorporating Dr.

Deering’s prior testimony into the hearing. The Defendant argued that the various offenses

were not part of the same criminal transaction and should be severed. She further asserted

that Counts 9 and 10 should be severed from Counts 1 through 4 because the ongoing

failure to provide treatment did not apply to J.H.’s fatal head injury. The State maintained

that Counts 9 and 10 were continuing offenses and should not be severed.

The trial court issued an order severing the offenses in the groupings as requested

by the Defendant, finding that there was no common scheme or plan, no conspiracy, and

that the offenses did not occur in the same criminal episode. However, the court permitted

the State to combine Counts 9 and 10 with any of the severed groups because they alleged

neglect that covered the entire period of the ongoing abuse. The State elected to try Counts

9 and 10 with Counts 1 through 4, which are the subject of this appeal.7

6

The Defendant filed a written motion requesting the trial court sever counts 1 through 4

from the rest of the offenses. However, this was filed prior to the State’s bill of particulars. After receiving

the bill of particulars, the Defendant modified her request at the pre-trial hearing on the matter. At the

hearing, the Defendant asked the trial court to separate the charges by their respective offense dates into

four different sets. As such, we consider the Defendant’s amended request to sever the charges by the

offense date.

7

With the agreement of the parties, the trial court renumbered Counts 9 and 10 as Counts 5

and 6 before submitting them to the jury. This was a permissible procedure to ensure that the jury was

unaware of other criminal offenses with which the Defendant was originally charged. See State v.

Thompkins, No. E2023-00209-CCA-R3-CD, 2023 WL 8112826, at *1 n.2 (Tenn. Crim. App. Nov. 21,

2023), no perm. app. filed. However, because of the complex procedural history of this case, we use the

enumeration of the counts as designated by the grand jury.

26

2. Standard of Appellate Review

“We review decisions concerning permissive joinder and severance of offenses

pursuant to [Tennessee] Rules of Criminal Procedure 8(b) and 14(b)(1) for an abuse of

discretion.” Spicer v. State, 12 S.W.3d 438, 442 (Tenn. 2000) (citing State v. Shirley, 6

S.W.3d 243, 247 (Tenn. 1999)). “As such, a trial court’s decision to consolidate or sever

offenses will 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.” Id. (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citations

and internal quotation marks omitted)).

3. Severance of Offenses

The Defendant vigorously attacks the State’s elected joinder of Counts 9 and 10

with Counts 1 through 4 for a consolidated trial. The Defendant claims there were no

grounds under Rule 14 to establish a common scheme or plan and that even if a common

scheme or plan had been established, the trial court did not make the proper findings under

Rule 404(b) to consolidate the trial. The State argues that the consolidation was appropriate

because the offenses were part of the same criminal transaction. It further argues, though,

that any error would have been harmless.

Decisions concerning the joinder and severance of offenses are governed by

Rules 8(b) and 14(b)(1) of the Tennessee Rules of Criminal Procedure. Shirley, 6 S.W.3d

at 247. “To consolidate separate indictments under Rule 8(b), the state needs only to show

that the offenses are parts of a common scheme or plan or that the offenses are of the same

or similar character.” Spicer, 12 S.W.3d at 443 (internal quotation marks omitted). On the

other hand, “a defendant has a right under Rule 14(b)(1) to a severance of offenses

permissively joined, unless the offenses are parts of a common scheme or plan and the

evidence of one offense would be admissible upon the trial of the others.” Id. (internal

quotation marks omitted). “Upon the defendant’s motion to sever permissibly joined

offenses, the State bears the burden of establishing both prongs.” State v. Eady, 685 S.W.3d

689, 709 (Tenn. 2024). Importantly, “[t]he primary inquiry into whether a severance should

have been granted under Rule 14 is whether the evidence of one crime would be admissible

in the trial of the other if the two counts of the indictment had been severed.” State v.

Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984).

Errors in severance are analyzed under the harmless error standard. Eady, 685

S.W.3d at 715. Under this standard, relief is only warranted if the error “more probably

than not affected the judgment or would result in prejudice to the judicial process.” State

v. Rodriguez, 254 S.W.3d 361, 374 (Tenn. 2008). As our supreme court has recognized,

“We often have observed that the line between harmless and prejudicial error is in direct

27

proportion to the degree by which proof exceeds the standard required to convict.” Eady,

685 S.W.3d at 715 (citing State v. Denton, 149 S.W.3d 1, 15 (Tenn. 2004)). Thus,

when looking to the effect of an error on the trial, we will evaluate that error

in light of all of the other proof introduced at trial. The more the proof

exceeds that which is necessary to support a finding of guilt beyond a

reasonable doubt, the less likely it becomes that an error affirmatively

affected the outcome of the trial on its merits.

State v. Gilliland, 22 S.W.3d 266, 274 (Tenn. 2000). Ultimately, “[t]he key question is

whether the error likely had an injurious effect on the jury’s decision-making process. If

the answer is yes, the error cannot be harmless.” State v. Brown, No. M2017-00904-CCA-

R3-CD, 2019 WL 1514551, at *30 (Tenn. Crim. App. Apr. 8, 2019) (citing State v. Dotson,

254 S.W.3d 378, 389 (Tenn. 2008)), perm. app. denied (Tenn. Aug. 15, 2019).

Additionally, evidence involving prior acts is often admitted for the non-propensity

purposes of providing necessary contextual background. State v. Reynolds, 635 S.W.3d

893, 921 (Tenn. 2021). Indeed, “[e]vents do not occur in a vacuum, and in many cases,

knowledge of the events surrounding the commission of the crime may be necessary for

the jury to realistically evaluate the evidence.” Gilliland, 22 S.W.3d at 272 (citation and

internal quotation marks omitted). Nevertheless, when contextual background evidence

consists of a defendant’s other acts, the evidence may be offered only when “exclusion of

that evidence would create a chronological or conceptual void in the presentation of the

case and that void would likely result in significant jury confusion concerning the material

issues or evidence in the case.” Id. Under these circumstances, background evidence can

certainly be admissible to “complete the story” for the jury, so long as the danger of unfair

prejudice does not outweigh its probative value. Reynolds, 635 S.W.3d at 903.

Even if the consolidation of Counts 9 and 10 with Counts 1 through 4 was an error—

and we make no such finding—we agree with the State that it had no injurious effect on

the jury’s decision-making process. As discussed above, Dr. Deering’s testimony

concerning the prior scars, marks, and injuries would have been relevant and introduced

regardless of whether Counts 9 and 10 were tried with Counts 1 through 4. Dr. Deering’s

testimony was crucial to an essential element of the felony murder and predicate felony

counts, as it established the manner of death.

Further, the evidence in Counts 9 and 10 would have been admissible as contextual

background in Counts 1 through 4 and vice versa. The evidence in Counts 9 and 10

consisted of the previous scars, marks, and injuries to J.H. that occurred in the two months

he was in the Defendant’s care. This evidence was present in Dr. Deering’s autopsy and

contributed to Dr. Deering’s establishing the manner of death as homicide. The background

28

of the events forming the basis of Counts 9 and 10 was important, if not essential, to the

medical examiner’s conclusion that the fatal head blow was intentionally inflicted and not

accidental. As such, this evidence generated the felony murder charges and their predicate

felonies of aggravated child abuse and aggravated child neglect in Counts 1 through 4.

Conversely, if Counts 9 and 10 were to be tried separately from Counts 1 through 4,

then the evidence in Counts 1 through 4 would also be admissible as necessary contextual

background evidence in that trial of those later counts. The evidence in Counts 1 through

4 would necessarily be admitted because it would have to be introduced through Dr.

Deering’s testimony as the medical examiner who performed J.H.’s autopsy. Included in

that autopsy would be the fatal blunt force trauma to the head that was inflicted on

December 7, which is the offense charged in Counts 1 through 4. For the jury to

realistically evaluate the evidence in Counts 9 and 10, it would have been necessary for the

jury to know of the discovery of J.H.’s abuse and neglect from Dr. Deering’s

examination―evidence that was inseparable from that necessary to establish Counts 1

through 4. As such, evidence of the crimes in Counts 1 through 4 would have been

necessary contextual background evidence in the trial of Counts 9 and 10.

Accordingly, we conclude that the Defendant has not shown that the trial court’s

decision to allow the consolidation “more probably than not affected the judgment” or

“result[ed] in prejudice to the judicial process.” Tenn. R. App. P. 36(b); Rodriguez, 254

S.W.3d at 374. The Defendant is not entitled to relief on this issue.

D. AUTHENTICATION OF V IDEO EVIDENCE

The Defendant next argues that the trial court erred in holding that the State properly

authenticated a video of J.H. that was recorded from a cell phone belonging to a non-

testifying third party. The State asserts that the trial court acted within its discretion when

it admitted the video of J.H. We agree with the State.

1. Background

During the trial, defense counsel objected to the State introducing the video that the

Defendant’s daughter initially showed officers during their first visit to the Defendant’s

home. Detective Miranda Vaughn, the lead detective on the case, testified that

approximately one day after J.H. went to the hospital, she learned that the Defendant’s

daughter had taken a video of J.H. when she was visiting the Defendant over Thanksgiving.

29

She learned that the daughter showed this video to Officer Rico Jones on November 27,

2016.

To track down the video, Detective Vaughn determined that the initial call to the

police came from the daughter’s best friend in Minnesota, Nikitta Higgs, who had been

sent the video from the Defendant’s daughter. Detective Vaughn then went to Minnesota

to interview Ms. Higgs and the Defendant’s daughter. During these interviews, Detective

Vaughn viewed both of their phones and saw the video and messages surrounding it in the

Snapchat app. Detective Vaughn could see that the messages occurred on November 25,

as they were still in the Snapchat app. Additionally, Ms. Higgs informed Detective Vaughn

that she had received the messages and video at 11:43 p.m. on November 25, 2016.

Detective Vaughn then recorded the video on a camera. She also took possession of both

phones, but the police department in Minnesota could not forensically extract the video.

Detective Vaughn identified J.H. in the video and noticed that he had several marks

on his face and back. Further, Detective Vaughn testified that what she saw on the video

was consistent with what she saw on J.H. when he was in the hospital. Detective Vaughn

then provided the video to Dr. Deering.

The State sought to introduce the video through Detective Vaughn and not through

Ms. Higgs or the Defendant’s daughter, citing that they were not cooperative. The trial

court found that a “reliable foundation” existed to permit the introduction of the video.

2. Standard of Appellate Review

We review a trial court’s determination that evidence has been properly

authenticated for an abuse of discretion. State v. Mickens, 123 S.W.3d 355, 376 (Tenn.

Crim. App. 2003). “An abuse of discretion occurs when the trial court applies an incorrect

legal standard or reaches a conclusion that is illogical or unreasonable and causes an

injustice to the party complaining.” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)

(citation and internal quotation marks omitted); State v. Murray, No. M2021-00688-CCA-

R3-CD, 2022 WL 17336522, at *6 (Tenn. Crim. App. Nov. 30, 2022) (citation and internal

quotation marks omitted), perm. app. denied (Tenn. Mar. 8, 2023).

3. Authentication

Tennessee Rule of Evidence 901(a) provides that evidence may be authenticated

“by evidence sufficient to the court to support a finding by the trier of fact that the matter

in question is what its proponent claims.” Further, “[a]uthentication can be properly

established by the testimony of a witness with knowledge that the ‘matter is what it is

30

claimed to be.’” Mickens, 123 S.W.3d at 376 (citing Tenn. R. Evid. 901(b)(1)). As a

leading treatise has observed, “[a]uthentication is actually a facet of conditional relevance

discussed in rule 104(b).” Neil P. Cohen, et al., Tennessee Law of Evidence § 9.01[2][a]

(6th ed. 2011) (hereinafter Tennessee Law of Evidence). In this process, “[t]he judge looks

at the evidence presented by the proponent of the proof and decides whether the jury, if

presented with that evidence, could reasonably find that the proffered item is what it is

claimed to be.” Id. Once the evidence is admitted, “the jury, then, is free to give [the

evidence] as much or little weight as the jury thinks appropriate.” Id. § 9.01[2][c]; State v.

Hinton, 42 S.W.3d 113, 127 (Tenn. Crim. App. 2000).

Specifically regarding the admissibility of videos, “[a] leading treatise has explained

that ‘[v]ideos . . . are authenticated the same way as photographs.’” State v. Spivey, No.

M2018-00263-CCA-R3-CD, 2020 WL 598347, at *10 (Tenn. Crim. App. Feb. 7, 2020)

(quoting Tennessee Law of Evidence § 9.01[3][c]), perm. app. denied (Tenn. June 3, 2020).

Further, “[a] photograph can [be] authenticated by proof that it depicts what it is claimed

to depict, Rule 901(a).” Tennessee Law of Evidence § 401[21][e] (internal quotation marks

omitted). However,

[i]t is not necessary . . . that the witness through whom a photo is being

introduced was also the photographer who took the photo in question. Any

person, whether or not the photographer, familiar with the place or item that

was photographed can authenticate the picture by testifying that it is a true

and accurate depiction of the location or item at issue in the case.

Id.

Additionally, we have previously held that a video is admissible even if the

testifying party was not present at the scene and does not know when it was taken. See

State v. Glass, No. E2019-00965-CCA-R3-CD, 2020 WL 3056502, at *8-9 (Tenn. Crim.

App. June 9, 2020) (holding that the trial court did not abuse its discretion in admitting

video evidence where the testifying officer was not present at the scene and did not clearly

know when the video was taken due to an erroneous time stamp), perm. app. denied (Tenn.

Oct. 7, 2020). Further, “Rule 901 provides that the testimony of a witness with knowledge

is but one in a list provided ‘by way of illustration only, and not by way of limitation.’” Id.

(quoting Tenn. R. Evid. 901). “Also included in the illustrative list is the ability to

authenticate a matter using ‘appearance, contents, substance, internal patterns, or other

distinctive characteristics, taken in conjunction with the circumstances.’” Id.

In this case, Detective Vaughn was familiar with J.H.’s appearance. She saw him in

person when he was in the hospital and was, therefore, able to identify him in the video.

Further, Detective Vaughn testified that the marks she saw on the video were consistent

with the marks she saw on J.H. when he was in the hospital.

31

Additionally, Detective Vaughn saw the date the video was sent to Ms. Higgs, as it

was still saved in Snapchat, along with the conversation surrounding the video. While the

messages could be inadmissible hearsay in front of a jury, perhaps depending on why they

would be offered, they served as important context for the trial court as it considered the

admissibility of the evidence. The trial court correctly identified that Tennessee Rule of

Evidence 104 permits the court to ask preliminary questions concerning those privileges.

In this context, the circumstances surrounding the video were essential to determine its

authenticity. Specifically, the Defendant’s daughter reached out to Ms. Higgs to express

concern for J.H., informing her that “somebody needed to help [J.H.].” To reinforce this

concern, she sent the video of J.H., which was consistent with what Detective Vaughn saw

in the hospital days later.

Although this is a unique situation, the standard of appellate review is important.

Under an abuse of discretion standard, “[t]he reviewing court need not find that the trial

court made the best decision or the one the appellate court would have made; instead, the

reviewing court must confine itself to determining whether the trial court’s decision was

within the range of acceptable alternatives.” State v. Willis, 496 S.W.3d 653, 729 (Tenn.

2016). The trial court’s decision here was not illogical or wholly unreasonable, and it was

not based on a clearly erroneous assessment of the evidence. See In re Karissa V., No.

E2016-00395-COA-R3-PT, 2017 WL 758513, at *13 (Tenn. Ct. App. Feb. 27, 2017), perm.

app. denied (Tenn. May 24, 2017). As such, when the contents of the video and the

surrounding circumstances are taken together, we cannot conclude that the trial court erred

in finding that the video was sufficiently authenticated for admission. The Defendant is

not entitled to relief on this issue.

E. SUPPLEMENTAL JURY INSTRUCTION

The Defendant next argues that the trial court improperly gave a supplemental jury

instruction in response to a jury question. Specifically, the Defendant asserts that the trial

court provided a contradictory and misleading instruction that jeopardized the jury’s

unanimity and undermined the verdict’s integrity. The State concedes this point and agrees

that Count 4 should be remanded for a new trial. We agree with the parties.

1. Background

As background for this issue, we note that during the closing argument, the State

informed the jury that they could group the counts together. Specifically, the State told the

jury that they could group Counts 1 and 3 together as felony murder committed during the

perpetration of or attempt to perpetrate aggravated child abuse. As an alternate theory, the

State told the jury that they could group Counts 2 and 4 together as felony murder

committed during the perpetration of or attempt to perpetrate aggravated child neglect.

32

However, the State also told the jury that both groupings referred to the blunt force trauma

to the head that occurred on December 7. The State further explained that Counts 9 and 10

referred to “the continuing course of conduct of neglect from September 28th of 2016 to

December 7th of 2016.”

Later, during deliberations, the jury asked whether Count 3 referred to a specific

context or event, and the parties agreed that it referred to the blunt force trauma inflicted

on December 7. The court instructed the jury of that. The jury then asked whether Count

4 referred specifically to the blunt force trauma inflicted on December 7. Appearing to

change its position, the State then argued that it did not have to prove the date of the offense

beyond a reasonable doubt, and as such, the jury should not be instructed that Count 4

specifically referred to the head trauma. Defense counsel pointed out that Count 4 seemed

to refer to the head trauma and asked the court to instruct the jury to refer to the indictment

for further clarification. Instead, the trial court instructed the jury, “No, but refer to the

instructions.” Defense counsel objected to this answer, believing that the supplemental

instruction misled the jury about the law.

2. Standard of Appellate Review

“Questions involving the propriety of jury instructions are mixed questions of law

and fact,” which this court reviews de novo with no presumption of correctness. State v.

Benson, 600 S.W.3d 896, 902 (Tenn. 2020); State v. Hollon, 671 S.W.3d 561, 564 (Tenn.

Crim. App. 2023).

3. Supplemental Jury Instruction

A defendant is entitled “to a correct and complete charge of the law so that each

issue of fact raised by the evidence will be submitted to the jury on proper instructions.”

State v. Perrier, 536 S.W.3d 388, 403 (Tenn. 2017) (citation and internal quotation marks

omitted). In general, “trial courts have the duty, without request, to give proper jury

instructions as to the law governing the issues raised by the nature of the proceeding and

the evidence introduced at trial.” State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013)

(citation omitted).

Further, “[i]n order to determine whether a conviction should be reversed on the

basis of an erroneous instruction to the jury, this [c]ourt must consider whether the ailing

instruction by itself so infected the entire trial that the resulting conviction violates due

process.” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (citation and internal quotation

marks omitted). A jury charge “is erroneous if it fails to fairly submit the legal issues or if

it misleads the jury as to the applicable law.” Id. (citation and internal quotation marks

33

omitted). When an error occurs in jury instructions, it is generally subject to a harmless

error analysis. Hawkins, 406 S.W.3d at 128.

In this case, the parties agree that the supplemental instruction misled the jury into

thinking they could consider other actions as the basis for a conviction in Count 4. In its

closing argument, the State explicitly told the jury that Count 4 referred to the blunt force

injury that occurred on December 7. Then, when the jury sought clarification of this count,

it was told the exact opposite. As such, the supplemental instruction led the jury to believe

that it could possibly consider any act or omission as the basis for a conviction in Count 4,

even those unconnected with December 7. We agree with the parties that the instruction

jeopardized the unanimity of the jury’s verdict and that the error was not harmless. Count

4 must be remanded for a new trial.

Having prevailed in obtaining a new trial on Count 4, the Defendant argues that all

her other convictions must also be remanded for a new trial as well. She argues that the

improper instruction in Count 4 casts doubt over the jury’s deliberations concerning the

remaining counts. For its part, the State concedes only that Count 4 must be remanded,

and it disagrees that any additional count requires a new trial as a result of the improper

instruction.

From our review of the record, we see no plausible argument that the improper

instruction on Count 4 affected the jury’s deliberations on the felony murder or aggravated

child abuse allegations in Counts 1 and 3. The charges stand alone as an alternate theory

to Counts 2 and 4. They have different elements and facts and require a different analysis

than the actions in Count 4. We also see no plausible argument that the improper instruction

affected the other aggravated child neglect charges in Counts 9 and 10. These offenses

encompass the entire course of conduct from September 28 to December 7 and, in the case

of Count 10, had substantive different elements as well. Moreover, the record contains

overwhelming evidence to establish J.H.’s neglect throughout his six-week stay with the

Defendant. As such, jury unanimity is not at risk for the other counts, particularly as the

jury was properly instructed as to these other counts.

However, a different case is present with Count 2. This count charged the Defendant

with first degree murder in the perpetration of the aggravated child neglect felony alleged

in Count 4, a relationship that the parties do not dispute. A guilty verdict in Count 2, then,

was linked to the jury’s finding that the Defendant was guilty of aggravated child neglect

as alleged in Count 4. If, as all agree, the unanimity of the jury was jeopardized with

respect to Count 4, then it must follow, as the night the day, that the same concern is present

with the jury’s consideration of that same felony in Count 2. In other words, if the jury

was misled as to what they could consider for the underlying felony, then it is impossible

to ensure the unanimity of the resulting felony murder, as the elements of both are identical

for the underlying felony.

34

Accordingly, the Defendant’s convictions in Count 2 and the predicate felony in

Count 4 are reversed, and the case is remanded for a new trial on these counts alone. We

specifically affirm the Defendant’s conviction and life sentence for felony murder in the

perpetration of aggravated child abuse in Count 1, as well as the convictions for aggravated

child abuse in Count 3 and aggravated child neglect in Counts 9 and 10.

F. CONSECUTIVE SENTENCING

In her final issue, the Defendant argues that the trial court erred in imposing partial

consecutive sentencing. Specifically, the Defendant asserts that the trial court erred when

it found the Defendant a dangerous offender under Tennessee Code Annotated section

40‑35-115(b)(4) but did not consider the proper factors as enumerated in State v. Wilkerson,

905 S.W.2d 933 (Tenn. 1995), when making this determination. The State concedes that

the trial court did not consider the Wilkerson factors and that the case should be remanded

for resentencing. We agree.

1. Background

During the sentencing hearing, the State argued for consecutive sentencing. They

argued that the Defendants were dangerous offenders under Tennessee Code Annotated

section 40-35-115(4) and treated J.H. so poorly that it indicated they had little to no regard

for human life; therefore, the public needed to be protected from them. The Defendant

argued that the dangerous offender category did not apply to her for consecutive sentencing

because the factor that she had no hesitation when she committed the crime when the risk

to human life was high only applied when a Defendant’s actions put people other than the

victim at risk. Mr. Gardner’s counsel also argued that the consecutive sentencing factors

did not apply.

The court sentenced the Defendant to life imprisonment on the two felony murder

convictions and imposed seventeen-year sentences for her remaining convictions. The

court merged the Defendant’s two felony murder convictions and the two aggravated child

neglect convictions. The court ordered the two seventeen-year sentences to run

concurrently with each other but consecutive to the life sentence. The court agreed with

the State that the Defendants were dangerous offenders because “this situation went on for

a period of two and a half months” and imposed consecutive sentences.

2. Standard of Appellate Review

When a defendant challenges the trial court’s decision to impose consecutive

sentences, we review that decision for an abuse of discretion accompanied by a

35

presumption of reasonableness. See State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013).

Thus, we defer to “the trial court’s exercise of its discretionary authority to impose

consecutive sentences if it has provided reasons on the record establishing at least one of

the seven grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]” Id. at 861.

As our supreme court has recognized, “[s]o long as a trial court properly articulates reasons

for ordering consecutive sentences, thereby providing a basis for meaningful appellate

review, the sentences will be presumed reasonable and, absent an abuse of discretion,

upheld on appeal.” Id. at 862.

3. Dangerous Offender Classification

The process of imposing discretionary consecutive sentences pursuant to Tennessee

Code Annotated section 40-35-115(b) involves two steps. See State v. Gilliam, No. E2023-

00533-CCA-R3-CD, 2024 WL 1829118, at *3 (Tenn. Crim. App. Apr. 26, 2024), no perm.

app. filed. First, the trial court must find by a preponderance of the evidence that “the

defendant qualifies for consecutive sentencing under one of the classifications set forth in

section 40-35-115(b).” State v. Perry, 656 S.W.3d 116, 127 (Tenn. 2022) (footnote

omitted). Second, the trial court must “then choose whether, and to what degree, to impose

consecutive sentencing based on the facts and circumstances of the case, bearing in mind

the purposes and principles of sentencing.” Id.

In this case, the trial court found that the Defendant was a dangerous offender and

qualified for consecutive sentencing pursuant to Tennessee Code Annotated section

40‑35‑115(b)(4). Our supreme court has held that “before imposing consecutive sentences

based upon the dangerous offender classification, trial courts must conclude that the

evidence has established that the aggregate sentence is ‘reasonably related to the severity

of the offenses’ and ‘necessary in order to protect the public from further criminal acts.’”

Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905 S.W.2d at 938). These conclusions

also must be supported by “particular facts” in the record. See State v. Brodie, No. M2023-

00135-CCA-R3-CD, 2024 WL 3272795, at *17 (Tenn. Crim. App. July 2, 2024) (“Because

the trial court failed to make any specific findings regarding Harbison’s actions as they

related to the Wilkerson factors in determining that he was a dangerous offender, the record

cannot support consecutive sentencing.”), no perm. app. filed.

In this case, the State agrees that the appropriate findings were not made to impose

consecutive sentences under Wilkerson. As such, we cannot “presume that the consecutive

sentences are reasonable,” nor can we “defer to the trial court’s exercise of its discretionary

authority.” Pollard, 432 S.W.3d at 863-64. Because the considerations required under

Wilkerson involve “a fact-intensive inquiry . . . the better course is to remand to the trial

court for consideration of the Wilkerson requirements in determining the propriety of

36

consecutive sentencing.” Id.; State v. Ragland, No. W2022‑01303-CCA-R3-CD, 2023 WL

3947501, at *6 (Tenn. Crim. App. June 12, 2023) (citations omitted), no perm. app. filed.

We respectfully vacate the order imposing consecutive sentences and remand for

the trial court to consider the sentencing factors outlined in Wilkerson. We note that the

trial court’s reasoning need not be “particularly lengthy or detailed,” but it “simply must

set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments

and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Perry,

656 S.W.3d at 126 (citation and internal quotation marks omitted). In all other respects,

the trial court’s sentences are affirmed.

II. ISSUES RAISED BY PHILLIP GARDNER

We now turn to Mr. Gardner’s issues raised in his appeal. For this next section of

our opinion, we refer to Mr. Gardner as “the Defendant.”

In this appeal, the Defendant argues that the evidence is legally insufficient to

support his convictions. He also asserts that the trial court erred by (1) taking his mid-trial

motion for a judgment of acquittal under advisement; (2) denying the motion to sever the

Defendants; (3) failing to exclude evidence of prior injuries to the child; (4) failing to

instruct the jury on his alibi defense; and (5) giving an improper supplemental jury

instruction.

We address each of these issues in turn.

A. LEGAL SUFFICIENCY OF THE EVIDENCE

The Defendant argues that the evidence is legally insufficient to support his

conviction for felony murder based on aggravated child neglect and his convictions for

aggravated child neglect. He asserts that the State failed to prove that he knowingly

neglected J.H. because he was at work when the fatal head injury occurred. The State

responds that the evidence is legally sufficient to prove aggravated child neglect and felony

murder. We agree with the State.

1. Standard of Appellate Review

As we observed above, “The standard for appellate review of a claim challenging

the sufficiency 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

37

elements of the crime beyond a reasonable doubt.” Miller, 638 S.W.3d at 157 (citation and

internal quotation marks omitted).

2. First Degree Felony Murder and Aggravated Child Neglect in

Counts 2 and 4

The Defendant challenges his convictions for felony murder and aggravated child

neglect.8 We identified the statutory elements with respect to these two crimes in our

discussion of Ms. Gardner’s case. Without repeating the entire discussion here, first degree

felony murder as charged in Count 2 is defined as the “killing of another committed in the

perpetration of or attempt to perpetrate any . . . aggravated child neglect[.]” Tenn. Code

Ann. § 39‑13‑202(a)(2). To sustain the Defendant’s conviction for first degree felony

murder, the State must first establish that the underlying felony of aggravated child neglect

occurred.

In addition, Count 4 charged the Defendant with aggravated child neglect. As we

noted above, the offense of child neglect is defined as “[a]ny person who knowingly abuses

or neglects a child under eighteen (18) years of age, so as to adversely affect the child’s

health and welfare.” Tenn. Code Ann. § 39-15-401(b). As charged in this count, the offense

becomes aggravated when the neglect “results in serious bodily injury to the child[.]”

Id. § 39-15-402(a)(1).

a. “Knowing” Element

The Defendant first challenges the “knowing” mens rea element of the child neglect

charge. He asserts that because he was at work on December 7, 2016, he could not have

knowingly neglected J.H. on that day. In response, the State argues that for the child

neglect convictions, it was immaterial whether the Defendant was present when J.H.

suffered the fatal blow. Instead, it argues that he knowingly left J.H. in Ms. Gardner’s care

after a series of mysterious injuries and never sought medical help. We agree with the

State.

Our supreme court has recognized that the offense of child neglect is a nature-of-

conduct offense. State v. Ducker, 27 S.W.3d 889, 897 (Tenn. 2000). As applied to a nature-

of-conduct element, the mens rea of “knowingly” is established when the proof shows that

“the person is aware of the nature of the conduct[.]” See Tenn. Code Ann. § 39-11-106(23)

(2018) (emphasis added). As such, in the context of child neglect, criminal liability may

8

The Defendant also appears to challenge the sufficiency of the convicting evidence for

aggravated child abuse and the corresponding felony murder count. However, the jury acquitted him of

these charges.

38

exist where the defendant is aware of the neglectful nature of his or her conduct, and this

conduct adversely affects the child’s health and welfare. See State v. Hanson, 279 S.W.3d

265, 277 (Tenn. 2009); State v. Dewitt, No. M2015-00816-CCA-R3-CD, 2016 WL

6638857, at *7 (Tenn. Crim. App. Nov. 10, 2016) (“The statute merely requires that the act

of neglecting the child must be knowing.”), no perm. app. filed. A defendant “is not

required to have any awareness of the likelihood that injury could result from the neglect.”

State v. Doty, No. W2018-00701-CCA-R3-CD, 2020 WL 4045669, at *11 (Tenn. Crim.

App. July 17, 2020), no perm. app. filed.

In this case, there is no dispute that J.H. lived with the Defendant for over one month

before his death and that the Defendant, as J.H.’s father, had a legal duty to care for J.H.

See Sherman, 266 S.W.3d at 404. There is also no dispute that the Defendant continually

left J.H. in the sole care of Ms. Gardner when he went to work.

According to the medical examiner, J.H. suffered from broken ribs and a fractured

nose during the time he was in the care of the Defendant and Ms. Gardner. The medical

examiner confirmed that these injuries would have caused J.H. to be in obvious pain for

several days and that several burns, bruises, and marks on J.H.’s body would have been

visible to the Defendant. Moreover, when Ms. Perry spoke with the Defendant, he admitted

that he knew about J.H.’s fall in the bathtub, as well as his black eye and the burns to his

hands. He confirmed to her that J.H. was in Ms. Gardner’s care during these times and that

Ms. Gardner told him what happened.

Viewing the evidence in the light most favorable to the State, a rational juror could

find that the Defendant was aware that his son was suffering from noticeable injuries and

severe pain after being in Ms. Gardner’s care. However, despite this awareness, the

Defendant nevertheless continued to leave J.H. in her exclusive care on December 7, 2016,

when J.H. suffered a fatal blow to his head that resulted in his death. Contrary to the

Defendant’s arguments, we conclude that a rational juror could have found that the

Defendant acted with an awareness that his conduct in leaving his son in the care of Ms.

Gardner evidenced “an absence of care or attention” in his health and welfare that placed

J.H. at risk of harm. See Neglect, Black’s Law Dictionary (6th ed. 1990). The evidence is

legally sufficient to support the jury’s finding that the Defendant knowingly neglected his

son as alleged in Count 4.

b. “Adversely Affect” Element

The Defendant next argues that the State failed to prove that J.H.’s welfare was

adversely affected by his neglect. More specifically, he asserts that his delay in seeking

medical treatment for J.H. (or complete lack thereof) did not lead to an actual, deleterious

effect upon J.H. Instead, he maintains that only Ms. Gardner’s abuse led to an adverse

39

effect on J.H. and that his delay in seeking medical treatment was, therefore,

inconsequential. The State responds that the evidence is sufficient to establish that element

because the Defendant’s neglect resulted in J.H. suffering a blow to the head that resulted

in his death. We agree with the State.

As we observed above, the statute makes clear that the neglect of a child must

adversely affect the child’s health or welfare. Tenn. Code Ann. § 39-15-401(b); Mateyko,

53 S.W.3d at 671-72. Our supreme court has emphasized that the statute requires more

than a mere risk of harm. Instead, “before a conviction for child neglect may be sustained,

the State must show that the defendant’s neglect produced an actual, deleterious effect or

harm upon the child’s health and welfare.” Mateyko, 53 S.W.3d at 671-72.

As we also observed above, Count 4 was an alternative to the child abuse theory in

Count 3. Although Count 3 proceeded under the theory that the Defendants directly

inflicted the blunt force trauma that later resulted in J.H.’s death, Count 4 rested on the

theory that the Defendants were aware that J.H. was suffering from a condition that caused

him to fall or otherwise injure himself. As the State argued, the Defendants neglected J.H.

by leaving him unsupervised and failing to investigate or seek medical attention for this

condition, with J.H. suffering a fatal head injury as a result.

In this context, the Defendant continually left J.H. under the sole care of Ms.

Gardner, where J.H. suffered multiple unexplained injuries. The Defendant admits that he

knew about these injuries yet took no action to help J.H. and continued to leave him under

Ms. Gardner’s care. Further, according to the medical examiner, J.H.’s pain from his

injuries would have been obvious to others, and the Defendant chose to ignore this, as well.

The Defendant’s continuous neglect of J.H. by failing to seek medical treatment, as well as

his continuous neglect in leaving J.H. in the sole care of Ms. Gardner, where he would get

harmed, led to the events of December 7 and J.H.’s eventual death. As such, when viewed

in the light most favorable to the State, a rational juror could find that, as a result of the

Defendant’s neglect, J.H. suffered an actual, deleterious effect or harm upon his health and

welfare.

Finally, viewing the evidence in the light most favorable to the State, a rational juror

could also find that the death of J.H. occurred because of this neglect and that his death

was closely connected to the neglect in time, place, causation, and continuity of action.

We, therefore, conclude that the proof is legally sufficient to support the Defendant’s

convictions for the first degree felony murder and the aggravated child neglect of J.H. as

alleged in Counts 2 and 4 of the indictment.

40

3. Aggravated Child Neglect in Counts 9 and 10

The Defendant next appears to argue that the evidence was also insufficient to

support his convictions in Counts 9 and 10, which were two alternative theories of

aggravated child neglect. We will address each of these theories in turn.

a. Count 9

As set forth in the indictment, Count 9 alleged that the Defendant committed the

offense of aggravated child neglect between the dates of September 28, 2016, and

December 7, 2016. Therefore, Count 9 shares the same statutory elements as Count 4,

though with a different date range.

In this case, J.H. was in the Defendant’s care for over one month before his death.

According to the medical examiner, J.H. suffered from broken ribs and a fractured nose

during the time he was in the Defendant’s care. The medical examiner confirmed that these

injuries would have caused J.H. to be in obvious pain for several days and that several

burns and marks on J.H.’s body would have been visible to the Defendant. When Ms. Perry

spoke with the Defendant, he admitted that he knew about J.H.’s fall in the bathtub, as well

as his black eye and the burns to his hands.

Our supreme court has recognized that a parent’s decision to knowingly forgo

medical treatment, with knowledge and awareness of a child’s obvious physical anguish,

may constitute criminal child neglect. See, e.g., State v. Adams, 24 S.W.3d 289, 297 (Tenn.

2000). This neglect “lasts as long as such care is not provided, and a child continues to be

in a situation of want as long as the morals or health of the child is endangered.” Id. at 296.

Viewing the evidence in the light most favorable to the State, a rational juror could find

that the Defendant was aware that J.H. was suffering from significant injuries that were

causing obvious pain, bruising, and other marks. A rational juror could also find that the

Defendant knowingly neglected his son when he continually failed to seek medical

treatment despite this awareness. We conclude that the proof is legally sufficient to support

the Defendant’s conviction for aggravated child neglect as alleged in Count 9.

b. Count 10

As set forth in the indictment, Count 10 alleged that the Defendant committed the

offense of child neglect, and the neglect “was especially heinous, atrocious or cruel, or

involved the infliction of torture to the victim[.]” Tenn. Code Ann. § 39-15-402(a)(3). The

offense of child neglect is defined as “[a]ny person who knowingly abuses or neglects a

child under eighteen (18) years of age, so as to adversely affect the child’s health and

41

welfare.” Id. § 39-15-401(b); see Mateyko, 53 S.W.3d at 671-72. This court has previously

defined “heinous, atrocious, and cruel” as follows:

• Heinous: “Grossly wicked or reprehensible; abominable; odious; vile.”

• Atrocious: “Extremely evil or cruel; monstrous; exceptionally bad;

abominable.”

• Cruel: “Disposed to inflict pain or suffering; causing suffering; painful.”

State v. Bradshaw, No. W2014-00175-CCA-R3-CD, 2015 WL 523688, at *6-7 (Tenn.

Crim. App. Feb. 9, 2015) (citing State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985)),

perm. app. denied (Tenn. May 18, 2015).

Although the Defendant appears to argue generally that the evidence is insufficient

to support this count, he does not specifically challenge whether the neglect J.H. suffered

was especially heinous, atrocious, or cruel. However, as we discussed above, J.H. was in

the Defendant’s care for over one month before his death. According to the medical

examiner, J.H. suffered from broken ribs and a fractured nose during the time he was in the

Defendant’s care. The medical examiner confirmed that the rib injuries were four- to six-

weeks old and would have caused J.H. to be in obvious pain. In addition, the Defendant

admitted that he was actually aware that J.H. suffered several other injuries across his body

as a whole that occurred at different times.

Viewing the evidence in the light most favorable to the State, a rational juror could

find that the Defendant knowingly neglected his son and that the neglect was especially

cruel. Given the number and nature of J.H’s injuries, as well as the duration of the adverse

effects to his health and welfare from the failure to seek medical care, a rational juror could

find that the Defendant’s neglect needlessly and callously caused J.H. to suffer significant

pain above that contemplated by the neglect elements themselves. As such, we conclude

that the proof is legally sufficient to support the Defendant’s convictions for aggravated

child neglect as alleged in Count 10.

42

B. MOTION FOR A JUDGMENT OF ACQUITTAL

The Defendant next argues that the trial court erred when it took the motion for a

judgment of acquittal under advisement at the close of the State’s proof. In response, the

State asserts that the Defendant waived plenary review of this issue because he failed to

object in the trial court. We agree with the State.

As background for this issue, Ms. Gardner’s counsel made a motion for a judgment

of acquittal after the State’s close of proof. Counsel cited several cases discussing the

differences between child abuse and child neglect and then asked the court to review the

cases overnight. The Defendant’s counsel then joined the motion, asking for the court’s

ruling to apply to him as well. The court agreed and took the motion under advisement.

The following day, the trial court denied the motion. The court noted that it had

read numerous cases and found that the facts here were “significantly murky.”

Characterizing the issue as close, it nevertheless denied the motion and allowed the

codefendants to proceed with their respective cases.

Citing Mathis v. State, 590 S.W.2d 449 (Tenn. 1979), the Defendant now argues that

it was reversible error for the trial court to have taken the motion under advisement. We

respectfully disagree. The supreme court’s decision in Mathis does not prohibit a trial court

from carefully considering a motion for a judgment of acquittal while taking the necessary

time to do so. It only holds that when the motion is made after the State’s case, the court

must consider only the State’s evidence and rule on the motion before allowing the trial to

proceed. Mathis, 590 S.W.2d at 453 (finding error when the trial judge “elected to take the

motion under advisement and hear the entire case before making a final ruling”). In the

present case, the trial court ruled on the motion for judgment of acquittal before allowing

the defense to present its evidence. Taking a reasonable period to consider the motion was

both appropriate and within the court’s discretion. The Defendant is not entitled to relief

on this issue.

C. SEVERANCE OF DEFENDANTS

The Defendant next argues that the trial court erred in failing to sever the

Defendants’ cases pursuant to Tennessee Rule of Criminal Procedure 14. He asserts that

because the State confirmed his alibi for December 7, 2016, any evidence about that date

was prejudicial to him. He further alleges that with a severance, “no direct or

circumstantial evidence” would have been offered against him.

43

In response, the State observes that the Defendant did not file a motion to sever

Defendants prior to trial. It also asserts that the Defendant has failed to show that he

suffered any prejudice, particularly given that he was acquitted on the charges of

aggravated child abuse. We conclude that the Defendant did not properly preserve this

issue for plenary review on appeal.

The Tennessee Rules of Criminal Procedure require that a motion to sever

defendants must be raised before trial. Tenn. R. Crim. P. 12(b)(2)(E). If a party does not

file a motion to sever before trial, then the party waives consideration of the issue. See

Tenn. R. Crim. P. 12(f)(1); State v. Branham, 501 S.W.3d 577, 591 (Tenn. Crim. App.

2016); State v. Williams, No. W2018-00924-CCA-R3-CD, 2020 WL 211546, at *28 (Tenn.

Crim. App. Jan. 14, 2020) (“The Defendant did not file a pretrial motion to sever and has

therefore waived consideration of the issue.”), perm. app. denied (Tenn. June 5, 2020).

However, the mere filing of a pretrial motion “is not sufficient to raise an issue for

the court to decide.” See State v. Hurn, No. E2022-01192-CCA-R3-CD, 2023 WL

7001621, at *8 (Tenn. Crim. App. Oct. 24, 2023), perm. app. denied (Tenn. Apr. 11, 2024).

Instead, to avoid waiving the issues raised by a pretrial motion, a defendant must

affirmatively “bring [the] motion to the attention of the trial judge and have the trial judge

rule upon the motion prior to trial.” State v. Aucoin, 756 S.W.2d 705, 709 (Tenn. Crim.

App. 1988); State v. Burton, 751 S.W.2d 440, 445 (Tenn. Crim. App. 1988) (citing Tenn.

R. Crim. P. 12(b)(3)). Indeed, “if a written motion is filed and the moving party takes no

further action to bring the motion to the trial court’s attention, the motion will be treated as

abandoned.” Hurn, 2023 WL 7001621, at *8 (citing State v. Banks, 271 S.W.3d 90, 170

(Tenn. 2008)).

In this case, the Defendant never filed a motion to sever his case from his

codefendant. Although his codefendant filed such a limited motion to sever based on

Bruton issues,9 see Tenn. R. Crim. P. 14(c)(1), the Defendant did not join the motion during

its litigation. In fact, the trial court’s written order recognized that only Ms. Gardner had

requested relief.

Some fifteen months later, the Defendant’s newly appointed counsel filed a request

to join all of Ms. Gardner’s previously argued motions. He asserted that this request was

“to protect his rights should this matter require judicial review.” In response, the trial court

subsequently issued an order that joined the Defendant in all previously argued motions so

that “the record does not reflect that [the Defendant] waived the aforementioned arguments

9

See Bruton v. United States, 391 U.S. 123 (1968) (holding that allowing a codefendant’s

inadmissible confession that implicates the defendant in a joint trial violates the defendant’s Sixth

Amendment right to confrontation).

44

at the trial level.” Importantly, the trial court added that the “Latonia Gardner rulings be

applied to Phillip Gardner if appropriate.”

In its discretion, a trial court may permit a defendant to join a specific motion filed

by a codefendant. See United States v. Nance, 168 F. Supp. 3d 541, 554 (W.D.N.Y. 2016)

(granting a motion to join where the defendant also has standing and relief would be

applicable to the defendant); but see United States v. Cobb, 544 F. Supp. 3d 310, 344

(W.D.N.Y. 2021) (adopting a policy “requiring each defense counsel to independently file

motions on behalf of their clients and not simply file boilerplate motions seeking to ‘join

in relevant motions of co-counsel.’”). However, unless the defendant raises additional

grounds for relief, the joining defendant will necessarily be limited to the issues actually

raised and decided in the original motion.

Here, Ms. Gardner’s motion only sought severance pursuant to Tennessee Rule of

Criminal Procedure 14(c)(1) because of Bruton issues. It did not seek a severance under

Rule 14(c)(2), as the Defendant does in this court, or argue that a severance was necessary

to achieve a fair determination of the guilt or innocence of one or more defendants. By

joining Ms. Gardner’s motion and having its ruling apply to him, the Defendant arguably

achieved only the preservation of her Bruton issues, nothing more.10

Had the Defendant wished to raise a severance issue on grounds other than Bruton,

he was first required to raise that issue in a written motion before trial. Tenn. R. Crim. P.

12(b)(2)(E). He was then obligated to bring that motion to the trial court’s attention and

seek a ruling from the court before trial. Hurn, 2023 WL 7001621, at *8. He did neither.

Instead, he asks us to place the trial court in error on an issue that it was never asked to

consider or rule upon in the first instance.11 We respectfully decline the invitation. See

10

This case illustrates well the dangers of uncritically joining motions filed by other parties.

Ms. Gardner sought a severance because of concerns that the Defendant’s statements would be used against

her. Because the Defendant’s own statements would be admissible against him in any event, this request

for Bruton relief is nonsensical when applied to the Defendant himself. Cf. State v. Luckie, 106 N.E.3d 289,

298 (Ohio Ct. App. 2018) (“The testimony concerned Appellant’s own statement, not that of Ramirez, his

non-testifying co-defendant. Therefore, the testimony does not implicate Bruton as to Appellant.”). By

joining this motion without a further request for relief, he effectively preserved no issue at all for further

review.

11

Despite not raising this issue before trial, the Defendant attempted to raise it after trial in

his motion for a new trial. This action failed to preserve the issue for appellate review. See State v. Vance,

596 S.W.3d 229, 253 (Tenn. 2020) (“[A] party is bound by the ground asserted when making an objection

to the admission of evidence and cannot assert a new or different theory to support the objection in the

motion for new trial.”). Indeed, it is well-established that “[w]hen a party abandons the ground asserted

when the objection was made and asserts completely different grounds in the motion for a new trial and in

[the appellate] court, the party waives the issue.” State v. Howard, No. M2020-01053-CCA-R3-CD, 2021

45

Thompson, 2023 WL 4552193, at *4 (“[W]e have been extremely hesitant to put a trial

court in error where its alleged shortcoming has not been the subject of a contemporaneous

objection.” (citation and internal quotation marks omitted)).

We conclude that the Defendant has waived plenary review of whether a severance

of defendants should have been granted pursuant to Rule 14(c)(1). Because the Defendant

does not request plain error review otherwise, we do not consider the issue further. See

State v. Woodruff, No. W2023-01446-CCA-R3-CD, 2024 WL 2874583, at *3 (Tenn. Crim.

App. June 7, 2024), no perm. app. filed. The Defendant is not entitled to relief.

D. EVIDENCE OF PRIOR INJURIES

The Defendant next appears to argue that the State failed to establish venue because

he asserts that J.H.’s injuries occurred in Ohio and not in Davidson County. He further

asserts that the trial court erred in failing to exclude evidence of these previous injuries

under Rule 404(b) of the Tennessee Rules of Evidence. The State responds that there was

sufficient evidence the offenses were committed in Davidson County and that the trial court

properly held that Rule 404(b) did not control whether the evidence of prior injuries was

admissible. We agree with the State.

1. Venue

The Defendant first argues that venue was never established because, he claims, the

injuries inflicted upon J.H. occurred while in the care of Ms. Hunter in Ohio. In response,

the State argues that venue was established because the proof showed that the offenses

happened in Davidson County. We agree with the State.

A defendant has the right to be tried by an impartial jury of the county in which the

crime was committed. Tenn. Const. art. I, § 9; Tenn. R. Crim. P. 18. As our supreme court

has recognized, “[p]roof of venue is necessary to establish the jurisdiction of the court, but

it is not an element of any offense and need only be proved by a preponderance of the

evidence.” State v. Young, 196 S.W.3d 85, 101 (Tenn. 2006). The question of venue is for

the jury to decide. Venue may be established by circumstantial evidence, and “the jury is

entitled to draw reasonable inferences from the evidence.” Id. at 101-02.

Initially, the Defendant alleged in his motion for a new trial and on appeal that the

venue of the “suspected abuse” was not established. However, the jury found the

WL 5918320, at *6 (Tenn. Crim. App. Dec. 15, 2021), no perm. app. filed; see also State v. Schiefelbein,

230 S.W.3d 88, 129 (Tenn. Crim. App. 2007).

46

Defendant not guilty of the child abuse charge and its associated felony murder count. As

such, any issue as to venue for the child abuse allegations has been rendered moot by the

jury’s acquittal. See State v. Adams, 916 S.W.2d 471, 477 (Tenn. Crim. App. 1995) (“When

the trial court granted the motion for judgment of acquittal, it rendered the issues contained

in the appellee’s motion for new trial moot.”); State v. Amble, No. E2016-02495-CCA-R3-

CD, 2018 WL 1989632, at *2 (Tenn. Crim. App. Apr. 27, 2018) (recognizing that “an issue

is moot upon acquittal”), perm. app. denied (Tenn. Sept. 13, 2018).

However, for two reasons, we conclude that venue in Davidson County was plainly

established with respect to the child neglect charges. First, the elements of aggravated

child neglect do not require that particular injuries occur in Tennessee. See Tenn. Code

Ann. §§ 39-15-401(b); 39-15-402(a)(3). As such, even if J.H.’s injuries occurred in Ohio—

and we note that the Defendant admitted to knowing that at least some of the injuries

occurred in Tennessee—the place where J.H.’s injuries were inflicted is immaterial if the

Defendant’s knowing neglect occurred in this state.

Second, the evidence establishes that the Defendant’s knowing neglect of J.H.

occurred in Davidson County. As we explained above, a rational juror could find that the

Defendant knowingly neglected the victim when he continually failed to seek medical

treatment despite knowing about many of his unexplained injuries. Additionally, a rational

juror could have found that J.H. would have been in visible pain due to several of his

injuries, and, as such, the Defendant would have known of the pain and the associated

injuries. Yet, he continually chose not to seek medical treatment, and all of these decisions

occurred in Davidson County. Moreover, despite knowing about all these injuries, the

Defendant still decided to leave J.H. in the exclusive care of Ms. Gardner on December 7,

2016, in Davidson County, when J.H. suffered a fatal blow to his head that resulted in his

death.

From our review of the record, all of the events surrounding the Defendant’s own

aggravated child neglect that ultimately led to J.H.’s death occurred in Davidson County.

As such, because a rational juror could find, by a preponderance of the evidence, that the

offenses of felony murder and aggravated child neglect occurred in Davidson County, the

State established venue by a preponderance of the evidence. The Defendant is not entitled

to relief on this issue.

47

2. Tennessee Rule of Evidence 404(b)

The Defendant also argues that the trial court erred when it failed to exclude

evidence of J.H.’s prior injuries pursuant to Tennessee Rule of Evidence 404(b).12

Specifically, he claims that the trial court erred in finding that the State had met “the

requisites of 404(b)” and that the danger of unfair prejudice outweighed the probative value

of the evidence. The State responds that because there was no evidence as to the identity

of the person who inflicted the injuries, Rule 404(b) did not apply. We agree with the State.

Tennessee Rule of Evidence 404(b) provides that “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show action

in conformity with the character trait.” The rationale supporting the rule is that the

admission of such evidence “carries with it the inherent risk of the jury convicting a

defendant of a crime based on his or her bad character or propensity to commit a crime,

rather than the strength of the proof of guilt on the specific charge.” Eady, 685 S.W.3d at

712 (citation and internal quotation marks omitted).

Importantly, unless the evidence shows that the defendant committed the prior act,

the evidence cannot show “that the defendant had a criminal disposition and that he could

be expected to act in conformity therewith.” State v. Stevens, 78 S.W.3d 817, 837 (Tenn.

2002). Thus, in the context of child abuse cases, our supreme court has recognized that

Rule 404(b) does not exclude evidence of a child’s prior injuries if the evidence does not

show that the defendant inflicted the injuries.

For example, in State v. DuBose, 953 S.W.2d 649 (Tenn. 1997), the defendant was

convicted of felony murder committed during the perpetration of child abuse, and the court

allowed evidence of prior abdominal injuries to be admitted over the defendant’s objection.

Id. at 653. Our supreme court then held that “[s]ince the evidence admitted did not show

the identity of the person who caused the prior abdominal injuries sustained by the victim,

it was not inadmissible under Rule 404(b) as reflecting upon the character of the

defendant.” Id.; see also State v. Gomez, 367 S.W.3d 237, 245 n.6 (Tenn. 2012) (“In this

case, the assaults [on the child] were committed by Mr. Gomez. Rule 404(b) therefore is

inapplicable as to Ms. Lopez.”). As such, if the evidence does not show that the defendant

caused the child’s prior injuries, “the relevancy of the evidence should be tested under

Tennessee Rules of Evidence 401 and 402, not 404(b).” State v. Lacy, 983 S.W.2d 686,

692 (Tenn. Crim. App. 1997) (citing DuBose, 953 S.W.2d at 654).

12

The Defendant does not argue that this evidence is inadmissible under other evidence rules

or statutes, save for the relevance of the previous injuries. See Tenn. R. Evid. 402. We addressed the

relevance of this evidence in our discussion of the expert testimony issues, and because the Defendant

argues no grounds for exclusion other than Rule 404(b), we limit our discussion to that issue.

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In this case, the trial court correctly held that Rule 404(b) did not apply because

there was no evidence that the defendant inflicted the prior injuries. Without this evidence,

J.H.’s prior injuries do not show that the Defendant had a criminal disposition and acted in

conformity therewith. See Stevens, 78 S.W.3d at 837. In other words, because it was never

claimed that the Defendant inflicted the prior injuries, the evidence could not reflect on his

character and, therefore, be excluded by Rule 404(b) as it applied to him. Because the trial

court correctly determined that Rule 404(b) did not apply to this evidence, the Defendant

is not entitled to relief on this issue.

E. JURY INSTRUCTIONS

The Defendant next argues that the trial court improperly gave a supplemental jury

instruction in response to a jury question. He also asserts that he was entitled to an alibi

instruction. We address each of these issues in turn.

1. Standard of Appellate Review

A defendant is entitled “to a correct and complete charge of the law so that each

issue of fact raised by the evidence will be submitted to the jury on proper instructions.”

Perrier, 536 S.W.3d at 403 (citation and internal quotation marks omitted). In general,

“trial courts have the duty, without request, to give proper jury instructions as to the law

governing the issues raised by the nature of the proceeding and the evidence introduced at

trial.” Hawkins, 406 S.W.3d at 129 (citations omitted). A jury charge “is erroneous if it

fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.”

James, 315 S.W.3d at 446 (citation and internal quotation marks omitted). “Questions

involving the propriety of jury instructions are mixed questions of law and fact,” which

this court reviews de novo with no presumption of correctness. Benson, 600 S.W.3d at

902; Hollon, 671 S.W.3d at 564.

2. Jury Question and Supplemental Instruction

Like his co-defendant, the Defendant argues that the trial court improperly gave a

supplemental jury instruction in response to a jury question. Specifically, the Defendant

asserts that the trial court provided a contradictory and misleading instruction that

jeopardized the jury’s unanimity and undermined the verdict’s integrity. The State

concedes this point and agrees that Count 4 should be remanded for a new trial. We agree.

As discussed above, the parties agree on appeal that the supplemental instruction

misled the jury into thinking they could consider other actions as the basis for a conviction

in Count 4. We agree with the parties that the instruction jeopardized the unanimity of the

49

jury’s verdict and that the error was not harmless. For the reasons we have discussed,

Count 4 must be remanded for a new trial.

The Defendant further argues that his remaining convictions must also be remanded

for a new trial as well. For the reasons given above in our analysis of Ms. Gardner’s nearly

identical argument, we agree with respect to Count 2 but respectfully disagree as to Counts

9 and 10. As such, we vacate the convictions in Counts 2 and 4 and remand the case for a

new trial on these counts alone.

3. Alibi

Finally, the Defendant argues that the trial court should have given an alibi jury

instruction because he was not home when J.H. suffered the trauma to his head on

December 7, 2016. The State responds that any error was harmless because the jury

acquitted him of the abuse that occurred on December 7, 2016. We agree with the State.

We have defined an “alibi” as being “[a] defense based on the physical impossibility

of a defendant’s guilt by placing the defendant in a location other than the scene of the

crime at the relevant time.” State v. Looper, 118 S.W.3d 386, 416-17 (Tenn. Crim. App.

2003). Importantly, however, an alibi defense cannot be fairly raised by the evidence

without a physical impossibility of committing the crime. See State v. Gomez, No. M2018-

00529-CCA-R3-CD, 2019 WL 911160, at *4 (Tenn. Crim. App. Feb. 22, 2019), no perm.

app. filed; Looper, 118 S.W.3d at 417 (recognizing that “the essence of an alibi is the

physical impossibility of a defendant’s having been at the scene when the crime was

committed”).

The trial court must instruct the jury of an alibi defense when it is fairly raised by

the evidence, regardless of whether the defendant requests the instruction. Manning v.

State, 500 S.W.2d 913, 915 (Tenn. 1973). In Manning, our supreme court identified three

sets of circumstances where an alibi defense could be fairly raised: “(1) where the

defendant’s alibi has been corroborated by other credible witnesses; (2) where the victim

has been unable to identify the defendant; [or] (3) where the proof against the defendant is

wholly circumstantial.” Id. at 916 (citations omitted). A failure to instruct the jury of an

alibi defense when the proof fairly raises it could constitute reversible error. Moffitt v.

State, 29 S.W.3d 51, 57 (Tenn. Crim. App. 1999).

In this case, the State’s proof supported the Defendant’s alibi. It introduced evidence

that the Defendant was at work on December 7, 2016, when J.H. suffered the fatal blow to

his head. Indeed, Detective Vaughn testified that she confirmed that the Defendant was at

work that day. As such, because the relevant evidence fairly raised an alibi defense, the

Defendant was entitled to an alibi instruction with respect to the child abuse charges. That

50

said, because the Defendant was acquitted of these charges, the failure to give an instruction

as to Counts 1 and 3 could not have affected the jury’s verdict. See State v. Cecil, 409

S.W.3d 599, 610 (Tenn. 2013) (“In order to determine whether an instructional error is

harmless, the appellate court must ask whether it appears beyond a reasonable doubt that

the error complained of did not contribute to the verdict obtained.” (citation and internal

quotation marks omitted)). We conclude that any error in failing to give an alibi instruction

as to the child abuse charges was clearly harmless beyond a reasonable doubt. Cf. Benson,

600 S.W.3d at 907 (analyzing a failure to instruct on a general defense under constitutional

harmless error standard).

However, there was no error in failing to give an alibi instruction as to the child

neglect charges. No evidence shows that the Defendant’s being at work prevented him

from arranging medical care for his son’s serious injuries that were obvious and actually

known to the Defendant. Indeed, despite knowing about these injuries, the Defendant still

decided to leave J.H. in the care of Ms. Gardner on December 7, 2016. In other words,

because nothing about the Defendant’s being at work on that day, or any other day, rendered

his neglect impossible to commit, the proof did not fairly raise an alibi defense as it applied

to the child neglect charges and its associated felony murder count. We conclude that the

Defendant is not entitled to relief on this ground.

III. CORRECTION OF JUDGMENTS OF CONVICTION

On our own motion, we note an issue with the count numbers reflected in the

judgments of conviction as to both Defendants. As noted above, Counts 9 and 10 were

renumbered for the trial jury as Counts 5 and 6. This procedure was perfectly permissible.

See supra, footnote 7. However, once the trial is concluded, the judgments “must correctly

reflect the charges as presented in the indictment and the disposition for each indicted

offense.” State v. Bullock, No. E2021-00661-CCA-R3-CD, 2022 WL 3012460 (Tenn.

Crim. App. July 29, 2022), no perm. app. filed. As such, the judgments should reflect the

disposition of the charges as they were brought and numbered by the grand jury rather than

as they were presented to the trial jury. See State v. Jones, No. W2022-00046-CCA-R3-

CD, 2023 WL 1980871, at *1 (Tenn. Crim. App. Feb. 14, 2023) (“For the sake of

consistency with the transcripts, we will refer to the counts as renumbered by the trial court;

however, we note that the judgment forms must be corrected to reflect the counts as

enumerated in the indictment.”), perm. app. denied (Tenn. May 15, 2023).

In this case, the judgments in each case reflect dispositions on Counts 9 and 10 as

they were renumbered for the trial jury, not as they were originally charged.13 As such, on

13

These inadvertent misidentifications occur in both the count designations and in the

“Special Conditions” boxes.

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remand, the trial court is respectfully requested and ordered to correct the judgments to

reflect the enumeration of the counts as charged by the grand jury.

CONCLUSION

In summary, we affirm Ms. Gardner’s conviction and life sentence for felony murder

in the perpetration of aggravated child abuse and her conviction for aggravated child abuse

in Count 3. As to both Defendants, we affirm their respective convictions for aggravated

child neglect in Counts 9 and 10. However, we respectfully reverse and vacate the

Defendants’ convictions in Counts 2 and 4 and remand those charges for a new trial. Upon

the agreement of the parties, we also respectfully reverse Ms. Gardner’s consecutive

sentences and remand those counts for the trial court to consider the factors outlined in

State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Finally, we remand each case for entry

of corrected judgments of conviction. In all other respects, we affirm the judgments of the

trial court.

_____________________________________

TOM GREENHOLTZ, JUDGE

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