State of Tennessee v. LaQuenton Monger

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 6, 2001 Session

STATE OF TENNESSEE v. LAQUENTON MONGER

Direct Appeal from the Criminal Court for Shelby County

Nos. 98-01601, 98-01602 John P. Colton, Jr., Judge

No. W2000-00489-CCA-R3-CD - Filed August 27, 2001

The appellant, LaQuenton Monger, was convicted by a jury in the Shelby County Criminal Court

of one count of first degree felony murder by aggravated child abuse and one count of aggravated

child abuse. The trial court imposed concurrent sentences of life imprisonment in the Tennessee

Department of Correction for the felony murder conviction and twenty years imprisonment in the

Department for the aggravated child abuse conviction. On appeal, the appellant challenges the

sufficiency of the evidence underlying his conviction of felony murder and further challenges the

trial court’s failure to instruct the jury on lesser-included offenses of felony murder. Following a

thorough review of the record and the parties’ briefs, we reverse the appellant’s convictions of felony

murder and aggravated child abuse and remand the cases to the trial court for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Reversed and

Remanded.

NORMA MC GEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

DAVID H. WELLES, J., joined.

Edwin C. Lenow, Memphis, Tennessee, for the appellant, LaQuenton Monger.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On February 10, 1998, a Shelby County Grand Jury returned indictments charging

the appellant with the first degree felony murder by aggravated child abuse of his seven-month-old

daughter, Quennisha Monger, between the dates of September 15, 1997, and September 17, 1997,

and the aggravated child abuse of Quennisha during the same time frame. The appellant’s case

proceeded to trial on November 2, 1999, concluding on November 5. At trial, the State established

that, on the evening of September 16, 1997, Quennisha and her twin brother Quentavious were

briefly in the sole care of the appellant. Specifically, the children’s mother, Kenisha Simmons, left

the Memphis apartment that she shared with the appellant at approximately 9:15 p.m. in order to pick

up her cousin, Utopia Sims, from school and to return videos to a Blockbuster store. She was

accompanied by the next-door neighbor’s daughter, Angela Averitt Hayes. Simmons and Hayes

returned home with Sims at approximately 10:00 p.m. Upon their return, Simmons learned that

Quennisha had stopped breathing, and the appellant had taken the baby to the next-door apartment

in search of assistance. Simmons entered the next-door apartment along with Hayes and Sims and

discovered Quennisha lying on the floor and the appellant speaking on the telephone with a 911

operator. Neither the police nor an ambulance had yet arrived.

Hayes recalled at trial that the scene was “chaotic.” Simmons immediately began

“crying and hollering,” and the appellant also appeared “kind of frantic and hysterical.” Hayes

attempted to console Simmons. Meanwhile, Sims approached Quennisha and noted that the baby

“was pale, her mouth like turned white.” She then went to Simmons and the appellant’s apartment

and retrieved Quentavious from the twins’ crib. Sims testified at trial that the baby boy appeared to

be unharmed.

The State further established that, sometime between 9:40 p.m. and 10:00 p.m. on

September 16, 1997, the appellant’s next-door neighbor, Gloria McKissack Wilson, was awakened

by someone knocking “rather hard” on her front door. When she opened her front door, she

discovered the appellant outside, carrying his infant daughter in his arms. The appellant requested

her assistance, stating that his daughter did not appear to be breathing. Upon confirming that

Quennisha was not breathing and attempting unsuccessfully to locate the baby’s pulse, Wilson

advised the appellant to call 911.

There ensued a series of efforts to resuscitate Quennisha. First, the 911 operator

guided the appellant in performing mouth-to-mouth resuscitation upon his daughter. The operator

was soon informed that the baby was responding to the appellant’s efforts in that she appeared to be

breathing once again and also had a pulse. Almost immediately thereafter, “a little bit before” 10:25

p.m., officers of the Memphis Police Department arrived. Officer James Sewell testified at the

appellant’s trial that, at this time, Quennisha was not breathing, nor did she have a pulse. The

officers unavailingly administered cardiopulmonary resuscitation (CPR) to Quennisha. Finally, at

approximately 10:31 p.m., paramedics employed by the Memphis Fire Department, including Gary

Garmon, arrived and continued the administration of CPR to Quennisha. Garmon confirmed at the

appellant’s trial that, at the time of the paramedics’ arrival, Quennisha was not breathing, and her

heart was not beating. However, he noted that Quennisha’s skin, although cool, was not yet cold;

her “color” was normal; and her pupils were not yet dilated. Moreover, upon performing an

electrocardiogram (EKG) on the baby, the paramedics discovered “electrical activity to the heart.”

Nevertheless, they too were unable to revive Quennisha, and she was ultimately pronounced dead

at a local hospital.

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Wilson testified at the appellant’s trial that she observed the appellant’s efforts to

revive Quennisha. According to Wilson, the appellant appeared to follow the instructions of the 911

operator. Moreover, she asserted that, although she observed the appellant compress Quennisha’s

chest, she never observed the appellant use more than two fingers, and the appellant pushed on

Quennisha’s chest “pretty light[ly].” Wilson further observed, and it was undisputed at trial, that the

police officers and the paramedics likewise used two fingers when compressing Quennisha’s chest.

Wilson concluded that she never observed anyone push on Quennisha’s chest “with two hands the

way you might do on an adult” or otherwise “pound” on the baby’s chest.

On the night of Quennisha’s death, the appellant reported to Officer Jason Randolph

of the Memphis Police Department that there was “a gas leak in [his] apartment and he thought that

that was the reason the baby stopped breathing.” Moreover, an unidentified woman standing outside

Wilson’s apartment on the night in question reported to Officer Sewell that “apparently [there was

a] gas leak in the apartment [in which] the baby lived.” Finally, an unidentified woman standing

outside Wilson’s apartment informed Richard Waddell, a lieutenant with the Memphis Fire

Department, of a possible gas leak in the adjacent apartment. Waddell followed the woman next

door and investigated. He recounted at the appellant’s trial:

I went around like the appliances in the kitchen and things like that

to try to - - where you would check and maybe have gas leaks or any

kind of leaks like that in the apartments like the kitchen area, I

checked that out and I couldn’t detect anything.

Simmons testified at trial that Quennisha and Quentavious were in the care of their

grandmother during the day on September 16, 1997. She recalled that, when she collected the babies

that evening, they both appeared to be in normal health. Moreover, she related that, during the

ensuing evening, only the appellant had sole care of the babies for any length of time. She conceded

that the appellant regularly cared for the children at night and on weekends while she was at school

or working, and she had never previously noticed any injuries on either baby. However, she noted

that Quennisha had been exhibiting various unexplained physical and behavioral symptoms. For

example, Simmons recounted that, from the age of four months until her death, Quennisha

wouldn’t stand up like a normal little seven month will stand on their

knee - - on their feet and try to push up. She didn’t do none of that,

she always bend down and start crying like something was hurting

her.

Simmons also recalled that Quennisha “couldn’t keep no milk down, they changed her milk several

times and she still couldn’t keep it down.” Finally, Simmons remembered one occasion prior to her

daughter’s death when Quennisha “gagged” or briefly stopped breathing before resuming normal

respiration. Utopia Sims added at trial that, in the past, Quennisha had occasionally appeared to be

gasping for breath. On August 5, 1997, approximately one month prior to Quennisha’s death,

Simmons took her daughter to a Dr. Pisit for an examination but was informed that the baby was

healthy.

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On the day following Quennisha’s death, Wendy Gunther, a forensic pathologist and

an assistant medical examiner for Shelby County, performed an autopsy on Quennisha’s body. In

performing the autopsy, Dr. Gunther first examined the exterior of Quennisha’s body. While she

observed no “obvious wounds on the baby’s body,” she did observe approximately one dozen

bruises, each measuring approximately one quarter of an inch, on the baby’s chest and abdomen.

The bruises extended from “a little above the nipple line towards the bottom of the ribs.” At trial,

she noted:

If I held the child with my hands, thumbs on her spine and my hands

in front my fingers roughly matched up to these bruises. I’d have to

shift my hands a couple of times to match all of them.

She opined that the bruises occurred prior to Quennisha’s “death,” i.e., prior to the baby’s loss of

blood pressure.

Dr. Gunther next conducted an internal examination of the baby’s body. Upon

incising both Quennisha’s chest and her abdomen, the doctor was “met by a gush of blood.” In all,

two fifths of the blood in Quennisha’s body had pooled in her chest and abdomen. With respect to

the baby’s abdomen, the doctor discovered that, in essence, “the whole liver had ruptured through

its center.” In other words, “the liver had broken in half.” Additionally, she observed “in the

abdomen . . . blood spots all over the small bowel, tiny blood spots as if little veins had given way.”

Finally, there was a “big spill of blood” in the mesentery, “the part of the body that connects the

blood supply to the guts.” Significantly, some of the blood pooled in the mesentery was “old blood,”

and there was scar tissue surrounding the “old blood crystal stuffed cells.” The presence of the “old

blood” and the scar tissue indicated that blood had pooled in Quennisha’s mesentery on several

previous occasions, including at least one occasion days or weeks prior to her death.

With respect to Quennisha’s chest, Dr. Gunther discovered a hole in the baby’s heart

that was larger than the diameter of a pencil. She recounted, “This hole had blood dissecting [or

pushing] into the heart tissue around its edges, suggesting that the heart had been under pressure, the

pressure had increased, the blood had dissected into the wall of the heart and the wall had given

way.” The doctor also discovered another hole in a major vein leading to the heart. The vein “had

blown open something like the way an inner tube on a bicycle blows open.” Finally, Dr. Gunther

discovered multiple rib fractures.

At trial, Dr. Gunther described to the jury in detail her findings relating to

Quennisha’s rib fractures:

The fractures that I found in the ribs were of at least three different

ages. The ribs that were primarily injured were ribs 5 through 10.

You have twelve ribs on each side, and incidentally women and men

have the same number of ribs. Ribs 1, 2, 3 and 4 which are up top,

weren’t injured at all. Rib 5, which starts right about at your nipple

or a little above it in the center which is where the top most bruise

was, is the first rib that I found injury in.

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Six, 7, 8 and 9 were the worst injuries. And 10, which is coming

close to the edge of the ribs in front was slightly injured. Ribs 5 and

10 were hard to see the fracture because it had healed almost to the

point of disappearing, but you could see the angle where the rib was

bent abnormally. And if you look very closely you could see the little

wrinkle in the rib that showed the healing [site]. So ribs 5 and 10 had

fractured and healed weeks ago.

. . . Ribs 6 and 8 on the right and other ribs on the left had fractured

much more recently. . . .

They were fractures that would need to be 10 to 14 days old, and

could be as much as two or three weeks old. These areas had begun

to heal. But they’re weaker than normal bone and they will break

more easily, and three of them had broken again freshly.

So I had brand new rib fractures through healing re-fractures.

The doctor concluded that Quennisha had suffered a total number of ten or fifteen rib fractures

resulting from at least three separate acute injuries that occurred on at least three separate occasions,

including “just before death[,] at some period between 10 days and three weeks before death, and

at some period four to six weeks before death.”

With respect to the “fresh” rib fractures, Dr. Gunther further explained:

The reason I say they didn’t occur after death was there was blood

around them. A person doesn’t bleed around injuries unless they’re

alive, because when you’re dead you no longer have a blood pressure,

and without a blood pressure you don’t bleed.

She opined that the fresh rib fractures could have occurred within minutes or hours of Quennisha’s

death. However, she asserted that “[i]t seem[ed] most reasonable and likely” that the rib fractures,

the bruises, and the other recent injuries discovered in Quennisha’s abdomen and chest “happened

as part of one event,” in which case “they would have been sustained about the same time as death

or a few minutes prior.”

Specifically, Dr. Gunther concluded that “the mechanism of death which suggest[s]

itself is increasing pressure by the hands,” and she described the most likely sequence of events that

would result from the application of this “mechanism”:

As the pressure begins probably the first thing that happens is the

mesentery bleeds. And the second thing is those little veins pop on

the surface of the small bowel, because you start with the least and

you progress to the worst. And then probably the third thing that

happens is that the ribs re-fracture through the old fractures.

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And then the fourth thing that happens probably is that the liver

ruptures. And the fifth thing is that the heart pops, and that hole is

bigger than a pencil, opens and the blood pours out and fills the

pericardial sack. And this does this until there’s so much pressure

that the superior vena cava has to rupture to release the pressure.

The doctor noted that the above five stages could occur fairly quickly “with intense sustain[ed]

increasing pressure, but it would not be instantaneous. It has to be time for each of those to rupture

in turn.”

Further addressing the timing of the injuries to Quennisha’s liver, heart, and “superior

vena cava,” Dr. Gunther testified at trial:

If at the time that the paramedic arrived to perform CPR on

Quennisha there was electrical activity in her heart and she was limp

but not stiff, and her pupils were not dilated and her fingers were not

blue and she had good color then she had been injured only minutes

before, at the outside something like ten minutes before because

without continuous CPR she was going to die.

Indeed, she noted that, even assuming the administration of CPR, the baby’s injuries “could not

permit life to be sustained . . . for more than minutes.”

That having been said, she remarked that she would be “very surprised” to learn that

Quennisha’s “color” was normal at the time the baby was examined by the paramedics because two

fifths of the blood in her body were pooled in her chest and abdomen. Moreover, Dr. Gunther

remarked that, in contrast to Garmon’s testimony at trial, his report indicated that, at the time of the

paramedics’ arrival, the “EKG showed asystole.” She explained that “asystole” “means the heart

is not attempting to beat at all,” i.e., electrical activity of the heart is absent. She conceded that the

“EKG strip” that was poorly photocopied onto the back of the report reflected “some sort of heart

activity.” However, she noted that the time recorded on the EKG strip was inconsistent with the time

during which Quennisha was reportedly in the care of the paramedics.

Dr. Gunther rejected the administration of CPR as a possible cause of Quennisha’s

injuries. Specifically addressing Quennisha’s rib fractures, she noted that children possess

“extremely elastic bones.” More importantly, she observed that Quennisha’s rib fractures were not

in locations common to injuries resulting from the administration of CPR, even “incorrectly

performed CPR.” Lastly, addressing all of Quennisha’s injuries, she remarked:

CPR must be performed for a reason. If these injuries were to follow

CPR as a result of CPR, which I do not believe they did, then the

child had to be almost dying for some other reason. There was no

other reason. There was no other injury. . . .

But in addition if CPR had been the cause of these injuries, which I

do not believe that it was, it would not explain why there were old

injuries.

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Dr. Gunther acknowledged that, “[s]ince the new fractures fractured through the old

fractures, they would not have required as much pressure.” Accordingly, she conceded that,

[i]f the person grabbing the child in a panic state and rushing to see

maybe a neighbor had squeezed the child so hard that they burst her

ribs and liver and heart, then this could have happened that way. That

would [have] had to have been an extremely hard squeeze, but it

could have happened that way - - I was not there.

She reiterated, however, that a sufficient “squeeze” would not only have to be “extremely hard” but

would also entail “a sustained pressure.” She opined that Quennisha’s injuries were “non-

accidental.”

As to reports of a gas leak possibly associated with Quennisha’s death, Dr. Gunther

related that testing performed on the baby’s blood failed to detect the presence of poisonous gases,

including carbon monoxide. However, she conceded her uncertainty that the testing performed on

Quennisha’s blood was designed to detect Methane, the most common gas associated with leaks.

Nevertheless, she asserted that it was unlikely that a baby would die from Methane poisoning. The

doctor also conceded that, although she requested testing of the baby’s lungs for the presence of

natural gas, she never received a report setting forth the results of any such testing. She confirmed

that natural gas could cause a baby to stop breathing “if there’s so much of it in the room that it

pushes out the oxygen.”

Finally, the doctor opined at trial that the old fractures in Quennisha’s ribs had

occurred “by the same mechanism [that caused the new fractures,] which involves squeezing.”

Indeed, she noted her discovery of “cells holding crystals of old blood in the lungs” as well as the

mesentery and posited that the baby had previously been “squeezed until the ribs broke and blood

poured into the mesentery and some blood was spilled into the lungs.” She noted that squeezing a

crying child with sufficient pressure to break the child’s ribs could cause the child to “faint[] or

pass[] out and, therefore, stop[] crying.”

The doctor acknowledged that other explanations for the old rib fractures were

possible. For example, she testified that some of the older fractures could have occurred as a result

of the baby falling from a car seat onto the floorboard of a car. Nevertheless, she noted that such a

scenario was unlikely as “[m]ost children in the literature sustaining falls from much higher than a

car seat to a floor do not sustain rib fractures, leg fractures or arm fractures. A rare collar bone

fracture is almost the only fracture sustained by a child in a fall from less than six feet.”

Dr. Gunther confirmed that the older fractures in Quennisha’s ribs might have been

the cause of her refusal or inability to stand prior to her death, even when held up by family

members. The doctor explained that movement would be painful to a baby with rib fractures.

Additionally, if someone attempted to lift a baby with rib fractures, the pain would cause her to

respond by crying. Once the baby began crying, her pain would increase, and her legs might appear

to be “giving out.” The doctor added that the older rib fractures might have caused Quennisha to

have “some trouble breathing.” Moreover, she confirmed that

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the bleeding in the mesentery probably would have made [Quennisha]

have a hard time taking food until it began to heal. She might have

been vomiting, she likely would have been fussy, she might have

been both hungry and then vomiting, which would have made her

more difficult to care for and would have made it more likely to

provoke punishment of her.

The appellant testified on his own behalf at trial. Preliminarily, he noted that,

approximately one month prior to his daughter’s death, she was thrown from her car seat onto the

floorboard of his car. In essence, the appellant asserted that he was unaware of any other possible

cause of his daughter’s older injuries. In particular, he denied ever striking his children or otherwise

abusing the children. Moreover, he stated that he had never seen Simmons mistreat either baby.

As to the instant offenses, the appellant confirmed that on September 16, 1997, his

wife left the apartment at approximately 9:15 p.m. or 9:20 p.m. His son began crying soon

thereafter. Accordingly, the appellant changed Quentavious’ diaper and gave him a bottle of

formula. Afterwards, the appellant checked on his daughter, who was sharing a crib with her twin.

The appellant recalled:

She had a blanket partially over her face, because she has a habit of

pulling the blanket over her face, you know, because I get up late at

night 2:00, 3:00 o’clock in the morning and she just had a habit of

pulling that blanket over her face, so I keep constantly pulling it

down. But anyway she - - I called her name a couple of times and she

didn’t answer me.

And then when I, you know, moved the blanket and picked her up she

was limp, you know, like lifeless. And I called her name and kept

calling her name, yet and still she wouldn’t respond. So I started

hitting her in her chest [with my hand] . . . .

....

I hel[d] her nose and I blew into her mouth real hard, and I kept

hitting her in her chest, and I know I turned her over and I hit her in

her back just in case she probably swallowed something or

something. But yet and still she still didn’t respond. So when - - I

grabbed and ran with her next door.

According to the appellant, he held his daughter “[w]ith his arms out” as he ran next

door. When he arrived at Wilson’s front door and while he was beating on the door, he placed

Quennisha in one arm. When Wilson responded to his knocks, the appellant informed her that

Quennisha had stopped breathing. Wilson indicated in turn that she was undressed and instructed

the appellant to hold his baby upside down and hit her on her back while Wilson obtained clothing.

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After dressing, Wilson examined Quennisha, attempting to discern whether the child was breathing

and to locate a pulse. When her efforts proved unsuccessful, Wilson instructed the appellant to call

911. The appellant confirmed at trial that the 911 operator guided him in performing mouth-to-

mouth resuscitation upon his daughter. However, he recalled that the operator failed to explain how

to perform chest compressions, and, accordingly, he pressed on his daughter’s chest with his entire

hand. The appellant conceded that he did not press on Quennisha’s chest hard enough “to blow a

hole in her heart.”

At the conclusion of the trial, the jury found the appellant guilty of first degree felony

murder by aggravated child abuse and aggravated child abuse. Because the State sought neither the

death penalty nor a sentence of life imprisonment without parole for the offense of felony murder,

the trial court sentenced the appellant to life imprisonment in the Tennessee Department of

Correction for that offense. The trial court imposed a concurrent sentence of twenty years

imprisonment in the Department for the offense of aggravated child abuse.

II. Analysis

A. Plain Error

Before resolving the issues raised by the appellant in this appeal, we are compelled

to address an error that plainly appears in the record before the court and has affected the substantial

rights of the appellant. Tenn. R. Crim. P. 52(b); State v. Smith, 24 S.W.3d 274, 282-283 (Tenn.

2000); see also State v. Kennedy, 7 S.W.3d 58, 70 (Tenn. Crim. App. 1999); State v. Epps, 989

S.W.2d 742, 745-746 (Tenn. Crim. App. 1998). Namely, the appellant’s dual convictions of first

degree felony murder by aggravated child abuse and aggravated child abuse effect multiple

punishments for the same offense thereby violating constitutional prohibitions against double

jeopardy.

The Fifth Amendment to the United States Constitution guarantees that no person

shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This prohibition

against double jeopardy is applicable to the states through the Fourteenth Amendment. Benton v.

Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969); State v. Howard, 30 S.W.3d 271, 277

n.7 (Tenn. 2000). Additionally, Article 1, Section 10 of the Tennessee Constitution provides in

almost identical language that “no person shall, for the same offense, be twice put in jeopardy of life

or limb.” In State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996), our supreme court reiterated the

three fundamental principles underlying federal and state constitutional guarantees against double

jeopardy: (1) protection against a second prosecution after acquittal; (2) protection against a second

prosecution after conviction; and (3) protection against multiple punishments for the “same” offense.

Again, this case implicates the protection against multiple punishments for the “same” offense.

The court in Denton set forth clear guidelines governing the “resolution of a double

jeopardy punishment issue under the Tennessee Constitution.” Id. at 379-381. In so doing, the court

required an inquiry more extensive than that required by the federal constitution. Id. at 381 n. 15;

State v. Winningham, 958 S.W.2d 740, 743 (Tenn. 1997). In summary, in order to determine under

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the Tennessee Constitution whether two offenses are the “same” for double jeopardy purposes and

therefore preclude multiple punishments, a court must conduct:

1. an analysis of the statutory offenses under Blockburger v. United

States[, 284 U.S. 299, 52 S. Ct. 180 (1932),] to determine “whether

each provision requires proof of an additional fact which the other

does not”;

2. an analysis, guided by the principals of Duchac v. State[, 505

S.W.2d 237 (Tenn. 1973),] of whether the same evidence is required

to prove each offense;

3. a consideration of whether there were multiple victims or discrete

acts; and

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

State v. Barney, 986 S.W.2d 545, 549 (Tenn. 1999) (footnotes omitted); see also Denton, 938

S.W.2d at 379-381.

None of the above factors is necessarily determinative, Denton, 938 S.W.2d at 381,

but our supreme court has emphasized that “[t]he key issue in multiple punishment cases is

legislative intent.” Denton, 938 S.W.2d at 379; see also Barney, 986 S.W.2d at 549. Indeed,

although passing Blockburger scrutiny is generally required under the federal Double Jeopardy

Clause, Winningham, 958 S.W.2d at 743; State v. Hayes, 7 S.W.3d 52, 55 (Tenn. Crim. App. 1999),

the United States Supreme Court has stated:

Where . . . a legislature specifically authorizes cumulative punishment

under two statutes, regardless of whether those two statutes proscribe

the “same” conduct under Blockburger, a court’s task of statutory

construction is at an end and the prosecution may seek and the trial

court or jury may impose cumulative punishment under such statutes

in a single trial.

Missouri v. Hunter, 459 U.S. 359, 368-369, 103 S. Ct. 673, 679 (1983). Correspondingly, Tennessee

courts have consistently held that, “when legislative intent is clear, a defendant may be separately

convicted of two offenses which arise from one criminal transaction.” State v. Ralph, 6 S.W.3d 251,

256 (Tenn. 1999).

An example pertinent to the instant case is our supreme court’s holding in State v.

Blackburn, 694 S.W.2d 934, 937 (Tenn. 1985), that a defendant may be convicted of both felony

murder and the underlying felony because “‘[n]othing in the statutory definitions of murder in the

first degree and of the [underlying] felonies . . . indicates a legislative intent that conviction and

punishment for both offenses should not be permitted.’” See also State v. Hall, 976 S.W.2d 121, 171

(Tenn. 1998)(appendix). Of course, at the time of the supreme court’s holding in Blackburn, the

killing of a child by aggravated child abuse was not included in the first degree murder statute. In

contrast to its holding in Blackburn, our supreme court in State v. Ducker, 27 S.W.3d 889, 893

(Tenn. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1202 (2001), explained the intent underlying the

legislature’s later codification of the reckless killing of a child by aggravated child abuse as first

degree murder:

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[A] legislative intent to permit dual convictions and sentences for

both felony murder and the predicate felony does not appear to be

present under the reckless killing of a child provision in Tenn. Code

Ann. § 39-13-202(a)(4) (1994). The legislature originally codified

the reckless killing of a child by aggravated child abuse in response

to [the public outcry following the conviction of Kerry Phillip Bowers

of the lesser offense of second degree murder of Scotty Trexler. See

State v. Kerry Phillip Bowers, No. 115, 1989 WL 86576 (Tenn. Crim.

App. at Knoxville, August 2, 1989).] This codification was known

as the “Scotty Trexler Law.” The intent of the Scotty Trexler Law

was not to permit dual convictions but to punish the reckless killing

of a child as first degree murder.

In a footnote, the court limited its dual conviction analysis to the first degree murder

statute in effect in 1994, id. at 893 n.2, noting that the reckless killing of a child by aggravated child

abuse was contained in a subsection separate from the general felony murder subsection. More

recently, however, in State v. Bobby G. Godsey, No. E1997-00207-CCA-R3-DD, 2000 WL

1337655, at *29 (Tenn. Crim. App. at Knoxville, September 18, 2000), perm. to appeal granted,

(Tenn. 2001), this court specifically addressed the 1995 amendment to the first degree murder statute

that simply added aggravated child abuse to the general felony murder subsection: “The legislative

history of the 1995 amendment to the first degree murder statute suggests that the objective was to

increase the degree of the penalty [for aggravated child abuse resulting in the death of the child], not

to implement an additional penalty.” In other words, the legislative objective of the 1995

Amendment was “to deter the commission of [aggravated child abuse] by holding the perpetrator

accountable for any death that might result.” Id. at *11. We also noted that, in contrast to the other

felonies enumerated in Tenn. Code Ann. § 39-13-202(a)(2) (1997), aggravated child abuse may be

a lesser-included offense of homicide. Godsey, No. E1997-00207-CCA-R3-DD, 2000 WL 1337655,

at **28-30 (citing Tenn. Code Ann. § 39-15-401(d) (1997)). But see Ducker, 27 S.W.3d at 893 n.1;

State v. Cornelius Michael Hyde, No. E2000-00042-CCA-R3-CD, 2000 WL 1877490, at *8 n.1

(Tenn. Crim. App. at Knoxville, December 28, 2000). Accordingly, we concluded in Godsey, No.

E1997-00207-CCA-R3-DD, 2000 WL 1337655, at *30, that, “[b]ecause the legislature did not

clearly intend a cumulative punishment for aggravated child abuse where there is a conviction and

punishment for first degree felony murder arising out of the same aggravated child abuse, the

defendant’s conviction for the former must be set aside.” See also State v. Benjamin Brown, No.

W1999-00327-CCA-R3-CD, 2000 WL 1664226, at **7-8 (Tenn. Crim. App. at Jackson, October

24, 2000)(defendant’s convictions of both first degree felony murder by aggravated child abuse and

aggravated child abuse violated principles of double jeopardy relating to multiple punishments for

the same offense).

Keeping in mind both our supreme court’s opinion in Ducker and our holding in

Godsey, we turn to the application of the guidelines set forth by our supreme court in Denton, 938

S.W.2d at 379-381, to the instant case. Initially, as charged in the indictment in this case, the offense

of first degree felony murder by aggravated child abuse comprised the following essential elements:

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(1) the appellant killed Quennisha; (2) the killing was committed in the perpetration of aggravated

child abuse; and (3) the appellant intended to commit aggravated child abuse. Tenn. Code Ann. §

39-13-202(a)(2) & (b); T.P.I. Crim. No. 7.03(b) (4th ed. 1995). Thus, in order to obtain a conviction

of first degree felony murder by aggravated child abuse, the State had to prove the appellant’s guilt

of aggravated child abuse. In relevant part, Tenn. Code Ann. § 39-15-402(a) (1997) provides that

a person commits the offense of aggravated child abuse who knowingly, other than by accidental

means, treats a child under eighteen years of age in such a manner as to inflict serious bodily injury.

See also Tenn. Code Ann. § 39-15-401(a) (1997). That having been said, in the separate indictment

charging the appellant with aggravated child abuse, the State sought to enhance the offense to a class

A felony. Accordingly, in order to obtain a conviction of aggravated child abuse, the State was also

required to prove beyond a reasonable doubt that Quennisha was six years of age or younger. Tenn.

Code Ann. § 39-15-402(b). In short, as required by Blockburger, 284 U.S. at 304, 52 S. Ct. at 182,

each offense does require proof of an additional fact which the other does not.

Nevertheless, while the offenses of first degree felony murder by aggravated child

abuse and aggravated child abuse pass Blockburger scrutiny, the remaining three prongs of the

Denton analysis point to a double jeopardy violation. It is apparent from the State’s closing

argument that it relied upon the same evidence to prove both offenses. Moreover, the record reflects

that there was only one victim, and the pathologist testified at trial that “[i]t seem[ed] most

reasonable and likely” that the baby’s recent injuries and consequent death “happened as part of one

event,” i.e., “increasing pressure by the hands.” Finally and most importantly, the legislature was

addressing the same evil, i.e., the aggravated abuse of a child, in codifying both first degree felony

murder by aggravated child abuse and aggravated child abuse. Godsey, No. E1997-00207-CCA-R3-

DD, 2000 WL 1337655, at *30.

In sum, we conclude that, under the Denton analysis, “only one offense was

committed and only one conviction may stand.” Brown, No. W1999-00327-CCA-R3-CD, 2000 WL

1664226, at *8. “Upon a finding that two convictions cannot both stand, the conviction for the

greater offense must stand and that for the lower offense must be vacated.” State v. Beard, 818

S.W.2d 376, 379 (Tenn. Crim. App. 1991); see also State v. Jeffery Eugene Wright, No. M1999-

00647-CCA-R3-CD, 2000 WL 264224, at *4 (Tenn. Crim. App. at Nashville, March 10, 2000).

Accordingly, we reverse the appellant’s conviction of aggravated child abuse.

B. Sufficiency of the Evidence

As to the issues raised by the appellant in this appeal, the appellant first challenges

the sufficiency of the evidence underlying his conviction of first degree felony murder by aggravated

child abuse. In order to prevail, the appellant must demonstrate to this court that no “rational trier

of fact” could have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982); Tenn. R. App. P. 13(e). In other words, on appeal, the State is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State

v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). All factual issues raised by the evidence, including

questions concerning the credibility of witnesses and the weight and value to be given the evidence,

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are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561

(Tenn. 1990). These standards apply to convictions based upon direct evidence, circumstantial

evidence, or both. State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000); State v. Vann, 976 S.W.2d

93, 111-112 (Tenn. 1998)(appendix). Thus, as in the case of direct evidence, the weight to be given

circumstantial evidence and “‘[t]he inferences to be drawn from such evidence, and the extent to

which the circumstances are consistent with guilt and inconsistent with innocence, are questions

primarily for the jury.’” Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958).

The State’s evidence in this case was wholly circumstantial. Accordingly, at trial, the

State was required “‘to exclude every other reasonable hypothesis save the guilt of the defendant,

and that beyond a reasonable doubt.’” Hall, 976 S.W.2d at 140 (appendix). Once again, the guilt

of the appellant of first degree felony murder by aggravated child abuse required findings by the jury

that the appellant killed Quennisha in the perpetration of aggravated child abuse, i.e., while

knowingly, other than by accidental means, treating her in such a manner as to inflict serious bodily

injury, 1 and that the appellant intended to commit aggravated child abuse. Tenn. Code Ann. § 39-13-

202(a)(2) & (b); Tenn. Code Ann. § 39-15-402(a); Tenn. Code Ann. § 39-15-401(a).

The appellant argues that the State failed to meet its burden of proof at trial because

Dr. Gunther’s testimony demonstrated that Quennisha was not in the care of the appellant at the time

she received the injuries in her chest and abdomen. Specifically, the appellant cites Dr. Gunther’s

testimony that, if paramedics examining Quennisha at 10:30 p.m. observed normal skin color and

pupils that were not yet dilated and further discovered electrical activity in the baby’s heart,

Quennisha must have received her injuries “at the outside something like 10 minutes before.” As

1

Specifically addressing the requisite nexus in the proof between the causation of death and the perpetration

of the underlying felony, our supreme court has recently remarked:

This Court has previously considered how the statutory phrase, “in the perpetration

of,” should be defined in the fe lony murde r context. See, e.g., State v. Buggs, 995

S.W.2d 102, 10 7 (Tenn . 1999); Farmer v. S tate, . . . 296 S.W .2d 879 ([Tenn.]

1956). For example, in Farmer, this Court explained that for a killing to occu r “in

the perpetration of” a felony so that the felony murder rule applies, the killing must

be done “in pursuance of the [felony], and not collateral to it. In other words, the

killing must have had an intima te relation and close c onnection with the felony . .

. and not be separate, d istinct, and inde penden t from it . . . .” Farmer, . . . 296

S.W.2d at 883 . . . . In addition, there must be a causal connection between the

felony and the killing. Farmer, . . . 296 S.W.2d at 884.

More recently, we rec ognized th at when dete rmining whether a killing is “in the

perpetration of” a felony cour ts in Tennessee have considered such factors as time,

place, and causa l connection . Buggs, 995 S.W .2d at 106 . We stressed in Buggs

that a killing “may precede, coincide with, or follow a fe lony and still be considered

as occurring ‘in the perpetr ation of’ the felon y, so long as ther e is a connec tion in

time, place, [c ausation,] and continuity of actio n.”

State v. Pierce, 23 S.W .3d 289 , 294 (T enn. 200 0)(alteration in original); see also State v. Patric k Winga te, No. M1999-

00624-CCA-R3-CD, 2000 WL 680388 , at *7 (Tenn. Crim. App. at Nashville, M ay 25, 20 00), perm. to appeal denied,

(Tenn. 2000).

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noted earlier, the police were administering CPR to Quennisha during the larger part of the ten

minutes preceding the paramedics’ arrival. Arguably, Dr. Gunther suggested that the administration

of CPR to Quennisha prior to the paramedics’ arrival might expand her estimation by minutes.

However, for at least twenty-five or thirty minutes prior to the arrival of police, the appellant was

attempting to provide care to his daughter in the presence of his neighbor. Moreover, the 911

operator was informed during this time period that Quennisha appeared to be breathing and had a

pulse.

Nevertheless, Dr. Gunther’s estimation of the time at which Quennisha’s injuries were

inflicted assumed the accuracy of paramedic Gary Garmon’s testimony concerning Quennisha’s

appearance and the presence of electrical activity in her heart at the time of Garmon’s arrival at

Wilson’s apartment. The jury was entitled to disbelieve Garmon’s testimony, particularly in light

of Dr. Gunther’s remark concerning her surprise that the color of Quennisha’s skin was normal at

the time of Garmon’s arrival, Utopia Sims’ testimony that the baby “was pale, her mouth like turned

white” one-half hour prior to Garmon’s arrival, and the notation in Garmon’s report that the “EKG

showed asystole.” Similarly, in light of Sims’ testimony and the chaotic atmosphere in Wilson’s

apartment immediately prior to the arrival of the police, the jury was entitled to discount the report

to the 911 operator that Quennisha briefly revived in response to the appellant’s efforts at

resuscitation. According deference to the jury’s resolution of questions concerning the credibility

of witnesses and the weight and value to be given the evidence, the remaining facts and

circumstances of this case are “so closely interwoven and connected that the finger of guilt is pointed

unerringly at the defendant.” State v. Crawford, 470 S.W.2d 610, 613 (Tenn. 1971); State v.

Adams, 916 S.W.2d 471, 476 (Tenn. Crim. App. 1995).

In summary, we reiterate that, earlier on the evening of her death, Quennisha appeared

to be in normal health. Thereafter, only the appellant had sole care of Quennisha and her brother for

any length of time. Indeed, the appellant had sole care of Quennisha when he sought Wilson’s

assistance because the baby had stopped breathing. Dr. Gunther testified that Quennisha’s death

would have occurred within minutes of the infliction of the injuries in the baby’s chest and abdomen.

The doctor rejected CPR as the cause of the injuries. Also, while she acknowledged that

Quennisha’s injuries could have been caused by the appellant grabbing the baby in panic and

carrying her to the next-door apartment, the doctor noted that the appellant would have had to exert

a sustained pressure sufficient to “burst [Quennisha’s] ribs and liver and heart.” Moreover, she

emphasized that she was unable to detect any reason other than Quennisha’s injuries for the baby’s

respiratory arrest and noted the presence of older injuries. State v. DuBose, 953 S.W.2d 649, 654

(Tenn. 1997). Accordingly, she opined that the injuries in Quennisha’s chest and abdomen were

non-accidental. Indeed, the only alternate explanations extractable from the evidence for

Quennisha’s respiratory arrest were the claims of the appellant and an unidentified woman

concerning a phantom gas leak in the appellant’s apartment and the claim of the appellant that, on

the night in question, Quennisha had pulled her blanket over her face. Assuming, as we must, that

the jury declined to accredit these claims, the circumstantial evidence was more than sufficient to

support the jury’s finding that the appellant killed Quennisha while intentionally committing

aggravated child abuse. This issue is without merit.

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C. Lesser-Included Offenses

Finally, the appellant challenges the trial court’s refusal to charge lesser-included

offenses of felony murder. We initially note the absence in the record of any request by the appellant

that the trial court charge lesser-included offenses of felony murder. Moreover, the record reflects

that, at the conclusion of the parties’ presentation of proof, the trial court discussed with counsel for

both the State and the appellant “whether or not [t]he [trial c]ourt was going to charge down below

murder in the perpetration of aggravated child abuse. And [the court] indicated that [it] w[as] not,

and that was accepted by both.” Nevertheless, a trial court’s duty to charge a jury as to the law of

each offense included in an indictment exists regardless of any request or objection by the appellant.

See, e.g., State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999); Tenn. Code Ann. § 40-18-110(a) (1997).

Indeed, the trial court’s duty exists regardless of any express agreement by the appellant to the

omission from the jury charge of instructions on lesser-included offenses. In this regard, our

supreme court has quoted with approval the following observation by the California Supreme Court:

“A trial court’s failure to inform the jury of its option to find the

defendant guilty of [a] lesser offense would impair the jury’s truth-

ascertainment function. Consequently, neither the prosecution nor the

defense should be allowed, based on their trial strategy, to preclude

the jury from considering guilt of a lesser offense included in the

crime charged. To permit this would force the jury to make an ‘all or

nothing’ choice between conviction of the crime charged or complete

acquittal, thereby denying the jury the opportunity to decide whether

the defendant is guilty of a lesser included offense established by the

evidence.”

State v. Bolden, 979 S.W.2d 587, 593 (Tenn. 1998)(quoting People v. Barton, 906 P.2d 531, 536

(Cal. 1995)).

Turning to the merits of the appellant’s claim, our supreme court recently held in

State v. Curtis Jason Ely, Nos. E1998-00099-SC-R11-CD & E1999-00170-SC-R11-CD, 2001 WL

605097 (Tenn. at Knoxville, June 5, 2001)(publication pending), that the offenses of second degree

murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony

murder. Id. at *9. However, we must still determine whether the evidence in the appellant’s case

warranted a jury instruction on these lesser-included offenses. In making this determination, a court

“must view the evidence liberally in the light most favorable to the existence of the lesser-included

offense[s] without making any judgments on the credibility of such evidence.” Burns, 6 S.W.3d at

469. If, when viewed in this light, “evidence exists that reasonable minds could accept as to the

lesser-included offense[s]” and this evidence is legally sufficient to support convictions of the lesser-

included offenses, the evidence will warrant instructions thereon. Id.

Applying the above test to the instant case, we preliminarily note that the distinction

between first degree felony murder and its lesser-included offenses lies in the requisite culpable

mental states. Ely, Nos. E1998-00099-SC-R11-CD & E1999-00170-SC-R11-CD, 2001 WL 605097,

at *9. Whereas the offense of first degree felony murder by aggravated child abuse requires an intent

to commit aggravated child abuse, Tenn. Code Ann. § 39-13-202(b), the offense of second degree

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murder requires a knowing killing of another, Tenn. Code Ann. § 39-13-210 (1997). “A person acts

knowingly with respect to a result of the person’s conduct when the person is aware that the conduct

is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b) (1997). Alternatively,

reckless homicide requires a reckless killing of another. Tenn. Code Ann. § 39-13-215 (1997).

“‘Reckless’ refers to a person who acts recklessly with respect to . . . the result of [his] conduct when

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

result will occur.” Tenn. Code Ann. § 39-11-302(c). Finally, criminally negligent homicide entails

criminally negligent conduct that results in death. Tenn. Code Ann. § 39-13-212 (1997). “‘Criminal

negligence’ refers to a person who acts with criminal negligence with respect to the . . . result of [his]

conduct when the person ought to be aware of a substantial and unjustifiable risk that the . . . result

will occur.” Tenn. Code Ann. § 39-11-302(d). In cases of reckless homicide and criminally

negligent homicide, the risk “must be of such a nature and degree” that its disregard or the failure

to perceive it, respectively, “constitutes a gross deviation from the standard of care that an ordinary

person would exercise under all the circumstances as viewed from the accused person’s standpoint.”

Id. at (c) & (d).

Reviewing once again the evidence adduced at the appellant’s trial, we reiterate that

the weight to be given circumstantial evidence and “‘[t]he inferences to be drawn from such

evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with

innocence, are questions primarily for the jury.’” Marable, 313 S.W.2d at 457. We have already

determined that a rational jury could have found that the circumstantial evidence adduced at trial

excluded every reasonable hypothesis save the appellant’s intentional commission of aggravated

child abuse thereby causing Quennisha’s death. However, a rational jury could also have found that,

regardless of whether the appellant intended to engage in abusive conduct, “at least” he was aware

that his conduct was reasonably certain to cause Quennisha’s death, or he was aware of but

consciously disregarded a substantial and unjustifiable risk that death would occur, or he ought to

have been aware of a substantial and unjustifiable risk that death would occur. Ely, Nos. E1998-

00099-SC-R11-CD & E1999-00170-SC-R11-CD, 2001 WL 605097, at *12. In short, the absence

of any intent to commit aggravated child abuse is not an essential element of second degree murder,

reckless homicide, or criminally negligent homicide. Therefore, whether the evidence at trial

established the appellant’s intent to commit aggravated child abuse is immaterial when determining

whether sufficient evidence exists supporting the appellant’s guilt of the lesser-included offenses of

first degree felony murder. State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000); see also, e.g., Burns,

6 S.W.3d at 471-472 (observing that “[w]hether sufficient evidence supports a conviction of the

charged offense does not affect the trial court’s duty to instruct on the lesser offense if evidence also

supports a finding of guilt on the lesser offense”). Accordingly, the trial court’s failure in this case

to instruct the jury on the lesser-included offenses of first degree felony murder was error. Cf. State

v. Mitchell Shephard, No. E2000-00628-CCA-R3-CD, 2001 WL 767010, at *9 (Tenn. Crim. App.

at Knoxville, July 3, 2001).

Finally, as in Ely, Nos. E1998-00099-SC-R11-CD & E1999-00170-SC-R11-CD,

2001 WL 605097, at *14,

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the jury in this case was given no option to convict of a lesser offense

than felony murder. Although the evidence clearly was sufficient to

support a conviction for second degree murder, reckless homicide, or

criminally negligent homicide, the jury was not given an opportunity

to reach a decision on these offenses. Under these circumstances, we

cannot say the failure to instruct on the lesser-included offenses was

harmless beyond a reasonable doubt.

III. Conclusion

For the foregoing reasons, we reverse the appellant’s convictions of first degree

felony murder by aggravated child abuse and aggravated child abuse and remand the cases to the trial

court for a new trial with the further caution that the trial court keep in mind the double jeopardy

concerns addressed in this opinion.

___________________________________

NORMA McGEE OGLE, JUDGE

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