State v. Benjamin Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 8, 2000, Session

STATE OF TENNESSEE v. BENJAMIN BROWN

Direct Appeal from the Criminal Court for Shelby County

No. 96-13456, 57, Carolyn Wade Blackett, Judge

No. W1999-00327-CCA-R3-CD - Decided October 24, 2000

Benjamin Brown appeals from his convictions of one count of felony murder committed in the

perpetration of aggravated child abuse and one count of aggravated child abuse. An effective

sentence of life imprisonment was imposed. On direct appeal, he contends (1) the evidence is

insufficient to support his convictions; (2) the lesser offense of criminally negligent homicide should

have been instructed; (3) testimony regarding prior bad acts was erroneously admitted; and (4) his

convictions violate the constitutional protections against double jeopardy. Following review, the

appellant’s conviction for aggravated child abuse is vacated and dismissed as violative of the

protections against double jeopardy. We affirm the appellant’s conviction for felony murder finding

the evidence sufficient to support his conviction. Because the appellant’s motion for new trial as to

felony murder was untimely filed, the remaining issues related to this conviction are waived.

Tenn. R. App. P. 3; Judgment of the Criminal Court is affirmed in part; vacated and

dismissed in part.

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., J. and

JOHN EVERETT WILLIAMS, J., joined.

Coleman W. Garrett, Memphis, Tennessee, for the appellant, Benjamin Brown.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, 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

The appellant, Benjamin Brown, was convicted by a Shelby County jury of one count of

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

child abuse. He was subsequently sentenced to life imprisonment for felony murder and twenty-five

years for aggravated child abuse. The sentences were ordered to run concurrently. He now appeals

his convictions alleging:

I. The evidence is insufficient to support his conviction for felony murder;

II. The trial court erred by failing to instruct the jury as to the lesser offense of

criminally negligent homicide;

III. The trial court erred by permitting prior bad acts of the appellant to be introduced

absent a jury out hearing; and

IV. The appellant's convictions for both felony murder committed in the perpetration

of aggravated child abuse and aggravated child abuse violate the principles against

double jeopardy.

After a review of the record before us, we conclude that constitutional protections against

double jeopardy prohibit the multiple convictions and punishments for felony murder committed in

the perpetration of aggravated child abuse and aggravated child abuse. As such, the indictment for

aggravated child abuse is dismissed, the resulting conviction is reversed, and the accompanying

sentence is vacated. Finding no further error on behalf of the trial court requiring reversal, we affirm

the appellant’s conviction for felony murder.

Background

The appellant and Tammy Huff met and started dating in 1992. A few months after they

began dating, the couple announced they were getting married. Ms. Huff was pregnant at the time.

The couple married on April 26, 1994, at the Hernando, Mississippi, home of Tammy's father, James

Riley Banks. On the evening of his daughter's marriage to the appellant, Mr. Banks received a

telephone call from an anonymous female, later identified as Adrena McCoy, informing him that the

appellant was the father of her children. Mr. Banks disclosed this telephone conversation to his

daughter and informed his daughter that her new husband was not welcome in his home. Tammy left

her new husband less than twenty-four hours after they were married, subsequently divorcing the

appellant.

On September 16, 1994, Ms. Huff gave birth to a daughter, Ashley Denise. The two resided

with Ms. Huff's parents at their Hernando residence. In the summer of 1996, Tammy Huff and the

appellant reconciled and were remarried on July 12, 1996. In August, the appellant, Huff, and their

daughter moved to an apartment in Memphis.

Soon after moving into the apartment, Tammy began “potty training” Ashley. During the

time, Tammy recalled that the appellant “would fuss at [Ashley] and tell her that if she didn’t get

potty-trained he was going to give her a whipping.” Although Tammy never saw her husband spank

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Ashley, she did hear him threaten to “whip” her for not using the “potty.” Tammy admitted that

when she confronted the appellant about his threats, he stated that he was not “going to whip her.”

She further admitted that the appellant would chastize her for physically reprimanding the child.

Ms. Huff testified that she was unhappy in her marriage to the appellant. On September 12,

she decided to leave him. She telephoned her parents and told her father that she wanted to come

home. Mr. Banks informed Tammy that "if she was going to come [home] that she was going to

stay." After Tammy made this telephone call, the appellant confronted her with his disbelief that she

was actually going to leave him. She explained that the appellant became angry and “he like started

choking me.” The appellant relinquished his hold and again began asking Tammy why she was

leaving him. She responded, “Because you’re mean and I don’t trust you.” “[The appellant’s] eyes

like turned red, and . . . he started coming after me. . . .” He placed a knife to her throat and warned

her, “If you leave me, you know, I can, you know, I can kill you. I don’t have anything to lose.” He

then forced Tammy to telephone her parents and tell them that she was not going home.

Ms. Huff testified that the following morning she took Ashley to daycare. The appellant got

off work at 12:30 and he picked Ashley up from the daycare center. Tammy did not see Ashley

again until 6:30 that evening when the appellant brought Ashley by Tammy’s place of employment.

Tammy was eating her dinner at this time. Ashley sat on Tammy’s lap and ate some chicken nuggets

and a brownie. Ashley appeared healthy at this time. Shortly thereafter, the appellant and Ashley

left and Tammy returned to work.

At approximately 8:00 p.m., Rita Griffin, a neighbor of the Browns, returned to her residence

at the Woodlake apartment complex in Memphis. As she reached the top of the stairs leading to her

apartment, she saw the appellant coming out of his apartment. The appellant was carrying his two-

year-old daughter, Ashley. The child “was laying on his shoulder . . . it seemed like she was asleep.”

Ms. Griffin entered her apartment and made a telephone call. Within two minutes, she heard

“beating” at her door and asked who was there. The appellant identified himself and exclaimed that

“[his] baby fell down the stairs.” Ms. Griffin let the “very upset” appellant inside her apartment.

The appellant told her that he had sat the child on the steps while he returned to his apartment to get

his keys. When he came back outside, he saw that Ashley was on the ground; “she had fallen down

the steps.”1 Ms. Griffin then telephoned for medical assistance. Meanwhile, the appellant sat down

in a chair and began rocking the child, saying “Ashley, Ashley, wake up.” Ms. Griffin observed that

the child was gasping for breath and was trying to open her eyes. The appellant was shaking the

child in an attempt to revive her. The 911 operator obviously overheard the comments and advised

Ms. Griffin to tell the appellant not to shake the child. The appellant then attempted to give the child

CPR. During this time, Ms. Griffin was unable to observe whether the child had any bruises, cuts

or abrasions on her legs, arms or face.

1

The stairs outside the apartment were made of metal and exposed aggregate concrete surface.

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At 8:30 p.m., Tammy received a telephone call from the appellant. He informed her that

Ashley had fallen down the stairs. Tammy could hear an ambulance in the background. The

appellant drove to Tammy’s place of employment and the two proceeded to LeBonheur Hospital.

On the way to the hospital, the appellant told Tammy that he forgot his keys and he sat Ashley on

the steps. When he came back outside, Ashley was at the bottom of the steps. She stated that the

appellant, despite emphasizing that Ashley’s condition was serious, was not crying. The appellant

attempted to console his wife, telling her that Ashley was going to be fine.

Dr. Jeffrey Eugene Schmidt, a pediatric intensive care physician, testified that he was on duty

when twenty-four month old Ashley Brown was brought to the hospital. Ashley was transferred to

ICU from the emergency room at approximately 2:00 a.m. The reports from the ER indicated that

the patient had “severe neurologic injury.” Upon admission to ICU, it was determined that Ashley

had “severe neurologic devastation, severe brain injury.”2 “From direct observation, there was no

evidence of any external trauma. No scratches, bruises, bumps, no swelling, no cuts.” A CAT scan

did not show any signs of severe bleeding. However, the attending physicians observed retinal

hemorrhages that were classified as “fairly severe.” Dr. Schmidt testified that based on the

presence/absence of injuries, he determined that the injury was what is known as “acceleration-

deceleration syndrome.” Specifically, he explained:

The brain sits in a fluid filled sac called the dura. And especially in little children

and babies, the ability for the brain to move within that sac is far more than adults.

In fact, in adults it doesn’t move much at all. In babies it can move enough that the

connections between the brain and the dura, the tiny blood vessels can get sheared.

The other – the nerve fibers, too, and the nerve cells can get sheared if there’s a

sudden impact or acceleration-deceleration force. And then that’s also the same

explanation for the tiny vessels in the back of the eye. Because of a sudden

acceleration-deceleration force, these tiny vessels get ruptured and cause the

bleeding, the hemorrhages in the back of the eye.

Dr. Schmidt advised that “acceleration-deceleration syndrome” was commonly recognized as

“shaken baby syndrome.” The only other explanations consistent with these injuries would be from

“major trauma like high-speed motor vehicle accidents, falls from extreme heights,” but not falling

down a flight of stairs. The “shaking” involved in “shaken baby syndrome” would have to be

“extreme, severe, out of control,” “shaking back and forth violently,” “it requires the head to be

snapped back and forth.”

Dr. Schmidt testified that the appellant had informed him that Ashley had fallen down the

stairs outside their apartment. Dr. Schmidt was suspicious of this statement because it did not

comport with the degree of injury received by the child and the injuries to the child were inconsistent

2

Dr. Schmidt explained that the degree of brain injury is measured by the “glasgow coma score.” The score

ranges from 3 to 15. A normal pe rson will have a score of 15 . When Ashley arrived at the ICU, “her score was four.

. . . and three is ba sically no brain function.”

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with an accidental injury. He explained that if a two-year-old child fell down thirteen or fourteen

raised concrete and metal stairs, he would expect to find:

some external evidence of either cuts, abrasions, bruises. If there was neurologic

injury, then I would expect that . . . her head would have had to have hit something

and there would be either bruising, bleeding, cuts, abrasions, something that would

show that her head struck . . . the step or . . . some evidence of external trauma.

No evidence of external trauma was present on the victim’s person. Dr. Schmidt opined that “[t]he

only way that a child could have brain damage as severe as [the victim], . . . is the shaking that would

cause the severe damage to the brain cells.” In support of his conclusion, he stated that the brain

injury was inconsistent with the mechanism of a fall down the stairs and there was the presence of

retinal hemorrhages which you would definitely not see from a fall down the stairs. The victim

died on September 15, at 11:55 p.m. Her death was due to both heart and lung failure.

Dr. Schmidt testified that his concern over the appellant’s explanation of the victim’s injuries

led him to speak with Tammy Huff’s mother and sister. Both women expressed concern for

Tammy’s safety. When confronted by the evidence from the autopsy of bruising to the victim’s

buttocks and lower back, Dr. Schmidt refused to change his opinion, concluding that a fall would

not have produced a “pattern” bruise. Instead, Dr. Schmidt concluded that a pattern bruise to the

victim’s buttocks would confirm his conclusion of abuse.

Dr. Wendy Gunther, an assistant medical examiner for Shelby County, performed the autopsy

on the victim. Her examination revealed “some bruising on [the victim’s] left arm and on her

buttocks,” however, she observed “no abrasions, no lacerations.” Dr. Gunther concluded that the

bruising on the buttocks was “consistent with somebody having struck her repeatedly. . . .” Dr.

Gunther explained that this bruising was difficult to see with the naked eye for several reasons. “One

is that bruises in children with dark brown skin are often hard to see, and the other reasons were

because of livermotis. When the dead person is lying face up, the blood collects in their back, so

everything looks kind of dark red.” The bruise measured an area of 5 X 5 inches. This bruising was

determined to be “fairly fresh. It had not been a long time before she was injured or died that this

happened.” Dr. Gunther admitted that the bruises could have been caused “by a very unusual fall.”

Based upon the post-mortem examination, Dr. Gunther concluded:

I think Ashley Brown died of shaken baby syndrome. When you take a child . . . and

you shake them really, really, really hard, you can scramble the neurons. The axons

break apart and the neurons die. . . . There is no other injury which can explain why

she went into a coma and never came out . . . [w]hy all the neurons in her brain

either died or were starting to die other than shaken baby.

In refuting the appellant’s explanation that the child fell down the stairs, Dr. Gunther continued:

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If this child fell down a flight of concrete steps, she didn’t sustain any injury. There’s

no skull fracture, there’s no major bleeding next to the brain, there’s no fractures of

her arms or legs or her collarbones or ribs. There’s no bruising to show where she

might have hit the steps. The only bruising is that bruise on her arm and the bruising

on her buttocks. I don’t understand how she could have fallen down a flight of 16

steps without sustaining any injury. . . . [T]he only thing she can have died of is

shaken baby syndrome, for she has no injury to her brain except the injury of shaking.

In his defense, the appellant presented the testimony of Adrena McCoy. McCoy testified that

the appellant is the father of four of her five children. She stated that she and the appellant shared

a home together in Greenville, Mississippi, from May 1994 to May 1996. They also lived together

prior to this period. While the couple lived together, the appellant was responsible for the care of

the children while McCoy was at work. McCoy also testified that she never saw the appellant

physically reprimand any of the children and he cautioned her never to “hit them.” In essence,

McCoy was of the opinion that the appellant was an excellent father and that he could never have

harmed a child.

Arusher Sturdevant, the appellant’s cousin, testified that, on September 13, 1996, he was at

his brother’s house between 2:00 and 3:00 p.m. playing dominoes. The appellant arrived at the

residence. He had Ashley with him. At first, the appellant tended to Ashley, but when a neighbor’s

child came over and started playing with Ashley, the appellant joined the domino game. Two hours

later the appellant and Ashley left. Roosevelt Robinson, another of the appellant’s cousins,

confirmed that the appellant had been at his house playing dominoes on September 13.

The thirty-two-year-old appellant testified that he has ten or eleven children.3 He stated that

he met Tammy Huff at Delta State University in November 1993. They married in April 1994 and

divorced soon thereafter. Tammy was pregnant at the time of their marriage. The appellant did not

see Tammy again until May 1996 when he saw her at his mother’s house in Greenville, Mississippi.

This was the first time that the appellant saw his daughter, Ashley. During this meeting, the

appellant and Tammy decided to “try to give it another try” even though the appellant had been

living with Adrena McCoy. In early August, the appellant, Tammy and Ashley moved to Memphis.

The appellant recalled that, on the evening of September 12, Tammy was disgruntled with

him because he was late picking her up from work and accused him of being with another woman.

An argument ensued and Tammy threatened to leave him. Tammy telephoned her mother and told

her she was coming home. She then proceeded to the door when the appellant grabbed her and told

her to sit down. Tammy sat down and the couple talked. “Everything was normal after that.”

The following day the couple took Ashley to daycare and then each left for their respective

jobs. At lunchtime, Tammy delivered the car to the appellant since he got off work before she did.

The appellant got off work at 2:30 p.m. and went home. The appellant changed clothes and then

3

The appe llant explained that he was not sure whether o ne child was actually his.

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picked Ashley up at daycare. He then went to his 4:30 appointment with his insurance company.

After the meeting, the appellant and Ashley went to the home of the appellant’s cousin. Shortly after

5:00 p.m., he took Ashley to McDonald’s where she got some chicken nuggets. Between 5:30 and

6:00 p.m., he drove to Tammy’s place of employment. Tammy came out to the car and they

discussed repairing their automobile. She stayed in the car for about thirty minutes, during which

time she played with Ashley and fed her something to eat. The appellant then went to his cousin’s

house where he visited for a while and then returned home. Following this testimony, the appellant

reiterated his version of the circumstances leading to the death of Ashley Denise Brown.

Based upon this proof, the jury found the appellant guilty of felony murder committed in

perpetration of aggravated child abuse and aggravated child abuse.

Analysis

As a preliminary matter, the State contends that the majority of the issues, with respect to the

appellant’s conviction for felony murder, raised by the appellant on appeal have been waived due

to the appellant’s failure to timely file his motion for new trial.4 See Tenn. R. App. P. 3(e); State

v. Nesbit, 978 S.W.2d 872, 880 (Tenn. 1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1359 (1999);

State v. Johnson, 980 S.W.2d 414, 418 (Tenn. Crim. App. 1998). Accordingly, the State argues that

review should only extend to the review of the sufficiency of the evidence and sentencing, as well

as plain errors affecting the appellant’s substantial rights. See Tenn. R. App. P. 3(e); Tenn. R. App.

P. 13(b); Tenn. R. Crim. P. 52(b).

The judgment of conviction for the offense of felony murder was entered by the trial court

on April 30, 1999, and the motion for new trial was not filed until June 14, 1999. Rule 33(b), Tenn.

R. Crim. P., provides that the written motion for new trial shall be made “within thirty days of the

date the order of sentence is entered.” The thirty-day period may not be enlarged. See Tenn. R.

Crim. P. 45(b). The thirty-day provision is jurisdictional, and an untimely motion is a nullity. See

Johnson, 980 S.W.2d at 418 (citing State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997)). This court

does not have the authority to waive the untimely filing of a motion for new trial. See Tenn. R.

App. P. 4(a). We are, therefore, without jurisdiction to review the assigned issues stemming from

the appellant’s felony murder conviction with the exception of a sufficiency review of the evidence.

See Johnson, 980 S.W.2d at 418 (citation omitted).

I. Double Jeopardy

The appellant contends that his convictions for both felony murder committed in the

perpetration of aggravated child abuse and aggravated child abuse violate the principles against

4

The judgment of conviction for the offense of aggravated child abuse was entered on May 26, 1999; thus, the

June 14, 1 999, mo tion for new trial w as timely filed. See gene rally Tenn. R. Crim. P. 33(b).

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double jeopardy. Specifically, he argues that the circumstances leading to both convictions arose

out of a single incident and from a single course of conduct, the shaking of Ashley Brown.

The general rule is that a defendant can constitutionally be tried and convicted for first degree

felony murder and the underlying felony in a single trial without violating the constitutional

prohibitions against double jeopardy. State v. Blackburn, 694 S.W.2d 934, 936-937 (Tenn. 1985).

Indeed, there is no double jeopardy violation requiring dismissal or merger where “the two statutes

are directed to separate evils.” Blackburn, 694 S.W.2d at 936 (citing Albernaz v. United States, 450

U.S. 333, 343, 101 S.Ct. 1137 (1981)); see also State v. Denton, 938 S.W.2d 373, 377 n.11 (Tenn.

1996); State v. Lewis, 919 S.W.2d 62, 69 (Tenn. Crim. App. 1995). The key issue is “whether the

legislature intended cumulative punishment.” Blackburn, 694 S.W.2d at 936.

With consideration of these principles, a panel of this court recently distinguished

convictions for felony murder and aggravated child abuse from the general rule permitting

convictions for both felony murder and the underlying felony. See State v. Bobby G. Godsey, No.

E1997-00207-CCA-R3-DD (Tenn. Crim. App. at Knoxville, Sept. 18, 2000). Judge Wade, writing

on behalf of this court, recognized that “[t]he evil addressed by the legislation at issue is the

aggravated abuse or neglect of a child.” State v. Bobby G. Godsey, No. E1997-00207-CCA-R3-DD.

Additionally, “[t]he legislative history of the . . . first degree murder statute suggests that the

objective was to increase the degree of the penalty, not to implement an additional penalty.” Id.

This court, in a well-reasoned and thorough analysis, continued to hold that

[a]ggravated child abuse or neglect is unique among the felonies capable of

supporting a felony murder conviction because it may be, as indicated in [State v.

Jennie Bain Ducker, No. M1997-00074-SC-R11-CD (Tenn. Jul. 14, 2000], a lesser

included offense of homicide. Because 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.

State v. Bobby G. Godsey, No. E1997-00207-CCA-R3-DD. Indeed, the court’s reasoning in State

v. Bobby G. Godsey relies upon principles of law relating to multiple punishments arising from the

same physical conduct within a single criminal episode.

The issue of multiple punishments arising from a single criminal episode was addressed by

our supreme court in State v. Phillips, 924 S.W.2d 662 (Tenn. 1996). To determine whether offenses

are multiplicitous, several general principles must be considered:

1. A single offense may not be divided into separate parts; generally, a single

wrongful act may not furnish the basis for more than one criminal prosecution;

2. If each offense charged requires proof of a fact not required in proving the other,

the offenses are not multiplicitous; and

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3. Where time and location separate and distinguish the commission of the offenses,

the offenses cannot be said to have arisen out of a single wrongful act.

Id. at 665. These factors must be considered in determining whether the multiple convictions violate

double jeopardy.

In the present case, the appellant was convicted of felony murder committed in the

perpetration of aggravated child abuse and the underlying offense of aggravated child abuse. The

record indicates that the same proof established both offenses; i.e., the same physical acts supporting

the appellant’s conviction for aggravated child abuse are the same acts supporting his conviction for

felony murder. Moreover, neither offense required proof of a fact not required in proving the other.

Under principles of double jeopardy relating to multiple convictions, only one offense was

committed and only one conviction may stand. Accordingly, the appellant’s conviction for

aggravated child abuse is vacated.

II. Sufficiency of the Evidence

In his first issue, the appellant asserts that there is no competent proof in the record to support

both his dual convictions for felony murder committed in the perpetration of aggravated child abuse

and aggravated child abuse. While he notes that circumstantial evidence alone is sufficient to

support a conviction, he argues that the circumstantial evidence in this case is not so strong and

cogent as to exclude every other reasonable hypothesis except his guilt. Specifically, he contends

that the jury’s conclusion that the appellant shook the baby to death “defies logic, reason and

common experience.” In support of his contentions, he avers that he has no history of child neglect

or abuse. Indeed, the proof indicates that not only was he not abusive, but that he was overly

protective of his children. Furthermore, he contends that the proof is consistent with his explanation

as to the cause of the victim’s injuries. Specifically, he submits that “it is possible, and more than

likely, that the child fell . . . [f]rom the top of stairwell floor directly to the bottom, landing on her

buttocks on the bottom step.” This is supported by the bruising to the victim’s buttocks.

Additionally, he admits that “when he saw his child lying at the bottom . . . of the concrete stairwell.

. . . [h]e rushed to her aid and shook her in an attempt to revive her.” He admits that “[h]e obviously

could have shaken the baby violently enough to cause additional injuries.” However, he asserts that

injuring the child under these circumstances would not constitute aggravated child abuse. The State

responds (1) the appellant’s theory that the victim fell directly to the bottom of the stairwell is a

physical impossibility; (2) certain facts in the appellant’s explanation of the incident were

inconsistent; and (3) no prior history of abuse is required before conviction of these crimes.

Tennessee Rules of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support

the finding by the trier of fact beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule applies

to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct

and circumstantial evidence. See State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

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In addition, because conviction by a trier of fact removes the presumption of innocence and imposes

a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence

was insufficient. See State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

When a criminal offense is established exclusively by circumstantial evidence, the facts and

circumstances “must be so strong and cogent as to exclude every other reasonable hypothesis save

the guilt of the defendant.” State v. Crawford, 470 S.W.2d 610 (Tenn. 1971); State v. Jones, 901

S.W.2d 393, 396 (Tenn. Crim. App. 1995). In other words, “[a] web of guilt must be woven around

the defendant from which he cannot escape and from which facts and circumstances the jury could

draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.

Crawford, 470 S.W.2d at 613; State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).

In its review of the evidence, an appellate court must afford the State the “strongest legitimate

view of the evidence as well as all reasonable and legitimate inferences that may be drawn

therefrom.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978)). The court may not “reweigh or reevaluate the evidence” in the

record below. Evans, 838 S.W.2d at 191; see also State v. Mann, 959 S.W.2d 503, 518 (Tenn.

1997) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)(weight and inferences from

circumstantial evidence are jury questions)). Likewise, should the reviewing court find particular

conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or the trial

court judgment. Tuggle, 639 S.W.2d at 914.

The appellant stands convicted of felony murder committed in the perpetration of aggravated

child abuse. At the time of the victim’s death, the crime was defined as

A killing of another committed in the perpetration of or attempt to perpetrate any .

. . aggravated child abuse. . . .

Tenn. Code Ann. § 39-13-202(a)(2) (1996 Supp.). Aggravated child abuse occurs when a person

. . . knowingly, other than by accidental means, treats a child under eighteen (18)

years of age in such a manner as to inflict injury . . . [and]

. . .[t]he act of abuse results in serious bodily injury to the child.

See Tenn. Code Ann. §§ 39-15-401(a) (1996 Supp.); Tenn. Code Ann. § 39-15-402(a)(1) (1996

Supp.).

In the present case, the medical testimony was undisputed that the child died as a result of

“shaken baby syndrome.” The appellant was the sole caretaker of the child during the time period

when the fatal injuries were inflicted. The proof also established that the victim had bruising on her

buttocks consistent with a spanking or firm beating. Again, the jury is the sole arbiter of the

credibility of the witnesses and conflicts in the testimony. Thus, we do not disturb the jury’s findings

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as to these issues. Moreover, contrary to the appellant’s assertion, the lack of a prior history of abuse

does not preclude conviction for this offense. See, e.g., State v. Antonio Demonte Lyons, No.

M1999-002490CCA0R3CD (Tenn. Crim. App. at Nashville, Feb. 25, 2000) (requirement of

prolonged abuse for conviction of aggravated child abuse is not the law). Thus, giving deference to

the jury’s resolution of the issues of credibility, we conclude that the evidence presented, even

though circumstantial, is sufficient to exclude every other reasonable hypothesis save the guilt of the

appellant.

Furthermore, the evidence presented belies the appellant’s theory of the case. The victim

exhibited no scrapes or abrasions which would have been consistent with a fall down fourteen

exposed aggregate concrete stairs. Nor did the victim sustain any exterior injuries, including skull

fractures, to her head. For the fall to have occurred as the appellant suggests, the two-year-old victim

had to have propelled herself over the railing. Obviously, the jury rejected this theory. This issue

is without merit.

Conclusion

After review of the record and the applicable law, we conclude that the appellant’s

convictions for aggravated child abuse and felony murder committed in the perpetration of

aggravated child abuse violate constitutional protections against double jeopardy. The judgment of

conviction and sentence upon the charge of aggravated child abuse is, therefore, vacated and

dismissed. With regard to his conviction for felony murder, the appellant has not shown his

entitlement to appellate relief. Accordingly, the judgment of conviction entered by the trial court for

this offense is affirmed.

___________________________________

DAVID G. HAYES, JUDGE

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