# State v. Hodges > Court of Criminal Appeals of Tennessee · December 11, 1998 · 7 S.W.3d 609 URL: https://www.frixlaw.com/law-library/cases/1081974 ## Case - **Full name:** STATE of Tennessee, Appellee, v. Anthony HODGES, Appellant - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** December 11, 1998 - **Citations:** 7 S.W.3d 609; 1998 Tenn. Crim. App. LEXIS 1286; 1998 WL 855442 - **Precedential status:** Published - **Opinion:** Opinion by Welles - **Judges:** David H. Welles - **Cited by:** 57 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1081974 ## How later opinions describe it (automated extraction) - finding the evidence sufficient to support a conviction of murder during the perpetration of aggravated child abuse through neglect where the proof established that the defendant knew the child was in serious medical trouble, took no action to provide medical attention for the… - finding evidence sufficient under a theory of either direct or criminal responsibility when the evidence proved that either the mother or the defendant inflicted the fatal injuries on the child even if the State could not show which one actually administered the blows - stating that defendant who was victim’s step-parent and caretaker “bore a duty to protect [the victim] from harm and provide [the victim] with emergency attention” ## Opinion text IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED AUGUST SES SION, 1998 December 11, 1998 Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9710-CR-00451 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, JR. ANTHONY HODGES, ) JUDGE ) Appe llant. ) (First Deg ree Mu rder, ) Aggravated Child Abuse) ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUN TY FOR THE APPELLANT: FOR THE APPELLEE: JEFFREY A. DeVASHER JOHN KNOX WALKUP Assistant Public Defender Attorney General & Reporter (On A ppea l) KENNETH W. RUCKER KARL F. DEAN Assistant Attorney General Metro Public Defender 425 Fifth Avenu e North (At Tria l) Nashville, TN 37243 RICHARD TENNENT VICTOR S. JOHNSON Assistant Public Defender District Attorney General (At Tria l) BILL REED & LILA STATOM 1202 Stahlman Building Assistant District Attorneys Nashville, TN 37201 General Washington Square, Suite 500 222 Se cond A venue North Nashville, TN 37201 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE -2- OPINION The Defendant, Anthony Hodges, pursuant to Tennessee Rule of Appellate Procedu re 3(b), appeals his convictions and sentences for first degree felony murder and aggravated ch ild abuse. We affirm both the convictions and sentences. Defendant assigns seven points of error from the proceedings below: (1) the trial court im properly denied Defen dant’s m otion to su ppress his statement to police, (2) the trial court erred by not requiring the State or the jury to elect a factual theory , (3) the trial cou rt impro perly refused to allow Defendant to present evidence that his seve red co-d efenda nt had a bused the victim in the pas t, (4) the evidence was insufficient to convict Defendant of felony murder and aggravated child abuse, (5) the trial cou rt improperl y instructed the jury regarding criminal responsibility, (6) the tr ial cou rt impro perly d enied Defendant’s motion to strike the State’s proposed aggravating factors for sentencing, and (7) the trial court impro perly applied the maximum sentence available for aggravated child abuse.1 In February 1996, Defendant Anthony Hodges, and his wife Kena Hodges, were indicted by the Davidson County Grand Jury on one count of murder committed during the perpetration of aggravated child abuse in violation of Tennessee Code Annotated § 39-13-202(a)(2) and one count of aggravated child 1 We address these issues in different order. -3- abuse and ne glect in viola tion of § 39 -15-402 . The De fendan t successfully moved to sever h is trial from tha t of his wife and co -defend ant; and fo llowing his trial in January of 1997 , a jury return ed guilty ve rdicts on b oth charges. Th e jury sentenced Defendant to life imprisonment without the possibility of parole for felony murde r, and the trial court sen tenced him to tw enty-five years for aggravated child abu se, to be served concurrent with his life sentence. The trial court denie d Def enda nt’s m otions for a ne w trial, for judgment of acquittal, for a new sentencing hearing, and for imposition of life with the possibility of parole; and D efenda nt timely a ppeale d. I. SUFFICIENCY OF THE EVIDENCE We first addres s the sufficie ncy of the evidenc e in orde r to review the facts presented by the State at trial. Defendant contends that the evidence was not sufficient to convict him o f felony murde r or aggravated child abuse—on either a theory that he was the principal perpetrator or a theory that Kena Hodges inflicted the abus e and Defe ndan t is crim inally re spon sible for her actio ns. We disagre e. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the finding by the trier of fact beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the -4- evidence was insufficient. McB ee v. Sta te, 372 S.W.2d 1 73, 176 (Te nn. 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1 977)); State v. Tugg le, 639 S.W .2d 913 , 914 (Te nn. 198 2); Holt v. State, 357 S.W .2d 57, 61 (Te nn. 1962). In its review of the evidence, an appellate court must afford the State “the strongest legitimate view of the ev idenc e as w ell as all reason able an d legitima te inferences that may be drawn there from.” Tugg le, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The court may not “re- weigh or re-evaluate the eviden ce” in the re cord be low. Evans, 838 S.W.2d at 191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the rev iewing court find particular conflicts in the trial testimony, the co urt mu st reso lve the m in favor of the jury v erdict or trial co urt judgm ent. Tugg le, 639 S.W.2d at 914. A. Facts In this case, the evidence clearly establishes that the young victim, Miyoshi Richardson, died of blunt force trauma as a result of intentional blows to her head and torso. In addition, it is decisively apparent tha t either the mother, Kena Hodges, or the s tep-fat her, D efend ant, inflic ted the fatal inju ries and that the victim was in the sole custody of Defendant throughout the day of her dea th. The State could not show, howeve r, which perso n—if only one—actually administered the blow s; but it argu es that it ne vertheles s met its b urden o f proof. -5- 1. Proof of Injury Metropolitan Nashville and Davidson County police officers testified that they were dispatched to Defendant’s home at approximately 5:00 p.m. on December 28, 1995. A paramedic unit was present at the scene when the officers arrived , but m edica l perso nnel w ere pre paring to leav e. The officers observed the victim , a twenty-eight month old child, on a couch as they entered the home. At that time, officers observed that the child was already stiff with rigor mortis, had the appearance of having been deceased for some time, had a large bruise with swelling on the left side of her face, and had dried b lood in one n ostril. The officers moved th e victim to a back bedroom while awaiting the medical examine r. Officers confiscated several items of physical evidence from the residence, including a bed sh eet, a pair o f pants , a tow el, a diaper, a cotton pad, a sponge, and a child’s sw eat shirt. Testing by the Ten nesse e Bure au of Inve stigation (T BI) revealed the pres ence o f blood on these items.2 Officers also seized a coat hanger that had been bent and secured with tape, which was hanging on a hook in the victim’s room. While the State characterized this hanger as evidence of punishment, the defense argued that it m ay ha ve be en sim ply a tool for turning on lights above the child’s reach. In addition, the State presented evidence of other items taken from th e hou se, inc luding a mo p, that it characterized as having 2 Only one item contained enough blood to determine identity. The blood on that item— the shirt—belonged to the victim. -6- been used to clean the home. The mop was wet when seized, but the TBI found no trace s of blood on it. The medical exam iner, a fo rensic pathologist, examined the victim’s body at the scene of the crime, after another representative from the examiner’s office had pronounced the child dead. Photographs introduced at trial depicted bruising of her skin along the left side of her face, with abrasions on the side of the face and around the eye, a nd bru ising apparent on her arms and legs. The doctor testified that the victim also had a laceration inside her left nostril and on the inside of h er uppe r lip, and ad ditional ab rasions o n her ha nds an d legs. The next day, the medical examiner performed an autopsy on the victim and determined that she died as a result of blunt force injury of the head and torso. Seve ral mo re con tusion s, lace rations, and abrasions were found over various parts of the victim’s body, including her chin, lower lip, ear, abdomen, buttocks, knee, heel, tongue, and hands. The doctor testified that all external manifestations of injury were con sistent with blunt force-typ e trauma, and that injuries to the child’s hands were characteristic of defensive wounds. Finally, areas of the v ictim’s scalp were v isible through her h air, indica ting tha t her ha ir may h ave be en pulled from he r head. Upon internal examination, the medical examiner ascertained that the victim suffered hemorrhaging underneath the scalp; betw een th e brain and s kull, undern eath the protective membrane of the brain; and on the surfac e of the brain -7- itself. Hemorrhaging also appeared around the optic nerves and within the eyes themselves. The victim’s liver was lacerated and contained areas of hemorrhage. All internal inju ries rem ained co nsistent with blunt force trauma, and hemo rrhages of the victim ’s eye reg ion were comp atible with injuries received from violent, forceful shaking. The doctor concluded that the victim’s death resulted from multiple blows to the child’s head and torso, and that the blows were inte ntional— they we re incons istent with any type of accidental injury. The doctor then testified regard ing the victim’s proba ble status during the day of her death. He opined that, while conscious, the victim would likely have been irritable from likely headache and nausea, with increasing lethargy and decreasing activity. Next, the child would have slipped into unconsciousness, followed by com a and th en dea th. Although the doctor could not determine the exact time that death occurred, he estimated that, based upon the extent of rigor mortis present at his 5:30 p.m. examination, the victim had been dead for at least several hours u p to twelv e hours or longe r. According to the medical exa miner, if the ch ild’s injur ies ha d bee n inflicte d at or b efore a pprox imate ly 6:00 a.m . on the day of her death, the bruises would have been visible and apparent by noon, and proba bly much earlier. 2. Statements by Anthony and Kena Hodges The primary proof presented by the State to show how, when, and by whom the injuries to Miyoshi were inflicted was gleaned from the sometimes consiste nt, some times co nflicting state ments by An thony a nd Ken a Hod ges to -8- police. Detective Kent McAlister of the Metropolitan Police Department testified concerning many of the statements made by the Hodges. Defendant related that he and the victim had been alone together throughout the day of her death. Kena Hodges left the home for work at appro xima tely 6:30 a.m. and did not return until shortly before 5:00 p.m. McAlister stated that, at the scene, Defendant explained the child’s facial bruises by telling officers she had fallen off of the commode earlier in the day. Separately, Kena stated at the s cene that the child ha d fallen in her presence that mornin g, hitting he r head o n the ba throom heater. McAlister requested the Hodges to appear at the Criminal Justice Center later the same evening for extended interview, which they did. In that interview, Defendant told McAlister that early in the morning, while Kena prepared for work, he heard a “boom” from the bathro om. A ccord ing to D efend ant, Ke na told him that the child had fallen and hit her head on the bathroom heater, burning her hair. During th is statem ent, Defendant denied seeing this first fall and stated that the victim acted normally after it occurred, although she did not cry or complain, as she usually w ould. In addition, Defendant informed McAlister that around 10:00 a.m., he saw the victim stumble once, and he placed the victim on the commode because she had partially soiled he r clothes. While the victim was in the bathroom, Defendant walked to the kitchen to feed their dog. When he heard a loud noise from the -9- bathroom, he returned to find the child lying on the floor. He stated that though she appea red to be all right, she fell again while trying to walk out of the room. Following these falls, Defendant noted that the victim appeared sleepy and less responsive, and she seemed “in a daze.” He then put the child to bed. Defendant spok e with h is wife by telephone between 10:00 and 11:00 a.m., and he inform ed he r that the child ha d fallen and seemed extremely sleepy. According to Defenda nt, Kena reassured him that the child was merely tired becau se she hadn’t ha d muc h sleep th e night be fore. Kena telephoned Defendant at approximately 12:30 p.m., and Defendant informed her that the ch ild was still sleep ing. In h is state men t, Defe ndan t told police that he was then worried about Miyoshi because he thought she should be awake. Kena reportedly again told Defendant to let the child sleep—that she was tired. Kena called back at approximately 2:00 p.m., at which time Defendant told her the victim was still sleeping and that he wanted to wake her. He took a wet towel and squeezed it over her face and told his wife that “it looked like she moved her eyes.” Kena again told Defendant the child was just sleepy, but he told Dete ctive Mc Alister that h e knew some thing wa s wron g: And I said . . . som ething just do n’t see m righ t beca use s he no rmally be up because I at this point I had my stereo on in the living room I said music is up and I said th e dog been barkin g you know I said there’s comm otion goin g on an d my w ife said well go get her. So I went to the bed , got her, brought her out and my wife was on the other line and my wife I said well baby you talk to her maybe you can call her and maybe she’ll respond and my wife started you know Miyo shi, Miyo shi, Miyoshi, Miyoshi and I said it look like she moving and my wife said well check her temperature and she told me the thermometer which we have a home thermometer is in the . . . -10- bathroom cabinet so I went back to the cabinet and got the thermo meter c leaned off, put it in her m outh, flush ed it. . . . . . . . It seemed like she was [responding] and my wife just kept because my wife was, you know, coaching me more or less along because I told my w ife she sh ouldn’t be asleep th is long. My wife kept telling me s he’s tire d, she ’s sleepy. I said she shouldn’t be asleep this long. When asked how s he se eme d to be respo nding , Defe ndan t told Detective McAlister that “[s]he would open her eyes just like vaguely, like a sleepy . . . look, partially like you know vaguely just open them with a sleepy look.” During the same conve rsation w ith his wife, D efenda nt rema rked tha t he thought Miyoshi might have had a seizure because it looked as though she had been biting her tongue. According to Defendant, Kena told him the child had not had a seizure and to put her to bed. Defendant therefore put the victim back to bed. He denied noticing anything unusual about her appearance other than her lack of responsiveness. When asked about the discoloration of her face, he stated that he assumed she bruised herself in the falls, but that he did not notice when the bruises a ppeare d on he r face. Kena Hodges arrived home shortly before 5:00 p.m. and attempted to wake the victim. In his statement, Defendant told McAlister that “she started playing with the baby’s like legs she said the baby is some kind of, you know, medical term w ord sh e use d I don ’t know , she s aid the ba by is w ell tight.” They called the child’s grandmother to tell her the child was dead. They then called 911. Defendant stated that after the paramedics informed the Hodges that the child wa s conclu sively de ad, -11- . . . it hit home and, you know, I was breaking down at that point and she was stro ng. She was telling me, baby, you know, it was my fault. I was saying, baby, it’s my fault cause I should have had, you know, when the baby fell out a couple of times called the, you know, ambu lance the n and w hat not. Defendant gave another statement to police the next night, December 29, 1995. During th at statem ent, Dete ctive Mc Alister inform ed De fendan t that the victim died fro m be ing be aten, n ot from falling, and implored him to tell police what had happened the previous day. Defendant immediately denied beating the child, and he admitted that Kena sometimes acted abusive ly towa rd Miy oshi. When asked the last time he remembered Kena “over discipline” the victim, Defendant responde d, “Thursday morning,” the d ay of her dea th. He stated, “I hone stly do n’t belie ve sh e just fe ll I mean it was a throw . . . ,” and he indicated that he he ard K ena s ay to th e child in the bathroom, “Get the f__k out of here you mother f__ kin’ bitch. I’ll kick your f__king ass.” Defendant continued to repeatedly maintain that he did nothing to harm the victim, and h e exp lained his scraped knuckle and bruised toe by insisting that he helped his neighbor move several large appliances the day before Miyoshi died. When pressed again, the following exchange occurred: ANT HON Y: Earlier in the m orning my w ife well my wife was abusive with her. . . . MCA LISTE R: What’d she do? ANTHONY: First she hit her in the sink. I was in the bed sleep and I know she hit her head on the side of the coming out of our bathroom there is a fire well fireplace, no heater and you know boom , I heard the noise. . . . -12- MCALISTER: . . . [T]ell us what happened, tell us what you saw? PINKERTON: What kind of co nversa tion and what did you see? ANTHONY: I seen her with her hair going to the door. I mean it’s like, get your ass up, you know and boom MCALISTER: Boom what? ANTHONY: Kicking h er[.] MCALISTER: Kicking her where? ANTHONY: From the bathr oom[.] MCALISTER: Kicking her where did she kick her on her body? ANTHONY: In her in her ass or between her legs or whatever because it tipped up out into the bedroom. PINKERTON: So where did s he, where did she land when she fell when she got kicked out of the bathroom? .... ANTHONY: I have a, wha t is it, a milk c rate. I ha ve an old milk crate. It was closer d own. I us e it as a nig ht stan d. She hit that and moved it back. PINKERTON: What part of her body hit the milk crate? ANTHONY: Well she was upside down. She had flipped and so the milk crate was like moved and I moved the milk crate back in the corner. PINKERTON: And what time of morning was this? ANTHONY: Is [sic] was about six-fifteen right before she had to go to w ork. Six so methin g. MCALISTER: So she kicked her one time. ... ANTHONY: No she was pretty abusive. -13- MCALISTER: Well expla in to me what pretty a busiv e is. W ould you please explain that to me. I guess I’m just dumber than a rock. ANTHONY: She made the baby sta nd up in the co rner all night. ... PINKERTON: Which night are w e talking a bout? ANTHONY: We’re talking about Wednesday, Thursday, Thursday morning. PINKERTON: Talking about the nigh t before the ba by’s death. ANTHONY: Right. She made the baby stand up in the corner and h old he r hand s up o n the w all. PINKERTON: Why? Why did she say she done that? Why? ANTHONY: The baby girl said she had to pee and then so she slep t in the corn er all night. PINKERTON: Standin g up? W hat did yo u say ab out that? ANTHONY: Baby put the baby to bed. ... ANTHONY: Okay. F__k you you don’t have nothing to say about, yo u know . I said, baby , put the ba by to bed . . . . PINKERTON: So y’all slept in the bed and th e bab y stan ding in the corner ANTHONY: With her hands up. PINKERTON: When did you notice that she got up and the baby wa s out of the corne r? ANTHONY: I noticed possibly all night one o’clock, two o’clock, three o’clock, she’d holler at the baby, are you ready to say something, you ready to say something. She would get up and get her norm al[.] PINKERTON: Get up and get what? We don’t know what normal is. -14- ANTHONY: Smack the ba by, hit the baby. You can’t say you gotta go to bed, you can’t say you gotta go to the bathroom. PINKERTON: When she hit her after she was standing and you woke up one of those few times you woke up and she was hitting her, when she slapped the baby where did the baby h it? Did sh e hit her head on anything else? Or did she just slap her and the baby just stood still or did she fall down or wha t? ANTHONY: She was constantly falling. Constantly giving up. ... PINKERTON: How often did this happen? ANT HON Y: Too m uch. Upon cross-examination, Detective McAlister testified to several statem ents made by Kena Hodg es over the same time period—the evening of her daughter’s death, December 28, 1995, and the next night, technically the early morning hours of December 30, 1995. During her first interv iew, K ena to ld McAlister that Miyoshi ha d fallen and hit her h ead on the bathroom heater. Later, when apparently co nfronted with D efendant’s state ments incu lpating her, 3 Kena denied ever kicking the victim, yet she admitted inflicting some harm. Kena told detectives that sh e had struck the ch ild lightly with a plastic coat ha nger, causing her to fall an d hit her he ad aga inst the ba throom sink. In her statement, Kena expressed disbelief that her actions caused the child’s death , but sh e acc epted respo nsibility if th at we re indeed the case. McAlister testified to her words: 3 The transcript of Kena’s interview begins abruptly, and the record does not reflect the conversation prior to the beginning of what has been recorded; but Kena has clearly been informed somehow of allegations that she kicked the child. -15- “I’m hurt. Don ’t think I’m no t hurt. And I feel bad, because, like I said, I don’t believe that that’s what did it to her, but I guess it did, so I’m wrong . . . . I was think ing of any body a nd any thing but m e. I could n’t believe this was me, but I’m being honest. It’s not enough to say, I’m so rry. It’s no t enou gh to s ay, I did n’t think that w ould happe n. .... I didn’t th ink tha t wou ld resu lt from tha t. It’s not e noug h. It’s not enough and you’re right. And it’s not enough for me to say that I should have, would have, could have. It’s not enough. Her life is gone, and I’m being honest. True enough, I don’t -- I don’t think I was a neglige nt Mam a. I guess I was ne gligent the n. Abus ive, I don’t think I was abusive, but I gu ess I w as ab usive then. I d on’t think I was a bad parent. I m ade a m istake an d I’m wro ng. I guess I’ve got to pay for it. I hate to be honest, you kn ow, I g uess this is going to be said in court, played in court, whatever. I’m being honest in my heart. Don’t think I don’t feel bad. I have felt bad since it happened. I’m truly a Christian, but I make mistakes. I do wrong. This was one, true enough. Hey, you-all are saying it’s a biggie. It is a biggie. I do feel bad. Now, I’m not going to say I want you-all to jus t believe m e. I’m not g oing to sit here and just lie and say, hey. Bu t, now, I gu ess if I did -- did it, I’d be, I guess I’ll keep saying it, if beca use I s till don’t w ant to b elieve that, it was me. But if I did it, I did it, and I’m wrong . I’m no t trying to pass the bu ck. I’m not trying to point fingers, and I’m not going to steer yo u wrong.” Officers asked Kena why she failed to admit the prior night that she hit the victim with a coat hanger, and she responded that she blocked the incident out of her m ind beca use sh e did not b elieve sh e caus ed harm to the child: “I guess I want to block that out. I did not even remember that, but after I sat there, I thought about it and say, you know, what now, that I think about it. Three blows to the head. It might have been just me, now that I think a bout it, a fter I thou ght ab out w hat rea lly happen ed.” McAlister testified that, to his knowledge, Kena had not mentioned before that she hit her daughter three times. Finally, the detective testified to Kena’s words shortly before police arrested her: “‘Jesus, I am so sorry, Miyosh i. I never wanted -16- to do nothing to you. How many years does a person go to jail for something like this?’” Upon redirect examination of Detective McAlister, the State presented evidence that at the first interview, in response to the question of whether Defendant had struck the victim in a harmful manner, Kena stated, “No, and that was much -- we loved Miyoshi, like I said, and you know, but this incident, he called me during the day, because he wanted for me to reassure him, because he’s like I said, he’s real nervous about th is, so he didn’t know -- so he jus t went on what I said, like I said, feel bad because I feel I should have did more, but like I assume , she asleep, yo u know . . . .” To impeach the credibility of Kena’s statements implicating herself, the State also introduced Kena’s earlier s tatem ent tha t she d id not k now exac tly where or how the vict im fell in th e bath room : “I gues s that’s when she fe ll. I can’t say I saw it . . . .” In addition, the jury heard this account by Kena through McAlister: “I said, Baby, don’t worry about it. Should I call the ambulance? I was like, Baby, no. I sa id, no, a nd I ad mit tha t, beca use I’m thinking, there ain’t nothing wrong with her. And that’s the honest truth, and I was telling everybody on my job, well, my husband was nervous about my da ughter. And if you ask him, he’s a little nervous abou t her, bu t I don’t think wro ng [sic] with her. Betty punches me to herself, and says, get over -- and says, get over it. She’s fine. He’s just overre acting. And I don’t know. And so then I was telling him little things to do to her and stuff to try and hear her. I was like, well Baby, take her in the tub and lay her in the tub and just take a little cold water and put it on her belly. That will probably make her squint, you know, if the temperature. No, Baby, it’s too cold to do that. I don’t wa nt to ma ke her co ld. I said, oka y, well, th at’s understandable, you know. .... -17- And so, I said, well, B aby, I don ’t think nothin g wron g. I think she fine. Y ou’re just o verreac ting.” The general substance of this telephone call and another that day were verified by Kena’s co-worker, who heard Kena speak. According to Kena’s statem ent, Defendant called her back soon thereafter to request her to come home as soon as possible because of the child’s condition. Regarding pain or marks on the victim, De tective M cAlister tes tified that Ke na stated , “Like I said, I did not notice those things before I had left. I didn ’t see them, and I didn’t do them, and I didn’t see him do any while I was there. I d on’t be lieve h e did w hile I was not there. I didn’t see it and h e didn ’t tell me if h e did. . . . Like you-all are saying, you trying to figure out whether it was him, o r whe ther it was m e, and I’m trying to be like, I know for a fact it wasn’t me .” Finally, the Sta te introd uced this con versa tion be twee n polic e and Kena : “‘Wh o’s been doing it?’ . . . ‘It was not m e.’ . . .’Wh o’s be en do ing it?’ . . . “H im.’” B. Leg al Ana lysis Defendant was convicted of aggravated child abuse in violation of Tennessee Code A nnotated § 3 9-15-402(a )(1) and first degre e murder in violation of § 39-13-202(a)(2)—specifically, murder committed during the perpetration of aggravated child abuse. We will address the murder conviction first. Defendant argues that his conviction for murder during the perpetration of aggravated child abuse should be reversed because the evidence was insufficient to show (1) that he inflicted the abuse upon the victim, or (2) that he was criminally responsible for Kena’s infliction of injury upon the child. W e -18- conclude that the evidence was su fficient for the ju ry to find D efenda nt guilty as the princip al perpetrator of felony mu rder. We furthe r find that even if the jury believed Kena Hodges inflicted the fatal blows, the evidence is nevertheless sufficient to convict Defendant based upon his subs eque nt neg lect of th e victim and his c riminal res ponsib ility for Kena ’s condu ct. 1. Felony M urder by Infliction of Injury At the time of this offense, Tennessee Code Annotated § 39-13-202 read in part: “First degree murder is . . . [a] killing of another committed in the perpetration of or attem pt to perp etrate any . . . ag grava ted ch ild abuse.” Tenn. Code Ann. § 39-1 3-202(a)(2). The legislature prescribed that “[a] person is guilty of the offe nse o f aggra vated child ab use w ho co mm its the o ffense of child abuse as defined in § 39-15-401 and . . . [t]he act of abuse results in serio us bo dily injury to the child.” Id. § 39-15 -402(a)( 1) (emp hasis ad ded). In turn, the cross- referenced § 39-15-401, entitled “Child Abuse and Neglect,” stated: Any person who kn owingly , other than by accid ental m eans, tre ats a child un der eig hteen (18) y ears of a ge in suc h a ma nner as to inflict injury or neglects such a child so as to adversely affect the child’s health and welfare is guilty of a Clas s A misde meano r; provided that if the abused child is six (6) years of age or less, the penalty is a Class D felony. There can be no question that a killing has occurre d within the mean ing of § 39- 13-202(a)(2 ). Likewise, there can be no mistake that an act of abuse has resulted in serio us bo dily injur y within the meaning of § 39-15 -402(a)(1). Defen dant disp utes ne ither statem ent; he ac know ledges in his brief, Taken in the light m ost favora ble to the State, the evidence at trial established either that (1) the de fendan t’s co-defe ndant, Kena -19- Hodges, inflicted the inju ries that ca used th e victim’s d eath, while the defendant was awake and aware of such abuse, made no attempt to stop said abuse, a nd made no effort to obtain medical assistance for the victim; or (2) disregarding Kena Hodges’ confession, the defendant inflicted the injuries that caused the victim ’s death, he r injuries be ing cons istent with being struc k with rings the defendant may have been wearing on his hand(s); or (3) some combination of the two theories outlined above. Turning to a facet of greater dispute, therefore, we examine whether the proof establish ed De fendan t’s guilt as the deliverer of ph ysical blow s. Defen dant, by his own admission, cared for the victim alone between the hours of appro xima tely 6:30 a.m. and 5:00 p.m. The mother, Kena Hodges, did not rec all noticing any signs of physical injury to the c hild prior to leavin g her in Defe ndan t’s care. The jury viewed photographs of Defendant’s bruised toe, scraped knuckle, and the rings he norm ally wo re. The jury he ard D efend ant’s statement, in which he recounted that the victim had soiled her clothes during the day, and could have surmised that the incident provoked him. Although Kena admitted to having struck the child in th e morn ing hou rs, the jury a lso heard , by her sta temen t to police, tha t she did n ot believe she cou ld have c aused such se vere injurie s. In addition, Defendant conceded that the victim h ad be en furth er injure d while in his care by falling at leas t twice, inclu ding on ce from the heigh t of a com mode . Our supre me c ourt ha s long stated , “[T]he weig ht to be given circumstantial evidence and ‘“[t]he inferences to be drawn from such evidence, and the extent to which th e circum stance s are con sistent w ith guilt and in consiste nt with innocence, are questions primarily for the jury.”’” State v. Mann, 959 S.W.2d 503, -20- 518 (Tenn. 1997) (quoting Marab le v. State , 313 S.W.2d 451, 457 (Tenn. 1958) (quoting Wharton ’s Criminal Evide nce)). We conclude that it was within th e jury’s purview to find Defendant guilty of battering the victim while alone with her the day of her de ath. See g enera lly State v. Donald Ray Lacy, No. 02C01-9701-CC- 00013, 1997 WL 729261 (Tenn. Crim. App., Jackson, Nov. 25, 1997) (finding circumstantial evide nce s ufficien t to con vict of fe lony m urder by ag grava ted ch ild abuse when victim wa s in defen dant’s so le care); State v. Cynthia & Rhodney Roberson, No. 02C01-9503-CC-00059, 1995 WL 765009 (Tenn. Crim. App., Jackson, Dec. 28 , 1995) (s ame); State v. James DuBose, No. 01C01-9405-CC- 00160, 1995 WL 504803 (Ten n. Crim. App ., Nashville, Aug. 25 , 1995) (sam e), aff’d, State v. DuBose, 953 S.W.2d 649 (Tenn. 1997) (perm ission to appeal denied on s ufficiency issue). 2. Felony Murder by Acts of Neglect Likewise, we find the evidence sufficient for the jury to find Defendant guilty of neglecting the victim within the meaning of Tennessee Code Annotated § 39- 15-401(a) and, by incorporation, §§ 39-15-402(a)(1) and 39-13-202(a)(2). As explained above, first degree felony murder is a “killing committed in the perpetration of or attem pt to perp etrate any . . . ag grava ted ch ild abuse.” Tenn. Code Ann. § 39-1 3-202(a)(2). Next, aggravated child abuse is the commission of “child abu se as de fined in § 3 9-15-40 1" that cau ses serio us bod ily injury. Id. § 39-15-402(a)(1). Child abuse, as defined in § 39-15-401, includes “knowingly, other than by accidental mean s, . . . neglect[ing a child un der eigh teen] so a s to adversely affec t the child’s health and welfare.” Id. § 39-15-401. -21- Defendant argues to the contrary. He agrees that the evidence establishes the crime of neglect, but disputes that he was charged with that offense: [T]he most that the evidence at trial establishes is that the defendant neglected the victim, an offense with which he wa s not cha rged. . . . At the time of the offense, the offense of aggravated child neglect did not exist in Tennessee. Child neglect is a distinct offense from child abus e. Child negle ct is not a pred icate o ffense for felony murder. (Footno te omitted.) (Citing State v. C ynthia D enise S mith, No. 1153, 1990 WL 134934 (Tenn. C rim. App ., Knoxv ille, Sept. 20, 1990.)) In addition, Defendant argues that this Court “held that child neglect was insufficient to suppo rt a conviction for felony murder” in State v. Den ise M aupin , No. 272, 1991 WL 197420 (Tenn. Crim. App., Knoxville, Oct. 7, 1991); and he argues that the supreme court affirmed this conclusion in State v. Ma upin, 859 S.W.2d 313, 315 (Tenn. 1 993). The primary distinction between both Mau pin opinions and the case at bar is that the statute at issue in Mau pin was no t, as Defe ndant c laims, the felony murder statute. See Mau pin, 859 S.W .2d at 314 . Rather, th e proble matic sta tute was Tenness ee Code Annotated § 39-2-202 (a)(2), which the legislature had recently enacted.4 Subse ction (a)(2 ), reading , It shall also be murder in the first degree to kill a child less than thirteen (13) years of age, if the child’s death results from one (1) or more incide nts of a protra cted p attern o r multip le incide nts of c hild abuse comm itted by the defe ndant a gainst su ch child, or if death results from the cumulative effects of such pattern or incidents, 4 At that time, subsection (a)(1) of § 39-2-202 included the collection of offenses that we deem “felony murder.” -22- was determined to be unconstitutional by our supreme court in the case of Mau pin’s boyfriend , State v. Hale , 840 S.W.2d 307 (Tenn. 1992 ), decid ed wh ile Mau pin was on appea l to the sup reme c ourt. Desp ite the obvious and significant difference in the relevant statute, a similarity exists between the “child abuse murder” statute of Mau pin and the “felony murder by aggravated child abuse” statute we contemplate here. The child abuse murder statute also d id not d efine “c hild ab use” w ithin its terms, and courts turned to the statutory offense of child abuse: § 39-4-401.5 Like § 39-15- 401 that w e con sider in this case, § 39-4-401 was entitled “Child Abuse and Neglec t.” Section 39-4-40 1 conta ined two separa te ways to satisfy commission of the offens e—b y either inflicting injury upo n or neg lecting a ch ild. Beca use th is Court had previously upheld a conviction for child neglect alone under § 39-4- 401,6 a panel of this Court concluded in Mau pin that “child abuse, as proscribed in [the child ab use m urder sta tute], did not include child neglect.” Mau pin, 1991 WL 197420, at *5. Turning to the felony murder by aggravated child abuse statute at issue here, howeve r, we respe ctfully disagree that the leg islature did not intend for the term “child abuse” to include child neglect. Throughout our Code, different 5 Section 39-4-401, as considered in Maupin, differed from § 39-15-401, the child abuse statute in force at the time of Miyoshi Hodges’s death, because it was strictly a misdemeanor offense, whereas child abuse may now constitute a Class D felony. 6 When a jury had returned a verdict of guilty as to neglect and not guilty as to infliction of injury, or “abuse.” See State v. Cynthia Denise Smith, No. 1153, 1990 WL 134934, at *3-4 (Tenn. Crim. App., Knoxville, Sept. 20, 1990). -23- concepts, prohibitions, and mandates are expressed in separate sections and subsections. Specifically, our criminal laws are divided into explicit subsections to avoid ambiguity of interpretation. Tennessee Code Annotated § 39-15-401 creates one crime which can be satisfied by two different courses of conduct, not two sep arate crim es. When stating, “A person is guilty of the offense of aggravated child abuse who commits the offense of child abuse as defined in § 39-15-401 . . . ,” we do not believe our legisla ture intend ed to refe r only to one half of an unenumerated, uninterrupted, unpunctuated statute subsection, as Defendant would have us conclude. “Child abuse as defined in § 39-15-401" encompasses § 39-15-401(a) in its entirety: Any person who kn owingly , other than by accid ental m eans, tre ats a child und er eighte en (18) y ears of a ge in such a mann er as to inflict injury or neglects such a child so as to adversely affect the child’s health an d welfa re is guilty of a Class A m isdemea nor; provided, that if the abus ed ch ild is six (6) years of age or less, the penalty is a Class D felony . See Tenn. Code Ann. §§ 39-1 5-402, -4 01; see also State v. Cynthia & Rhodney Roberson, No. 02C01-9503-CC-00059, 1995 WL 765009, at *6 (Tenn. Crim. App., Jacks on, Dec. 28 , 1995). The facts presented by the State support a jury verdict of murder during the perpetration of aggravated child abuse based upon neglect of the victim “so as to adversely affe ct the c hild’s he alth an d welfa re,” res ulting in seriou s bod ily injury. See Tenn. Code Ann. § § 39-1 5-401 , -402. D efend ant kn ew th at the c hild -24- had been forced to stan d for ho urs ov ernigh t again st the w all, una ble to s leep, eat, or reliev e hers elf. Ear ly the next morning, Defendant admitted that he heard a loud boom while Kena and the victim were in the bathroom together. Imm ediate ly thereafter, he “seen [sic] her with her hair going to the door”; and the victim flew across the room, hit a milk-crate nightstand, and flipped upside down, landing on the floor. Defendant either knew or strongly suspected that Kena had kicked M iyoshi. Toward mid-morning, Defendant observed the victim fall at least twice, and he noticed that she was too sleepy to awaken herself, as she would normally do. Closer to midday, Defendant attempted several times to wake Miyoshi, but the victim man aged only a slight re spon se, if any. Kena told police that Defendant was extremely distressed about the victim’s condition throughout the day, and that at one po int, Defendant was alarmed enough to try to hear her heartbeat and feel her pulse. The jury saw pho tographs in w hich the child’s facial bruise s were eviden t, and m edica l perso nnel te stified that bruises were apparent when they arrived a t the scen e. Defendant knew this child was in serious medical trouble. Defendant took no action to provide medical attention for the child he considered his own. Miyoshi died as a result. Cf. State v. Bord is, 905 S.W.2d 214, 225-26 (Tenn, Crim. App. 19 95) (finding that evide nce wa s sufficient to convict o f second degree murder where “deterioration [of victim] was evident and the need for medical attentio n was apparent,” yet defendant elected not to nourish or seek -25- medical assistance). We find the evidence sufficient to p ermit the jury to convict him of first de gree fe lony m urder base d upo n a the ory tha t Defe ndan t know ingly neglec ted her s o as to ad versely a ffect her he alth and w elfare. Finally, this same evidence is sufficient to show that Defendant is criminally respo nsible for the c ondu ct of Ke na Ho dges . To be crimin ally responsible, Defen dant, “[h]aving a duty imp osed b y law . . . and ac ting with inte nt . . . to promo te or ass ist [the o ffense ’s] com miss ion,” must have “fail[ed] to make a reaso nable effort to prevent com mission of the o ffense.” Tenn. Code Ann. § 39- 11-402(3). As Miyoshi’s step-parent and caretaker, D efenda nt bore a duty to protect her from harm a nd prov ide her w ith eme rgency attention. D efendant, although not the victim’s legal guardian, was entrusted by her legal guardian to watch over her on a daily basis. We consider this to be a “duty imposed by law” within the me aning o f § 39-11 -402(3). See State v. Michael Tyrone Gordon, No. 01C01-9605-CR-00213, 1997 WL 578961, at *6 (Tenn. Crim. App., Nashville, Sept. 18, 1997); State v. Jeffrey Lloyd Winders , No. 88-142-III, 1989 WL 105710, at *2-3 (Tenn. Crim. App., Nashville, Sept. 14, 1989). Kena admitted that she struck the child o n the m orning o f December 28, 1995, and Defendant grew increa singly awar e of the child’s m edically severe condition as the day progressed. This proo f is sufficient for th e jury to infer Defen dant’s inte nt to promo te or assis t in the infliction o f injury or ne glect of the child. 3. Aggravated Child Abuse -26- Because we have already found the evidence sufficient to find Defendant guilty of aggravated child abuse based upon either a theory that Defendant know ingly inflicted injury on the victim, causing her death, or a theory that Defendant knowingly neglected the child so as to adversely affect her health and safety, causing her death, we need not further address the argument that the evidence is not sufficient to support his conviction of aggravated child abuse. This issu e lacks m erit. II. ELECTION OF OFFENSES At trial, prior to Defendant’s presentation of proof, he move d the cou rt to compel the State to elect on e of its two th eories of g uilt—w hether th e State wished to proceed on a theory that Defendant inflicted injury upon the victim, or wheth er Defendant was criminally responsible for Kena Hodges’s infliction of injury upon the victim. Defendant also moved for a special jury instruction, which wou ld have advised the jury that its verdict must be unanimous regarding whether Defendant was guilty as a principal or as criminally responsible for Kena. The trial court denied Defendant’s m otion, and the jury re ceived a stan dard unanim ity instruction at the conclusion of proof. In addition, the State argued strenu ously in closing that the jury’s verdict need not be unanimous regarding the theory o f guilt. Defendant argue s that “[w ]hen a defen dant is charg ed with multip le poss ible crimes in one indictment, the State must elect which charge on which to proce ed.” Mo reover, h e conte nds tha t -27- the trial court’s failure to require election cre ated the potential that each juror did not co nside r the ‘sa me o ccurre nce’ in arriving at the verdicts. Some jurors may have considered only the incident where Kena Hodges physically abused the victim before she left for work, and convicted the defendant under a criminal responsibility theory. Other jurors may have considered only the defendant’s alleged conduct in abusing the victim after Kena Hodges left for work. We disag ree tha t electio n was require d in this case . Proo f of mu ltiple occurrences of the offense, any of which the State offers to satisfy the requirements of the in dicted offens e, is the typica l situatio n in wh ich ele ction is crucial to a defendant’s constitutional right to a unanimous jury. See, e.g., State v. Shelton, 851 S.W .2d 134 (Tenn. 1 993); Burlison v. State, 501 S.W.2d 801 (Tenn. 1973); State v. Hoyt, 928 S.W.2d 935 (Tenn. Crim. App. 1995). In those situations, such as when a child alleges some type of abuse yet cann ot relate when the offenses occurred, the jury must support a verdict of guilt by a unanimous decision that the defendant committed one specific offense—one juror may not convict based upon a decision that the defendant committed the offense on one da te, while anothe r juror believes the defendant committed the same statutory offense, but on different date. Such a defendant would be convicte d of differen t offenses , each by a partial jury. Here, in contrast, Defendant could only have been convicted of the same offense: a killing c omm itted in perpetration of or attempt to perpetrate aggravated child abuse on December 28, 1995. Although the State did indeed present the jury two distinct alternatives, in doing so it posed no threat to D efend ant’s constitutional rights, because it offered not two alternative offenses, but two -28- alternative means for culpability for a single offense. Specifically, if several jurors believed Defen dant inflicted blows to the victim, and several jurors believed that Defendant neglected the victim following blows by Kena, then we believe they may all convict of first degree murder committed during the perpetration of or attemp t to perpe trate agg ravated child abu se. Similarly, the State need not elect between prosecution as a principal actor and prosec ution for crim inal respo nsibility in this ca se. See State v. Williams, 920 S.W.2d 247 (Tenn. Crim. App. 1995). In William s, this Court found no error in the trial court’s failure to require election between theories of actual perpetration of aggravated rape and criminal responsibility for the conduct of anothe r. Id. at 257-58. We stated, Unlike the cited authority, this case involves one particular offense occurring during one criminal event. Problems with a unanimous jury verdict generall y arise when the State fails to elect among different offenses. Here the State properly elected to seek a conviction of aggravated rape by serious bodily injury. The trial judge instruc ted the jury on the ele men ts of this offense, and found the evidence to warrant a further instruction on criminal respon sibility for anoth er, and fo r criminal re spons ibility relative to the elements of aggravated rape. The jury reached a verdict based on one se t of facts relatin g to the one incident of rape. We conclude that the Defendant’s constitutional right to a unanimous jury verdict was no t violated b y the cou rt’s instruction s. Id. Furthermore, if upon further review it is determined that failure to require election was error, we conclude that such error was harmless beyond a reaso nable doubt. The jurors ne cessar ily must h ave ag reed up on the fac ts -29- underlying the co nvictio n. Tha t is to say , those jurors, if a ny, wh o con victed Defendant because they believed he inflicted blows upon Miyoshi, must nece ssarily have come to the conclusion that he then, for the remainder of the day, neglected her in such a manner as to adversely affect her health or safety. One cannot reach the former conclusion without subsequently reaching the latter conclus ion— to do so would be tota lly inconsistent with the proof presented by the State. Likewise, those same jurors would have essentially concluded that Defendant breached his custodial duty to protect the child with the intent to promo te commission of the aggravated child abuse initiated by Kena earlier in the morning, satisfyin g the o ffense of crim inal res pons ibility for h er con duct. T his issue lac ks me rit. III. MOTION TO SUPPRESS Next, D efenda nt argue s that the tria l court erred in denyin g his mo tion to suppress a statement taken by Detective E.J. Bernard of the Metropolitan Davidson County Police Department. In essence, Defendant claim s that th is statement should have been excluded from trial based upon its inherent unreliability. To demonstrate its unreliability, Defendant argues (1) that the statement was neither audiotaped nor videotaped, although both methods of recordation were available; and (2) that the most prejudicial of assertions found in Detective Bernard’s typewritten account of Defendant’s statement cannot be found in Bernard’s contemporaneous, handwritten notes. -30- Relying on his typewritten report of Defendant’s statement, Detective Bernard testified to Defendant’s accou nt of the even ts surro undin g the v ictim’s death. Specifically, he included: [Defen dant] stated the child was placed in the bed and she was crying, for whatever the reasons may be. He further stated that he put some covers over her face, turned the radio up loud so that he wouldn’t have to listen to the cries. That the child died at appro xima tely noon that da y, and the m other d idn’t co me h ome ‘till appro xima tely 5 o’clock. . . . And he stated tha t . . . then they came up with a story abo ut calling 91 1. Defendant denied ever making these statements and argues that “any of these statements, had they actually been made by him, were of such importance that any trained police investigator taking contemporaneous notes would have included this information therein.” He remarks that the statements cannot be corroborated by any other statement made by Defendant, by a recording of the statement made to Bernard, or by Bernard’s handwritten notes. Defendant urges th is Court to require, a s a condition to admissibility, recordation of a custodial interrogation when it is feasible. H e notes that both Minne sota and Texas require custodial interrogations to be recorded, as do the Uniform Rules of Crim inal Procedure and the Model Code of Pre-Arraignment Procedure. We decline to adopt this rather bright-line rule of admissibility, reserving this issu e for ou r supre me c ourt or the leg islature . In add ition, we conclude that the State was not required to record this particular interrogation as a prereq uisite to its ad missibility. -31- Here, Defendant had an opportu nity to cross-exam ine Detective B ernard regarding discrepancies between Bernard’s testimon y at trial, b ased upon his typewr itten statem ent, and his handwritten notes. Defendant did indeed cross- examine on such discrepancies, as well as the feasibility of recording the interrogation. Detective Be rnard testified that the typed statement was produced from the notes within twenty-fours hours, that he accurately transcribed the statem ent, and that no record ing de vices w ere av ailable in the p articula r room in which th e statem ent wa s taken. Defendant does n ot dispute that he ga ve the sta temen t knowingly and voluntarily; he dispu tes the ac curacy of Detec tive Bern ard’s reco llection. W e consider this an issue of credibility appropriate for the jury. Through cross- examination, the jury heard evidence that the typed statement contained statem ents not rec orded in the d etectiv e’s no tes, an d the ju ry app arently accred ited Dete ctive Ber nard’s tes timony . This issue is without m erit. IV. EVIDENCE OF PRIOR ABUSE BY KENA HODGES In his fourth issue, Defendant argues that the trial court erred by refusing to perm it Defendant to present evidence through the testimony of two witnesses that Kena Hodg es, the victim’s mo ther, had abused the child in the past. The State argues, and the trial court agreed, that Tennessee Rule of Evidence 404(b) mandates the inadm issibility of this ev idence . In response, Defendant cites State v. Smith , 868 S.W .2d 561 , 574 (Te nn. 199 3), State v. Turn bill, 640 S.W.2d 40, 46-47 (Tenn. Crim. App. 1982), and State v. Glebock, 616 S.W.2d 897, 905-06 -32- (Tenn. Crim. App. 1981), for the proposition that evidence of prior acts of violence against the victim are releva nt to show motive and intent to commit the offense. Tennessee Rule of Evidence 404(b) reads: Evidence of other crim es, wron gs, or acts is not admissible to prove the character of a person in orde r to sho w actio n in conform ity with the character trait. It may, ho wever, be a dmissible for other purposes. The conditions which must be satisfied before allowing such e vidence are: (1) The court upon request must hold a hearing outside the jury’s pres ence; (2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice. The State correctly notes that, once the above criteria of Rule 404(b) have been satisfied, the appropriate standard of review is whether the trial court ab used its discretion when ruling upo n the ad missibility o f evidenc e at trial. State v. DuBose, 953 S.W .2d 649 (Tenn. 1 997). The trial court followed the strictures of Rule 404(b) by conducting a hearing out of the presence of the jury; by ruling on the record that the evidence was being offered to show the propensity of Kena Hodges to commit abuse, rather than for any other purpose; and by indicating that the evidence was cumulative—that the record already reflected other similar evidence. The trial court, therefore, must be afforded an abuse of discretion standard of review. -33- State v. Smith , relying upon Turn bill and Glebock, held that “violent acts indicating the relationship between the victim of a violent crime and the defendant prior to the commission of the offens e are re levan t to sho w def enda nt’s hostility toward the victim, malice, intent, and a settled purpose to harm the victim.” 868 S.W.2d at 574. Here, w e have a distingu ishable c ase: the S tate does not seek to introduce evidenc e again st the acc used; ra ther, Defe ndant s eeks to introduce evidence that another pe rson, Kena Hodges , comm itted a prior violent act agains t the victim. Examining Rule 40 4(b) in con junction w ith Rule 401, this evidence may or may not be relevant evidence in this case—that is to say, it may or may not have “any tenden cy to ma ke the ex istence o f any fact th at is of consequence to the action more p robable or less pro bable tha n it would be witho ut the evid ence.” Tenn. R. Evid. 401. As sumin g that und er Rule 4 04(b), prio r violent ac ts against the victim can be relevant evidence of motive and intent to com mit the acts again, evidence in this case that Kena had abused the child could be relevant evidence that she had abused Miyoshi on the day of her death, but it would not make abuse or negle ct by De fendan t any less likely. Therefore, we conclude that the trial judge did not abuse his discretion by denying admission of this evidence. V. JURY INSTRUCTION ON CRIMINAL RESPONSIBILITY Defendant next contends that the trial court committed an error of constitutional magnitude when it instructed the jury on the third section of criminal respon sibility for the con duct of an other an d a juven ile crimina l statute mandating -34- that persons who have knowledge of child abuse report such abuse to the authorities. See Tenn. Code Ann. §§ 39-11-402(3), 37-1-403. Specifically, the trial court instructed: The defendant is criminally responsible for an offense committed by the conduct of another if having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with the intent to benefit in the proceeds or results of the offense or to promote or ass ist its com miss ion, the defen dant fa ils to make a reasonable effort to prevent commission of the offense. In a later instruction, sepa rated by ninete en pages of the record, the trial court advised the jury, Any person having knowledge of or called upon to render aid to any child who is suffering from or has sustained any wound, injury, disability or physical or mental condition which is of such a nature as to reasonably indicate that it has been caused by brutality, abuse or neglect or which on the basis of available inform ation re ason ably appears to have b een ca used b y brutality, ab use or n eglect shall report such harm immediately by telephone or otherwise to the judge having juvenile jurisdiction or to the county office of the Department of Human Services or to the office of the Sheriff or the chief law en forcem ent offic ial of the m unicip ality wh ere the child resides. Person s include s, but is not limited to neighbor, relative, friend or any other person. We conclude that, while the latter instruction was likely not warranted by the facts of this case , its inclusion was not erroneous; and furthermore, if erroneous, such error wa s harm less bey ond a re asona ble dou bt. We find that these instructions were charged to the jury each separate from the other, with no indica tion from the trial court that the jury should consider them together and with no further instruction that the latter constituted a “duty imposed by law” under the former. Had the jury decided that Defenda nt failed to report child abuse in violation of this instruction, such a decision nevertheless sho uld -35- have had no bearing on fulfillmen t of the crim inal respo nsibility statute, because the third crimin al respon sibility prong requires “a duty im posed by law . . . to prevent commission of the offe nse.” T enn. C ode A nn. § 3 9-11- 402(3 ) (emp hasis added). Failing to report child abuse, by its terms, is an altogether different proposition and do es not sa tisfy this pron g of crimin al respon sibility. The tw o instructions combined created no error. Therefore, we now co ntemp late whether the instructions given alone created error. “It is the duty of the trial court to give a complete charge of the law applic able to the facts of a case .” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986) (citing State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)); see State v. Burkley, 804 S.W.2d 458, 461 (Tenn. Crim. App. 1990). In this case, the State presented a theory by which the jury could conclude that Defendant was crimin ally responsible for Kena H odges ’s actions. We have determined that the evidence was sufficient to find Defendant guilty of criminal responsibility for felony murder by reason of Defendant undertaking the obligation to care for and protect a young, helpless child. Therefore, we find that the trial court was w arran ted in charging the jury with the th ird prong of crimina l respons ibility—ha ving a du ty imposed by law. The second instruction, dealing with failure to report child abuse, we find to be essentially irrelevant. Defendant was not charged under the juvenile code with failure to report child abuse, nor does this instruction assist the trier of fact in determining a ny issue releva nt to a charged offense. Our su preme co urt -36- addressed irrelevant jury instructions in Adcock v. State, 236 S.W.2d 88 (Tenn. 1949), and Pedigo v. State, 236 S.W.2d 8 9 (Tenn. 19 51), in which im proper jury instructions required reversal of conv ictions . We fin d both case s disting uisha ble from the cas e at bar. In Pedigo, the supreme court described the jury instruction as follows: A photos tat of the charge as it was handed to the jury, convinces us that by reason of inco mpeten t and irrelevant m atter, illegible interlineation and mea ningle ss annotation, the charge might as well have been written in a fore ign lan guag e and could serve no purpos e exce pt to confu se the jury . 236 S.W.2d at 90. Here, we have only a single irrelevant instruc tion, no illegible interlineation and no meaningless annotation. This case clearly does not rise to the magnitude of the impropriety in Pedigo. Turning to Adcock, the predecessor to Pedigo and the case of P edigo’s c o-defen dant, we find that the written instructions given to the jury “contained not only points of law applicable to the . . . case, but also much that was inapplicable and confusing.” Furthermore, [n]ot only did [the Adcock jury] receive much law that had no application to the facts of this case, but they were also given instruction on many facts which were not in evidence and were contrary to the theo ry of the D efenda nt. The defense of the accused was an alibi. In the charge taken by the jury to the jury room , it was state d . . . , “the Defe ndant a dmits that he did the killing, but says that it was done by him in his own necessa ry self-defense, etc.” Then follows an elaborate charge on self-defense. 236 S.W.2d at 89. -37- Again, we conclude that the case at bar clearly does not reach the significance of Adcock. We find no reversible error in the trial court’s inclu sion of this a ccurate and non-misleading, yet irrelevant instruction. VI. STATUTORY AGGRAVATING FACTORS A. Tennessee Code Annotated § 39-13-204(i)(1) Defendant argues that the trial court erred by instructing the jury on both statutory aggravating factors requested by the State during sentencing. The first factor, listed in Tennessee Code Annotated § 39-13-204(i)(1), reads: “The murder was committed against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age, or older.” Tenn. Code Ann. § 39-13- 204(i)(1). In support of his argument, Defendant contends that this factor “should not apply to cases of felony murder where the underlying felony is aggravated child abuse, because such application would automatically support a sentence of life without parole for any defend ant ove r the age of eightee n.” Moreover, Defendant claims, Application of this factor in no meaningful way narrows the class of defendants eligible for a se ntenc e of life w ithout p arole. T his aggravating factor unconstitutionally duplicates a single aspect of the alleged crime - the victim’s age - and thereby violates due process, doub le jeop ardy, th e right to a fair trial, and the protections against cruel and unusual punishment as guaranteed by the Fifth, Sixth, Eighth, a nd Fou rteenth A mend ments to the United States Constitution; and Artic le I, §§ 8, 9, 16, and 17 of the Tennessee Constitution. -38- This issue has be en resolved by our supre me cou rt in State v. Butler, No. 02S01-9711-CR-00094, 1998 WL 710632 (Tenn., Jackson, Oct. 12, 1998) (for publication). In Butler, the supreme court held that “there are no constitutional or statutory prohibitions” to relying upon the felony murder aggravating circumstance when seeking a senten ce of life with out the po ssibility of parole for defend ants charged w ith felony m urder. Id. at 2 (discussing Tennessee Code Anno tated § 39 -13-204 (i)(7)). The court firs t stated that, w hen th e prop osed pena lty is not death, constitutional provisions prohibiting cruel and unusual punishment and defining the need to narrow the class of offenders “are not at issue.” Id. at 4-5. Second, the court disc ussed statutory s entenc ing requ iremen ts—specifically, §§ 39-13- 204 and 39-13-207—and determined that “[n]othing in the text of either section 39-13-207 or 39-13-204 prohibits the jury from considering an aggravating circumstance when the aggravator duplicates an element of the underlying offense.” Id. at 7. Although in this case the trial court instructed as an aggravator a different element of the underlying offense, we are confronted with a nearly identical situation. Furthermore, prior to Butler, this Court approved the use of the same aggravator in a case in which age was an element of the offen se. State v. Danny Ray Lacy, No. 02C 01-970 1-CC -00013 , 1997 W L 7292 61 (Ten n. Crim. A pp., Jackson, Nov. 25, 1997) (permitting § 39-13-204(i)(1) as an aggravating factor in a prose cution for first d egree m urder by aggrav ated ch ild abuse ), perm. to -39- appeal denied (Tenn . 1998 ). We th erefor e hold that there are no constitutional or statutory im pedim ents to the use of § 39-13-204(i)(1) as a sentencing aggrav ating facto r by the trial co urt in this cas e. B. Tennessee Code Annotated § 39-13-205(i)(5) Defendant next argues that the evidence was insufficient for the jury to find the statutory aggravating factor in Tennessee Code Annotated § 39-13- 204(i)(5)—that the murder was “especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” The State contends that it presented sufficient evidence by which the jury could have co me to this conc lusion be yond a reason able do ubt, and we agree. “Torture” has be en define d as “the infliction of sev ere phy sical or m ental pain upon the vict im wh ile he o r she re main s alive and con scious.” State v. William s, 690 S.W .2d 517 , 529 (Te nn. 198 5); State v. Nes bit, 1998 WL 670966, at *10 (Tenn., Jackson, Sept. 28 1998). In State v. Pike, 1998 WL 690064 (Tenn., K noxville, O ct. 5, 1998 ), the supre me co urt noted that “[w]ith res pect to ‘serious physical abuse beyond that necessary to produce death,’ we explained in State v. Odom that ‘seriou s’ alludes to a matter of degree, and that the physical abuse must be ‘beyo nd tha t’ or mo re than what is ‘nece ssary to prod uce d eath.’” 1998 WL 690064, at *14. When determining whether the evidence shows “severe physica l or men tal pain,” [t]he jury may use their common know ledge and experience in deciding whether a fact is logically deducible from the circumstances in evidence, or in making reasonable inferences from -40- the evidence, and may test the truth and weight of the evidence by their own general knowledge and judgment derived from experience, observ ation, and reflection; bu t neither jurors nor judges when acting as arbiters of guilt are permitted to base their decisions on the existence or non-existence of facts according to their personal beliefs or experiences, but only on facts established by legal and competent evidence or on infe rence s ded ucible from such proven facts as a re autho rized by la w. Fairbanks v. State, 508 S.W.2d 67, 69 (Tenn. 1974) (citing 23A C.J.S. Criminal Law § 1373 ), quote d in Nesb it, 1998 W L 6709 66, at *11 . According to the proof in the record, Miyoshi Richardson conclusively sustained blunt force trauma to the head and torso, each injury being sufficient to caus e dea th, as a result o f multip le blows causing various hemorrhaging of the brain and lace rations to th e liver. In addition to these grievous injuries , the vic tim showed affirmative evidence of shaken baby syndrome by her damaged, hemorrhaging optic n erve a rea. Fin ally, in addition to her serious physical injuries, the jury he ard evide nce tha t the child suffered both physical torture—through an explanation of the child’s worsening symptoms throughout the day of he r death prior to slippin g into unc onsciou sness, d ue to deprivation of medical attention; as well as mental torture—through a detailed description of how the tw o-yea r-old ch ild was forced to stan d with h er palm s aga inst the wall, in a corner of the room all night long, while her mother and Defendant engaged in sexual intercourse and slept, without being permitted to sleep, sit down, or relieve herself. We find the evidence sufficient to perm it a jury to find this aggravating factor. -41- VII. MAXIMUM SENTENCE FOR AGGRAVATED CHILD ABUSE Defe ndan t’s final argum ent is that the trial court erred by imposing the max imum senten ce av ailable by law for the c onvic tion of a ggrav ated c hild abuse—twenty-five years as a Range I offender. He co ntends that the trial court applied one enhancement factor in error, while also improperly denying one mitigating factor. Although this Court must conduct a de novo review when a criminal defendant appeals the length, range, or manner of service of sentence; the legislat ure ha s ma ndate d a “pre sum ption that the determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35- 401(d). The presumption of correctness is conditioned, however, upon proper consideration by the trial court of the sentencing principles in Tennessee Code Annotated § 40-35 -103. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). We find no error by the trial court in this case. Tennessee Code Annotated § 40-35-114(5) The trial court applied the statuto ry enh ance men t factor fo und in Tennessee Code Annotated § 40-35-114(5): “The defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense .” Tenn. Code Ann. § 40-35-114(5). Defend ant as serts th at this enhancement factor was improperly considered because it is inherent to the crime—an “essential element” of the offense. Defendant cites this Cour t’s opinion in State v. Claybrooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994), for the proposition that “[f]actors that are inherent in a particular offense, even if not designated as an ele ment, m ay not be applied to increase a sen tence.” -42- Specifically, he arg ues th at it is impossible to inflict serious bodily injury upon a child of six year s or less— eleme nts of the o ffense— without tre ating the c hild with “excep tional crue lty.” The State, in support of its argument that this enhancement factor was appro priately applied, cites State v. Poo le, 945 S.W.2d 93 (Tenn. 1997), in which our supre me c ourt he ld that th e elem ent of “s erious bodily injury,” as includ ed in the offense e specially a ggrava ted robb ery, doe s not nec essarily co nstitute “exceptional cruelty.” Id. at 98. The court stated, “In other words, the facts in a case may sup port a finding of ‘exce ptional cruelty’ that ‘dem onstrates a culpability distinct from a nd ap precia bly greater than that incident to’ the crime of esp ecially aggravated robbery.” Id. We be lieve that Poole provides appropriate guidance in this case. Defendant in this case could be convicted of aggravated child abuse without a finding of exceptional cruelty and, for that reason, application of the enhancement factor was permissible in this case. B. Tennessee Code Annotated § 40-35-113(4) Defendant’s final argument is that the trial court should have applied the statutory mitigating factor foun d in Tenne ssee Co de Anno tated § 40-35 -113(4): “The defendant played a minor role in the comm ission of the offense.” The trial court was w ithin its a uthority to rejec t this mitigating factor in light of the evidence presented. Even if the evidence showed that Kena Hodges inflicted the blunt force trauma upon the victim, Defendant at the very least ignored the obvious, severe medical peril of a helpless, two-year-old child for whom he had accepted -43- a primary care responsibility on a regular basis and for whom he had accepted a parental relationship. Taken even in the light m ost favora ble to Defendant, the evidence does not portray a minor role for him. C. Maximum Sentence Under Tenn esse e Cod e Ann otated § 40-3 5-210 , the trial c ourt sh all presu mptiv ely apply the mid-point of the sentencing range for Class A felonies. Tenn. Code Ann. § 40-35-210(c). H ere, the m id-point of th e range is twenty years because Defenda nt is a Range I offender. Whe n enhanc ement fac tors are found but no mitigating factors are found, the trial court may sentence a defendant above this presumptive sentence.7 Because the trial court found two statutory enha ncem ent fac tors, w e con clude that the trial cou rt did no t err in senten cing Defe ndan t to twe nty-five years on the charg e of ag grava ted ch ild abuse . In conclusion, we affirm the judgment of conviction for first degree murder committed during perpe tration o f aggra vated child abuse and the conviction for aggravated child abuse. Furthermore, we affirm Defen dant’s se ntence s of life imprisonment without the possibility of parole for murder an d twenty-five yea rs for aggravated child abuse. 7 Despite the fact that a plain-language reading of § 40-35-210 would indicate that a sentencing court must return to the minimum sentence in the range when enhancement factors are present (although the presumptive sentence with no mitigating or enhancement factors is the mid-point), the appropriate and correct result is to start from the mid-point of the range. See State v. Katherine Irene Warren, No. 01C01-9710-CC-00455, 1998 WL 749412, at *4 (Tenn. Crim. App., Nashville, Oct. 28, 1998) (following State v. Chance, 952 S.W.2d 848 (Tenn. Crim. App. 1997), which noted the incongruity of § 40-35-210(c), (d), and (e), but concluded that a plain-language reading of its provisions would create an absurd result). -44- ____________________________ DAVID H. WELLES, JUDGE CONCUR: ______________________________ JERRY L. SMITH, JUDGE ______________________________ JOHN K. BYERS, SENIOR JUDGE -45- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1081974. Public record. Not legal advice.