State of Tennessee v. Gavin Allen Clark

10/23/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 11, 2025 Session

STATE OF TENNESSEE v. GAVIN ALLEN CLARK

Appeal from the Circuit Court for Coffee County

No. 2020-CR-46,811F Robert Thomas Carter, Judge

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No. M2023-01427-CCA-R3-CD

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A Coffee County Grand Jury indicted the Defendant, Gavin Allen Clark, with first-degree

felony murder by aggravated child abuse (count one), first-degree felony murder by child

neglect (count two), aggravated child abuse (count three), and aggravated child neglect

(count four). Following a jury trial, the Defendant was convicted of the lesser-included

offense of reckless homicide in counts one and two, and he was convicted as charged in

counts three and four of aggravated child abuse and aggravated child neglect. He received

an effective sentence of twenty-three years in confinement. In this appeal as of right, the

Defendant raises the following issues for review: (1) as an issue of first impression in

Tennessee, whether the verdict is defective for ambiguity because within each count the

jury simultaneously convicted and acquitted; (2) whether the trial court erred in failing to

act or serve as the thirteenth juror; (3) whether the evidence was sufficient to sustain his

conviction of aggravated child neglect; (4) whether the trial court erred in deciding the

McDaniel motions when the trial judge employed an erroneous legal standard and

conducted an arbitrary hearing; (5) whether the trial court erred in permitting witnesses to

testify about the Defendant’s callous demeanor; (6) whether the trial court erred in denying

the motion to suppress data from the Defendant’s cell phone; (7) whether the State engaged

in prosecutorial misconduct in closing argument; (8) whether the State violated the

Defendant’s speedy trial rights; and (9) whether the cumulative effect of the errors requires

reversal.1 Upon review, we conclude that the verdicts returned by the jury in this case were

ambiguous because they purport to simultaneously convict and acquit the Defendant. As

such, the verdicts are unenforceable and cannot be given full effect. Under the

circumstances of this case, we also conclude that the Defendant’s convictions are not

barred from retrial based on double jeopardy principles, and we remand for a new trial.

We further conclude that the trial court failed to fulfill its duty as the thirteenth juror, which

also mandates reversal of the Defendant’s convictions, and remand for a new trial. We

address the Defendant’s remaining issues in the event of further appellate review.

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We have reordered the Defendant’s issues.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed,

Vacated and Remanded for New Trial.

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JEFFREY USMAN,

Sp. J., joined, and TIMOTHY L. EASTER, J., joining in part and dissenting in part.

Drew Justice, Murfreesboro, Tennessee, for the appellant, Gavin Allen Clark.

Jonathan Skrmetti, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant

Attorney General; Craig Northcott, District Attorney General; and Jason Ponder and

Jennifer Craighead, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

The facts giving rise to the instant case stem from the death of the Defendant’s five-

week-old son, who suffered from severe brain injury as a result of five separate skull

fractures while in the exclusive care, custody, and control of the Defendant. The cause of

the victim’s death was determined to be blunt force trauma to the victim’s skull associated

with child abuse, and the manner of the victim’s death was described as “beaten by [an]

assailant.” The Defendant alleged that while holding the victim in his right arm, he tripped

on a toy, fell down a set of stairs, and dropped the victim. The Defendant did not

immediately observe any external symptoms of injury to the victim, and he did not seek

medical treatment for the victim until nearly five hours after the fall. On January 5, 2020,

the Defendant was arrested for the first-degree murder of the victim. On July 14, 2020, the

Coffee County Grand Jury indicted the Defendant with first-degree felony murder by

aggravated child abuse (count one); first-degree felony murder by aggravated child neglect

(count two); aggravated child abuse under eight (8) years of age (count three); and

aggravated child neglect (count four).

The Defendant’s five-day trial commenced on September 19, 2022, and concluded

on September 23, 2022. The proof adduced at the Defendant’s trial consisted of the

following testimony and exhibits. Before testimony, two exhibits were stipulated to and

admitted into evidence: (1) a video showing the victim’s parents entering Walmart to get

their taxes done on the morning of the offense; and (2) the victim’s medical records from

Vanderbilt University Medical Center (“VUMC”) and Tennova Medical Center.

Mother, the victim’s mother and the Defendant’s wife, testified that the victim was

born on November 25, 2019, and passed away when he was “just shy of six weeks old.” A

photograph of the victim was entered into evidence. Mother returned to work three weeks

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after the victim was born, and the Defendant did not have a job at the time. On January 3,

2020, the night before the victim’s death, Mother noticed “something [was] wrong with

[the victim’s] penis” when she got home from work. It appeared red, irritated, and swollen.

Mother asked the Defendant what happened, and he said he did not know. They decided

that if the swelling had not gone down in the morning, they would take the victim to the

doctor about it the next day. When she awoke the next morning around 5:15, the Defendant

was already awake, walking around the house, and had the victim up and awake. Asked

why he had the victim awake, the Defendant told her that he did not want to wake her and

that he had changed the victim’s diaper and fed him. When she left the house that morning

for work, the victim appeared “normal.” She said he had an older bruise on his forehead

from his three-year-old older brother. She agreed the victim’s penis was “still a problem.”

The Defendant and Mother discussed which of them would take the victim to the

doctor. Mother told the Defendant that she was willing to miss work, but he told her that

he would take the victim to the doctor. When Mother suggested that she would go with

the Defendant, he complained that she never let him take the victim to the doctor. Mother

relented, and the Defendant later dropped her off at work. Mother subsequently called the

Defendant and told him that he needed to take the victim to “Urgent Care” because she

could not get through to their doctor’s office. Her timecard from work on January 4 was

admitted as an exhibit and reflected that she clocked in at 6:45 a.m. and clocked out at

11:00 a.m.

When the Defendant picked up Mother from work, they did not go to Urgent Care

as planned. Mother testified that the Defendant told her that he had already taken the victim

to see a doctor. The Defendant also told her they “needed to start making sure that the kids

kept their toys in their room.” When Mother asked him to explain, the Defendant told her

that their older three-year-old son’s toy was on the stairs, and that the Defendant and the

victim fell. The Defendant did not describe the fall to her. When Mother asked if the

victim was okay, the Defendant told her that the victim was fine and that he had eaten.

Asked if the Defendant fell with the victim before or after he had taken him to see the

doctor, the Defendant initially told her they fell after he had taken the victim to the doctor.

The Defendant changed his mind “two seconds later,” and told her he had taken the victim

to the doctor after they fell down the stairs. The Defendant told Mother the doctor said the

victim “looked fine.” They proceeded to Walmart to file their taxes. When they drove to

Walmart, the victim was in the backseat of the car, asleep. Mother was not concerned with

the victim because the Defendant said he was okay.

Mother testified that they were at Walmart for roughly forty-five minutes and

returned home. Mother took the victim’s car seat out of the car and placed it on the couch

inside their home. When she took the victim out of the car seat, she observed that he could

not “fully get that yawn and stretch out. It looked like there was something wrong with his

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mouth.” She told the Defendant that something was not right, and they needed to go to the

hospital. They went to Tennova Hospital. She did not recall seeing the Defendant again

until the victim was being placed into a helicopter. She explained that, at some point, the

Defendant had taken their three-year-old son to his parents’ home. She remembered

sending the Defendant a text message stating that “it doesn’t look good that you’re not

here[.]” She said the victim was taken by LifeFlight to Vanderbilt Children’s Hospital,

where he was admitted to the intensive care unit for pediatrics. She and the Defendant took

turns staying with the victim and alternated taking smoke breaks outside while he was

there. She said the next morning, January 5, the victim passed away.

On cross-examination, Mother denied that the Defendant text messaged her that the

police barred him from coming back to where they were at the hospital. She said the

Defendant told her the hospital was on “lockdown” and there was no mention of police.

She understood the Defendant to mean that he could not get inside the hospital. She agreed

that she was married to the Defendant and denied living with another man and having a

boyfriend at the time of trial. She could not recall whether she had previously testified that

the doctor’s visit, which the Defendant told her about in the car, referenced treatment for

the victim’s penis or treatment for the fall. After defense counsel played an audio recording

presumably of her prior testimony, Mother stated that she was not sure whether the

Defendant “supposedly took the kid to the doctor for the fall or for the penis.” She agreed

that if the Defendant was released, she did not plan to live with him.

Mother agreed that the victim had a medical device in his head to drain the pressure

when she arrived at the hospital. She agreed that the stairs on which the Defendant fell

were carpeted. She agreed the victim had a carpet burn on his nose, and he appeared to

have “skinned his nose on the carpet.” She agreed the victim had an older bruise above his

right eye. She agreed that the victim’s older three-year-old brother would commonly leave

his toys “all over the place,” including the stairs. She agreed that she could not tell from

looking at the victim that he had a skull fracture and needed emergency medical care. She

denied that the Defendant told her that he had not taken the victim to the hospital when he

picked her up from work. She had never observed the Defendant abuse their children. She

agreed that the Defendant worked a few days a week every couple of weeks prior to the

victim’s death. She agreed that the Defendant served as their family caretaker, and she had

no issue with him watching their children.

On redirect examination, Mother said the Defendant told her that they fell down the

stairs “on the way to come get [her]” from work. She said the fall occurred when they were

leaving the house to come and get her. She said the Defendant and the children left the

house a couple of times to get her that morning. She received a text message at 9:46 a.m.

from the Defendant stating, “About to head that way. We are about to be released.” Asked

what he was being released from, Mother said, “I assume the doctors.” She maintained

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that she did not know that they had fallen down the stairs until the Defendant got into the

car and told her. On recross examination, she agreed that there was not enough time for

the Defendant to have gone to the doctor if the fall had occurred when they were leaving

the house to pick her up from work.

Katrina Hill, a charge nurse at the Tennova Hospital emergency room, testified that

another nurse had notified her when the victim arrived. She immediately requested

assistance from other doctors and nurses and called a “Code Pink.” Code Pink was similar

to a Code Blue for adults, which meant CPR in progress, or in the case of a “super critical

patient.” She said the victim was bruised and his skull was deformed. A heart monitor

showed the victim’s heart rate was within normal range. A needle was placed directly into

his bones in order to provide medication quickly. The nursing staff also attempted to warm

the victim with as many blankets as possible. They also performed a chest X-ray; however,

their primary concern was getting the victim to Nashville for a higher level of care. After

speaking with Mother, Hill was told that earlier in the day, the Defendant was going down

the stairs with the victim and fell with the victim. Mother told her the Defendant tripped

over a toy, and at another point, Mother said that the Defendant said he “just tripped.”

While Hill did not recall speaking to the Defendant, she did observe the Defendant’s

behavior. When asked how he was acting, defense counsel objected, noting that his

demeanor was not relevant. The trial court responded, “You can ask how he was acting.”

She then stated that the Defendant did not react. She said, “He didn’t show emotion. He

had a very blank stare. I personally did not ever see him shed a tear.” Asked how Mother

was acting, she said, “Hysterical.” She testified that Dr. Scott Giles had their unit secretary

call the communication center as part of their protocol. She stated, “Any time you suspect

abuse or neglect, it doesn’t matter the age, you are to report it. We are legally required to.”

She took several photographs of the victim in the hospital, which were admitted into

evidence. One of the photographs reflected blood coming out of the victim’s nose and

bruising. She said that the victim’s posture was not normal and was a sign of brain injury.

One of the things she immediately noticed was that the victim’s eyes were bulging out and

swollen.

On cross-examination, Hill agreed that everyone handles grief differently. She

agreed that the medical records showed the victim’s family was at his bedside, but she

denied charting that information. She also agreed that another individual charted that the

victim did not have any open wounds. She agreed that the photographs did not show blood

coming out of the victim’s nose, but she affirmed that it was there. She agreed they may

have wiped it away. Asked to show on the photograph where she observed the victim’s

skull was physically deformed, she said the photographs “can’t depict everything that you

can see.” She continued to explain that “shadows change” and the victim’s skull was

“shifted strangely.” Asked if a person could see with their naked eye a deformed skull in

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any of the photographs, Hill said, “It depends on how you view things. Depends if they

have ever seen a deformed skull.” She agreed that no head X-rays were ever taken. She

agreed that the notation in the medical records that the victim’s pupils were reactive to light

was usually a positive sign.

On redirect examination, Hill was asked about a notation in the medical records that

the victim’s parents were at his bedside at 3:19 p.m. Hill read, “Prior to departure Mother

and Father were given the opportunity to see the baby and kiss the baby[,]” and defense

counsel objected because the notation was about the Defendant’s demeanor. The State

noted that the question was in response to defense counsel asking Hill on cross-examination

about the family being at the bedside. The trial court permitted the testimony and noted,

“This is responsive to defense counsel’s question.” Hill continued and read the following

excerpt from the medical records, “Mother approached and while crying she kissed the

infant. She appears very distraught and has been throughout the time the infant has been

here. The father reluctantly approached the infant and kissed the child on the forehead. He

was not crying at that time.” On recross examination, upon being asked if someone could

be upset and not cry, Hill said, “Everyone reacts to things differently.”

Chet Mason, a Tennessee Bureau of Investigation (TBI) expert in digital forensics,

analyzed the Defendant’s cellphone, extracted data, and prepared a report of his

examination, which was admitted as an exhibit. He testified that when the Defendant’s

phone was first submitted to the TBI two years prior to trial, he was unable to extract any

data. Upon the second submission, technology had advanced such that they were able to

obtain information from the phone. He found “cookies” on the day of the homicide on the

Defendant’s phone. This indicated that either “the actual website of that cookie was

visited, or the possibility of a search engine was used and whatever term was searched, the

website—it returned the websites as a possibility of what term was searched.” He also

obtained data that had been marked for deletion by the Defendant.

On cross-examination, upon being asked whether he could determine if anything

“relevant” had been deleted from the Defendant’s phone, Mason agreed that the extraction

and Cellebrite report showed that “someone deleted every single text message off of this

phone before they gave it to police[.]” He agreed that he was unable to determine whether

the Defendant had deleted the text messages. He agreed that the “cookies” showed that the

Defendant may have visited websites such as healthline.com and infantCPR.com.

However, he was unable to determine if the Defendant actually visited the websites. He

agreed that nothing in the Defendant’s website history had been deleted. He agreed that

the Defendant began searching the internet for medical information at 8:32 a.m., and

another search occurred at 8:56 a.m. He also recovered text messages between the

Defendant and Mother from the day of the incident. Upon being asked to read the text

messages the Defendant sent to his wife at 5:29 p.m. and 7:03 p.m., Mason read, “I’m as

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sorry as I could ever be. I promise I am. I feel terrible. That’s my son that I’m supposed

to love and protect[,] and I let him down now.” He also read, “What’s going on back there?

I’m not the bad guy. Why did they leave me behind? This is really messing with me on

the inside.”

On redirect examination, Mason explained that a gap in the internet search history

could mean that (1) there was no web browsing during that time, (2) his tool did not recover

it, or (3) it was deleted and not recovered by his tool. Since there were cookies present on

the Defendant’s phone, this indicated there was browsing activity and his tool was working

properly. Because there was no web history recovered, Mason opined that the information

had been deleted and not recovered. A redacted timeline of the extraction report was

admitted into evidence, and Mason confirmed that a cookie from healthline.com was

generated on the Defendant’s phone at 2:09:27 a.m. and 8:32 a.m. on the morning of the

offense.

Jennifer Brooke Hamilton, the nursing supervisor at Tennova Hospital when the

victim was brought to the emergency room, testified that she remembered the victim was

not responsive when they tried to “thump a foot, rub his chest.” They had been told that

the victim had been at home with a parent and had fallen down the stairs. She said it was

not uncommon for the emergency room staff to assess “a toddler f[a]ll off a swing set or

mom accidentally dropped a baby[.]” She said they “quickly” observed that the injuries to

the victim were more serious than what they initially thought after their initial assessment.

She noted on the victim’s chart that “Mother states [victim] was at home with father while

she was at work. Father states that he tripped over an older sibling[’]s toy and fell down

the stairs while holding the infant at approximately 11:00 a.m.” While at the victim’s

bedside, she observed blood in his mouth and charted it on his medical record. She was

present when the victim was taken by LifeFlight to VUMC and observed the victim’s

mother at his bedside while the Defendant was in the hallway. Over defense objection, she

said the victim’s mother was crying; however, the Defendant was not. She continued and

stated that the mother was “very emotional, very engaged,” but described the Defendant as

“reserved[.]” She understood that everyone processes these things differently, but she

agreed that his response was not “typical” of what she sees in similar situations.

On cross-examination, Hamilton assumed the blood in the victim’s mouth came

from his injuries. She did not know whether the injury was from a “minor cut” on the

inside of the victim’s lip because she was not present. Other than a mark to the victim’s

forehead, she did not observe any open wounds to the victim’s body. She observed dried

blood in the victim’s mouth, ears, and nose. Asked whether, when a toddler falls off a

swing or when a mother drops a baby and brings them into the hospital, if an X-ray is

performed “in every single one of those cases,” she said she would if there was “reasonable

suspicion” to do so. Ultimately, however, whether to conduct an X-ray of the child is to

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be determined by a physician. Asked if she observed any skull fractures to the victim’s

head, she said she “can’t observe without looking at an X-ray.”

Jessica Pratt, a nurse practitioner, was on duty at the hospital when the victim came

into the emergency room. She said the victim “came in with his mom and dad, just lifeless,

no crying.” She observed his head seemed “misshapen” and his eyes seemed swollen. She

did not initially treat the victim but recalled his vital signs and that he was cold and his

temperature was low. Asked about any communication she had with the victim’s parents,

she said the victim’s mother was “very distraught” and the Defendant was “relatively stoic,

just not a lot of communication from him, I didn’t feel like.” She said the Defendant was

with another child and left the hospital with that child for a brief period of time. She said

the Defendant returned to the hospital. She said when the helicopter arrived, the victim’s

mother was “clearly upset,” and while the Defendant did join in “the goodbye,” she

described him as “just emotionless for the goodbye.” On cross-examination, she was

shown exhibits two and nine, photographs of the victim’s head, and asked to identify on

exhibit nine where the victim’s head “was somehow warped.” She replied, “I felt the

baby’s eyes were swollen, and I would agree they still look swollen in this picture.” She

also insisted that the victim’s head “looked misshapen[].”

Investigator Jamie Norris of the Manchester Police Department received a 911

dispatch concerning alleged child abuse and responded to the Defendant’s home in

Manchester at 2:50 p.m. on the afternoon of the offense. Upon arrival, no one was present

at the home, and Investigator Norris had been advised that LifeFlight was taking the victim

to VUMC. When the victim’s parents arrived home, Investigator Norris described the

victim’s mother as “devasted,” and the Defendant as “very forthcoming with information,”

“not sad,” and physically, not crying. Investigator Norris took various photographs of the

Defendant’s home, which were admitted into evidence. The first photograph showed the

home from the perspective of the front door, including the couch, television, and kitchen

with closets and stairs to the left. The next photograph was of a toy truck and a toy dinosaur

lying on the floor in the living room. The next photograph was of the master bedroom and

an unmade bed. The next photograph was of the Defendant explaining to the investigators

where the fall occurred and walking them through what happened. Investigator Norris

acknowledged that the photograph was not of the entire staircase and that it did not contain

any toys on the stairs. Investigator Norris said the Defendant did not provide “a particular

step. He couldn’t say it was exactly the fourth step down. He just gave a ballpark eight,

nine, ten step.” Investigator Norris demonstrated for the jury how the Defendant described

the fall:

He showed us that he grabbed ahold of the right rail and fell like such

[indicating]. He did not tumble. He did not fall to his knees, did not fall to

his rear end, did not roll down the stairs as this picture -- as he was showing

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us. He just showed that his right hand grabbed ahold of it and that’s when he

said that [the victim] fell out of his hands or out of his arms and rolled down

the stairs.

Investigator Norris said the Defendant told them that he fell to his knees, but the

Defendant did not show them how he did so when asked to describe it to the investigators.

Investigator Norris described another photograph from the top landing of the stairs with a

green tractor at the bottom of the stairs. Investigator Norris said it was in that location

when they arrived at the home. No toys were picked up or moved upon their arrival or

while they were there. He described another photograph showing two marks on the

stairwell wall of the home. He said the apartment building in which the Defendant lived

was recently built. Another photograph depicted a yellow Tonka crane or heavy-duty

truck, which the Defendant told investigators was the toy he had fallen over. Investigator

Norris said the Tonka truck was found in the victim’s older brother’s room, which was

upstairs. The Tonka truck was taken into evidence at a later date and admitted as an exhibit

at trial. Another photograph showed the trash can, which contained some baby wipes with

blood on them. Investigator Norris said that when he asked the Defendant about the bloody

baby wipes, the Defendant told him that the victim had “busted his lip” and the blood on

the wipes was from the Defendant cleaning the victim’s mouth. Another photograph was

of the Defendant to determine if he had any injuries consistent with a fall. Investigator

Norris said he did not document any injuries to the Defendant at that time.

Investigator Norris said that the Defendant told him the victim cried “a little” and

“threw up” after he fell. The Defendant cleaned the victim and placed the victim next to

him on the couch. After the Defendant left the home to go to VUMC, the investigators

drove to the hospital to continue their investigation. After speaking with the doctors and

viewing the victim, the investigators interviewed Mother. They Mirandized the Defendant

and interviewed him again. The Defendant provided a signed, written statement

(performed at his home), which was admitted into evidence. The Defendant’s handwritten

statement provided as follows:

I got a couple of steps down I was talking to my oldest son who was

in the living room and as I took my step I stepped on a toy truck I believe

and it rolled and tripped me as I fell my son came lo[o]se from my hands as

I leand [sic] toward the left to try to grab the rail to catch our fall but before

I could do that or catch us both my son broke loose from me and fell towards

the baseboard and proceeded to fall down the stairs I picked him up he cried

for a short time and threw up a little after I cleaned him I fed him he ate a

small amount and coverd [sic] him up and he laid beside me until I went to

get my wife from work 2 ½ maybe 3 hrs max in between the fall and getting

my wife I didn’t take him emeditly [sic] because I hope he got better.

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Investigator Norris confirmed that the Defendant stated he leaned toward the left to

try to grab the rail and catch their fall; however, as shown in the photograph, the rail was

on the Defendant’s right. Investigator Norris believed the Defendant was “maybe missing

his words.” The Defendant also said he had the victim in his left arm; however, the

photograph showed the Defendant would have fallen to his right. Investigator Norris

consulted with the district attorney and arrested the Defendant on January 5, 2020. The

victim passed away at 6:38 that morning, and an autopsy took place on January 6, 2020.

Investigator Norris attended the autopsy and obtained a search warrant for the Defendant’s

home on January 9, 2020. No one was living at the house at the time of the search warrant.

Handwritten drawings and blueprints of the Defendant’s home were admitted into

evidence. The exhibits showed the length of the handrail of the staircase measured 14 feet

8 inches, from top to bottom, the length of the handrail from where the alleged fall took

place. The stairs were numbered and measured 3 feet 2 inches wide and had a 7-inch drop

by 11-inch platform from the stairs themselves.

Investigator Norris confirmed that, upon being asked how the victim got the bruise

on his head, the Defendant told him that a week before the victim died, the Defendant made

a pallet for the victim outside on the concrete ground where the Defendant sat outside and

smoked a cigarette. While the victim was on the pallet, the Defendant said the victim

“rolled over and fell[.]” Investigator Norris was concerned with this statement because,

based on his experience, a five-week-old child could not roll over on their own in a blanket.

Investigator Norris explained that he took another photograph showing a view from the

landing underneath the thirteen stairs to show that there were no hard surfaces or non-

carpeted surfaces. He agreed that the Defendant lived in a newer apartment complex with

newer carpet. He repeated that the Defendant told him he was on approximately “the eighth

to tenth step, eight through ninth step” when he fell. This meant the Defendant was on the

fourth or fifth step from the top of the fourteen stairs. A photograph was shown depicting

the padding underneath the carpeted stairs, which was cut, and a sample was sent to the

TBI for blood analysis and testing.

While at the Defendant’s home during the search warrant, they also conducted a

reenactment of the fall using a doll in the place of the victim. Investigator Norris said the

Defendant told him that he was carrying the victim on his left arm, with his back and head

resting against his chest, and his feet dangling over his arm while walking down the stairs.

Two video clips of the reenactment were admitted into evidence. The victim’s mother

assisted investigators in retrieving the Defendant’s phone, which was obtained from the

side of the road near the Defendant’s biological mother’s home. Investigator Norris

identified the Defendant’s phone, which had a cracked screen and was muddy. He said it

was the same phone that was sent to the TBI twice for analysis. The Defendant’s phone

was admitted into evidence as an exhibit.

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The phone logs from the Defendant’s phone showed that on January 4, 2020, the

day of the offense, at 2:09 a.m., there was a search for healthline.com. At 8:32 in the

morning, there is a Bing search for infantCPR.com, at 8:40 a.m. topregisterednurse.com,

and at 8:41 a.m. healthline.com. There were several text messages between the Defendant

and Mother during the morning of offense, which corroborated Mother’s chronology of

how the events occurred that morning.

The parties stipulated to phone calls the Defendant made from the Coffee County

Jail. As part of his investigation, Investigator Norris monitored the Defendant’s phone

calls from jail. In one recording the Defendant commented on “fist hits” and said he did

not tell Investigator Norris anything about that in his statement. In another recording, the

Defendant said something about marks behind the victim’s ears, which he omitted from his

statement to Investigator Norris. Investigator Norris agreed that the Defendant told him

the victim was sleeping; however, the Defendant said in the jail phone calls that he would

not let the victim go to sleep.

On cross-examination, Investigator Norris did not recall whether the Defendant told

him that the victim was sleeping “off and on” and that the Defendant tried to stop the victim

from sleeping. He agreed that the victim’s injury would have likely occurred around 8:30

that morning, and the Defendant told him that the injury had happened either at 9:00 that

morning, or two and a half to three hours before he picked up his wife. He agreed that the

Defendant never stated that he purposefully injured the victim. He agreed the Defendant

did not specify what the victim hit or where he landed after the fall. He agreed that the doll

used in the reenactment was a different weight than an actual human baby and that he did

not trip or fall on a toy. He denied that the baseboard was a sharp surface and explained

that it was compressed wood. He nevertheless agreed that the baseboard was harder than

the carpet. He agreed that while the Defendant was providing his statement, the Defendant

was at the bottom of the stairs, and from his perspective, the railing would have been on

his left. He denied that the Defendant directed him to the bloody wipes in the trash can,

but he agreed that there was not a large amount of blood on the wipes. He agreed that the

Defendant told him that the victim’s older three-year-old brother previously had struck the

victim in the head with a toy fire truck. He agreed that he did not take a close-up

photograph of the Defendant’s knees, and he denied, upon being shown a photograph

zooming in on the same, that the Defendant’s knees appeared irritated or skinned up from

the carpet. He agreed that the autopsy report referred to the cause of death as “beaten by

assailant.”

On redirect examination, Investigator Norris testified that the yellow Tonka truck

had been picked up and placed in the victim’s older brother’s room. He said the Defendant

“walked us upstairs and pointed out the yellow truck that he alleged[ly] fell over and that

- 11 -

was in” the room. He said the Defendant did not tell him why he picked up the toy and not

the others that were lying on the floor.

The State later recalled Investigator Norris to testify that a laboratory technician was

unavailable due to family medical leave. Consequently, Investigator Norris was asked to

conduct a Bluestar preemptive test, which was a type of spray put on a surface to determine

if the surface contained blood or bodily fluids. Investigator Norris conducted a Bluestar

test on the carpet recovered from the four stairs that “the Defendant alleged [sic] fall down

and where the baby alleged fall and was bleeding, those four steps were removed and

tested.” The test did not reveal the existence of blood or anything that could be construed

as blood. On cross-examination, Investigator Norris said the carpet was tested for blood

based on the bloody baby wipes in the trash can and the Defendant’s statement that he

cleaned up the victim. While he did not test the baseboard for blood, he visually confirmed

that blood was not present on the baseboard at the time.

Brandon Tomberlin, the Chief Investigator of the Manchester Police Department,

assisted in the investigation of the victim’s death and testified consistently with the

testimony of Investigator Norris. He also said when the bloody baby wipes were found in

the trash can, the Defendant said he used them to clean blood from the victim’s mouth after

the fall. In regard to the Defendant’s statement that was taken while he was at the hospital,

Chief Tomberlin said the Defendant additionally told them that he was supposed to take

the victim to the doctor that morning for an injury the victim already had, but he did not do

that. On cross-examination, Chief Tomberlin testified the Defendant told him that there

were three possible incidents which would explain the victim’s injuries: (1) that the day

before the fall he noticed an injury to the victim’s penis and knew that it needed medical

attention; (2) that one day before the fall, “a toy was rolled into” the victim; and (3) that

four or five days before the fall he built a padded blanket on the exterior carport concrete

for the victim to set on or lay on and the victim rolled off of the padded blanket. Chief

Tomberlin agreed that he could have reversed the timeframe of when these events occurred.

Dr. Scott Giles, an expert in the field of emergency medicine, testified that he was

the medical examiner for Wilson County. He testified that the victim was brought to

Tennova Hospital around 2:00 p.m. on the day of the injury and appeared “clearly severely

injured.” He testified, “the fact that there was a delay from the injury to treatment time has

always been taught to us as a red flag for neglect or abuse, so that was a primary concern.”

The appropriate law enforcement authorities were contacted, and medical personnel did

their best to stabilize the victim for transport to VUMC. Based on the medical records, the

victim was admitted to the hospital at 1:24 that afternoon. Based on his understanding of

the Defendant’s account the injury occurred about 11 o’clock, and there was a two-and-a-

half-hour approximate delay from injury to treatment. He briefly spoke with the Defendant

about what happened, and the Defendant told him he had tripped downstairs and dropped

- 12 -

the victim. He described the Defendant’s demeanor as “pretty calm” and atypical. He

described the demeanor of Mother as “very, very concerned.” He further stated that at the

time the victim was taken by LifeFlight, the victim’s mother “hovered over the child, kissed

the child. The father [Defendant] was somewhat reluctant to even kiss the child at the time

when we loaded him on the helicopter.”

Dr. Giles testified that he decided to get the victim to a trauma center as quickly as

possible. He did not take X-rays or scans because there was “really nothing to be gained,”

and he believed it would delay treatment for another thirty minutes. Asked how he

concluded that the victim was in severe distress, he testified that the victim was not

responding to any stimulus. He said the victim’s heart rate dropped and his pupils became

unresponsive. He observed minor external injuries to the victim’s body including bruising

to the scalp, frontal and left side of the head, and abrasive non-threatening injuries to the

penis. He agreed he conducted an X-ray for blunt chest trauma, which was part of a skeletal

survey and did not require the victim to leave the emergency department. He also agreed

that the victim did not suffer from either rib fractures or previously inflicted rib fractures.

He agreed that the victim may have initially responded to pain; however, when a drill was

placed into his tibia the victim did not respond. He agreed that the victim’s skull was not

“warped looking.”

The voir dire of Dr. Kristina Betters consisted of the following testimony. Dr.

Betters testified that she obtained her undergraduate and medical degrees from the

University of Florida. She attended Emory University where she completed three years of

pediatric residency and three years of pediatric critical care training. She was an assistant

professor of pediatrics in the pediatric critical care department at Vanderbilt University for

over five years. As part of her tenure as a professor, eighty percent of her time is dedicated

to the pediatric intensive care unit (ICU) and twenty percent to research. She is a member

of the Society of Critical Care Medicine, the American Academy of Pediatrics, and is the

co-chair of the ICU Liberation Committee. She had publications in clinical research

studies with a focus on the rehabilitation of pediatric critical care patients. Her curriculum

vitae was admitted into evidence without objection.

On cross-examination, Dr. Betters agreed that she planned to testify in this case

regarding her opinion of whether the victim was abused and neglected. She stated the

victim had “inflicted trauma.” She could not specifically say how the trauma was inflicted.

However, she testified “the clinical finding on this child w[as] consistent with somebody

intentionally harming him.” When asked why she made this conclusion, she said “because

they [the injuries] are not consistent with an accidental injury.” She continued to support

her conclusion by stating the nature of where the fractures occurred, the nature of where

the bruising was, and the injuries that occurred supported her conclusion of child abuse.

She agreed she was not aware that the victim exhibited bruising unrelated to the alleged

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fall. Asked what the location of the fractures revealed, she stated the mechanism of injury

predicts where fractures would occur and where they would not occur. She said she

considered the reported injury versus what you actually see on a patient. She said the

reported injury was the child being held while the father was walking down the stairs and

that he tripped over a toy, that they were carpeted stairs, and that the child fell out of his

arms. If a child had fallen from their parents’ arms onto carpeted stairs, she would have

expected a singular point of contact with the child’s skull that could cause a fracture. She

disagreed that, in the instant case, a single point of impact could cause multiple fractures.

Dr. Betters explained that if a child fell from their parents’ arms onto carpeted stairs,

if the child was going to have a fracture, she would expect it to happen on that first impact,

and then rolling down carpeted stairs, she would not expect subsequent fractures based on

impact. She agreed she was not advised of the possibility that the victim struck anything

other than carpet. Asked whether the victim struck a wooden baseboard along the edge of

the carpet or possibly the wall itself would change her opinion, she said it would depend

on the distance between the victim and the object the child struck, and the degree of force

involved. She was unfamiliar with the experiments of W. Weber concerning skull fractures

in infants. She stated her opinion was based on the entire clinical picture of the case

including irritation of the victim’s penis. She was not given any information that the

victim’s penis injury was from a pre-existing condition. She also noted the findings of the

head CT and the increased intracranial pressures. She denied that anyone who damaged

their brain would have increased intracranial pressure. She disagreed that the increased

intracranial pressure was because of the bleeding in the victim’s brain and explained,

I think it was probably a combination. It was a combination of

bleeding in the brain and then subsequently, through delay of care, the child

probably had decreased blood flow to the brain tissue, and that caused injury

to the brain cells and [caused] swelling. This child had diffuse cerebral

edema also noted on their CT scan, so I think the increased pressures in the

brain were multi-factorial.

When asked what could have prevented that, she said seeking medical care early

after the injury. Specifically, she said an “EVD” or external ventricular drain could have

drained off cerebrospinal fluid from inside the brain to reduce pressure. Although the

victim’s mother testified that the victim had an EVD, Dr. Betters clarified that the victim’s

swelling in his brain was so severe that the neurosurgeons were only able to place an

intracranial pressure monitor in the victim. She could not testify with certainty as to what

symptoms the victim would have displayed shortly after the incident. However, with this

level of injury, she expected the victim would have exhibited symptoms immediately

including reduced interaction, sleepiness, and lethargy. She denied disagreement in the

scientific community about whether the presence of multiple fractures proves an inflicted

- 14 -

injury. She explained “you can’t use just fracture pattern to determine those things. We

take the whole patient’s clinical picture into account when we are determining whether

injuries are inflicted.” She also denied this was a subjective analysis. She was unfamiliar

with a study by Lance and Kucher in 2011 concerning fatal intracranial injury caused by a

stairway fall, and she had not been provided with Dr. John Hunsaker’s report. She could

not provide a “potential rate of error in concluding that this was an abusive injury.” She

denied that there was no clear methodology to child abuse determinations and supported

her opinion with her experience and training in the field.

Dr. Betters had not treated patients with falls from their parents’ arms on carpeted

stairs in ICU before. She agreed, “babies that fall out of the highchairs and hit their head

on one single part that have one single fracture, but to have multiple fractures in multiple

parts of your skull, that would require multiple impacts or a much higher level of injury.”

She denied the victim’s fractures in this case were centered in the vertex of his skull. She

said the fractures occurred on both sides of the parietal skull, so the bleeding was around

the vertex, but the fractures were on both sides of the skull. There was also a frontal

fracture on the victim. She denied that the fractures formed a circle around the bleeding.

She explained that the fractures were not consistent with a single impact because they were

too spread out. Although she reviewed the CT scan, she did not measure the distance

between the fractures. She agreed that a child’s skull may be compressed upon impact at

the vertex; however, she denied that it would produce multiple fractures.

On redirect examination, Dr. Betters agreed that her practice and training is

generally accepted in the scientific community throughout the United States. On recross-

examination, she explained that child abuse training is part of all general pediatrics and

pediatric critical care. After the voir dire examination, the trial court overruled defense

counsel’s motion and found Dr. Betters competent to testify as an expert “principally

because of her academic credentials, because of her clinical training and experience.” The

court allowed Dr. Betters to testify that in her opinion, “the injuries presented to the victim

were non-accidental and that the explanation given for the injuries [did] not comport with

injuries that she has seen in her education, training, and clinical experience[.]”

Dr. Betters’s trial testimony was consistent with her testimony during voir dire

regarding her professional background, training, and opinion concerning the victim’s

injuries. In addition, she testified that she was the initial treating physician for the victim

in the pediatric intensive care unit (PICU) at VUMC. The victim was transferred to the

PICU from the emergency room. The emergency room staff did CT scans of his body and

head and laboratory work in preparation for treatment in her unit. She observed notable

bruising and abrasions or scratch marks on the victim’s body. Her initial concerns were

his brain pressures were highly elevated. The CAT scans of the victim’s head revealed

“several skull fractures on different sides of his head. It showed … subdural hemorrhages,

- 15 -

which are bleeding in his brain, some scattered areas, and then head findings that were very

– finding that showed that his brain was swelling.”

Dr. Betters explained that the victim had right and left parietal skull fractures and a

frontal bone fracture. The victim did not have an epidural or subarachnoid bleeding.

However, he did have subdural hemorrhages, which was indicative of “[a] significant

traumatic injury since there [were] multiple.” Although there were multiple small ones all

over, the most pronounced bleeding was toward the top of the victim’s head. The

neurology team placed a pressure monitor on the victim. She said the pressure on the

victim’s brain was so high, it was pushed up against his skull. She said the pressure monitor

showed the victim’s initial pressure was 65, and a normal pressure reading is less than 20.

The victim had herniation in the brain or pressure so high that parts of the brain were being

pushed into the middle and base of his skull. She said the neurosurgeons were unable to

provide further aid to the victim because his whole brain was swollen, and they could not

drain off the fluid from his brain. She “would not have expected” the victim’s injury to

have occurred as a result of a blunt force to the top or one side of the head.

By the time the victim arrived to the PICU, he had “pretty severe brain damage” and

there was nothing surgically to be done. She was shown a series of previously admitted

photographs of the victim at the hospital. She said the injury to the victim’s penis would

not have been caused by circumcision and appeared to have been inflicted upon the victim.

She identified a bruise on the right side of the victim’s skull in another photograph. She

would not expect that type of bruise to occur by a sibling who may have pushed a Hot

Wheels car or truck into the victim’s head. She explained that the amount of force needed

to cause that type of bruise on an infant’s scalp would be higher than that caused by a

child’s toy. She said the victim had bruising “almost like an abrasion” with early scabbing

on the tip of his nose. She said he had bleeding on his nose, lips, and a bruise underneath

his eye.

Dr. Betters was advised that the Defendant was holding the victim going down

carpeted stairs and tripped on a toy, and the victim fell out of his arms. She said the story

was “never consistent” and she would have expected the victim to have a singular point of

impact from that “first big fall, and then rolling on carpeted stairs . . . that is not as high

impact, even if he would have rolled as much . . . the penis injury still didn’t make sense,

how that injury would have occurred with that injury.” Upon being shown a photograph,

she described a bruise of his ear lobe on the left side, which was not consistent with carpet

burn from rolling down the stairs. She also identified a darker bruise above the victim’s

eye, but she acknowledged that it was difficult to “stage bruising.”

She discussed her treatment of infant/toddler patients who had skull fractures.

Asked to consider if the medical history disclosed one initial impact with some type of

- 16 -

surface resulting in one fracture, she said many of those patients do not need ICU level

care. They do not have internal brain bleeding, and after overnight observation, they are

typically permitted to leave the hospital the next day.

Based on the above findings and observations, Dr. Betters’ diagnosis of the victim

was “inflicted trauma.” Based on her training and medical history, her diagnosis of the

victim’s inflicted trauma was child abuse. Asked if the delay in treatment of several hours

after the incident was alleged to have occurred contributed to the victim’s death, Dr. Betters

said,

Yes, because by the time [the victim] got to us, his brain swelling was

so severe that it was already pushing his brain down into places it shouldn’t

be and causing damage. His pupils, the black part of his eyes, weren’t even

reactive to light anymore, and that means that the pressure was so high that

it had injured the nerves of his eyes already, so his swelling was so sever,

and whenever you have brain swelling from bleeding and it gets severe, it

pushes the blood out of your brain, so he wasn’t getting good blood flow to

his brain tissues, and it was causing more damage, so time is really important

with an injury like this.

Asked again, “so every minute, second – I know you can’t say if he would have

been there immediately, but it did contribute, correct?” She stated, “Yes, and the

neurosurgeons, if the liquid-filled parts of his brain would have been open enough, they

could have put a drain in one of those spaces, and then we could have drained off some of

the liquid to help with the brain pressures, but everything was too swollen for us to do

that.” Asked next, so if he would have gotten there earlier, that would have been an option?

Dr. Betters said, “It may have been an option.”

On cross-examination, Dr. Betters stated she was unaware of any grant funding

VUMC received from the Department of Children’s Services (“DCS”) to fund child abuse

studies. She said she consulted with the child abuse team in forming her opinion; however,

because the victim died so quickly, they never observed the victim in person. Regardless,

she said the child abuse team had no bearing on her diagnosis. She agreed that the victim’s

irritated penis was part of her child abuse diagnosis and that she was not told that it was a

pre-existing injury from the night before. She agreed that she did not have a degree in

physics and could not state the amount of force necessary to cause carpet burn on the

victim’s nose and ear. She made those findings based on her clinical experience; however,

she had not conducted any testing to verify her findings. She disagreed that the victim’s

injuries to his nose, under his left eye, and on his ear were on “almost the same plane[.]”

- 17 -

Dr. Betters agreed the mechanism of force she was provided in this case was

carpeted stairs and not a baseboard. She agreed the baseboard was a harder surface than

the carpet. After being asked about compression of the skull, she stated that in her clinical

experience she had not seen a single point of skull compression causing multiple fractures

on different sides of the skull. She agreed that she was not familiar with W. Weber’s 1984

study on infant cadavers and single and bilateral fractures, explaining that it was not within

her nature of research. She agreed however that if a skull is impacted on its vertex, as in

this case, the skull would be pushed down or compressed. She did not agree that

compression would cause multiple fractures bilaterally. She denied that every time she

encountered multiple skull fractures, she labeled it abuse. She agreed that she spoke only

to Mother to obtain the family history, and she did not speak with the Defendant. She

agreed that if a child fell down a set of stairs, the child should be presented for medical

care; however, she denied that a child who had fallen downstairs would exhibit the type of

injuries the victim suffered in the instant case.

On redirect examination, Dr. Betters agreed that vomiting and sleeping for a long

time after a fall were signs that an infant needed to be taken to a hospital. She was not told

after the victim’s fall in this case that the Defendant lied to the mother and told her that he

had taken the infant to the hospital. Even if the victim had struck his head on the baseboard

at the end of the stairs, this would not have changed her opinion and diagnosis of child

abuse and inflicted trauma.

The voir dire of Dr. Deborah Lowen consisted of the following testimony. Dr.

Lowen received her undergraduate degree from Duke University, and her medical degree

from Wake Forest University. She completed a residency in pediatrics in Denver at the

Children’s Hospital, and a two-year fellowship in child abuse pediatrics at Hasbro

Children’s Hospital affiliated with Brown University. Since 1997, she had been working

full-time in the field of child abuse pediatrics at several different centers in New Jersey,

Oklahoma, and Tennessee. At the time of the trial, she worked at DCS as a Deputy

Commissioner of Child Health. Prior to working at DCS, she worked at Vanderbilt

Children’s Hospital for ten years. She testified that she was board-certified in general

pediatrics and child abuse pediatrics through the American Board of Pediatrics. She was

also on the board that certifies child abuse pediatricians, having served two years as the

board chair and then as editor of the board. At the time of the offense, she was an associate

professor of pediatrics and ran the child abuse team at VUMC. Based on this information,

the State offered Dr. Lowen as an expert in the field of pediatric medicine and a board-

certified child abuse pediatrician.

The Defendant objected and argued that the State “should be required to bear the

burden of proof and be a little more specific about what opinions they plan to introduce.”

The court advised defense counsel that it anticipated the expert was going to express certain

- 18 -

opinions and if defense counsel wanted to test those opinions, defense counsel should ask

her what they are going to be. Defense counsel proceeded to ask Dr. Lowen what her

opinions were “in terms of whether this child was abused and/or neglected[.]” In response,

Dr. Lowen stated, “My opinion is that this child, [the victim] . . . was a victim of child

abuse that led to his death.” Asked what her methodology was to determine that the victim

was abused, Dr. Lowen stated,

The same methodology I look at for every child when I don’t have

the opportunity to evaluate them in person, so I do a detailed chart review. I

look at the medical records, look at everything documented, look at what the

injuries were, how they were detected. In this case, there was an autopsy, so

I reviewed the autopsy. I reviewed the autopsy photos. I needed further --

when I first got involved in this case, I needed further information before I

could come with an opinion, a medical opinion --

Dr. Lowen said she needed to know more specific details about the fall down the

stairs and contacted the prosecutor before she could make a conclusion. She was told that

the Defendant had tripped on a toy while walking down the stairs while carrying the baby,

and the baby then fell. She needed to know if the father fell with or directly on the child.

Upon receiving the information, she opined that the child did not suffer his fatal injuries

from falling on the stairs in the manner that was described. This is because there were too

many injuries to too many different parts of his head, and the injuries were too severe from

anything seen in a typical childhood fall, even a baby being dropped on the stairs. She

agreed there were “atypical” falls; however, she denied that even an atypical fall would

have caused the victim’s injuries without falling directly onto the victim’s head. She based

her opinion on medical literature and her experience. Asked for specific literature, she said

there were “stair fall articles” and thousands of articles about how to evaluate a child with

head injuries and injuries indicative of child abuse. Asked, if she was saying since

something is more commonly done with abuse than an accident permits her to so testify,

she replied, “No. You look at the totality of the information, the history of how something

happened, how it was presented, what the injuries are, the details of the specific injuries,

and the outcome, and you put it all together. . . . I’m saying this child in this circumstance,

the totality and severity of his injuries were unbelievably outside anything that would ever

be expected from any stair fall.”

Although she agreed that a child could die from a stair fall, she opined “[B]ecause

of the specifics of his injuries, the multiple skull fractures on multiple different planes of

his head, the amount of bruising of the scalp, the amount of bruising on the face, the torn

frenulum, the severity of his brain injury is all far in excess of a falling down the stairs.”

Asked if she would agree that a plausible mechanism of getting multiple skull fractures for

the skull to suffer a blow on the vertex can produce fractures basically all around the vertex,

- 19 -

she replied, “No. That’s a mischaracterization of the medical literature. You can get

bilateral skull fractures from one blow right on the vertex, but they are often very

symmetric. They are linear on the sides, and it is a very, very different situation than what

this baby had.” Defense counsel continued to question Dr. Lowen about some of her

conclusions in her report, which Dr. Lowen explained to defense counsel that he had

misunderstood. Asked to provide specific literature to support her conclusion, Dr. Lowen

stated “Joffe and Ludwig” and “Geobellow.” She also noted that there were “thousands of

articles and multiple textbooks about injuries related to abuse, and what differentiates

accidental injuries from abusive injuries. She cited the “2018 summary statement by

Chaudhary,” as her most recent article. She agreed she did not have a degree in physics.

Asked her “logic behind why a baby cannot get multiple fractures from landing on a hard

object, from falling from being held by his father” she replied,

You can get -- again, if all the baby had was two skull fractures -- two

linear skull fractures, one on each side of the head, and fell and hit his head

and that’s all that baby had, maybe a small subdural, I would say okay, but

that’s not all that this baby had. This baby had multiple fractures, I think two

different ones on one side, another one on another side, and one in the front,

that doesn’t make any sense physiologically or, you know, just common

sense that that happened from one central impact, nor would one central

impact cause the severity of brain swelling that caused this baby to die.

Asked generally “why,” Dr. Lowen said, “Because it doesn’t happen.” Over the

State’s objection that defense counsel had gone beyond the scope of the hearing, defense

counsel continued to ask Dr. Lowen about the circumstances of the fall. At this point, the

trial court interrupted, agreed with the State, and sustained the objection. The trial court

then confirmed that Dr. Lowen was brought in as a consultant the day after the victim had

died, she reviewed the autopsy at a later point in time, she reviewed the victim’s chart

notes, and that this was a common methodology that was generally accepted in the

scientific community in determining child abuse cases. Dr. Lowen could not provide a

“rate of error” but she knew of no case in which she thought a child had been abused and

“good evidence” later revealed they were not abused. On recross examination, she agreed

“there are a handful of people” who do not accept child abuse opinions and rely instead on

“unique causal theories.” She denied that her methodology and medical conclusion were

subjective. Under the standards set forth in McDaniel v. CSX Transp., Inc., 955 S.W.2d

257 (Tenn. 1997), the trial court found Dr. Lowen qualified as an expert witness to give an

opinion that the victim’s injuries were not accidentally caused or evidence of child abuse.

Dr. Lowen testified consistently with her testimony from the above hearing

concerning her professional education and medical background. Although she was not at

the hospital when the victim passed away, she reviewed his chart the next day. She was

- 20 -

asked by the assistant district attorney to review the victim’s case in more detail a few

weeks later. She said the injury that killed the victim was severe brain swelling, which led

to his death. She said, while there are lots of reasons a baby can present with severe brain

swelling, the victim also had subdural hemorrhage, hematoma, bleeding on the top of the

brain between the brain and the skull. She said he had “multiple, multiple, multiple” skull

fractures. The victim had a linear fracture in the right frontal bone, and a fracture in the

left and right parietal bone and several other fractures. The victim had a tear in his upper

frenulum (the area between lips and upper gum) and multiple bruises about his face and

scalp. An infant is not capable of causing the frenulum injury to himself, and Dr. Lowen

opined the victim’s injury was a classic sign of abuse. It was indicative of someone either

forcing something into the victim’s mouth or someone “popped” the victim in the upper

lip, and it tore.

Dr. Lowen explained that the victim’s bruising was extensive. She said that small

or pre-existing bruising a week or two prior to the offense was a “red flag” because a six-

week-old does not have the strength to cause such bruising on their own. She said the

victim had multiple bruises on multiple different planes about the face and scalp, which

was indicative of “a lot of points of impact.” She acknowledged the bruising on the

victim’s penis was present the day before the victim died; however, she said this type of

bruising was never normal in a six-week-old baby. She said the bruising to the victim’s

penis should have merited concern and cause to call child welfare for an investigation.

In obtaining the victim’s history, she asked investigators if the father fell onto the

baby’s head because she was concerned this may have been a “crush-type” injury. She

was advised that the father did not fall onto the victim’s head. Her opinion and diagnosis

of the cause of the victim’s death was “not from an accidental fall down stairs, that he was

a victim of child abuse, and that led to his death.” She clarified, “I’m not saying he didn’t

fall down stairs. He might have fallen down stairs, but that is not what caused these injuries

and is not what caused his death.” She described a stair fall for the jury as follows:

[O]ne good fall from an arm or something or in a walking child, it

could be a decent fall of several feet, and then a series of very little falls as a

child or baby rolls down or tumbles down the rest of the stairs . . . if you fall

8 inches, 6 or 8 inches . . . there’s not much force generated in that, and so

you almost never get injuries from those little tiny falls, so if you get an

injury, it’s from that first fall.

She was given a sample of the carpet padding taken from the stairs from the

Defendant’s home and opined that an infant who had fallen down carpeted stairs with that

type of padding would not have suffered a skull fracture. Asked to consider the

Defendant’s theory that the victim had struck his head on the molding from the initial fall,

- 21 -

Dr. Lowen said that would not account for the multiplicity of fractures on different surfaces

or the multiplicity of bruises on different surfaces. Her opinion in this case was within a

reasonable degree of medical certainty. Dr. Lowen explained her understanding of this

phrase as meaning, “there is no reasonable alternative explanation, and if you had to give

a percentage, I use like 98, 99 percent certainty, with a caveat that I’m not 100 percent sure

of anything.” Dr. Lowen’s curriculum vitae was admitted into evidence. Dr. Lowen was

asked if anything “jump[ed] out” to her in the report of Dr. John Hunsaker, a defense

witness, and defense counsel objected as beyond the scope of her testimony because Dr.

Lowen was not a forensic pathologist.

On cross-examination, Dr. Lowen agreed that she was part of the child abuse team

at Vanderbilt, but she denied that she personally received any grant funding. She was

aware of a case report documenting cases of children dying from falling or being dropped

down stairs; however, she questioned the veracity of the report. She reiterated that bruising

on the victim’s penis was indicative of someone getting frustrated because the child was

peeing during a diaper change and pinched his penis. She maintained that the victim’s

penis was bruised, not inflamed and characterized it as “external trauma to the penis.” She

was unaware of reports that the victim’s penis was “swollen” from the night before his

death. She agreed that when she initially reviewed the victim’s case an autopsy had not

been conducted. She was unaware that the large bruise above the victim’s right eye had

been reported as a pre-existing injury because it was not included in the medical record.

She agreed this was not a part of her diagnosis/opinion. She was aware that the Defendant

had reported to police that the victim fell toward “the baseboard.” She agreed this

information was not included in her report. She agreed that an infant falling from three or

four feet onto a hard surface and hitting his head can suffer a bilateral fracture. She

explained that a child suffering from a single impact fall on a hard surface may suffer no

more than two linear skull fractures on each side, which should be nearly symmetric, not

complex or branching, and not on the frontal bone.

She was familiar with the 1984 W.Weber study involving children’s bodies being

dropped and measuring skull fractures upon hitting a hard surface from less than three feet;

however, she believed the study was “incredibly flawed and not able to be compared with

real life infants.” She was familiar with another article from the Journal of Injury and

Violence, The Infant with Bilateral Skull Fractures, Diagnostic Considerations in

Consultation with a Child Abuse Pediatrician by Mandy O’Hara. She agreed that it was

“possible” that one fall could produce bilateral skull fractures. However, she said this was

“very different” than the injury suffered by the victim. Asked if the victim’s fractures

“generally surround the vertex of the skull,” she said, “No, they do not.” She explained

they were on the side on the parietal bone. She agreed that she reviewed the victim’s CT

scan. She again denied that two of the victim’s fractures were a result of him striking the

baseboard. She further elaborated:

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[A] fall directly on the vertex could cause a fracture on each side of

the skull. I don’t know how a baby being dropped from being carried can

strike the baseboard on the side right directly on the vertex. That is one

problem. The other problem is the location and appearance of any of the skull

fractures, well, except for maybe one, would not match up with the report --

the case reports in the literature about bilateral skull fractures coming from

one impact on the vertex.

She insisted the fractures in this case were “absolutely not possible” from a stair fall

and striking a baseboard. She agreed that if an infant were dropped down a flight of stairs

it may or may not be necessary to have the infant evaluated.

On redirect examination, Dr. Lowen emphasized that a single drop of a child can

cause a bilateral fracture to the parietal bones. She again explained to the jury how there

could be fractures that are bilateral if the child hit the vertex of their skull. She reiterated

that if an infant struck the vertex, the infant should not get a fracture of the temporal parietal

area. She said the victim had a fracture higher up on the left side which was a complex

fracture with multiple branches which signified a higher degree of force. She said the

victim suffered bruising of the scalp near the fracture, which meant it was not from a

bending from a blow to the crown or vertex that caused the bilateral skull fractures. She

said the bruising of the victim’s penis was not a complication of circumcision because the

victim was circumcised weeks prior to his death.

On recross examination, Dr. Lowen agreed that it was difficult to see the temporal

fractures on the radiology report. She said the autopsy report referenced the “Linear

fractures are noted on the right frontal bone, left parietal bone, right parietal bone, and left

temporal parietal.” She explained that the autopsy report referred to the temporal fractures

as “[n]on-depressed linear left parietal bone fracture extends to the squamosal suture,”

which is where the temporal bone is. She said this may have contributed to the confusion

by the defense.

The following testimony was adduced during voir dire of Dr. Jessica Turnbull. Dr.

Turnbull completed a residency in pediatrics at the Children’s Hospital and Medical Center

of Akron, Ohio, and was the chief resident for a year. She completed a three-year pediatric

critical care fellowship at Seattle Children’s Hospital, a two-year fellowship in pediatric

clinical ethics, and obtained her master’s in ethics from the University of Washington. At

the time of trial, she served as an attending physician in the medical-surgical pediatric

intensive care unit and the clinical ethicist for VUMC. She explained that clinical ethics

involves clinical situations “where there is no one right answer, and that can lead to a lot

of distress about what the morally right thing is to do, so clinical ethics is this Venn diagram

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of medicine and law and philosophy and religion[.]” She is a member of a three-person

team that consults at the children’s hospital and adult hospital at VUMC. She is board

certified in general pediatrics and pediatric critical care in Tennessee. She also teaches

other students about pediatrics and pediatric critical care, and clinical ethics. She has been

exclusively in the area of pediatric critical care at Vanderbilt since 2013. As part of her

training in critical care pediatrics, she was trained in the detection and diagnosis of non-

accidental trauma. She testified that learning to diagnose and care for children who have

been abused or undergone non-accidental trauma is part of a general pediatrics education.

She previously had been qualified in criminal court to testify as an expert in pediatric

critical care four times in the last year and three or four times since 2013.

On cross-examination, Dr. Turnbull stated she planned to testify regarding her

assessment that she “cared for [the victim] due to acute respiratory failure secondary to the

sequelae of traumatic brain injury associated with child abuse.” Asked the science upon

which she was relying to determine the victim’s injury was associated with child abuse,

Dr. Turnbull stated, “The injuries that [the victim] presented are what we call

pathognomonic for child abuse, and so the injuries that [the victim] had have presented in

so many one-month-old babies with histories such as his that we actually teach medical

students to diagnose child abuse by the injuries [the victim] had.” She said her practice

was the generally accepted methodology in how to determine whether or not there has been

accidental trauma to a baby. The trial court found Dr. Turnbull qualified to testify as an

expert in childhood critical care.

Dr. Turnbull testified consistently with her testimony from the above hearing

regarding her education and professional background. Dr. Betters admitted the victim to

the hospital, and Dr. Turnbull took over during the night shift into the next morning of

January 5. She was familiar with the victim’s medical history and relayed such to the jury.

She said the victim continued to be unresponsive to treatment. She said the victim’s brain

was so injured that he was able to have the breathing tube in place and to be on the

mechanical ventilator without any sort of pain medicine or sedating medicine in place. She

said he was in a coma because of the severity of his brain injury. Based on the victim’s

physical exam, his imaging, and reports of the way the victim was injured, Dr. Turnbull

opined that the victim sustained his brain injury due to abuse.

Dr. Turnbull said the victim had abrasions on his nose, a bruise under his left eye,

and bruising behind both ears. She said babies the victim’s age do not get bruises in these

areas because they are physically unable to generate the force necessary to hurt themselves

in those ways. The victim also had bruising to the tip of his penis, but no other injuries

below his neck. The victim’s pupils did not respond to light, which suggested a significant

level of brain injury. The victim was young enough for the “soft spot” to be open, but it

was not soft. The victim’s soft spot was bulging and tense, which was indicative of

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significant pressure inside the skull. She said the victim’s head CT showed herniation,

brain swelling, and bilateral subdural hematomas. The CT further showed the victim had

fractures of his skull on both sides and a fracture in the left-sided frontal bone.

The history Dr. Turnbull was provided to explain the victim’s injuries was that his

father was carrying him up against his chest and tripped on a toy, which then led the

Defendant to fall, and he landed on top of the victim. She did not recall learning that the

Defendant did not actually land on top of the victim and that the victim was dropped and

fell down the stairs. Dr. Turnbull’s curriculum vitae was admitted into evidence while she

was permitted to review the medical records. Upon reviewing the surgery notes, Dr.

Turnbull clarified that the history reflected that the victim fell from the Defendant’s arms

and down a set of stairs. She said this history did not explain the victim’s injuries, nor did

the Defendant’s theory that the victim’s head struck the baseboard on the side of the

staircase. She explained that babies’ bones are softer than adult bones and designed to

bend, not break. Had the victim suffered one bump against a hard surface, his skull would

have bent, not broken, and certainly would not have caused three skull fractures. In other

words, had the victim’s head struck the baseboard, it would explain one skull fracture but

not three separate fractures. She said the bilateral subdural hematomas were also consistent

with abuse and not the explanation provided by the father for the victim’s injuries. She

said the defense theory that the Defendant did not fall atop the victim strengthened her

opinion because the mechanism of injury of a one-month-old baby falling down the stairs

cannot generate enough momentum to hit his head multiple times in multiple places or to

cause the severity of the victim’s injuries.

On cross-examination, Dr. Turnbull agreed that it was possible for a single impact

to cause two fractures, one on each side of the head. She was unfamiliar with studies of

children receiving bilateral skull fractures from falling down the stairs. She could not

remember if she was told the victim’s penis injury occurred prior to the day of the fall. She

also could not remember if she was told that the bruise over the right eye was from a pre-

existing injury. She could not remember the dimensions of the bruising behind the victim’s

ears, but she did not dispute the autopsy report. She did not have an opinion on how the

Defendant would have inflicted the injuries behind the victim’s ear other than dropping

him on the stairs.

On redirect examination, Dr. Turnbull explained that “injuries that only involve the

head that involve multiple fractures and subdural hematomas are pathognomonic for child

abuse.” Pathognomonic, she explained, meant “a constellation of symptoms that is so

reproducibly associated with a diagnosis that we teach medical students, if you see this

constellation of symptoms, it is pathognomonic for this.” On recross examination, she

reiterated that it meant “a group of exam findings and lab imaging finding[s] that are so

consistently associated with one diagnosis, when you see that group of clinical signs and

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labs and images, you automatically think that the diagnosis is going to be this thing unless

proven otherwise[.]” The victim’s brain injuries with the bruises and the skull fractures

and the subdural hematomas were a collection of symptoms “so strongly associated with

abuse, we treat the child as if they have been abused unless something else comes up.” She

denied “leap[ing] to conclusion[s]” and explained they often evaluate for bleeding and

bone disorders. She had cared for babies with osteogenesis imperfecta who sustain

fractures to their bodies upon being born and babies with Vitamin D deficiencies and

denied that the victim’s bones broke in the same way. In her nine years as an attending

physician and twelve years in the intensive care unit, she had never seen injuries suspicious

of child abuse that ended up being any other diagnosis.

The following testimony was adduced during the voir dire of Dr. Erin Carney. Dr.

Carney testified that she received a Bachelor of Science from the University of Tennessee

and a Doctor of Medicine from Vanderbilt University Medical School. She completed

anatomic and clinical pathology residency at the Johns Hopkins Hospital and a forensic

pathology fellowship at the State of Maryland Office of the Chief Medical Examiner. She

had been employed with the regional forensic center as a medical examiner since July of

2013. Her practice and training at the Medical Examiner’s Office are generally accepted

in the scientific community throughout the United States. Her curriculum vitae was

admitted into evidence as an exhibit without objection. On cross-examination, upon being

asked if her opinion was that the victim was abused and that such abuse led to his death,

she replied, “Yes.” She agreed however that all the victim’s injuries were symptomatic of

any sort of hard blunt force trauma. Upon further questioning by the court, Dr. Carney

stated that she conducted the autopsy of the victim. Over defense counsel’s objection of

the court rehabilitating the State’s purported expert witnesses, the court continued to

question Dr. Carney extensively concerning twenty photographs the State anticipated to

offer into evidence at trial to assist the medical examiner in explaining her testimony.

Ultimately, the trial court determined that Dr. Carney could testify as an expert forensic

pathologist in the field of forensic medicine.

Dr. Carney testified consistently with her testimony from voir dire regarding her

education and professional background. She conducted the autopsy of the victim on

January 6, 2020, and prepared a report of her findings and conclusions, which was admitted

as an exhibit. She explained her findings through photographs that were admitted as

exhibits and opined that the victim died as a result of blunt force injuries of the head. She

determined the manner of death to be homicide and the circumstances of his death to be

“beaten by assailant.” In determining the circumstances of his death to be beaten by an

assailant, she spoke with law enforcement and was told the child was dropped down several

carpeted stairs. She asked specifically how high the child was dropped from and whether

anyone fell on top of the child when he was dropped. She was informed that no one fell

on the child and that he was dropped and rolled down carpeted stairs. She said the

- 26 -

explanation for the child’s injuries was not consistent with the severity of his injuries. She

emphasized the fact that the victim had fractures in multiple locations. She opined that an

accidental fall was not a plausible explanation and that someone must have inflicted the

injuries on the child and that it was a homicide because the child died at the hands of

someone else. The victim did not suffer from any old fractures or subdurals and had

injuries to his head and bruising to his penis.

On cross-examination, Dr. Carney said she had conducted 89 autopsies on children

under the age of one. She had rarely seen skull fractures during an autopsy. She rejected

defense counsel’s implication that she lacked experience in autopsying an infant and stated

that “it’s very hard to break a child’s skull so we don’t see it often.” She also explained

that she was on the child death review board for Davidson County and reviewed many

more autopsies than those she conducted alone. She agreed that it could take several hours

before an infant with the victim’s injuries could be noticeably in severe need of medical

attention. She reviewed the photographs of the stairs from the Defendant’s home and the

police reports before coming to her conclusions as to the cause and manner of the victim’s

death. She did not find any healing bone fractures or older fractures during the autopsy.

She denied that skull fractures in newborns were common from vaginal births. She agreed

that she did not conduct any testing to determine the age of the victim’s skull fractures.

She agreed that an accidental fall onto a hard surface tended to cause a single linear fracture

but if the fall were on the top of the head, it may create a comminuted fracture so that the

fractures radiate from one point. Asked specifically if a single blow to the top of the head

could cause fractures on both sides of the head that are disconnected, she replied

I believe that a blow to the top of the head can cause a comminuted

fracture. So fractures that are all connected or maybe fractures that radiate

out from one point. But to have multiple fractures in multiple locations all

related to one blow, no, I don’t believe that that could happen.

Dr. Carney agreed that it was possible for the skull to be compressed and for the

compression action to cause separate fractures. She explained, however, that compression

is between two surfaces, not one hit to the top of the head. She believed in compression

causing fractures to the sides of the head; however, she said this would require a significant

amount of force to cause fracturing of the skull in the victim. She disagreed that one hit to

the victim’s skull would have caused five fractures in five different locations. She did not

test the victim’s body to determine if he had a Vitamin D deficiency or osteogenesis

imperfecta. She explained Vitamin D deficiency had to be significant and it occurs over

time. She said the skull fractures were illustrated in the photographs; however, she did not

create a diagram of them. She was asked to draw on unspecified photographs where the

fractures were located and she complied. She agreed that a skull fracture itself could cause

- 27 -

a bruise inside the scalp; however, she said the victim had bruising in three different areas

of his scalp. She agreed that bruising could come from tumbling down carpeted stairs.

Regarding the victim’s retinal hemorrhages, Dr. Carney agreed that accidents can

cause hemorrhages to the eye but the pattern of retinal hemorrhaging in an abused child is

different than a child with an accidental injury. She cited medical literature in support of

her assertion that abusive retinal hemorrhages are throughout the eye, flame-shaped, and

dot-like. In contrast, accidental retinal hemorrhages are much more limited. She disagreed

that “force is force” and explained that the amount of force is different. She said slapping

a child’s head against a baseboard involved much more acceleration and force versus

dropping a child. She maintained that the amount of retinal bleeding and the diffuse nature

of the retinal bleeding in this case showed there was more than one fall or strike.

Dr. Carney was familiar with a 2011 study by Lantz and Couture involving fatal

injury from a stairway fall. She agreed that the study documented subdural hematomas,

and retinal hemorrhages which caused no skull fractures; and the child died in that case.

Asked if that was not abuse, Dr. Carney said there was a question raised after the study

regarding whether the child had coagulopathy that was undiagnosed. She conceded that

the victim may not have been tested for this and needed to review her records. She denied

the marks on the victim’s arms were “scratches” and stated they were needle puncture

wounds from the IVs. She agreed there were no cuts on the victim. She agreed that the

victim’s nose appeared to have a scrape of the skin, and that the ear injury could have been

from carpet burn. She was aware that the bruising of the victim’s penis was unexplained

and reportedly from a pre-existing injury for which he was supposed to be taken to the

doctor and examined. She said the victim’s penis was “clearly” bruised at autopsy.

Defense Proof. Helena Salisbury testified that her son was the Defendant’s best

friend throughout high school. She had known the Defendant since he was sixteen years

old. She had observed him around his children and testified that he “loved them babies,”

that they were always with him, and that the Defendant always played with them and took

care of them. Asked her opinion of whether the Defendant was a violent person, she

testified that he was a peaceful person. On cross-examination, she agreed that she had

observed the Defendant verbally discipline his children; however, he had never spanked

them. Emily Guntle testified that she grew up with the Defendant and had known him

since she was twelve years old. She previously dated the Defendant and observed his

relationship with his children. She said she babysat for him, and he babysat for her. She

said she knew the Defendant to be a peaceful person.

Kimberly Clark, the Defendant’s mother, testified that she adopted the Defendant

when he was four years old. She had known the Defendant for twenty years and observed

- 28 -

him around his children. She said he was very loving and patient with them. He played

with the children and their toys all the time. She said the Defendant was a peaceful person.

On cross-examination, she agreed that she had a conversation with her son on June

1 about watching children and making sure they stay awake. She told him if they throw

up or if they fall asleep or attempt to, the Defendant needed to take them to the hospital.

Stephanie Trussell, the Defendant’s half-sister, testified that she had known the Defendant

for ten years. During that time, she observed the Defendant with his children and opined

that the Defendant was a peaceful person.

Mother was recalled and testified on behalf of the Defendant. She said she threw

the Defendant’s phone out the window when the Defendant was incarcerated. Asked about

texts being deleted from the Defendant’s phone, she said she let her older three-year-old

son play with it before she threw it out the window. She admitted that she deleted some

“apps and things” from the phone because she did not want her three-year-old to get into

anything. She said the Defendant had never been violent with her. On cross-examination,

she said she could not imagine the Defendant doing this to the victim. In the beginning,

she was very supportive of him. She said the Defendant and his biological mother asked

her to throw the phone out of the window. After speaking with investigators, she retrieved

the phone and turned it over to them. She reaffirmed her testimony that when she got in

the car on the day the victim died, she believed the Defendant when he told her that he had

taken the victim to the doctor. She said that the victim remained covered throughout their

trip to Walmart and their return home. She looked at him before they went inside Walmart;

however, he appeared to be sleeping. On redirect examination, she acknowledged that the

Defendant asked her to delete his Facebook, not any text messages.

Angel Liggins, the Defendant’s biological mother, denied that she told Mother to

throw out the Defendant’s phone. On cross-examination, she agreed that she had told

Investigator Norris that he was not getting any phones. She also denied that she was a

convicted felon. She denied forcing Mother to do anything with the phone. On redirect

examination, she explained that the police retrieved thirteen phones from her.

The Defendant’s older stepson, age six at the time of trial, testified that a promise

was something that you say that you will do, and you are absolutely going to do it for

somebody. He said he understood the difference between the truth and a lie. He said he

did not remember the day the victim was taken to the hospital. A tape was played from a

recorded interview he gave to the Child Advocacy Center the day after the offense to

refresh his recollection. The State stipulated to the authenticity of the video, and it was

admitted into evidence and shown to the jury under the past recollection recorded exception

to the rule against hearsay.

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During the interview, Stepson said that he felt safe with the Defendant and that the

Defendant had not done anything to hurt or scare him. Asked if he had seen the Defendant

hurt anyone else, Stepson said, “Yeah.” Stepson said he would talk and write about it on

the drawing board later in the interview. When asked the same question shortly thereafter,

Stepson replied, “I said no.” Asked if he had seen anyone hurt the victim, Stepson said,

“No. My brother’s good.” Stepson was asked if anyone had talked to him about coming

to the center that day and the following exchange occurred:

Q: [D]id anyone talk to you about coming here today?

A: Yea.

Q: Who talked to you?

A: Um. Let’s go ask my mom first.

Q: Well, we can talk to her in a little bit. Okay? You said someone talked to

you about coming here? What did they say to you?

A: Nothing.

Q: [H]as anyone told you what to say to me today?

A: Yea.

Q: Who told you what to say?

A: I gotta ask my mom first.

Q: Well, hang on just a minute [Stepson]. We will ask her in just a second.

Okay? What did they tell you to say to me?

A: They said to talk to you.

Q: Did they say anything else [Stepson]?

A: Yea.

The interviewer took a break from questioning Stepson for approximately four

minutes. When the interview resumed, the following exchange occurred:

Q: So [Stepson], I’m going to tell you something I heard okay?

A: (nods yes)

Q: I heard that you went to the hospital recently.

A: When I was sick. No, I didn’t. I didn’t fall. My brother and my daddy did.

Q: Your brother and your daddy did?

A: Yea. He can’t open his mouth.

Q: [Stepson], did you see your brother and your daddy fall down the stairs?

A: Yea. I seen him drop him.

Q: Tell me everything you saw.

A: I saw him bounce and like drop and then he flew, and he can’t open his

mouth.

Q: Did your daddy say anything when that happened?

A: No. He said he fell down once so we have to talk about him.

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Q: Tell me what happened after he fell down the stairs.

A: They fell down once. That’s the only word I can tell you.

Q: What was the very next thing that happened?

A: Um. Well, I don’t know. I don’t know the very thing happened.

Q: What did your brother look like after he fell down the stairs?

A: He had a little bit of hair.

Q: [Stepson], tell me one more time because I don’t think I really understood.

Tell me exactly what you saw with your daddy and your brother.

A: Um. I saw them falling down and I don’t know. I don’t know the other

word.

Q: [Stepson], what were your daddy and your brother doing upstairs?

A: They tripped over my tractor while he was going downstairs getting ready.

Q: [Stepson], did you see them trip over your tractor?

A: Yea.

Q: Did you see anything else happen?

A: No.

Q: [Stepson], when your daddy and your brother fell down the stairs, has that

kind of thing happened one time or more than one time?

A: They fell down at once.

Q: [Stepson], did your daddy or your brother say anything about getting hurt

when they fell down the stairs?

A: Well, he flew. He fell down at once.

Q: Who did?

A: [The victim] and daddy.

Q: [Stepson], did you notice anything about [the victim] being hurt, or crying,

or bleeding, or anything like that?

A: He didn’t bleed. His nose was kinda orange.

Q: Did your daddy say anything after that happened?

A: He said he fell down at once.

Q: [Stepson], I want to make sure I understand, okay? You told me that your

brother fell down the stairs and you saw that. Did your daddy fall down the

stairs?

A: Yea.

Q: [Stepson], where were you when your brother fell down the stairs?

A: I was upstairs doing something in my bedroom. I was making something for

my dad. I was making something for [the victim].

Q: Okay. Well, I am going to ask you one more question because again I think I

am just confused. [Stepson], did you actually see your brother and your daddy

fall down the stairs?

A: Yes. I seen them upstairs and I was coming down and I seen them falling

down. He was rolling down a little bit.

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Q: [Stepson], I have one more question. If anyone were to ever do something to

you or hurt you or that you didn’t like, who could you tell?

A: Tell my mom.

Q: Who else could you tell?

A: Nanny, too.

Dr. John Hunsaker testified on behalf of the defense as an expert in forensic

pathology without objection from the State. Dr. Hunsaker was not a medical examiner,

and he had not practiced forensic pathology since 2013. In making his conclusion in this

case, he reviewed the autopsy report, photographs from the home and of the stairs where

the fall was alleged to have occurred, various medical records, and law enforcement

reports. Dr. Hunsaker agreed with Dr. Carney that victim’s death was caused by blunt

force injuries, but he disagreed that the manner of the victim’s death was homicide. Dr.

Hunsaker believed that a pathologist’s role was limited to the cause of the injury, which

was inconsistent with a determination of abuse. He reviewed the Defendant’s statement

and opined that the victim’s injuries were consistent with the Defendant’s version of how

the fall occurred. Dr. Hunsaker disagreed that a single impact is capable of causing more

than one fracture in the skull in situations involving an infant falling from a relatively low

height. He said whether the fractures touched each other depended on various factors

including the amount of force, mass of momentum, and the nature of the surface. Based

on his review of the staircase photographs, he opined that the victim’s head had more than

one strike or impact and that the carpet lessened the impact. Despite the carpet, he further

opined that it was possible that the victim suffered one or more fractures from hitting his

head on the wood or from hitting the remainder of the stairs. He said complex fractures,

as in this case, can occur and studies have shown that children have died from falling down

the stairs. He relied on studies by Patrick Lantz regarding bleeding in the eyeballs and

retinal hemorrhages and a book by Jan Leetsma and Kirk Thibault, discussing the ability

to get multiple fractures from a single impact. He did not agree that retinal hemorrhaging

was a sign of abuse.

Dr. Hunsaker opined that the victim suffered “at least one head impact against some

object that was firm that led to a fracture in that region.” He believed the most likely point

of initial impact was on the left side of the victim’s head around and above the left ear. He

said, “forces were transmitted and . . . some of those other fractures were caused[.]” He

acknowledged there was bleeding in three separate parts of the victim’s brain; however, he

said the bleeding was caused by the single forceful impact, such as falling. He believed

there was more than one impact as the victim tumbled down the stairs. He later clarified

that it was less likely that a single forceful impact could have caused the multiple areas of

bleeding. Asked to explain how the mechanism of a single impact in one place could result

in disconnected fractures in other places in the skull, Dr. Hunsaker said it was best to utilize

a biomechanical engineer; however, he opined the infant skull is pliable and if impacted

- 32 -

on one side, it could result in “compressive forces” causing impact to the other side. Dr.

Hunsaker explained that some head trauma patients experience a “lucid interval” which

meant that after the head injury, the patient may experience a loss of consciousness, regain

consciousness, and later die from the head injury. He said during the lucid interval the

patient neurologically functions “more or less normally.” Dr. Hunsaker said the fractures

were not visible to the naked eye; however, they could be seen during the autopsy. He

said it would have been difficult for a layperson to know that the victim was suffering from

“brain bleeding” and that there was no magic number for when the symptoms would

become noticeable.

Dr. Hunsaker conceded on cross-examination that the vast majority of children who

fall down stairs do not have injury or visit the critical care unit at the hospital. He said he

was testifying to provide an alternate theory to the medical examiner’s report and conceded

that his theory of “contrecoup injuries” may not have occurred in this case. He agreed that

he had omitted from his report the study by Zielinski, which examined over 900,000 reports

of similar falls that resulted in zero deaths. Dr. Hunsaker agreed that his report and

conclusion assumed that the Defendant’s version of what happened to the victim was true

and, if the Defendant had lied, Dr. Hunsaker would reconsider his opinion.

The Defendant testified that at the time of the offense he was the caretaker of his

and Mother’s children, the victim, his three-year old stepbrother, and his two-and-a-half-

year-old sister. He said the night before the victim’s death Mother pointed out the victim’s

injury to his penis. He denied striking the victim or pinching his penis. He did not

characterize the victim’s penis as bruised, and instead described it as swollen and red. He

said he and Mother agreed to take the victim to the doctor the next morning if the victim’s

penis irritation did not improve. The next morning the Defendant took Mother to work and

examined the victim’s penis when he returned home. He believed the ice he had put on it

the night before had caused the swelling to subside. He did not believe he needed to take

the victim to the doctor. He agreed that he had falsely told Mother that he had taken the

victim to the doctor that morning. He explained that he lied to her because she had high

anxiety and he did not want to worry her at work. However, he clarified that he called

Mother from home and told her that he had already taken the victim to the doctor. He did

not tell her in the car when he picked her up from work.

Based on the Defendant’s cellphone records, he agreed that the victim was injured

around 8:30 that morning. He said when they returned from taking Mother to work, he

changed the victim’s diaper upstairs. When he was on his way down the stairs, his three-

year-old stepson had left a toy on the stairs. The Defendant described what happened next

as follows:

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[W]hat I did in mid step on my left foot, I stepped on that toy and it

come out . . . it slid. So my leg slid in mid step and I’m already going

forward a little bit and so my body pivots a little bit to the left – I guess would

be counterclockwise – and then I go down and I tried to catch myself. But, I

mean, everything happened too quickly and I didn’t want to hold on to [the

victim] as crazy as that sounds because I – if I had done that, I felt like the

injury would have increased and that’s what I tried to keep from. I did not

want to fall on him.

The Defendant agreed that the toy previously admitted into evidence by the State

was the same toy upon which he tripped. He demonstrated to the jury how he was holding

the victim in his left arm when he fell down the stairs. He said he tried to catch himself

with his right arm when he fell. Although everything happened quickly, the Defendant

said he observed the victim’s head going toward the baseboard. He said his three-year-old

stepson was standing at the base of the stairs looking up at him. Although his three-year-

old stepson said that he was in his room when this happened, the Defendant said he “might

be slightly confused.” When the victim was at the bottom of the stairs, he threw up. The

Defendant was not alarmed when the victim threw up after the fall because, in his

experience, children would often do so. The Defendant picked him up and examined him

to ensure he was alright. The Defendant observed blood inside the victim’s mouth at the

top of his lip. The Defendant cleaned the blood from the victim with some baby wipes.

The Defendant said the victim’s nose was skinned up, but there was no blood anywhere

else on his body. The Defendant said the victim cried for only a short time, and when the

Defendant fed the victim, it appeared to soothe him. The Defendant then went back to the

toy, picked it up, and placed it in his three-year-old son’s toybox upstairs.

The Defendant, the victim, and his three-year-old brother/stepson sat on the couch

and watched cartoons. During this time, the Defendant conducted internet searches for

symptoms to be aware of when a child falls down stairs, and the Defendant did not let the

victim fall asleep. He did not believe he needed to take the victim to the hospital unless he

observed issues with the victim, and he did not see any “real problems” with him. Shortly

thereafter, around ten o’clock, the Defendant and his children went to pick up Mother from

work. Mother had not been relieved from work at that time, so the Defendant returned to

pick her up at 11:20 that morning. During this time, he had not observed any issues with

the victim. He repeated that he told Mother that he had taken the victim to the doctor earlier

that morning by phone and that he told her about the fall when she got into the car. Mother

looked at the victim, observed his nose was skinned, and said the victim looked fine.

They proceeded to Walmart, and the victim’s eyes were open at that time. He agreed

that they were in Walmart for roughly forty-five minutes. When they returned home,

Mother took the victim out of his car seat and observed “something was really wrong.”

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The Defendant agreed, and they took the victim to the hospital. Once at the hospital, the

Defendant dropped Mother and the victim at the front door, and the Defendant and his

stepson parked the car. The Defendant eventually took his three-year-old stepson to his

parents’ home, and he immediately returned to the hospital. By the time he returned,

Mother and the victim were already in the back of the hospital, and he was not permitted

to join them. The Defendant explained that he was not crying during this time because he

did not show his emotions publicly, he held things inside, and that he had been that way

his entire life.

The Defendant’s initial interaction with the police was at the first hospital. He said

he cooperated with them and consented to a drug and toxicology test. He said they did not

“outright” tell him he was suspected of child abuse until he arrived at VUMC. Other than

telling Investigator Norris where the wipes were in the trash can, he did not dispute

Investigator Norris’ account of what occurred at his home. He returned to the hospital, and

after several hours, he was told the victim was not going to survive. He said he loved his

children, and he denied beating the victim. Had he known something was seriously wrong

with the victim, he would have immediately taken him to the hospital.

On cross-examination, the Defendant maintained that Mother pointed out the

victim’s penis irritation to him and he denied that he pinched the victim’s penis.2 He agreed

that he initially lied about taking the victim to the doctor to examine his penis. He rejected

the insinuation that he did not do so to avoid stressing Mother based on several text

messages cursing her when he picked her up from work. He agreed however that when

Mother did not initially come out the first time that he attempted to pick her up from work,

he became angry because he had the children in the car, and they were getting “antsy.” He

denied that verbal aggression is the same as physical violence, and he maintained that he

had never assaulted anyone, especially his wife and children. The Defendant maintained

that his version of how the victim sustained his injuries was true. He said he did not include

the information about his three-year-old stepson being at the bottom of the steps when he

fell in his statement because he was concerned with the victim and wanted to see him.

Upon being shown one of the pages from a website the Defendant accessed which stated,

“Get immediate medical attention[,]” the Defendant explained the full context which

included only if the child had significant external injuries, was unconscious, or seemed

confused or disoriented. The Defendant denied the victim suffered from any of these

symptoms.

2

The record reflects that the State played various unidentified excerpts of phone recordings

between the Defendant and Mother during his cross-examination. Because the record does not

transcribe these excerpts or reference where they are located, we are unable to consider them in

this appeal. This does not impact our decision in this case.

- 35 -

At the close of the defense proof, the State offered the following rebuttal testimony.

Investigator Norris testified that when the Defendant showed them how he fell down the

stairs, he did not fall down to his knees as he demonstrated in his prior testimony. He said

the Defendant was wearing shorts on the day of the interview, and Investigator Norris did

not observe any injuries to the Defendant’s knees. Investigator Norris was present during

the Child Advocacy Center (“CAC”) interview of the Defendant’s three-year-old stepson,

and he heard him say that “he was upstairs in his room playing with toys while he heard

his aunt fall – or seen his dad fall down the stairs with [the victim].” Investigator Norris

took photographs from the three-year-old’s room to determine if he could have seen the

Defendant fall from that vantage point. Based on these photographs, Investigator Norris

opined that the three-year-old stepson could not have observed the Defendant fall down the

stairs.

On cross-examination, Investigator Norris agreed that the three-year-old stepson

made multiple statements about being in his room and seeing his father and the victim fall.

Asked if his statements were inconsistent, Investigator Norris said yes. He agreed that he

did not make this a part of his investigation.

Rachel Fuller, the forensic examiner for the CAC in Coffee County, testified that

she conducted the three-year-old stepson’s forensic interview. She said she was there to

facilitate a conversation with him, and not to lead him into giving a certain answer. As

part of her introductory questions, Fuller asked, “Has anyone talked to you about coming

to speak with me today?” and “Has anyone told you what to tell me today?” In response,

the three-year-old told her, “Uh-huh[,]” and “Well, we need to speak to Mommy.” On

cross-examination, she could not recall exactly what his responses were to her questions.

Dr. Lowen was recalled and testified that several things “jumped out” to her upon

review of Dr. Hunsaker’s report. She said it was “very unusual for a medical provider” to

use the standard he used in his report. She also said he used “odd” quotes from medical

literature and articles. She said his reliance on the Lantz article was problematic because

a child dying from a stair fall is incredibly unusual, and no one witnessed the fall. She also

said the article did not examine whether the child had an underlying bleeding disorder. She

said the article had no bearing on the instant case. She also disputed Dr. Hunsaker’s

analysis of Leestma’s book and said that Dr. Hunsaker misstated its conclusions. Finally,

regarding the third article by Mandy O’Hara, Dr. Lowen said Dr. Hunsaker’s reliance on

it was misplaced and unrelated to the instant case. Other than the Mandy O’Hara article,

she opined that none of the articles relied upon by Dr. Hunsaker were generally accepted

in the medical scientific community.

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In surrebuttal, Kimberly Clark testified that when the Defendant dropped off the

three-year-old stepson at her home, the three-year-old stepson told her, “Daddy and [the

victim] fell down the stairs like this.” She told him, “I know, Sweetie, it will be okay.”

Based on the above evidence, the jury convicted the Defendant of two counts of

reckless homicide, aggravated child abuse, and aggravated child neglect. Following a

sentencing hearing, the trial court imposed an effective sentence of twenty-three years

imprisonment. It is from these judgments that the Defendant now appeals.

ANALYSIS

I. Ambiguous Verdict. As an issue of first impression in Tennessee, the Defendant

argues that he is entitled to a new trial or dismissal of his convictions because the verdict

within each count of his indictment was self-contradictory and ambiguous. In response,

the State contends the Defendant has waived his ambiguous verdict claim by failing to

request a poll of the jury in the trial court. Waiver notwithstanding, the State insists the

jury’s verdict was not ambiguous. For the reasons that follow, we agree with the Defendant

and conclude that his convictions are ambiguous and self-contradictory. Accordingly, we

are compelled to reverse and vacate the Defendant’s convictions and remand for a new

trial.

In this case, the trial court instructed the jury, consistent with Tennessee law, to first

consider the most serious offense and to proceed to lesser-included offenses only after

reaching a unanimous verdict of acquittal on the greater offense. When the jury announced

its verdict, the following exchange occurred:

THE COURT: Ladies and gentlemen, I understand that you have reached a

verdict. The clerk is going to hand it to me and make sure it’s in proper form.

Very well, Mr. Foreman, if you will go ahead and –jury, please rise—

[D]efendant, please rise. Please read the verdict.

JURY FOREPERSON: Count 1, the jury finds the [D]efendant guilty of

reckless homicide.

THE COURT: Very well, As to Count 2.

JURY FOREPERSON: Count 2, the jury finds the [D]efendant guilty of

reckless homicide.

THE COURT: Very well, Count 3.

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JURY FOREPERSON: Count 3, the jury finds the [D]efendant guilty of

aggravated child abuse.

THE COURT: Very well, As to Count 4.

JURY FOREPERSON: Count 4, the jury finds the [D]efendant guilty of

aggravated child neglect.

THE COURT: Is that your collective verdict?

JURY FOREPERSON: That is our collective verdict.

THE COURT: Thank you.

The jury was then discharged and dismissed. At the December sentencing hearing,

defense counsel advised the court that the presentence report officer had given him a copy

of the verdict forms. Upon his review, defense counsel observed for the first time that for

each count in the indictment, the jury convicted the Defendant of the greater offense and

continued to mark not guilty for each of the lesser included offenses. For clarity, the verdict

forms, as shown below, reflect as follows,

COUNT I

WE TIIE JURY FIND TIIE DEFENDANT, GAVIN CLARK

WE THE JURY FIND THE DEFENDANT, GAVIN CLAIUC

GUILTY GUILTY

)C NOT GUILTY 7 - NOT GUILTY

OF FIRST-DEGREE FELONY MURDER BY THE COMMISSION OF AGGRAVATED OF FIRST DEGREE FELONY MURDER BY AGGRAVATED CHILD NEGLECL

CHILD ABUSE.

LFSSER INCLUDED OFFENSES

LESSER INCLUDED OFFENSES

WE THE JURY FEND THE DEFENDANT

WE THE JURY FIND THE DEFENDANT GUILTY

GUILTY 7 - NOT GUILTY

3C NOT GUILTY

OF SECOND- DEGREE MURDER.

OF SECOND-DEGREE MURDER.

WE THE JURY FIND THE DEFENDANT WF. THE JURY FIND THE DEFENDANT

GUILTY

X GUILTY

NOT GUILTY NOT GUILTY

OF RECKLESS HOMICIDE. OF RECKLESS HOMICIDE.

WE THE JURY FIND THE DEFENDANT WE THE JURY FIND THE DEFENDANT

GUILTY GIUILTY

X NOT GUILTY _X NOT GUILTY

OF CRIMINALLY NEGLIGENT HOMICIDE. OF CRIMINALLY NEGLIGENT HOMICIDE.

- 38 -

COUNT III

COUNT IV

JURY FIND THE DEFENDANT, GAVIN CLARK

'131T

GEUILTY

NOT GUILTY

WE THE JURY PEND THE DEFENDANT, GAVIN CLARK

GUILTY

NOT GUILTY

OF AGGRAVATED CHILD ABUSE. OF AGGRAVATED CHILD NEGLECT

LESSER INCLUDED OFFENSES LESSER INCLUDED OFFENSES

WE THE JURY FIND THE DEFENDANT WE THE JURY FIND THE DEFENDANT

GUILTY GUILTY

K NOT GUILTY 'TV NOT GUILTY

OF KNOWING AGGRAVATED ASSAULT. OF KNOWING AGGRAVATED ASSAULT.

WE THE JURY FIND THE DEFENDANT WE THE JURY FIND THE

GUILTY GUILTY

X NOT GUILTY K . NOT GUILTY

OF RECKLESS AGGRAVATED ASSAULT. OF RECKLESS AGGRAVATED ASSAULT.

WE THE JURY FIND THE DEFF.NDANT WE THE JURY FIND THE DEFENDANT

GUILTY GUILTY

)e. Nur GUILTY .N. NOT GUILTY

OF CHILD ABUSE. OF CHILD NEGLECT.

WE THE JURY FIND THE DEFENDANT

GUILTY WE THE JURY FIND THE DEFENDANT

K NOT GUILTY GUILTY

Jr NOT GUILTY

OF RECKLESS ENDANGERMENT.

OF RECKLESS ENDANGERMENT.

WE THE JURY FIND THE DEFENDANT

GUaTY

OF ASSAULT.

In his motion for new trial, the Defendant argued that “the verdict for each count is

ambiguous and self-contradictory, namely by both convicting and acquitting the

Defendant.” The Defendant relied on United States v. Randolph, 794 F.3d 602 (6th Cir.

2015), holding that “[w]here a verdict, within the same count, both condemns and also

acquits the accused, it is too ambiguous and self-contradictory to justify criminal

punishment.” Although the Defendant requested a new trial as a remedy, he also argued

that any retrial should be actually barred by double jeopardy and the indictment dismissed.

United States v. Pierce, 940 F.3d 817, 823-24 (2nd Cir. 2019); but see State v. Hansen, 237

Ariz. 61, 65-67 345 P.3d 116, 120-22 (Ct. App. 2015). In denying this issue, the trial court

orally stated,

A more rational analysis of the verdict form clearly shows that the jury did

exactly what they were instructed to. They considered the offenses from

highest offense to the lowest offense, and they went down from there. And

in any event, case law supports that jury form inconsistencies do not

necessarily warrant vacation of a conviction. The jury form has to be so

inconsistent that an appellate court or any rational reviewer could not make

any sense out of what the jury was trying to do. In this case, it’s clear what

the jury was trying to do.

The trial court supported its denial of relief by reliance on United States v. Dunn,

284 U.S. 390 (1932) and United States v. Powell, 469 U.S. 57 (1984). It also determined

that Randolph did not apply because it “involved an extremely confusing verdict form

wherein the jury was required to find each of multiple defendants guilty or not guilty of

numerous conspiracy counts.”

- 39 -

Because this is an issue of first impression in Tennessee, the precise standard of

review for determining whether a verdict is ambiguous is unclear. Regardless of the

standard of review to be applied, we assume without deciding that whether a verdict is

internally inconsistent and thus ambiguous is a question of law that appellate courts review

de novo.

It has long been settled that “[a] jury verdict must be in language which is clear and

certain as to its meaning and which cannot be mistaken.” State v. Smith, 836 S.W.2d 137,

143 (Tenn. Crim. App. 1992) (citing Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188

(Tenn. 1963)). Our supreme court has observed,

Since the reception of a verdict is not solely a ministerial as distinct from a

judicial act, when the jury return into court with a verdict, it is not a matter

of course to receive it in the form in which it is rendered. It is the duty of the

Court ... to look after its form and substance, so far as to prevent an

unintelligible, or a doubtful, or an insufficient verdict from passing into the

records of the court.

State v. Henley, 774 S.W.2d 908, 915 (Tenn. 1989) (citation omitted). If the trial court

finds a jury’s verdict to be unclear or doubtful, the court has the power and the duty to send

the jury back to the jury room with directions to amend the verdict and put it in proper

form. Smith, 836 S.W.2d at 143.

When a jury, as the trier of fact, returns an incomplete or inaccurate verdict that does

not conform to the applicable law, the verdict is illegal, a nullity, and, therefore, void. As

a result, a trial court cannot accept the verdict because a judgment cannot be pronounced

upon a void verdict. If the verdict is to be corrected, the trial court must take immediate

action before the jury is discharged. The trial court should advise the jury that the court

cannot accept the verdict, direct the jury to either reread the charge given by the court or

the court can give a supplemental charge, and have the jury retire to consider its verdict.

As the Supreme Court said in Jones v. State, 569 S.W.2d 462, 464 (Tenn. 1978):

The trial judge has both the power and the duty to require that the jury correct

or amend an improper or incomplete verdict.... The trial judge has the right

and duty to mold a judgment in accordance with the final verdict returned by

the jury.... But this does not carry with it the right to substitute for the

rendered verdict a judgment that is substantially different.

Once the jury is discharged, its verdict can not be amended or corrected by the trial court

as to the grade of the offense or the sentence imposed. State v. Jefferson, 938 S.W.2d 1,

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21-22 (Tenn. Crim. App. 1996), abrogated by State v. Moon, 644 S.W.3d 72 (Tenn. 2022)

(internal footnotes omitted).

An inconsistent verdict is not the same as an ambiguous or self-contradictory

verdict. An inconsistent verdict most commonly occurs in a multi-count indictment when

a jury, on a single set of facts and circumstances, convicts a defendant of one offense while

acquitting them of another offense, even though both charges stem from the same criminal

act. In contrast, an ambiguous or self-contradictory verdict arises when the jury’s finding

within the same count of the indictment against the same defendant cannot be reconciled,

rendering the verdict unenforceable. Randolph, 794 F.3d 602, 611 (6th Cir. 2015)

(addressing distinction between inconsistent and ambiguous verdicts). While inconsistent

verdicts are permissible, ambiguous or self-contradictory verdicts are not. Inconsistent

verdicts are permitted as long as there is sufficient evidence for a rational trier of fact to

find a defendant guilty beyond a reasonable doubt. Dunn, 284 U.S. 390, 393 (1932),

overruled on other grounds by Sealfon v United States, 332 U.S. 575 (1948). Appellate

courts in Tennessee have consistently declined to disturb one conviction on the basis that

the jury’s acquittal on another offense is inconsistent, even when the elements and evidence

of the two offenses intertwine or are the same. Nelson v. State, No. W2012-00521-CCA-

R3-CD, 2013 WL 12182612, at *6-7 (Tenn. Crim. App. Aug. 19, 2013) (discussing

inconsistent verdicts and application of Dunn rule). This is because “[c]ourts have always

resisted inquiring into a jury’s thought processes.” Id. (citing Powell, 469 U.S. at 67

(1984)). Courts have also declined to allow defendants to challenge inconsistent verdicts

because the verdict could have been a result of jury nullification, compromise, lenity, or an

error that benefits the defendant.

The same rationale does not apply to an ambiguous or self-contradictory verdict

returned on a single count. An ambiguous or self-contradictory verdict occurs when the

jury’s findings are unclear or internally inconsistent within the same count of the

indictment, making it impossible to determine the jury’s intent or the basis of their decision.

Because we are unable to determine the jury’s intent from an ambiguous or self-

contradictory verdict, the verdict is void and a nullity. See Cook v. United States, 379 F.2d

966, 970 (5th Cir. 1967) (“There is no verdict as long as there is any uncertainty or

contingency to the finality of the jury’s determination.”). In other words, a verdict of guilt

and acquittal together prevent either one from functioning, and it cannot be given full

effect. Randolph, 794 F.3d at 611; Hansen, 237 Ariz. at 68. Unlike inconsistent verdicts,

an ambiguous verdict requires corrective action by the trial court. See e.g., United States

v. Lee, 532 F.2d 911, 913 (3d Cir. 1976) (“[A] verdict must be unqualified and

unambiguous,” and “[a] trial court may not accept a verdict if it is defective but must either

direct the jury to retire for further deliberation or declare a mistrial.”). An example of an

ambiguous verdict occurs if the jury finds a defendant guilty of a greater offense but also

not guilty by reason of insanity. See State v. Huskey, 66 S.W.3d 905, 923 (Tenn. 2001);

- 41 -

Hansen, 237 Ariz. at 63 (noting that logically if one has not committed the lesser offense,

one cannot have committed the greater offense). When a trial court is presented with a

verdict finding a defendant guilty and not guilty of the same offense, or guilty of one crime

and not guilty of its lesser included offense, the best practice for the court is to attempt to

discern the jury’s intention and remove the ambiguity from the verdict, if possible. See

United States v. McCaleb, 552 F.3d 1053, 1058 (9th Cir. 2009) (recognizing “such a

practice ‘comports with common sense as well as efficiency and fairness’” (quoting Larson

v. Neimi, 9 F.3d 1397, 1402 (9th Cir. 1993)). Finally, “[t]he test for validity of the verdict

is whether it ‘was certain, unqualified and unambiguous considering the circumstances of

the receipt of the verdict and poll of the jurors relative to their verdict.’” See United States

v. Morris, 612 F.2d 483, 490 (10th Cir.1979) (quoting Cook, 379 F.2d at 968); State v.

Marin, 490 P.2d 1170, 1172 (Arizona Sup. Ct. 1971) (verdict valid when jury’s intent

“unmistakably expressed”)).

The State argues that the Defendant has waived his ambiguous verdict claim

because he failed to poll the jury. We disagree. Rule 31(e) of the Tennessee Rules of

Criminal Procedure provides that “[a]fter a verdict is returned but before the verdict is

recorded, the court shall--on a party’s request or on the court’s own initiative--poll the

jurors individually. If the poll indicates that there is not unanimous concurrence in the

verdict, the court may discharge the jury or direct the jury to retire for further

deliberations.” In this case, prior to announcing the verdict, the trial court stated, “The

clerk is going to hand it to me and make sure it’s in proper form.” The trial court then

stated, “Very well[.]” Based on this comment, we presume the trial court reviewed the

verdict forms and overlooked the fact that the jury returned verdicts of conviction and

acquittal in the same counts. Because the trial court erroneously concluded that the verdict

forms were proper, the Defendant had no means to know that the jury acquitted the

Defendant of lesser included offenses while convicting him of the greater offenses, and he

had no basis upon which to object. It is the duty of the trial court to ensure that the verdict

forms were proper. Henley, 774 S.W.2d at 915. By failing to recognize that the verdict

forms were not in proper form, the trial court deprived the parties of an opportunity to

request that the jury return to deliberate and clarify their verdict. To hold otherwise would

impose a duty upon trial counsel to review the verdict forms after the trial court has done

so, which is not required by our law. See e.g. State v. Dorsey, 706 S.W.2d 478, 481 (Mo.

Ct. App. 1986) (rejecting waiver argument and noting that the defendant could not have

known of the inconsistency in the verdict forms without taking a most unusual step of going

forward to examine all the verdict forms before the jury was discharged). Moreover, even

if trial counsel had polled the jury, polling would have disclosed the unanimity of the jury

and not the errors in the verdict forms. Accordingly, we will review this issue on the merits.

The State urges this court to employ a “common sense” approach to interpreting the

verdict forms and presume the jury followed the trial court’s acquittal first jury instructions

- 42 -

in finding the Defendant guilty of the greater offense. The State maintains that the

markings by the lesser included offenses on the verdict forms should be considered mere

surplusage. The State also argues the jury’s intent was to convict the Defendant of the

greater offense, and any error in marking the lesser offenses is harmless. See Ray v. State,

27 S.W.3d 384, 386 (Arkansas Sup. Ct. 2000) (rejecting defendant’s claim that verdict

forms which showed guilty of first-degree murder and not guilty of capital and second-

degree murder, a lesser included offense were “inconsistent” because “[t]he intent of the

jury to convict appellant of first-degree murder and not to convict of either capital murder,

or second-degree murder was made clear by the return of all three forms”); State v. Brown,

464 P.3d 938, 944-45 (Kansas Sup. Ct. 2020) (noting that “when [the jury’s] intent is clear,

a mistaken description of the crime of conviction contained in the verdict form may be

discarded as ‘surplusage’ when the verdict form also refers to the correct charge by pointing

back to the charging document or the jury instructions.” (Emphasis added)). However,

neither of these cases are illustrative of the factual situation here.

Based on the trial court’s explicit verbal and written instructions to the jury to

consider the lesser included offenses only if it found the Defendant not guilty of the greater

offenses, we conclude that the jury’s verdict as to each count prevented either one from

functioning. Accordingly, the jury’s verdicts cannot be given full effect. Hansen, 237

Ariz. at 68. Although the State argues the jury’s intent to convict the Defendant of the

greater offenses was evident, we disagree. There is nothing in the record from which this

court may infer the jury’s intent other than the verdict forms. The verdict forms in this

case are so inherently self-contradictory that it is impossible to determine what the jury

found. For example, in Counts 1 and 2, the verdict forms indicate that the jury found the

Defendant guilty of reckless homicide but not guilty of criminally negligent homicide.

According to the jury’s instructions, in order to find the Defendant guilty of reckless

homicide, it had to find both (1) that the Defendant killed the victim, and (2) that he acted

recklessly. See Tenn. Code Ann. § 39-13-215; 39-11-106(34); 39-11-302. By finding the

Defendant not guilty of criminally negligent homicide, however, the jury indicated that it

considered the proof insufficient to establish beyond a reasonable doubt either (1) that the

Defendant’s conduct caused the death of the victim, or (2) that the Defendant acted with

criminal negligence. See Tenn. Code Ann. § 39-13-212; 39-11-106(5); 39-11-302.

Criminal negligence was defined for the jury, and the jury was further instructed that “[t]he

requirement of criminal negligence is also established if it is shown that the defendant acted

intentionally, knowingly or recklessly.” See Tenn. Code Ann. § 39-11-301(2).

The jury’s findings on these two Counts are logically irreconcilable and self-

contradictory. If the jury found that the proof was insufficient to show that the Defendant’s

conduct caused the victim’s death, then the jury could not have found that the Defendant

killed the victim. Alternatively, if the jury found the proof insufficient to show that the

Defendant acted with criminal negligence, then the jury could not have found that the

- 43 -

Defendant acted with the greater mens rea of recklessness, particularly as it was instructed

that criminal negligence is established by recklessness.

Similarly, in Count 3, the verdict form indicates the jury found the Defendant guilty

of aggravated child abuse but not guilty of knowing aggravated assault, reckless aggravated

assault, child abuse, reckless endangerment, or assault. To convict the Defendant of

aggravated child abuse, the jury had to determine (1) that the Defendant knowingly, other

than by accidental means, treated a child under 18 in such a manner as to inflict injury, and

(2) that the act of abuse resulted in serious bodily injury to the child. See Tenn. Code Ann.

§ 39-15-401, -402. “Serious bodily injury” was defined for the jury as “bodily injury” with

additional requirements. See Tenn. Code Ann. § 39-11-106(3), (37). To acquit the

Defendant of assault, however, the jury had to determine that the proof did not establish

beyond a reasonable doubt at least one of two elements: either (1) that the Defendant caused

bodily injury to another, or (2) that the Defendant acted either intentionally, knowingly, or

recklessly. See Tenn. Code Ann. § 39-13-101(a)(1). Having found that the Defendant

acted “knowingly,” in convicting him of aggravated child abuse, the jury could not have

simultaneously rejected that same mens rea in the lesser included offense; neither could the

jury have found that he did not cause bodily injury to another, having previously found that

the Defendant’s treatment of the child caused serious bodily injury.

Without belaboring the point, the verdict forms as to each Count cannot be internally

reconciled. These forms are ambiguous because they simultaneously assert two directly

contradictory things, and it is accordingly impossible to glean what the jury actually found.

These findings cannot be said to conform to applicable law and “are impossible in the sense

that they cannot be given simultaneous effect.” Hansen, 237 Ariz. at 68.

As outlined above, we consider the jury’s return of a not guilty verdict on the lesser

offenses as substantial evidence of conflicting intent and confusion. Moreover, while the

markings indicating not guilty verdicts may have been an unintended mistake, we are

prohibited from speculating about what the jury intended by their verdicts. Id. (citing State

v. Rich, 184 Ariz. 179, 180-81, 907 P.2d 1382, 1383-84 (1995)) (noting jury not polled on

verdict form for lesser-included offense and declining to speculate about “what the jury

would have done” with further instruction and deliberations). Finally, even if we were to

presume, as the State suggests, that the jury followed the trial court’s acquittal first jury

instruction in finding the Defendant guilty of the greater offenses, then we must give equal

consideration to the Defendant in presuming that the markings on the lesser-included

offenses reflect not guilty verdicts. In other words, although the State’s position that the

jury mistakenly marked the lesser-included offenses is certainly plausible, it is not the only

plausible reading of the verdict forms. This is the inherent problem with an ambiguous or

self-contradictory verdict. Accordingly, given the uncertainty about the jury’s intended

- 44 -

meaning, we must reverse and vacate each of the Defendant’s convictions. Hansen, 237

Ariz. at 65-69, 345 P.3d at 120-24.

We must now turn to address the remedy for this issue. The Defendant argues that

the proper remedy upon reversal of an ambiguous and self-contradictory verdict is

dismissal of the indictment. The Defendant relies principally upon the United States

Supreme Court’s recent decision in McElrath v. Georgia, 601 U. S. 87, 95-96, 144 S.Ct.

651, 217 L.Ed.2d 419 (2024). The State argues, at most, the remedy for an ambiguous and

self-contradictory verdict is a remand for a new trial and not dismissal of the indictment on

double jeopardy grounds. The State contends if the verdicts are truly ambiguous, then the

jury did not acquit the Defendant of anything. Because the jury foreperson in this case

made the same clerical mistake as in Hansen, the State urges this court to remand for a

retrial on all originally charged offenses, including felony murder.

The United States Constitution provides that no person shall “be subject for the same

offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Similarly, the

Tennessee Constitution states that “no person shall, for the same offence, be twice put in

jeopardy of life or limb.” Tenn. Const. art. 1, § 10. The federal and state prohibitions

against double jeopardy have been construed as providing the same protections; these

include: (1) protection against a second prosecution for the same offense after acquittal;

(2) protection against a second prosecution for the same offense after conviction; and (3)

protection against multiple punishments for the same offense. State v. Rimmer, 623

S.W.3d 235, 253 (Tenn. 2021) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.

Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490

U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); and State v. Watkins, 362 S.W.3d 530,

541 (Tenn. 2012)).

Often, when a jury considers a multi-count charge and returns a guilty verdict on

one count but does not return a verdict on the remaining counts, the jury’s silence on the

remaining counts serves as an implied acquittal on them. Double jeopardy prevents retrial

on the remaining counts. Rimmer, 623 S.W.3d at 253 (citing State v. Burns, 979 S.W.2d

276, 290-91 (Tenn. 1998)). However, “[w]hen a jury returns a guilty verdict on a greater

offense after it has received [a sequential or acquittal first jury] instruction, it does not get

a full opportunity to consider and return a verdict on the lesser counts. Under those

circumstances, if the conviction on the greater offense is later overturned due to a

procedural technicality, double jeopardy does not bar retrial on the lesser-included

offenses. Rimmer, 623 S.W.3d at 253-54 (internal citations omitted).

The remedy in this case necessarily hinges upon whether the verdict forms

constitute acquittals for double jeopardy purposes. Whether an acquittal has occurred for

purposes of the Double Jeopardy Clause is a question of federal, not state law. McElrath,

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601 U.S. at 96. In McElrath, the United States Supreme Court defined an acquittal as any

“ruling relating to the ultimate question of guilt or innocence,” whether or not the ruling is

expressly labeled an acquittal. Id. This includes a “factual finding that necessarily

establishes the criminal defendant’s lack of criminal culpability.” Evans v. Michigan, 568

U.S. 313, 319 (2013). Such an action or ruling must reflect “a final resolution” finding the

defendant not guilty for it to constitute an acquittal and a bar to re-prosecution. Blueford

v. Arkansas, 566 U.S. 599, 606, 132 S. Ct. 2044, 182 L.Ed.2d 937 (2012). Moreover, an

“acquittal” for double-jeopardy purposes requires a final resolution or adjudication of “the

bottom-line question of ‘criminal culpability.’” Smith v. United States, 599 U.S. 236, 253,

143 S.Ct. 1594, 216 L.Ed.2d 238 (2023) (quoting Evans, 568 U.S. 313 at 324 n.6). Such

finality is necessary to serve the interests the Double Jeopardy Clause protects, as “it has

long been settled under the Fifth Amendment that ... [an] acquittal is final, ending a

defendant’s jeopardy, and ... is a bar to a subsequent prosecution for the same offence.”

Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (quotation

marks omitted). Acquittals are unreviewable even if they are based on the factfinder’s

“mistaken understanding of what evidence would suffice to sustain a conviction” or its

“misconstruction of the statute.” Evans, 568 U.S. at 318.

Although the Defendant relies on McElrath in arguing that double jeopardy

precludes a retrial in this case, in our view, McElrath does not control because the jury in

that case indisputably acquitted the defendant of the murder charge, and the trial judge

entered a judgment of acquittal on that count. See State ex rel. Anderson v. Preyer, No.

SD 38672, 2025 WL 2437529, at *7 (Mo. Ct. App. Aug. 25, 2025) (distinguishing

McElrath in a case where trial judge overlooked the ambiguity in the verdict form and

discharged the jury without correction). In addition, the inconsistency in McElrath resulted

from the jury’s verdicts on different counts that arose from the same facts, not directly

contradictory and ambiguous verdicts on the same counts as we have in this case. The

holding in McElrath extended no further than to recognize that the U.S. Constitution does

not permit appellate review of an acquittal. Id. (citing McElrath, 601 U.S. at 98, 144 S. Ct.

651 (Alito, J., concurring)).

Given the above law, we cannot say that the jury’s ambiguous verdict was valid and

final for the following reasons. First, we conclude that the trial court’s acceptance of the

improper verdict forms was not the functional equivalent of an acquittal. In open court,

the jury announced that the Defendant was guilty of aggravated child abuse, aggravated

child neglect, and two counts of reckless homicide, and it did not pronounce an acquittal

of the Defendant. See United States v. Merlino, 310 F.3d 137, 142 (3d Cir. 2002) (for an

acquittal to bar future litigation, it must be unanimous and a “hung jury” does not bar future

prosecutions). In open court, the trial court accepted the collective verdict of the jury

finding the Defendant guilty of the greater offenses of aggravated child abuse and

aggravated child neglect and two counts of reckless homicide. Although the verdict forms

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marked not guilty for the lesser included offenses, at most, this represents disagreement as

to the verdict and the Defendant cannot establish that the jury unanimously and

indisputably acquitted him of the lesser included offenses. Because the verdict forms

neither convicted nor acquitted the Defendant in this case, the jury’s verdict did not

conclusively establish that the Defendant was criminally liable for the offenses charged.

As such, their verdicts were not final and did not terminate the initial jeopardy or foreclose

future prosecution of the offenses of conviction. We therefore reject the Defendant’s

argument that if he is retried, he will be placed in double jeopardy because the verdict

forms were ambiguous. We conclude that the appropriate remedy in this case is a remand

for a retrial on the offenses of conviction, beginning with reckless homicide in counts 1

and 2, aggravated child abuse in count 3 and aggravated child neglect in count 4.3 The jury

instructions should also include an acquittal first order of consideration listing all lesser

included offenses for these 4 felonies.

II. Thirteenth Juror. In his motion for new trial, the Defendant specifically

asserted that “[a]ny verdict of guilt would be against the weight of the evidence.” Although

the trial court denied the Defendant’s motion for a new trial by order and orally rejected

the Defendant’s claim that the weight of the evidence was insufficient, in doing so, the trial

court invoked the sufficiency-of-the-evidence standard of review under Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Consequently, the Defendant argues that the trial court

failed to fulfill its duty as the thirteenth juror because, rather than independently reweighing

the evidence presented at trial, it applied a sufficiency-of-evidence standard of review in

denying his motion for a new trial. By wrongly deferring to the jury, the Defendant submits

that the trial court failed to fulfill its duty as the thirteenth juror, which justifies a new trial.

3

In a thoughtful separate opinion, the dissent asserts that the State should be able to proceed

with the original charges set forth in the indictments. In adopting that remedy, this court would be

disregarding the jury’s not guilty determinations as to First-Degree Felony Murder by the Commission of

Aggravated Child Abuse and Second-Degree Murder for Count 1 and First-Degree Felony Murder by

Aggravated Child Neglect and Second-Degree Murder for Count 2.

The dissent reasons that there are direct contradictions that support doing precisely that. There

are, however, no inherent legal contradictions in the jury’s verdict regarding the jury’s not guilty findings

as to First-Degree Felony Murder by the Commission of Aggravated Child Abuse and Second-Degree

Murder for Count 1 and First-Degree Felony Murder by Aggravated Child Neglect and Second-Degree

Murder for Count 2. Furthermore, there is no legal contradiction between an acquittal on the greater

offenses and either an acquittal or a conviction on the lesser offenses. For example, with regard to Count

1, an acquittal on the first-degree murder charge is consistent with both a conviction for reckless homicide

and an acquittal for criminally negligent homicide. That a jury simultaneously concluded that the

Defendant was guilty and not guilty of lesser included offenses does not legally contradict the jury’s

determination that the Defendant is not guilty of the greater offenses. Accordingly, we are of the view that

the jury’s consideration should begin, as delineated above, with reckless homicide in counts 1 and 2,

aggravated child abuse in count 3, and aggravated child neglect in count 4.

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In response, the State concedes that the trial court did not expressly approve the

jury’s verdicts as the thirteenth juror at the end of trial. The State nevertheless contends

that the trial court fulfilled its role as the thirteenth juror and that a single citation error to

Jackson does not warrant a new trial. The State points out that the trial court separately

addressed the Defendant’s sufficiency argument in its oral and written findings, which

demonstrates that the court understood its role. Finally, the State argues that the trial

court’s finding at sentencing that the Defendant treated the victim with “exceptional

cruelty” confirms that the court was convinced of the Defendant’s guilt. See e.g., State v.

Williams, No. M2009-01739-CCA-R3-CD, 2010 WL 4674300, at *8 (Tenn. Crim. App.

Nov. 17, 2010) (considering the trial court’s comments in denying the defendant’s

thirteenth juror motion, the courts comments immediately before sentencing, and the courts

comments at the motion for new trial and concluding that the trial court failed to fulfill its

duty as thirteenth juror) (citing State v. Miller, No. W2000-01306-CCA-R3-DC, 2002 WL

1482788, at *8 (Tenn. Crim. App Feb. 14, 2002) (rejecting defendant’s claim that certain

statements by the trial court at sentencing and motion for new trial demonstrate trial court’s

failure to fulfill its duty as the thirteenth juror), no. perm. app. filed and State v. Ayers, No.

E2000-03074-CCA-R3-CD, 2001 WL 1328533, at *3 (Tenn. Crim. App. Oct. 29, 2001)

(where record did not indicate trial court exercised its affirmative duty to act as thirteenth

juror, observing that “the tone and content of the comments of the trial court at sentencing

signal a satisfaction with the verdict”), no perm. app. filed. Because the record

affirmatively shows that the trial court believed the weight of the evidence supported the

jury’s verdict, the State submits there is no reason to grant a new trial. For the reasons that

follow, we agree with the Defendant, and conclude that the Defendant’s convictions must

be reversed, vacated, and remanded for a new trial. See also Tenn. Code Ann. § 40-18-

119 (noting that “immediately upon the original trial judge dismissing a jury following the

return of a unanimous verdict, there is created a presumption that the original trial judge

has served as the thirteenth juror and approved the jury’s verdict with respect to each count

on which a unanimous verdict was returned”).

Rule 33(d) of the Tennessee Rules of Criminal Procedure provides that “[t]he trial

court may grant a new trial following a verdict of guilty if it disagrees with the jury about

the weight of the evidence.” The rule “is the modern equivalent to the ‘thirteenth juror

rule,’ whereby the trial court must weigh the evidence and grant a new trial if the evidence

preponderates against the weight of the verdict.” State v. Blanton, 926 S.W.2d 953, 958

(Tenn. Crim. App. 1996). This rule “imposes upon a trial court judge the mandatory duty

to serve as the thirteenth juror in every criminal case, and that approval by the trial judge

of the jury’s verdict as the thirteenth juror is a necessary prerequisite to imposition of a

valid judgment.” State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995). Rule 33(d) requires

that “[t]he trial judge must be personally satisfied with the verdict.” State v. Dankworth,

919 S.W.2d 52, 56 (Tenn. Crim. App. 1995). “The purpose of the thirteenth juror rule is

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to be a ‘safeguard . . . against a miscarriage of justice by the jury.’” State v. Price, 46

S.W.3d 785, 823 (Tenn. Crim. App. 2000) (quoting State v. Moats, 906 S.W.2d 431, 434

(Tenn. 1995)). The rationale behind the rule is that “[i]mmediately after the trial, the trial

court judge is in the same position as the jury to evaluate the credibility of witnesses and

assess the weight of the evidence, based upon the live trial proceedings.” Moats, 906

S.W.2d at 434.

An appellate court “‘may presume that the trial court approved the verdict as the

thirteenth juror’ when it has overruled a motion for new trial without comment.” State v.

Leath, 461 S.W.3d 73, 115 (Tenn. Crim. App. 2013) (quoting State v. Biggs, 218 S.W.3d

643, 653 (Tenn. Crim. App. 2006)). It is only when “the record contains statements by the

trial judge expressing dissatisfaction or disagreement with the weight of the evidence or

the jury’s verdict, or [evidence] indicating that the trial court absolved itself of its

responsibility to act as the thirteenth juror, [that] an appellate court may reverse the trial

court’s judgment” on the basis that the trial court failed to carry out its duties as the

thirteenth juror. Carter, 896 S.W.2d at 122; see also State v. Matthews, No. M2009-00692-

CCA-R3-CD, 2010 WL 3210499, at *4 (Tenn. Crim. App. Aug. 13, 2010) (remanding the

case for a new trial because the comments of the trial court “indicated that he simply

deferred to the jury result in deciding to overrule the motion for new trial”). Otherwise,

appellate review is limited to sufficiency of the evidence pursuant to Tennessee Rule of

Appellate Procedure 13(e). State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App.

1993). If the reviewing court concludes that the trial court failed to fulfill its duty as the

thirteenth juror, the sole remedy is to grant a new trial. Moats, 906 S.W.2d at 435 (noting

that an appellate court is ill-suited to assess whether the verdict is supported by the weight

and credibility of evidence).4

An inquiry into the weight of the evidence is entirely different [from an assessment

of the sufficiency of the evidence]. State v. Ellis, 453 S.W.3d 889, 899 (Tenn. 2015). In

Ellis, the Tennessee Supreme Court reiterated that Rule 33 is in stark contrast to Tennessee

Rule of Criminal Procedure 29, which requires a trial court to “order the entry of judgment

of acquittal of one or more offenses charged in the indictment, presentment, or information

after the evidence on either side is closed if the evidence is insufficient to sustain a

conviction of such offense or offenses.” Id. at 898 (quoting Tenn. R. Crim. P. 29(b)

4

In civil cases, if a trial court fails to fulfill its role as the thirteenth juror by applying an

incorrect standard or misconceiving its role, appellate courts no longer automatically remand for

a new trial. See Fam. Tr. Servs. LLC v. Green Wise Homes LLC, 693 S.W.3d 284, 290 (Tenn.

2024). Instead, the case is remanded to the trial court to determine whether it can fulfill its role as

the thirteenth juror under the correct standard. In a footnote in its brief, the State preserves its

position that the automatic reversal rule under Moats should be reversed in criminal cases.

- 49 -

(emphasis in original)). The Court explained the distinction between assessing the weight

of the evidence and assessing the sufficiency of the evidence as follows:

The distinction between the weight and the legal sufficiency of the

evidence is one that our law has always recognized. Different considerations

are present in each. In evaluating the legal sufficiency of the evidence, the

judge determines whether all the necessary elements of the offense have been

made out, whether the defendant’s identity has been established and whether

the proof demonstrates the existence of a valid defense. In doing so, the court

is required to view the evidence in the light most favorable to the verdict,

giving the prosecution the benefit of all inferences reasonably to be drawn

from the evidence. . . .

An inquiry into the weight of the evidence is entirely different. The

trial judge does not have to view the evidence in the light most favorable to

the prosecution; he may weigh the evidence himself as if he were a juror and

determine for himself the credibility of the witnesses and the preponderance

of the evidence. As the Eighth Circuit stated in United States v. Lincoln, 630

F.2d 1313 (8th Cir. 1980), even if the trial judge concludes that “despite the

abstract sufficiency of the evidence to sustain the verdict, [that] the evidence

preponderates sufficiently heavily against the verdict that a serious

miscarriage of justice may have occurred, [he] may set aside the verdict,

grant a new trial, and submit the issues for determination by another jury.”

Id. at 1319.

Ellis, 453 S.W.3d at 899. Finally, the advisory commission comments to Rule 33 caution

that “[o]ne should distinguish a new trial granted because the verdict is against the weight

of the evidence from a granted motion for judgment of acquittal under Tenn. R. Crim. P.

29(b) for insufficiency of evidence to convict. In the latter situation, retrying the defendant

would result in double jeopardy, while in the former situation it would not.” See Advisory

Commission Comments to Rule 33(d) (citing Tibbs v. Florida, 457 U.S. 31 (1982)).

At the Defendant’s December 14, 2022 sentencing hearing, the State argued that the

Defendant’s sentence should be enhanced based on enhancement factor (5), that the

defendant treated or allowed the victim to be treated with exceptional cruelty during the

commission of the offense. The trial court agreed and made the following comments in

support of enhancement factor five:

I find that this enhancement factor appli

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