State of Tennessee v. Vernica Shabree Calloway

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 17, 2012 Session

STATE OF TENNESSEE v. VERNICA SHABREE CALLOWAY

Direct Appeal from the Criminal Court for Davidson County

No. 2007-C-2178 Cheryl Blackburn, Judge

No. M2011-00211-CCA-R3-CD - Filed April 4, 2014

The defendant, Vernica Shabree Calloway, was convicted of aggravated child neglect, a

Class A felony, and reckless aggravated assault, a Class D felony. The trial court merged the

assault conviction with the neglect conviction and sentenced the defendant as a violent

offender to twenty-five years in the Department of Correction. On appeal, the defendant

argues that: (1) the evidence is insufficient to support her convictions; (2) the trial court

erred by not requiring the State to make an election of offenses; (3) the trial court erred in not

instructing the jury that it could convict her of either Count 1 or Count 2 of the indictment,

but not both; (4) her convictions violate double jeopardy; (5) the trial court erred in admitting

expert opinion testimony after the State violated the trial court’s order with respect to the

information that could be provided to the expert; (6) the trial court erred in admitting as an

exhibit a “learned treatise”; (7) the trial court erred in admitting unfairly prejudicial and

irrelevant evidence; (8) the trial court erred by denying her motion to redact portions of her

interviews with the police and the Department of Children’s Services (“DCS”); (9) the trial

court erred in admitting testimony from the victim’s foster mother; and (10) the trial court

imposed an excessive sentence. Following our review, we remand for entry of a single

judgment setting the defendant’s release eligibility at 30%. We conclude that all of the

defendant’s other issues are without merit and affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

and Remanded for Entry of Corrected Judgment

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and

R OGER A. P AGE, JJ., joined.

C. Dawn Deaner, District Public Defender (on appeal and at trial); and James P. McNamara,

Assistant Public Defender (at trial), for the appellant, Vernica Shabree Calloway.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren and Katrin

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

OPINION

FACTS

This cases arises out of the defendant’s having given birth at home on a toilet on

October 31, 2006. The defendant took her newborn daughter to a hospital several hours later,

and the child survived but suffered permanent brain damage as a result of “hypoxia,” or a

lack of sufficient oxygen, which occurred sometime around birth. In August 2007, the

defendant was indicted for the aggravated child neglect, aggravated child abuse, and

attempted first degree murder of the victim. The attempted murder charge was dismissed

prior to trial, however.

In order to understand the issues raised in this appeal, we must provide some

background information about the defendant and her criminal history. Before the trial in this

case, the defendant was charged in the deaths of three other children, Stephen Ward, Alexis

Humphreys, and Stephanie Ward, who had each, at separate times, died while under her care.

Stephen and Stephanie Ward were the defendant’s son and daughter, and Alexis Humphreys

was the daughter of the defendant’s friend.

The defendant was first tried and convicted of the second degree murder of her

daughter, Stephanie Ward. State v. Ward, 138 S.W.3d 245, 250 (Tenn. Crim. App. 2003).

Because Stephanie was the third child in the defendant’s care to die of unexplained causes,

the State’s expert medical witnesses in that case relied on the “‘rule of three,’ i.e. the first

unexplained child death in the presence of a sole caregiver can be classified as SIDS [Sudden

Infant Death Syndrome], with the second such death classified as undetermined, and the third

and subsequent deaths result in all of the deaths being classified as homicides by

asphyxiation,” in concluding that Stephanie’s death was a homicide by asphyxiation. Id. at

270-71. This court reversed the conviction and remanded for a new trial due to the medical

experts’ reliance on the “rule of three” in reaching their determinations, even though the

experts did not refer to it as such, concluding that neither the “rule of three” nor the concept

behind the rule was a proper foundation under the standards set forth in McDaniel v. CSX

Transp. Inc., 955 S.W.2d 257, 265 (Tenn. 1997), for expert opinion testimony. Ward, 138

S.W.3d at 271.

The defendant was subsequently retried in that case. The jury acquitted her of the

second degree murder charge but could not reach a unanimous verdict on a lesser-included

offense. Although the charges against the defendant remained pending in that case, as well

as in the cases involving the deaths of Stephen Ward and Alexis Humphreys, the State

elected to try the defendant next on the charges in the case at bar.

2

In the case at bar, both the defendant and the State filed numerous pretrial motions,

including a motion by the State “to use evidence of defendant’s prior conduct in support of

expert witness testimony pursuant to Tenn. Rules Evid. 702-705.” Specifically, the State

sought to be allowed to provide information to medical experts “detailing evidence of the

defendant’s past conduct of smothering three children to death and evidence of the

defendant’s claims that Stephanie and Stephen Ward had episodes in which they stopped

breathing before their death[s].” The State also sought permission to provide their medical

experts with evidence that the defendant had given birth to two other children who had been

removed from her care and who had not suffered any episodes of breathing difficulties. The

State asserted that such information was “foundational evidence to enable” their experts “to

form reliable opinions as to the specific cause of [the victim’s] asphyxial trauma” and to

“formulate reliable opinions on whether the cause for [the victim’s] injuries are the result of

non-accidental trauma or resulted from some alternative cause.”

The State also filed a motion to use evidence of the defendant’s prior conduct pursuant

to Tennessee Rule of Evidence 404(b). Specifically, the State sought permission to introduce

at trial evidence “of the defendant’s past conduct of causing the deaths of three other children

through asphyxial trauma” and “that Stephen and Stephanie Ward sustained prior episodes

of breathing difficulties while in the defendant’s care prior to their deaths.” The State argued

that such information was “relevant to establish that [the victim] suffered asphyxial trauma

through non-accidental means and that the defendant knowingly or intentionally caused such

injuries.” The State additionally argued that “[t]he facts surrounding the pregnancy and birth

of [the victim] additionally demonstrate the defendant’s repeated efforts to conceal her

pregnancy from those who might intervene to protect the welfare of her child, and provide

compelling circumstantial evidence of the defendant’s ongoing ‘common scheme or plan’

to cause injury to children through means of asphyxial trauma and then to cover up her

misdeeds through a web of deceit.”

The State, therefore, requested that, in addition to evidence of the defendant’s

involvement in the deaths of the three other children, it be allowed to introduce at trial a

number of other pieces of evidence, including evidence that DCS had previously removed

two other children from the defendant’s care during the pendency of the criminal proceedings

against her based on the deaths of the three children; evidence that the defendant had violated

various conditions of her bond; evidence that the defendant concealed her pregnancy during

a September 5, 2006 court appearance; evidence of the defendant’s efforts to conceal her

pregnancy from her co-workers, employers, and various medical professionals; evidence that

the defendant repeatedly provided false information about her pregnancy history; and

evidence that the defendant refused to provide the names of her previous children to DCS

employee Cheryl Gooch. The State argued that such evidence “provide[d] a conceptual

framework for understanding the defendant’s conduct in regards to the pregnancy and birth

of [the victim]” and was “relevant to establish the motives behind the defendant’s efforts to

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conceal her pregnancy with [the victim], her motivations in failing to pursue appropriate

prenatal care, her refusal to give birth at a hospital and her actions in concealing the delivery

of [the victim] before she went to [the hospital].” The State further argued that the “other

acts” evidence, which included the defendant’s “entire course of conduct,” was “necessary

to sustain the willingness of jurors to draw the inferences necessary to reach an honest

verdict, and that the exclusion of parts of this evidence would create an incomplete picture

of the offenses, the relationship of the parties, and a conceptual and chronological void that

would like[ly] lead to an incorrect assessment of the evidence involving the indicted acts.”

Thereafter, the trial court held a series of pretrial hearings at which it considered the

parties’ various motions, including the ones detailed above. The trial court issued several

rulings throughout the pretrial period, some of which we will review after summarizing the

relevant testimony from the pretrial hearings.

January 9, 2008 Pretrial Hearing

Lindy Miller, a physical therapist at Concentra Medical Center, testified that she

began treating the defendant on October 27, 2006, for a hand injury and saw her again on

October 31, 2006, and November 7, 2006. She also saw the defendant for another

appointment between the October 31 and November 7 visits but could not recall the exact

date. Miller obtained a medical history from the defendant during her first visit, but the

defendant provided no information indicating that she was pregnant. During the October 31

visit, the defendant said she was having a lot of pain and trouble doing her exercises, so the

treating orthopedic physician, Dr. Steve Salyers, prescribed medication for her. At the

November 7 visit, the defendant informed Miller that she had had a baby but had been

unaware that she was pregnant. Miller said she never suspected that the defendant was

pregnant.

Lorraine Pipkins testified that she and the defendant had been co-workers and that the

defendant lived with her at her apartment in Nashville for about a month before the instant

offense. The defendant left Pipkins’ apartment the night of October 31, 2006, and did not

return until about a week later to collect some clothes. At that time, the defendant told

Pipkins that she was going to the hospital, but Pipkins did not know that the defendant’s

child was in the hospital.

Detective Sarah Bruner of the Metro Police Department Youth Services Division

testified that she was contacted by Virginia Thomas of the DCS to assist with interviewing

the defendant regarding the circumstances of the victim’s birth. Thomas informed Detective

Bruner that the defendant had been charged with the deaths of three other children. Detective

Bruner interviewed the defendant at Baptist Hospital on November 16, 2006. Bruner made

a CD copy of the interview, which was admitted into evidence. During the interview, the

4

defendant was not physically restrained, did not appear to be under the influence of alcohol

or controlled substances, and denied using drugs prior to giving birth to the victim.

Explaining the victim’s birth, the defendant said she had squatted over the toilet, there was

a pop and a gush of water, and she then gave two pushes delivering the victim whom she

pulled up to her chest. According to the defendant, she then passed out. The defendant also

said the victim cried vigorously, both before the defendant passed out and later as she was

taking the victim to the hospital.

The defendant brought up the names of three deceased children, Stephen Ward,

Stephanie Ward, and Alexis Humphreys, in the interview and made statements about them.

She talked at length about how it bothered her that people thought she was guilty of killing

those children. Detective Bruner said that the defendant was not in custody at the time of the

interview, which lasted three hours and twelve minutes. She acknowledged that she did not

ask the defendant if she wished to have an attorney present for the interview or if she was

presently represented by counsel for matters pertaining to those children. Detective Bruner

learned that the defendant had also used the last names of Ward and Jackson in the past and

had a criminal record under the name of Ward.

April 21, 2008 Pretrial Hearing

Dr. Robert Reece, a pediatrician and the director of the child protection programs at

Tufts Medical Center in Boston, Massachusetts, testified his area of specialization was child

abuse pediatrics and he had authored a chapter about the distinction between fatal child abuse

and SIDS in the textbook, Child Abuse Medical Diagnosis and Management. He said he was

the executive editor of The Quarterly Update, a review journal that “reviews articles that

have to do with child abuse or things that could be confused with child abuse as well as

dealing with professional issues in the field of child abuse and neglect.” Dr. Reece

frequently taught at conferences on subjects dealing with child abuse, including

differentiating between children who suffer injuries from a suffocation method versus an

accidental method. He had been qualified as an expert in the field of pediatrics and child

maltreatment in ten or twelve other jurisdictions and was accepted by the trial court as an

expert in that field.

Dr. Reece testified that hypoxia “means too little oxygen for the tissue that’s being

supplied with oxygen. So you get injury as a result of too little oxygen.” He said that a

hypoxic injury to the brain of a newborn can occur as the result of an accident, during the

birthing process, or from intentional causes. He stated he reviewed the same sources of

information when evaluating hypoxic injuries in children whether the child lived or died. He

explained, “It’s a matter of degree of the hypoxia as to whether or not the child goes on to

death or whether it stops short of death.” He said that external evidence is not always present

when a child suffers a hypoxic injury and explained that “many times a baby can be

5

smothered without any external evidence of that smothering.” Dr. Reece noted that when

there is no physical evidence to establish how a hypoxic injury occurred, it is “critical” to

have “as much information about the medical history of the baby, the social history, the

family history, the genetic history, the history of the pregnancy, the labor and delivery,

[Child Protective Services] involvement, [and] law enforcement involvement.”

Dr. Reece acknowledged that he had not received or evaluated any of the victim’s

medical records, social services history, or police reports but knew that the victim had been

brought to the emergency room with a hypoxic and ischemic injury resulting in the death of

brain tissue as revealed by an MRI. He said that the victim’s brain wave test was abnormal,

indicating a cerebral injury. Dr. Reece said that, in order for him to determine the cause of

the victim’s hypoxic injury, he would need to know the circumstances surrounding the

victim’s birth, including information about the mother’s health during pregnancy, how many

prior pregnancies she had experienced, the length of labor, previous labors the mother may

have had, whether the victim cried at the time of delivery, and whether the victim’s birth had

produced apnea or hypoxia. He noted that it would also be important to know the mother’s

pattern of behavior toward other children, whether the victim was a wanted baby and whether

“this was something that would give some kind of motive to dispose of the baby.” He said

that inconsistent histories were “always worrisome . . . when we’re trying to establish

between a legitimate medical condition and something that has been produced by abuse.”

Medical histories for other children born to the victim’s mother would also be important in

formulating an opinion as to the cause of the victim’s injury because there were “so many

question marks around the birth of [the victim]. The previous history of other children

having suffered other kinds of problems would make one lean further in the direction of

saying that this is an unsafe home.” Dr. Reece explained that the term “apparent life

threatening events” are events that “would make one believe that a serious and possibly fatal

outcome could be expected if intervention is not attempted.” He said it was important to

know if there was a history of similar events involving the victim’s siblings and other

children in the care of the defendant.

On cross-examination, Dr. Reece agreed that there was limited time for a treating

physician to obtain historical information when a child is brought in to the emergency room

with the symptoms the victim had. Asked what effect he thought the defendant’s taking

Hydrocodone on the day of the victim’s birth had on the victim’s condition, Dr. Reece

replied, “I don’t think much . . . unless it was an ongoing use of that drug. . . . I don’t think

that has anything to do with the [victim’s] presentation.” He acknowledged that there was

no medical test to determine exactly when the victim’s hypoxic injury occurred but said that

the fact that the victim cried immediately at birth indicated “there was probably no prenatal

hypoxia going on.” However, he agreed that the only information he had to rely upon was

what the defendant provided and that if the information was inaccurate, it called into question

whether he could eliminate prebirth hypoxia or during-birth hypoxia as the cause of the

6

victim’s injury. He said that if the mother had a negative social history, including drug abuse

or a previous history of having abused or killed a child, “then child abuse will rise up pretty

high on the list” as the cause of the injury.

Dr. Reece agreed that if a woman became pregnant, did not seek an abortion in a

timely fashion, did not want the child, did not tell anyone that she was pregnant, and no one

realized that she was pregnant, it would not be difficult for her to physically asphyxiate the

child and cause the child’s death. Because the defendant related that the victim cried

immediately after birth, as well as on the way to the hospital, Dr. Reece opined that the

victim did not have any signs of a hypoxic injury during birth but agreed that his conclusion

rested upon the reliability and accuracy of the defendant’s account of the birth.

In response to questioning from the trial court, Dr. Reece said that in determining the

cause of the victim’s hypoxic injury, it was important to know if any of the victim’s siblings

suffered from a metabolic disease or genetic condition that could lead to apnea. He also said

that it would be important to know the circumstances of the victim’s birth. He opined, “In

this case to be perfectly honest I can’t think of much else that would cause this baby to have

suffered this hypoxic injury than having been asphyxiated. There’s just nothing else here

that I’ve been provided that would tell me what this is due to.”

On redirect examination, Dr. Reece agreed that it was very difficult to differentiate

between deaths caused by SIDS and suffocation.

June 4, 2010 Pretrial Hearing

Cheryl Gooch, a former DCS employee, testified that she was assigned to investigate

the victim’s case and that she interviewed the defendant prior to the defendant’s November

16, 2006 interview with Detective Bruner. During Gooch’s interview, the defendant refused

to provide the names of her other children despite Gooch’s asking her several times. Gooch

then advised her supervisor, Virginia Thomas, about the defendant’s refusal to provide the

names of her other children.

On August 4, 2008, the trial court entered a lengthy, detailed order in which it denied

the State’s motion to introduce evidence relating to the defendant’s prosecution for the deaths

of the three children, the removal of two children from the defendant’s custody by DCS, and

the defendant’s bond violations. The trial court granted the State’s motion to introduce

evidence that the defendant concealed her pregnancy and repeatedly provided false

information to medical personnel about her pregnancy, finding that such information was

relevant to the defendant’s motive and intent and that its probative value outweighed any

prejudicial effect.

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With respect to the State’s request to provide information to its medical experts, the

trial court ruled that the State could give “limited information” to their expert witnesses

regarding the victim’s siblings’ deaths, i.e. that the cause of death should be disclosed but

that the manner of death should be listed only as “undetermined.”1 The court specifically

ruled that the experts should not be informed that the deaths of any of the defendant’s other

children might have resulted from homicide, finding that it would be “too prejudicial” and

could potentially “slant” the opinion of the experts. Further, the trial court ruled that the

State could provide their experts with information about the defendant’s pregnancy with the

victim, the number of prior pregnancies the defendant had experienced, her previous labors,

the length of her labor, her health during pregnancy, the victim’s medical records, medical

histories of the defendant’s other children including cause of death without indicating manner

of death as anything other than undetermined, and any statements the defendant made to law

enforcement or medical personnel regarding her pregnancy with the victim and the birth of

the victim or the births of her other children.

June 7-10, 2010 Trial

Lorraine Pipkins testified that she met the defendant while they were both employed

at the Wendy’s restaurant on Murfreesboro Road. After the two became “close,” the

defendant told Pipkins that she was pregnant, but, on February 10, 2006, the defendant

informed Pipkins that her mother “told her that she had . . . lost the baby, she wasn’t no

longer pregnant.” During the late summer of 2006, Pipkins and the defendant had started

working together at a Mrs. Grissom’s restaurant. While Pipkins and the defendant were at

work one day, Pipkins overheard “a little old lady” ask the defendant if she was pregnant.

The defendant responded, “[Y]ou got to be doing something to get pregnant,” which Pipkins

understood to mean that the defendant was not pregnant.

Pipkins said that the defendant came to live with her about a month before the

victim’s birth. During that time, the defendant wore baggy clothing and did not appear to be

pregnant. The defendant had a white, four-door car at the time. The defendant suffered an

on-the-job injury to one of her fingers while employed at Mrs. Grissom’s, and her doctor

excused her from work until her finger healed. The defendant had a doctor’s appointment

on October 31, 2006, and arrived home between 4:00 and 4:30 p.m. as Pipkins was sitting

on the front porch awaiting trick-or-treaters. The defendant told Pipkins that she was “sick”

and “hurting” and went inside the apartment and sat down in the living room. The defendant

“kept moaning and groaning like . . . she was hurting real bad,” but she refused to go to the

hospital. Pipkins later noticed that the defendant had left the living room and gone into the

bathroom where she remained for about forty-five minutes. While the defendant was in the

1

The trial court did not allow the experts to be provided with information about the medical history

or death of Alexis Humphreys because she was unrelated to the victim.

8

bathroom, Pipkins’ daughter and grandchildren came to Pipkins’ apartment so that one of the

children could use the bathroom. The defendant, dressed in a towel, came out of the

bathroom and asked Pipkins’ daughter for “a pad.” The defendant then went into her

bedroom and put on some clothes before leaving the apartment between 7:30 and 8:00 p.m.

The defendant took her purse with her when she left, and Pipkins’ neighbor, Danny Gooch,

told Pipkins that the defendant had taken some towels with her. Pipkins said she did not see

or hear a baby that night. The next day, Pipkins noticed some blood on the toilet, the edge

of the sink, and bathtub, which she cleaned. Pipkins said she talked to the defendant about

a week later, and the defendant told her that she had a “busted” ovarian cyst but did not tell

her she had given birth to a baby.

Latoya Pipkins,2 Lorraine Pipkins’ daughter, testified that she took her children trick-

or-treating at her mother’s apartment on October 31, 2006, between 4:00 and 5:00 p.m. She

did not see the defendant at that time. Latoya and her children returned to her mother’s

apartment between 8:30 and 9:00 p.m. and went inside. Latoya saw the defendant, who was

“still dressed,” go into the bathroom. Latoya’s daughter had to use the bathroom, but the

defendant would not come out. The defendant stayed in the bathroom for “at least forty-five

minutes or longer” and then stuck her head out the door and asked Latoya for a sanitary

napkin. Latoya could not see inside the bathroom when the defendant opened the door. She

did not hear or see a baby that night and left before the defendant came out of the bathroom.

Danny Gooch testified that he met the defendant while she was working at the

Wendy’s restaurant. He said that he and the defendant had sexual relations and that the

defendant wore clothing when they had sex and did not appear to be pregnant. He and the

defendant went to a Dollar General Store on October 30, 2006, and the defendant purchased

a pregnancy test, the results of which were positive. At the time, Gooch believed the child

was his. The next day, October 31, Gooch took the defendant to her physical therapy

appointment for her injured finger and then to Walgreens to pick up a prescription. They

then went to Lorraine Pipkins’ apartment, and the defendant said that her stomach was

cramping. Gooch went outside and sat on the front porch with Ms. Pipkins. When Gooch

went back inside, the defendant was “just laying there crying” as if in pain. He offered to

take her to the hospital, and the defendant said, “[M]aybe later on.” The defendant left

Pipkins’ apartment sometime after 9:00 p.m., carrying her purse and a laundry basket full of

clothes and towels, and told Gooch that she was going to her mother’s house to wash the

clothes. Gooch watched the defendant as she placed the laundry basket in the front

passenger’s seat of her car and then drove off. He did not see or hear a baby that night.

Gooch said that the defendant called him at about 4:00 the next morning and told him

2

Because these witnesses share the same last name, we will refer to Latoya Pipkins by her first name.

We intend no disrespect in doing so.

9

she was at Baptist Hospital and asked him to come there. When he arrived at the hospital,

the defendant told him she had delivered a baby. Although he did not believe that the victim

was his child, he signed her birth certificate because he and the defendant were “close” and

he “felt like that was [his] duty.” He said he did not know the identity of the victim’s father.

The defendant later asked him to move her car, and he noticed some bloody towels on the

driver’s seat. He found the defendant’s laundry basket, still containing clothes, in the trunk

of the car. The defendant asked him to take the clothes she wore to the hospital home and

wash them, but he did not do so because the bag containing the clothes was “full of blood.”

He said he threw away the defendant’s clothes and the bloody towels he found in her car.

When he asked the defendant where she had delivered the baby, the defendant said, “[W]e’ll

talk about it,” but they never discussed it again.

Andre Phillips testified that he met the defendant in 2006 at the Buena Vista

Apartments where the defendant’s sister, Monica Ward, lived. He and the defendant dated

for about a month during the early part of 2006 and had sexual relations. At the time he

dated the defendant, she was living with her mother in Antioch. About two or three days

after the victim’s birth, he learned that the defendant had delivered a baby. He went to the

hospital to see the victim because he believed she was his child. When he later talked to the

defendant, she acknowledged that the victim was his child. He said he did not know that the

defendant was pregnant until after the victim’s birth.

Monica Ward, the defendant’s sister, testified that the defendant was thirty-two years

old and had six children, including Stephen, who was born on December 2, 1998; Paul, who

was born in April 2000; and Jaylin, who was born in August 2001 outside of a hospital

setting. She did not know the defendant was pregnant with the victim and when she talked

to the defendant on October 31, 2006, the defendant did not say anything about being in

labor. The defendant called Ward from the hospital in the early morning hours of November

1, 2006, and told her she had given birth on October 31 but did not say where the victim was

born. The defendant told Ward that Andre Phillips was the victim’s father and asked her to

contact him. While Ward was at the hospital, she learned that Danny Gooch had volunteered

to sign the victim’s birth certificate listing himself as the father.

Officer Johnny Lawrence with the Metropolitan Nashville Police Department testified

that he assisted Detective Sarah Bruner in collecting evidence at Pipkins’ residence on

November 22, 2006, and identified photographs he took of the residence. He also collected

three samples from stains on the wall and door of the bathroom that could have been blood.

The samples were submitted to the Tennessee Bureau of Investigation for analysis but tested

negative for blood. He said that household bleach could “clean [blood] up where you can’t

find anything.”

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Dr. Steve Salyers, an orthopedic physician, testified that he treated the defendant for

her workers’ compensation injury. He first saw her on October 24, 2006, during which time

the defendant did not advise him of her pregnancy. He again saw the defendant on

November 7, 2006, and learned from Ms. Miller that the defendant had given birth. He

prescribed Hydrocodone for the defendant based on her complaint of pain during the October

24 visit and acknowledged that the prescription could have been filled on a different date.

On cross-examination, Dr. Salyers said that, in preparation for his trial testimony, he had

consulted an obstetrician and learned that Hydrocodone was considered a safe drug for the

third trimester of pregnancy.

Cassandra Hester testified that in 2006 she was the care coordinator for the Neonatal

Intensive Care Unit (“NICU”) at Baptist Hospital in Nashville. She said that she had

“basically cared” for the victim and met with the defendant to discuss the circumstances

surrounding the victim’s birth. The defendant told Hester that she had given birth to the

victim at home in the toilet and did not provide any information about the victim’s condition

at the time of birth.

Dr. Mary Jane Haynes, a neonatologist in the NICU at Baptist Hospital, testified that

she examined the victim between 3:15 and 3:30 a.m. on November 1, 2006. She observed

that the victim was “irritable . . . and very jittery. . . . [T]he baby was shaky and could not

be consoled easily. The baby was stiff. The tone was increased.” Dr. Haynes explained that

increased tone meant that the victim’s muscles were very rigid, or hypertonic. The victim

also had an increased heart rate, or tachycardia. Because the defendant’s drug screen was

positive for opiates, Dr. Haynes initially thought the victim was having drug withdrawal.

However, the victim’s drug screen was negative, and Dr. Haynes and fellow physicians

determined that the victim had suffered a hypoxic ischemic injury. The victim suffered

seizures, and her blood sugar was high, which indicated significant stress or injury. The

victim’s sodium was low, and Dr. Haynes explained that babies get low sodium, or

hyponatremia, from Syndrome of Inappropriate Antidiuretic Hormone (“SIADH”), which

“typically occurs with an asphyxiating event about three days after the event occurs.”

Dr. Haynes said she spoke to the defendant between 3:15 and 4:25 a.m. regarding her

medical history and the circumstances of the victim’s birth. The defendant reported that she

had been pregnant four times and had delivered two children who were not in her custody.

The defendant also reported that she had little or no prenatal care and denied any drug use

with the exception of Oxycodone,3 which she had taken for the past two days for her finger

injury. As to the victim’s birth, the defendant gave Dr. Haynes the following account of

events:

3

Dr. Haynes said that her notes reflected that the defendant reported that she was taking Oxycodone,

rather than Hydrocodone. She said that both drugs are classified as opiates.

11

She told me that she had delivered at home in the toilet. She had had some

pain, went to the bathroom, had a normal bowel movement, then delivered in

the toilet, passed out, woke up. And I’ve written here sometime between 8:00

and 12:00 midnight. That’s when she told me she delivered, that she wasn’t

sure what time it was because she didn’t know how long she had been passed

out. She woke up, cut the umbilical cord. She could not tell me what she used

to cut the umbilical cord. She could not tell me how long the baby had been

in the toilet. She couldn’t tell me any of the circumstances other than the very

vague details that I’m giving you. She told me that she tied the umbilical cord

with a piece of gauze that she had on her injured finger. That’s one thing I

don’t have written down, but I remember that because that was an unusual

story for someone to tell me. She told me she drove herself to the hospital.

That was about it. It was kind of difficult for me to talk to her. She appeared

like she was high, like she was under the influence of drugs.

Dr. Haynes said that the victim’s being born in the toilet “most definitely” would

cause asphyxia. Dr. Haynes said that the victim’s admission temperature was “ninety-six

something” and opined that a baby born in a toilet would have had a much lower

temperature. Because the victim was not born in the hospital, no Apgar score or blood gas

test could be performed to help determine if the victim had experienced an asphyxial event

from the birthing process. She acknowledged that the defendant brought the placenta to the

hospital but said that there was no evidence that the placenta had abrupted or torn away prior

to the delivery of the victim. The victim’s umbilical cord was also examined and determined

to be a short cord, which meant it was less likely that the cord had gotten tangled or knotted.

The State posed a hypothetical question in which Dr. Haynes was asked to assume

that the birth history provided by the defendant was accurate, in that the defendant squatted

over the toilet thinking she was going to have a bowel movement but instead delivered the

victim in two pushes; that after the second push the defendant pulled the victim out and

placed her on her chest before passing out; and that later the defendant regained

consciousness to find the victim pink in color and crying vigorously, both before and after

she passed out. Dr. Haynes said nothing in that history suggested that an asphyxial trauma

occurred during the birthing process. Dr. Haynes said that a baby who suffers asphyxial

trauma in utero or during the birthing process was “usually hypotonic, floppy, non[-

]responsive, doesn’t breathe or irregular gasping kind of efforts,” which could require

resuscitation. According to Dr. Haynes, conditions that could compromise a baby during the

birthing process included the umbilical cord being wrapped around the baby’s neck or other

part of the body, which was more typical with long cords; the baby’s head being trapped in

the birth canal; the baby not being in the appropriate position to deliver; and the placenta

breaking loose. However, there was no evidence that any of those conditions had occurred

12

and nothing in the history provided by the defendant to suggest that the victim suffered the

hypoxic injury a day or so before birth. The victim had no bruising or injuries consistent

with having been trapped in the birth canal. Dr. Haynes said that the victim’s MRI revealed

“changes that were characteristic of hypoxic-ischemic encephalopathy or an event that

occurred around the time of birth.” She explained that encephalopathy is abnormal brain

function and said that the victim’s brain injury was permanent. She said that the victim’s

MRI findings were “typical of an acute, sudden, severe episode of hypoxia.”

Dr. Haynes said that if a baby suffered an asphyxial event in a hospital setting, the

baby could be treated with head cooling therapy, but it must be done within six hours of the

time of delivery. Any delay in seeking that type of therapy would compromise the welfare

of the baby and make the condition worse. She said that the most important medical finding

in terms of the timing of the victim’s injury was the SIADH, which occurred in response to

swelling of the brain. She explained that SIADH typically occurred within three days of the

injury and said that the victim’s sodium level was first noted to be low on November 3. She

said that a low sodium level is the first clue to indicate SIADH. Dr. Haynes acknowledged

that she had no way of determining exactly when the victim’s hypoxic injury occurred

because the victim was not born in the hospital.

Wendy Parrish, a registered nurse at Baptist Hospital, testified that she obtained the

defendant’s medical history at 1:50 a.m. on November 1, 2006, and the defendant reported

that she had had two prior term deliveries and an abortion. The defendant also reported that

she learned of her pregnancy two months prior to November 1 and had been to the Waverly

Belmont Clinic twice.

Cherie Hackney testified that she was a social worker at Baptist Hospital in 2006 and

met with the defendant on November 1, 2006. The defendant told Hackney that she gave

birth to the victim at home on the toilet, passed out for a period of time, and, when she woke

up, retrieved the victim from the toilet before driving herself to the hospital. The defendant

gave no information as to how the victim presented at the time of birth or after the defendant

regained consciousness. Hackney said that her notes reflected that the father of the victim,

“Danny,” was with the defendant at the hospital.

Jimmy Smith, an emergency room nurse at Baptist Hospital in 2006, testified that he

was working the 7:00 p.m. to 7:00 a.m. shift on October 31–November 1, 2006, when an

unidentified woman came into the hospital around midnight and said there was a woman in

the parking lot who had delivered a baby in the car. Smith went outside and found the

defendant sitting in the driver’s seat of a white Ford Taurus in the last ambulance bay. The

defendant, who was dressed in a sweatsuit and smelled strongly of soap or perfume, indicated

that she had just given birth in the car in the parking lot, and Smith saw a newborn baby

wrapped in a towel in the passenger’s seat. The baby was not crying, made no movements,

13

and “seemed lifeless.” He immediately took the baby into the hospital and gave the baby to

other nurses.

Smith said that he then went back outside to tend to the defendant and noticed there

was no blood or “mess” that goes along with childbirth in the car. The defendant reported

that she knew she had been in labor, and when Smith asked her why she had not come to the

hospital sooner, she was “very evasive” and said “it was a personal matter.” Smith described

the defendant’s emotional affect as “an extremely flat affect. She showed . . . no real

emotion, either excitement or depression.” No one else was in the car with the defendant,

and Smith assisted her into a wheelchair. As he helped the defendant out of the car, he

noticed a “blood line” at “the crack of her bottom” and a small amount of blood, about two

inches by three inches, on the driver’s seat of the car. He said he would have expected a

larger amount of blood if she had in fact given birth in the car. With the defendant’s

permission, he moved her car from the ambulance bay to a parking lot. The defendant asked

him to retrieve the placenta from under the seat, and he located a plastic bag containing what

he believed to be bloody tissue but did not look inside the bag. He placed the bag on the

defendant’s lap and wheeled her inside the hospital to the labor and delivery department.

Smith said that he gave a statement to Detective Sarah Bruner on January 9, 2007, and

said that the only difference between his recollection and the statement was that the statement

reflected that the defendant was holding the baby, but he remembered the baby was in the

passenger’s seat. He said he had no doubt that the baby was in the passenger’s seat.

Virginia Thomas of the DCS testified that the defendant’s other children included

Stephan, who was born on April 15, 1995; Stephanie, who was born on November 13, 1997;

Steven, who was born on December 2, 1998; Paul, who was born on April 8, 2000; and

Jaylin, who was born in August 2001.

Dr. Carol Cistola, an OB/GYN physician, testified that she examined the defendant

at the Waverly Belmont Clinic on September 15, 2006. The defendant was a walk-in patient

and reported that she had not received any prenatal care. The clinic records reflected that the

defendant had been advised of her pregnancy on March 16, 2006, and given an estimated due

date of November 15. The defendant also saw an internal medicine doctor at the clinic on

September 12 for low blood pressure. According to the medical history the defendant

provided to the internal medicine doctor, the defendant had been pregnant six times and had

five deliveries. However, the defendant told Dr. Cistola she had been pregnant eight times.

Dr. Cistola’s examination of the defendant showed no indication that the baby was going to

be born prematurely, and the baby’s heart rate was normal. The defendant left the clinic

without getting the recommended prenatal lab work done and did not return for follow-up

testing and treatment.

14

Dr. Cistola said that the defendant received treatment at the clinic three times in 1998

for another pregnancy. The defendant was hospitalized on September 26, 1998, for preterm

labor and had a premature delivery in December 1998. The defendant also received

treatment at the clinic for another pregnancy in 2000 but had only two prenatal visits

although the normal number of visits for a non-high-risk mother was thirteen. For a patient

who had a prior complicated pregnancy like the one the defendant had in 1998, the number

of prenatal visits would have been as many as were needed and could have been daily.

Detective Sarah Bruner testified that she and another officer searched Pipkins’

residence on November 22, 2006, but found no indication of blood, and they were unable to

locate the defendant’s car or clothing she had worn the night of the victim’s birth. Detective

Bruner recovered ten pink pills in a bottle labeled prenatal care, which reflected that the

prescription was filled on March 16, 2006, and written for a quantity of thirty with four

refills.

Detective Bruner said she later obtained the defendant’s cellular telephone records

which reflected a number of calls made to and from the defendant’s phone on October 31 and

November 1, 2006. The defendant provided no information that anyone other than she had

possession of her telephone on those days. The defendant gave Detective Bruner detailed

information regarding her prenatal care with Steven and Paul but did not discuss Jaylin.

Detective Bruner obtained the defendant’s Hydrocodone medication from Ms. Thomas and

placed it into evidence. She said that the prescription bottle contained thirty-eight pills and

that the paperwork accompanying the prescription reflected that forty pills were prescribed

and that the prescription was filled on October 31, 2006, at 5:57 p.m.

Detective Bruner said she interviewed several witnesses, including Jimmy Smith.

Smith reported that the victim was on the defendant’s lap and that there was a towel in the

seat of the car where the defendant had been sitting. Smith did not indicate that the

defendant had reported giving birth in the car in the parking lot.

Cheryl Gooch, a DCS case manager in 2006, testified that the department received a

referral concerning the victim on November 2, 2006. She was the initial case manager

assigned to the case and interviewed the defendant at the DCS office, prior to Virginia

Thomas’ interview at the hospital. The defendant reported that she had an injured finger for

which pain medication had been prescribed, but she did not inform the doctor that she was

pregnant. The defendant gave the medication to Gooch, and she turned it over to Thomas.

The defendant told Gooch she was about six or seven months along with her pregnancy

before she found out she was pregnant. Gooch said the defendant told her that Danny Gooch

had come by her residence before she gave birth to the victim, but no one was present during

the birth. The defendant reported that she delivered the victim at home on the toilet between

8:30 and 9:00 p.m. and put the baby on her chest before passing out for an unknown period

15

of time. The defendant said she went to the hospital around midnight. Gooch asked the

defendant several times for information regarding her other children, but the defendant

refused to disclose their names.

Dr. Kendall Graham, a neonatologist at Baptist Hospital, testified that he was one of

the primary physicians who began treating the victim on November 1, 2006. He described

the victim’s condition as “jittery and kind of irritable, difficult to console.” The doctors

initially thought the victim was going through drug withdrawal because of the defendant’s

positive drug screen and the history provided by the defendant that she had been taking a

narcotic for pain relief prior to delivery. However, during the next three days, the victim

began showing signs of seizure activity and SIADH, which was common in infants who had

suffered an asphyxia event. The doctors realized the victim was not suffering from a narcotic

withdrawal but was showing symptoms consistent with having suffered some type of

asphyxia around the time of birth. An EEG performed on the victim on November 3

revealed seizure activity, and an MRI performed on November 14 or 15 showed that the

victim had suffered injury to the deep parts of the brain. Dr. Graham said that the pattern of

the victim’s brain injuries was consistent with birth asphyxia.

Dr. Graham said that infants who suffer a serious hypoxic injury during the birthing

process do not cry vigorously. He said that the victim had suffered “a mild to moderate”

permanent hypoxic injury “very near the time of birth.” Based upon the information the

doctors had, there was no definitive way to determine whether the victim’s hypoxic injury

occurred before birth, at birth, or after birth. However, Dr. Graham said that he was

“comfortable” in saying that the victim’s injury occurred within a few hours before birth

through the time of birth to a few hours afterwards. He said that the defendant’s use of

Hydrocodone the night of the victim’s birth did not cause the victim’s hypoxic injury.

Dr. Robert Reece’s trial testimony reiterated that given at the pretrial hearing, and he

acknowledged that he had been retained by the State to consult in the case. He further said

that when evaluating whether a child suffered an asphyxial event, he looked to a broad

spectrum of information, including information regarding the child’s siblings, social service

investigations of the family, prior police investigations, and prior medical histories of the

family to determine if there were any predisposing factors for certain medical conditions.

He reviewed the victim’s medical records from Baptist Hospital, the police reports, social

service reports, the prenatal history provided by the defendant, and the medical histories

involving other children and agreed with the medical assessment that the victim sustained

a hypoxic injury. He said it was “difficult” to determine the time of the injury but agreed

with Drs. Haynes and Graham that it occurred at or around the time of birth. Dr. Reece said

that he reviewed all of the historical information provided by the defendant and observed that

“the history was changing. There were several different accounts of what happened,” which

was “a big red flag” to him. Dr. Reece said that he had “a very strong feeling” and had

16

determined to a reasonable degree of medical certainty that the victim’s injury was the result

of an induced suffocation. He related the factors he considered in reaching that conclusion:

[T]he fact that the baby was, first of all, born in a toilet, then cried immediately

after the baby was born according to the mother’s account. Then there was a

passing out of the mother according to her account during which time we don’t

know what was going on with the baby. Then there was no call for help, no

call to 911 to EMS to come and help with the baby. And then there was an

almost four hour delay between the time that we are told the baby was born

and the arrival at the emergency department. And then even at the emergency

department there was a delay of sitting in the car for a good period of time and

being discovered there by one of the nurses from the hospital. So all of this

makes me concerned about what was going on in that interval.

Dr. Reece said that the defendant’s giving birth at home and not seeking medical

assistance in a timely fashion suggested that “there wasn’t a whole lot of attention being

given” to the victim. In evaluating child abuse and neglect cases, a delay in seeking medical

care was “[a]bsolutely” something he saw frequently. Dr. Reece said that the defendant’s

delay in seeking medical care, failure to call EMS at the time of delivery, “spotty” prenatal

care, and failure to make arrangements for a hospital delivery constituted “a fairly neglectful

approach to a newborn baby.”

Dr. Reece said he had delivered approximately 150 babies and had been present when

birth asphyxia occurred. In those situations, the newborns usually had a “weak cry if a cry

at all.” Nothing in the history provided by the defendant or in the medical findings indicated

that the victim suffered the asphyxial trauma prior to birth or during the birthing process.

There was no meconium on the victim’s skin which indicated that the victim was “born

healthy and alive and vigorous.”

Dr. Reece identified a policy statement from the American Academy of Pediatrics

entitled Distinguishing Sudden Infant Death Syndrome From Child Abuse Fatalities,

published in July 2006, which was admitted into evidence.

Clechette Frazier-Weir, the victim’s foster mother, testified that the victim came into

her care on November 14, 2008, at the age of two, and weighed only fifteen pounds, could

not crawl, walk, or talk, and could “[b]arely” sit up on her own. She said that at the time of

trial, the victim weighed 27.14 pounds, had cerebral palsy, and was developmentally delayed.

The victim was able to walk with the aid of special shoes and a K-walker when in crowds

and could talk in complete sentences. Ms. Frazier-Weir explained that she “constantly”

worked with the victim and described the type of care the victim needs:

17

In a day we do over eighty exercises a day. Feeding was taking like an

hour and a half . . . for her to really feed herself. To get all of her therapy at

home and then going to physical therapy and getting it done – because what

they implement at Vanderbilt I take home and just keep adding to it. So it’s

a day’s work.

In addition, the victim received speech therapy and had to see a neurologist and orthopedic

doctor annually. Ms. Frazier-Weir said that she planned to adopt the victim.

The defendant elected not to testify and presented no proof. The jury convicted her

of aggravated child neglect as charged in Count 1 of the indictment and of the lesser-included

offense of reckless aggravated assault in Count 2, which the trial court merged with the

neglect conviction.

At the sentencing hearing, Ms. Frazier-Weir testified that the victim’s doctors had

informed her that the victim would always need assistance and would never be able to live

independently.

ANALYSIS

I. Sufficiency of the Evidence

The defendant contends that the evidence is insufficient to support her conviction for

aggravated child neglect, charged in Count 1, because it does not show beyond a reasonable

doubt that her alleged neglect resulted in serious bodily injury to the victim or that she knew

the victim was injured, and that, as to both Counts 1 and 2, the State failed to establish she

was criminally responsible for the victim’s brain injury, i.e. that “some act or failure by [the

defendant] actually caused [the victim’s] injury.”

In assessing these claims, we apply the rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

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

v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in

criminal actions whether by the trial court or jury shall be set aside if the evidence is

insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);

State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,

604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the

weight and value to be given the evidence, and all factual issues are resolved by the trier of

fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict

by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State

18

and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of

innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that

on appeal a convicted defendant has the burden of demonstrating that the evidence is

insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

As we have set out, the defendant was tried on Count 1, where she was charged with

and convicted of aggravated child neglect, and Count 2, where she was charged with

aggravated child abuse and convicted of reckless aggravated assault, which then was merged

into the conviction for Count 1. The State provided the following information in response

to her request for a bill of particulars as to these two charges:

Count[] 1 – Aggravated Child Neglect. Alleges defendant engages in an

ongoing course of conduct in neglecting welfare of [the victim] including

failing to seek prenatal care, concealing pregnancy, using a narcotic drug

within hours of delivering, delivering [the] baby unassisted outside of a

hospital setting, depriving victim of oxygen, and delaying taking [the] baby to

[the] hospital. As a result of this the victim sustains hypoxic and ischemic

injury to the brain which results in death of brain tissue. Victim also

experiences transient tachypnea, hyponatremia, abnormal EEG’s and ongoing

seizures.4

Count[] 2 – Aggravated Child Abuse. Alleges defendant knowingly deprives

4

The State acknowledges on appeal that there appears to be no judicial decision in Tennessee regarding a

defendant’s “calculated and extended effort to neglect the victim’s existence – both in utero and after birth,” as alleged

in the bill of particulars regarding Count 1 of the indictment. Our child abuse and neglect statute has been specifically

held not to extend to a fetus, as this court discussed in Tabitha Ann Trice v. State, No. M2006-01051-CCA-R9-CO, 2009

W L 29926 (Tenn. Crim. App. Jan. 6, 2009). Thus, the statute does not criminalize the defendant’s acts in concealing

her pregnancy, failing to seek prenatal care, and otherwise attempting to “negate” the victim’s existence while still in

utero.

19

the victim of oxygen after giving birth. As a result of this the victim sustains

hypoxic and ischemic injury to the brain which results in death of brain tissue.

Victim also experiences transient tachypnea, hyponatremia, abnormal EEG’s

and ongoing seizures.

A. Aggravated Child Neglect

In our review of the defendant’s conviction for aggravated child neglect, we first note

our supreme court concluded in State v. Dorantes, 331 S.W.3d 370, 385 n.15 (Tenn. 2011),

that, as a result of the 1998 amendment to Tennessee Code Annotated section 39-15-402,

“aggravated child abuse and aggravated child neglect [are] separate offenses.” Additionally,

in State v. Mateyko, 53 S.W.3d 666, 671-72 (Tenn. 2001), the court explained that a

conviction for child neglect requires that the State show “the defendant’s neglect produced

an actual, deleterious effect or harm upon the child’s health and welfare.” Relying on these

cases, the defendant argues that the evidence is insufficient to sustain her conviction for

aggravated child neglect because the State failed to prove beyond a reasonable doubt that her

alleged neglect itself resulted in serious bodily injury to the victim or that she knew the

victim was injured.

Aggravated child neglect occurs when a person “knowingly, other than by accidental

means, . . . neglects a child under eighteen (18) years of age, so as to adversely affect the

child’s health and welfare,” and serious bodily injury results. See Tenn. Code Ann. §§

39-15-401(a), -402(a)(1) (2006). “Serious bodily injury” is defined as bodily injury

involving: “(A) [a] substantial risk of death; (B) [p]rotracted unconsciousness; (C) [e]xtreme

physical pain; (D) [p]rotracted or obvious disfigurement; or (E) [p]rotracted loss or

substantial impairment of a function of a bodily member, organ or mental faculty.” Id. §

39-11-106(34).

Previously, we have set out testimony of medical experts relevant to the defendant’s

convictions. We will review testimony relating to this issue.

As we have set out, Jimmy Smith, an emergency room nurse at Baptist Hospital in

2006, testified that, as he was working his shift on October 31-November 1, 2006, around

midnight he learned that a woman was in a car in the parking lot, where she had given birth.

He went outside and located the defendant sitting in the driver’s seat of a vehicle, and she

indicated she had just given birth in the parking lot. He saw a newborn baby, who “seemed

lifeless,” wrapped in a towel on the passenger’s seat. He immediately took the baby into the

hospital. When he returned to the defendant’s vehicle, she was “evasive” as to why she had

not come into the hospital earlier and exhibited “no real emotion, either excitement or

depression.”

20

The State presented expert proof as to the effect of the delay of the defendant in

seeking medical assistance for the victim. Dr. Mary Jane Haynes was questioned regarding

specific medical treatment the victim could have received had she been taken to the hospital

in a timely fashion after her birth and the effect of the delay:

Q. Dr. Haynes, just from the standpoint of the injury that you did see would

delays in development, delays in speech, delays in coordination be consistent

with this type of brain injury?

A. Yes, it would. You could expect anything from muscular problems, . . .

such as cerebral palsy to weakness. You could see thinking problems, mental

retardation, behavior problems. It’s a whole spectrum of disabilities that it’s

impossible to predict until the baby is expected to meet the milestones what’s

going to happen.

Q. Now, you mentioned that we’re all different, all unique. Does the severity

of the hypoxic event, its duration, have any impact on the severity of the

underlying injury to the brain?

A. It requires a certain degree of hypoxia to get a brain injury, and babies who

have a more significant hypoxic event, if the hypoxia is for a longer duration,

those babies are more likely to have more damage. They will have more

damage. But there’s not a recipe or a formula that says that if the baby is

without oxygen for this many minutes or for this many hours that it’s going to

have . . . it depends on the degree. It’s not an exact science.

Q. Okay. Is there any way to tell from the MRI here how long or how long

of a period [the victim] had a hypoxic injury for in order to get that injury that

was seen?

A. The MRI findings are typical of an acute, sudden, severe episode of

hypoxia.

Q. Okay. Now, you’ve used a number of terms. But you’ve also talked about

sort of this spectrum of severity.

A. Uh-huh.

Q. Some children who suffer [a] hypoxic event, do they die?

A. Yes, they do.

21

Q. Some who suffer [a] hypoxic event have little to not [sic] severe

consequences?

A. Yes.

Q. And then some fall in that in between spectrum?

A. That’s true.

Q. Okay. Assuming that we had two similarly aged children shortly after

birth who suffer the same duration of hypoxic injury, are those two children

going to have the same manifestations or same consequences?

A. No, they’re not. They may, but not necessarily.

Q. So a hypoxic event of two minutes of duration, for example, of baby A and

baby B can produce different results in each?

A. Yes.

Q. Now, you’ve talked about cases in which you’ve been involved where

there was an asphyxial trauma at the time of birth or during the labor process,

and you talked about babies that came out and presented with certain pictures.

One of the things I think you talked about is needing resuscitation. Do some

of those babies come out and they’re essentially comatose?

A. Yes.

Q. Did [the victim], when you examined her on the early morning hours of

November 1st, show any signs of being depressed, lethargic, or comatose?

A. No, she was hypertonic and jittery and irritable, things that are consistent

with a basal ganglia or a thalamic injury.

Q. What is the fact that she is not comatose say in terms of the severity of the

injury?

A. It may have been a more mild injury. It may have been an injury of shorter

duration. But it’s impossible to say. Just as an example, I deal with a lot of

very, very small babies, very immature babies, some babies that are born that

just are simply too small or too young to resuscitate. Sometimes we leave

22

these babies with their mothers because the mothers want to hold the babies.

There’s nothing we can do for the baby. And the baby may be blue with a

very low heart rate and essentially no respiratory effort, and then in fifteen

minutes the baby may be not so blue, breathing a little bit. And then the baby

will die. But . . . babies can have . . . a not so great start and then kind of self-

recover.

Q. Is there a reason why an MRI in a situation like this should be done at a

later point in time?

A. Because the changes are evolving, the changes aren’t static.

Q. Would you describe what you mean by that and how that works in a case

like this?

A. Okay. An MRI that you do early after delivery when the event has

occurred right around the time of delivery may not show the injury. It may –

it takes a while for the injury to develop and become apparent on the MRI.

Q. You described that this is a finding that’s consistent with an acute hypoxic

event?

A. Yes.

Q. All right. What happens – so the injury takes place at point A, and you’re

saying at or around the time of birth or after birth. What happens to the brain

as it evolves from that initial insult? Let me ask it this way.

A. Okay.

Q. Are there further consequences from that initial insult that occur because

of the insult in terms of how that brain either becomes necrotic or has other

types of chemical changes or biological changes from the original hypoxic

insult?

A. Well, it depends on – again, that’s going to depend on the baby. I’m not

sure . . . what you’re asking. But, . . . there are different things that we can do.

You know, it’s very cutting edge technology. But babies who are asphyxiated

– it depends on the conditions that they’re maintained under. The current

therapy is cooling, head cooling. Which this baby wasn’t born in the hospital,

so that didn’t happen. But it depends on all the factors with the baby as to

23

what the outcome is, as to what changes occur in the brain. If it’s the acute

immediate injury, then apoptosis occurs. The cells are programmed to die.

But ongoing hypoxia could cause a necrotic sort of picture.

Dr. Haynes then explained the purpose of cooling the brain of a baby who has suffered

an asphyxial event:

Q. [L]et’s go back to that scenario. Assuming that a baby is born in the

hospital setting and you know based on the monitoring of the mother and the

baby that an asphyxial event has taken place, you said that one of the

treatments that can be done is cooling?

A. Yes.

Q. Why is that done, and what is the purpose of doing that?

A. It seems to slow down the program cell death, the apoptosis. The early

studies show that there’s much better outcome when babies undergo head

cooling after they’ve had an asphyxiating event. But they have to be cooled

within six hours of the time of delivery.

Q. So you have a very narrow window of time that you’re dealing with that?

A. Yes, it’s six hours.

Q. So a situation in which an asphyxial event takes place outside of a hospital

setting it would be important for that child to be seen in the emergency room

or the Neonatal Intensive Care Unit to evaluate and look for the potential to

provide that type of therapy?

A. Yes.

Q. Delays in seeking that therapy would potential[ly] compromise the welfare

of that baby?

A. Yes.

We will review the authorities relied upon by the defendant to support her claim that

the State failed to show “her neglect of the victim resulted in serious bodily injury beyond

that caused by her reckless aggravated assault of the victim.”

24

In State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-CD, 2011 WL 900053,

at *5 (Tenn. Crim. App. Mar. 16, 2011), the defendant burned the palm of the child victim

with a cigarette, resulting in convictions for both aggravated child abuse and aggravated child

neglect. The injury was treated with Neosporin ointment and a band-aid, which a physician

acknowledged was the correct treatment. While this court sustained the conviction for

aggravated child abuse, we reversed that for aggravated child neglect, concluding that “[t]he

record is devoid of any evidence that the victim suffered further harm or injury subsequent

to the initial abuse.” Id. at *6. See State v. Marcos Acosta Raymundo, No.

M2009-00726-CCA-R3-CD, 2010 WL 4540207, at *15 (Tenn. Crim. App. Nov. 10, 2010)

(concluding that the defendant’s delay in seeking help for the victim until she collapsed did

not have an actual, deleterious effect on her health because the victim’s collapse was caused

by the abuse, not the delay); State v. John Barlow, No. W2008-01128-CCA-R3-CD, 2010

WL 1687772, at *11 (Tenn. Crim. App. Apr. 26, 2010) (holding the evidence failed to

demonstrate that the defendant’s delay in seeking medical care for the victim caused

additional brain damage when medical experts testified generally to the risk of continued

swelling of the brain but the evidence failed to show an actual, deleterious effect on the

victim caused by the delay), perm. app. denied (Tenn. Sept. 24, 2010); State v. Denise

Wiggins, No. W2006-01516-CCA-R3-CD, 2007 WL 3254716, at *5 (Tenn. Crim. App.

Nov. 2, 2007) (evidence showed that the burn from an iron, rather than the defendant’s

failure to seek medical help, caused the victim’s serious bodily injury), perm. app. denied

(Tenn. Mar. 3, 2008); and State v. Vernita Freeman, No. W2005-02904-CCA-R3-CD, 2007

WL 426710, at *8-9 (Tenn. Crim. App. Feb. 6, 2007) (“proof established that it was the

[defendant’s] acts of abuse which produced the serious bodily injury to the minor victim” and

“[a]t no time . . . did the prosecution attempt to distinguish the separate counts of child abuse

and child neglect based upon spatial or factual differences”).

The situations in these cases and others relied upon by the defendant in this regard

contrast with those in which the victims sustained injuries from both an initial injury and a

delay in seeking treatment, aggravated child abuse and aggravated child neglect, allowing

both convictions to stand. See State v. Lakeisha Margaret Watkins, No.

M2009-02607-CCA-R3-CD, 2011 WL 2682173, at *18-25 (Tenn. Crim. App. July 8, 2011)

(affirming conviction for aggravated child neglect when the defendant’s failure to seek

medical attention for infant’s multiple contusions to his face and brain and also a concussion

until after victim stopped breathing caused injury to his brain from the lack of oxygen and

the defendant’s “failure to seek medical treatment after the first seizure posed a substantial

risk of death”), perm. app. denied (Tenn. Nov. 15, 2011); and State v. Christopher Earl

Watts, No. M2009-02570-CCA-R3-CD, 2012 WL 1591730, at *19 (Tenn. Crim. App. May

3, 2012) (defendant’s conviction for aggravated child neglect was affirmed, the proof

showing that, after the fifteen-month-old victim had suffered a seizure in the morning, he and

his co-defendant, the victim’s mother, did not seek medical attention until the victim had

stopped breathing that evening, the delay resulting in permanent brain injury), perm. app.

25

denied (Tenn. Sept. 21, 2012). The situation in the present appeal is much like those in

Watkins and Watts.

We have set out substantial testimony from which a reasonable jury could have

concluded that the defendant’s actions caused separate serious injuries to the victim and that

she knew the victim was injured but delayed seeking medical assistance. Lorraine Pipkins,

with whom the defendant lived at the time of the victim’s birth, said that, the evening of the

birth, the defendant “kept moaning and groaning like . . . she was hurting real bad” and

refused to go to a hospital but, instead, went into the bathroom, where she remained for about

forty-five minutes. She came out of the bathroom dressed in a towel, asked for a sanitary

napkin, dressed herself, and left the apartment between 7:30 and 8:00 p.m. Nurse Jimmy

Smith testified that he encountered the defendant, sitting in the driver’s seat of her vehicle

at the Baptist Hospital parking lot, and saw the victim, who “seemed lifeless,” in the

passenger seat.

Latoya Pipkins, Lorraine Pipkins’ daughter, testified that, when she asked to use the

bathroom that evening, the defendant would not come out. Neither she nor her mother saw

or heard a baby that night. The next morning, there was blood on the toilet, sink, and

bathtub. Danny Gooch testified that the defendant left Pipkins’ apartment around 9:00 p.m.

that evening carrying a laundry basket full of clothes and towels, saying that she was going

to her mother’s house to wash clothes. She put the basket in the front seat of her car and

drove off. He, also, neither saw nor heard a baby that night. At around 4:00 a.m. the

following morning, he went to Baptist Hospital in response to the defendant’s telephone call,

and she told him that she had given birth. Later, when he moved the defendant’s car, he saw

the defendant’s clothes, which were “full of blood,” as well as bloody towels. He threw

away these items, as well as the defendant’s bloody clothes. We have set out in detail the

testimony of Dr. Mary Jane Haynes, who testified that the welfare of a baby suffering a

asphyxial event, as did the victim, would be compromised unless treated with cooling

therapy within six hours of delivery. From this, and the other testimony detailed in this

opinion, we conclude that a reasonable jury could have found that the defendant knowingly

neglected the newborn victim so as to adversely affect her health and welfare, causing

serious bodily injury, in that she was secretive, both in giving birth and taking the victim out

of Pipkins’ house, and in that she delayed seeking medical assistance, resulting in severe

permanent injuries to the victim. Accordingly, the proof supports the defendant’s conviction

for aggravated child neglect.

B. Reckless Aggravated Assault

This offense is committed when a person recklessly commits an assault and causes

serious bodily injury to another. See Tenn. Code Ann. § 39-13-102(a)(2)(A) (2006).

“‘Reckless’ means that a person acts recklessly with respect to circumstances surrounding

26

the conduct or the result of the conduct when the person is aware of, but consciously

disregards a substantial and unjustifiable risk that the circumstances exist or the result will

occur. The risk must be of such a nature and degree that its disregard constitutes a gross

deviation from the standard of care that an ordinary person would exercise under all the

circumstances as viewed from the accused person’s standpoint[.]” Id. § 39-11-106(a)(31).

Thus, to sustain the conviction for reckless aggravated assault, the State was required to

prove beyond a reasonable doubt that the defendant was aware of, but consciously

disregarded, a substantial and unjustifiable risk that her actions surrounding the birth of the

victim caused serious bodily injury to the victim.

As we have set out, the State’s bill of particulars stated that the defendant committed

aggravated child abuse by “knowingly depriv[ing] the victim of oxygen after giving birth.”

Dr. Robert Reece, the State’s child abuse expert, testified that the victim’s injury

occurred at or around the time of birth. He further said he had determined to a reasonable

degree of medical certainty, due to the circumstances surrounding the defendant’s pregnancy,

her changing stories, the manner in which she chose to give birth, and her delay in seeking

medical care for the victim, that the victim’s injuries were the result of an induced

suffocation:

Q. Ultimately, Dr. Reece, did you form an opinion to a reasonable degree of

medical certainty as to whether or not you believe [the victim] sustained an

asphyxial trauma as a result of accidental or non accidental or natural means?

A. Yes.

Q. And what was that conclusion?

A. My conclusion was that this did not occur accidentally, that it was probably

induced.

Q. And when you mean “probably,” what do you mean by that?

A. More likely than not. I think there was a very strong – I have a very strong

feeling that this actually was an induced suffocation.

Q. And in formulating your opinions[,] what information are you focusing on

in that respect?

A. Well, the fact that the baby was, first of all, born in a toilet, then cried

immediately after the baby was born according to the mother’s account. Then

27

there was a passing out of the mother according to her account during which

time we don’t know what was going on with the baby. Then there was no call

for help, no call to 911 to EMS to come and help with the baby. And then

there was an almost four hour delay between the time that we are told the baby

was born and the arrival at the emergency department. And then even at the

emergency department there was a delay of sitting in the car for a good period

of time and being discovered there by one of the nurses from the hospital. So

all of this makes me concerned about what was going on in that interval.

....

Q. Is there anything about that scenario then that supports a suggestion that

the asphyxial trauma is occurring during the birthing process itself?

A. It would mitigate against that.

Q. Meaning it lessens the likelihood?

A. Yes.

Q. And is there any information that suggests that the cord was tied up or

wrapped around the baby that might cause injury?

A. No, there was something actually in the record about this being . . . a short

umbilical cord, so that the possibility of this being wrapped around the neck

seemed much less than it would in a longer cord baby.

Q. Was there any medical information in terms of the evaluation of the

placenta or the mother’s uterus that suggested the baby was compromised in

utero or prior to birth?

A. No, the placenta was fine.

....

Q. Dr. Reece, did you form an opinion to a reasonable degree of medical

diagnosis in this case as to whether or not [the victim] sustained hypoxic injury

as a result of neglect [sic] behavior?

[A.] Yes.

28

Q. What information did you use in formulating that opinion?

A. Well, the things that we’ve been talking about, the delay in seeking

medical care, the failure to call EMS at the time of the delivery. Going back

to the prenatal care, which was spotty at best. The diagnosis was made of

pregnancy, I think it was in March, and then there was no other visit until a

couple of weeks prior to the delivery. And there w[ere] no arrangements made

for a hospital delivery. So that the whole process was one of what I would

consider a fairly neglectful approach to a newborn baby.

Q. . . . In your opinion is the condition of the baby having hypertonia within

– or at 3:30 a.m. on the day of admission anything that points to a conclusion

that this baby had to have sustained the asphyxial trauma prior to birth?

A. No.

Q. From your perspective is there any medical – based on all the consideration

of the medical information that you’ve evaluated, the historical information

that you’ve evaluated in this case, and the circumstances surrounding this

birth, is there anything that points to this being something other than an injury

occurring as a result of child abuse or child neglect?

A. I don’t see it.

Dr. Kendall Graham testified that the pattern of the victim’s brain injuries was

consistent with birth asphyxia, which occurred “very near the time of birth.” Although he

was “comfortable” in saying that the injury occurred during the period from a few hours

before birth to a few hours afterwards, he testified that there was no definitive way to

determine when exactly it occurred during this period.

Dr. Mary Jane Haynes testified that being born in the toilet “most definitely” would

cause the victim to suffer asphyxia, but she also said that she would expect a baby born in

a toilet to have a much lower temperature than the victim’s temperature upon admission. She

stated that there was no evidence that the placenta had abrupted or torn away prior to the

delivery, of the umbilical cord’s having wrapped around the victim’s neck during the birthing

process, or of the victim’s head having been trapped in the birth canal, all of which would

suggest that the hypoxia did not occur prior to or during the birth. However, because the

victim was not born in a hospital, Dr. Haynes was unable to determine exactly when her

hypoxic injury occurred. Dr. Haynes additionally testified, as we set out more fully in our

consideration of the evidence as to the aggravated child neglect conviction, that the victim

could have received head cooling therapy for up to six hours following her birth and that any

29

delay in administering that treatment would compromise the welfare of the baby and make

the condition worse.

We have set out the elements of the offense of reckless aggravated assault, which was

an included offense in Count 2. Based upon the testimonies of the State’s expert witnesses,

we conclude that a reasonable jury could have determined that the victim’s initial injuries

were caused by the defendant’s reckless conduct amounting to an assault at birth, resulting

in serious bodily injury to the victim, and, thus, that the defendant committed the offense of

reckless aggravated assault. This claim is without merit.

II. Election as to Count 2

As to Issues II, III, and IV, the defendant relies upon closely related arguments, all

based upon her view that “the State’s mistake . . . was in arguing that the jury could find [the

defendant] guilty of a single offense of aggravated child abuse using any of these ‘different’

and ‘multiple scenarios’ of abuse,” the scenarios consisting of the allegations in the bill of

particulars as to aggravated child neglect. In our review, we first will determine whether we

agree that the “mistake” had the effect claimed by the defendant.

The indictments, as detailed in the bill of particulars, charged the defendant with

aggravated child neglect, Count 1, consisting of a multi-act “ongoing course of conduct,”

ranging, roughly chronologically, from “failing to seek prenatal care” to “delaying taking

[the] baby to the hospital.” This conduct included “depriving [the] victim of oxygen.” By

contrast, the aggravated child abuse charge, Count 2, consisted of the single act of

“knowingly depriv[ing] the victim of oxygen after giving birth.”

We will set out the relevant portion of the State’s closing argument to review the

defendant’s claim in context, putting in italics the sentence upon which she relies as

overriding the bill of particulars so that aggravated child abuse was no longer based upon

the single act of “knowingly depriving” the victim of oxygen but, instead, upon the same,

multiple acts as aggravated child neglect:

[W]hat’s the evidence of neglect? Her failure to go to prenatal visits, her

failure to follow through, her hiding her pregnancy? All of that behavior

reflects her knowledge and her intent to, in fact, engage in neglectful behavior.

And it follows through all the way up until the point in time where Jimmy

Smith walks out and collects that baby. Because that neglect is an ongoing

course of conduct here. What do we know about that behavior? We know

from moment one there was never any intention that that baby be born in a

hospital. [The defendant] made every decision along the lines to avoid that

scenario despite the fact that she knew that on prior occasion she had given

30

birth outside of a hospital setting, that on a prior occasion she had a pregnancy

that required her to be hospitalized for two months, that despite the advice to

follow through with prenatal care and make arrangements for that she

deliberately, intentionally, knowingly chose to do that. Why did she do that?

I can’t give you the answer. But the acts reflect that intention. The acts reflect

that knowledge.

So what are the scenarios for neglect? Well, there are multiple. She

neglected that welfare of that child under one scenario by simply having a

baby outside of a hospital setting knowing what that risk was and creating that

environment. Under one scenario, the scenario she gives to Dr. Haynes, she

gives birth in a toilet. And Dr. Haynes tells you that in and of itself could

have produced this asphyxial trauma. Under another scenario she neglects the

welfare of that baby by placing the baby up against her chest and passing out,

positional asphyxia. That’s certainly a possibility in this case. A third one,

she puts the baby in a clothes basket to secrete the baby and carries it outside.

Positional asphyxia there? Again, a possible scenario. And the fourth

possible scenario, of course, is that she deliberately smothers that baby,

whether to stop it from crying or for some other even more sinister purpose.

And then finally the last scenario that the very act of delaying taking that child

to the hospital involves the additional infliction of serious bodily injury. The

failure to give information about what happened surrounding that birth

deprives that child of that very brief window of opportunity when that child

might have been helped. Six hours in which it could be cooled on the brain.

And Dr. Haynes told you that that worsens this child’s condition. Under any

of those scenarios the defendant is guilty of aggravated child abuse or

aggravated child neglect. (emphasis added).

Aggravated child abuse is not an ongoing behavior. It is a specific

point in time. But, again, the behavior here on that night reflects that this

happened other than by accidental means. It did not occur during the birth.

There is not one shred of medical proof that substantiates the version that they

want you to accept, that somehow, some way this happened during the

birthing process. Not one scintilla of evidence. Sure, is it possible out there

in the realm of medical potential? Every doctor that walked into this

courtroom told you, yes, it is. But is that a reasonable doubt in this case when

there is no medical evidence to support that? I submit that there is not.

Thus, for her argument to succeed as to Issues II, III, and IV, the defendant relies

upon her view that, by this italicized sentence, the State abandoned the claim of its bill of

particulars as to aggravated child abuse and adopted the multi-claims for aggravated child

31

neglect. She does not consider the possibility that the State simply made an errant comment

when moving from a discussion of the “scenarios” of acts constituting aggravated child

neglect to that which was the “specific point” in time she committed aggravated child abuse.

Her arguments as to Issues II, III, and IV of her brief are predicated solely upon this view.

As to her analysis on appeal, we note that the defendant did not object as the

questioned statement was made during the rebuttal argument or complain that the State was

taking a position contrary to the bill of particulars. Further, she made no request for a

curative instruction, either during the State’s argument or at the conclusion of the trial.

Accordingly, as we will explain, we disagree with the basic assumption of this argument.

We have several reasons for concluding that the State’s comment was an errant

statement. First, in the relevant passages of the transcript, the State was arguing as to the

several acts which constituted child neglect, ranging from in utero lack of care to delaying

seeking medical treatment. During the references to aggravated child neglect, the State

continued to use the word “scenarios” and tracked the allegations of the bill of particulars.

As the State was moving then to arguing that the evidence showed the defendant had

committed aggravated child abuse, the prosecutor stated that, under the scenarios outlined,

the jury could convict the defendant of aggravated child neglect or aggravated child abuse.

The defendant did not make a contemporaneous objection to what would appear to have

been a total reversal of the specifics of the bill of particulars, nor ask for a curative

instruction either then or later.

To support her argument, the defendant relies upon statements of the trial court and

the prosecutor that the two counts consisted of the same act or acts committed in alternative

fashions. Responding to the defendant’s request that the two charges required that an

election be made, the prosecutor stated that they presented “alternative theories,” and the

trial court responded, “Sort of the same thing as a first degree murder, either premeditated

or felony murder as being alternatives.” The defendant’s interpretation of these statements

does not consider the fact that the two counts shared the claim the defendant had deprived

the victim of oxygen, with this being the sole allegation in the bill of particulars as to the

child abuse charge and one of a series as to child neglect. The record does not show whether

the exchange between the State and the trial court was recognizing the allegation common

to both counts or as the defendant has interpreted it. Accordingly, we conclude that this

interchange, while relevant, does not necessarily support the defendant’s argument.

Supporting her position on this issue, the defendant relies on the holding in State v.

Derrell F. Nunn, Sr. & Jamila Nunn, No. E2007-02333-CCA-R3-CD, 2009 WL 4790211,

at *27 (Tenn. Crim. App. Dec. 14, 2009), perm. app. denied (Tenn. May 12, 2010), to argue

that the State should have been required to elect which of the several acts was the basis for

the Count 2 charge of aggravated child abuse. In Derrell F. Nunn, the indictment “charged

32

that the Defendants committed the offense of child abuse ‘on or before September 5, 2002’

[and, at the trial] [t]he state presented evidence that the victim had older injuries, occurring

before that date, as well as a new brain injury on that date.” Id. Thus, the court concluded

that the State should have made an election as to which of the “multiple injuries” was the

basis for the charge of aggravated child abuse. This holding is relevant only if we accept the

defendant’s interpretation of the State’s rebuttal, which we do not.

Similarly, in State v. Janet Huffine Dykes, No. E2001-01722-CCA-R3-CD, 2002 WL

1974147, at *6 (Tenn. Crim. App. Aug. 16, 2002), also cited by the defendant, the young

victim was diagnosed as having sustained various fractures, some of which were healing,

while others had occurred within forty-eight hours of the x-rays. As the result of these

injuries to the victim, the defendant was convicted of reckless aggravated assault and

aggravated child abuse through neglect, with the assault conviction merging into the greater

neglect conviction.

On appeal, the conviction for aggravated child abuse through neglect was reversed

because there “there [was] simply no proof in the record that the Defendant knew [the

victim] was injured and delayed seeking treatment for those injuries such that serious bodily

injury resulted.” Id. That situation is unlike the one presented by the present appeal, and we

previously have explained why the proof is sufficient to sustain the convictions both for

Counts 1 and 2.

Additionally, the defendant relies upon State v. Phillips, 924 S.W.2d 662, 665 (Tenn.

1996), in which that defendant forced various sexual acts on the victim during a period of

several hours. This case, she argues, required that the State “make an election as to which

alleged act by [the defendant] constituted the ‘treated’ element of the single aggravated child

abuse count.” Again, this is relevant only if we accept her claim that, by a single sentence

in the rebuttal argument, the State adopted for child abuse the bill of particulars’ multi-

claims for child neglect. Thus, neither the court’s holding in Phillips nor the similar one in

State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000), is relevant to the defendant’s claim.

The cases relied upon by the defendant as to this issue are relevant only if we accept

her view that, by the questioned statement in its rebuttal argument, the State changed its

previous position to become that the “scenarios” for aggravated child neglect replaced the

single act previously alleged for aggravated child abuse. Since we do not agree with the

argument, the authorities upon which she relies are not relevant. There was no election to

be made as to Count 2.

This issue is without merit.

33

III. Jury Instruction that Defendant Could Not

Be Convicted as to Both Counts 1 and 2

The defendant makes the related argument that the trial court erred by not instructing

the jury that it could find the defendant guilty of aggravated child abuse or aggravated child

neglect, but not both. Such an instruction was required, according to the defendant’s

argument, because she was charged pursuant to two different theories regarding the same

event. The State responds that the defendant failed to request such a charge and that the

court’s giving of the pattern unanimity instruction was sufficient in this regard. To the

State’s response that the defendant cannot raise this issue on appeal because she did not do

so in the trial court, the defendant says this court may consider this claim utilizing a “plain

error” analysis.

In support of her argument, the defendant relies upon the holdings of this court in

State v. Vernita Freeman, No. W2005-02904-CCA-R3-CD, 2007 WL 426710 (Tenn. Crim.

App. Feb. 6, 2007), and State v. Randy Lee Ownby, No. M2007-01367-CCA-R3-CD, 2009

WL 112582 (Tenn. Crim. App. Jan. 14, 2009), both of which we will consider.

In Vernita Freeman, the eleven-month-old victim had injuries consistent with being

shaken and hitting a wall. The defendant was charged, inter alia, with aggravated child

abuse and aggravated child neglect, based upon these injuries. This court concluded that the

proof was sufficient to establish aggravated child abuse but not neglect, for it showed that

the acts of abuse “produced the serious bodily injury to the minor victim.” Vernita Freeman,

2007 WL 426710, at *8. The court explained that “if the State is proceeding upon

alternative theories, the jury should be instructed that they can find the defendant guilty of

one or the other of the theories, but not both.” Id. at *9 n.2.

In Randy Lee Ownby, the defendant was indicted for two counts of aggravated child

abuse, two counts of aggravated child neglect, two counts of child abuse, two counts of child

neglect, two counts of aggravated assault, and two counts of reckless endangerment. The

injuries to the infant victim apparently were inflicted during a period of several months, from

the time of her birth on January 18, 2006, and her examination by a pediatrician on May 2,

2006. Randy Lee Ownby, 2009 WL 112582, at *1. In the trial of that matter, the victim’s

injuries were described as “three old rib fractures and three new rib fractures, all on the

posterior left side . . . three lower leg fractures; a fracture at the hip and a fracture around the

knee (both on the femur bone), and a fracture at the very end of the ankle . . . [and] one

additional new rib fracture, bringing the total of new left-side rib fractures to four.” Id. at

*5. The old and the new rib fractures were estimated to have been inflicted during a time

span of “approximately three to four weeks.” Id. The defendant was convicted of two

counts of aggravated child abuse and two counts of child abuse. The defendant argued on

appeal that the trial court erred in not providing an instruction that the jury must elect

34

between the offenses of aggravated child abuse and aggravated child neglect. Id. at *12.

Relying upon the holding in Vernita Freeman, the court concluded “the trial court had an

obligation to ensure that the jury was unanimous in its verdict,” and by not doing so, the

court committed reversible error. Id. at *17. These two cases are relevant only if we accept

the defendant’s view of the “mistake” in the State’s rebuttal, which we do not.

As for the defendant’s assertion that the verdicts for Counts 1 and 2 in the present

appeal are mutually exclusive, requiring reversals of both, we disagree.5 While the

defendant points to statements of the prosecution and the trial court that the charges involved

a crime which could be committed by two different means, such as felony murder or murder

first degree, we do not find that fact determinative. The child neglect charge was based upon

the defendant’s “ongoing course of conduct” in neglecting the welfare of the victim, “failing

to seek prenatal care,” and “delaying taking [the] baby to [the] hospital.” This “ongoing

course” included “depriving [the] victim of oxygen.” The child abuse charge was based

upon the claim that the “defendant knowingly deprive[d] the victim of oxygen after giving

birth.” Thus, the act which was the sole basis for the child abuse indictment was one of a

series in the “ongoing course of conduct” resulting in the child neglect charge. So, in that

sense, the State was alleging that the single act of depriving the victim of oxygen was alleged

to have been committed in two different ways. The defendant does not address this

possibility in her analysis asserting that the verdicts are mutually exclusive.

The State argues that since this claim was not raised in the trial court, it is waived for

purposes of appeal, absent plain error. We agree. See Tenn. R. App. P. 3(e) (providing for

waiver of issues not specifically stated in a motion for new trial); State v. Hatcher, 310

S.W.3d 788, 808 (Tenn. 2010) (stating that a defendant waives those issues not raised in a

motion for new trial and those issues are subject to plain error review). In order for us to

find plain error: (a) the record must clearly establish what occurred in the trial court; (b) a

clear and unequivocal rule of law must have been breached; (c) a substantial right of the

accused must have been adversely affected; (d) the accused did not waive the issue for

tactical reasons; and (e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). The presence of all five factors must be established

by the record before we will recognize the existence of plain error, and complete

5

To support her “mutually exclusively verdicts” argument, the defendant also relies on the holding

of this court in State v. Chris Jones, No. W2009-01698-CCA-R3-CD, 2011 WL 856375 (Tenn. Crim. App.

Mar. 9, 2011), perm. app. denied (Tenn. Aug. 25, 2011), which states that such verdicts occur when a jury

“‘necessarily reached two positive findings of fact that cannot logically mutually exist.’” Id. at *10 (quoting

Jackson v. State, 577 S.E.2d 570, 574 (Ga. 2003)). This holding was explained further in State v. Marlo

Davis, No. W2011-01548-CCA-R3-CD, 2013 WL 2297131, at *7-8 (Tenn. Crim. App. May 21, 2013), perm.

app. granted (Tenn. Nov. 13, 2013). However, as we have explained, the verdicts in this matter are not

mutually exclusive. Thus, application of this doctrine would not benefit the defendant.

35

consideration of all the factors is not necessary when it is clear from the record that at least

one factor cannot be established. Id. at 283.

Applying a plain error analysis does not benefit the defendant. While the defendant

is correct in setting out the State’s argument, we disagree with her as to the effect of that

argument. A “clear and unequivocal rule of law” was breached and a “substantial right of

the accused” was affected only if we accept the defendant’s interpretation of the State’s

rebuttal argument. We do not accept her view, and, accordingly, consideration of the matter

is not required because of a “clear and unequivocal rule of law” or “[a necessity] to do

substantial justice.”

This assignment is without merit.

IV. Convictions for Counts 1 and 2 Violate Double Jeopardy

The defendant similarly argues that her convictions for both aggravated child neglect

and reckless aggravated assault constitute double jeopardy because the bill of particulars

stated that Counts 1 and 2 included the same general conduct, depriving the victim of

oxygen. She acknowledges that she did not raise this issue in the trial court but that it affects

her substantial rights, and, therefore, we may consider it as “plain error.” The State responds

that the trial court’s merging the two convictions “eliminates or cures any double jeopardy

concerns because [the defendant] stands guilty and punishable of only one offense.” We

agree with the State.

As this court explained in State v. Zirkle, 910 S.W.2d 874, 889 (Tenn. Crim. App.

1995), any error in imposing two sentences for a single offense is cured by merging the

judgments:

Though the defendant[’s] initial convictions for both premeditated first

degree murder and felony murder subjected him to double jeopardy, the trial

court ultimately merged those convictions into a single conviction for

premeditated first degree murder. The jury also returned separate guilty

verdicts for both the felony murder and premeditated first degree murder,

indicating that the jury was satisfied that the proof supported a conviction for

either offense. Our independent review of the record leads us to the same

conclusion. Under similar circumstances, our supreme court held that while

it was error to impose two sentences for a single killing, vacating one of the

murder convictions cured the double jeopardy problem. State v. Hurley, 876

S.W.2d 57 (Tenn. 1993), cert. denied, 513 U.S. 933, 115 S. Ct. 328, 130 L.

Ed. 2d 287 (1994).

36

In State v. Eddie Medlock, No. W2000-03009-CCA-R3-CD, 2002 WL 1549707

(Tenn. Crim. App. Jan. 16, 2002), perm. app. denied (Tenn. July 1, 2002), this court

explained that “‘[a] trial court should instruct a jury to render a verdict as to each count of

a multiple count indictment which requires specific jury findings on different theories . . .

and if the jury does return a verdict of guilt on more than one theory . . . the court may merge

the offenses and impose a single judgment of conviction.’” Id. at *4 (quoting State v.

Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997)).

We conclude that the defendant’s claim that the verdicts are mutually exclusive is

without merit. The true issue, we believe, is whether double jeopardy rights are violated

when a defendant is tried for one offense, consisting of a series of acts, and a second offense,

based upon a single act, which is one of the series of acts of the first count, but alleged to

have been committed in a different fashion and is convicted as charged for the first offense

but of a lesser charge in the second. The defendant’s analysis considers not this issue but,

instead, whether a defendant’s double jeopardy rights are violated when she is convicted of

two indictments, based upon the same series of acts. As we have set out, we do not consider

this issue to accurately reflect the procedural posture of this case. Therefore, it is without

merit.

Finally, we reject the defendant’s claim that she was entitled to an instruction that she

could be convicted of only one of the offenses. This argument relies upon her interpretation

of the errant sentence in the State’s rebuttal argument. As we have set out, it does not

accurately reflect the procedural posture of this case. It, thus, is without merit.

As we have stated, the trial court entered judgments for both aggravated child abuse

and reckless aggravated assault, with the latter being merged into the former. The defendant

argues that her double jeopardy rights were violated by the dual convictions and that the

violation is not rectified by the merger. As we have set out, our view of the bases for these

two verdicts differs from that of the defendant. Her arguments are predicated upon the view

that the neglect and assault charges are based upon the same multiple claims. We disagree.

The issue presented by this case is whether both convictions may stand when the neglect

charge is based upon a series of claims, while the assault charge is based upon one of the

claims in the series, but alleges an alternative manner in which it was done. The parties have

not squarely dealt with this issue.

However, the State has not argued that the court erred by this merger and that both

verdicts should stand. Accordingly, we will consider only the defendant’s claim that a single

judgment should have been filed, reflecting the merger. We agree with this argument. In

State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997), this court held that “the

trial court’s entry of only one judgment of conviction imposing only one sentence of life

imprisonment protects the defendant from receiving multiple punishments for the same

37

offense.” Applying the holding in Addison, we remand this matter to the trial court for entry

of a single judgment, for the offense of aggravated child neglect and reflecting that the

conviction for reckless aggravated assault was merged into it.6

V. Error in Allowing Testimony by Dr. Reece

The defendant’s next three issues are interrelated ones that revolve around the

testimony of Dr. Reece. The defendant contends that the trial court “committed error upon

error” regarding Dr. Reece’s testimony “that resulted in the jury hearing inadmissible expert

opinion testimony akin to that deemed unreliable in Ward.” She argues the trial court erred

in the following ways: (1) by allowing the State to provide its experts with “any information

whatsoever about Stephen and Stephanie Ward” because, “[a]lthough Dr. Reece testified that

experts in his field considered sibling medical history and ‘social history’ to evaluate injury

causation, he never explained how that information provided a reliable foundation for

opinions on that issue”; (2) by denying her motion to disqualify Dr. Reece from testifying

after the State provided him with highly prejudicial information about the manner of death

of the other children, in direct violation of the trial court’s orders; (3) by not limiting Dr.

Reece’s trial testimony to the narrow scope permitted by the trial court’s pretrial order; (4)

by denying the defendant a McDaniel hearing on the admissibility of Dr. Reece’s opinions;

and (5) by admitting Dr. Reece’s testimony when it did not qualify as “expert opinion

testimony” under Tennessee Rules of Evidence 702 and 703.

To aid in an understanding of these issues, we must review exactly what transpired

with respect to Dr. Reece’s testimony, both before and during the trial. As we have

previously set out, the trial court entered an order early in the pretrial period that specified

exactly what information could be furnished to Dr. Reece:

As for the other information referenced by Dr. Reece, the Court finds

it appropriate to provide any proposed experts[’] information regarding (1)

information about the pregnancy as well as how many pregnancies the mother

had experienced prior, (2) information about previous labors, (3) health of the

mother during the pregnancy, (4) length of labor, (5) all of the [victim’s]

medical records including information related to blood glucose levels (noting

greater than 260 indicates the baby is stressed generally from cardio-adrenal

6

At trial, both parties agreed that the verdicts should be merged, an opinion which the State has

continued on appeal. The defendant now argues her conviction as to Count 2, being the lesser offense, should

be vacated. We have directed that a single judgment be entered, reflecting the conviction for Count 1. The

issue as to whether, given the unique specific claims of the bill of particulars, the court could have determined

that both verdicts stand and that merger was not required, is not before this court. Therefore, we take no

position on that issue.

38

stimulation), heart and lung information, and brain wave test results, (7)

medical histories of any other children born to the mother including cause of

death without indicating manner of death is anything other than undetermined,

and (8) any statements [d]efendant provided to medical personnel or law

enforcement regarding her pregnancy and birth of [the victim] as well as any

statements [d]efendant provided to medical personnel or law enforcement

regarding the births of her other children.

Dr. Reece subsequently provided a report in which he mentioned the defendant’s

having had two other children who suffered unexplained deaths, one of which had been

“actually diagnosed as a smothering death.” In response, on March 11, 2009, the defendant

filed a motion to disqualify Dr. Reece from testifying as an expert witness, asserting that the

State had violated the trial court’s order by providing prohibited information to him,

including information that she had been charged with murder for smothering two of her

children.

After holding a hearing, the trial court entered an order on July 24, 2009, in which it

found that the State had committed “multiple violations” of the court’s order in the

documents provided to Dr. Reece. The trial court noted that the packet of materials provided

to Dr. Reece contained “multiple references to homicide,” and that the State had even

conceded in its response to the motion that it had provided Dr. Reece with information that

the defendant was indicted and charged with homicide in the deaths of Stephen and

Stephanie Ward and that she was under various bond conditions in connection with those

charges. The trial court listed the “most egregious examples” of the State’s violation of its

order as follows:

• Document prepared by State titled “Summary of Charges–State

vs. Vernica Ward, AKA Vernica Jackson, AKA Vernica

Calloway CPN 06-647786” where the State sets forth

Defendant’s pending charges in case no. 2004-D-2901,

explicitly stating that Defendant is charged with first degree

murder and aggravated child abuse due to the allegation “she

smothered two of her other children.”

• Affidavit in Support of Search Warrant noting in the statement

of facts in support of probable cause that “Affiant learned that

the [Defendant] is currently out on bond awaiting trial in the

death of another child that she gave birth to.”

• Tennessee Bureau of Investigation[] Request for Examination

form that lists Stephanie Madi Ward as the victim and indicates

39

the type of offense being investigated as “Hom[i]cide /Murder.”

The trial court additionally noted that the State had provided a number of other

“curious[ly]” redacted documents to Dr. Reece that “demonstrate strategic redaction where

the State engaged in a partial redaction but left words implying suspicious activity that

would lead the reader to infer that medical examiners had ruled death of other children being

a result of some type of criminal act[.]”

The trial court concluded, however, that the proper remedy for the State’s violations

of its order was not to exclude Dr. Reece’s testimony, but instead to limit its scope.

Specifically, the court ruled that Dr. Reece could testify regarding his opinion that the victim

suffered hypoxia after her birth but could not testify that she was intentionally suffocated

unless the State could show that his opinion was based only on information he received that

had been authorized by the court. The trial court’s ruling states in pertinent part:

Considering the totality of the circumstances in this case, the Court

finds it must ameliorate this situation in a way that is fair to both parties. The

State has already incurred much expense attempting to locate an[] expert and

requiring the State to start from scratch again would further delay Defendant’s

right to a trial. The State, however, did violate this Court’s orders and must

not benefit from this violation. Accordingly, the Court finds that Dr. Reece

is permitted to testify to limited portions of his report.

Specifically, the first seven paragraphs of Dr. Reece’s report that

describe the medical history of [the victim] as well as Defendant’s statements

regarding the birth of [the victim]. All of this information was permitted to be

provided to Dr. Reece. Based on this information, Dr. Reece concluded that

[the victim] was breathing at birth and that the injuries were a result of

hypoxia after birth rather than an injury incurred during the home birthing

process. Thus, Dr. Reece is permitted to testify as to this opinion.

However, in paragraphs eight through ten of his report, Dr. Reece refers

to the deaths of Defendant’s other two children, Stephen and Stephanie Ward,

commenting that Stephanie was “smothered.” In these paragraphs, Dr. Reece

appears to be referencing the “rule of three,” which has been previously

litigated. Based on his knowledge of the events surrounding Stephen Ward

and particularly Stephanie Ward’s deaths, he offers the additional opinion that

[the victim’s] hypoxic brain damage resulted from “intentional suffocation by

her mother.” This opinion is not admissible for two reasons. First, unless the

State can demonstrate otherwise, Dr. Reece based his opinion that [the victim]

was “intentionally suffocated” on the facts surrounding Stephen Ward and

40

particularly Stephanie Ward’s deaths (as noted in paragraphs eight through ten

of his report). Second, it is not Dr. Reece’s position to make a legal

conclusion as to who cause[d] the intentional suffocation. As a medical

expert, he may be able to conclude based on the facts that a victim was

intentionally suffocated but that does not allow him to invade the jury’s

province to determine who caused the intentional smothering.

Accordingly, the Court finds that Dr. Reece is limited to testifying to

the medical history of [the victim] (for example, he can explain to the jury in

layman’s term[s] what hypoxia means and how it is caused) and offer his

opinion that [the victim’s] hypoxic brain damage resulted after birth (that is,

it did not occur during the birth of [the victim]). Unless the State is able to

demonstrate to this Court that Dr. Reece formulated his opinion that [the

victim] was intentionally asphyxiated, or smothered, independent of any

knowledge as to the manner of either Stephen or Stephanie[] Ward[’s death]

possibly being a homicide, he is prohibited from testifying on this issue.

Regardless of whether the Court is persuaded that Dr. Reece may testify that

the injuries are a result [of] intentional suffocation, Dr. Reece is prohibited

from testifying that the suffocation was caused by “her mother, the only

person with her at the time.”

On May 24, 2010, a few weeks prior to trial, the defendant filed a “Motion to Limit

Dr. Reece’s Testimony to Matters Approved” by the court’s above ruling, noting that the

State had not provided any updated expert witness reports or data to show that Dr. Reece

formulated his opinion that the victim died of intentional suffocation independently of his

information about the deaths of the victim’s siblings, and asserting that any attempt by the

State to do so at such a late date would unfairly prejudice the defendant’s ability to defend

herself at trial.

On June 3, 2010, the defendant filed a motion for a jury-out hearing for the court to

determine whether the opinions Dr. Reece intended to offer in the case were based on

reliable scientific evidence or mere speculation and whether his opinions fell within his

specific area of expertise. In the motion, the defendant specifically referenced Dr. Reece’s

opinion in his report that the victim was born healthy and suffered a hypoxic injury

sometime after her birth, arguing that such an “opinion” was based merely on Dr. Reece’s

speculation rather than on reliable scientific evidence.

In a June 4, 2010 hearing held before the June 7 start of the trial, defense counsel

argued for the necessity of a jury-out hearing to determine whether Dr. Reece’s testimony

would involve opinions that exceeded the scope of his expertise since he was a pediatrician

rather than a neonatologist. The trial court denied the motion, finding that Dr. Reece’s

41

speciality went more towards the weight of his testimony rather than its admissibility. The

trial court additionally ruled that it would hold a hearing outside the presence of the jury to

consider whether it would allow Dr. Reece to testify as to any opinions that went beyond the

first seven paragraphs of his report.

On June 9, 2010, the third day of trial, the trial court held a jury-out hearing at which

Dr. Reece testified that his knowledge the defendant had been indicted in connection with

the deaths of her other children in no way influenced the opinions he formed regarding the

victim’s injury and that his opinion regarding the victim’s injury was “independent of those

things.” He further testified that he was familiar with the “rule of three” but had not relied

on it in reaching his opinions in the case.

On cross-examination, he testified that he believed that “independent of that past

history that [he] was supplied that [he] still would have come to the same conclusions about

[the victim’s] reason for her hypoxic injury.” Upon further cross-examination, he reiterated

that even if he had not received the prohibited information, he would still have rendered an

opinion that it was a case of intentional asphyxiation, based not on any medical findings or

tests but, instead, on the defendant’s behavior and the circumstances surrounding the

pregnancy and birth, which, due to his years of experience in child abuse cases, led him to

conclude that she had either malignantly neglected or intentionally suffocated the victim

after her birth:

Q. All right. And is it your opinion that that – is it your testimony that

that opinion [that the victim was intentionally suffocated] is based on medical

science and that you can prove that or that that’s just your opinion?

A. Well, it’s my opinion. I don’t think anyone can prove exactly what

happened to this child at that time. I just don’t think that’s possible. Medical

science notwithstanding. I don’t think anyone was there, and I don’t think that

anyone except the mother knows exactly what happened. However in the

absence of other findings, other reasons to believe that this child had a

suffocatory event after birth, that is by aspiration of secretions or by

overlaying when the mother became unconscious. The only conclusion that

one can reach in my opinion from a common sense standpoint is that she

probably had her hand over the mouth and nose of this baby and suffocated

the baby. Now, can I say that with absolute certainty with medical science to

prove it? No. Nobody can. And I don’t think that anybody can say that it

didn’t happen. That’s the problem with this case. No one was there. This

was an unwitnessed event. And so I think we are left with what we have, with

what we know. And my conclusion on the basis of that is that she most likely

suffocated the baby intentionally.

42

Q. And when you say “most likely,” is that fifty-one, forty-nine or is

that just - -

A. No, it’s simply a matter of I can’t be a hundred percent sure, which

is what I just finished saying. I can’t be absolutely sure. But if I have to make

a judgment about what happened to this baby, it would be that.

Q. And you can make that judgment without relying upon any

information related to the social history just upon the circumstances

surrounding [the victim’s] birth?

A. Yes, yes. Well, I think the social history surrounding the absence

of prenatal care, the concealment of the pregnancy, the fact that she didn’t

seek medical attention by calling 911, the fact that she went to the hospital

several hours after the delivery of the baby. The whole peculiar nature of her

response to this baby’s birth all come together for me as a pediatrician who

has seen many, many kids being born both inside and outside of the hospital

– it’s just the whole constellation of the picture tells me that my conclusion is

probably right.

Q. And you’re basing that conclusion on essentially an aggregation of

factors that you would consider?

A. Of the factors that we know.

Q. Okay. Prior DCS involvement with the mother?

A. I didn’t even consider that at this point. I think that taking this

delivery in a toilet in a locked bathroom and then concealing the fact that this

baby had been delivered and not taking this baby for appropriate medical care

immediately after the delivery all speak to me as to be almost a malignant

neglect if not intentional suffocation.

Q. And that’s your opinion?

A. That’s my opinion. That’s what you asked me.

Q. Right. But not based on any medicine?

A. You’re not going to base this on medical thing [sic]. It’s just not

going to be possible by medical science to prove this one way or the other.

43

Q. Is it as you said earlier a matter of common sense?

A. It’s not common sense, but it’s certainly a good aggregate thinking

about all of the circumstances of this situation.

Q. Do you think that thinking jurors are capable of doing it themselves

without the assistance of an expert?

A. I’m not going to opine that. I don’t know.

Q. Is there any particular expertise that you have in this area that

renders you more capable of doing that than jurors?

A. Oh, I think so. I’ve spent almost fifty years as a physician. I’ve

seen many, many, many cases, and I have specialized in child abuse for the

last thirty years. Yes, I do think I have an expertise that’s beyond the average

juror. But . . . I don’t think that jurors are unable to form opinions about what

happens in these kinds of cases.

Upon questioning by the trial court, Dr. Reece said that he could testify without

reference to the information he had received about Stephanie and Stephen Ward’s deaths but

that he thought such information would be helpful to aid the jury in understanding the case

because it established “ a pattern of things.” When the court pointed out that he would be

getting into unauthorized propensity evidence if he did so, he assured the court that he could

testify about the victim’s injury without mentioning the asphyxiation deaths of her siblings

or his opinion that the defendant was the person responsible for the intentional asphyxiation

of the victim.

At the conclusion of the hearing, the trial court qualified Dr. Reece as an expert in the

field of pediatrics and child maltreatment and ruled that he would be allowed to testify as to

his opinion that the victim’s hypoxic injury occurred as the result of an intentional

suffocation, so long as he did not refer to the circumstances surrounding the deaths of the

victim’s siblings or offer his opinion that the defendant was the individual responsible for

the injury.

On appeal, the defendant first argues that the trial court erred by ruling that the State’s

experts could be provided with any information about the deaths of the victim’s siblings,

asserting that Dr. Reece failed to testify at the pretrial hearing how such information was

reliable. We respectfully disagree.

Tennessee Rule of Evidence 703, “Bases of Opinion Testimony by Experts” provides

44

in pertinent part:

The facts of data in the particular case upon which an expert bases an

opinion or inference may be those perceived or known to the expert at or

before the hearing. If of a type reasonably relied upon by experts in the

particular field in forming opinions or inferences upon the subject, the facts

or data need not be admissible in evidence. . . . The court shall disallow

testimony in the form of an opinion or inference if the underlying facts or data

indicate lack of trustworthiness.

At the April 21, 2008 pretrial hearing, Dr. Reece had testified that it would be

important to an expert in his fields of pediatrics and child maltreatment to have access to the

social and medical history of the victim’s siblings and the defendant’s prior pregnancies,

including any history of spontaneous abortions, in order to eliminate a medical or genetic

cause of the victim’s injury and to determine if the injury was accidental or non-accidental.

He described in detail how such information would be important to an expert such as himself

and testified that it was routine in his field of practice to look at such medical records, which

he described as “usually very reliable.” We conclude, therefore, that the record supports the

ruling of the trial court that Dr. Reece could be provided with the medical histories of the

victim’s siblings.

The defendant next argues that the trial court erred by not disqualifying Dr. Reece as

a witness following the State’s violation of the court’s order regarding the type of

information it could provide to him about the deaths of the victim’s siblings. We, again,

respectfully disagree. In our view, the trial court, in its original order, fashioned an

appropriate remedy for the violation by limiting Dr. Reece’s testimony to the information

contained in the first seven paragraphs of his report.

The defendant next argues that the trial court erred by its reversal of its order limiting

Dr. Reece’s testimony to the narrow scope permitted by the court’s pretrial order, by denying

her a McDaniel hearing on the admissibility of Dr. Reece’s opinion that the victim’s injury

resulted from intentional suffocation, and by admitting Dr. Reece’s testimony when it did

not qualify as “expert opinion testimony” under Tennessee Rules of Evidence 702 and 703.

The admission of expert testimony is governed by Tennessee Rules of Evidence 702

and 703. Rule 702 provides that “[i]f scientific, technical, or other specialized knowledge

will substantially assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience, training, or education

may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. Rule 703 provides

that expert testimony shall be disallowed “if the underlying facts or data indicate lack of

trustworthiness.” Tenn. R. Evid. 703.

45

In McDaniel, 955 S.W.2d at 265, our supreme court recited several nonexclusive

factors that a court may consider in determining the reliability of scientific testimony,

including:

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

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

review or publication; (3) whether a potential rate of error is known; (4)

whether . . . the evidence is generally accepted in the scientific community;

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

independent of litigation.”

Brown v. Crown Equipment Corp., 181 S.W.3d 268, 274 (Tenn. 2005) (quoting McDaniel,

955 S.W.2d at 265). The Brown court identified two other factors that a trial court may

consider in assessing the reliability of an expert’s methodology: (1) the expert’s

qualifications for testifying on the subject at issue, and (2) the connection between the

expert’s knowledge and the basis for the expert’s opinion. Id. (citations omitted).

“[T]he allowance of expert testimony, the qualifications of expert witnesses, and the

relevancy and competency of expert testimony are matters which rest within the sound

discretion of the trial court.” State v. Rhoden, 739 S.W.2d 6, 13 (Tenn. Crim. App. 1987)

(citing Murray v. State, 377 S.W.2d 918, 920 (Tenn. 1964); Bryant v. State, 539 S.W.2d

816, 819 (Tenn. Crim. App. 1976); State v. Holcomb, 643 S.W.2d 336, 341 (Tenn. Crim.

App. 1982)). As such, we will not disturb the trial court’s ruling absent a clear showing that

it abused its discretion in admitting the testimony. Id.; State v. Stevens, 78 S.W.3d 817, 832

(Tenn. 2002).

We disagree that the trial court erred by not holding another hearing on the

admissibility of Dr. Reece’s opinions or by admitting Dr. Reece’s experience-based

testimony as expert opinion testimony. As the State points out, the trial court held a

McDaniel hearing on April 21, 2008, followed by a number of additional evidentiary

hearings, including the one held after the start of the trial, at which it considered the

reliability and admissibility of Dr. Reece’s opinion testimony. Moreover, Dr. Reece

established at the mid-trial hearing that he was basing his opinions rendered in the case on

his years of experience as a pediatrician and expert in child maltreatment. Based upon this

testimony, the trial court determined that an additional McDaniel hearing was not required

and Dr. Reece could testify that, with the surrounding facts, as he explained, the suffocation

was intentional, in his professional opinion. In her reply brief, the defendant argues that the

April 21, 2008 hearing was not a McDaniel hearing, for Dr. Reece did not issue his final

report “until much later.” We disagree with the defendant’s analysis as to a McDaniel

hearing and conclude that the record supports the trial court's determination.

46

Additionally, the defendant argues that she was prejudiced by the court’s

determination, during the trial, that Dr. Reece would be permitted to testify that, in his

professional opinion, the smothering of the victim was an intentional act. As we have set

out, there was abundant circumstantial evidence, even absent the testimony of Dr. Reece,

from which the jury reasonably could have determined that the defendant intentionally

suffocated the victim. Accordingly, we conclude that this assignment of error is without

merit.

VI. Error in Allowing “Learned Treatise” Evidence

The defendant next contends that the trial court erred by allowing the State to

introduce as substantive evidence a July 2006 article entitled “Distinguishing Sudden Infant

Death Syndrome From Child Abuse Fatalities,” which was a joint publication of the

American Academy of Pediatrics and the National Association of Medical Examiners. In

support, the defendant cites, among other things, Tennessee Rule of Evidence 618, which

provides in pertinent part that “statements contained in published treatises . . . established as

a reliable authority . . . may be used to impeach the expert witness’s credibility but may not

be received as substantive evidence.” The State concedes that the trial court erred in

admitting the evidence, arguing the error was harmless, and we agree. In this regard, the

State asserts that the article was admissible not to bolster the testimony of Dr. Reece, but

rather to explain his reasons for requesting the information which he did regarding this

matter. We agree and conclude, as did the State, that the trial court erred in allowing this

article into evidence but that its admission was harmless.

VII. Errors in Allowing Irrelevant, Confusing,

Misleading, and Prejudicial Evidence

The defendant next contends that the trial court committed reversible error by

admitting “irrelevant, confusing, misleading, and unfairly prejudicial evidence” about the

defendant’s other children and her actions in the months and days before the victim’s birth.

She further contends that the trial court erred by not instructing the jury on how it could

consider the evidence and by failing to limit the State’s arguments about the evidence.

Specifically, the defendant complains about the introduction of evidence of her concealment

of her pregnancy with the victim, of the false and inconsistent statements she gave about her

pregnancy history, of her refusal to give the DCS employee the names of her other children,

and of the history of her previous pregnancies, including the prenatal care she received

during those pregnancies and her home delivery in 2001. The defendant argues that the trial

court should have excluded the evidence under Tennessee Rules of Evidence 401, 402, 403,

and 404(b) as irrelevant, misleading, unfairly prejudicial, and prohibited “bad act” evidence

whose prejudicial effect outweighed any probative value.

47

Relevant evidence is “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Tenn. R. Evid. 401. All relevant evidence, subject to

certain exceptions, is generally admissible under Rule 402 of the Tennessee Rules of

Evidence. Relevant evidence may be excluded if “its probative value is substantially

outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403.

Tennessee Rule of Evidence 404(b) provides as follows:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action

in conformity with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing such

evidence are:

(1) The court upon request must hold a hearing outside the jury’s

presence;

(2) The court must determine that a material issue exists other than

conduct conforming with a character trait and must upon request state on the

record the material issue, the ruling, and the reasons for admitting the

evidence;

(3) The court must find proof of the other crime, wrong, or act to be

clear and convincing; and

(4) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

Exceptional cases in which evidence of an accused’s prior bad acts will be admissible

include those in which the evidence is introduced to prove identity, intent, motive,

opportunity, or rebuttal of mistake or accident. State v. Drinkard, 909 S.W.2d 13, 16 (Tenn.

Crim. App. 1995); see also Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[7][a] (5th

ed. 2011). Where the trial judge has substantially complied with procedural requirements,

the standard of review for the admission of bad act evidence is abuse of discretion. State v.

DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). Because the trial court in this matter complied

with the requirements of Rule 404(b), we review its rulings under an abuse of discretion

standard.

Following the pretrial hearing, the trial court found that evidence that the defendant

concealed her pregnancy with the victim was “clear and convincing,” was relevant for the

48

State to prove the defendant’s motive and intent, and that the probative value of the evidence

outweighed the possible prejudice from its admission. We conclude that the record supports

this determination by the trial court.

The trial court, likewise, found that evidence of the defendant’s having given false and

inconsistent information about her pregnancy and having refused to provide the names of her

other children was clear and convincing, relevant to establish the defendant’s motive and

intent, and that its probative value outweighed its prejudicial effect. The defendant asserts

that the trial court failed to state for the record how the defendant’s having refused to provide

the names of her children to DCS employee Gooch was relevant to any issue at trial. In our

view, however, the trial court’s ruling that the evidence went “to the issues of her

concealment, . . . hampering the investigation and of providing false information” contains

an implicit finding that such evidence, similar to the defendant’s having provided false and

misleading information to health professionals about her pregnancy, was relevant to show

the defendant’s motive and intent. We conclude, therefore, that the trial court did not err in

admitting the evidence.

The defendant also complains about the trial court’s having admitted evidence about

the defendant’s prior pregnancies, prenatal care in those pregnancies, and alleged home

delivery of a child in 2001. The defendant argues that such evidence, among other things,

was irrelevant to any material disputed issue at trial, was misleading to the jury, and that its

prejudicial effect substantially outweighed any probative value.

Our supreme court explained in State v. James, 81 S.W.3d 751, 760 (Tenn. 2002), the

role of the appellate court in reviewing evidentiary rulings of the trial court:

Rulings on the admissibility of evidence are largely within the sound

discretion of the trial court, and on appellate review, a trial court’s ruling to

admit or exclude evidence will not be disturbed unless it appears that such a

ruling amounts to an abuse of that discretion. [State v.] DuBose, 953 S.W.2d

[649,] 652 [(Tenn. 1997)]. . . . “‘[A]n appellate court should find an abuse of

discretion when it appears that the trial court applied an incorrect legal

standard, or reached a decision which is against logic or reasoning that caused

an injustice to the party complaining.’” State v. Stevens, 78 S.W.3d 817

(Tenn. 2002) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

The trial court found that evidence of the defendant’s prenatal care during previous

pregnancies was relevant to the defendant’s “history about this pregnancy and whether or not

she sought care and whether or not she had knowledge that she was needing care.” The court

found that evidence of the defendant’s statements about her prior prenatal care was relevant

“to show that she knows what she’s supposed to do and she did or did not do it.” The court

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found evidence of her alleged home birth in 2001 was relevant to show “negligence and/or

other than by accidental means” and that its probative value outweighed any unfair prejudice.

As we have previously discussed, the defendant’s lack of prenatal care with the victim

does not constitute a crime under the child abuse and neglect statutes. However, evidence

about her prior pregnancies, prenatal care, and childbirths was arguably relevant to show that

the defendant was familiar with pregnancy and the birthing process and therefore should

have recognized what was happening to her body on October 31, 2006, in time to seek help

for herself and the victim. Thus, we cannot find that the trial court abused its discretion in

admitting the evidence. Moreover, even if the evidence was admitted in error, we have no

hesitation in concluding that it was harmless error. Tenn. R. App. P. 36(b).

We further conclude that the trial court did not err in not instructing the jury as to how

it could consider the evidence or in not limiting the State’s arguments with respect to the

evidence. The defendant is not, therefore, entitled to relief on the basis of this issue.

VIII. Error in Not Redacting Portions of the Defendant’s Statement to Police

The defendant contends that the trial court erred by denying her motion to redact

portions of her interviews with the police and DCS. Specifically, she argues that the trial

court erred by not redacting her statements about the prenatal care she received during her

pregnancies with two other children and not redacting the final several minutes of her

interview, in which, according to the defendant, her expressions of concern about what was

going to happen to her “created a significant and unfair danger that the jury would

misinterpret her reaction as an overreaction of guilt.”

The record reflects that, after an earlier hearing, the trial court suppressed portions of

the interviews in which the defendant spoke about the deaths of the three children. At a June

4, 2010 hearing, the State agreed to redact other portions of the statements, and the trial court

ordered that the defendant’s comment that it seemed as if everyone was out to get her should

be redacted from the statement. The trial court ruled that the defendant’s statements about

her prenatal care with other pregnancies, the fact that she had two other children who lived

in Nashville, and the defendant’s comments about how she did not know what to say and her

mind was racing should be left in the statement. We can find no error in these rulings.

Accordingly, we conclude that the defendant is not entitled to relief on the basis of these

issues.

IX. Error in Allowing Testimony by Victim’s Foster Mother

The defendant contends that the trial court erred “by allowing the State to introduce

irrelevant and highly prejudicial testimony from the alleged victim’s foster mother.” The

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defendant argues that Ms. Frazier-Weir’s testimony about the victim’s injury was irrelevant

because she did not begin caring for the victim until more than two years after the alleged

injury occurred, and the State had already “clearly established that [the victim] suffered a

permanent injury through the undisputed testimony of the neonatologists.” She further

argues that even if Ms. Frazier-Weir’s testimony was somehow relevant, its probative value

was substantially outweighed by the unfair prejudice it created, asserting that Ms. Frazier-

Weir’s testimony essentially amounted to improperly admitted “victim impact evidence” that

was designed to draw on the jurors’ sympathies and emotions.

We disagree that Ms. Frazier-Weir’s testimony about the victim’s mental and physical

impairments was irrelevant to the issue of whether she had suffered a permanent, serious

injury or that Ms. Frazier-Weir’s descriptions of the victim amounted to improper victim

impact evidence. Moreover, even if it were error to admit the evidence, we would conclude

that it was harmless.

X. Excessive Sentence

Finally, the defendant contends that the trial court imposed an excessive sentence by

erroneously concluding that she was a violent offender and by imposing the maximum

sentence within the range.

Under the 2005 amendments to the sentencing act, a trial court is to consider the

following when determining a defendant’s sentence and the appropriate combination of

sentencing alternatives:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s own behalf

about sentencing.

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Tenn. Code Ann. § 40-35-210(b) (2010).

The trial court is granted broad discretion to impose a sentence anywhere within the

applicable range, regardless of the presence or absence of enhancement or mitigating factors,

and “sentences should be upheld so long as the statutory purposes and principles, along with

any enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380

S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s sentencing

determinations under an abuse of discretion standard, “granting a presumption of

reasonableness to within-range sentencing decisions that reflect a proper application of the

purposes and principles of our Sentencing Act.” Id. at 707.

The State concedes that the defendant should not have been sentenced as a violent

offender because aggravated child neglect was held in Dorantes to be a separate offense from

aggravated child abuse, and aggravated child neglect is not one of the enumerated felonies

in Tennessee Code Annotated section § 40-35-501(i)(2) that requires 100% service of the

sentence. We agree that the defendant should have been sentenced as a Range I, standard

offender to serve her sentence at 30% release eligibility rather than as a violent offender at

100% release eligibility.

In sentencing the defendant to the maximum sentence within the range, the trial court

found the following enhancement factors applicable: (1) that the defendant had a previous

history of criminal convictions, based upon her prior theft conviction; (4) that the victim was

particularly vulnerable because she was a new baby born at home; and (14) that the

defendant abused a position of trust. See Tenn. Code Ann. § 40-35-114(1), (4), (14). We

conclude that the trial court’s finding of these enhancement factors and its imposition of the

maximum sentence within the range fell within its broad discretion in sentencing. Thus,

although we affirm the length of the sentence, we remand for entry of an amended judgment

setting the defendant’s release eligibility at 30%.

CONCLUSION

Based upon the foregoing authorities and reasoning, we remand this matter for entry

of a single judgment reflecting that the defendant’s sentence is to be served with a 30%

release eligibility. In all other respects, the judgment of the trial court is affirmed.

_________________________________

ALAN E. GLENN, JUDGE

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