State of Tennessee v. Calvin Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 6, 2014

STATE OF TENNESSEE v. CALVIN JONES

Appeal from the Criminal Court for Shelby County

No. 11-06965, 12-01373 Carolyn W. Blackett, Judge

No. W2013-00881-CCA-R3-CD - Filed July 31, 2014

The Defendant, Calvin Jones, was convicted by a Shelby County jury of aggravated child

abuse and first degree felony murder, for which he received concurrent sentences of 20 years

and life imprisonment. In this appeal, the Defendant argues that the evidence is insufficient

to sustain his convictions. Additionally, he argues that the trial court erred in permitting Dr.

Karen Lakin to testify as an expert witness and erred in admitting autopsy photographs of the

victim. Upon our review, we affirm the judgments of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,

P.J., and A LAN E. G LENN, J., joined.

Marvin Ballin and Richard S. Townley, Memphis, Tennessee, for the Defendant-Appellant,

Calvin Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Carrie Shelton, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

This appeal stems from the death of two-year old Saniiyah Kuykendall (“the victim”)

on May 15, 2010. The Defendant and his girlfriend, Anisha Alford, were subsequently

indicted on charges related to the victim’s death. At trial, Ms. Alford testified on behalf of

the State; however, the record is silent as to the disposition of her case.

State’s Proof. Lynette Richardson and Charlene Angelina Logan testified that in the

spring of 2010 the victim and her brothers regularly attended their home daycare center,

Hosanna’s Little Angels. On Friday, May 14, 2010, the day before the victim’s death, the

victim and her brothers were dropped off at daycare by their mother at 8:50 a.m. and picked

up by the Defendant at 5:45 p.m. Ms. Logan testified that the victim had not been sick that

day or the week leading up to her death. She recalled that the victim acted “normal” at

daycare and played with the other children as she usually did. She did not complain of any

illnesses or pain. Ms. Logan testified that when a child was sick at daycare, her policy was

to immediately contact the parents.

Ms. Richardson testified that the victim was not “fully potty trained,” which was not

uncommon for a child around the victim’s age. The victim had “an accident” around 2:00

p.m. that day when she soiled her pants. Ms. Logan cleaned up the victim and put a diaper

on her because her parents had failed to provide a change of clothes for her. Ms. Logan

reported the accident to the Defendant that afternoon when he picked up the victim and her

brothers. Ms. Logan did not observe any of the other children strike the victim while at

daycare, and by law, she did not have permission to spank or physically discipline the

children. She testified that when the victim left the daycare center, she did not have anything

wrong with her arm and was not bleeding or clutching her stomach. Ms. Richardson testified

that when the victim left the daycare center, the victim did not have any bruises on her head,

buttocks, or chest; she was not having any noticeable breathing problems; and she was not

cold to the touch. Ms. Richardson also testified that the victim had not vomited or had

diarrhea and had not spit up any blood while at daycare. Both Ms. Richardson and Ms.

Logan gave statements to the police following the victim’s death.

Barneka Lewis, Anisha Alford’s cousin, testified that on May 14, 2010, she and Ms.

Alford dropped off her son and Ms. Alford’s three children at daycare. She recalled that the

victim acted “normal” that morning before daycare and was “playful” and “cheerful like the

rest of the kids.” The Defendant and Ms. Alford agreed to watch Ms. Lewis’s son after

daycare while she was still at work, so she dropped off her son at their apartment around 5:00

p.m. She returned around 11:00 p.m. to pick up her son. When she arrived at their

apartment, Ms. Alford met her at the door holding the victim in her arms. Ms. Alford was

crying and told her that something was wrong with the victim. Ms. Lewis testified that the

victim was cold to the touch, had a “knot” on her back, and had a bruise on her face. She

also recalled that the victim had difficulty breathing and vomited a clear liquid. She did not

observe anything wrong with the victim’s arm, but she recalled that Ms. Alford had

previously told her that the victim had broken her arm and that it was not healing properly.

Ms. Lewis offered to watch the other children so that Ms. Alford and the Defendant

could take the victim to the hospital. She testified that Ms. Alford initially accepted her offer

but changed her mind after talking with the Defendant. She offered to watch the other

children a second time in front of the Defendant, but he told her that the victim was “just

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tired” and needed to “lay down and get her rest.” Ms. Lewis testified that she deferred to the

Defendant’s and Ms. Alford’s decision because “they knew [the victim] better than [she]

did.” The following day, the Defendant called Ms. Lewis to tell her that the victim had died.

She recalled that the Defendant said that he wished it had been him instead of the victim.

Anisha Alford, the victim’s mother, testified that in May 2010, she lived with the

Defendant and her three children. She testified that the victim was not the Defendant’s

biological child. She denied that she had entered an agreement with the State for her

testimony in the Defendant’s trial.

Ms. Alford testified that the victim was two years old at the time of her death. She

described the victim as “a typical two year old” who could walk, run, jump, and talk. Ms.

Alford testified that on the morning of May 14, 2010, the victim “was being herself,” talking

and playing. She was not sick, and Ms. Alford did not observe any bruises on the victim

before she dropped her off at daycare. Ms. Alford testified that the daycare center typically

called her if any of her children became ill; she did not receive a call from the daycare center

that day. She spoke to the Defendant after he picked up the children from daycare, and he

informed her that the victim had soiled herself and had been acting up at daycare so he had

“popped her on her butt.”

Ms. Alford testified that she did not drive and had to rely on others to get to and from

work. On the evening of May 14, 2010, the Defendant picked her up from Wal-Mart after

her shift around 8:00 p.m. He was late in picking her up and explained to Ms. Alford that

the victim had soiled herself again and he had to “clean that sh-t up.” Ms. Alford testified

that the victim was “sort of potty[-]trained” and would have “accidents every now and then,”

which angered the Defendant. When Ms. Alford got into the car, she noticed that the victim

was “kind of slump[ed] down in the backseat” and spit up on herself as they were driving.

She asked the Defendant if they should take her to the hospital, and he told her that the victim

was not acting like that before Ms. Alford got into the car and was “just acting” for attention.

She testified that it was not normal for the victim to be slumped over but because the

Defendant was not concerned with her condition, Ms. Alford did not insist that they take her

to the hospital.

When they arrived at their apartment, Ms. Alford noticed that the victim was walking

very slowly and was not talking, which was unusual. Once inside, the victim did not play

with the other children as she normally would and instead sat down beside Ms. Alford on the

couch. Because the victim was not feeling well, Ms. Alford told the victim that she could

go lie down. A short time later, Ms. Alford checked on the victim and observed that the

victim was “breathing funny” and was cool to the touch. The Defendant told Ms. Alford that

the victim was probably dehydrated and told her to give her some juice. Ms. Alford also

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recalled that the victim vomited a yellow and red substance. When she asked the Defendant

about it, he responded that he had fed the victim a yellow popsicle and that she had bitten her

tongue and swallowed blood. When Ms. Lewis arrived to pick up her son, Ms. Alford told

her that the victim was sick but that they were not going to take her to see a doctor until the

next morning because she did not think it was a “rush situation.” She showed Ms. Lewis the

bruise on a victim’s forehead and a “bump” on her back. Ms. Lewis offered to watch the

other children while Ms. Alford and the Defendant took the victim to the hospital, but the

Defendant said there was “no need.” Ms. Lewis left around midnight.

After Ms. Lewis left, Ms. Alford made a pallet for the victim in the master bedroom

where she and the Defendant slept so that she could “keep an eye on [the victim].” At one

point, the victim moved towards the head of the bed and the Defendant “grabbed her up and

made her get back down” towards the foot of the bed. Ms. Alford told the Defendant not to

“be pulling on [the victim] like that,” and the two got into an argument. Soon afterwards,

everyone went to sleep. At around 3:00 a.m., the victim got into bed next to Ms. Alford. The

two lied there for a while, and then Ms. Alford told the victim to get back on her pallet and

go to sleep.

The next morning, Ms. Alford awoke at 6:57 a.m. and noticed that the victim was not

on her pallet. Ms. Alford found the victim lying on the floor in her sons’ bedroom and

picked her up because she thought the victim must be cold. At that point, she realized the

victim was dead and started screaming. The Defendant ran into the bedroom to see what was

wrong and took the victim from Ms. Alford while she called 911. Ms. Alford ran outside

screaming that something was wrong with her baby. A neighbor told her that she was a nurse

and attempted to perform CPR on the victim. The police and paramedics arrived soon after

and declared the victim dead at the scene.

Ms. Alford gave a statement to police on May 15, 2010, regarding the victim’s death.

At that time, she told police that the Defendant had told her that the victim had “been acting

up all day at daycare . . . messing with the other children.” He also told her that the victim

had soiled her pants and that he “whoop[ed] her.” Ms. Alford further testified that the

Defendant routinely disciplined the victim by hitting her in the chest with a belt or a shoe.

She acknowledged that she physically disciplined the victim and her other children by

spanking them on the buttocks with a belt, a comb, or her hand when they “d[id] something

serious” like hit the other children. She also acknowledged that she pinched the victim on

May 14, 2010, when she thought the victim rolled her eyes at her, but she denied hitting or

spanking the victim that day. She insisted that if the Defendant had told her he had punched

or kicked the victim, she would have taken her to the hospital.

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Shannon Blake Thompson, a paramedic with the Memphis Fire Department,

responded to a call at the Defendant’s apartment. Mr. Thompson arrived on the scene to find

a female neighbor attempting to perform CPR on the victim. He testified that “it was pretty

obvious right away that [the victim] had been dead for some time.” The victim was

unresponsive and appeared to be stiff. Mr. Thompson’s initial finding was confirmed when

he put a monitor on the victim to obtain her vital signs. He attempted to check her vital signs

several times, but she “flat-lined” every time. At that point, he pronounced the victim dead

at the scene and turned the matter over to the police.

The victim’s older brother, J.A.1 , was seven years old at the time of trial and testified

about his last day with the victim. He recalled that they went to daycare that day and that

neither Ms. Logan nor Ms. Richardson hurt the victim. He also recalled that the victim got

into trouble with the Defendant for soiling her pants and that the Defendant “whooped [the

victim].” J.A. did not see the Defendant “whoop” the victim but knew that he had because

the victim was crying. In the car ride to pick up his mother, J.A. recalled that the victim was

lying on his leg because she was tired. He saw her vomit and saw blood on her lip. J.A.

testified that the Defendant was mad at the victim that night but did not know why. He

denied that he or his mother hurt the victim that night.

Dr. James Caruso, a forensic pathologist, was tendered as an expert in forensic

pathology without objection. Dr. Caruso performed the victim’s autopsy on May 15, 2010.

He observed a “fair number of contusions and abrasions” on the victim, including a

contusion on her forehead, several contusions and abrasions on her face and neck, and a

contusion on her lower lip that was “certainly caused by blunt force.” 2 Additionally, he

found evidence of brain injury, which he explained was “really not life threatening” but

“show[s] that a significant force had been applied to the head area shortly before [the

victim’s] death.” He compared the victim’s head injury to “what [one] would expect if

somebody suffers a severe concussion of head trauma performed during a sporting event or

motor vehicle crash.” Dr. Caruso also described a fracture to the victim’s left forearm, which

resulted in a noticeable disfigurement to her arm. He had difficulty dating the fracture and

opined that it was possible the injury occurred after the victim’s death. The victim also had

a number of contusions and abrasions on her chest, evidencing blunt force injury. Dr. Caruso

stated that it would be “extremely unlikely” that these injuries were caused by someone

1

It is the policy of this court to refer to juveniles by their initials so as to protect their anonymity.

2

Dr. Caruso explained to the jury that a contusion is commonly referred to as a bruise and an

abrasion is commonly referred to as a scrape or cut [263]. For consistency and clarity, we will utilize the

terms contusion and abrasion as used by Dr. Caruso.

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performing CPR on the victim because CPR is unlikely to cause abrasions even if performed

improperly and cannot cause contusions without circulating blood.

Dr. Caruso testified that the victim had several rib fractures that “were definitely old

and healed” and others that were fairly new and had not yet healed. Additionally, she had

several areas “where there was just hemorrhaging around the ribs” but no fracture. A

photograph of the victim’s ribs on the right side of her body near her spine was shown to the

jury, which Dr. Caruso described as evidence of injury or stress to that area. Another

photograph of the left side of the victim’s body taken farther away from the backbone was

shown to the jury, which Dr. Caruso described as healed fractures and areas of hemorrhaging

from recent injury.

Dr. Caruso testified that the victim also had a laceration, or break in the tissue, of her

liver caused by a blunt force injury. A photograph of the back side of the liver was shown

to the jury. He noted that the location of the laceration was near but not adjacent to the rib

fractures and explained that force applied to one area can be transmitted to other areas. He

opined that the laceration likely occurred as a result of the compressive force applied to the

ribs. Dr. Caruso also found a contusion on the victim’s bowel and opined that the bowel had

a “small perforation” as well, based upon the fact that the victim was suffering from

peritonitis. Dr. Caruso explained that peritonitis is an infection or inflamation of the body

cavity that holds the intestine. It is usually caused by bacteria in the bowel leaking into the

area surrounding the bowel, which led Dr. Caruso to conclude that the victim had a bowel

laceration. Dr. Caruso testified that the victim was alive when the peritonitis infection

developed because her body had a “vital reaction” to it as evidenced by inflammatory cells

surrounding the outside of the bowel.

Dr. Caruso also observed discoloration on the victim’s buttocks and examined the soft

tissue under the skin to determine the cause. He found hemorrhage or blood in the fat tissue

under the skin covering the buttocks, which confirmed that the victim had deep contusions

on the buttocks that were sustained “relatively recent[ly].” He explained that the hemorrhage

“would not be there if there weren’t any injury” and concluded “that a blunt force had been

applied to her buttocks area[.]” A photograph of the deep, soft tissue underneath the victim’s

buttocks was shown to the jury.

Dr. Caruso testified that peritonitis is a life-threatening medical condition that requires

immediate medical attention. He stated that peritonitis “will typically make someone fairly

ill” and opined that someone with peritonitis would have a “toxic appearance” and act

“lethargic.” When asked whether the victim’s injuries would have caused a significant

amount of pain, Dr. Caruso responded, “Everybody’s pain threshold is a little different . . .

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. [so] I can’t gauge how much pain the individual would have felt, but again I would expect

this to be an uncomfortable toxic appearing child.”

As part of the autopsy, Dr. Caruso conducted additional tests to check for disease and

other bacterial infections. He noted that at the time of her death, the victim was two years

old, weighed 29 pounds, and was 37 inches long. While the victim was poorly nourished,

Dr. Caruso found no evidence of significant natural disease. He concluded that the victim’s

cause of death was multiple blunt force injuries and manner of death was homicide. He

explained that the victim’s injuries were caused by multiple episodes of compressive force

and were not the result of a single blow. He further explained that the victim’s injuries

suggest that “the force was applied at a time when [the victim] could not move freely in

reaction to that force” and agreed that it could have resulted from multiple hits or kicks

delivered while the victim was lying on the floor.

Sergeant Connie Justice of the Memphis Police Department, the case investigator for

the death of the victim, explained that the victim’s death was not considered a homicide until

after she received the results of the autopsy. Sergeant Justice informed Ms. Alford that the

victim would be transferred to the forensic unit and that an autopsy would be performed on

the body to determine the cause of death. Prior to receiving the results of the autopsy,

Sergeant Justice received information from the medical examiner that there was evidence of

possible abuse on the victim. As a result, Sergeant Justice shifted her investigation from a

death investigation to a homicide investigation. After receiving the results from the autopsy,

Sergeant Justice asked Ms. Alford and the Defendant to come to the police station to discuss

the victim’s death. They arrived at the police station at approximately 3:30 p.m. on May 15,

2010.

Sergeant Justice spoke to Ms. Alford first. She advised Ms. Alford of her rights and

talked to her for over an hour about the events leading up to the victim’s death. Sergeant

Justice then spoke to the Defendant. She advised him of his rights and confirmed that he

read from and signed an advice of rights form. The form, which was admitted into evidence,

stated that the Defendant understood his rights and wanted to talk about the victim’s death.

The Defendant signed the form at 5:31 p.m. on May 15, 2010.

Sergeant Justice testified that the Defendant told her that he had picked up the children

from daycare at 5:45 p.m. and was informed by the daycare staff that the victim had soiled

her pants. He also said that the daycare staff told him that the victim had been sick at

daycare, vomiting and having diarrhea. Because she did not have a change of clothes, the

victim was wearing a diaper and the clothes she wore to the daycare center. The Defendant

told Sergeant Justice that the victim was fine when they first arrived home and that she

played with the other children “in a dog pile on the floor.” He fed the children hotdogs at

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7:00 p.m., and afterwards the victim threw up a few times. The Defendant told the victim

to stand over the toilet in case she threw up again, and while doing so, the victim “acted” as

if she were weak, fell and hit her head on the commode. She vomited two more times in the

commode. The Defendant told the victim to change out of the diaper she had been wearing

and to go lie down in the kids’ room while he cleaned the bathroom. The victim then soiled

her clothes again and the Defendant changed her clothes and cleaned up the area where she

had the accident.

The Defendant told Sergeant Justice that the victim vomited again by the front door

as he gathered the children together to go pick up Ms. Alford. The Defendant cleaned up the

vomit and changed the victim’s clothes, which made them late to pick up Ms. Alford. The

Defendant noticed that the victim was “lying over her brother” in the car on the way to pick

up Ms. Alford, and the victim vomited again after they picked up Ms. Alford. The Defendant

told Sergeant Justice that when they arrived home, the victim walked “real, real slow[ly]”

back to the apartment and fell about three times. The Defendant stated however, that the

victim was only “acting” to get attention from her mother. Once inside, the victim lied down

on the couch while the other children played. The Defendant told Sergeant Justice that he

and Ms. Alford discussed taking the victim to the hospital but ultimately decided against it

because the Defendant believed that she just had a twenty-four hour virus. The Defendant

estimated that the victim vomited six or seven times and had diarrhea three to four times that

day.

The Defendant told Sergeant Justice that Ms. Lewis came to the apartment later that

evening after the other children had gone to bed. Ms. Lewis offered to stay with the other

children while the Defendant and Ms. Alford took the victim to the hospital, but the

Defendant believed there was “not a need.” After Ms. Lewis left, the victim would not go

to sleep so the Defendant “kind of bribed her” by telling her that he would take her to Chuck

E. Cheese’s. He told Sergeant Justice that the victim lied down on her pallet around 2:00

a.m. and then woke up at 3:00 a.m. and told Ms. Alford that she was cold. Soon afterwards,

they all went to sleep again. The Defendant told Sergeant Justice that he woke around 7:00

a.m. the next morning, and he and Ms. Alford found the victim deceased in another room.

The Defendant told Sergeant Justice that he physically disciplined the victim by

spanking her with a brush or his hand or “pop[ping]” her with a shoe on her leg or chest. He

stated that occasionally he accidently hit the victim in the stomach because she was “flailing

around” trying to avoid his hits. She also ran into furniture like the coffee table while trying

to avoid his hits. He insisted that he did not physically discipline her at all on May 14, 2010.

When asked about the “bump” on the victim’s forearm and upper back, the Defendant

explained that she got those injuries from falling. He also explained that she had gotten a

bruise on her forehead when she fell and hit her head on the commode. The Defendant told

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Sergeant Justice the victim was clumsy and fell down and hurt herself often. She also “fakes

all the time” to get attention from her mother. Additionally, the Defendant told Sergeant

Justice that the victim bruised easily because she was anemic.

On cross-examination, Sergeant Justice explained that the Defendant was charged

based on the information he provided to police about disciplining the victim. At that time,

he was handcuffed, and his leg was shackled to the bench in the interview room. Sergeant

Justice then reduced the Defendant’s oral statement to writing, but the Defendant did not sign

that statement. Sergeant Justice confirmed that she left the interview room at 6:20 p.m. and

that two other officers completed the interview with the Defendant.

Sergeant Kevin Lundy of the Memphis Police Department interviewed the Defendant

on May 15, 2010. The Defendant had already been advised of his rights and had given an

initial statement to Sergeant Justice when Sergeant Lundy interviewed him. The Defendant

was handcuffed to a bench during the interview. The Defendant gave several explanations

to Sergeant Lundy for the victim’s injuries, including that the victim was clumsy and that the

injuries occurred while she was at daycare. Sergeant Lundy believed the explanations given

by the defendant “were not consistent” with the victim’s injuries, so he “confront[ed]” the

Defendant with the “inconsistencies.” At that point, the Defendant “hesitated” and then told

Sergeant Lundy that he spanked the victim because she had defecated on the bathroom floor.

He told Sergeant Lundy that he held the victim down on the ground and hit her repeatedly

with an open hand, a fist, and a tennis shoe. The victim tried to flee when the Defendant

began hitting her but was unable to do so. The Defendant demonstrated for Sergeant Lundy

how he hit the victim and stated that he hit her approximately thirteen or fourteen times. The

Defendant told Sergeant Lundy that he informed Ms. Alford that he spanked the victim, after

which the victim began acting unresponsive and disoriented.

Sergeant Lundy told the Defendant he was going to reduce his statement into a formal,

written one for the Defendant to review and sign. The Defendant initially agreed but then

changed his mind and refused to give a formal statement. Sergeant Lundy testified that he

took notes during his interrogation of the Defendant and that he reduced those notes into a

supplement.

Dr. Karen Lakin, a general pediatrician and the medical director for the LeBonheur

Child Assessment Program, was certified as an expert in the field of child abuse pediatrics

over objection by the Defendant. She testified that she was board-certified in general

pediatrics and child abuse pediatrics. As an expert in child abuse pediatrics, she rendered

opinions about whether a child’s injuries were accidental or non-accidental based on the

pathology and physiology of the injuries. Additionally, she served on the Shelby County

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Fatality Review Team, which reviewed all child deaths in Shelby County. She had observed

a number of autopsies but had never conducted an autopsy.

Dr. Lakin testified that she reviewed the victim’s autopsy report and photographs; Ms.

Alford’s and Ms. Lewis’s statements; the pre-hospital report by the paramedics; and the

supplemental reports of the two investigating officers, which included the initial statement

given by the Defendant. She testified that peritonitis is a life-threatening condition, requiring

medical treatment. Noticeable symptoms include fever, chills, lethargy, severe abdominal

pain, lack of appetite, and diarrhea. She opined that all of the victim’s injuries, which

included hemorrhages in the head; rib fractures; and a perforated liver and bowel, were “very

traumatic” and “severe injuries.” She further opined that the victim’s peritonitis and other

internal injuries were “very painful.”

Dr. Lakin discounted other causes for the victim’s injuries such as spanking, playing

with other children, bumping into furniture, and being anemic. She testified that as a

clinician, she often heard similar excuses and explanations in suspected non-accidental injury

cases. Dr. Lakin also noted that the “toddler age group,” especially while potty training, is

at a very high risk for abuse. She agreed that the victim’s injuries were consistent with the

Defendant’s statement to Sergeant Lundy that he repeatedly struck the victim with his fist

and a shoe. With respect to the victim’s broken arm, Dr. Lakin testified that her arm would

have needed to be splinted in order to heal properly and that the deformity would have been

“very painful.” Dr. Lakin opined that the victim was in “extreme pain prior to her death.”

Defense Proof. Patricia Perkins testified that she had known the Defendant since

2002 as a member of her church. She testified that the Defendant’s reputation in the

community was as a peaceful, quiet, and truthful person. On cross-examination, she agreed

that she did not live in Shelby County and was not present when the victim died.

Reverend Kennan Seay, the Defendant’s cousin, testified that the Defendant had a

reputation in the community for being peaceful, quiet, and truthful. He also testified that the

Defendant attended church regularly. On cross-examination, Reverend Seay agreed that he

was not present when the victim died.

The Defendant testified that he and Ms. Alford began dating in January 2008 and had

one child together. Ms. Alford’s other two children were from a previous relationship. The

Defendant and Ms. Alford moved in together in March 2010 at Autumn Ridge Apartments.

At the time, the Defendant worked at Pizza Hut and Lowe’s.

The Defendant’s testimony about the events leading up to the victim’s death was

largely consistent with the investigating officers’ testimony. The Defendant confirmed that

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he picked up the three children from daycare on May 14, 2010 at 5:45 p.m. and was their sole

caretaker until he picked up Ms. Alford from work at approximately 8 p.m. He reiterated that

the victim was sick when he picked her up from daycare and continued “getting worse

through the night.” However, in contrast to Sergeant Justice’s and Sergeant Lundy’s

testimony, the Defendant maintained that he “pleaded” with Ms. Alford to take the victim

to the hospital due to her worsening condition. He claimed that Ms. Alford believed the

victim was only suffering from a twenty-four hour virus and feared that she might lose her

job if she requested additional time off in order to take the victim to the hospital. The

Defendant also claimed that he observed Ms. Alford pinch the victim when she rolled her

eyes at Ms. Alford and “whip” the victim with a shoe when she “swung” at Ms. Alford’s

face.

The Defendant adamantly denied that he hit or slapped the victim and denied that he

told the interviewing officers that he did. He testified that he went to the police station on

the day of the victim’s death to discuss the victim’s autopsy report and was never informed

that he was going to be charged with the victim’s death. He acknowledged that he read and

signed an “Advice of Rights” form but claimed that he was told that he had to sign the form

in order to hear the results of the victim’s autopsy report. He stated that Sergeant Justice

initially questioned him about the victim’s death and that he told her that the victim had been

sick that day. After Sergeant Justice left, two other officers came in and “started hollering

at [him] and hitting the table” and then shackled the Defendant to the bench. He claimed that

the officers came up with different scenarios about his beating the victim and told him if

would “just lie” and admit to it he would only be charged with manslaughter. He said that

he initially agreed to “lie” and say he hit the victim repeatedly with a shoe but then told the

officers he would not admit to hitting the victim and would not sign a document to that

effect. He agreed that the victim suffered a “brutal beating” on the night of her death based

on the injuries she sustained but maintained that it must have occurred while he was asleep.

He suggested that Ms. Alford took the victim outside during the night and beat her while he

was asleep.

Following deliberations, the jury convicted the Defendant as charged in the indictment

of one count of aggravated child abuse and two counts of first degree felony murder. The

trial court merged the two first degree felony murder convictions and sentenced the

Defendant as a Range I, standard offender to concurrent sentences of 20 years at 100% for

aggravated child abuse and life imprisonment for first degree felony murder. The Defendant

filed a timely motion for new trial on January 10, 2013, which was denied by the trial court

following a hearing in an order dated February 20, 2013. It is from this order that the

Defendant now appeals.

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ANALYSIS

On appeal, the Defendant argues that (1) the evidence is insufficient to sustain his

convictions; (2) the trial court abused its discretion in permitting Dr. Lakin to testify as an

expert; and (3) the trial court abused its discretion in admitting four autopsy photographs.

The State responds that the evidence is sufficient to sustain the Defendant’s convictions and

that the trial court did not abuse its discretion in permitting Dr. Lakin to testify or in

admitting four autopsy photographs. Upon our review, we agree with the State.

I. Sufficiency of the Evidence. The Defendant first contends that the evidence is

insufficient to sustain his convictions. He argues that the evidence fails to establish the

predicate felonies underlying his first degree felony murder convictions, namely aggravated

child abuse and aggravated child neglect. The State responds that a reasonable juror could

find beyond a reasonable doubt that the Defendant committed first degree murder in the

perpetration of aggravated child abuse and aggravated child neglect.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

When a defendant challenges the sufficiency of the evidence, the standard of review applied

by this court is “whether, after reviewing 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). Similarly, Rule

13(e) of the Tennessee Rules of Appellate Procedure states, “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.” Guilt may be

found beyond a reasonable doubt where there is direct evidence, circumstantial evidence, or

a combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)

(citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895,

897 (Tenn. 1961)). The standard of review for sufficiency of the evidence “‘is the same

whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes,

331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

The jury as the trier of fact must evaluate the credibility of the witnesses, determine

the weight given to witnesses’ testimony, and reconcile all conflicts in the evidence. State

v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295

(Tenn. Crim. App. 1978)). Moreover, the jury determines the weight to be given to

circumstantial evidence and the inferences to be drawn from this evidence, and the extent to

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

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questions primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184

S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court

shall not reweigh the evidence or substitute its inferences for those drawn by the trier of fact.

Id. This court has often stated that “[a] guilty verdict by the jury, approved by the trial court,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the

prosecution’s theory.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict

also “removes the presumption of innocence and replaces it with a presumption of guilt, and

the defendant has the burden of illustrating why the evidence is insufficient to support the

jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

As relevant here, first degree felony murder is the “killing of another committed in the

perpetration of . . . aggravated child abuse[] [or] aggravated child neglect[.]” T.C.A. § 39-

13-202(a)(2) (2010). Aggravated child abuse is defined as “knowingly, other than by

accidental means, treat[ing] a child under the age of eighteen (18) years of age in such a

manner as to inflict injury” and the “act of abuse . . . results in serious bodily injury to the

child[.]” Id. §§ 39-15-401(a) (2010); -402(a)(1) (2010). Aggravated child neglect is defined

as “knowingly abus[ing] or neglect[ing] a child under eighteen (18) years of age, so as to

adversely affect the child’s health and welfare” and such act results in “serious bodily

injury.” Id. § 39-15-401(b); -402(a)(1). If the abused or neglected child is eight (8) years

of age or less, the penalty is a Class A felony. Id. § 39-15-402(b).

“Serious bodily injury” is bodily injury that involves a substantial risk of death;

protracted unconsciousness; extreme physical pain; protracted or obvious disfigurement;

protracted loss or substantial impairment of a function of a bodily member, organ or mental

faculty; or a broken bone of a child who is eight (8) years of age or less. T.C.A. § 39-11-

106(a)(34) (2010). “Serious bodily injury to the child” may also include “second- or third-

degree burns, a fracture of any bone, a concussion, subdural or subarachnoid bleeding, retinal

hemorrhage, cerebral edema, brain contusion, injuries to the skin that involve severe bruising

or the likelihood of permanent or protracted disfigurement, including those sustained by

whipping children with objects.” Id. § 39-15-402(d).

In the case sub judice, the Defendant first contends that the evidence is insufficient

to support his conviction for first degree murder based on the predicate felony of aggravated

child abuse because no witnesses personally observed him hit the victim and his statement

to police regarding the victim’s death was coerced.3 In that regard, we note that “[i]n the

absence of direct evidence, a criminal offense may be established exclusively by

3

Although the Defendant argued to the jury that his incriminating statements to police were coerced,

he did not challenge their admissibility at trial. Likewise, he does not raise the admissibility of his statements

as a separate issue for our review on appeal. Accordingly, we do not address this issue.

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circumstantial evidence.” Dorantes, 331 S.W.3d at 379 (citing Duchac v. State, 505 S.W.2d

237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-58 (Tenn. 1958)). As noted

above, it is within the province of the jury to decide the weight given to circumstantial

evidence and the inferences to be drawn from such evidence. Dorantes, 331 S.W.3d at 379

(citing Rice, 184 S.W.3d at 662). This court may not substitute its inferences for those drawn

by the trier of fact in cases involving circumstantial evidence. State v. Sisk, 343 S.W.3d 60,

65 (Tenn. 2011) (citing State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)).

Although no witness observed the Defendant hit the victim, there was ample

circumstantial evidence from which the jury could infer his guilt. By his own admission, the

Defendant was the only adult with the victim and her siblings from 5:45 p.m. when he picked

them up from daycare until around 8:00 p.m. when he picked up Ms. Alford from work.

Multiple witnesses testified that prior to that time, the victim was “normal” and “playful.”

More specifically, Ms. Alford and Ms. Lewis testified that they did not observe any bruises

or other injuries on the victim before they dropped her off at daycare. Likewise, Ms. Logan

and Ms. Richardson, the daycare workers, testified that victim played with the other children

as she normally would and did not vomit or have diarrhea at daycare that day or in the week

leading up to her death. They further testified that when the victim left their care with the

Defendant that evening, she appeared healthy and did not have any noticeable injuries. After

the Defendant picked up Ms. Alford from work around 8:00 p.m., the victim was lethargic,

nauseous, and cold to the touch. Additionally, her breathing was labored and she had bruises

on her face and a “bump” on her back.

The autopsy report further established that the victim had sustained a lacerated liver

and bowel; a brain injury; several broken ribs; bruises to her head, face, neck, and buttocks;

and abrasions to her chest. The victim was also suffering from peritonitis, a life-threatening

condition requiring immediate medical attention, that was most likely caused by the

laceration to the victim’s bowel. Dr. Caruso opined that the victim’s cause of death was

multiple blunt force injuries caused by repeated episodes of compressive force. Further, he

noted that the injuries suggested that the force was applied when the victim could not move

freely in reaction to that force and agreed that the injuries were consistent with the

Defendant’s statement to police that he repeatedly hit the victim with his fist and a shoe

while he held her on the ground.

Finally, even though the Defendant refused to sign a formal statement, the Defendant

discussed the events leading up to the victim’s death with investigators for over an hour.

Although he initially denied that he physically disciplined the victim the night she died, he

admitted that he would occasionally discipline the victim by spanking her with a brush or his

hand or “pop[ping]” her with a shoe on her leg or chest. He also admitted that he had

accidently hit the victim in the stomach because she was “flailing around” trying to avoid his

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hits. He gave several explanations for the victim’s injuries, including that the victim was

clumsy and that the injuries occurred while she was at daycare. When confronted with

various inconsistencies in his oral statement, the Defendant relented and admitted that he

spanked the victim on the night of the offense because she had defecated on the bathroom

floor. He explained that he held the victim down on the ground and hit her thirteen or

fourteen times with an open hand, a fist, and a tennis shoe.

Although the Defendant adamantly asserted at trial that his statement to police was

false and that he never hit the victim, the jury chose to reject the Defendant’s version of

events and resolved the conflicts in the evidence in favor of the prosecution’s theory. On

review, we will not reweigh the evidence or substitute our inferences for those drawn by the

trier of fact. See Dorantes, 331 S.W.3d at 379 (citing Rice, 184 S.W.3d at 662). Based on

the proof presented, a rationale juror could infer that the Defendant knowingly, other than

by accidental means, treated the victim in such a manner as to inflict serious bodily injury,

which ultimately resulted in her death. He is not entitled to relief.

The Defendant further argues that his conviction for first degree murder based on the

predicate felony of aggravated child neglect is insufficient. As discussed above, the victim

sustained serious bodily injury at the hands of the Defendant and exhibited obvious signs of

injury and declining health as the night progressed. The Defendant and Ms. Alford both had

knowledge and awareness of the victim’s declining health, as evidenced by their testimony

at trial and statements to police; however, they chose to forgo medical treatment for the

victim, and her untreated injuries ultimately resulted in her death. This conduct constituted

aggravated child neglect. See, e.g., State v. Adams, 24 S.W.3d 289 (Tenn. 2000) (parents’

failure to seek medical help for child despite knowledge and awareness of his physical

injuries constituted criminal child neglect).

Despite this evidence, the Defendant contends that Ms. Alford’s own testimony

established that she, rather than the Defendant, made the decision not to seek medical help,

and therefore, his conviction on this count cannot be sustained. We disagree. First, although

Ms. Alford agreed on cross-examination that she decided not to seek medical help for the

victim that evening, she also testified that the Defendant repeatedly dismissed her concerns

about the victim and discouraged her from seeking medical help. Ms. Lewis similarly

testified that Ms. Alford considered seeking medical help for the victim until discussing it

with the Defendant, who downplayed the seriousness of the victim’s condition and declined

Ms. Lewis’s offer to watch the other children while he and Ms. Alford went to the hospital.

The Defendant offered opposing testimony, asserting that he “pleaded” with Ms. Alford to

take the victim to the hospital; however, the jury resolved this conflict in the evidence with

their verdict, and we will not disturb their assessment on appeal. See Campbell, 245 S.W.3d

at 335.

-15-

Further, in the instant case, the State also pursued the Defendant’s guilt on the theory

of criminal responsibility. Criminal responsibility is not a distinct crime but “a theory by

which the state may prove the defendant’s guilt based on another person’s conduct.” State

v. Osborne, 251 S.W.3d 1, 16 (Tenn. Crim. App. 2007) (citing State v. Mickens, 123 S.W.3d

355, 389-90 (Tenn. Crim. App. 2003)). Thus, there is no requirement that the State “elect

between prosecution as a principal actor and prosecution for criminal responsibility.” State

v. Hodges, 7 S.W.3d 609, 625 (Tenn. Crim. App. 1998) (citing State v. Williams, 920

S.W.2d 247, 257-58 (Tenn. Crim. App. 1995)). An individual is criminally responsible for

the conduct of another person if, “[a]cting with intent to promote or assist the commission

of the offense, or to benefit in the proceeds or results of the offense, the person solicits,

directs, aids, or attempts to aid another person to commit the offense.” T.C.A. § 39-11-

402(2) (2010). Mere presence during the commission of a crime is insufficient to support

a conviction; however, the defendant need not have taken physical part in the crime to be

held criminally responsible. See State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008)

(citations omitted). “[E]ncouragement of the principal is sufficient.” Id. Given the

testimony of Ms. Alford and Ms. Lewis, which was accredited by the jury, a reasonable juror

could find, at a minimum, that the Defendant directed, aided, or encouraged Ms. Alford to

engage in conduct constituting aggravated child neglect. The Defendant is not entitled to

relief.

II. Expert Testimony. The Defendant next contends the trial court abused its

discretion in permitting Dr. Karen Lakin to testify as an expert in the field of child abuse

pediatrics. He challenges the reliability of her testimony based on the novelty of the field of

child abuse pediatrics and further maintains that there is too great an analytical gap between

her opinions and the data relied upon. Additionally, he asserts that the trial court employed

an incorrect legal standard in determining whether to admit her testimony. The State

responds that the court properly permitted Dr. Lakin to testify and any error was harmless

beyond a reasonable doubt.

“Questions regarding the qualifications, admissibility, relevancy, and competency of

expert testimony are matters left within the broad discretion of the trial court.” State v.

Stevens, 78 S.W.3d 817, 832 (Tenn. 2002) (citing McDaniel v. CSX Transp., Inc., 955

S.W.2d 257, 263-64 (Tenn. 1997); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)).

Upon review, a trial court’s ruling regarding expert testimony will not be overruled unless

the trial court abused its discretion. Ballard, 855 S.W.2d at 562 (citing Baggett v. State, 421

S.W.2d 629, 632 (Tenn. 1967)). Under this standard, we will not reverse unless the “‘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. Shirley, 6 S.W.3d 243, 247

(Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

-16-

“The admission of expert proof is governed by Tennessee Rules of Evidence 702 and

703.” State v Copeland, 226 S.W.3d 287, 301 (Tenn. 2007) (citing Brown v. Crown Equip.

Corp., 181 S.W.3d 268, 273 (Tenn. 2005)). Rule 702 provides: “If 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.” Rule

703 provides:

The facts or data in the particular case upon which an expert bases an

opinion or inference may be those perceived by or made 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 a lack of trustworthiness.

The Tennessee Supreme Court has further defined the role of the trial court in

assessing the reliability of expert testimony:

Trial courts act as gatekeepers when it comes to the admissibility of

expert testimony. Their role is to ensure that an expert, whether basing

testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice as

an expert in the relevant field. A court must assure itself that the [expert’s]

opinions are based on relevant scientific methods, processes, and data, and not

upon an expert’s mere speculation. The court’s reliability analysis has four

general inter-related components: (1) qualifications assessment, (2) analytical

cohesion, (3) methodological reliability, and (4) foundational reliability.

State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotation marks

omitted). “While a trial court’s role as gatekeeper is critical, it is not unconstrained.” Id. at

404. Where a proper foundation exists, the expert testimony “should be tested by the

adversary process – competing expert testimony and active cross-examination – rather than

excluded from jurors’ scrutiny[.]” Id. (citation omitted).

In the present case, the Defendant does not challenge the qualifications of Dr. Lakin

as an expert in the field of child abuse pediatrics. Indeed, her education and training in the

field is extensive, as was established during her voir dire. She testified that she was a general

pediatrician and the medical director for the LeBonheur Child Assessment Program; she had

been board-certified in child abuse pediatrics, which required continuing education and

-17-

periodic testing through the American Academy of Pediatrics, since 2011; she was an

assistant professor of pediatrics at the University of Tennessee and instructed other doctors

in child abuse pediatrics; and she served on the Shelby County Child Fatality Review Team,

which reviewed all child deaths in Shelby County. Dr. Lakin testified that she had been

rendering opinions regarding accidental versus non-accidental trauma since 2000 and had

testified in Tennessee as an expert in child abuse pediatrics. See State v. John Barlow, No.

W2008-01128-CCA-R3-CD, 2010 WL 1687772 (Tenn. Crim. App. Apr. 26, 2010), perm.

app. denied (Tenn. Sept. 24, 2010).

Notwithstanding her qualifications, the Defendant challenges the reliability of her

testimony. First, he asserts that the field of child abuse pediatrics itself is unreliable because

it is a “novel” field and has yet to be scrutinized by the appellate courts. We disagree. While

formal certification in the field of child abuse pediatrics is fairly new, Tennessee courts have

widely accepted expert testimony regarding child abuse and accidental versus non-accidental

trauma. See, e.g., State v. Marie Delaluz Urbano-Uriostegui, No. M2012-00235-CCA-R3-

CD, 2013 WL 1896931, at *6, *14-15. (Tenn. Crim. App. May 6, 2013), perm. app. denied

(Tenn. Oct. 16, 2013) (testimony by expert in the fields of “pediatrics and child

maltreatment” regarding the likely cause of the child victim’s injuries); John Barlow, 2010

WL 1687772, at *3-5 (testimony by expert in fields of “pediatrics and child abuse within the

area of pediatrics” that child victim suffered abusive trauma); State v. Russell Lee Maze, No.

M2004-02091-CCA-R3-CD, 2006 WL 1132083, at *3-6 (Tenn. Crim. App. Apr. 28, 2006)

(testimony by expert in the fields of “pediatric medicine and child abuse” that the child

victim had suffered abusive and non-accidental trauma); State v. Andrew Neal Davis, No.

M2002-02375-CCA-R3-CD, 2004 WL 1562544, at *6-7, *13-15 (Tenn. Crim. App. July 9,

2004), perm. app. denied (Tenn. Dec. 6, 2004) (testimony by expert in the fields of

“pediatrics and child abuse” that child victim’s injuries were not accidentally incurred). We

see no reason to depart from this trend in the current case.

Additionally, we note that the Defendant’s reliance on State v. Ballard, 855 S.W.2d

557, 562 (Tenn. 1993), is misplaced. In Ballard, the Tennessee Supreme Court held that

testimony about the symptoms of post-traumatic stress syndrome exhibited by victims of

sexually abused children was “not reliable enough to ‘substantially assist’ a jury in an inquiry

of whether the crime of child sexual abuse has taken place.” Id. at 562. Ballard is clearly

distinguishable from the case before us. In contrast to the expert in Ballard, Dr. Lakin did

not testify about the victim’s behavior or common characteristics of abused children; rather,

she testified about the specific physical injuries the victim sustained and opined about their

cause. See State v. Lacy, 983 S.W.2d 686, 695 (Tenn. Crim. App. 1997) (distinguishing

Ballard where expert testified about the victim’s injuries that she observed rather than his

behavior). We are unpersuaded that the field of child abuse pediatrics, which focuses on the

physical injuries of the child victim and how they were caused, is not reliable enough to

-18-

“substantially assist” the jury in an inquiry of whether the crime of child abuse has taken

place.

The Defendant next asserts that Dr. Lakin’s testimony was unreliable because she

conducted no “independent investigation” and merely reviewed the autopsy report and certain

witness statements in forming her conclusions, creating an analytical gap between her

opinions and data upon which she relied. In assessing the analytical cohesion of the expert’s

testimony, the trial court must “consider whether the ‘basis for the witness’s opinion, i.e.,

testing, research, studies, or experience-based observations, adequately supports that expert’s

conclusions.” Scott, 275 S.W.3d at 402 (quoting Stevens, 78 S.W.3d at 834-35). The court

should consider “how and why the expert was able to extrapolate from certain data to the

conclusions that he or she has reached.” Scott, 275 S.W.3d at 402 (citing Gen. Elec. Co. v.

Joiner, 522 U.S. 136, 144-46 (1997)). Where there is “too great an analytical gap between

the data and the opinion proffered,” the expert testimony is properly excluded. Stevens, 78

S.W.3d at 834.

Here, Dr. Lakin testified that she was a general pediatrician and that she was board-

certified in child abuse pediatrics. She explained that she was trained in pediatric pathology

and the “mechanisms of injury” and “trauma.” She rendered opinions based on the physical

injuries of the victim, the victim’s medical history, and information about how the injuries

“present.” She further testified that she evaluated a victim “just like we would do any child

that’s coming in” with a medical condition, considering both the physical injury or condition

and the history of the illness. In reaching her conclusions in this case, she reviewed the

victim’s autopsy report and photographs, the pre-hospital report by the paramedics, witness

statements, and the police reports. She directly applied her education and experience to the

information gleaned from these sources to form her opinions. While she did not conduct an

autopsy on the victim or personally interview any of the witnesses, “experts may base an

opinion on the factual findings of others.” Tenn. R. Evid. 602, Advisory Comm’n Cmts; see

also Tenn. R. Evid. 703. In sum, we conclude that there was a “straightforward connection

between [Dr. Lakin’s] knowledge and the basis of the opinions such that no ‘analytical gap’

exist[ed] between the data and the opinion offered.” See Stevens, 78 S.W.3d at 835.

Finally, the Defendant asserts that the trial court abused its discretion by employing

an incorrect legal standard when admitting Dr. Lakin’s testimony. As correctly noted by the

Defendant, Rules 702 and 703 require trial courts to “determine whether the evidence will

substantially assist the trier of fact to determine a fact in issue and whether the facts and data

underlying the evidence indicate a lack of trustworthiness.” McDaniel, 955 S.W.2d at 265

(emphasis added). This language varies slightly from the federal rules, which simply require

that the evidence “assist the trier of fact,” and has been interpreted by the Tennessee Supreme

-19-

Court to mean that the “probative force must be stronger before it is admitted in Tennessee.”

Id. at 264 (citation omitted).

In the present case, the trial court admitted the testimony of Dr. Lakin after a jury-out

hearing and reasoned as follows:

I think that a Court always has discretion as to whether something is a Jury

question and the way it was expressed by [Defense] Counsel was that this

would not assist the Jury. And I don’t think any of us can say that with total

one hundred percent confidence. If there’s any scintilla of evidence or an

opinion that may assist the Jury in making a decision, in this particular case,

as the Jury instructions will specifically say that an expert is only a person who

. . . has special knowledge of a certain area. But that person’s credibility; that

person’s opinion; that person’s conclusions are not better, no worse than any

other witness that takes the stand under oath.

....

I think that whatever Dr. Lakin can contribute to explaining what the infection

was; what impact it had on the injuries that she had; the only thing it would do

is to help the Jury to make a decision as to whether or not they have more

credibility and more faith than what Dr. Caruso said versus her, and also being

able to make an independent decision. Based upon all that, the Court’s going

to allow her to testify.

The Defendant highlights the trial court’s use of the phrase “scintilla of evidence” in its

ruling to support his contention that the trial court abused its discretion; however, taken in

context and in light of the court’s entire ruling, it is clear that the court properly considered

the reliability of the testimony and its probative force. During a jury-out hearing, Dr. Lakin

was questioned about her qualifications and experience in child abuse pediatrics and her

expert opinions in this case. She was subjected to cross-examination by defense counsel,

during which she was questioned extensively about her conclusions and the basis for those

conclusions. In admitting the testimony, the trial court did not explicitly state that the

testimony would substantially assist the jury; however, the court properly recognized that any

expert testimony, even if minimal, should be admitted if it passes the rigors of Rule 702 and

703. See Scott, 275 S.W.3d at 404 (“[T]rial courts are not empowered to choose between

legitimate competing expert theories by excluding the lesser of the two.”). The trial court’s

ruling, taken in conjunction with the jury-out hearing, establishes that the court properly

considered the substance of Dr. Lakin’s testimony and concluded that it satisfied those

requirements. We discern no abuse of discretion.

-20-

Further, even if the admission of Dr. Lakin’s testimony was improper, such error was

harmless. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and

otherwise appropriate shall not be set aside unless, considering the whole record, error

involving a substantial right more probably than not affected the judgment or would result

in prejudice to the judicial process.”). Contrary to the Defendant’s assertions, the record is

replete with evidence establishing serious bodily injury aside from the testimony of Dr.

Lakin. Dr. Caruso testified about the victim’s numerous injuries, which included broken ribs,

a brain contusion, and severe bruising on her buttocks. Additionally, she suffered a

laceration of her liver and bowel, which resulted in peritonitis, a life threatening condition,

that did in fact result in her death. See T.C.A. §§ 39-11-206(35), -15-402(d). In light of the

ample evidence about the victim’s extensive and serious injuries, it is unlikely that Dr.

Lakin’s testimony regarding the extreme pain the victim suffered more probably than not

affected the judgments. The Defendant is not entitled to relief.

III. Admission of Photographs. The Defendant argues that the trial court abused its

discretion by admitting four autopsy photographs because they were unfairly prejudicial. The

State responds that the photographs were relevant to show that the victim suffered serious

bodily injury and their probative value outweighed by the danger of unfair prejudice;

therefore, the trial court did not abuse its discretion.

The trial court has discretion regarding the admissibility of photographs, and a ruling

on this issue “will not be overturned on appeal except upon a clear showing of abuse of

discretion.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). First, a photograph must

be “verified and authenticated by a witness with knowledge of the facts” before it can be

admitted into evidence. Id. Second, a photograph must be relevant to an issue that the jury

must determine before it may be admitted. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998)

(citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Banks, 564 S.W.2d at 951

(Tenn. 1978)). However, if the photograph’s “prejudicial effect outweighs its probative

value,” it should not be admitted. See Tenn. R. Evid. 401 and 403; Banks, 564 S.W.2d at

951. A relevant photograph “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” See Banks, 564 S.W.2d at 951. Unfair prejudice has been defined by the

Tennessee Supreme Court as “an undue tendency to suggest decision on an improper basis,

commonly, though not necessarily an emotional one.” Id. Photographs must never be used

“solely to inflame the jury and prejudice them against the defendant.” Id.

Here, a total of eleven autopsy photographs were admitted into evidence and shown

to the jury during the testimony of Dr. Caruso, the medical examiner who conducted the

victim’s autopsy. Of the eleven photographs, the Defendant objected to four photographs

-21-

that depicted the victim’s internal injuries. The first photograph, Exhibit 23, is a view of the

victim’s spine that shows a hemorrhage along the spine. The second photograph, Exhibit 24,

shows the victim’s rib fractures. The third photograph, Exhibit 25, is a view of the laceration

of the victim’s liver. The fourth photograph, Exhibit 27, shows a deep contusion

corresponding to the skin underneath the victim’s buttocks. Prior to their admission, the

second and fourth photograph were cropped so as to only show the specific injuries. In

admitting the photographs, the trial court summarized its ruling as follows:

There have been a number of conversations at the Bench during this

recess relating to certain evidence, and for the record, the photographs that

were shown to the Court of the injuries of the victim, there are a number of

photographs; they were discussed; they’ve been agreed upon. The court’s

ruling that those photographs that have been agreed upon . . . reflect accurately

the injuries that occurred to the victim; that the[ir] probative value is

significantly and significantly does outweigh the prejudicial value of the

photographs. I will note for the record that there were two photographs that

we did think were highly prejudicial. Those have been adjusted by the State

in terms of cropping them in such a way that I do think they are more probative

at this time than they are prejudicial.

I will note that the defense still objects to those photographs. I

understand that, but I do feel that those photographs need to be disclosed to the

Jury in order for the Jury to go forward with their process of deciding this case.

We recognize that “[a]s a general rule, where medical testimony adequately describes

the degree or extent of an injury, gruesome and graphic photographs should not be admitted.”

State v. Collins, 986 S.W.2d 13, 21 (Tenn. Crim. App. 1998) (citing State v. Duncan, 698

S.W.2d 63, 69 (Tenn. 1985)). Further, “[p]hotographs made during or after an autopsy

should be scrutinized and examined prior to being shown to the jury.” Id. at 19 (citing State

v. James Dubose, No. 01C019405-CC-00160, 1995 WL 504803, at *11 (Tenn. Crim. App.

Aug. 25, 1995)). Here, however, the nature and extent of the victim’s injuries were directly

at issue. The Defendant offered varying explanations for the cause of the victim’s injuries

and suggested that these injuries were accidental in nature. The State’s proof that the

victim’s injuries were inconsistent with accidental trauma or illness rested on the medical

testimony of Dr. Caruso and Dr. Lakin. The autopsy photographs supplemented and

corroborated this proof. Indeed, the photographs at issue were unpleasant; however, they

were helpful in understanding the State’s critical medical testimony. See Andrew Neal

Davis, 2004 WL 1562544 (admitting autopsy photographs where the nature and extent of the

victim’s injuries were directly at issue); James Dubose, 1995 WL 504803 (admitting autopsy

photographs of victim’s internal organs to corroborate the testimony of the medical

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examiner). There is no indication that the “primary purpose” of the photographs was to

“elicit emotions of ‘bias, sympathy, hatred, contempt, retribution, or horror.’” See Collins,

986 S.W.2d at 20 (citing M. Graham, Handbook of Federal Evidence 182-83 (2d ed. 1986)).

Accordingly, the trial court did not abuse its discretion in admitting the photographs. The

Defendant is not entitled to relief.

CONCLUSION

Based on the foregoing authorities and analysis, the judgments of the trial court are

affirmed.

_________________________________

CAMILLE R. McMULLEN, JUDGE

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