State of Tennessee v. Deborah Wen Yee Mark

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 21, 2015 Session

STATE OF TENNESSEE v. DEBORAH WEN YEE MARK

Appeal from the Criminal Court for Wilson County

No. 2010-CR-451 David E. Durham, Judge

No. M2014-00651-CCA-R3-CD – Filed August 10, 2015

Appellant, Deborah Wen Yee Mark, was convicted of one count of first degree murder

during the perpetration of aggravated child abuse, four counts of aggravated child abuse,

and four counts of child abuse. The trial court sentenced appellant to life for the murder

conviction, twenty years at 100% release eligibility for each of the aggravated child abuse

convictions, and three years as a Range I, standard offender for each of the child abuse

convictions. The trial court aligned each of the aggravated child abuse sentences

consecutively to each other and consecutively to the life sentence. The child abuse

sentences were aligned consecutively to the life sentence but concurrently with each other

and with the aggravated child abuse sentences for an effective sentence of life plus eighty

years. Following her unsuccessful motion for a new trial, appellant raises the following

issues on appeal: (1) whether appellant was in custody during her questioning, triggering

Miranda requirements; (2) whether her statement was coerced and involuntary; (3)

whether the trial court erred in admitting the victim‟s adoption video; (4) whether the

evidence is sufficient to support appellant‟s aggravated child abuse conviction in Count

III of the indictment vis-à-vis the finding of “serious bodily injury” based on the loss of

four primary teeth; and (5) whether the trial court erred in aligning appellant‟s aggravated

child abuse sentences consecutively. Following our extensive review, we affirm the

judgments of the trial court, but clerical errors in the judgment forms require remand for

correction as detailed fully below.

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

Remanded for Entry of Corrected Judgments

ROGER A. PAGE, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ALAN E. GLENN, JJ., joined.

James G. Thomas, Chandra N.T. Flint, and L. Wells Trompeter (on appeal), Nashville,

Tennessee; and B.F. (Jack) Lowery and Jack D. Lowery (at trial), Lebanon, Tennessee,

for the appellant, Deborah Wen Yee Mark.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant

Attorney General; Tom P. Thompson, Jr., District Attorney General; and Thomas

Harwell Swink and Jason Lee Lawson, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

This case involves the death of a four-and-a-half-year-old victim who had been

adopted from China and relocated to the United States approximately ten weeks before

her death. The victim‟s adoptive parents, appellant and her husband, Steven Mark, were

charged individually with multiple crimes for their involvement in her death.

Appellant was charged in a nine-count indictment as follows: (I) felony murder

committed during the perpetration of aggravated child abuse; (II) aggravated child abuse,

injury to the victim‟s head and body; (III) aggravated child abuse, injury to the victim‟s

mouth; (IV) aggravated child abuse, injury to the victim‟s breast and nipples; (V)

aggravated child abuse, injury to the victim‟s skeletal system; (VI) child abuse, injury to

the victim‟s hands and fingers; (VII) child abuse, injury to the victim‟s face and eye;

(VIII) child abuse, injury to the victim‟s thighs; and (IX) child abuse, injury to the

victim‟s back.

I. Facts

Prior to trial, appellant filed a motion to suppress her statement, alleging that she

had not been fully apprised of her Miranda rights and that her statement had been

coerced.

A. Motion to Suppress

At the November 16, 2011 hearing on appellant‟s motion to suppress her

statement, the State‟s first witness was Detective Bonnie Harris with the Mt. Juliet Police

Department. Detective Harris had been in law enforcement for thirteen years and had

served as a detective for seven years. As a detective, her cases involved primarily

domestic abuse, child abuse, sexual assaults, and sex crimes in general. As part of her

training, Detective Harris had received “several, several hours of interview and

interrogation, child abuse investigation, homicide, a wide range of in-service training.”

She had attended the John Reid Interviewing Techniques School, which provided twenty-

four hours of specialized training, and the Regional Organized Crime Information Center,

which provided eight hours of interviewing and body language training. Detective Harris

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also received thirty-six hours of training in child abuse cases through the Office of

Juvenile Justice and Delinquency Prevention.

Detective Harris testified that on July 10, 2010, she received a call from a patrol

officer about a possible child abuse case at Summit Medical Center. She and Detective

David Stolinsky proceeded to that location, but while en route, she received notification

that the victim had been air-lifted to Vanderbilt Children‟s Hospital, so they changed

directions. Upon arrival at Vanderbilt, Detective Harris spoke with a social worker, who

informed her that the victim presented with several injuries and that the parents had not

seen the victim yet. Detective Harris then spoke with the emergency room physician, Dr.

Mark Meredith, who advised her of the nature of the injuries, showed her pictures of the

injuries, and opined that the injuries were severe and that the chance of survival was

“scarce.” She then entered the victim‟s room, viewed her injuries, and photographed

them herself.

Detective Harris could not recall at what time she first encountered appellant but

stated that their first encounter occurred after she had spoken with several other people.

When Detective Harris first saw appellant, she was seated in the waiting room of the

Intensive Care Unit (“ICU”) with her husband, Steven Mark, and Detective Harris

approached her and “asked if she would be willing to sit down . . . and discuss the reason

why [the victim] was here today.” Detective Harris, Detective Stolinsky, appellant, and a

case worker from the Department of Children‟s Services (“DCS”), Julie Vantrease,

walked to a nearby waiting room so they could sit down and discuss what had transpired.

Detective Harris confirmed that appellant accompanied her voluntarily, that appellant

was not “escorted,” that she did not have to be “encouraged” to enter the waiting room,

and that she did not indicate hesitance to accompany the group.

Detective Harris explained that the waiting room where appellant was interviewed

was approximately ten to fifteen feet away from the elevators. The elevators allowed free

access; there was no security, and one did not require a key or pass of any sort to access

that exit. The waiting room itself contained a round table with three chairs on the left

side of the room and a chair and table with a telephone on it in the right rear corner.

Detective Harris described that Ms. Vantrease sat in a chair at the back of the room while

the others sat at the table. Appellant sat facing the door, and Detective Stolinksy was the

closest to the door but did not block access to it.

Detective Harris recalled that she began the discussion with appellant by

informing her that her participation was “completely voluntary[] [and] that she was free

to leave at any time.” Detective Harris said, “I pointed to the door. I said, „[T]here‟s the

door.‟ I told her that the only reason why the door was shut was because of privacy

issues because it was a hallway.” The waiting room was right off the hallway, and there

was a lot of “foot traffic.” She further informed appellant that she was free to leave; that

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she was free to cease answering questions; that she was free to request an attorney, at

which time they would stop the interview; and that regardless of what appellant told her

in the interview, “she would be going home that night.” Both detectives were dressed in

plain clothes but were armed. Detective Harris described the tone of the discussion as

“conversational” and stated that neither she nor Detective Stolinsky raised their voices.

Detective Harris explained that they began the conversation by asking how

appellant adopted the victim, the victim‟s country of origin and background, information

about the family dynamic, and background information with regard to appellant‟s eight-

year-old daughter. Appellant answered the questions calmly and did not appear to be

upset. Appellant volunteered that there were “some frustrations” with the victim‟s

behavior, which changed shortly after they arrived in the United States after adopting her.

The victim did not perform “on par” with how the Marks believed a four-and-a-half-year-

old should with regard to her eating too slowly, not being toilet-trained, and being “very

tiny” for her age. Detective Harris questioned appellant about injuries that she observed

on the victim‟s nipples, and appellant “paused for a minute[,] and she kind of put her

head down[,] and she said, „[Y]eah.‟ She said, „I got frustrated and I did it.‟ . . . She said

that she would twist and pull [the victim‟s] nipples and it made scaring [sic].” Detective

Harris estimated that appellant made this admission “about an hour” into the interview.1

Maintaining the same “calm” and “conversational” tone, Detective Harris stated

that she then inquired into the bruises on the victim‟s legs. Appellant replied that she

would become frustrated with the victim and pinch the insides of her legs, leaving

bruises. Appellant then stated that on Father‟s Day, the victim was “acting up [and]

being defiant.” The victim fell and struck her forehead, and appellant attempted to treat

the bump with an icepack. The victim resisted the effort and kept squirming, and

appellant, who acknowledged that she was frustrated, took the icepack and “slammed it

in her facial area several times.” Detective Harris asked appellant about the bruising on

the victim‟s hands. Appellant explained that the victim would “pick” at her hands despite

appellant‟s requests for her to stop. When this would occur, appellant would force the

victim to hold out her hands, palms down, and appellant would strike the backs of her

hands with a wooden cane appellant used in martial arts.

Detective Harris recounted that during the interview, appellant recalled that on one

occasion, she and Mr. Mark were attempting to brush the victim‟s teeth, but the victim

resisted and began a “breath-holding spell” wherein the victim would hold her breath

until she lost consciousness. Viewing this as a defiant act, appellant forced the victim‟s

mouth open to brush her teeth and in doing so, knocked out two of her front teeth. With

1

Following this admission, Detective Stolinsky left the room to place a call to Detective Brian

Harbaugh with the Wilson County Sheriff‟s Department. He remained out of the room until a break was

taken.

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regard to bruising on the victim‟s back, appellant said that during one of the “breath-

holding spells,” it was possible that she might have struck the victim harder than she

realized, leaving a bruise.

At this time, another fifteen minutes had elapsed since the first admission by

appellant, and Detective Stolinksy re-entered the room and requested a break. Appellant

never requested to take a break. Detective Stolinsky asked appellant if she wanted to see

the victim, and she replied affirmatively. They exited the room, and Detective Harris

remained behind. The break lasted approximately fifteen minutes.

When the interview resumed, Detective Harbaugh participated but Detective

Stolinsky and Ms. Vantrease were not present. Detective Harbaugh produced a digital

recorder. Detective Harris introduced the detective to appellant and emphasized with

appellant the same admonitions as she had earlier. The tone of the interview remained

conversational, and Detective Harris told appellant that they needed to review with

Detective Harbaugh the information appellant had previously disclosed. This “second

segment”2 of the interview lasted approximately three and a half hours, during which

Detective Harris asked appellant if she needed to take a break. Appellant declined but

indicated that she was thirsty, so Detective Harris gave her a soda. Detective Harris

recounted, “Throughout the whole interview [appellant] was calm, conversational, you

know, it wasn‟t accusatory. It was just talking.”

Detective Harbaugh asked appellant if she wanted to discuss the victim‟s

condition with a doctor, and they took a break so he could locate one. Appellant declined

Detective Harris‟s offer of food, stating that she was unable to eat at that time, but

accepted another soda. During the break, appellant became concerned that she had lost

her cellular telephone in the parking garage, and Detective Harris summoned Vanderbilt

security to look for it. Appellant never indicated a desire to search for the telephone

herself and never asked to leave the room.

Detective Harris said that after the break, Dr. Paul Hain entered the room,

addressed appellant, and summarized the victim‟s medical condition. The discussion

lasted ten to fifteen minutes, during which no one raised his or her voice or became

confrontational. While they were speaking, both detectives stepped out of the room and

began placing telephone calls. Detective Harris telephoned Detective Stolinsky, who was

at appellant‟s and the victim‟s home. She advised Detective Stolinsky to look for a mark

on the wall where the victim could have struck her head. He told Detective Harris that he

had located a bloody “onesie,” i.e., an infant‟s one-piece body suit, in a sink and that he

needed to know from where it came.

2

The State refers to this portion of appellant‟s interview as the “second segment,” and for ease of

reference, we will incorporate the State‟s term for this portion.

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Detective Harris stated that when the break concluded, she and Detective

Harbaugh re-entered the room, and she asked appellant about the onesie. Appellant said

that they changed the victim‟s clothing the previous night around 11:30 p.m. or 12:00

a.m. because the garment was soiled with saliva that was tinged with blood. The victim

was not responsive, and they placed her in her bed and retired for the night. The

conversation essentially ended at that point when a nurse entered and announced that

appellant‟s pastor had arrived. Detective Harris observed appellant cry “for the first

time,” and the detectives exited the room, leaving appellant with her pastor. A DCS

worker was waiting to question appellant with regard to her older daughter. This last

segment of the interview was much shorter, lasting approximately thirty minutes.

Later that evening, the detectives spoke with appellant outside of her home.

Detective Harris confirmed that no one escorted appellant from the waiting room or the

hospital and that she was never in custody. Appellant left the hospital on her own accord.

When they arrived, appellant was outside, so they spoke with her beside her automobile.

Detective Harris again informed appellant that “she was free to walk away . . . at any time

and stop talking to [them].” Detective Harris stated that appellant understood that. She

then asked appellant about a “box”:

Mr. Mark admitted to Detective Stolinsky that during time[-]outs, at one

particular time he put [the victim] in a cardboard box with her sitting in her

like booster, high-chair seat, you know, the portable high-chair seats that

you can take off the chair, put it in a box in the garage and placed another

box over her for a time out session for discipline because she wouldn‟t eat

fast enough.

Appellant denied any knowledge of such a practice. Detective Harris said that this

exchange was “very brief.” Detective Harris did not speak with appellant again.

On cross-examination, Detective Harris acknowledged that when she, Detective

Stolinsky, and Ms. Vantrease first convened, they discussed their approach to the

investigation. At some point, Detective Stolinsky telephoned the District Attorney‟s

office because they had been given the impression that the victim was going to die. They

decided that they were going to escort appellant and Mr. Mark to different rooms and

interview them separately. They began by asking appellant to join them in a waiting

room for a discussion. Detective Harris denied that appellant requested on “multiple

occasions” to see the victim but agreed that she inquired as to the victim‟s condition.

Detective Harris was asked to draw a sketch of the room where they interviewed

appellant. She confirmed that there were no windows in the room or in the door leading

into the room. She denied that the only statements appellant gave were in direct response

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to questions asked and instead characterized the interview as a “conversation” wherein

they talked “back and forth.” Detective Harris also emphasized that appellant would

“bring up things” without being asked.

Detective Harris clarified that it was she, in fact, who requested the first break.

She asked appellant if appellant would like a refreshment, and Detective Stolinsky asked

if appellant wanted to see the victim. Appellant declined refreshments but accompanied

Detective Stolinksy to see the victim. Detective Harris did not recall whether Detective

Harbaugh joined Detective Stolinsky and appellant in the victim‟s room or whether

Detective Harbaugh escorted appellant back to the waiting room. Detective Harris did

not recall Detective Harbaugh‟s raising his voice to appellant and maintained that the

tone remained conversational, even when he implied to appellant that she was not being

honest. Detective Harris agreed that the introductory portion of the first interview

segment could have been shorter than one hour and that the “incriminatory” portion could

have lasted fifteen to thirty minutes. Detective Harris acknowledged that appellant was

sometimes emotional but characterized her as “quiet” rather than “meek.” She conceded

that appellant appeared to have difficulty remembering certain things but disagreed that

appellant was confused. She disagreed that appellant asked about the victim‟s condition

more than ten times but agreed it might have been “a couple” of times.

Detective Harris stated that they separated appellant and Mr. Mark because they

wanted to speak with them separately, not because they wanted to “isolate” them from

each other. She agreed that once Detective Harbaugh arrived and began recording the

conversation, appellant made no statements that were not recorded.

On re-direct examination, Detective Harris emphasized that nothing about

appellant‟s demeanor indicated that her statement was not voluntary. She also confirmed

that when she began the interview, appellant was not a suspect in the case. Detective

Harris opined that generally the primary caretaker would be the suspect, who in this case

was Steven Mark. Detective Harris‟s intent in separating the Marks was to obtain

background information and to learn whether appellant, as a pediatrician, had observed

any potential criminal behavior against the victim at the hands of Mr. Mark. She

confirmed that at all times during the interview, appellant was “freely speaking,” “clear

[about] what she was saying,” and neither evasive nor confused. Detective Harris stated

that she never made any threats against or promises to appellant during the interview.

On re-cross-examination, Detective Harris admitted that although appellant was

not a suspect at the beginning of the interview, she was soon developed as a suspect but

that Detective Harris did not stop and administer Miranda rights at any time. She also

confirmed that the door to the waiting room was unlocked during the interview.

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The State called Detective David Stolinksy, a five-year-veteran detective with the

Mt. Juliet Police Department, as its next witness. He testified that the only time he was

with appellant in Detective Harris‟s absence was when they went to visit the victim. At

some point during the first segment of the interview with appellant, Detective Stolinsky

asked appellant if she wanted to see the victim, and he accompanied her to the victim‟s

room. Prior to this, appellant had not expressed a desire to see the victim. They walked

approximately thirty to forty steps to the victim‟s room in silence; upon entering the

room, Detective Stolinsky stood on the left side of the victim‟s bed, and appellant stood

on the right side. The room was enclosed in glass and had a sliding glass door. Medical

personnel were either in the room the entire time or “were in and out constantly.” He

advised her that the detectives were “just trying to find out what happened” to the victim.

Appellant did not make any statements during the approximately fifteen-minute-long stay

in the victim‟s room. Detective Stolinsky never touched appellant or made any threats

toward her.

On cross-examination, Detective Stolinksy read from his report, “During a

conversation with [appellant] she became quiet and attempted to cry. This writer never

saw a tear come from [appellant]. During one of her quiet times writer asked [appellant]

to join him in [the victim‟s] room.” Detective Stolinsky disagreed that this was a

“direction” to appellant and characterized defense counsel‟s attempt to read it that way as

an “exaggeration.” He confirmed that he asked appellant to join him in checking on the

victim. Counsel questioned Detective Stolinsky, “Well, you took her out of this room

where she had been with you and Detective Bonnie Harris for over an hour and a half.”

Detective Stolinsky corrected counsel and stated, “Your time is off, I believe,” then

surmised that approximately one hour had elapsed. Detective Stolinsky reiterated that as

a police officer, his purpose for being at the hospital was to find out what happened to the

victim and conceded that he “paraphrased” his report:

This writer explained to Dr. Mark that our goal was to find out what

happened to [the victim], that she was a small innocent child who now [lay]

in the hospital room with tubes and wires attached to her and that is just not

right for a child to be in this position at her age at the hands of an adult.

Detective Stolinsky did not recall Detective Harbaugh‟s joining them in the victim‟s

hospital room.

Upon further cross-examination, Detective Stolinksy clarified that when Detective

Harbaugh arrived, he took Detective Stolinsky‟s place in the conference room where

appellant was being interviewed and that Detective Stolinsky then joined Mr. Mark in a

“quiet” room. He confirmed that when they first began interviewing appellant, she was

not a suspect. He stated that about an hour into the interview, appellant admitted that she

had injured the victim; he characterized those admissions as “shocking” to the detectives.

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He testified that when appellant implicated herself, no one stopped to Mirandize her

because she was not in custody.

The trial court asked Detective Stolinsky what time the interview started.

Although he could not state the time definitively, he estimated that the interview began

around 1:00 p.m. on July 1.

The State called Tennessee Bureau of Investigation Agent, formerly Detective,

Brian Harbaugh as its next witness.3 On July 1, 2010, Detective Stolinsky contacted the

criminal investigations bureau of the sheriff‟s department and requested Detective

Harbaugh‟s assistance at Vanderbilt Children‟s Hospital to investigate a case of possible

child abuse. Upon arrival, he spoke with Detectives Stolinsky and Harris, who updated

him on the investigation. He learned that a crime scene unit was searching appellant‟s

residence and that detectives had been interviewing appellant. Detective Harbaugh also

observed the victim. Collectively, the detectives decided that Detective Stolinsky would

focus his attention elsewhere while Detectives Harris and Harbaugh continued to

interview appellant. Detective Harbaugh had been at the hospital approximately fifteen

minutes when he first met appellant; he entered a room where she was seated. He

described the room as a rectangular room, approximately twenty feet long by twelve feet,

that was adjacent to the nurses‟ station. He characterized the room as “a quiet room,”

although he did not know exactly how the room was utilized. He did not have to pass

through security to access the room, and due to the room‟s location, the area immediately

outside of it was “right in the middle” of everything, with “at least a dozen” people

working in the area. He agreed that he was dressed in plain clothes but was clearly armed

and wearing a badge.

Detective Harbaugh recalled that when he entered the quiet room, Detective Harris

introduced him to appellant. Detective Harris then asked appellant to review some of the

information she had previously disclosed for the purpose of updating Detective

Harbaugh. He brought a digital audio recorder with him and turned it on prior to

speaking with appellant. He described that he chose a chair that placed his back to the

door, facing appellant. Detective Harris sat “off” to his right in a chair without a table so

that the three of them formed a “triangle.” He confirmed that there was space between

appellant and the door and that someone seated in her position could have exited the

room without his having to move out of the way. He said that the door was closed for

privacy as well as to reduce the noise generated by the several people at the nurses‟

station.

3

At the time of the investigation in this case, Agent Harbaugh was a detective with the Wilson

County Sheriff‟s Department. Because all of the testimony and documents refer to him as “Detective

Harbaugh,” we will refer to him as “Detective.” In doing so, we mean no disrespect.

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Detective Harbaugh testified that before he started the recorder, the only

conversation that took place involved typical cordial greetings. During that time neither

he nor anyone in his presence threatened or coerced appellant. He turned the recorder on,

and at the suppression hearing, the entire recording was played for the trial court.

Thereafter, Detective Harbaugh, in response to questioning by the court, stated that the

recorder was in a pocket of a black binder that was placed on the table at which he was

seated with appellant. He recalled that he left the room twice during the interview. One

time he left was after appellant indicated she had injured the victim with the icepack. He

left the room to inquire of a doctor if any of the victim‟s injuries were consistent with that

explanation.

Detective Harbaugh recalled that when the interview was completed, he left the

hospital. As he was leaving, a DCS case worker was waiting to speak with appellant, but

he did not stay for that interview. He and Detective Harris then drove to appellant‟s

residence. Later that evening, they returned and spoke with appellant about the victim‟s

being placed in a box for punishment. Appellant simply replied that she was tired and

could not speak with them at that time. The detectives honored her statements and left

her residence. They did not speak with her again.

On cross-examination, Detective Harbaugh indicated that he arrived at the hospital

around 3:00 or 4:00 p.m.; he remembered the time because it was close to the end of his

8:00-4:00 p.m. shift. He estimated that the last interview of the evening was attempted

around 9:00 p.m. Detective Harbaugh reviewed pictures of the hallway leading from the

elevator to the nurses‟ station and agreed that one had to press a button to gain access

through a set of double doors before reaching the nurses‟ station. He acknowledged that

separating two individuals who are suspected in criminal activity was a common

technique so that the individuals‟ explanations could be compared.

Detective Harbaugh conceded that he did not advise appellant that the interview

was being recorded and that the recorder was not visible to her. He explained, “Well,

I‟ve found in the past that . . . anytime somebody knows that they‟re being recorded[,]

they‟re . . . more apprehensive and they‟re just short on words and don‟t necessarily --

well, they just feel uncomfortable. It makes people feel uncomfortable.” As such, he

agreed that people were less likely to speak with him and answer questions.

Detective Harbaugh acknowledged that based on what Detective Harris reported to

him, appellant had made certain admissions that would have constituted child abuse.

Detective Harbaugh admitted that when he questioned appellant, he believed it was likely

that she would provide additional incriminatory information and that the detectives

discussed whether they should Mirandize her prior to beginning the second segment of

the interview. Collectively, they decided against it because Detective Harris had

previously explained to appellant that “she was free to leave and the whole non-custodial

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route.” He did not reiterate those points with appellant because he did not see any “sense

going over it twice.” He emphasized that he did not Mirandize appellant:

Again, because it just wasn‟t called for. It‟s . . . non-custodial and during

my conversation with her, we had talked about several things, about breaks

or people coming in to see her, her leaving, her wanting to take breaks, me

even offering to give her a ride. I mean, it never dawned on me that she felt

that possibly she could not leave. I mean, it seemed to be very clear through

our conversation that it was non-custodial.

Detective Harbaugh further agreed that he did not offer appellant a break until

“around” the two-hour, thirty-three minute mark in the recording. He conceded that

although the majority of the interview was conversational in tone, there were times when

he cut off appellant‟s answer because he believed that she was withholding the truth and

instead telling him a “story” that she thought he would believe. He recalled a point in the

interview wherein he told appellant that he believed she needed anger management

counseling. He agreed that appellant at one time indicated her fear that people would

believe she was a child abuser and that he told her he did not think she was a child

abuser. He explained, “[M]y job is to in a sense comfort her and get her to give me

truthful statements and . . . calling them a child abuser doesn‟t put them in the greatest of

mood.” Counsel attempted to characterize this tactic as “disarming” people, but

Detective Harbaugh characterized it as “building rapport.” Counsel also directed

Detective Harbaugh to two instances late in the interview: (1) appellant asked, “Can I get

somebody to go check for my cell phone, right?” and (2) appellant asked, “[W]hat

happens from here[?] I mean, I know that an investigator went with my husband to go to

the house. I mean, are we allowed to have people here to support us[?]” Based on those

statements by appellant, counsel asked Detective Harbaugh if the inference was that

appellant did not feel free to leave. The State objected, and the trial court sustained based

on speculation before he could answer.

Detective Harbaugh confirmed that when he and Detective Harris arrived at

appellant‟s home that evening, they met outside. Appellant was staying at a neighbor‟s

house because the crime scene unit was in her home and she was not allowed inside. Her

husband was inside the home, but officers were not intentionally keeping them separated

at that time.

Appellant testified at the suppression hearing. She stated that she had been a

pediatrician since 2000, first in New Jersey and then in Mt. Juliet, Tennessee. She

testified that she had never had any interaction with a law enforcement officer with the

exception of one speeding ticket. She had never interacted with an officer during the

course of her medical practice. She stated that she was taught as a child to respect

authority.

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Appellant recalled that on July 1, 2010, Mr. Mark informed her that the victim was

being treated at Summit Medical Center. She was then advised that the victim had been

air-lifted to Vanderbilt Children‟s Hospital. Based on her experience, she was aware that

if a child were air-lifted to another facility, “there‟s usually serious injury.” When she

arrived at the hospital, she met and briefly spoke with Mr. Mark in the emergency room,

which was on the first floor. Hospital personnel then escorted them to a private room

adjacent to the emergency room. There, a doctor entered and told them that the victim

was being treated, but he offered no information as to her condition.

Appellant stated that at some point, they were “led” from the private room

downstairs to the intensive care unit upstairs. She said that “once [they] entered the

intensive care unit,” she and Mr. Mark were separated. She asserted that she was “taken”

by detectives to a small waiting room within the ICU where she met with a female

detective, a male detective, and a DCS worker. When asked how she felt about meeting

with them, appellant responded, “I felt like I had to go with them, sir . . . . They were

police officers.” She said that she did not want to be in the room with them; she wanted

to be with her husband and the victim in her hospital room. She claimed that no one

informed her that she could go to the victim‟s room. Once questioning began, she said

she felt she had to stay there and that she did not have the right to get up and check on the

victim. She testified that had she known she had the right, she would have left the room

and checked on the victim.

Counsel asked appellant if she knew how long she was in the waiting room that

day. She answered only that she knew “it was a very long time.” Counsel posited, “If I

told you it was close to five hours would that sound somewhere about right?” to which

she responded, “I believe so, yes. I believe so, sir.” She maintained that during that time,

she needed to use the restroom but no one asked if she needed to take a break to do so.

When asked if anyone told her that she could leave the room, she stated that she

remembered that “one of the officers mentioned something about a door, but [she] didn‟t

feel [she] could leave.” She said she felt as though she had to stay because they were

police officers and she was trying to cooperate. She stated that during that time, there

was “no time” at which she was not concerned about the victim and that no one apprised

her of the victim‟s condition until toward the end of the interview. She reiterated that she

would have never gone into the waiting room with the officers if she had not felt she had

to.

On cross-examination, the State inquired into appellant‟s professional history as a

medical doctor and asked how many times she had been in a hospital. She eventually

acknowledged that she had been in a hospital more than 100 times. She recalled that she

drove herself to Vanderbilt on the day in question. She parked and walked in,

unescorted, then found Mr. Mark in the emergency room. Shortly thereafter, they were

-12-

directed to a waiting room where they stayed between twenty and thirty minutes before a

doctor entered and informed them that the victim was being transferred to the ICU.

Appellant clarified that upon arrival on the ICU floor, she was approached by

Detective Harris, separated from her husband, and “led” into a room. She recalled that

Detective Harris said that she had questions for appellant but did not remember Detective

Harris asking if appellant would be willing to speak with her. When questioned about

whether Detective Harris asked if appellant would be willing to talk with her, appellant

answered, “I don‟t remember the exact words that she used, sir. . . . I felt like she was

telling me to go with her to answer questions, sir.” She did not remember the detective

telling her that she did not have to answer questions. Likewise, appellant stated that she

recalled Detective Harris “saying something about the door, but [she] didn‟t feel like

[she] could leave.” In contrast, appellant admitted that she could remember the exact

parking place she occupied that day when she gave instructions to help security find her

missing cellular telephone.

Appellant confirmed that she told Detective Harbaugh that she wanted to hear

about the victim‟s medical condition from a doctor and that in response, he said he would

check on it. She acknowledged that he did so but added that it did not happen

“immediately after [she] asked.” She would not agree that Detective Harbaugh left the

room “very shortly” thereafter and based her position on the fact that “as we heard on the

tape yesterday, the doctor didn‟t come in until the very end of the interview.” Appellant

conceded that she was never verbally threatened but added that she was “raised up to

respect the police‟s authority.”

When the State questioned appellant about her needing to use the restroom during

the interview, the following exchange was had:

Q: Let me ask you this: You‟re a forty-year-old woman, well-educated,

medical doctor, did you need to go to the bathroom?

A: Yes, sir.

Q: Why didn‟t you ask?

A: Sir, I was in a room with police officers, sir.

Q: Ma‟am, is it your testimony you felt you couldn‟t even ask if you could

go to the bathroom?

A: Yes, sir.

-13-

In a similar manner, when asked if she ever requested to visit the victim‟s room,

appellant answered, “I asked if someone could give me information on what‟s going on

with [the victim].” The State repeated the question verbatim, and appellant responded, “I

did not ask, sir, because I did not feel I would be allowed to, sir.”

When asked how appellant left the hospital on the day in question, she answered

that she left with one of the pastors from her church. She said that she was not able to

talk with him until the time that she left with him. However, she also did not know when

he arrived at the hospital so she “couldn‟t have asked to see him because [she] wouldn‟t

have known that he was there.” She recalled, from listening to the tape, that toward the

end of the interview, she asked Detective Harbaugh “if [she] could have church people

there with [her], and he responded, “„[Y]es, you can have church people there.‟”

The trial court issued a thorough ruling:

[T]he first issue I must decide is whether . . . or not this was a

custodial interrogation or interview, because if it‟s noncustodial, Miranda

does not need to be applied. There are several factors, in fact, the test, and

this was very clearly given to us in State v. Anderson . . . . [T]he test is

rather simple. It‟s whether a reasonable person in the suspect‟s position

would consider themselves deprived of freedom of movement to a degree

associated with a formal arrest considering the totality of the circumstances

....

Well, the first factor they give us to be used in any case is the time of

the interview . . . . [I]t seems to indicate that the interview initially began by

Detective Harris somewhere on or about 1:00 o‟clock in the afternoon. It

was never hammered down exactly. Detective Harbaugh, now Special

Agent Harbaugh, testified he began his interviews somewhere around 4:00

o‟clock or later in the afternoon. But the point is, this was in the afternoon .

. . . And this interview did take place sometime between 1:00 and 4:00 in

the afternoon and lasted for four hours and fifty[-]six minutes. I feel that

works in favor of the State because we do know from later in the testimony

that sometime around 9:00 p.m. is when the detectives and special agent

went to her home . . . .

Let‟s talk about the location of the interview . . . . This interview

took place at a hospital. Now, Mrs. Mark is a pediatrician. She even

testified under oath, her answers were very evasive, and I‟m going to make

that notation now, all of her answers on direct and cross examination, very

evasive. But she finally testified that, yeah, she‟s probably been in a

-14-

hospital over a hundred times. In this particular hospital, at least three

times, and in this hospital at least enough that she recognizes her own

parking spot. So, this location is a familiar spot to Mrs. Mark. It‟s not an

inhospitable place. It‟s a familiar place . . . . [T]he law does require that

any trier of fact . . . . that when you decide whose testimony you believe in

a particular case, you‟re to rely on your own common sense and everyday

experience. And my common sense and everyday experience tells me that

a doctor in a hospital is like a bug in a rug. It‟s just not an unfamiliar place.

It‟s a place where they should feel relaxed, even under these conditions, but

a familiar place. So I think that works in favor of the State.

We next get down to the duration and character of the questioning. I

think we need to divide that particular element or that particular factor into

two parts. First the duration, now there‟s no question that this interview, it

seems to be, the evidence seems clear, somewhere around a total of four

hours and fifty[-]six minutes . . . . Now, the evidence in this case has been

rather clear and undisputed that during the first segment of the

investigation, perhaps even the first hour, that Mrs. Mark was not even a

suspect. That they were actually acquiring background information about

Mrs. Mark, her home life and her husband, [whom] we all recognize as a

co-defendant in this case. And the question was really directed as to

whether or not he might have caused these suspected injuries to this child.

It wasn‟t until after about an hour the evidence seems to indicate that Mrs.

Mark actually became a suspect when she started answering questions

admitting, in the words of Detective Harris, that -- and testified to that she

had actually caused some injuries which were witnessed to this young

child. And at that point, as everyone knows from the evidence, that‟s when

Detective, now Special Agent Harbaugh was called because he does, as has

been admitted and he admitted on the stand, this is what he does is child

abuse investigations.

So, that first hour, particularly, up until Harbaugh arrives, certainly

that portion of the statement and the admissions made in that statement, the

duration is not overly long. So then we get to the second point when the

tape is turned on . . . . So when you look at the first hour and a half, the

questioning between Detective Harris and Mrs. Mark, not long at all, one

and a half hours. And I particularly find in that part, the duration does meet

the requirements of Anderson. It was not of a nature that would make the

statement [in]admissible.

Then we go to the part where it began recording . . . . I‟ve got it

marked here, she would be asked [a] simple question and Mrs. Mark would

-15-

go into a long dialogue answer which would be more information than was

asked and she was just allowed to continue to talk . . . . I would also like to

note that during this, at least the initial part of the recorded interview as

well, she was very unemotional. Questions were asked, direct questions

were asked. There were very unemotional responses. Unlike her testimony

here on the stand today, the answers came out rather quickly. They were

responsive, and as stated, and I think one of the attorneys argued that if she

didn‟t understand a question she would simply say, I don‟t understand and

would you repeat. Which like I stated earlier, much different than her

testimony here today where most of her answers were totally unresponsive,

even after pauses for reflection they were unresponsive.

So, you get into the entire period of the duration when the recording

started, and it was some I think three plus hours. I think we took a break.

The first break on the recording was approximately two hours and thirty[-]

three minutes. Again, I think it was at that point, at least from the tape it

appeared that Mrs. Mark became emotional. But then when the questioning

began again she again began giving very responsive -- to the questions. I

think what‟s very noteworthy too, during a lot of the answers, I made a

notation, because this talks about the duration and it also goes to the general

demeanor, in many of her responses, particularly her colloquy about, you

know, when she‟d go beyond what the question asked, most of her answers

she was -- obviously seemed more exasperated about the nonperformance

of her child . . . . In fact, I even made myself a notation, in part of this

interview it actually sounded like a mother talking to their grandmother or

her mother about the granddaughter. It wasn‟t like talking to a detective . .

. . So, you know, as far as the duration and the character, I believe that

works in the State‟s favor, that there was nothing in the recorded interview

where I thought the duration was necessary -- or was longer than necessary,

particularly too, and I need to point this out because I made myself a note.

When Mrs. Mark initially became a suspect and started talking about the

visible injuries to this child, she started mentioning multiple incidents. It

wasn‟t a single incident . . . . But then during this interview she was talking

about various injuries on various dates which occurred in various ways.

Well, when you do that that, by necessity, it requires more questions,

lengthy questions because you‟re talking about different events, and that‟s

going to naturally extend the length of the interview than if we were talking

just one event and one particular injury.

So, we go down to the next factor listed by the Anderson court and

that‟s the officer‟s tone of voice and the general demeanor . . . . [T]he tape

speaks for itself. I listened to the tape . . . . During the times of the

-16-

questioning by Agent Harbaugh, this Court saw no occasion to where his

voice and his demeanor had got to the point that a reasonable person in a

suspect‟s position, as required by Anderson, would feel like they were

being pressured other than just the request, look, answer the question

honestly, don‟t guess or don‟t answer it at all . . . . As far as Detective

Harris‟s tone of voice and her demeanor, I think it‟s noteworthy that when

Mrs. Mark was on the stand at no point, at no point during the direct or the

cross examination did she ever dispute anything that Detective Harris

testified to . . . . [T]his Court does give credibility to Detective Harris‟s

testimony because there was just no contradictory testimony as to that.

You go down to the next factor, the suspect‟s method of

transportation to the place. . . . She drove herself to the Children‟s Hospital

. . . . [T]hat certainly works in the State‟s favor.

The next factor, the number of police officers present. Now, at any

one time there were at least two police officers in this room, but I think it‟s

important to point out, they were not uniformed police officers. They were

in plain clothes . . . . These officers were in plain clothes and they

introduced themselves to Mrs. Mark. Yes, they had a badge showing. Yes,

they had a gun showing. Well, you know, that‟s the way police are

everywhere. They don‟t do that to intimidate. They just do it because it‟s

part of their job. And particularly, people in Mrs. Mark‟s position, an

educated doctor, born in New York, has got to understand that . . . . So, I

think that works in the State‟s favor.

Any limitation, the next factor, any limitation on the movement or

other form of restraint imposed on a suspect during the interrogation. Well,

I think this goes back, Number 1, to the testimony of Detective Harris,

which was not controverted, when she did tell Mrs. Mark, no matter what

you say today, you‟re going home, and by God, at the end of the day she

went home. And, you know, there‟s been an issue raised, well, during the

break she remained in the room. The officers went out. The officers

escorted her down there to see her son (sic). True. I think the facts clearly

show that. But, again, Mrs. Mark, she‟s not – she‟s not in the police

station. She‟s in a hospital, in a hospital waiting room. There are doctors

going by all the time. In fact, you know, on the tape, I know at least on one

occasion, a doctor popped in to talk to her and her pastor popped in to talk

to her. The door was unlocked. Mrs. Mark testified she came in and out of

the hospital at will. Her testimony on the stand today is, well, I was scared.

I didn‟t feel like I could leave. I need the record to reflect, I just don‟t give

her testimony any credibility . . . . I am really bothered by the fact that, you

-17-

know, during this questioning, I do -- I do think the evidence shows clearly

that she never asked to go see her child. She asked about the condition.

She never asked to see her. I think it‟s also uncontroverted though that

during the break she was more concerned about her telephone and asked

about her telephone and not the child. I think that all goes to the credibility

at this point when she testifies today that the reason that she never walked

up and left was because she felt scared. Like I say, using my own common

sense and everyday experience in life, the Court doesn‟t buy that and that

works against the Defendant and in the favor of the State.

The next factor, any interactions between the officers and the

suspect, including the words spoken by the officer to the suspect, suspect‟s

verbal or nonverbal responses . . . . [T]he taped evidence speaks for itself. I

didn‟t see any interactions in that particular audio tape to where Special

Agent Harbaugh, for lack of a better term but, you know, at no point during

the interview did he browbeat the Defendant, or Mrs. Mark, or threaten her.

His questions were just low key and very direct. And at points during his

questioning, his voice might have been a different tone than other tones, but

it was at points where Mrs. Mark was evasive or unresponsive. But the

tone wasn‟t overly -- to a point to where I don‟t think any individual in

Mrs. Mark‟s position would feel like they couldn‟t at any moment just say,

look, I‟ve had it. I‟m tired. I want to see my child. I‟m done. Particularly

someone with her education and experience. I really believe from the

overall tone of this entire conversation, this recorded conversation that I

listened to for three and a half hours, Mrs. Mark really seemed like a

willing participant and sounded like someone that just wanted to try to

explain her side of the story and talk her way out of it. That‟s the

impression I got. I even made that particular note, that at no time was she

in any hurry to get up and leave, that she was more than willing to ask

questions and give answers which she felt were appropriate and she did that

by asking her own questions about, well, could the ice pack cause this,

could the fall on the mattress have caused this, could this have caused this.

So I don‟t feel like any of the interactions between the officer and the

suspect would violate the factors set forth in Anderson.

The next factor, the extent to which the suspect was confronted with

the law enforcement officers suspicions of guilt and evidence of guilt. They

clearly did that. You know, at several points during the interview, they

clearly told Mrs. Mark, look, we‟ve talked to the doctors, and your

explanation just doesn‟t fit what the doctors have told us, the extent of the

injuries. So there was no deception . . . . I think the officers did properly

tell Mrs. Mark their suspicions of guilt, what they felt the other evidence

-18-

would show, that they spoke to the doctors, and they wanted to give her an

opportunity to explain.

Finally we get to that extent to which the suspect is made aware that

he or she is free to refrain from answer[ing] questions or to end the

interview at will . . . . [T]he evidence is uncontroverted that Detective

Harris at the beginning of the interview did ask her, I‟d like to speak to you.

You are free to leave, and if you want to stop talking and get a lawyer and

questions will cease. And no matter what happens here today, you‟re going

home . . . . [T]hey do meet the requirements of that ninth factor that Mrs.

Mark was told that she was free to leave . . . . Mrs. Mark, like she did when

the officers went to the house, and she said, look, I‟m tired. I don‟t want to

talk to you anymore, and they broke it off. She could have just as easily

said that and knows she could have said during the interview. In fact, like I

say, when you listen to the interview itself, to the questions and her

responses, at that point her responses, even when she reflected on her

answers, they were clear, they were concise. There were no signs of stress

or duress. So, as far as a finding of custody, I find that Mrs. Mark was not

in custody during this particular interview, so therefore Miranda is not

required.

We next get to the voluntariness issue that even though she‟s not in

custody is it possible though, as stated in the motion, was there

psychological coercion because the fact that the interview lasted so long

and the fact that her daughter was in bad shape down at the end in the

hospital room.

Using the same set of rules and the same factors where I found that

she‟s not in custody, that same argument is that, no, there was no

involuntariness. In fact, like I say, from her -- many of her responses, Mrs.

Mark went far and beyond the question being asked and volunteered even

more information. And like I say, many parts of this audio tape it was more

of a dialogue in which Mrs. Mark actually did most of the discussion. So at

no point do I find during the interview or interrogation or questioning,

however you want to characterize it, it is what it is, but I don‟t feel like that

it was involuntary at any point that she was in there in that interview room.

So, motion to suppress the statement is respectfully overruled.

-19-

B. Facts from Trial4

Detective Bonnie Harris was the State‟s first witness. She stated that when she

and Detective Stolinsky were dispatched to Vanderbilt, she had received information

about “suspicious” marks on a little girl‟s body and “some admissions” made with regard

to the child‟s teeth having been knocked out. Upon arrival at the hospital, Detective

Harris spoke with social worker Alisa Lipton and emergency room doctor Mark

Meredith. She also visited the victim‟s room and observed that she had a black eye,

scarring on her nipples, and bruising on her inner thighs and back.

Detective Harris then described the facts surrounding her questioning of appellant,

and her testimony was consistent with that adduced at the hearing on the motion to

suppress. Appellant told her that she and her husband had adopted the victim from China

and had returned to the United States with her on April 9, 2010. Appellant was a

pediatrician with Cumberland Pediatrics in Lebanon, and Mr. Mark was a stay-at-home

parent and home-schooled the victim and their older daughter. Appellant told Detective

Harris that she found out that the victim “was not what they expected. She . . . was very

tiny for her age[,] and she was not potty trained . . . .” Because the victim did not speak

English, appellant was the only person who could communicate with her as they both

spoke Mandarin. Appellant found the victim‟s behavior “frustrating” because the victim

would not obey appellant but would, in appellant‟s opinion, use her “cuteness” to

manipulate Mr. Mark and avoid punishment.

Detective Harris recalled that appellant told her that the victim “changed” on

Father‟s Day, June 20, in part because her older daughter‟s birthday was June 19 and,

accordingly, received a great deal of attention that day. Detective Harris then detailed the

admissions appellant made with regard to her actions involving the victim‟s scarred

nipples, missing teeth, and bruising. Appellant described in detail the events surrounding

the victim‟s black eye. Detective Harris said:

She stated . . . it was on Father‟s Day that [the victim] was acting like she

couldn‟t walk and she fell and bumped her head, and she tried to place an

ice pack on [the victim‟s] head and [the victim] did not want it on her head,

so she . . . she held [the victim‟s] hands together with one hand and took the

ice pack in the other hand and slammed it in her face several times.

Appellant stated that the victim was screaming but not crying because “[the victim] never

cried.”

4

While the testimony adduced at trial encompasses other disciplinary tactics and behaviors

employed by appellant and Mr. Mark toward the victim, because sufficiency of the evidence is not at

issue, we will only highlight those portions of the testimony necessary to establish the elements of the

offenses.

-20-

Detective Harris explained that she called Detective Brian Harbaugh to assist with

the investigation. She said that the first segment of the interview was not recorded but

that Detective Harbaugh brought a recorder with him to memorialize the later segments.

During the second segment of the interview, in addition to “rehashing” the admissions

appellant had already made, she was asked about the bruising on the victim‟s back.

Appellant told them that it was “possible that it might have come from where her and her

husband would kick [the victim‟s] back to get her out of the breath holding spells.”

Appellant also described the sequence of events on the night preceding the victim‟s

hospitalization and death:

[We] [s]tarted talking about the night of the incident, which was June 30th,

that they did go to her daughter‟s karate class and they arrived back home

around 9:30, and [appellant] did go upstairs and wake up [the victim] to get

her to get something to eat because she hadn‟t eaten dinner, and when she

did she sat up and at that point she kind of bumped her head on the bed rail

of the bed. . . . [S]he was asked if there was any . . . reason that there [were]

any injuries or anything like that. She said, no, that she just got up and

walked out of the bedroom. They went to the stairs. They started walking

down the stairs. [The victim] tumbled down a couple of the stairs and

[appellant] said that she caught her and then she rolled -- not rolled, but

scooted down on her back a couple more steps. And at that time she looked

at her -- [the victim] looked at [appellant] and held her breath, and that

[appellant] picked her up and put her back in the bedroom.

When asked about whether appellant discussed interactions between herself and Mr.

Mark with regard to her treatment of the victim, Detective Harris testified, “[Appellant]

said that she knew what she was doing was wrong but she would lose control.”

In relation to the victim‟s head injury, “[appellant‟s] first explanation was that --

could it be the ice pack incident, and then on into the discussion, she mentioned the

bumping of her head on the bed rail, then she mentioned the bumping of her head on the

staircase where she tumbled down a couple of stairs.” Detective Harris testified that she

persisted in questioning appellant about the victim‟s head injury because she received

information from hospital staff and that she “believed that there was more to it.”

Appellant eventually offered that the victim‟s breath-holding spell on the stairs

“frustrated” her, so when the victim passed out, appellant picked her up “and walked her

up to the guest room and flung her in the bedroom onto the mattress. Before hitting the

mattress her head hit the wall.” Appellant said it was possible that the victim‟s head

struck the window sill before stating that her head had, indeed, hit the wall. Detective

Harris asked appellant what she did next:

-21-

She said that she walked over there and rolled her on her side so she

wouldn‟t vomit and swallow the vomit and choke. At that time, I asked her

was she making any noise, and she said, no. She said that she went

downstairs and watched a movie with her husband, came back a couple of

hours later, and checked on her. She was unresponsive.

She said that she rubbed on her chest to try to get her to wake up and

she was still unresponsive. She stated that there was some blood and saliva

coming out of her mouth so they cleaned it up with a shirt, and actually that

night they changed her, still unresponsive, into another shirt, and then they

went to bed.

....

She went -- the next morning she woke up. She took a shower. She

got her breakfast ready and then she went and checked on [the victim]. She

was still unresponsive and there was a little bit of blood and saliva mix

coming out of her mouth, so she wiped it again. She carried her

downstairs. That‟s when her husband, Steven, woke up, and she said that

she was still unresponsive, so she gave [the victim] to Steven and said, “I

have to go to work.” So she left him and went to work.

Detective Harris testified that when she left the hospital, a case worker from Child

Protective Services (“CPS”) was waiting to question appellant about her eight-year-old

daughter. Detective Harris then traveled to appellant‟s residence, where the crime scene

unit was collecting evidence. She described her conversation with appellant as she did

during the suppression hearing.

Detective Harris stated that evidence from appellant‟s home was seized and

forwarded to TBI for DNA analysis. She confirmed that appellant was not arrested until

several days later and that Mr. Mark, appellant‟s husband, was also charged with several

counts of aggravated child abuse.

Detective Harris emphasized that appellant chose in which chair she wanted to sit

during the interview and that the detectives did not direct her to a chair on the opposite

side of the table from the door.

The State called Detective Brian Harbaugh as its next witness. He stated that he

arrived at Vanderbilt Children‟s Hospital toward the end of his 8:00 a.m. to 4:00 p.m.

shift and estimated that it was around 5:00 p.m. He explained that he recorded the

interview with appellant without her knowledge because when one informs an individual

that they are being recorded, they become “apprehensive” about answering questions.

-22-

They “react differently,” become “short-worded,” and do not communicate well. The

recorded interview was then played for the jury. Detective Harbaugh confirmed that the

interview had lasted approximately two and a half hours when they took the first break.

Detective Harbaugh described for the jury appellant‟s demonstration of how she

“flung” the victim onto the bed. He said, “She raised both of her hands up here towards

her chest, and then we asked her just to go ahead and do exactly the same intensity and

force that she did, and she shoved her hands out like that.” The remainder of Detective

Harbaugh‟s testimony was consistent with that he gave at the hearing on the motion to

suppress.

On cross-examination, Detective Harbaugh acknowledged that appellant, in

describing the events of the night before the victim died, stated that as they were walking

down the stairs after karate, the victim struck her head when she was falling on the stairs.

He denied having spoken with a doctor prior to his interview with appellant but agreed

that he learned of the victim‟s condition from other detectives before beginning the

interview. He recalled that during the interview, appellant said that the victim was fine

and ate well at breakfast and lunch on June 30 but that she would not eat her dinner.

Appellant then told Detective Harbaugh that she then went to karate with her older

daughter and upon her return, the victim was in a different condition. Detective

Harbaugh stated that he was aware that appellant and/or Mr. Mark had placed a call to the

adoption agency and remarked that the victim was a “demon child” but did not recall that

it was placed the day before the victim died.

Detective Chris Melvin with the Lebanon Police Department was the State‟s next

witness. He testified that he was asked to assist the Mt. Juliet Police Department by

collecting and documenting evidence at appellant‟s home. Through him, crime scene

photographs and physical evidence, including a piece of drywall from appellant‟s guest

room, a crib mattress, and a shirt, were offered and admitted.

Special Agent Forensic Scientist Jennifer Shipman with the TBI crime laboratory

was accepted by the trial court as an expert in serology and DNA analysis. She examined

the piece of drywall, the crib mattress, and the shirt that Detective Melvin collected and

submitted to TBI and found blood and DNA on all three items that matched the victim‟s

DNA to the exclusion of the world‟s population. On cross-examination, Special Agent

Shipman acknowledged that her testing could not determine the date(s) on which the

blood stains were deposited on the items.

The State called Rebecca Allen as its next witness. Ms. Allen became acquainted

with appellant because both families had daughters the same age, and the daughters had

attended kindergarten and had been involved in other activities together. Ms. Allen had

adopted two children and shared with appellant some of the struggles they had with

-23-

adjusting. When appellant and her family returned from China, they attended a birthday

party for Ms. Allen‟s daughter the following day, April 9. Ms. Allen met the victim at

that time, whom she said was “smiling,” “very happy,” and interacting with the other

children to some degree.

Ms. Allen recalled that the next time she saw the victim was at a Girl Scout

meeting where Mr. Mark had taken the older daughter. Ms. Allen described the victim as

“very quiet” that day but remarked that the victim “hugged” Mr. Mark‟s legs and called

him “Papa,” so she thought that the victim was bonding and adjusting well. The next

time she saw the victim was at the karate studio. Ms. Allen noticed that she had several

bruises on her arm around her wrist and between her elbow and wrist, which she

described as “striped kind of bruises.”

Ms. Allen said that the next time she saw the victim was at the birthday party of

appellant‟s older daughter. Someone made the victim a plate of rice to eat. It was very

hot outside, so Ms. Allen fanned the victim while she ate. She noted that despite the heat,

the victim was dressed in long pants and a t-shirt. Ms. Allen opined that the victim took a

long time to eat and that “she seemed to chew on the same piece of food over and over

like she was having trouble swallowing.” Appellant was upset that the victim was taking

so long to eat “so she took the spoon and she started to feed her herself and [Ms. Allen]

noticed that [appellant] was pinching her wrist, squeezing her arm and telling her to

swallow, and [the victim] gagged a little bit but she managed to swallow the food.”

When appellant noticed that Ms. Allen was aware of her actions, she stopped pinching

the victim.

Ms. Allen testified that after seeing the victim at the karate studio, she was

concerned about the victim‟s welfare. Her concerns grew after the birthday party, and

she was worried that the family was not “transitioning well with the adoption process.”

She decided to schedule a play date on July 4 so she could talk with appellant and suggest

some resources that the Allen family had used. However, days before the play date, Ms.

Allen saw on the news that a child had been air-lifted to Vanderbilt Children‟s Hospital

from the Providence area, and although the child‟s name was not released, her “heart

sank” because she “just knew it was probably [the victim.]” She called Social Services

because she did not think it was safe for the victim to return home with appellant, but she

subsequently learned that the victim had died.

The State‟s next witness was Christine Kowal, who knew appellant from the

karate studio. She recalled that the first time she saw the victim was at the karate studio.

Ms. Kowal saw appellant and the victim, who were already seated, and she walked over

to say hello and congratulate appellant. She described, “[Appellant] raised her hand up to

me, and . . . in a little bit of a whisper voice she said, „[W]e‟re starting to find out that

-24-

she has some manipulative behaviors so we want to try and control that, so . . . try not to

give any more attention to her.‟” Ms. Kowal assented and “ignored” the victim that day.

Ms. Kowal testified that at the first meeting, she did not know how old the victim

was but that she appeared “very tiny,” “shy,” and “very quiet.” She said that she initially

became concerned about the victim when she saw the victim and Mr. Mark at karate one

evening, and she “was taken back” by the bruise she saw on the victim‟s face. She asked

Mr. Mark what had happened to the victim. He explained,

[Appellant] was taking the girls and the dog out for a walk in the

neighborhood and [appellant] and the older daughter turned the corner and

[the victim] did not follow behind, she strayed away. And by the time

[appellant] realized that she was gone, [appellant] turned around, [the

victim] showed up and she was bruised.

Ms. Kowal said that “in [her] opinion, the bruises did not match a fall outside.” She

characterized them as “more extensive.” She recalled that the victim “had a huge bruise,

hematoma on her forehead. She had two huge bruises and some abrasions on both sides

of her cheeks, I do believe at the time. She had bruising on one side of her neck and she

also had some bruising on her forearm.” Upon arrival at her home, she discussed the

situation with her husband because she was concerned that the “story” Mr. Mark told her

“did not quite match up to what [she] could physically see on [the victim].”

Subsequently, when she saw the victim again, the victim “was bruised again and

[the bruises] were . . . more severe than the first time . . . . [T]he bruises were almost in

the exact same place from the first time except one abrasion was covered up with a

bandage.” Ms. Kowal stated that she saw appellant interact with the victim one time at

karate. Ms. Kowal was already seated, and she observed appellant walk in with the

victim, pick her up by her arms, “swing” her over the back of a chair, and “slam” her into

the seat. At the time, Ms. Kowal thought to herself that appellant had been a “bit rough”

with the victim.

The State called Dr. Alice Rothman, an assistant professor of general pediatrics, a

general pediatrician, and the medical director of the International Adoption Clinic, as its

next witness. Dr. Rothman was offered by the State and accepted by the trial court as an

expert in the field of pediatrics. Dr. Rothman examined the victim for a post-adoption

evaluation on April 12, 2010. She noted that the victim‟s height and weight placed her in

less than the third percentile of American children and that the victim suffered from

“failure to thrive.” As part of the evaluation, Dr. Rothman examined the victim‟s anal

area with respect to the surgery she had undergone to correct an imperforate anus.

Appellant reported that the victim was not toilet-trained, and Dr. Rothman believed that

she was wearing a diaper. Appellant also said that the victim did not seem to recognize

-25-

when she needed to urinate or defecate and that the victim often complained of pain when

her “bottom area” was cleaned.

Dr. Rothman recalled that an echocardiogram of the victim‟s heart that was taken

in China showed a “buckled aortic arch.” She did not perceive such a condition when she

listened to the victim‟s heart, but she scheduled a referral for the victim to have an

additional echocardiogram performed. The cardiologist‟s report indicated that it was a

“borderline echocardiogram for age” but stated that it was not likely to be of clinical

significance. Further, Dr. Rothman noted a developmental delay related to the victim‟s

gait, which appeared to be unsteady. The records did not contain information with regard

to the age at which the victim began to walk.

Dr. Rothman testified that she reviewed medical records from China indicating

that the victim‟s IQ placed her in the range of mental retardation. Dr. Rothman noted in

her file that the victim appeared to be transitioning well and that she did not display any

unusual rocking or self-soothing behaviors.

Dr. Rothman stated that she performed a “regular” child‟s physical upon the

victim and that the victim had no bruising, scarring of the nipples, broken bones, or

missing teeth at the time. Other than during the examination of her anal area, the victim

did not appear uncomfortable. Dr. Rothman referred the victim to an occupational

therapist in the clinic, who assessed the victim‟s delays and determined that she was

within the normal range of delay of a child who had been in an orphanage.

The State called Tammy Bass, the director of the Nashville branch of Bethany

Christian Services, as its next witness. She testified that appellant and Mr. Mark

requested a special needs child and that the extent of the victim‟s special needs was

provided to them in their referral. Through Ms. Bass, the State introduced a videotape of

the victim that had been provided to appellant. Defense counsel objected to admission of

the videotape. Counsel asserted that it was made for the purpose of securing the victim‟s

adoption and that it was in a setting where the victim could be prompted and cued. The

trial court reviewed the tape in chambers and redacted certain portions that it deemed to

be cumulative. The remainder, however, was ruled to be relevant and probative.

Ms. Bass testified that China required post-placement adoptive visits at the six-

month and one year mark but that Bethany mandated a two-week visit. At the two-week

visit, appellant and Mr. Mark reported that the adjustment was going better than expected

and that the only concern they had was toilet-training. Ms. Bass noted that although the

first visit was two weeks after they returned from China, someone from Bethany is

always available twenty-four hours a day to respond to questions or concerns. When

someone voices a concern, Bethany immediately intervenes to provide support and

necessary services. She said that appellant and Mr. Mark were aware of their policy but

-26-

that the first contact Bethany had from them indicating a problem was June 30 when Mr.

Mark called and said there was a problem. Ms. Bass encouraged Mr. Mark to contact

Bethany‟s post-adoption counselor, but he did not do so. Ms. Bass also spoke to the

counselor and suggested that he “reach out” to the Mark family.

On cross-examination, Ms. Bass denied that the video was produced for the

purpose of showing the “very best” of a child and encouraging families to adopt. Rather,

she explained that it was created “to show an accurate representation of the child because

nobody wants a family to get to China and say this isn‟t what we bargained for.” She

acknowledged that the victim‟s adoption file contained a notation that Mr. Mark had

contacted their case worker on June 30 and had referred to the victim as a “demon child.”

Mr. Mark had indicated that since Father‟s Day, the victim had been engaging in self-

destructive behavior such as head-banging, inducing vomiting, and holding her breath to

the point of unconsciousness.

Dr. David Lien, a board-certified emergency medicine physician at Summit

Medical Center, was offered by the State and accepted by the trial court as an expert in

his field. Dr. Lien was working on July 1, 2010, when the victim arrived at 9:44 a.m. The

hospital received a call from paramedics as they were en route with the victim advising

that they had a pediatric patient who was not breathing, was unresponsive, and did not

have a pulse. When the victim arrived, she was intubated, showed no signs of life, and

displayed bruises in various stages of healing. Dr. Lien administered epinephrine, which

restarted the victim‟s pulse. He continued resuscitative efforts and contacted life flight so

that the victim could be transported to Vanderbilt Children‟s Hospital by helicopter.

While they were waiting on the helicopter, Dr. Lien ordered blood work and other

diagnostic tests. Based upon the victim‟s body temperature of eighty-eight degrees, Dr.

Lien estimated that the victim had been without oxygen for approximately five to six

hours. The victim was also anemic, which could have been attributed to many different

factors, including blood loss. Dr. Lien stated that he and the staff developed suspicions

about the cause of the victim‟s injuries. He said, “[The victim] had multiple stages of

bruising in multiple places – one over the right eye, facial area, and some bruising on the

back, bruising on the upper extremity and more so on the lower extremities.” He noted

that “they appeared to be different phases of bruising and that suggests abuse.” He

concluded, “In my training, we‟re definitely told to look for stuff like that.” The victim

was transported from Summit at 10:25 a.m. on July 1.

On cross-examination, Dr. Lien acknowledged that the victim was underweight for

her age and that malnutrition could have contributed to her anemic condition.

The State‟s next witness was board-certified pediatric hospitalist Dr. Paul Hain

with Vanderbilt Children‟s Hospital, who was accepted by the trial court as an expert in

-27-

pediatric medicine. Dr. Hain was working when the victim arrived at Vanderbilt by

helicopter on July 1. He stated that upon arrival, the victim was in critical condition. The

intensive care doctor led the victim‟s care team, but Dr. Hain consulted to “help them

understand what [the] constellation of injuries meant and if they should be concerned that

they were a result of something nonaccidental.”

Dr. Hain testified that when he first saw the victim at 4:30 p.m. on July 1, she was

intubated, was being administered medication to keep her blood pressure elevated, and

was unresponsive. The victim also presented with “blown pupils,” which results when

one‟s brain swells from an injury, exerting pressure on the optic nerve and causing the

pupils to stop reacting. Dr. Hain reviewed all of the imaging studies that had been

conducted and noted multiple posterior and lateral rib fractures in various degrees of

healing. He noted that because the ribs are protected by muscles in the back or posterior

location, it is very difficult to “hit” a rib in the back and break it. He continued,

In fact, the only way we really know that you get these rib fractures in the

back [is] by squeezing them. So when you see posterior rib fractures in a

child, this is an extremely concerning event because what it means is that

someone with strength and coordination has placed their hands on this child

and squeezed so hard as to snap the ribs where they come around through

the back of the rib cage. And you can see these snapped ribs at the hands of

an adult in different stages of healing, which means this didn‟t happen

once, this happened on multiple occasions.

He said that the oldest fracture dated back approximately two months and that the newest

fracture was less than seven days old. He counted nine rib fractures in all.

Dr. Hain stated that the type of injuries the victim had “would obviously” cause

the intensive care staff to be “very suspicious that something had happened to this child

that was not accidental.” A skeletal survey, or an x-ray of every bone in the body, was

ordered to ascertain if there were any other fractures. The results indicated a widening in

the coronal sutures, the areas where the unfused bones of the skull were supposed to

meet, which indicated that the brain had swollen to such a degree that it was starting to

separate the bones of the skull. He noted a healing metacarpal, and the position of the

break indicated that the victim had her hand hit by something while it was “in an

outstretched position.” He characterized the break as “highly unusual.” Dr. Hain

described two healing fractures of the victim‟s left ulna, or forearm.

With regard to the victim‟s head injuries, Dr. Hain explained that the victim

suffered diffuse anoxic brain injury, which was an “all-over” injury involving lack of

oxygen. He said that one could not live longer than a day after suffering such an injury

but that life-sustaining functions could continue. However, soon after the injury

-28-

occurred, one would become “very obviously not functional.” The ICU doctor performed

a brain death examination on the victim that indicated no respiratory drive, no corneal

reflex, and no response to stimuli. The victim was essentially brain dead at that time.

Dr. Hain identified a photograph of the victim and noted her black eye, stating that

it was an unusual injury for a toddler to have sustained. When asked if a fall in which the

victim struck her head on a bedrail could have caused the brain injury, Dr. Hain answered

that it was enough to cause a bruise but that “we know . . . that children fall and they hit

their heads and they don‟t die of brain swelling with a traumatic head injury in an

intensive care unit . . . . Children just don‟t slip and bonk their head on something and

have their entire brain come apart and swell and die . . . .” He said that the sort of brain

injury the victim suffered required “more force than anyone would think,” such as a fall

from a second- or third-story window or involvement in a high-speed automobile

accident. When asked if throwing the victim into a wall could have caused the injury, Dr.

Hain stated, “So to be thrown into a wall, to have this cause your brain to swell up

catastrophically and for you to die, I mean, she was hurled into a wall if that was actually

the mechanism.”

Dr. Hain said that bruising on the victim was also noted. He clarified that one

might expect to see bruises on the forehead or forearm of a child but that bruising

between the shoulder blades, such as the victim had, could only be caused by “infliction”

of the bruises. He did not note any physical condition of the victim that would have

caused her to bruise easily. He opined that she did not suffer from brittle bone disease

and noted that her bones appeared to be normal when he viewed the films. Dr. Hain

explained that before a patient can be pronounced brain dead, there must be two separate

brain death exams, separated by time, performed by two different doctors. That was done

in the victim‟s case, and she was pronounced brain dead on July 2, 2010.

Dr. Hain testified that the victim died as a result of nonaccidental trauma. He

expounded,

This child was deliberately injured by someone with the strength and

coordination of an adult. And when you think about the number of

fractures, which is in the teens, and the bruising in places she shouldn‟t be

bruised, this child wasn‟t just abused once. This child was abused over the

course of time, multiple times, painful skin issue, painful broken bones,

never brought to medical attention. This child was tortured and then killed.

On cross-examination, Dr. Hain was asked if he thought the victim had been

malnourished. He opined that in malnourished children, the last body functions to be

preserved were bone growth and brain growth. That is, those are the last functions to be

affected by malnutrition. Based on the relative health of the victim‟s bones, he answered

-29-

“actually pretty definitively” that even if the victim had been malnourished, that

condition did not affect her bones.

The State called Dr. Thomas Deering, a forensic pathologist, as its next witness.

He was tendered by the State and accepted by the trial court as an expert in his field. He

testified that the victim was pronounced dead on July 2, 2010, at 11:48 a.m. and that he

performed the autopsy on July 4 beginning at 10:00 a.m. The overall “heading” of his

autopsy report was that the victim suffered “multiple acute and chronic blunt trauma

injuries.” He further subdivided his report into several areas.

With regard to the victim‟s head, Dr. Deering noted a right periorbital

hemorrhage, or a black eye. He listed blunt trauma to the four lower incisors with a

“healing laceration of the gum line.” He described a subgaleal hemorrhage to the top of

the head, or a “scalp hemorrhage.” He also explained that there was a separation of the

sagittal and left coronal sutures of the skull. Those are places where multiple bones

would grow together and eventually seal, but the victim‟s brain expanded to such a

degree that it split the sutures, causing them to widen again. The victim had a large

subdural hemorrhage spanning both sides of the brain and along the spinal cord, which

Dr. Deering attributed to blunt force trauma. Dr. Deering found “extensive” brain edema,

or swelling. He opined that in this case, the blunt trauma not only damaged the dura, it

also damaged the victim‟s brain, causing it to swell. He noted bilateral optic nerve sheath

hemorrhages without retinal hemorrhages, which would rule out “shaken baby

syndrome” and would point toward an “impact” injury where either something struck the

victim‟s head or the victim‟s head struck an object.

Dr. Deering testified that the next category of injuries involved the victim‟s chest.

He noted several scars on the victim‟s chest, concentrated around her nipples. He

described multiple calloused rib fractures located in the victim‟s back and on both sides.

He stated,

It‟s very difficult to fracture a kid‟s ribs because they‟re just a lot more

flexible than an adult‟s are. In particular, when I see rib fractures that are

posteriorly located, that‟s very, very difficult to do from something

accidental. So I‟m concerned about these. The fact that there were

multiple rib fractures and that they were on both sides is concerning to me.

Further testing revealed that the some of the fractures were from different events ranging

from one week old to six weeks old and that some of the fractures were sustained at the

same time. He said that absent a “story” about an event such as a car wreck, he surmised

that the rib injuries could have been inflicted by an adult squeezing the victim with such

tremendous force as to fracture the ribs. Finally, he noted bruises on the right and left

side of the victim‟s middle back.

-30-

Dr. Deering described three linear healed round lesions on the back of the victim‟s

left thigh. He posited, “[They] may be healing abrasions or even healing burn marks.

And the reason I say that is because they‟re round . . . . I don‟t know what they were

originally. They‟re scars now and they‟re healed, and they‟re a little unexpected. I don‟t

know what they would be from.” Dr. Deering found bruising at the base of the victim‟s

right thumb and right third finger. Finally, he noted a healing fracture to the left ulna,

which he estimated to have occurred six to eight weeks earlier.

Dr. Deering opined that the cause of the victim‟s death was acute and chronic

blunt force trauma and that the manner of death was homicide. He added, “The pattern of

the chronic injuries with the now fatal acute injury to the brain suggests a pattern of

ongoing child abuse, battered child syndrome.” He stated that after examining the

victim‟s x-rays, he did not observe any disease such as brittle bone disease or vitamin

deficiency that could have accounted for the victim‟s broken bones. With regard to the

amount of force necessary to have inflicted the victim‟s fatal brain injury, Dr. Deering

testified:

In this particular case, to cause this amount of injury to a brain

requires a moderate amount . . . of force and probably a fairly severe

amount . . . . I think the impact site is over the back of the head. It may be

rather a broad impact site, and by broad, floor, wall, a seat . . . [N]ot an

object like a bat or a fist, but something where the striking force is spread

out over a broad area.

As this was experienced by the child, she would not be normal after

this. She would have some kind of neurologic defect. That doesn‟t mean

that she would be immediately unconscious. I can‟t predict that from the

injury, but she would not be normal anymore . . . .

[T]he measure of how severe this is, well, it killed her. I would

expect that this would progress rather rapidly and eventually she would

come to a point where she was no longer conscious. But that‟s not

necessarily immediately so, but she would not be normal at the point of

which this was inflicted.

On cross-examination, Dr. Deering confirmed that the victim‟s missing teeth had,

in fact, been “baby” teeth and that they had not been broken. He agreed with the

hypothetical in which the victim had been injured while appellant was at karate and

began to show neurological symptoms such as stumbling on the stairs when she returned.

On redirect examination, Dr. Deering agreed that with the severity of the victim‟s injury,

unconsciousness could have resulted immediately.

-31-

Upon this evidence, the State rested its case-in-chief. The defense presented as its

first witness Dr. James Walker, a forensic neuropsychologist, who was accepted by the

trial court as an expert in neuropsychology. He testified with regard to “the

phenomenon” known as false confessions in which a person admits to a crime that they

did not actually commit. He stated that this was an area of “intense study and scrutiny”

for him. Relevant to false confessions is the personality trait of suggestibility, which can

be quantified using the Gudjonsson test. Dr. Walker testified that outside of one‟s

suggestibility, police tactics also precipitated false confessions. He said that police are

trained to elicit confessions by utilizing the following interrogation practices: isolating

the subject; keeping them in a room surrounded by symbols of authority such as badges

and guns; telling the subject that you know they are guilty and that this can all be over

when they finally admit their guilt; telling the subject that they are not a bad person and

that the officer understands they did not mean to do what they actually did; telling the

subject that if they will just confess to what they are accused of, then everything will go

much better for them. Dr. Walker said that some people falsely confess because of

deference to authority. Others confess falsely because of sleep deprivation, depression,

or anxiety. Still others do so to protect loved ones.

Dr. Walker recalled that when he met appellant, he found her to be “exceptionally

pleasant” and she seemed to be “a very kind, gentle person.” She was “incredibly

deferential” to Dr. Walker, was “alert, oriented,” “bright,” “articulate,” and “also very

eager to please.” He remarked that appellant was Asian-American and that an important

part of that culture was respect for elders and respect for those in positions of authority.

During his evaluation of appellant, Dr. Walker considered investigators‟ notes and

administered the Greens Word Memory Test. The Greens test assessed the individual‟s

truthfulness, and he said that appellant performed perfectly, indicating that she was trying

to do her best. He also administered a Mini Mental State Evaluation to determine

whether appellant‟s basic mental functions were intact. The test showed no mental

dysfunction. Appellant‟s scores on the Personality Assessment Inventory were mostly

within normal limits, but in some areas, her scores were elevated. On the Positive

Impression Management Scale section, she answered some items in a defensive way,

such as whether she would become angry when insulted or when someone forgot to

empty the trash. Dr. Walker said, “She tended to say that she didn‟t do things like that,

like a typical person would.” Appellant scored “low dominance” on the inventory, which

indicated that she was nonconfrontational, avoided conflicts, and felt she had lower self-

esteem than others. He opined that those characteristics would make a person more

likely to admit doing something she had not done. Dr. Walker administered an EQI to

obtain appellant‟s emotional rather than intelligence quotient. The results indicated that

appellant had low self-esteem, did not hold herself in high regard, and felt as though she

was never able to achieve as her family expected. He said appellant is empathetic,

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sympathetic, compassionate, deferential, and unlikely to assert herself. He described that

she had a great deal of social responsibility, was a rule-follower, and was not a good

problem solver. She does not think “well on her feet,” and it would take her longer and

require more effort for her to solve a challenge. Appellant described herself as “a rather

unhappy individual.”

Dr. Walker also utilized the Gudjonsson Compliance Scale and the Gudjonsson

Suggestibility Scale. The results of the compliance scale indicated that appellant

answered all twenty questions in the “compliant direction.” He said, “She described

herself as an extremely compliant individual, someone who never goes against

authority.” The suggestibility scale was “designed to get at the heart of this idea of

suggestibility. And it‟s done by directly measuring whether or not you can get the patient

to change their mind about something that they know is actually true.” When asked

leading questions about a passage that Dr. Walker read, appellant answered affirmatively

to those questions at a level that was “higher than average.” On the next part of the test

in which Dr. Walker challenged some of appellant‟s answers, she changed her answers

eight times, “which is a very high number.” He said,

She‟s a very suggestible person. She‟s very compliant. When I gave her

the false feedback that she had done very poorly on the test and we should

try to do better the next time, she appeared so crest fallen it was almost like

I had slapped her across the face. She was just so mortified that she had not

done a good job and she wanted to do better. I think that‟s why she

changed her answers on this test.

With regard to appellant‟s interrogation, Dr. Walker opined:

I think that her interrogation by the police was of course as it would be with

anybody, a very stressful time. But for [appellant] it was especially

stressful because she was confronted by people in authority who wanted her

to say things that she did not want to say, who wanted to get her to say that

she had done the things that she didn‟t want to say that she had done. This

was a tremendous dilemma for her.

He stated that based on Detective Harbaugh‟s interrogation techniques, the size of the

room, the number of people in the room, the lack of windows, and the location of the

exit, in conjunction with appellant‟s predispositions, she was “very susceptible” to

making a false confession on July 1, 2010.

On cross-examination, Dr. Walker stated that he interviewed and tested appellant

twelve days prior to the trial in this matter, and he confirmed that she had given a “very

damaging confession.” He admitted that he was unaware of the adoption paperwork

-33-

appellant and Mr. Mark had completed wherein they wrote that although they were

Chinese, they did not have a “strong grasp” of the Chinese culture. He acknowledged

that appellant had portrayed to him that she, in fact, had a strong tie with the Chinese

culture. Dr. Walker agreed that it was a fair assessment that appellant “thinks ahead”

when answering questions.

The State asked Dr. Walker whether he had an opinion about whether appellant‟s

statement to the police was true, to which he answered, “I do not.” He clarified, “Not

within a reasonable degree of scientific certainty.” He agreed that it was “very possible”

that she was telling the truth in her statement.

After the defense attempted to call Steven Mark, who exercised his Fifth

Amendment right to not testify, appellant called Detective Stolinsky as its next witness.

Detective Stolinsky testified with regard to his interview with Mr. Mark. He recalled that

at one point on July 1, they drove to the Mark residence, and Mr. Mark typed his own

statement for Detective Stolinsky. Mr. Mark wrote about an incident wherein he placed

the victim in a box in the garage as punishment and that he feared the victim might

suffocate. He would also place the victim in a dark closet as a form of punishment. He

recalled the victim‟s habit of holding her breath until she lost consciousness and said that

she would remain unconscious sometimes for one to two hours. During one of her

episodes, he attempted to pry her mouth open with a toothbrush, and in doing so, he

knocked out some of her baby teeth. Detective Stolinsky testified that Mr. Mark applied

heating pads to the victim‟s legs to assist with circulatory problems and that he burned

the victim‟s skin by doing so.

On cross-examination, the State elicited that none of the forms of punishment that

Mr. Mark mentioned involved bruising or broken bones.

Appellant also presented as character witnesses medical personnel with whom she

had worked, the parents of patients whom she had treated, and a fellow church member.

Upon this evidence, the jury deliberated and found appellant guilty of first degree

felony murder committed during the perpetration of aggravated child abuse, four counts

of aggravated child abuse, and four counts of child abuse. The trial court sentenced

appellant to life imprisonment for the felony murder conviction and conducted a

sentencing hearing on the remaining convictions.

C. Sentencing Hearing

At the sentencing hearing, the State called Cheryl Jackson with the Tennessee

Board of Probation and Parole as its first witness. Ms. Jackson prepared appellant‟s

presentence report. She noted that appellant had no criminal history.

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The trial court began its ruling by considering the mitigating factors advanced by

appellant, beginning with factor (7), that appellant was motivated by a desire to provide

necessities for her family or herself. Tenn. Code Ann. § 40-35-113(7). The trial court

concluded:

Under no set of circumstances can any person, particularly a parent,

repeatedly abuse a child, that abuse being to such an extent that after certain

repetitions it results in the child‟s death. That cannot ever be considered a

desire to provide a necessity for . . . for the Defendant‟s family or the

Defendant‟s self.

It‟s an absurdity to think that any person, particularly a parent, can

abuse a child, . . . to cause cracked ribs, serious bodily injuries which

ultimately resulted in the child‟s death, and these were intentional acts to

provide for the necessity of the family. So I specifically find that that

mitigating factor, Number 7, does not apply.

With regard to the mitigating factor that appellant assisted the authorities in

uncovering offenses committed by Mr. Mark or in detecting or apprehending other

persons that committed the offenses as contemplated by Tennessee Code Annotated

section 40-35-113(9), the trial court reasoned:

She was not interested at all in helping the State of Tennessee

uncover criminal activity. Her only desire, her only motivation in giving

these statements and doing any participation was to help herself. That‟s

very clear from the motions, from the testimony at the suppression hearing

and the testimony at trial.

So, the fact that the police officers were very adept and very trained

and very good at developing this information, she doesn‟t get credit for that

because that was never her motivation. That was never her intent. That

was never her desire. So, I do find that that particular mitigating factor,

which is a statutory factor, going back, Number 9, has absolutely no

application.

Appellant advanced factor (11) but modified it to simply read that she although

guilty of the crime was acting under such unusual circumstances that it is unlikely that a

sustained intent to violate the law motivated the criminal conduct. Id. § 40-35-113(11).

The trial court stated:

-35-

I also find that that mitigating factor does not apply because in this

particular case the proof is clear, we had a sustained intent. We had, as I

recall from the proof, eighty three plus or minus days of continual constant

abuse, and they were intentional acts. I remember the proof. I made notes

of the proof, the twisting of the nipples, the slapping of the hands, the

throwing of the child against the wall.

The proof is there was sustained intent to abuse this child until what

happened ultimately happened, the death of a child. I mean, there was no

other end coming. It was the only logical resolution of what was going on

in that household. So, I do find that that mitigating factor does not apply.

Under the “catch-all” provision, see Tenn. Code. Ann. § 40-35-113(13), appellant

advanced that her social and ethnic background greatly contributed to her actions. The

trial court declined to apply this factor, concluding that “there was absolutely no proof

that her social and ethnic background contributed to her actions because there was

absolutely no proof that people of her culture and background abuse children until they

die.”

The State relied upon Tennessee Code Annotated section 40-35-114(5), that

appellant treated, or allowed the victim to be treated, with exceptional cruelty during the

commission of the offense. Finding this enhancing factor applicable, the trial court

surmised:

So how do you define exceptional cruelty. Well, the only thing I‟ve got left

is to look back at the proof at trial. As Mr. Lowery correctly stated, I

cannot use the event itself to establish exceptional cruelty. I must go

beyond that.

There‟s proof in this case that goes beyond that. See, this child

suffered not only at the time the injury was committed but she suffered

twenty[-]four hours a day, seven days a week. Mr. Lowery did bring up the

emotional cruelty part, that I can take a further step. I can find this if I look

at emotional cruelty.

Like I said, the only person that can testify to that, she‟s not with us

anymore. But, given the facts of this case, the nature of the injuries, the

scarring, the bones that were trying to heal, what‟s going through that little

girl‟s mind everyday, that her own adoptive mother has broken her bones,

crushed her body.

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Do we not know as being parents, all of us in this room, knowing the

human body, that there is a large degree of emotional pain that goes along

with that, with that constant pain. I think we can. I think certainly we must

do that. So I do find that enhancement factor Number 5 applies.

The State asserted that factor (6), that the personal injuries inflicted upon the

victim were particularly great, applied to the case. Id. § 40-35-114(6). The trial court

considered this factor and in concluding that it applied, stated, “I cannot use the injury

itself . . . to enhance within the range. But it does use the term, particularly great, and in

this case it goes beyond particularly great. In this case it ends in death. . . . There is no

greater injury.”

The trial court also found that appellant abused a position of private trust in

committing the offenses. Id. § 40-35-114(14). The court determined that appellant

should be sentenced to the middle of the applicable range for all of her convictions and

imposed sentences of twenty years each as a Range I, standard offender at one hundred

percent release eligibility for the four convictions for aggravated child abuse and three

years each as a Range I, standard offender for the four convictions for child abuse.

In considering appellant‟s sentence alignment, the trial court stated:

Using that application that consecutive sentencing would be proper,

of course, that statute specifically says, the Defendant is a dangerous

offender whose behavior indicates little or no regard for human life and no

hesitation about committing a crime when the risk to human life is high.

Of course, I have looked at the standard and I think the defense did

an excellent brief on this point because, you know, it is always a good

reminder to the Court as to how that standard is to be applied, and it tells

this Court what is necessary above and beyond the particular events which

will require consecutive sentencing.

I think I was sort of looking at the last term we had, exceptional

cruelty. You know, dangerous offender, is also I think a term of art. You

know, it‟s always constant to interpretation, definition as the circumstances

change. And so we ask ourself, what is a dangerous offender. And I think

I stated earlier, you know, what can be more dangerous to society, what can

be more dangerous to civilization than a failure to protect those that we‟re

given a duty to protect, particularly our children.

A parent who would kill their child is the poster child for a

dangerous offender. Their picture should be in Webster‟s Dictionary

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beside the words, dangerous offender. So there‟s no question in this

Court‟s mind that Mrs. Mark does meet the definition of a dangerous

offender.

The second part of that test though is, is even though she‟s found to

be a dangerous offender, does consecutive sentencing serve any valid state

purpose, particularly in this particular case for which she‟s serving a life

sentence. I think certainly it does because, you see, children are part of the

state and children need to know, as well as their parents and everyone else,

that they will be protected, and that crimes against our children are the most

serious of all crimes.

In fact, there‟s a statute we have on aggravated child sexual abuse

which specifically calls for consecutive sentencing in those appropriate

situations. Our legislature in making a notation that this is a one hundred

percent offender has made a determination that this is one of the most

serious, if not the most serious, of all offenses. The legislature has decided

that.

So I think that consecutive sentencing in this particular instance does

serve a valid state purpose and does meet the requirements of the statute.

Accordingly, the trial court aligned each of appellant‟s twenty-year sentences

consecutively to each other (Counts II, III, IV, and V) and consecutively to her life

sentence (Count I). It aligned her three-year sentences (Counts VI, VII, VIII, and IX)

concurrently with each other and concurrently with Count II but consecutively to Count I,

for an effective sentence of life plus eighty years.

It is from these judgments that appellant now appeals.

II. Analysis

Appellant raises five issues for our review: (1) whether she was in custody when

she was questioned by law enforcement officers, thereby necessitating an advice of rights

pursuant to Miranda v. Arizona; (2) whether her statement was coerced and involuntary;

(3) whether the trial court erred in admitting into evidence a videotape of the victim that

was prepared by the victim‟s adoption agency to show to prospective adoptive families;

(4) whether the evidence was sufficient to sustain appellant‟s conviction for Count III of

the indictment, aggravated child abuse, based on appellant‟s knocking out four of the

victim‟s primary teeth; and (5) whether the trial court erred in imposing partial

consecutive sentences.

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A. Custodial Interrogation

Appellant challenges the admission of an audio-recorded interview obtained by

Detective Harbaugh. As an initial matter, we must determine the appropriate standard of

appellate review. Relying on State v. Dailey, 273 S.W.3d 94, 100 (Tenn. 2009), appellant

urges this court to conduct a de novo review of the trial court‟s findings of fact with no

presumption of correctness attending the court‟s legal conclusions.

When reviewing a trial court‟s ruling on a motion to suppress, we will uphold the

trial court‟s findings of fact unless the evidence preponderates to the contrary. State v.

Hanning, 296 S.W.3d 44, 48 (Tenn. 2009). “Questions of credibility of the witnesses, the

weight and value of the evidence, and resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996). “But when a court‟s findings of fact at a suppression hearing are based solely on

evidence that does not involve issues of credibility, such as . . . videotape evidence . . . ,

the rationale underlying a more deferential standard of review is not implicated.” State v.

Binette, 33 S.W.3d 215, 217 (Tenn. 2000). When a trial court bases its findings of fact

solely on evidence that does not involve issues of credibility, appellate courts are equally

as capable to review the evidence and draw its own conclusions. Id. In such a case, the

appellate court must conduct a de novo review and attach no presumption of correctness

to the trial court‟s findings of fact. Id.

As appellant points out, this court was provided the audio-recorded statement as

an exhibit in the appellate record, and we are equally as capable as the trial court of

forming our own conclusions. However, appellant overlooks the fact that Detective

Harris testified that she advised appellant, both before the initial unrecorded interview

and before the recorded interview, that her participation was “completely voluntary[]

[and] that she was free to leave at any time.” Detective Harris said, “I pointed to the

door. I said, „[T]here‟s the door.‟ I told her that the only reason why the door was shut

was because of privacy issues because it was a hallway. The waiting room was right off

the hallway and there was a lot of foot traffic.” She further informed appellant that she

was free to leave; that she was free to cease answering questions; that she was free to

request an attorney, at which time they would stop the interview; and that regardless of

what appellant told her in the interview, “she would be going home that night.” These

statements by Detective Harris were not recorded by Detective Harbaugh‟s tape;

however, they were relevant to the trial court‟s determination of whether Miranda

warnings were required. Because the trial court relied on Detective Harris‟s testimony

and credited it, we must apply the more deferential standard of review to this case. We

also note that the party who prevails at the suppression hearing is entitled to the strongest

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

may be drawn from that evidence. State v. Bishop, 431 S.W.3d 22, 35 (Tenn. 2014).

-39-

For the merits of this claim, relying on State v. Anderson, 937 S.W.2d 851, 855

(Tenn. 1996), appellant argues that she was in custody when the officers extracted the

statement from her because “under the totality of the circumstances, a reasonable person

in [her] position would consider himself or herself deprived of freedom of movement to a

degree associated with a formal arrest.” The State asserts that the trial court‟s ruling on

appellant‟s motion to suppress was correct.

The United States and Tennessee Constitutions protect a suspect from “being

compelled to give evidence against himself [or herself].” State v. Berry, 141 S.W.3d 549,

576 (Tenn. 2004) (citing U.S. Const. amend. V; Tenn. Const. art. I, § 9). If a suspect is in

custody, that is, he has been taken into police custody “or otherwise [has been] deprived

of his freedom of action in any significant way,” the police must first inform him of his

Fifth Amendment rights for any subsequent confession to be admissible as substantive

evidence against him in the trial of the matter. See Miranda v. Arizona, 384 U.S. 436,

444 (1966). The United States Supreme Court made clear: “Prior to any questioning, the

person must be warned that he has a right to remain silent, that any statement he does

make may be used as evidence against him, and that he has a right to the presence of an

attorney, either retained or appointed.” Id. A suspect may affect a voluntary, knowing,

and intelligent waiver of his or her rights. Id.

The requirements of Miranda “must be strictly enforced, but only in those

situations in which the concerns that motivated the decision are implicated.” State v.

Goss, 995 S.W.2d 617, 629 (Tenn. Crim. App. 1998) (citing Illinois v. Perkins, 496 U.S.

292, 296 (1990)). However, Miranda warnings are not required in every situation in

which police-citizen contact occurs. State v. Walton, 41 S.W.3d 75, 83 (Tenn. 2001).

Rather, because the purpose of Miranda is to “„dissipate the compulsion inherent in

custodial interrogations, to prevent coerced self-incrimination, and to prevent relevant

defendant ignorance,‟” see State v. Callahan, 979 S.W.2d 577, 582 (Tenn. 1998),

Miranda warnings are only required when a suspect is in custody and is subjected to

questioning or its functional equivalent, see Rhode Island v. Innis, 446 U.S. 291 (1980).

Walton, 41 S.W.3d at 83. “Absent either one of these prerequisites, the requirements of

Miranda are not implicated.” Id.

While the inquiry of whether one is in police custody is somewhat objective, the

question of whether one has been “deprived of his freedom of action in any significant

way” is rather amorphous. As such, our supreme court has emphasized that the proper

test is “whether, under the totality of the circumstances, a reasonable person in the

suspect‟s position would consider himself or herself deprived of freedom of movement to

a degree associated with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn.

1996). The Anderson court listed the following non-exhaustive objective factors to be

considered assessing the totality of the circumstances:

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 the time and location of the interrogation;

 the duration and character of the questioning;

 the officer‟s tone of voice and general demeanor;

 the suspect‟s method of transportation to the place of questioning;

 the number of police officers present;

 any limitation on movement or other form of restraint imposed on

the suspect during the interrogation;

 any interactions between the officer and the suspect, including the

words spoken by the officer to the suspect, and the suspect‟s verbal

or nonverbal responses;

 the extent to which the suspect is confronted with the law

enforcement officer‟s suspicions of guilt or evidence of guilt;

 and finally, the extent to which the suspect is made aware that he or

she is free to refrain from answering questions or to end the

interview at will.

Id. The court reaffirmed the discretion given to the trial courts in ruling on this issue,

noting that the trial courts are “especially suited” to applying the appropriate factors to

the facts of a particular case. Id. Moreover, “[t]he test is objective from the viewpoint of

the suspect, and the unarticulated, subjective view of law enforcement officials that the

individual being questioned is or is not a suspect does not bear upon the question.” Id.

We will address each Anderson factor in turn.

Time and Location of Interrogation

Appellant‟s interview took place in the afternoon hours in a hospital waiting room.

As a physician, the hospital was certainly a familiar place to her. In fact, when she

discovered that her cellular telephone was missing, she easily described her assigned

parking place to Detective Harbaugh. The trial court found that “common sense and

everyday experience tells me that a doctor in a hospital” would be comfortable, even

under such circumstances, and that it would be a hospitable and familiar place. The

evidence does not preponderate against these findings. This factor enures to the State‟s

benefit.

Notably, all of the cases upon which appellant relies found a custodial

interrogation when the questioning took place at a police station or detective‟s office. See

Anderson, 937 S.W.2d at 852; Dailey, 273 S.W.3d at 97; State v. Chadwick, No. M2009-

01205-CCA-R3-CD, 2010 WL 933640, at *1 (Tenn. Crim. App. Mar. 16, 2010). She

cites no authority in which this court or our supreme court has found deprivation of

freedom associated with a formal arrest in a location other than a police department.

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Duration and Character of the Questioning

To fully comprehend the nature and duration of appellant‟s interview, a timeline

of the events of July 1, 2010, is helpful:

1:00 p.m.(approximately): Appellant‟s first (unrecorded) interview begins

(Detective Stolinsky‟s testimony at suppression hearing)

2:00: Appellant makes first admission/Detective Stolinsky leaves

the interview room

(Detective Harris‟s testimony at suppression hearing)

2:15: Detective Stolinsky returns, requests a break

(Detective Harris‟s testimony at suppression hearing)

Detective Stolinsky asks appellant to visit the victim with him

(Detective Stolinsky‟s testimony at suppression hearing)

3:00 (approximately): Detective Harbaugh arrives5

Interview resumes

3:12: (twelve minutes into the interview) appellant asks about the

victim‟s condition

3:16: (sixteen minutes into the interview) Detective Harbaugh

leaves the room to obtain information about the victim‟s

condition

5:33: (two hours, thirty-three minutes into the interview) Detective

Harbaugh suggests a break, offers appellant water, a cup and

ice for her soda, a sandwich; says he will try to find a doctor

to speak with her

5:36: (two hours, thirty-six minutes into the interview) appellant

asks if someone could look for her cellular telephone in the

parking garage

6:01: questioning resumes

5

Detective Harbaugh testified at the suppression hearing that he arrived at the hospital between

3:00 and 4:00 p.m. Considering his estimation in conjunction with the approximations provided by other

detectives, it is more likely that he arrived earlier rather than later.

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6:15: appellant asks if she can have people in the room to offer her

support, and Detective Harbaugh says that she can

6:19: Dr. Hain enters the room and reports that the victim was

nonresponsive to the first brain death test

6:20: Detective Harbaugh offers to summon appellant‟s pastor from

the waiting room

6:26: Detective Harbaugh leaves, brings CPS worker in to speak

with appellant

The trial court concluded that the duration of appellant‟s interview was four hours

and fifty-six minutes, including breaks, based on a statement by Detective Harris that the

first segment of the interview lasted around one hour, fifteen minutes to an hour and a

half. The second interview was clearly three hours and twenty-six minutes, including

breaks. Considering the break between the first interview and the second interview, we

conclude that the evidence does not preponderate against this finding of fact. Any error

in the estimated arrival time of the officers or the beginning of interview times is

immaterial; the trial court credited Detective Harris‟s testimony regarding the length of

the initial interview, and the recorded interview is uncontroverted. However, we note

that in reviewing the timeline, it is clear that at least an hour represents breaks in

questioning, reducing the time of active involvement with law enforcement officers to

approximately four hours. Appellant herself agrees that what she characterizes as a

“leading „manual‟ on police interrogation techniques” would find that “[a] properly

conducted interrogation that lasts 3 or 4 hours, for the ordinary suspect, is certainly not so

long as to cause the levels of emotional or physical distress that constitute duress.” The

record belies appellant‟s contention that she had been interviewed for four hours prior to

Detective Harbaugh‟s recorded interview. Indeed, appellant‟s own testimony at the

hearing on the motion to suppress contradicts this interpretation; when asked at the

hearing if she knew how long she was in the interview room that day, counsel prompted,

“If I told you it was close to five hours would that sound somewhere about right?” to

which she responded, “I believe so, yes. I believe so, sir.” That is consistent with the trial

court‟s finding that the entire interview was four hours and fifty-six minutes, from

Detective Harris‟s first question until the culmination of the last interview, and is far

afield from appellant‟s contention in her brief that she was interviewed for over four

hours before Detective Harbaugh began his interview.

As to the character of the questioning, this court has listened to the recording and

agrees that the tone was not accusatory at all. During the interview, Detective Harbaugh

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stated that some of appellant‟s actions toward the victim were clearly wrong and

suggested that she receive counseling or anger management, but he never accused her of

child abuse or intentionally injuring the victim. It should also be recognized, as the trial

court did, that the first hour of Detective Harris‟s interview with appellant focused on

obtaining background information; appellant was not even a suspect at that time.

Appellant did not make the first admission to Detective Harris until the first hour had

elapsed. It was at this time that Detective Stolinsky left to call Detective Harbaugh for

assistance. The interview did not turn “interrogative” until after that point. This factor

favors the State.

Appellant makes much of the fact that the officers were armed, asserting that it

was an “entirely avoidable show of force.” However, our supreme court, in simply

noting that an officer was armed during an interview, stated that it was to be expected,

“of course,” that on-duty officers would be armed. Dailey, 273 S.W.3d at 103. We

would add that the officers traveled from their home duty stations to downtown

Nashville. Without question, they should be armed as they traverse from one place to the

next, and to leave their weapons in a vehicle would not have been advisable as a practical

matter.

Officer’s Tone of Voice and General Demeanor

The officers all described the tone of the interview as pleasant and

“conversational.” The trial court agreed, as does this court after having reviewed the

recording. This factor weighs in favor of the State.

Appellant’s Method of Transportation

Appellant was already at the hospital when questioned by law enforcement

officers, and despite officers‟ offer to drive her home, she either drove herself home or

was driven by someone else. This works to the State‟s benefit.

Number of Officers Present

Although two officers were present in the room, Detective Harbaugh was the

primary examiner; Detective Harris questioned appellant during a short time when

Detective Harbaugh left the room, and she occasionally asked follow-up questions. This

was not a situation where officers “tag-teamed” appellant.

The officers‟ questioning of appellant in this case is in stark contrast of the

interrogation that transpired in Dailey, wherein officers took turns peppering the

defendant with questions until he ultimately relented and confessed. Such was not the

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tone in appellant‟s interview. Dailey, 273 S.W.3d at 98-99. This factor does not benefit

appellant.

Limitation on Movement or Restraint Imposed on Appellant

A diagram of the waiting room where appellant was questioned was entered into

evidence at trial. Detective Harbaugh sat at a table with his back to the door, Detective

Harris sat at the end of the table, and appellant sat on the far side of the table facing the

door. Although counsel made much of the fact that appellant would have to pass by both

detectives to exit the room, it was established that she chose the seat herself; she was not

directed to a particular chair in the room. Moreover, she was told by Detective Harris

prior to both interviews that she was free to leave any time.

Appellant stresses that the interview room was small and windowless and that the

door was closed and that the room was “dominated” by police presence the entire time.

Detective Harris very clearly explained to appellant that the reason they closed the door

was for privacy; the area outside housed the nurses‟ station and encountered a great deal

of foot traffic. Because of the noise, they closed the door to be able to speak privately.

This factor does not adversely affect the State.

Interactions between Officers and Appellant

The content of the interviews is fairly straightforward. However, appellant seeks

to argue the negative implication that if Detective Harris twice informed appellant that

she was free to leave and free to cease answering questions but that Detective Harbaugh

did not give such admonitions, then the natural and probable conclusion was that she was

no longer free to leave.

We decline to adopt this position. Detective Harris testified that she again

informed appellant of her right to stop the interview prior to the second segment‟s

beginning. The second segment began immediately thereafter. Hence, there was no

lapse in time during which appellant could have formed this “negative implication.”

Despite appellant‟s argument, this factor weighs in favor of the State.

Extent to Which Appellant Was Confronted with Evidence of Guilt

The trial court found that at several points during the interview, officers “clearly”

informed appellant that they had spoken with the treating physicians and that appellant‟s

explanations for the victim‟s injuries “didn‟t fit” the extent of the injuries. The court

concluded that there was no deception on the part of the officers and that they properly

conveyed their suspicions of guilt and the information that they had received from the

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doctors. Officers also gave her an opportunity to explain the victim‟s injuries. The

evidence does not preponderate against these findings.

Extent to Which Appellant Was Informed that She was Free to

Refrain from Answering Questions or to End the Interview

The trial court credited Detective Harris‟s testimony at the hearing on the motion

to suppress and found that appellant was advised that she was free to leave, that she could

stop talking, and that if she wanted to consult with an attorney, then questioning would

cease. It further credited Detective Harris‟s testimony that she advised appellant that “no

matter what happens here today, you‟re going home . . . .” Accordingly, the trial court

found that the ninth Anderson factor had been met, and we conclude that the evidence

does not preponderate against this finding. This factor weighs in favor of the State.

Based on our consideration of all of the above factors, we conclude that Miranda

warnings were not required because appellant was neither in custody nor would a

reasonable person in her position have considered herself deprived of freedom of

movement to a degree associated with a formal arrest. Appellant is not entitled to relief

under this theory.

B. Voluntariness of Statement

However, our inquiry does not end there. Appellant also contends that her will

was overborne by Detective Harbaugh‟s questioning of her, rendering her statement

involuntary. We note that while Miranda questions whether an in-custody suspect

received the requisite warnings and knowingly and voluntarily waived certain

constitutional rights, the voluntariness test remains distinct from Miranda. State v.

Climer, 400 S.W.3d 537, 568 (Tenn. 2013) (citing Dickerson v. United States, 530 U.S.

428, 434-35 (2000); Mincey v. Arizona, 437 U.S. 385, 397-98 (1978)).

The voluntariness of a confession is a question of fact. State v. Sanders, 452

S.W.3d 300, 306 (Tenn. 2014) (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);

State v. Morris, 24 S.W.3d 788, 805 (Tenn. 2000); State v. Smith, 933 S.W.2d 450, 455

(Tenn. 1996); Self v. State, 65 Tenn. (6 Baxt.) 244, 253 (1873)). The State has the burden

of proving the voluntariness of a confession by a preponderance of the evidence. Id.

(citing State v. Stamper, 863 S.W.2d 404, 405 (Tenn. 1993)). The party who prevails at

the suppression hearing is entitled to the strongest legitimate view of the evidence as well

as all reasonable and legitimate inferences that may be drawn from that evidence. State

v. Bishop, 431 S.W.3d 22, 35 (Tenn. 2014).

In evaluating whether a statement was given voluntarily, “the essential inquiry . . .

is whether a suspect‟s will was overborne so as to render the confession a product of

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coercion.” Climer, 400 S.W.3d at 568 (citing Dickerson, 530 U.S. 428 at 433-35; State v.

Smith, 933 S.W.2d 450, 455 (Tenn. 1996)). The test for voluntariness of a statement is

grounded in both the Fifth Amendment and the Due Process Clause of the Fourteenth

Amendment and recognizes that coerced confessions are “inherently unreliable.” Id. at

567-68 (citations omitted). Prior to Miranda, courts relied solely upon the voluntariness

test to determine the admissibility of statements. Id. at 567 (citations omitted).

A suspect‟s subjective perception alone is insufficient to support a conclusion of

involuntariness of a confession. State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (citing

State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)). “Rather, „coercive police activity is

a necessary predicate to finding that a confession is not voluntary . . . .‟” Id. (quoting

Brimmer, id.); State v. Branam, 855 S.W.2d 563, 568 (Tenn. 1993).

In determining the voluntariness of a statement, courts must examine the totality

of the circumstances surrounding the confession, including “„both the characteristics of

the accused and the details of the interrogation.‟” Climer, 400 S.W.3d at 568 (quoting

Dickerson, 530 U.S. at 434). Relevant circumstances include:

 [T]he age of the accused;

 his lack of education or his intelligence level;

 the extent of his previous experience with the police;

 the repeated and prolonged nature of the questioning;

 the length of the detention of the accused before he gave the

statement in question;

 the lack of any advice to the accused of his constitutional rights;

 whether there was an unnecessary delay in bringing him before a

magistrate before he gave the confession;

 whether the accused was injured[,] intoxicated[,] or drugged, or in ill

health when he gave the statement;

 whether the accused was deprived of food, sleep[,] or medical

attention;

 whether the accused was physically abused;

 and whether the suspect was threatened with abuse.

Id. (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (alteration in

original) (emphasis omitted).

Appellant contends that her will was overborne because: (1) she had been

questioned for four hours before Detective Harbaugh began the recorded segment of the

interview; (2) Detective Stolinksy took her to see the victim and spoke to her about the

“injustice” of the injuries immediately before Detective Harbaugh‟s interview; (3)

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appellant had already made admissions to Detective Harris; (4) she inferred that she was

no longer free to leave; (5) officers did the majority of the talking; and (6) her personal

characteristics rendered her vulnerable to police questioning. We will apply each of

appellant‟s contentions in the context of the relevant circumstances set forth in

Dickerson.

Repeated and Prolonged Nature of Questioning

We refer to the timeline established supra in the context of the Miranda issue.

Again, we note that using the longest possible estimates, the entirety of appellant‟s

involvement with law enforcement officials was four hours and fifty-six minutes.

Officers did not question her for four hours prior to Detective Harbaugh‟s interview with

her. Eliminating the one-hour period during which Detective Harris was obtaining

background information and another approximate hour that accounted for breaks, the

actual “interrogation” of appellant lasted around three hours. By appellant‟s own

concession, set forth fully above, an interview of three to four hours is not, by its very

nature, coercive.

We ascertain that appellant‟s contention that officers did most of the talking is

another implication of the repeated and prolonged nature of questioning. We have

listened to the recording in question and do not conclude the conversation to be onerous

or one-sided. Rather, as the trial court found, we note that appellant often provided more

information than called for by the question, she posited questions of her own, and she

engaged in a conversation with officers. The evidence does not preponderate against the

trial court‟s findings in this regard.

Detective Stolinsky’s Taking Appellant to See the Victim

Detective Stolinsky testified that during the first break, he asked appellant if she

wanted to see the victim, and he accompanied her to the victim‟s room. Prior to this,

appellant had not expressed a desire to see the victim. They stood on opposite sides of

the bed, and medical personnel “were in and out constantly.” He advised her that the

detectives were “just trying to find out what happened” to the victim. Appellant did not

make any statements during the approximately fifteen-minute-long stay in the victim‟s

room. Detective Stolinsky never touched appellant or made any threats toward her.

At the hearing on the motion to suppress, both the State and trial counsel

questioned Detective Stolinsky with regard to his actions in escorting appellant to the

victim‟s room. Appellant had been in the interview room for over an hour without seeing

the victim. Appellant infers nefarious intent on the detective‟s behalf, implying that he

was utilizing a coercive tactic in taking her to see the victim in her ICU room. However,

-48-

no such testimony was elicited, and we will not make such a determination. This factor

does not work against the State.

Appellant’s Previous Admissions to Detective Harris

Appellant cites State v. Miller for the proposition that “after an accused has once

let the cat out of the bag by confessing, no matter what the inducement, he is never

thereafter free of the psychological and practical disadvantages of having confessed. He

can never get the cat back in the bag. The secret is out for good.” 674 S.W.2d 279, 289

(Tenn. 1984) (Fones, J., dissenting). First, this factor does not fall within the list of

circumstances to be considered under a Dickerson voluntariness analysis. Second, the

Miller case deals with admissibility of subsequent confessions to law enforcement

officers following a confession that has been held inadmissible. This factor does not

buttress appellant‟s position.

Inference that Appellant Was No Longer Free to Leave

Appellant again seeks to rely upon the negative implication that if Detective Harris

twice informed appellant that she was free to leave and free to cease answering questions

but that Detective Harbaugh did not give such admonitions, then the natural and probable

conclusion was that she was no longer free to leave. We again decline to adopt this

position for the reasons stated herein, supra.

Appellant’s Personal Characteristics

Finally, appellant argues that her personal characteristics rendered her vulnerable

to police questioning. She argues that her intelligence actually worked to her

disadvantage because it made the situation even more alien to her.

The trial court concluded, based on appellant‟s testimony at the hearing on the

motion to suppress and the recorded statement, that appellant was a willing participant

and that there was no indication of involuntariness. In doing so, the trial court made

findings with regard to the credibility of the witnesses, weighing the evidence, and

resolving conflicts in the evidence, which we will not second-guess. State v. Echols, 382

S.W.3d 266, 277 (Tenn. 2012). However, we are mindful that when reviewing a trial

court‟s ruling on a motion to suppress, we are to consider the entire record, including the

evidence adduced at trial. Sanders, 452 S.W.3d at 306.

Dr. Walker testified at trial that appellant was Asian-American and that an

important part of that culture was respect for elders and respect for those in positions of

authority. However, he admitted that he was unaware of the adoption paperwork

appellant and Mr. Mark had completed wherein they wrote that although they were

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Chinese, they did not have a “strong grasp” with the Chinese culture. He acknowledged

that appellant had portrayed to him that she, in fact, had a strong tie with the Chinese

culture. Dr. Walker agreed that it was a fair assessment that appellant “thinks ahead”

when answering questions.

Dr. Walker‟s assessment was that appellant was nonconfrontational, avoided

conflicts, and felt she had lower self-esteem than others. He opined that those

characteristics would make a person more likely to admit doing something they had not

done. Dr. Walker administered an EQI to obtain appellant‟s emotional rather than

intelligence quotient. The results indicated that appellant had low self-esteem, did not

hold herself in high regard, and felt as though she was never able to achieve as her family

expected. He said that appellant is empathetic, sympathetic, compassionate, deferential,

and unlikely to assert herself. He described that she had a great deal of social

responsibility, was a rule-follower, and was not a good problem solver. He said, “She‟s a

very suggestible person. She‟s very compliant.”

Even so, on cross-examination, when the State asked Dr. Walker whether he had

an opinion about whether appellant‟s statement to the police was true, he acknowledged

that it was “very possible ” that she was telling the truth in her statement.

We conclude that appellant‟s statement was freely and voluntarily given and was

not the product of coercive action. Appellant is not entitled to relief.

C. Videotape of the Victim

Appellant argues that the trial court erred by admitting a videotape of the victim

that was prepared by the adoption agency. As grounds, appellant states that the video

was irrelevant and prejudicial. The State maintains that it was relevant to rebut an issue

interjected by the defense. We agree with the State.

The determination of whether evidence is relevant and admissible at trial is a

matter left to the sound discretion of the trial court and will not be reversed absent an

abuse of that discretion. State v. Dellinger, 79 S.W.3d 458, 485 (Tenn. 2002); State v.

McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). “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 is admissible unless specifically

excepted by constitution, statute, rules of evidence, or rules of general application. Tenn.

R. Evid. 402. One such exception is that relevant evidence 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.” Tenn. R. Evid. 403. “Unfair prejudice”

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is “„[a]n undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.‟” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978)

(quoting Tenn. R. Evid. 403, Adv. Comm. Note).

The video in question was prepared by the adoption agency and was introduced

through Ms. Banks, the representative from Bethany Christian Services. She testified

that the video was not produced in a situation where the victim was prompted and

presented in the best possible light; rather, it was produced to show the most accurate

representation of the child to prospective adoptive parents. She said that no one wanted

the family to return home from China and be disappointed because they had been misled.

As to the relevance, appellant began weaving her theory of the case during

opening statements when counsel assured the jury that they would show that the victim

was underweight, suffered from severe malnutrition, had brittle bones, bruised easily, and

likely suffered from cerebral palsy. In fact, counsel continued with that theory

throughout his questioning of the witnesses. He elicited from Dr. Lien that malnutrition

could have contributed to the victim‟s anemic condition. Counsel attempted, albeit

unsuccessfully, to interject malnutrition into Dr. Hain‟s testimony, but Dr. Hain clarified

that even if the victim were malnourished, the bones and brain would be the last systems

to be affected, so “definitively,” malnutrition did not contribute to her skeletal or brain

injuries.

In light of appellant‟s continued attempts to mitigate her actions vis-à-vis the

severity of the victim‟s injuries, the video depicting the victim in life, showing that she

did not suffer from the maladies claimed by appellant, was relevant to rebut appellant‟s

theory of the case. Moreover, the relevance of the video was not substantially

outweighed by its prejudicial effect. The trial court did not abuse its discretion in

admitting the video. Appellant is not entitled to relief.

D. Sufficiency of the Evidence Underlying Count III of the Indictment

Appellant contends that the evidence is insufficient to sustain the conviction for

aggravated child abuse in Count III of the indictment based upon the loss of four of the

victim‟s primary teeth. The State answers that because the statute regarding serious

bodily injury in child abuse cases is not limited to those injuries specifically enumerated,

loss of primary teeth qualifies as a serious bodily injury.

As applicable to this count of the indictment, “„[s]erious bodily injury to the child‟

includes, but is not limited to, 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 . . . .” Tenn. Code Ann. § 39-15-402(d). Although the loss of

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primary teeth is not specifically listed in the statute, we begin with “„the ejusdem generis

canon of statutory construction, stating that „the enumerated portions of the definition of

serious bodily injury should be read as coming from the same class of injuries.‟” State v.

Farmer, 380 S.W.3d 96, 101 (Tenn. 2012) (quoting State v. Sims, 909 S.W.2d 46, 49

(Tenn. Crim. App. 1995)).

The applicable definition in this case, “serious bodily injury to the child,” is

different from the statutory definition of “serious bodily injury” in the criminal code.

Tenn. Code Ann. §§ 39-11-106(34), 39-15-402(d). “[S]erious bodily injury” includes

bodily injury that involves: “(A) A substantial risk of death; (B) Protracted

unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement;

(E) Protracted loss or substantial impairment of a function of a bodily member, organ or

mental faculty . . . .” Tenn. Code Ann. § 39-11-106(34). This definition is exhaustive;

there is no provision for consideration of injuries that are not specifically enumerated. In

contrast, the statute defining “serious bodily injury to the child,” Tennessee Code

Annotated section 39-15-402(d), is not exhaustive. The list of injuries includes, “but is

not limited to,” the named injuries. Id. (emphasis added). The general definition of

serious bodily injury has been construed by our supreme court in Farmer using the

ejusdem generis canon of statutory construction to conclude that a “clean” gunshot

wound that was treated within an hour and that required only pain relievers as treatment

did not meet the statutory definition of serious bodily injury. Farmer, 380 S.W.3d at 101.

Likewise, the Sims court concluded that the pain commonly associated with a broken

nose was not extreme enough to be included among the injuries that constituted serious

bodily injury. Sims, 909 S.W.2d at 49. In contrast, prior to the 2009 amendment to the

serious bodily injury to a child statute that provided a definition for serious bodily injury,

this court held that a cigarette burn on a child‟s palm was sufficient to meet the threshold

of serious bodily injury. See State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-

CD, 2011 WL 900053, at *7 (Tenn. Crim. App. Mar. 16, 2011) (finding serious bodily

injury although burns such as the one inflicted upon the victim were generally treated

with antibiotic ointment).

When a statute is ambiguous or does not address a precise issue, courts may

reference the broader statutory scheme, the history of the legislation, the “objective and

spirit behind the legislation,” or other sources in ascertaining its intent. Wlodarz v. State,

361 S.W.3d 490, 496 (Tenn. 2012) (citing Parks v. Tenn. Mun. League Risk Mgmt. Pool,

974 S.W.2d 677, 679 (Tenn. 1998); Lipscomb v. Doe, 32 S.W.3d 840, 845 (Tenn. 2000)).

Because the statute at issue is non-exhaustive and is, thus, arguably ambiguous, a review

of the pre-2009 amended statute is helpful. Effective July 1, 2005, Tennessee Code

Annotated section 39-15-402(a) read:

A person commits the offense of aggravated child abuse or

aggravated child neglect or endangerment who commits the offense of child

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abuse . . . or who commits the offense of child neglect or endangerment . . .

and:

(1) The act of abuse or neglect results in serious bodily injury to

the child; or

(2) The act of neglect or endangerment results in serious bodily

injury to the child; or

(3) A deadly weapon, dangerous instrumentality or controlled

substance is used to accomplish the act of abuse, neglect or

endangerment; or

(4) The act of abuse, neglect or endangerment was especially

heinous, atrocious or cruel, or involved the infliction of

torture to the victim.

Reviewing the history of this statute, it is clear that the legislature intended to punish acts

that could be considered “torturous” to the victim, precipitating a non-exhaustive list of

qualifying injuries in the 2009 amendment. Examining the list of injuries enumerated by

each statute, the legislature intended the threshold of injury necessary to establish

“serious bodily injury to the child” would be less than that required to establish “serious

bodily injury” under the general definition of the criminal code.

In this case, based on the medical testimony, the evidence is uncontroverted that

the victim was systematically tortured over time. Having four primary teeth forcibly

knocked out is just one of the means by which appellant accomplished her torturous

treatment of the victim. We conclude that the pain associated with the forcible loss of

primary teeth is commensurate with the class of injuries encompassed by the statute.

Appellant is not entitled to relief.

E. Partial Consecutive Sentencing

In determining an appropriate sentence, a trial court must consider the following

factors: (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 mitigating and enhancement factors;

(6) any statistical information provided by the administrative office of the courts as to

sentencing practices for similar offenses in Tennessee; (7) any statement the defendant

makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.

Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed

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should be the least severe measure necessary to achieve the purposes for which the

sentence is imposed.” Tenn. Code Ann. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory

presumptive minimum sentence and rendered enhancement factors advisory only. See

Tenn. Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain

“advisory sentencing guidelines” that are not binding on the trial court; however, the trial

court must nonetheless consider them. See id. § 40-35-210(c). Although the application

of the factors is advisory, a court shall consider “[e]vidence and information offered by

the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-

114.” Id. § 40-35-210(b)(5). The trial court must also place on the record “what

enhancement or mitigating factors were considered, if any, as well as the reasons for the

sentence, in order to ensure fair and consistent sentencing.” Id. § 40-35-210(e). The

weighing of mitigating and enhancing factors is left to the sound discretion of the trial

court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The burden of proving

applicable mitigating factors rests upon appellant. State v. Mark Moore, No. 03C01-

9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial

court‟s weighing of the various enhancement and mitigating factors is not grounds for

reversal under the revised Sentencing Act. Carter, 254 S.W.3d at 345 (citing State v.

Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim.

App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

When an accused challenges the length and manner of service of a sentence, this

court reviews the trial court‟s sentencing determination under an abuse of discretion

standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor in

passing sentence, said error will not remove the presumption of reasonableness from its

sentencing determination. Bise, 380 S.W.3d at 709. This court will uphold the trial

court‟s sentencing decision “so long as it is within the appropriate range and the record

demonstrates that the sentence is otherwise in compliance with the purposes and

principles listed by statute.” Id. at 709-10. Moreover, under such circumstances,

appellate courts may not disturb the sentence even if we had preferred a different result.

See Carter, 254 S.W.3d at 346. The party challenging the sentence imposed by the trial

court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. §

40-35-401, Sentencing Comm‟n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).

Prior to 2013, on appellate review of sentence alignment issues, courts employed

the abuse of discretion standard of review. See State v. Hastings, 25 S.W.3d 178, 181

(Tenn. Crim. App. 1999). Our supreme court has since extended the standard of review

enunciated in Bise to consecutive sentencing determinations. State v. Pollard, 432

S.W.3d 851, 860 (Tenn. 2013); Bise, 380 S.W.3d at 707; see also State v. Caudle, 388

S.W.3d 273, 278-79 (Tenn. 2012) (applying abuse of discretion with a presumption of

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reasonableness to review of alternative sentencing determinations by the trial court).

Thus, the presumption of reasonableness gives “deference to the trial court‟s exercise of

its discretionary authority to impose consecutive sentences if it has provided reasons on

the record establishing at least one of the seven grounds listed in Tennessee Code

Annotated section 40-35-115(b) . . . .” Pollard, 432 S.W.3d at 861.

The procedure used by the trial courts in deciding sentence alignment is governed

by Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant

to a trial court‟s sentencing decision. Imposition of consecutive sentences must be “justly

deserved in relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1).

The length of the resulting consecutive sentence must be “no greater than that deserved

for the offense committed.” Id. § 40-35-103(2). The court may order consecutive

sentences if it finds by a preponderance of the evidence that one or more of the following

seven statutory criteria exists:

(1) The defendant is a professional criminal who has knowingly devoted

the defendant‟s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

(3) The defendant is a dangerous mentally abnormal person so declared

by a competent psychiatrist who concludes as a result of an

investigation prior to sentencing that the defendant‟s criminal

conduct has been characterized by a pattern of repetitive or

compulsive behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates

little or no regard for human life and no hesitation about committing

a crime in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the

aggravating circumstances arising from the relat

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