State of Tennessee v. Tyrail Jermaine Cooke

07/23/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 27, 2018 Session

STATE OF TENNESSEE v. TYRAIL JERMAINE COOKE

Appeal from the Criminal Court for Knox County

No. 100543 Scott Green, Judge

No. E2017-00781-CCA-R3-CD

Aggrieved of his convictions of reckless homicide and aggravated child abuse, the

defendant, Tyrail Jermaine Cooke, appeals. In this appeal, the defendant argues that the

trial court erred by refusing to suppress the entirety of his pretrial statement to the police;

that the trial court erred by admitting into evidence the video recording of his pretrial

statement; that the trial court erred by admitting into evidence photographs, testimony,

and other evidence relating to bruising in the victim’s genital area and a hole in the wall

in the closet of the defendant’s residence; that the trial court erred by refusing to grant the

defendant’s request for a special jury instruction regarding the right of parents to use

corporal punishment to discipline their children; that the trial court erred by denying his

motion for a mistrial based upon the prosecutor’s improper comment on the defendant’s

right to remain silent during his closing argument; that the evidence was insufficient to

support his convictions; that the 29-year effective sentence is excessive; and that the

cumulative effect of the errors deprived him of the constitutional right to a fair trial.

Because we discern no reversible error, we affirm the judgments of the trial court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Mark E. Stephens, District Public Defender (on appeal and at trial); Jonathan Harwell,

Assistant District Public Defender (on appeal and at trial); and John Halstead, Assistant

District Public Defender (at trial), for the appellant, Tyrail Jermaine Cooke.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant

Attorney General; Randall E. Nichols, District Attorney General; and Christopher

Rodgers and Ashley McDermott, Assistant District Attorneys General, for the appellee,

State of Tennessee.

OPINION

In November 2012, the Knox County Grand Jury charged the defendant

with one count of aggravated child abuse and one count of felony murder in the

perpetration of child abuse related to the October 2012 death of five-year-old R.R.1

The evidence adduced at the defendant’s March 2015 trial established that

the victim’s mother left the defendant, her live-in boyfriend, alone with her three children

on the morning of October 20, 2012, while she went to run errands. At some point, the

defendant telephoned to say that he could not rouse the victim, and, upon returning to the

apartment, the victim’s mother found him unresponsive in his sister’s bedroom. The

victim was transported to the hospital, where he succumbed to his injuries three days

later.

The victim’s mother, A.R., testified that she had been dating the defendant

for three or four months in October 2012 and that the two had moved into an apartment

with her three children, ages six, five, and three, 11 days before the incident that led to

the victim’s death. On October 20, 2012, she woke the children, fed them breakfast, and

put a movie on for them to watch. She then woke the defendant and asked him to “just to

listen for” the children while she and a friend ran errands. She and the defendant

exchanged several text messages, and, at one point, she returned to the apartment to give

the defendant some cigarettes. At that point, all three children appeared normal. She

then left a second time to finish her errands. Just before returning home, she telephoned

the defendant to check on the children and ask if they needed anything. The defendant

indicated that all was well.

“About two minutes” later, the defendant called her back to tell her “that

there’s a problem . . . where he can’t wake [the victim] up.” The defendant told her that

the victim had soiled his pants and that when the defendant took him into the bathroom to

change him, the victim “had fallen and hit his head.” The defendant said that “he woke

[the victim] up the first time and that he had passed back out, and he tried putting him in

the bathtub and he’d hit his head again in the bathtub.” She “rushed straight there” and

arrived “within like two minutes after the phone call.” She recalled that when she

arrived, the defendant and her other two children were “in the master bedroom” “playing

the X-box.” The victim “was in the front room laying on the toddler bed with the door

closed. He just closed him up in there.” When she picked the victim up and carried him

into the living room, “his eyes were rolled in the back of his head and his mouth was

quivering.” She screamed for help from her friend, who was still outside, and she

“started trying to give him CPR.” She telephoned 9-1-1, but her friend had to speak to

1

As is the policy of this court, we refer to the minor victim by his initials.

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the operator. She said that the defendant “came in there and tried to explain . . . then he

changed the story, said [the victim] was jumping on the bed and hit his head on the

window sill.”

Knoxville Fire Department paramedic Cory Darnell responded to the

residence. When Mr. Darnell arrived, he saw the victim lying on his back just inside the

front door and observed a black male “standing toward the back of the front room

observing.” The victim was unconscious and “not breathing adequately.” Because the

victim’s airway was obstructed by “blood and airway secretions,” medical personnel “had

to suction” the airway and intubate the victim. He said that they used a bag valve mask

to breathe for the victim but that they “had a difficult time keeping [the victim]

intubated.”

Doctor Marymer Perales, who was declared an expert in the diagnosis of

child abuse and trauma, testified that she was called by the emergency room physician

who had initially examined the victim at East Tennessee Children’s Hospital. When she

arrived, she saw “a very critical patient who required assistance to breathe, . . . medicines

to have his blood pressure stay stable, and monitoring of . . . how much pressure was

around his brain at all times.” Doctor Perales testified that she “performed a limited

physical examination of the child because this child was so sensitive to any movement or

even sound that we had to whisper in front of him.” She said that even small movements

would increase the victim’s blood pressure, causing an increase in the intracranial

pressure. For that reason, she did not turn the victim over to examine his back or the

back of his head. Doctor Perales testified that imagining tests “showed that the patient

had what we call occipital fracture” and “extraaxial fluid,” or “fluid that is between the

brain and the skull.” The victim actually had fluid between all the layers of his brain and

skull and “even had bleeding between the bone and the scalp.” He also suffered a

“whiplash like” injury to his brain and a rupture of his cervical spine.

In addition to these injuries, the victim “did have a bruise over his left

eyelid that was around the face” and “a laceration in the back of his head” that she never

saw because she was unable to move him. The victim had bruising to the skin above the

penis, “some swelling to the scrotum,” and bruising around the penis. Doctor Perales

testified that “you’d have to have blunt trauma to that area to get a bruise there” and

opined that a fall would not have caused the bruising because the victim lacked the “mass

to create that much of force to have this much bruising present.” Instead, “[h]e would

have to have been slammed or thrown.”

Doctor Perales testified that the injuries to the victim’s skull and brain

would have required “a great amount of force. . . . A force that if someone were to

witness that event, they would know that that child was injured.” She opined that the

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victim’s injuries “were inflicted nonaccidental trauma” and testified that the injuries

could not have been caused by the victim’s fainting in the bathtub or his falling

backwards onto a carpeted floor. She also testified that the injuries could not have been

caused by the victim’s hitting his head on the window sill while jumping on the bed,

explaining, “We see a lot of that in the emergency room, and these are not the injuries

that you would see with a child who is jumping on a mattress and hits his head on a

window sill.” She added that the fact that the back of the victim’s skull was fractured

also suggested that he did not injure himself in a fall, explaining, “[F]rom the back of the

head tells me one, there was a lot of force, and two, that it’s probably more concentrated

to that area. And then the fact that he had swelling outside that area also confirms that

that’s where the hit occurred.” Doctor Perales testified that she could fathom no scenario

under which the victim could have caused the injuries to himself because the force

required for the injuries would be similar to “a car accident, forces equal to falling from a

great height like skydiving; a lot of force.” After receiving the injury, the victim would

have been unable to carry on a conversation or walk unassisted and, if he had a lucid

interval, it would not have lasted “very long at all.”

Officer Rachel Warren of the Knoxville Police Department (“KPD”)

forensics unit photographed and collected evidence at the apartment. Among the items

she collected were towels found inside the washing machine that had “a reddish brown

substance” on them and samples from the carpet and drywall in the master bedroom

closet that also exhibited reddish brown stains.

KPD Investigator Phyllis Tonkin also responded to the scene, where she

and KPD Investigator Brian Moran interviewed several witnesses, including the

defendant.2 After Investigator Moran provided the defendant with Miranda warnings, the

defendant “voluntarily agreed to do a walk-through of the residence to show what had

occurred earlier that morning.” The defendant was then transported to the police station.

Investigators Tonkin and Moran traveled to the police station less than two hours later to

interview the defendant. A video recording of the defendant’s statement was played for

the jury.3

During the interview, the defendant conceded that the victim’s mother had

left him alone with the children on the morning of October 20, 2012. He said that after

she woke him, he went back to sleep for a period of time before getting up to play video

games. He admitted that he did not check on the children. At some point, the oldest

child came into the room to ask for water, and the defendant told him to “get some water

out of the bathroom.” Sometime later, the same child came into the room to report that

2

Investigator Moran was unavailable at the time of the defendant’s trial.

3

As will be discussed more fully below, the video recording played for the jury was heavily

redacted to comply with the trial court’s ruling on the defendant’s motion to suppress.

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the victim was “messing with this.” The defendant told the victim to come into the room,

and the victim complied. The victim began watching the video game that the defendant

was playing, and the defendant asked the victim if he was “being bad.” The victim

replied that he was not. The defendant “started smelling something,” and realized that

the victim had soiled himself. The defendant said that he “turned him around, he turned

right back around” and that when he pulled the victim’s pants down, the victim “passed

out.” The defendant said that he did “everything [he] could” to get the victim to “come

back and focus.” He said the victim eventually “stood up,” “walked like two steps,” and

told the defendant that he was okay. The defendant then put the victim into the bathtub

and went to get a towel. The defendant said that while he was out of the room, he heard

“a loud boom.” He found the victim “in the tub laying down.” He claimed that when he

picked the victim up, there was “foam and stuff” coming from the victim’s mouth. The

defendant said that, at that point, he telephoned the victim’s mother. He then carried the

victim in a towel to his sister’s bedroom. The defendant said that the victim “wasn’t

breathing at all” when the defendant carried him into the bedroom. He said that he

attempted to provide cardiopulmonary resuscitation to the victim.

When officers told the defendant that the victim’s injuries could not have

been caused by his falling in the bathtub, the defendant said that he had “done a lot while

he was passed out” trying to revive the victim, saying that he had shaken the victim and

“pushed down hard as hell” on the victim’s chest. He said that when he pressed on the

victim’s chest, blood came out of the victim’s mouth.

The defendant claimed that the victim had red marks and “big old knots” on

his head where his older brother had “busted his head.” Eventually, the defendant

acknowledged that he pushed the victim and then the victim “bumped his head on the

dresser.” He said that he pushed the victim with one hand and that the victim “got back

up” after hitting his head. He said that the back of the victim’s head struck the broken

corner of the dresser.

Tennessee Bureau of Investigation Agent and Forensic Scientist Kim Lowe

testified that forensic testing established the presence of the victim’s blood on a towel

found in the washer and the defendant’s blood on a towel found in the bathroom. Testing

of a sample of drywall cut from the master bedroom closet indicated the presence of

blood but “failed to indicate the presence of human hemoglobin, a component of human

blood,” and “further tests indicated the presence of human DNA but due to the limited

information obtained, nothing can be interpreted.” Agent Lowe opined that the stain on

the drywall “probably is not human blood” and that the presence of human DNA “could

be from someone simply touching the wall.” In addition, the stain on the carpet from the

master bedroom closet was not blood.

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Two calls placed by the defendant while he was incarcerated in Knox

County were played for the jury. In one call, the defendant acknowledged that the victim

had been acting up, complained that he was forced to take care of the children because

their mother would not, and said, “I put my hands on a little kid.”

Chief Deputy Medical Examiner for Knox County Christopher Lochmuller

conducted the autopsy of the victim’s body. Doctor Lochmuller testified that the victim

had “a large area of bruising . . . under the skin up against the skull” and “on the back

side of the right side of his head.” “[T]here was an area of skin that had been partially

torn” behind the victim’s left ear. “The underlying portion” of the victim’s skull “ha[d] a

complex fracture,” and “[t]he brain itself [was] severely to markedly swollen,” causing

“herniation which is an indication you’re getting close to death.” Doctor Lochmuller also

observed “three bruises on the front of the brain. . . where the brain got pushed into the

other side of the skull” and bruising on the brain stem “very close to the upper cervical

spinal cord.” Doctor Lochmuller observed “an area of hemorrhage along the right side of

the upper aspect of the cervical spine” as well as “some hemorrhage around the spinal

cord itself,” which would have caused paralysis from the neck down, affecting the

victim’s ability to move and breathe. He explained that “the injury to the upper cervical

cord is what likely . . . would have caused him to stop breathing and why he’s in cardiac

arrest at the . . . scene.” The head injury would have caused “compression on the brain

and eventual swelling and herniation, but that cord injury, in and of itself, would have

been enough, but you add that to the brain – the two together are the most significant

injuries.” He said that the skull fracture alone “may have been survivable . . . but then

you never know.”

Doctor Lochmuller observed “a discontinuous bruise sort of on the lower

aspect of the abdomen that’s also . . . extending onto the right side of the scrotum.” He

said that these injuries “didn’t really contribute to [the victim’s] death and they’re not

pattern, so I can’t match them up with a weapon. It is an area that if kids are playing

could be injured.” Doctor Lochmuller did not think the bruising to the abdominal area

and the head injuries occurred from the same blow but would instead “have to have been

a separate blow.”

Doctor Lochmuller testified that it was possible that “a single impact could

have caused the skull fracture, the bleeding around the brain and the injury to the neck . .

. one moment caused that totality of injury,” but he emphasized that the injuries were

“not something that would occur from a standing height.” He said that although it was

theoretically possible that the injuries could have been sustained from the victim’s hitting

his head while jumping on the bed, it was “not likely.” A person with injuries like those

suffered by the victim would not have been able to stand up and carry on a conversation.

He testified that the victim’s injuries could not have been caused by the victim’s falling

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backwards onto a carpeted floor or fainting in a bathtub. He said that “if an adult pushed

a child as hard as they could into a dresser, maybe you could sustain that injury, but . . . it

would have to be a very significant shove.” He said that there were “at a minimum two

separate impacts, possibly three” to the victim’s head “but the two other ones are more

minor compared to the one that’s associated with the skull fracture.” He said that, given

the areas of bruising that were “distinctly separate on the scalp,” “[i]t would have been

difficult to have had them all happen with one impact.”

After a full Momon colloquy, the defendant elected not to testify and chose

to present no proof. Based upon the evidence presented by the State, the jury convicted

the defendant as charged of aggravated child abuse but convicted him of the lesser

included offense of reckless homicide in lieu of the charged offense of felony murder in

the perpetration of aggravated child abuse. Following a sentencing hearing, the trial

court imposed a sentence of 25 years’ incarceration for the aggravated child abuse

conviction, to be served at 100 percent by operation of law, and a sentence of four years’

incarceration for the conviction of reckless homicide, to be served at a 30 percent release

eligibility percentage. The court ordered that the sentences be served consecutively, for a

total effective sentence of 29 years’ incarceration.

The defendant filed a timely but unsuccessful motion for new trial followed

by this timely appeal. On appeal, the defendant challenges the trial court’s rulings with

regard to the admissibility of his video recorded statement to the police, the admission of

certain other evidence, and the defendant’s motion for mistrial. He also challenges the

sufficiency of the convicting evidence and the propriety of the sentence.

I. Suppression

Prior to trial, the defendant moved the trial court to suppress the pretrial

statement he provided to Investigators Tonkin and Moran at the police station. He

alleged that his statement was inadmissible because the investigators had failed to

provide him with Miranda warnings at the police station, that the oral waiver of his

constitutional rights was not knowing and voluntary, that the investigators had not

scrupulously honored his request to end the interview, and that, ultimately, his statement

was not voluntarily given because the investigators had overborne his will with

belligerent questioning.

At the hearing on the defendant’s motion, Investigator Tonkin testified that

Investigator Moran provided Miranda warnings to the defendant while they were all still

at the apartment where the offenses occurred. The defendant, who had been placed under

arrest pursuant to an outstanding warrant from Blount County, waived his rights and

agreed to not only speak to the investigators but also lead them on a tour of the premises

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while offering an explanation of what had occurred. The initial encounter with the

defendant wherein Investigator Moran provided the Miranda warnings and the defendant

agreed to talk was audio recorded. Officer Warren captured a video recording of the

defendant’s leading the investigators through the home. Following the tour, the

defendant was transported to the police station while Investigators Tonkin and Moran

remained behind at the residence to complete their parts of the investigation there.

Less than two hours later, Investigators Tonkin and Moran went to the

police station to question the defendant. Rather than provide the defendant with the

Miranda warnings a second time, Investigator Moran reminded the defendant of the

earlier admonition and asked the defendant if he recalled the warnings. Although the

transcript of the video recorded interview indicated that there was no audible reply,

Investigator Tonkin testified that she recalled the defendant’s saying that he did, in fact,

recall the warnings. She said that the defendant provided verbal assent to the questioning

and that he was not asked to sign a written waiver of rights form.

Investigator Tonkin said that during the interview, Investigator Moran

asked most of the questions and that Investigator Moran told the defendant that the victim

suffered injuries that the victim did not actually suffer, but she said that “that’s what [she

and Investigator Moran] were told” by hospital officials. She agreed that Investigator

Moran questioned the defendant strongly about alleged evidence of sexual abuse that

proved to be not actual proof of abuse at all. She also agreed that Investigator Moran

appeared at times to be rather agitated during the interview.

Investigator Tonkin conceded that at one point approximately one-third of

the way into the interview, while he was being questioned about the alleged sexual abuse,

the defendant said, “‘Put it like this, you can leave right now because I ain’t got nothing

else to say about that. I’m so blunt when I say that.’” She said that she did not believe

this statement to be an indication that the defendant wanted to stop the interview but that

he merely wanted the investigators to stop asking him about the sexual abuse allegations.

For this reason, they continued to question the defendant. She admitted that they

continued to ask the defendant questions about the alleged sexual abuse even after his

declaration. Investigator Moran also conceded that Investigator Moran did shout at the

defendant and make the defendant wait until the end of the interview to have a cigarette.

At the conclusion of the hearing, the trial court took the motion under

advisement and noted that it would watch the video recorded statement in its entirety

prior to issuing a ruling. On the following day, the court reconvened the parties to

discuss the issue. At that point, the State conceded that when the defendant said “you just

leave right now,” he intended to invoke his right to remain silent and that the

investigators had not honored the invocation. The State agreed that it would not use any

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portion of the defendant’s statement beyond that point. The trial court accepted the

State’s concession and agreed that the defendant’s statement was an invocation of his

right to remain silent.

The court deemed the remainder of the statement admissible, concluding

that the defendant “was sufficiently advised of his Miranda warnings at the apartment”

and that “he sufficiently waived those warnings.” The Court held:

I don’t believe that there had to [be] a separate invocation and

advisement of his rights and subsequent waiver once he

reached the police station, because the record reflects that that

was a very short period of time afterwards. And the Court

specifically found that there was not a voluntariness problem.

So from page 57 the line that I just read forward, [the

defendant’s] statement is suppressed. . . .

. . . . There is one other part of this statement that I’m

going to permit. . . . [T]here is a period of time when

Investigator Tonkin and Investigator Moran both leave the

interrogation room, but the cameras are still rolling, and [the

defendant] talks to himself and makes some statements which

are not responsive to interrogation, he’s simply setting there

talking to himself and lamenting some decisions that were

made. That is still admissible. It’s not in response to

interrogation. . . .

A trial court’s factual findings on a motion to suppress are conclusive on

appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215,

217 (Tenn.2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of

credibility, the weight and value of the evidence, and the resolution of conflicting

evidence are matters entrusted to the trial judge, and this court must uphold a trial court’s

findings of fact unless the evidence in the record preponderates against them. Odom, 928

S.W.2d at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts,

however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn.

1998).

The Fifth Amendment to the United States Constitution provides that “no

person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding “the Fifth

Amendment’s exception from compulsory self-incrimination” applicable to the states

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through the Fourteenth Amendment). This means that, to pass federal constitutional

muster and be admissible at trial, a confession must be free and voluntary and not

“‘extracted by any sort of threats or violence, nor obtained by any direct or implied

promises, . . . nor by the exertion of any improper influence’” or police overreaching.

Bram v. United States, 168 U.S. 532, 542-43 (1897) (citation omitted). The rule is

equally applicable to confessions given during custodial interrogations following

appropriate provision of Miranda warnings, see State v. Kelly, 603 S.W.2d 726, 728

(Tenn. 1980), and those provided before the defendant has been placed in custody, see

Arizona v. Fulminante, 499 U.S. 279, 286-88 (1991). To determine voluntariness, the

reviewing court must examine the totality of the circumstances surrounding the

confession to determine “whether the behavior of the State’s law enforcement officials

was such as to overbear [the defendant’s] will to resist and bring about confessions not

freely self-determine–a question to be answered with complete disregard of whether or

not [the defendant] in fact spoke the truth.” Rogers v. Richmond, 365 U.S. 534, 544

(1961).

Article I, section 9 of the Tennessee Constitution provides that “in all

criminal prosecutions, the accused . . . shall not be compelled to give evidence against

himself.” Tenn. Const. art. I, § 9. “The test of voluntariness for confessions under

Article I, § 9 of the Tennessee Constitution is broader and more protective of individual

rights than the test of voluntariness under the Fifth Amendment.” State v. Smith, 933

S.W.2d 450, 455 (Tenn. 1996) (citing State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.

1994)); see also State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005). “The critical

question is ‘whether the behavior of the state’s law enforcement officials was such as to

overbear [the defendant’s] will to resist and bring about confessions not freely self-

determined.’” Smith, 933 S.W.2d at 455-56 (quoting Kelly, 603 S.W.2d at 728 (internal

citation and quotation marks omitted)). Moreover, because of the extra protection

afforded by the state constitution, “[f]or the relinquishment of rights to be effective, the

defendant must have personal awareness of both the nature of the right and the

consequences of abandoning his rights.” Thacker, 164 S.W.3d at 249 (citing Stephenson,

878 S.W.2d at 544–45). Accordingly, “the totality of the circumstances must reveal ‘an

uncoerced choice and the required level of comprehension before a court can properly

conclude that Miranda rights have been waived.’” State v. Blackstock, 19 S.W.3d 200,

208 (Tenn. 2000) (quoting Stephenson, 878 S.W.2d at 545; Moran v. Burbine, 475 U.S.

412, 421 (1986)).

An accused “may knowingly and intelligently waive the right against self-

incrimination only after being apprised of” the constitutional rights to remain silent and

to counsel during interrogation. Thacker, 164 S.W.3d at 248. As with the voluntariness

of a statement, the trial court “may conclude that a defendant voluntarily waived his

rights if, under the totality of the circumstances, the court determines that the waiver was

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uncoerced and that the defendant understood the consequences of waiver.” Id. (citing

Stephenson, 878 S.W.2d at 545). “Among the circumstances courts have considered are

the defendant’s age, background, level of functioning, reading and writing skills, prior

experience with the criminal justice system, demeanor, responsiveness to questioning,

possible malingering, and the manner, detail, and language in which the Miranda rights

are explained.” Blackstock, 19 S.W.3d at 208.

On appeal, the defendant concedes that Investigator Moran provided him

with Miranda warnings before questioning him at the residence but argues that the

investigators should have readministered the warnings before questioning him at the

police station.

“A valid waiver of Miranda rights remains valid unless the circumstances

change so seriously that the suspect’s answers to interrogation are no longer voluntary or

unless the suspect is no longer making a knowing and intelligent waiver of his rights.”

State v. Rogers, 188 S.W.3d 593, 606 (Tenn. 2006) (citing Wyrick v. Fields, 459 U.S. 42,

47 (1982)). “Courts must examine the totality of the circumstances to determine whether

renewed warnings are required.” Id. The circumstances to be examined include but are

not limited to

1) the amount of time that has passed since the waiver; 2) any

change in the identity of the interrogator, the location of the

interview, or the subject matter of the questioning; 3) any

official reminder of the prior advisement; 4) the suspect’s

sophistication or past experience with law enforcement; and

5) any indicia that the suspect subjectively understands and

waives his rights.

Id.

In our view, there is no merit to the defendant’s claim. He was

administered Miranda warnings at the residence and then, after giving the investigators a

tour of the home, he was transported directly to the police station. Less than two hours

later, the same two investigators arrived to question him. Before questioning the

defendant, Investigator Moran reminded the defendant of the earlier warnings and asked

the defendant if he remembered them. The defendant indicated that he did. Neither the

change in location nor passage in time was sufficient, in our view, to require a fresh set of

Miranda warnings.

The defendant also argues that because the investigators failed to

readminister the Miranda warnings before questioning him at the station, the State cannot

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establish that the defendant provided a voluntary waiver. We disagree. We have

previously concluded that the police were not required to provide Miranda warnings to

the defendant at the police station because they had already provided them to him a short

time earlier at the residence. The defendant concedes that he voluntarily waived his

rights at the residence; we see no reason to conclude that his waiver had expired when the

questioning continued at the police station. Even if we had so concluded, however, we

would still conclude that the defendant knowingly and voluntarily waived his rights at the

police station. Investigator Moran reminded the defendant of the earlier admonition and

asked if the defendant recalled it. The defendant indicated that he did and immediately

began answering questions.

II. Admission of Video Recording of Defendant’s Statement

The defendant asserts that the trial court erred by admitting into evidence

the video recording of his statement to Investigators Tonkin and Moran because the

recording contained the hearsay statements and “prejudicial insults” delivered by

Investigator Moran. The State contends, as it did at trial, that Investigator Moran’s

statements did not qualify as hearsay because they were not offered for the truth of the

matter asserted.

At trial, the trial court agreed with the State’s position and overruled the

defendant’s objection. Just prior to the playing of the defendant’s video recorded

statement, the court offered a curative instruction to the jury:

Ladies and Gentlemen, a couple of points about what you’re

getting ready to see. You’re going to see an interview of [the

defendant] conducted at the Knoxville Police Department.

I’m informed that this . . . thing may not flow smoothly, it

may jump around a lot. I don’t want you to be concerned

about that. Blame me for that, okay?

Secondly, there will be times when there may be

assertions made by Detective Moran in this interview. I’m

instructing you now, don’t take those assertions as the gospel,

okay? I want you to look at the proof that you hear from this

witness stand in conjunction with whatever exhibit that’s

introduced. That’s the proof in the case that you’re gonna

decide the case on. For instance, if Detective Moran makes

an assertion that this child may have been hurt in the

following ways, that’s not necessarily something that you

should take as fact at that point in time, okay? Am I clear?

-12-

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these

rules or otherwise by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide

exceptions to the general rule of inadmissibility of hearsay.

As our supreme court recently confirmed, “[t]he standard of review for

rulings on hearsay evidence has multiple layers.” Kendrick v. State, 454 S.W.3d 450, 479

(Tenn. 2015), cert. denied. The “factual and credibility findings” made by the trial court

when considering whether a statement is hearsay, “are binding on a reviewing court

unless the evidence in the record preponderates against them.” Id. (citing State v. Gilley,

297 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). “Once the trial court has made its

factual findings, the next questions–whether the facts prove that the statement (1) was

hearsay and (2) fits under one the exceptions to the hearsay rule–are questions of law

subject to de novo review.” Kendrick, 454 S.W.3d at 479 (citing State v. Schiefelbein,

230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721

(Tenn. Ct. App. 2005)); see also Gilley, 297 S.W.3d at 760 (stating that because “[n]o

factual issue attends” the trial court’s determination whether a statement is hearsay, “it

necessarily is a question of law”). “If a statement is hearsay, but does not fit one of the

exceptions, it is inadmissible, and the court must exclude the statement. But if a hearsay

statement does fit under one of the exceptions, the trial court may not use the hearsay rule

to suppress the statement.” Kendrick, 454 S.W.3d at 479; see also Gilley, 297 S.W.3d at

760-61.

In our view, the trial court did not err. The State did not offer any of

Investigator Moran’s statements for their truth, and the trial court’s instruction ensured

that the jury would not consider them as such. Moreover, it is our view that the cross-

examination of Investigator Tonkin, which demonstrated that Investigator Moran’s

statements were part of his strategy to get the defendant to make a statement, and the trial

court’s instruction provided appropriate context to the investigator’s statements. Under

these circumstances, we see no reason why the trial court should have excluded the

evidence.

III. Other Evidentiary Challenges

A. Bruising

The defendant asserts that the trial court erred by admitting evidence

regarding bruising on the victim’s genital area, arguing that the evidence was irrelevant

and prejudicial because there was no proof that the victim received those injuries

contemporaneously with the injuries that caused his death. The State contends that the

-13-

evidence was relevant and admissible given that the defendant was charged with

aggravated child abuse and because nothing limited proof on that charge to the injuries

that caused the victim’s death. We agree with the State.

Questions concerning evidentiary relevance rest within the sound discretion

of the trial court, and this court will not interfere with the exercise of this discretion in the

absence of a clear abuse appearing on the face of the record. See State v. DuBose, 953

S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);

State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the

trial court applies an incorrect legal standard or reaches a conclusion that is “illogical or

unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204

S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.

2006)).

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. “Evidence which is

not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed

relevant, it may be still 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.

Here, the defendant was charged with aggravated child abuse, which

required the State to establish that the defendant “knowingly, other than by accidental

means,” treated the victim “in such a manner” that “result[ed] in serious bodily injury to

the” victim. T.C.A. §§ 39-15-401(a); -402(a)(1). “‘Serious bodily injury to the child’

includes, but is not limited to . . . injuries to the skin that involve severe bruising . . . .”

Id. § 39-15-402(d). Evidence that the five-year-old victim suffered extensive bruising to

his lower abdomen and genital area was highly relevant to the charge of aggravated child

abuse, regardless of whether those injuries contributed to the victim’s death. As a result,

the trial court did not err by admitting the evidence.

B. Hole in the Wall

The defendant also asserts that the trial court erred by admitting into

evidence a portion of the drywall from inside the master bedroom closet when no

evidence linked the hole to the assault on the victim and when the State could not even

establish that stains on the wall were human blood. The State contends, again as it did at

trial, that the fact that there was a hole in the wall in the same closed area where the

victim suffered the very significant injuries that led to his death was relevant. The State

-14-

also asserts that the fact that the stains on the wall were not human blood went to the

weight of the evidence rather than its admissibility.

Officers examining the apartment after the victim was taken to the hospital

found a hole in the drywall inside the master bedroom closet. There were also reddish-

brown stains on the same portion of the wall. Officer Warren collected the drywall and

sent the stained portion to the TBI for testing. As Agent Lowe explained to the jury, that

testing indicated the presence of blood but “failed to indicate the presence of human

hemoglobin, a component of human blood.” Based upon this finding, she concluded that

the stain “probably is not human blood” and that the presence of human DNA on the

drywall “could be from someone simply touching the wall.” Because this evidence did

not tend to make the existence of any fact of consequence more or less probable, it was

irrelevant. Given the overwhelming proof of the defendant’s guilt, however, we conclude

that the erroneous admission of the evidence was harmless.

IV. Special Jury Instruction

The defendant next contends that the trial court erred by denying his

request for a special jury instruction on the right of parents and guardians to use corporal

punishment when disciplining children.

Under the United States and Tennessee Constitutions, a defendant has a

constitutional right to trial by jury. U.S. Const. amend. VI; Tenn. Const. art. 1, § 6; see

State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991); Willard v. State, 130 S.W.2d 99, 100

(Tenn. 1939). This right encompasses the defendant’s right to a correct and complete

charge of the law. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). In consequence, the

trial court has a duty “to give a complete charge of the law applicable to the facts of a

case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P.

30. Jury instructions must, however, be reviewed in the context of the entire charge

rather than in isolation. See Sandstrom v. Montana, 442 U.S. 510, 527 (1979)

(Rehnquist, J., concurring); see also Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)

(“[A] single instruction to a jury may not be judged in artificial isolation, but must be

viewed in the context of the overall charge.”); State v. Phipps, 883 S.W.2d 138, 142

(Tenn. Crim. App. 1994). A charge is prejudicial error “if it fails to fairly submit the

legal issues or if it misleads the jury as to the applicable law.” State v. Hodges, 944

S.W.2d 346, 352 (Tenn. 1997).

Although the defendant may request special instructions, jury instructions

are sufficient when they adequately state the law. State v. Gilley, 297 S.W.3d 739, 766

(Tenn. Crim. App. 2008). When a trial court’s charge to the jury is complete, it need not

-15-

give additional special instructions requested by the defendant. Id.; see also State v.

Story, 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980).

We need not tarry long over the defendant’s claim because the instructions

provided by the trial court contained a complete and correct statement of the law and

because the evidence adduced at trial did not support the giving of a special instruction

on a parent’s right to use corporal punishment. As the defendant concedes, “there is little

law” on the subject of a parent’s right to use corporal punishment as discipline. Justice

Birch, in a concurring opinion, suggested a potential jury instruction to be given when

fairly raised in child abuse cases, see State v. Toliver, 117 S.W.3d 216, 233 (Tenn. 2003)

(Birch, J., concurring), but neither our supreme court nor our legislature has seen fit to

adopt such an instruction in the intervening 15 years since Justice Birch made his

suggestion. It is telling that the defendant has not cited a single case where such an

instruction was given or where the failure to give such an instruction was identified as

error. Even if a standard instruction on this issue existed, it is not clear that the trial court

would have been required to provide it in this case. Importantly, no evidence suggested

that the defendant had been given permission by the children’s mother to provide any

form of discipline, much less physical discipline, to any of the children. Additionally, in

his statement, the defendant repeatedly insisted that he did not injure the victim in the

course of disciplining him. Finally, the testimony from both Doctor Perales and Doctor

Lochmuller established that the victim’s injuries were far in excess of what could have

happened in the course of reasonable discipline. Consequently, the trial court did not err

by refusing to provide the defendant’s requested instruction.

V. Closing Argument

The defendant asserts that the trial court erred by refusing to grant his

request for a mistrial after the prosecutor improperly commented on the defendant’s

constitutional right to remain silent.

During the rebuttal portion of the State’s closing argument, while

discussing the evolving nature of the defendant’s explanation of how the victim came to

be injured, the following exchange occurred:

Prosecutor: I don’t know what happened in that

bedroom; he does. He doesn’t want to tell us.

Defense counsel: Objection.

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Prosecutor: I meant in his statement. I’m sorry, I’ll

clarify. In his statement, he did not want to tell what

happened in that bedroom. He did not want to talk about it.

At the conclusion of the State’s argument, the defendant moved for a mistrial on grounds

that the prosecutor had made an improper comment on the defendant’s right to remain

silent. The trial court denied the motion:

I think he clarified that. I note your motion, but I think it was

clarified. I don’t think - - certainly, I’m not gonna find that

there was any malicious intent on his part to make a comment

when we’re talking (inaudible). The - - he said what he did,

and it’s a proper motion, but I’m gonna overrule it.

“Normally, a mistrial should be declared only if there is a manifest

necessity for such action.” State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing

State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)). “In other words, a

mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage of justice

would result if it did.” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34 S.W.3d 516,

527 (Tenn. Crim. App. 2000)). “The purpose for declaring a mistrial is to correct damage

done to the judicial process when some event has occurred which precludes an impartial

verdict.” State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

Pursuant to the Fifth Amendment to the United States Constitution and

Article I, section 9 of the Tennessee Constitution, a criminal defendant has a fundamental

right not to testify. See State v. Jackson, 444 S.W.3d 554, 586 (Tenn. 2014). It is well-

settled that this right prohibits a prosecutor from commenting on a defendant’s decision

not to testify at trial. See Griffin v. California, 380 U.S. 609, 614-15 (1965) (“For

comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal

justice,’ . . . which the Fifth Amendment outlaws.”); State v. Hale, 672 S.W.2d 201, 203

(Tenn. 1984) (cautioning that the “subject of a defendant’s right not to testify should be

considered ‘off-limits’ to any conscientious prosecutor”). Even indirect comments on the

defendant’s decision not to testify are forbidden, and, to this end, our supreme court has

“adopted a two-part test for ascertaining whether a prosecutor’s remarks amount to an

improper comment on a defendant’s exercise of the constitutional right to remain silent

and not testify.” Jackson, 444 S.W.3d at 587-88 (citations omitted). A reviewing court

must consider “whether the prosecutor’s manifest intent was to comment on the

defendant’s right not to testify” or “whether the prosecutor’s remark was of such a

character that the jury would necessarily have taken it to be a comment on the

defendant’s failure to testify.” Id. (citations omitted).

-17-

We begin by noting, as did our supreme court in Jackson, that “[g]iven that

‘[t]he impropriety of any comment upon a defendant’s exercise of the Fifth Amendment

right not to testify is so well settled as to require little discussion,’ it is not at all clear why

any prosecutor would venture into this forbidden territory.” Id. (quoting Ledford v. State,

568 S.W.2d 113, 116 (Tenn. Crim. App. 1978). Here, during rebuttal argument, the

prosecutor stated, “I don’t know what happened in that bedroom; he does. He doesn’t

want to tell us.” In our view, this statement was clearly an unconstitutional comment on

the defendant’s right to remain silent. The prosecutor’s “clarification” that the comment

was meant to refer to the defendant’s refusal to explain to the police how the victim

received his injuries does not alter our conclusion because, as our supreme court has

observed, “evidence or argument about a defendant’s post-arrest, post-Miranda silence is

impermissible.” Jackson, 444 S.W.3d at 586 n.43 (citing Doyle v. Ohio, 426 U.S. 610,

617 (1976). The defendant’s decision to provide a statement waives the privilege against

self-incrimination only “[a]s to the subject matter of his statements” and does not operate

as a blanket invitation to the prosecution to ascribe meaning to the defendant’s silence on

other matters. Anderson v. Charles, 447 U.S. 404, 408 (1980); see United States v.

Casamento, 887 F.2d 1141, 1179 (2d Cir. 1989) (“[E]ven if a defendant has made

statements to the police after receiving Miranda warnings, he is deemed to have

maintained his silence, unless the post-arrest statements are inconsistent with the

defendant’s testimony at trial.” Said differently, as to those subjects not addressed by the

defendant in his statement, he has remained silent, as is his constitutional prerogative, and

the State may not comment on that silence. In consequence, the prosecutor’s statement,

even if it was intended as a remark on the defendant’s refusal to admit certain details

during his statement, was an unconstitutional remark on the defendant’s exercise of his

constitutional right.

Because improper commentary on the accused’s exercise of his right to

remain silent is an error “of constitutional dimension,” a reviewing court must apply the

standard of harmless error review for non-structural constitutional errors announced in

Chapman v. California, that is, whether the State has established that the error was

harmless beyond a reasonable doubt. Jackson, 444 S.W.3d at 591; Chapman v.

California, 386 U.S. 18, 24 (1967). “When assessing whether the State has met its

burden, courts should consider the nature and extensiveness of the prosecutor’s argument,

the curative instructions given, if any, and the strength of the evidence of guilt.” Jackson,

444 S.W.3d 554 at 591 (citations omitted).

Here, the prosecutor’s remark was isolated. Like the improper comment at

issue in Jackson, the comment at issue here occurred during the State’s rebuttal closing

argument, thus depriving the defendant of any “opportunity to respond to the argument.”

Jackson, 444 S.W.3d at 592. That being said, nothing in the record suggests that the

-18-

prosecutor’s delivery of the statement was particularly forceful or in any way remarkable

or that the comment was accompanied by any gesture toward the defendant, as was the

case in Jackson. The defendant did not request any curative instructions either at the time

of his contemporaneous objection or at the time of his request for a mistrial, and the trial

court gave none. During its general charge, however, the trial court instructed the jury

that the statements and arguments of counsel were not evidence and that the jury was to

“place no significance on” the defendant’s decision not to testify and that “his election to

do so cannot be considered for any purpose against him, nor can any inference be drawn

from such fact.” Because these instructions were given as part of the court’s general

charge, they “did not highlight the prosecutor’s comment or the defendant’s decision not

to testify as the curative instructions given in Jackson did.” State v. Colvett, 481 S.W.3d

172, 208-09 (Tenn. Crim. App. 2014) (citing Jackson, 444 S.W.3d at 592 (stating that the

trial court’s curative instructions “likely served to emphasize further [Jackson’s] exercise

of her constitutional right not to testify”)). Finally, contrary to the defendant’s assertions

otherwise, the evidence of his guilt was overwhelming. While alone in the defendant’s

care, the victim suffered a complex skull fracture and bruising of his brain stem – injuries

which led to the victim’s death. On balance, we conclude that the error was harmless

beyond a reasonable doubt. Consequently, the trial court did not err by denying the

defendant’s motion for a mistrial.

VI. Sufficiency

The defendant avers that the evidence was insufficient to support his

convictions, arguing that there was evidence of other, plausible explanations for the

victim’s injuries.

We review the defendant’s claim of insufficient evidence mindful that our

standard of review is whether, after considering the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.

307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This

standard applies to findings of guilt based upon direct evidence, circumstantial evidence,

or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d

370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.

Questions concerning the credibility of the witnesses, the weight and value of the

evidence, as well as all factual issues raised by the evidence are resolved by the trier of

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must

afford the State the strongest legitimate view of the evidence contained in the record as

-19-

well as all reasonable and legitimate inferences which may be drawn from the evidence.

Id.

In this case, the defendant was charged with felony murder in the

perpetration of aggravated child abuse but convicted of the lesser included offense of

reckless homicide, which is “a reckless killing of another.” T.C.A. § 39-13-215(a). He

was also charged with aggravated child abuse, which required the State to establish that

the defendant “knowingly, other than by accidental means,” treated the victim “in such a

manner” that “result[ed] in serious bodily injury to the” victim. T.C.A. §§ 39-15-401(a);

-402(a)(1). “‘Knowing,’” in this instance, “means that a person acts knowingly with

respect to the conduct or to circumstances surrounding the conduct when the person is

aware of the nature of the conduct or that the circumstances exist.” Id. § 39-11-106(20).

For purposes of the aggravated child abuse statute,

“[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, including those

sustained by whipping children with objects.

Id. § 39-15-402(d).

The evidence adduced at trial established that when the victim’s mother left

the victim and his siblings alone with the defendant, the victim was uninjured and

behaving normally. When she returned home following the defendant’s report that he

was having difficulty rousing the victim, the victim was near death. When paramedics

arrived, the victim was unconscious and “not breathing adequately.” When Doctor

Perales examined the victim, she saw “a very critical patient who required assistance to

breathe, . . . medicines to have his blood pressure stay stable, and monitoring of . . . how

much pressure was around his brain at all times.” Doctor Perales could not even perform

a full examination of the victim’s body because even small movements would increase

the victim’s blood pressure, causing an increase in the intracranial pressure. Medical

imaging “showed that the [victim] had what we call occipital fracture,” fluid between all

the layers of his brain and skull and “even had bleeding between the bone and the scalp,”

and “a lot of brain swelling.” He also suffered a rupture of his cervical spine. She

testified that the victim’s injuries were the result of “a great amount of force. . . . A force

that if someone were to witness that event, they would know that that child was injured.”

She said that the victim’s injuries could not have come from his falling onto a window

sill while jumping on the bed, from his fainting in the bath, from his falling backwards

-20-

onto a carpeted floor, or his stumbling into a dresser. She went so far as to say that there

was no scenario under which the victim could have caused the injuries to himself. Doctor

Perales’ testimony was corroborated by Doctor Lochmuller’s findings during the autopsy

of the victim. He observed that the victim had suffered “a complex skull fracture” as

well as a “whiplash-like” injury to his brain that caused significant swelling of the

victim’s brain and brain stem. The injury to the victim’s brain stem paralyzed the victim,

rendering him unable to breath.

In light of the medical testimony, the defendant’s assertion on appeal that

“the evidence in this case was perhaps suspicious,” is absurd. The defendant was alone

in the room with a five-year-old child who suffered injuries that medical experts equated

with having been injured in a car accident or while skydiving. We hold that the evidence

was sufficient to support both convictions.

VII. Cumulative Error

The defendant asserts that the cumulative effect of the errors deprived him

of his constitutional rights to due process and a fair trial. Having considered the issues

presented on appeal and having concluded that the defendant is not entitled to relief for

any, we conclude that the cumulative effect of the alleged errors does not warrant

reversal.

VIII. Sentencing

Finally, the defendant contends that the effective sentence imposed by the

trial court is excessive.

Our standard of review of the trial court’s sentencing determinations in this

case is whether the trial court abused its discretion, but we apply a “presumption of

reasonableness to within-range sentencing decisions that reflect a proper application of

the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707

(Tenn. 2012). The application of the purposes and principles of sentencing involves a

consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of

the defendant . . . in determining the sentence alternative or length of a term to be

imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005

amendments to ‘place on the record, either orally or in writing, 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.’” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §

40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld 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.

-21-

The defendant argues that the trial court abused its discretion by “basing its

harsh sentence on an imagined sequence of events – [The defendant] was playing video

games while [the victim] was unconscious – was not supported by the testimony at trial.”

The record, however, belies the defendant’s assertion. At trial, the victim’s mother

testified that when she arrived home after the defendant reported that he could not rouse

the victim, her other children “were in the master bedroom with” the defendant “playing

the X-box.” Although it was not entirely clear whether she meant that the defendant was

actually playing the video game or whether he was in the room while the children played,

we do not believe the distinction is significant enough to undermine the entire sentencing

decision of the trial court. We would also note that this court has previously indicated

that the fact that the defendant “‘sat playing video games’ while the unresponsive victim

lay only a few feet away” reflected poorly on the defendant’s “potential for rehabilitation

or treatment” and was thus an appropriate fact to be considered at sentencing. State v.

Mark Takashi, No. E2010-01818-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App.,

Knoxville, Sept. 27, 2012).

Conclusion

Based upon the foregoing analysis, we affirm the judgments of the trial

court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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