State of Tennessee v. Terry Patterson

09/28/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 2, 2018 Session

STATE OF TENNESSEE v. TERRY PATTERSON

Appeal from the Criminal Court for Shelby County

No. 16-00715 Carolyn W. Blackett, Judge

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No. W2017-01481-CCA-R3-CD

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The Defendant, Terry Patterson, was convicted by a Shelby County Criminal Court jury

of aggravated child abuse, a Class A felony, in Count 1; voluntary manslaughter, a Class

C felony, in Count 2; aggravated child neglect, a Class A felony, in Count 3; second

degree murder, a Class A felony, in Count 4; and aggravated child endangerment, a Class

A felony, in Count 5. He was sentenced to twenty-five year terms for the aggravated

child abuse, aggravated child neglect, aggravated child endangerment, and second degree

murder convictions, and six years for the voluntary manslaughter conviction. The court

ordered that the sentences for the aggravated child abuse, aggravated child neglect, and

aggravated child endangerment convictions be served concurrent with each other but

consecutive to the sentences for the second degree murder and voluntary manslaughter

convictions, which were ordered to be served concurrent with each other, for an effective

term of fifty years in the Department of Correction. On appeal, the Defendant argues

that: (1) the evidence is insufficient to sustain his convictions; (2) his convictions for

second degree murder and voluntary manslaughter should be merged, as should his

convictions for aggravated child abuse, aggravated child neglect and aggravated child

endangerment; and (3) the trial court erred in imposing partial consecutive sentences.

After review, we modify the Defendant’s conviction for voluntary manslaughter in Count

2 to reckless endangerment and impose a sentence of four years for that conviction, the

judgment of which should indicate the merger of Count 2 into Count 4; reverse the

Defendant’s conviction for aggravated child endangerment in Count 5; and remand for

entry of a corrected judgment in Count 4 to indicate the merger of Count 2 into Count 4.

We affirm the trial court’s judgments in all other regards.

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

in Part, Reversed in Part, Modified in Part and Remanded

ALAN E. GLENN, J., delivered the opinion of the court, in which TIMOTHY L. EASTER and

J. ROSS DYER, JJ., joined.

Stephen C. Bush, District Public Defender; and Tony N. Brayton (on appeal), Mary K.

Kent (at trial), and Phillip Harvey (at trial), Assistant Public Defenders, for the appellant,

Terry Patterson.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

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

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

OPINION

FACTS

The Defendant was indicted on five different charges related to the beating death

of his three-year-old son: aggravated child abuse in Count 1, first degree murder during

the perpetration or attempt to perpetrate aggravated child abuse in Count 2, aggravated

child neglect in Count 3, first degree murder during the perpetration or attempt to

perpetrate aggravated child neglect in Count 4, and aggravated child endangerment in

Count 5.

At trial, Kerra Brown, the victim’s mother, testified that she and the Defendant,

the victim’s father, had previously been in a relationship. They shared custody of the

victim, alternating weeks, and at the time in question the victim was staying with the

Defendant. Ms. Brown said that on September 4, 2015, the Defendant called her to

express that the victim was not eating. Ms. Brown talked to the victim on the phone but

agreed to come over and talk to the victim in person.

Ms. Brown arrived at the Defendant’s apartment around 5:00 p.m. She recalled

that the victim was fully clothed and that the Defendant “was acting like he was pissed

off about something,” complaining that the victim would not eat. Ms. Brown repeatedly

told the victim that he needed to eat, but he refused. There was a McDonald’s Happy

Meal on the table and, although the victim would eat the French fries, he would only

chew the hamburger but not actually eat it. Ms. Brown said that the victim was a “picky”

eater.

Ms. Brown stated that she partially pulled down the victim’s pants and spanked his

bottom twice with the Defendant’s belt. She explained that she spanked the victim

because he was being disobedient by not following the Defendant’s order to eat. The

victim did not cry after the spanking. Ms. Brown told the victim to “be strong” and eat,

and he did so. The victim kept saying that he wanted to tell Ms. Brown something, but

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he never did despite her asking and him following her outside crying at one point. Ms.

Brown recalled that the Defendant was close by the entire time she was at his apartment.

Ms. Brown noted that the longer she stayed at the apartment, the more upset the

Defendant looked and acted. She determined that it was time for her to leave because the

victim was “good” and “[w]hatever [the Defendant] [was] mad about [had] . . . nothing to

do with [her] or [her] son.” She recalled that, as she was leaving, the Defendant made a

remark that he and Ms. Brown should get back together. He also asked to have sex with

Ms. Brown, but she refused. When Ms. Brown left, the victim was walking and talking

in a normal manner. She did not detect the smell of vomit or of the victim defecating on

himself.

Ms. Brown testified that she was awakened during the night by a phone call from

the Defendant telling her to go to the hospital because the victim was dead. He told her

that her “whooping” of the victim caused his death. Upon seeing the victim at the

hospital, Ms. Brown observed that his body looked “swollen.” He had a black eye, and

marks on his head and lips that were not there earlier in the evening. Ms. Brown did not

see the Defendant at the hospital.

Regina Watkins testified that she was the Defendant’s long-time girlfriend in

September 2015 and the two were living together. Ms. Watkins took care of the victim

the morning of September 4th until the Defendant came home from work around noon.

Ms. Watkins left shortly before 3:00 p.m. to avoid running into Ms. Brown. When she

left, the victim was fully clothed and acting like “a normal little boy eating.” The victim

had no injuries or marks on his body. The Defendant was “in a normal mood.”

Ms. Watkins recalled that the Defendant left the victim home alone and picked her

up from work around 11:00 p.m. that night. When they got home, she saw the victim

lying naked on the couch and noticed a spot or bruise on his forehead. She smelled “a

stench like vomit” in the home and noticed a stain on the other couch, but she did not see

any vomit on the victim. Ms. Watkins noted that it was normal for the victim to sleep

only in his underwear because he did not have a change of clothes in the home, but the

victim did not have on any underwear. She thought she saw the victim’s underwear and

jeans, as well as the Defendant’s belt, in the corner by the couch. Ms. Watkins kissed the

victim and told him goodnight. The victim said, “night-night step mom,” and Ms.

Watkins went to the bedroom.

Ms. Watkins testified that she asked the Defendant about the bruise on the victim’s

head. The Defendant told her that he had “whooped” the victim because “he didn’t want

to eat his food and . . . threw up on the couch,” and the victim fell and hit his head. Ms.

Watkins assumed that the victim must have hit his head on the edge of the coffee table.

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Ms. Watkins informed the Defendant that the victim, having sustained a head injury,

should be taken to the hospital and not allowed to go to sleep. The Defendant asserted

that it was just a bruise and went to bed without checking on the victim. Ms. Watkins

heard the victim cough twice and went in to check on him at 2:05 a.m. However, Ms.

Watkins thought that the victim was just suffering from his usual nasal congestion.

Ms. Watkins testified that the Defendant got up for work at 4:30 a.m., and she

heard him say goodbye to the victim as he prepared to leave. The Defendant then yelled

for her, exclaiming that the victim was not breathing. She went and checked on the

victim; he was not moving and his eyes were “rolled in the back of his head.” Ms.

Watkins called 911 and followed their orders for performing CPR until help arrived. The

Defendant was by her side, giving assistance. When the ambulance arrived, Ms. Watkins

rode with the victim in it to the hospital. She thought the Defendant was going to follow

the ambulance in his car, but she never saw him at the hospital.

After the victim was pronounced dead, Ms. Watkins was taken to the police

station and she told them what the Defendant had said about how the victim sustained a

bruise on his head. She identified a photograph of the victim’s head and face on which

she had circled the bruise and wrote that “[the Defendant] is responsible for [the victim]’s

death.”

On cross-examination, Ms. Watkins claimed that she gave a statement because the

police threatened her. She said that the part of her statement about kissing the victim

when she got home was true, but she did not recall much else because she had been

drinking. She said that it was true she saw a bruise on the victim’s head and told the

Defendant that he needed to take the victim to the hospital. The only untrue thing she

told the police was that she saw something on the victim’s scalp. She maintained both on

cross-examination and redirect examination that the Defendant told her that he hit the

victim and the victim fell.

Firefighter-Paramedic Michael Dobrzeniecki responded to the 911 call. He saw

Ms. Watkins standing over the naked toddler, trying to perform CPR. The victim was not

breathing and did not have a pulse. Mr. Dobrzeniecki tried to get information from Ms.

Watkins and the Defendant regarding the possible cause for the victim’s status, but both

were acting “standoffish” and “like they didn’t care.” Mr. Dobrzeniecki could not get

much more information from them other than the victim’s name and age, and that Ms.

Watkins last saw him alive around 2:30 a.m.

Paramedics moved the victim to the ambulance, and Mr. Dobrzeniecki detailed the

life-saving measures they undertook trying to save him. Under the brighter lighting in

the ambulance, Mr. Dobrzeniecki saw that the victim had bruising and swelling to his left

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eye and cylindrical-shaped bruising on his abdomen going down the right hip and leg,

indicators that the victim had been abused. Mr. Dobrzeniecki stated that normally a

family member would ride in the ambulance with the patient, but in this case Ms.

Watkins rode with them.

Dr. Amy Hertz, the emergency room doctor who tried to save the victim, testified

that the victim was “bruised all over.” She saw no scars on his body that would have

indicated any prior surgeries, so she suspected that he had “been beaten.” She noted that

the victim had “significant bruising especially around [his] left eye and on his forehead”

and also around his nose. There were multiple bruises on the victim’s torso, indicating

“significant trauma at the hand of somebody.” Dr. Hertz discussed the victim’s other

injuries and detailed the life-saving measures she took trying to save him. Dr. Hertz

opined that a child would not die from a head injury received by merely running and

falling down.

Dr. Hertz testified that a child with a subdural bleed could be saved, but they

would have to be aware that he or she had suffered a head injury. She said that in a three

year old, a subdural bleed of 14 centimeters by 6 centimeters would be “huge.” She

would not expect for a child of that age with a subdural bleed of that size to be able to

walk. She would expect the child to be sleepy, throwing up, and unable to function

normally. There would also be the danger that the child would aspirate vomit into his or

her lungs, which could be deadly. She would expect that the child would not be able to

talk, but instead, “make incomprehensible sounds.”

Dr. Hertz testified that a head injury that involved a subdural bleed of 14

centimeters by 6 centimeters would be “very painful” up until the point of

unconsciousness, and then the victim would stop breathing. A subdural bleed of that size

would require medical intervention to survive. However, Dr. Hertz said that a child who

survived such a subdural bleed would suffer “significant consequences” like learning

disorders or cerebral palsy.

Dr. Paul Benson conducted the autopsy of the victim. Dr. Benson documented the

victim’s external injuries, noting that he had to use several different diagrams because he

“couldn’t get all the injuries on the one diagram.” The doctor observed abrasions, bruises

and contusions on the victim’s face, jaw, ears, eyes, chest, abdomen, back, thighs, pelvis,

buttocks, genitals, arms and hands. Some of the bruising on the right side of the victim’s

abdomen and right thigh was in a looped-type pattern. The victim’s testicles exhibited

hemorrhaging, indicative of blunt force trauma. Dr. Benson surmised that the injuries to

the victim’s arms were consistent with defensive wounds – “injury trying to ward off a

blow.” The doctor’s investigation of the victim’s internal wounds revealed “bleeding in

the tissue . . . consistent with a . . . closed fist punch” from an adult.

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Dr. Benson testified that although the victim suffered extensive external injuries,

none of those would have been fatal. Rather, it was the damage to the victim’s skull and

brain that killed him. Dr. Benson’s internal examination of the victim’s head and skull

revealed a subdural hematoma, or intracranial bleeding, measuring 14 centimeters by 6

centimeters and weighing 26 grams. The injury caused the brain to swell, which deprived

the brain of oxygen and led to the cessation of brain function. Dr. Benson noted that the

injured side of the brain forced its way into the uninjured side of the brain. It was the

doctor’s opinion that if untreated, and “many times even if it is treated,” such swelling

would lead to death. Dr. Benson said that there could be pain associated with the

hematoma, along with decreased levels of consciousness, confusion, impaired use of

extremities, and decreased respiratory and heart rates. Nausea and vomiting could also

occur. The ability to walk and talk could be affected.

Dr. Benson testified that the victim’s head showed multiple blunt force trauma

impacts with bruising “on all the surfaces of the head, on the face, on the left side of the

scalp, on the right side of the scalp, on the front of the scalp and on the back of the

scalp[.]” The injuries Dr. Benson observed were consistent with the victim’s being

punched and hit with a belt. Dr. Benson opined that with a subdural hematoma the size

of that seen in the victim, the victim would have “quickly” become incapacitated and

unable to walk. Dr. Benson determined the cause of the victim’s death to be blunt force

injuries to the head.

Detective Michael Spearman with the Memphis Police Department was assigned

to conduct the initial interview of the Defendant. The Defendant was told that he was not

under arrest. Detective Spearman described the Defendant as “very cool, calm, mild,

collective,” but he “was leaning forward kind of like in a worried motion.” The

Defendant expressed concern about his son and asked about his girlfriend and the

victim’s mother. Detective Spearman recalled that the Defendant asked if the interview

room he was in was the same one used in the television show “First 48.”

Detective Spearman stated that the Defendant told him that he was “still married

to [his] wife and [they] ha[d] five children together. Then [he] ha[d] one outside child,

which is [the victim].” The Defendant said that he had recently been awarded shared

custody of the victim, and the victim was staying with him at the time in question.

However, the victim would not eat or use the bathroom, so he called the victim’s mother

to come over and talk to him. The Defendant told Detective Spearman that he went to the

store when the victim’s mother arrived, but he thought the victim’s mother “whooped”

the victim although he did not know for sure. The Defendant said that he told the

victim’s mother that she was the one who needed to discipline the victim because he was

not going to “whoop” the child.

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The Defendant told Detective Spearman that when he got home from the store, the

victim was lying down in bed under the covers and “everything with him looked pretty

straight.” The Defendant said that his girlfriend got home later and they heard the victim

coughing sometime during the night. The Defendant’s girlfriend checked on the victim

and called 911 because she thought that he was not breathing. Detective Spearman

recalled that the Defendant’s demeanor during the interview was very calm but worried.

Detective Spearman sat in on a second interview of the Defendant conducted by

Detective Fausto Frias later the same day. The Defendant’s demeanor was still “pretty

calm” during the second interview, but he banged on the table a couple of times and “was

a little angry” after being shown photographs of the victim.

Detective Fausto Frias with the Memphis Police Department testified that he had

the Defendant; the Defendant’s girlfriend, Regina Watkins; the victim’s mother, Kerra

Brown; and the victim’s mother’s boyfriend all brought in for questioning. He recalled

that the Defendant was calm and cooperative when he explained the investigative

process. After Detective Frias spoke with the medical examiner and had the witnesses

interviewed by other officers, he personally interviewed the Defendant. The Defendant

initially told him that “[h]e didn’t have any idea of how those injuries were there. And he

denied being responsible for the injuries.” When Detective Frias confronted the

Defendant with Ms. Watkins’s statement, the Defendant “became emotional” and

“nervous.” Detective Frias then showed the Defendant photographs of the victim, and

the Defendant “became real emotional” and said, “I did that to my son. I’m not a killer. I

love him.” The Defendant gave a statement explaining that he became angry when the

victim spit out his food and urinated and defecated on himself. He admitted that he

“went overboard” and beat the victim with his hands and a belt. The Defendant also said

that the victim had referred to Ms. Brown’s boyfriend, rather than the Defendant, as his

father.

In his statement, the Defendant recounted that the victim refused to eat from the

time he picked up the victim on Sunday afternoon until Friday, when the Defendant got

ahold of Ms. Brown to have her speak to the victim about the importance of eating. Ms.

Brown also came over and spoke to the victim in person. The Defendant said that Ms.

Brown “hit [the victim] and whip[ped] him with the belt.” The Defendant recounted that

after Ms. Brown left, the victim “threw up all over the table. I then slapped him across

his face and he bumped his head into the doorway. I picked him back up and hit him

twice in the head with my fist and then I took a belt and finished whipping him with the

belt.” The Defendant said that he then laid the victim down on the couch and left the

apartment to pick up his girlfriend. When he and Ms. Watkins got home, the victim was

still lying on the couch, but he checked on the victim and “he seemed to be okay.” Ms.

Watkins checked on the victim at 2:30 a.m. and told the Defendant that the victim was

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okay. The Defendant said, however, that the victim was not breathing when he checked

on him at 4:30 a.m.

In his statement, the Defendant recalled that after he hit the victim with his fist and

belt, the victim was “dazed like lame, but he was responsive.” The Defendant said that

he did not take the victim to the hospital because he “wasn’t thinking and . . . thought he

was going to be okay.” The Defendant made notations on several photographs of the

victim, signifying that he inflicted the injuries. The Defendant ended his statement by

saying that he “went overboard” and that he “need[ed] help with [his] anger so this can

never happen again.”

Officer Stacy Milligan, a crime scene investigator with the Memphis Police

Department, took photographs of the victim’s body at the hospital and then went to the

crime scene where he took additional photographs and collected evidence. Among the

photographs Officer Milligan took in the Defendant’s home was one of a belt and pair of

Spiderman underwear on the couch, and one of a tissue with blood on it that was found

on a stove in the kitchen. He collected the tissue, underwear, belt, and some other items

of children’s clothing, as well as a large sofa cushion that appeared to be soiled.

The Defendant elected not to testify or present any proof.

After the conclusion of the proof, the jury convicted the Defendant of aggravated

child abuse in Count 1, the lesser-included offense of voluntary manslaughter in Count 2,

aggravated child neglect in Count 3, the lesser-included offense of second degree murder

in Count 4, and aggravated child endangerment in Count 5.

ANALYSIS

I. Sufficiency

The Defendant argues that the evidence is insufficient to sustain his convictions.

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court is “whether, after viewing the evidence in the light most favorable to the

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

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also

Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or

jury shall be set aside if the evidence is insufficient to support the findings by the trier of

fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92

(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All

questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

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S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973). Our supreme court has stated the rationale for this rule:

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

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

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

instrumentality of justice to determine the weight and credibility to be

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

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

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d

523 (1963)). “A jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is insufficient.”

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

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.

1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting

State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses’

testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d

331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.

1978)). Moreover, the jury determines the weight to be given to circumstantial evidence

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

circumstances are consistent with guilt and inconsistent with innocence are questions

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

646, 662 (Tenn. 2006)). This court, when considering the sufficiency of the evidence,

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

fact. Id.

A. Aggravated Child Abuse, Neglect and Endangerment

The Defendant argues that the evidence is insufficient to sustain his convictions

for aggravated child neglect and aggravated child endangerment because there is no

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evidence that any neglect or endangerment on his part “produced an actual deleterious

effect or harm upon the victim, separate and apart from [the] serious bodily injury relied

upon to establish aggravated child abuse.” Essentially, the Defendant asserts that there is

insufficient proof of different forms of serious bodily injury to support convictions for

aggravated child abuse, aggravated child neglect and aggravated child endangerment.

Tennessee Code Annotated section 39-15-402 provides that:

A person commits the offense of aggravated child abuse, aggravated child

neglect or aggravated child endangerment, who commits child abuse, as

defined in § 39-15-401(a); child neglect, as defined in § 39-15-401(b); or

child endangerment, as defined in § 39-15-401(c) and . . . [t]he act of abuse,

neglect or endangerment results in serious bodily injury to the child[.]

Id. § 39-15-402(a)(1).

Child abuse is defined as “knowingly, other than by accidental means, treat[ing] a

child under eighteen (18) years of age in such a manner as to inflict injury[.]” Id. § 39-

15-401(a). Child neglect is “knowingly abus[ing] or neglect[ing] a child under eighteen

(18) years of age, so as to adversely affect the child’s health and welfare[.]” Id. § 39-15-

401(b). Child endangerment occurs when “[a] parent or custodian of a child eight (8)

years of age or less . . . knowingly exposes such child to or knowingly fails to protect

such child from abuse or neglect resulting in physical injury to the child.” Id. § 39-15-

401(c). Child abuse, neglect, or endangerment becomes aggravated when the “act of

abuse, neglect or endangerment results in serious bodily injury to the child[.]” Id. § 39-

15-402(a)(1). “‘Serious bodily injury to the child’ includes, but is not limited to . . . 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[.]” Id. § 39-15-401(d).

Having reviewed the evidence in the light most favorable to the State, we conclude

that there is sufficient evidence to establish two independent forms of serious bodily

injury to support the Defendant’s aggravated child abuse and aggravated child neglect

convictions. We are constrained to conclude, however, that there is not additional

evidence sufficient to sustain the aggravated child endangerment conviction.

As to aggravated child abuse, the Defendant admitted to whipping the victim with

his belt. The medical examiner, Dr. Benson, testified that the victim was covered in

bruises from head to toe and had suffered multiple blows to the head. The victim also

suffered blunt force trauma to his testicles. Dr. Benson noted that the victim’s abdominal

bruises exhibited a “looped” pattern. Dr. Benson opined that the victim’s injuries were

consistent with his being punched and hit with a belt. Dr. Benson’s internal examination

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of the victim’s head and skull revealed a subdural hematoma, or intracranial bleeding,

measuring 14 centimeters by 6 centimeters and weighing 26 grams. The injury caused

the brain to swell, which deprived the brain of oxygen and ultimately led to the cessation

of brain function. The emergency room physician, Dr. Hertz, testified that the victim had

significant bruising, especially around his left eye, forehead, and around his nose. She

also noted multiple bruises on the victim’s torso. Dr. Hertz stated that a subdural bleed

the size of the victim’s would be considered “huge.” Dr. Hertz summarized that the

victim was “bruised all over” and had sustained “significant trauma at the hand of

somebody.” There is sufficient evidence for a rational trier of fact to find the Defendant

guilty of aggravated child abuse.

As to aggravated child neglect, the proof established that a subdural bleed the size

of the victim’s would require medical attention but could be survivable, and that the

Defendant’s delay in seeking medical treatment posed a substantial risk of death. It is

undisputed that the victim did not move from the time Regina Watkins arrived home at

11:00 p.m. until 911 was called around 4:30 a.m. Ms. Watkins testified that when she got

home, she saw a bruise on the victim’s head and told the Defendant that he should seek

medical attention for the victim, but the Defendant took no action. According to the

testimonies of Dr. Hertz and Dr. Benson, a victim with a subdural bleed like the victim’s

would not be able to walk or function normally, and would be sleepy and possibly vomit.

Such a victim would also have decreased levels of consciousness, confusion, and

impaired use of extremities. Dr. Benson opined that with a subdural hematoma the size

of that seen in the victim, the victim would have “quickly” become incapacitated. From

this proof, a reasonable trier of fact could have determined that the Defendant could not

help but know that the victim needed medical treatment and knowingly neglected the

victim by delaying medical treatment, which produced an actual deleterious effect or

harm upon the victim. There is sufficient evidence to sustain the Defendant’s conviction

of aggravated child neglect.

In sum, the beating of the victim is the basis for the aggravated child abuse

conviction and the failure to seek timely medical treatment is the basis for the aggravated

neglect conviction. See State v. Joshua R. Starner and Caitlyn Metz, No. M2014-01690-

CCA-R3-CD, 2016 WL 1620778, at *27-28 (Tenn. Crim. App. Apr. 20, 2016), perm.

app. denied (Tenn. Aug. 18, 2016). We have thoroughly reviewed the record, however,

and there is simply not enough additional distinct proof to sustain the Defendant’s

aggravated child endangerment conviction.

B. Second Degree Murder and Voluntary Manslaughter

As laid out above, the Defendant was convicted of second degree murder as a

lesser-included offense of first degree murder during the perpetration or attempt to

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perpetrate aggravated child neglect, and of voluntary manslaughter as a lesser-included

offense of first degree murder during the perpetration or attempt to perpetrate aggravated

child abuse. The Defendant argues that the evidence is insufficient to sustain these

convictions.

Second degree murder is a knowing killing of another. Tenn. Code Ann. § 39-13-

210(a)(1). A person acts knowingly with respect to the result of his conduct when he is

aware that his conduct is reasonably certain to cause the result. Id. § 39-11-106(a)(20).

The Defendant asserts that, at most, he acted recklessly. However, in the light most

favorable to the State, there is sufficient evidence from which the jury could find that the

Defendant acted knowingly. The proof showed that the Defendant beat and struck the

three-year-old victim numerous times in the head. Dr. Hertz and Dr. Benson both

testified that the severity of the victim’s injuries would have been immediately apparent.

Dr. Hertz testified that the victim would have been unable to walk, would be sleepy,

possibly throw up and exhibit “mental status changes.” Dr. Benson testified that the

victim would have “quickly” become incapacitated and unable to walk. When Ms.

Watkins got home and observed the victim’s head injury, the Defendant ignored her

suggestion that he take the victim to the hospital. Further, paramedic Michael

Dobrzeniecki testified that the Defendant was unemotional at the scene, like he “didn’t

care.” Given this proof, a reasonable trier of fact could have determined that the

Defendant could not help but be aware that delaying medical treatment would be

reasonably certain to cause the victim’s death.

Voluntary manslaughter is “the intentional or knowing killing of another in a state

of passion produced by adequate provocation sufficient to lead a reasonable person to act

in an irrational manner.” Id. § 39-13-211(a). The elements which distinguish voluntary

manslaughter from murder are those of “adequate provocation” and “state of passion.”

The jury is responsible for reviewing the evidence to determine whether it supports a

finding of adequate provocation. State v. Williams, 38 S.W.3d 532, 539 (Tenn. 2001).

The Defendant asserts the victim’s behavior, which was “normal” for “a three-year-old

who is a picky eater that vomits or urinates on himself,” could not constitute adequate

provocation.

We agree with the Defendant. Our supreme court has held that it is “a virtual legal

impossibility for a small child to commit an act that would amount to provocation

sufficient to make his subsequent death voluntary manslaughter rather than murder.”

State v. Brown, 836 S.W.2d 530, 554 (Tenn. 1992) (finding that a four-year-old child

urinating and defecating on himself was not adequate provocation for a conviction of

voluntary manslaughter). More recently, this court relied on the holding in Brown to

conclude that the act of an eighteen-month-old child losing a sock was insufficient

provocation. State v. Edward Joseph Benesch II, No. M2015-02124-CCA-R3-CD, 2017

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WL 3670196, at *16-17 (Tenn. Crim. App. Aug. 25, 2017). In the case at hand, we

simply cannot conclude that the three-year-old victim’s refusal to eat or urinating and

defecating on himself could constitute adequate provocation sufficient to sustain a

voluntary manslaughter conviction. However, the evidence is sufficient to support a

conviction for the next appropriately charged lesser-included offense of reckless

homicide, which is “a reckless killing of another.” Tenn. Code Ann. § 39-13-215.

Therefore, we modify the Defendant’s conviction for voluntary manslaughter in Count 2

to reckless homicide.

Because the trial court imposed the maximum sentence for each of the

Defendant’s convictions, remanding for resentencing is not necessary as the record before

us is sufficient to impose an appropriate sentence. See State v. Zonge, 973 S.W.2d 250,

255 (Tenn. Crim. App. 1997). Therefore, using the trial court’s previous sentencing

determination as guidance, we impose the maximum sentence of four years for this Class

D felony. See, e.g., Edward Joseph Benesch II, 2017 WL 3670196 at *19 (imposing a

sentence of four years for the modified conviction because the trial court imposed the

maximum sentence for each of the defendant’s other convictions); State v. Daniel

O’Sicky, No. E2010-02439-CCA-R3-CD, 2011 WL 3371486, at *7 (Tenn. Crim. App.

Aug. 5, 2011) (imposing a sentence of six years for the modified conviction because the

trial court imposed the maximum sentence for each of the defendant’s other convictions).

Accordingly, we remand for modification of the judgment form to reflect a sentence of

four years for reckless homicide in Count 2.

II. Double Jeopardy / Merger

The Double Jeopardy Clause of the United States Constitution provides that no

person shall “be subject for the same offense to be twice put in jeopardy of life or

limb[.]” U.S. Const. amend. V. Article I, section 10 of the Tennessee Constitution

similarly provides “[t]hat no person shall, for the same offence, be twice put in jeopardy

of life or limb.” Our supreme court has recognized that the Double Jeopardy Clause

provides three separate protections: (1) protection against a second prosecution for the

same offense after acquittal; (2) protection against a second prosecution for the same

offense after conviction; and (3) protection against multiple punishments for the same

offense. State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012). This case involves the last

of these three categories.

“In single prosecutions, multiple punishment claims ordinarily fall into one of two

categories . . . referred to as ‘unit-of-prosecution’ and ‘multiple description’ claims.” Id.

at 543. “[M]ultiple description claims arise when a defendant who has been convicted of

multiple criminal offenses under different statutes alleges that the statutes punish the

same offense.” State v. Smith, 436 S.W.3d 751, 766 (Tenn. 2014) (citing Watkins, 362

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S.W.3d at 544). By contrast, unit-of-prosecution claims arise “when defendants who

have been convicted of multiple violations of the same statute assert that the multiple

convictions are for the ‘same offense.’” Watkins, 362 S.W.3d at 543. The Defendant’s

assertions in this case present multiple description claims.

In Watkins, the Tennessee Supreme Court abandoned the State v. Denton, 938

S.W.2d 373 (Tenn. 1996), four-factor test previously employed by Tennessee courts in

determining whether dual convictions violate the prohibition against double jeopardy.

Instead, for multiple description claims, the court adopted the same elements test

enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S.

299, 304 (1932). Watkins, 362 S.W.3d at 556. Under the Blockburger test, the first step

is to determine whether the convictions arise from the same act or transaction. Watkins,

362 S.W.3d at 545. If the convictions arose from the same act or transaction, the court

must then determine whether the legislature intended to allow the offenses to be punished

separately. Id. When the legislature has not clearly expressed its intent either to prevent

or to preclude the dual convictions, the court must examine the statutes to determine

whether the crimes constitute the same offense. Id. If each offense contains an element

that the other offense does not, the statutes do not violate double jeopardy. Id. at 545-46.

Whether multiple convictions violate double jeopardy is a mixed question of law

and fact that we review de novo with no presumption of correctness. Smith, 436 S.W.3d

at 766 (citing State v. Thompson, 285 S.W.3d 840, 846 (Tenn. 2009)).

A. Second Degree Murder and Voluntary Manslaughter

The Defendant argues that his convictions for second degree murder and voluntary

manslaughter violate double jeopardy. He claims that Counts 2 and 4 of the indictment

charged him with alternate theories of felony murder, the killing of the victim in the

perpetration or attempt to perpetrate, respectively, aggravated child abuse, and

aggravated child neglect, and that double jeopardy bars “dual convictions for alternative

theories of felony murder.” He therefore asserts that the two convictions should be

merged.

Although we have modified the Defendant’s conviction for voluntary

manslaughter into a conviction for reckless homicide, the Defendant’s assertion that the

convictions in Counts 2 and 4 should merge is still correct. See State v. Berry, 503

S.W.3d 360, 362 (Tenn. 2015). Even though the judgments do not reflect such, however,

the transcript of the sentencing hearing indicates that the trial court in fact merged these

two convictions. Therefore, we remand for entry of corrected judgments indicating

merger of the Defendant’s reckless homicide conviction into his second degree murder

conviction pursuant to the guidelines provided in Berry. Id. at 364.

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B. Aggravated Child Abuse, Neglect and Endangerment

The Defendant argues that his convictions for aggravated child abuse, aggravated

child neglect and aggravated child endangerment should be merged into a single count of

aggravated child abuse. He asserts that those “three counts of the indictment reflect

alternate theories for the aggravating factor: that the victim received serious bodily

injury.” The State asserts that “each of the convictions represent separate and distinct

offenses by the [D]efendant.”

Under the previous version of the statute, aggravated child abuse and neglect was

a single offense committed in one of two ways – through injury or neglect. See State v.

Mateyko, 53 S.W.3d 666, 668 n.1 (Tenn. 2001). However, an amendment to Tennessee

Code Annotated section 39-15-402 established aggravated child abuse and aggravated

child neglect as separate and distinct offenses. See State v. Dorantes, 331 S.W.3d 370,

385 n.15 (Tenn. 2011). “[C]hild endangerment” is also designated as a separate offense

under Tennessee Code section 39-15-401(c) and 39-15-402(a). As we addressed in detail

regarding the sufficiency of the evidence, the Defendant’s convictions for aggravated

child abuse and aggravated child neglect were based on different actions or inactions on

the Defendant’s part. Accordingly, there is no double jeopardy issue and merger of these

two convictions is not required. The Defendant’s double jeopardy allegation is moot

regarding his conviction for aggravated child endangerment in light of our determination

that there is insufficient evidence to sustain that conviction. However, in the event a

reviewing court were to determine there was sufficient evidence to sustain the conviction

for aggravated child endangerment, then that conviction would be based on yet another

distinct action or inaction and merger would not be required.

III. Sentencing

The Defendant lastly challenges the trial court’s imposition of partial consecutive

sentences. He asserts that the court erred in finding that he had an extensive criminal

record and considering a non-statutory factor, namely the facts of the case.

A trial court is to consider the following when determining a defendant’s sentence

and the appropriate combination of sentencing alternatives:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

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(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s own behalf

about sentencing.

Id. § 40-35-210(b).

The trial court is granted broad discretion to impose a sentence anywhere within

the applicable range, regardless of the presence or absence of enhancement or mitigating

factors, and the sentencing decision of the trial court will 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.” State v. Bise, 380 S.W.3d

682, 709-10 (Tenn. 2012). Accordingly, we review the length of the sentences ordered

by the trial court under an abuse of discretion standard, “granting a presumption of

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

the purposes and principles of our Sentencing Act.” Id. at 707. We, similarly, review the

trial court’s order of consecutive sentencing for abuse of discretion, with a presumption

of reasonableness afforded to the trial court’s decision. See State v. Pollard, 432 S.W.3d

851, 860 (Tenn. 2013) (applying the same deferential standard announced in Bise, 380

S.W.3d at 707, to the trial court’s consecutive sentencing decisions).

A trial court may order multiple sentences to run consecutively if it finds by a

preponderance of evidence that one or more of the seven factors listed in Tennessee Code

Annotated section 40-35-115(b) applies, including that the defendant is an offender

whose record of criminal activity is extensive. Id. § 40-35-115(b)(2).

It was established at the sentencing hearing that the Defendant had prior

convictions for attempted statutory rape, statutory rape, criminal trespass and unlawful

possession of a weapon. The trial court, considering both the Defendant’s previous

convictions and current convictions, found that he possessed an extensive history of

criminal activity. The court imposed a twenty-five year sentence on Count 1 (aggravated

child abuse); a six year sentence on Count 2 (voluntary manslaughter); a twenty-five year

sentence on Count 3 (aggravated child neglect); a twenty-five year sentence on Count 4

(second degree murder); and a twenty-five year sentence on Count 5 (aggravated child

endangerment). The court ordered that Counts 1, 3 and 5 run concurrently to each other.

The court orally merged the voluntary manslaughter conviction in Count 2 into the

second degree murder conviction in Count 4 and ordered that the resultant twenty-five

year sentence run consecutively to the twenty-five year sentence from Counts 1, 3 and 5,

for an effective sentence of fifty years.

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The Defendant contends that the trial court erred in relying on the extensive record

of criminal activity factor in imposing consecutive sentences. However, in addition to

the prior criminal convictions listed in his presentence report, the Defendant stands

presently convicted of four offenses after our reversal of his aggravated child

endangerment conviction. This court has held that “[c]urrent offenses may be used in

determining criminal history for the purposes of consecutive sentencing.” State v.

Carolyn J. Nobles, No. M2006-00695-CCA-R3-CD, 2007 WL 677861, at *12 (Tenn.

Crim. App. Mar. 7, 2007) (citing State v. Cummings, 868 S.W.2d 661, 667 (Tenn. Crim.

App. 1992)); see, e.g., State v. David Richardson, No. W2016-00174-CCA-R3-CD, 2017

WL 401368, at *9 (Tenn. Crim. App. Jan. 27, 2017), perm. app. denied (Tenn. May 24,

2017); State v. Kyle Ronald Fencl, No. M2012-01265-CCA-R3-CD, 2013 WL 3976060,

at *8 (Tenn. Crim. App. Aug. 5, 2013), perm. app. denied (Tenn. Nov. 13, 2013). The

Defendant’s complaint that the trial court considered the “non-statutory factor” of the

facts of the case is of no consequence as the trial court’s reliance on the Defendant’s

record of criminal activity is alone sufficient to support imposition of consecutive

sentences. The trial court did not abuse its discretion.

CONCLUSION

Based on the foregoing authorities and reasoning, we modify the Defendant’s

conviction for voluntary manslaughter in Count 2 to reckless endangerment and impose a

sentence of four years for that conviction, the judgment of which should indicate the

merger of Count 2 into Count 4; reverse the Defendant’s conviction for aggravated child

endangerment in Count 5; and remand for entry of a corrected judgment in Count 4 to

indicate the merger of Count 2 into Count 4. We affirm the trial court’s judgments in all

other regards.

____________________________________

ALAN E. GLENN, JUDGE

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