State of Tennessee v. Rhasean Lowry

04/15/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 19, 2019 Session

STATE OF TENNESSEE v. RHASEAN LOWRY

Appeal from the Criminal Court for Hamilton County

No. 294418 Don W. Poole, Judge

No. E2019-00113-CCA-R3-CD

Aggrieved of his Hamilton County Criminal Court jury convictions of felony murder in

the perpetration of aggravated child abuse and aggravated child abuse, the defendant,

Rhasean Lowry, appeals. The defendant alleges that the trial court erred by denying his

motion to disqualify the Hamilton County District Attorney General’s Office, by

admitting into evidence photographs taken during the victim’s autopsy, by refusing to

provide a jury instruction on facilitation as a lesser included offense of felony murder and

aggravated child abuse, and by denying his motion for new trial based upon the

admission of certain testimony. He also contends that the evidence was insufficient to

support his convictions. Discerning no error, we affirm.

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., J., joined. THOMAS T. WOODALL, J., filed a separate concurring opinion.

Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, Rhasean Lowry.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant

Attorney General; Neal Pinkston, District Attorney General; and Cameron Williams and

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

OPINION

The Hamilton County Grand Jury charged the defendant with one count of

felony murder in the perpetration of aggravated child abuse, one count of aggravated

child abuse, one count of rape of a child, and one count of making a false police report in

conjunction with injuries inflicted on three-year-old T.E. that eventually led to her death.

Prior to trial, the State dismissed the charges of rape of a child and making

a false report, and the case proceeded to trial on the remaining two counts in December

2017.

At trial, registered nurse Deborah Kay Blevins testified that she was

working when the victim was brought into the emergency room at Parkridge Medical

Center on August 26, 2014. Ms. Blevins recalled that the attending physician, Doctor

Bryan Vance, carried the victim inside from the parking lot and placed her on a stretcher,

and Ms. Blevins “immediately started chest compressions.” The victim “was pulseless,

breathless, her pupils were fixed, her eyes were open, she was cool to the touch.” Ms.

Blevins observed that “[t]he whole entire lobe of [the victim’s] ear was black, and around

in front of her ear and behind it was black.” Ms. Blevins said that she pointed out the

discoloration to Doctor Vance, saying, “I didn’t know exactly what the story was at that

time, but I could tell that she had trauma to her head.” Ms. Blevins remembered that a

man came into the room later, but she “never really paid attention to him.” She added,

“He had no emotion, he was quiet, . . . except for a couple of questions that they asked

him, he didn’t say or do anything. He was not tearful.”

After approximately 15 minutes of resuscitation efforts, medical personnel

were able to restart the victim’s pulse, and she was immediately placed into a waiting

ambulance and taken to TC Thompson Children’s Hospital at Erlanger Medical Center

(“Children’s Hospital”).

Doctor Bryan Vance testified that he was standing at the front desk of the

emergency room at Parkridge Medical Center on August 26, 2014, when a nurse

mentioned that someone needed help getting a patient out of a car, so he went to help. He

said that he did not get “a sense that it was something urgent, so I thought I would just go

out and look to see who needed help.” When he walked outside, Doctor Vance did not

see anyone parked in the loading and unloading area just outside the doors. Eventually,

he saw the defendant standing in the parking lot and “summoning me over with his

hand.” He described the defendant’s demeanor as “matter-of-fact” and said that he

“continued to believe that I was maybe just assisting someone who just needed a little bit

of help, not that there was something urgent going on.” Doctor Vance said that when he

approached the vehicle, he saw the victim “just sitting in the backseat with a sippy cup in

her lap but not holding it, and her head was to the side and she was just staring forward

with a gray appearance to her.” Doctor Vance also observed “blood on the corner of her

mouth,” some bruising “right at the top of her jaw, around the neck,” and “a swelling and

a bruise” on her ear. At that point, the defendant commented that the victim had been

“drinking milk and fell” and that “she wasn’t acting right.”

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Doctor Vance testified that he put his hand on the victim’s chest and neck

in an attempt to determine whether she was breathing or had a pulse, but he “did not

expect to find either; she looked dead to me at that time.” When he felt no pulse or

respirations, Doctor Vance picked the victim up in a manner designed to “protect[] her

cervical spine as best as I can in case there’s an injury to her neck” and “then ran, as

probably fast I’ve ever run, straight back into the emergency department with her.”

Once inside the hospital, Doctor Vance placed the victim on a bed in one of

the trauma rooms, and “a lot of things began to happen at once.” Medical personnel

placed a cervical collar on the victim, intubated her, and then began performing

cardiopulmonary resuscitation (“CPR”) and administering intravenous medication and

fluids “using a small drill to put an IV into her lower leg.” After what he deemed “an

extended period of time,” they “eventually did get a heartbeat back.” Doctor Vance

immediately began the process of transferring her to Children’s Hospital, saying,

I wasn’t sure what the extent of her internal injuries were.

Obviously, she was injured severely or her heart would not

have stopped beating, so, you know, part of being the ER

doctor is recognizing when it’s beyond you. And this was

beyond me, I’d done what I can do, that’s my job, to stabilize

her, and I need to get her to more advanced care.

Chattanooga City Police Department (“CPD”) Officer Caleb Brooks

worked as a crime scene investigator in August 2014. On August 26, 2014, he went to

Children’s Hospital to document the victim’s injuries. When Officer Brooks arrived at

the pediatric intensive care unit, the victim was lying on her back with “multiple cords

and lines and medical equipment coming about her body,” “a neck brace on her neck,

with gauze secured underneath the chin area,” and “numerous medical staff around her,

giving her treatment at the time.” Fifteen photographs were exhibited to his testimony

and displayed to the jury. Officer Brooks identified bruising on the victim’s ears, the left

side of her chest, lower abdomen, upper left arm, and lower back. He said that he noticed

patterned bruising “like the shape of a strap or a belt” on both her legs and a “large gash”

inside her lower lip.

Kanti Patel, manager of the Econo Lodge motel on Bonny Oaks Drive in

Chattanooga, testified that he was working the front desk on August 26, 2014, when, just

before 10:00 a.m., the defendant came into the office “to make the payment for the

second day. . . . He made his payment and I gave him the key.” Surveillance video from

the motel from that morning was played for the jury.

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CPD crime scene investigator Gregory Mardis testified that he

photographed the lobby area, front entrance, and the room where the victim had been

staying at the Econo Lodge. Mr. Mardis observed “what appeared to be a bloodstain”

near a column “on the walkway” as well as “some reddish stains on the concrete, going

into the laundry room area.” Inside the room where the victim had been staying with the

defendant, officers discovered “some bedding and a wash cloth that had bloodstains on

them” and bloodstained paper towels inside one of the trash cans. Mr. Mardis collected

two pairs of flip flops. The wear pattern on the blue flip flops that belonged to the victim

suggested that the shoes had been too big.

Forensic testing confirmed the presence of the victim’s blood on the sheets

and paper towels taken from the motel room.

CPD Investigator Matthew Puglise, who took over as the lead investigator

after the victim died, testified that he responded to the hospital but did not see the victim.

Instead, after speaking with the doctors, Investigator Puglise spoke with the defendant

and the victim’s mother. During that interview, the defendant said that he and the

victim’s mother had been staying at the Econo Lodge with the victim, her older brother,

and her younger sister while the family was in the process of moving. The victim’s

mother had just started a job at Hardee’s, but the defendant did not work. The defendant

told Investigator Puglise that

[a]s he and the victim were coming from breakfast “between

9:45 and 10:00” and he had the baby in a carrier and told the

victim to start walking up the stairs while he went to the car

to get the baby’s bottle. She stopped at the top of the steps to

look back, then her flip flop got caught and she started

“tumbling.” He then saw that she had blood on her lip and “a

gash” in her mouth. She complained that her head was

hurting. He took her to the room, then he helped her rinse her

mouth with water. Then he put ice into a freezer bag and had

the victim hold it against her head. When she continued to

say that her head hurt, he decided to take her to the hospital.

Because he was unfamiliar with the area, he took her to the

only hospital that he could recall having seen before. On the

way to the hospital, the victim stopped responding about

halfway to the hospital and he noticed that she looked sleepy.

She was “panting.” When he got to the hospital, the victim

was just staring straight ahead. The victim was on the “next

to the last step” when the “bottom of her flip flop caught.”

She was “holding a cup of milk” when she fell. He said that

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he picked the cup up and threw it into the trashcan “right

there by the Coke machine” when he “came back through” to

get ice to put on her mouth. She was on the “backside steps”

that were closest to the car.

Investigator Puglise ordered the collection of surveillance video from the

Econo Lodge. That video recording was played for the jury. The surveillance video

established that the defendant and the victim’s mother left the motel at 6:43 a.m., and the

defendant may have been carrying a baby carrier. The defendant returned shortly after

7:00 a.m. and exited the car with the baby carrier. The defendant, carrying the baby

carrier, and a small boy left at 7:48 a.m. The defendant returned to the motel and exited

the car with the baby carrier approximately 10 minutes later. The defendant did not

return to his vehicle until 9:49 a.m., when he can be seen carrying the baby carrier to the

car. A couple of minutes later, the defendant appears carrying the victim “like a

fireman’s carry.” The defendant put the victim into the car and drove around to the lobby

area of the motel. He then went inside and returned to the car approximately three

minutes later. The surveillance video established that neither the defendant nor the

victim entered the lobby or breakfast area of the motel any time that morning.

Investigator Puglise said that, after viewing the video surveillance footage,

he interviewed the defendant for a second time at approximately 6:30 p.m. at the “service

center.” The video recording was played for the jury but not transcribed. The defendant

maintained that the victim had fallen “on the west side” stairs.

During cross-examination, Investigator Puglise acknowledged that he lied

to the defendant during the interview. He also acknowledged that although the defendant

told him that he had thrown the coffee and milk cups into the upstairs trash can, he did

not ask investigators to search those cans. The defendant told him that the victim’s flip

flops were too big for her, and he agreed that the shoes “looked about a half inch

extended from her feet.” The defendant told Investigator Puglise that he had placed the

victim on the bed and wiped her mouth with paper towels from the bathroom, and

Investigator Puglise admitted that DNA testing confirmed the presence of the victim’s

blood on the sheets and the paper towels.

During redirect examination, Investigator Puglise testified that the

surveillance video from the Econo Lodge established that the defendant lied about going

to get milk and coffee, lied about going to his car to get the baby’s bottle, lied about

taking the victim with him to drop her mother off at work, and lied about taking her with

him to drop her brother off at school. When he did a walk-through of the motel, he did

not observe any evidence of milk having been spilled on the stairs.

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Doctor Gregory Talbott, Division Chief and Medical Director of Pediatric

Critical Care at Children’s Hospital was working as the attending physician on August

26, 2014, and participated in the treatment of the victim. Doctor Talbott testified that

when the victim was transferred into his care, “she was recurring mechanical ventilation,

she also had a low blood pressure,” so medical personnel “were simultaneously trying to

resuscitate her, which involves fluids, the administration of medications to try and raise

her blood pressure.” Additionally, the victim had “bleeding problems” that necessitated a

blood transfusion. He said that the victim was “[i]n a critical condition. She was in

shock.” After engaging someone to continue the resuscitation efforts, Doctor Talbott

went to speak with the victim’s family. He said that it was “vitally important to have

accurate history because it can lead us to potentially have other diagnostic findings and

treatment, things that we would need to do based on the history.” The defendant

provided Doctor Talbott with the same version of events that he had initially provided to

the police, telling the doctor that the victim had fallen down “one flight of stairs, which

he described as metal stairs with a concrete anti-tread mat” after “she caught the toe of

her flip-flops and fell over backwards.”

After speaking to the family, Doctor Talbott conducted a more thorough

examination of the victim. During this examination, he noted tissue swelling of the left

occipital area and pinnae bruising, which he clarified was “bruising around the ear here

and onto the earlobe.” He stated that the pinnae bruising caused him concern, explaining,

“Bruising of the pinnae, or bruising of the earlobes, particularly bilaterally, is highly

correlated with inflicted injury on a child.” He also noticed “bleeding and bruising

lacerations, which are basically cuts on the inside of the lip.” He said that these

lacerations in addition to the bruised earlobes began “to paint a picture of injury that may

not fit the story that was proffered.” Doctor Talbott also observed a linear patterned

bruise that wrapped around the victim’s hip, indicating that she had been “struck with an

object that has some flexibility” as opposed to steps, which are inflexible.

Doctor Talbott testified that the victim’s neurological examination

“indicated profound brain injury.” “She had no evidence of cortical brain function,

which is upper brain function; things that involve voluntary action.” In addition, the

involuntary brain functions were absent, demonstrating “no evidence of cerebral or

deeper-in stem activity. She was deeply comatose.” It was his opinion that “this is a

combined brain injury from both traumatic, blunt trauma brain injury, compounded by a

period of time when she had cardiorespiratory arrest. At that point, circulation’s not

adequate to the brain, that adds additional injury.” He said that the hemorrhage in the

victim’s brain was “evidence of abusive head injury” and not attributable to the hypoxic

brain injury or to the resuscitation efforts. He stated that when he viewed the images of

the victim’s brain, he was shocked to see that “[s]he had absolutely terrible brain injury,

and honestly, I didn’t suspect that she would survive.” The victim “had massive swelling

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in the brain” as well as “evidence of small areas of bleeding within the brain” and “a

small amount of blood outside the brain but beneath the covering of the brain.” Later

studies and imaging indicated that “she had absence of circulation, which is part of the

determination of brain death.”

As part of the trauma protocol, medical personnel scanned the victim

“basically from the top of the head all the way through the chest and abdomen.” On

those scans, Doctor Talbott observed “evidence of a splenic contusion, so a bruise of the

spleen,” which he said was associated with inflicted injury. The victim also had bilateral

retinal hemorrhages, which he said “requires a massive amount of force, more than any

individual would reasonably handle a child.” He said that the bilateral bruising of the

earlobes, the pattern bruising on the victim’s body, the bruising of the spleen, the

presence of retinal hemorrhages, and the evidence of severe traumatic brain injury were

all inconsistent with the victim’s having fallen down the stairs. He added,

Most concerning to me, too, was there was no abrasions on

her skin, it was all just, it appeared to be more blunt trauma.

And from falling down a metal staircase, concrete and anti-

slip tread, I would have anticipated some abrasion somewhere

on her body. So my concern was that this constellation of

findings indicated that this child had suffered inflicted injury.

He emphasized that “it’s the overall picture when you put everything together” and that

“[n]o one single injury . . . can be indicative of child abuse, but when you put together

multiple suspicious injuries, including vaginal injuries, retinal hemorrhages, multiple

bruises, pattern bruises, lack of abrasions, when you put the whole picture together, it just

doesn’t fit the story” given by the defendant. Doctor Talbott said that it was “relatively

uncommon” for children to be “injured enough from a flight of stairs to end up in the

ICU.” He testified that he had never seen a child with a pattern of injuries like those

sustained by the victim who had fallen down the stairs.

Doctor Talbott had reviewed photographs taken during the victim’s

autopsy, including one that documented damage to her vaginal wall. He stated that the

victim had a Foley catheter inserted into her urethra during treatment but that it was not

placed into the victim’s vagina. Additionally, the catheter was very small and made of

soft silicone. He said that he had reviewed the notes of the three nurses responsible for

placing and maintaining the victim’s catheter and noted that, combined between the three

nurses, “there’s probably 50 years of critical care experience.” It was his medical opinion

that the catheter could not have caused the injury to the victim’s vaginal wall.

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Despite the victim’s poor prognosis, the doctors continued treating the

victim with “support of all the vital organ systems.” Doctor Talbott testified that “despite

all our efforts,” the victim “progressed to brain death and was pronounced dead.”

Following this declaration, some of the victim’s organs were harvested for donation.

During cross-examination, Doctor Talbott testified that he was aware that

the victim had been treated for head trauma in October 2013. He acknowledged that his

notes indicated that he found “blood around the urethral opening” during his initial

examination but explained, “[Y]ou cannot determine if that had come from the vagina

and just happened to be around the urethra; they’re quite close together. . . . Follow-up

examination revealed vaginal injury that we did not see initially . . . .” Doctor Talbott

maintained that the victim’s injuries were highly correlated with inflicted injury, but he

could not say specifically how they occurred or who might have inflicted them. He

added,

I stated it earlier, one specific bruise or one specific injury

can come about by a myriad of ways; however, the

constellation of findings, and there’s a long list of them here,

pattern bruising, bruising not consistent with my information

from the scene, bleeding . . . in the back of the eyes, further

autopsy findings which indicated upper spinal cord injury,

broken rib, which was posterior and not correlated with CPR,

all of that together does not fit the constellation of findings

that would indicate to me it was an accidental injury.

Doctor Talbott insisted that he could, “with medical certainty, say that that pattern bruise,

that the child was struck by an object.” He also said that he could “tell you that

hemorrhaging in the back of the eyes is from axial rotation of the head being shaken.

Posterior rib injuries are highly correlated with blunt trauma and abusive injury, not by

CPR.” Doctor Talbott could not give a specific time that the injuries occurred but he

could say that “if this child had had those injuries happen earlier, that resulted in cardiac

arrest, she would never have arrived at the hospital alive. So I believe them to be rather

approximate to the time that medical care was involved.”

Doctor James Kenneth Metcalfe conducted the victim’s autopsy on August

31, 2014. Doctor Metcalfe testified that he first saw the victim in the hospital because he

“was called by the detectives that this child was about to have organ donation and was on

ventilator waiting for that.” He said that he was present during the donation surgery, and

he also reviewed the video recording of the organ donation surgery so that he could “see

what injuries were caused by the surgeon and what were caused by pre-existing

happenings.” The victim’s manner of death was homicide and the cause of death was

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“[b]lunt force injuries of head and trunk.” “The pattern of injury is consistent with

inflicted multiple blunt trauma.”

The victim had a number of blunt force injuries to her trunk and

extremities. She had at least 70 bruises on her body, including ones on her head,

buttocks, chest, back, and hip. He said that more than half of the bruises were to the front

of her body. “On the right hip, this is a picture of the trunk and the right buttock and the

legs, and there you can see this H-shaped, letter H-shaped mark.” There was a row of

four bruises on her left leg, and another row of five bruises on the left side of her chest.

There were bruises on her left hip that wrapped around her body.

Internally, “there were bruising areas in the lungs, and especially there on

the left lung.” The victim’s “stomach had a large bruise on it, and in the wall and also

breaking into the lining, tearing the lining” as well as “bruising in the front middle part of

the spleen. . . . And also there’s a bruise on the one loop of small intestine.” It was his

opinion that these injuries were all caused by the same blow based upon “how it looked .

. . inside.” Doctor Metcalfe testified that the injury to the victim’s stomach was in an

area that would ordinarily be protected by the ribs and that such an injury would have

required “quite a substantial force.” He noted that it was “a localized injury” that was

“kind of roundish.” It was his opinion that “a blow that went up under the rib cage”

would have been necessary “to impact the soft part of the abdomen, and then come up

under the rib cage. Like an upward force.” The instrument or item that caused the blow

would have been two to three inches in size. He said that this type of injury would not

ordinarily occur from a fall down the stairs “[b]ecause it’s up out of the way.” The

victim also had a fractured rib “with bleeding around it.” Part of that injury occurred at

the same time as the other injuries on her body but another part showed signs of healing

and might have occurred “several days before.” He said that neither injury was

associated with resuscitation efforts.

Doctor Metcalfe testified that the victim had bruises to the right side of her

head, right eye, and right ear, with some “spotty bruising on the scalp above the ear.”

When he peeled back the victim’s scalp, Doctor Metcalfe observed extensive bruising

that was indicative of “a substantial force.” She also had bruising on the left side of her

head and “a fan-shaped, fanning-out shaped, bruise above the ear, above and behind the

ear” that “look[ed] like fingers.” There were also five bruises across the top of the

victim’s head that Doctor Metcalfe said were inconsistent with a fall down the stairs. She

also had a bruise on her left jaw and left cheek. There was bruising in the inner part of

the upper lip as well as a laceration on “the bottom part of the inner lower lip” and a torn

frenulum, injuries that would have required “[a] substantial force against the lip . . .

something squashing the lips to the teeth. And there was also some bruising on the

outside.”

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The victim suffered a subdural hemorrhage “mainly on the right side” and a

“subarachnoid hemorrhage” that “was toward the back and on the top and sides.” She

also suffered “a bruise of the brain tissue, cortical contusion,” which was a bruise of “the

gray matter of the brain,” as well as “some hemorrhage in the brain stem.” Doctor

Metcalfe said that none of the injuries to the victim’s brain were attributable to a hypoxic

event or to the resuscitation efforts following the hypoxic event, “[w]ith the possible

exception of” the “brain stem hemorrhages.” He explained,

So the brain injury, the brain gets shook up and then the tiny

blood vessels leak fluid, and what leaks first is water and the

brain swells. And then the pressure inside the head, because

the brain is so swollen, gets very high and the . . . heart can’t

even pump blood inside of her head because the pressure

inside is so high. And so the brain starts to get soft, that’s

why they talk about brain death.

Doctor Metcalfe said that the fact that the blood in the victim’s brain “is what she already

had from the injury,” coupled with the absence of internal bleeding in the brain, indicated

that the brain injury was not the result of the hypoxic event. He observed hemorrhages in

the victim’s retinas and “blood around the optic nerve,” which, he said, “can occur with

substantial force, and especially the blood around the optic nerve.” He also documented

an acceleration or “whiplash” injury to the victim’s spine evidenced by a hemorrhage

“between the 3rd and 4th and 5th vertebrae.”

Doctor Metcalfe observed “some bleeding and tearing” in the victim’s

vagina and in the urethra. He said that the injury to the victim’s vaginal wall could not be

attributed to the placement of the catheter because “it was too much of it, and there was

tearing, under the microscope, and bleeding and tearing was off to the side, around the

vaginal opening.” He said that the pattern of the victim’s injuries was not consistent with

a fall down the stairs but was instead consistent with “[m]ultiple inflicted injury.”

Following Doctor Metcalfe’s testimony, the State rested.

Forensic Pathologist Doctor Thomas Young testified on behalf of the

defendant that, after having reviewed the evidence provided to him, he concluded

to a reasonable degree of medical certainty, that the story

offered by the defendant here, the child falling down the stairs

and then becoming unresponsive and then having the child be

resuscitated and then the outcome there in the intensive care

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unit, it is my opinion that the autopsy findings are entirely

consistent with that account, and that there are no

inconsistencies.

Doctor Young explained that “[o]ne of the things that could happen in a small child that’s

three years old is that if they get head trauma, even a relatively minor head trauma, the

brain will start to swell” and that such a condition “can be made worse by subsequent

traumas.” He said that he found evidence of coagulopathy, “a disorder of blood clotting,”

in this case, which, he said, resulted from the victim’s having been deprived of oxygen

for some 20 minutes. He explained,

[A]fter a period of 20 minutes or so, if you get the heart going

again and the breathing going again, then blood flow is

resumed but the blood clotting cells don’t work and the blood

vessels are leaky. So what then happens is that with that

resumption of blood flow, then you start getting all kinds of

bruising and bleeding.

He said that the victim’s extensive bruising, including the bruising in her brain, was

“evidence[] of such bleeding” instead of evidence of blunt force trauma. Doctor Young

added that, as a result of the clotting disorder, injuries inflicted before the cessation of

breathing and “any handling of the child during the medical care is going to lead to lots

and lots of bruises all over her body, and also internally.” According to Doctor Young,

the “multiple bruises in her scalp, face, mouth and ears, would be expected in this

situation” given all the medical interventions following the victim’s fall down the stairs.

Doctor Young testified that the presence of “widespread and . . . thin”

subdural hemorrhage at autopsy was “not a traumatic thing” but was evidence of “a lack

of oxygen problem for a period of time.” Additionally, he noted that the “bleeding

below” the subarachnoid membrane was “over a broad area” and concluded that the

bleeding was “not a result of trauma, it’s a result of going for a period of time without

oxygen.” He clarified that the victim

did have a traumatic injury: She fell down a set of stairs. If

maybe her coagulation system was working properly, the

bruise wouldn’t have showed up, but the fact that she’s got a

vulnerability to it, she does have one area where there’s

some bruising of the brain tissue, it’s a contusion.

Doctor Young also opined that the swelling of the victim’s brain, rather than inflicted

trauma, caused both the bruising “in the pons and the midbrain” and the retinal

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hemorrhages. He added that it was common for “children who end up on respirators in

the intensive care unit, that do not have any trauma,” to have retinal hemorrhages.

Doctor Young testified that many of the bruises on the victim’s body could

be attributed to the handling of the victim’s body during her hospitalization, saying,

“[A]ny kind of time that they’re handling her is sufficient to make bruises in a child

whose platelets aren’t working and has had damage to the blood vessels as a lack of

oxygen.” He insisted that what Doctor Metcalfe had deemed a contusion on the victim’s

lungs was actually “a complication of just being on a respirator.” Additionally, Doctor

Young maintained that the contusions on the victim’s gastrointestinal tract were the result

of the combination of the fall down the stairs and the deprivation of oxygen, saying that

“in a situation where there is no breathing, blood is shunted away from the

gastrointestinal tract” and that “in that kind of a setting, you can get some bloody areas in

loops of small intestine and in the stomach, which is what [Doctor Metcalfe]’s describing

here in this autopsy.” He also maintained that the victim’s rib fracture was caused by the

administration of chest compressions during CPR and claimed that it was “entirely

possible” that the damage to the victim’s vaginal wall occurred during the insertion of the

Foley catheter. Doctor Young said that hemorrhages in the “anterior paraspinal muscles”

were not evidence of an acceleration injury but instead “would be expected” from

“hospital personnel handling her and also from a fall down the stairs.”

During cross-examination, Doctor Young acknowledged that Doctor

Metcalfe’s autopsy was thorough, but he testified that Doctor Metcalfe was “drawing the

wrong conclusions from what he’s seeing.” He conceded that “[a]nytime you have a

situation where you see a child as bruised up as this child, it’s a situation where it

demands an explanation,” but he said that “[y]ou don’t just simply pull the child abuse

leverage just because you see bruises, you’ve got to hear the story.” Doctor Young

asserted instead that “[t]he trauma here is the minor part.” He insisted that although it

would be important to assess the accuracy of the defendant’s version of events, it was his

job to take the defendant’s “story as-is and compar[e] it to the findings at the autopsy and

seeing if there is a fit or if there is not a fit” and that, in this case, the autopsy findings fit

with the defendant’s version of events. Doctor Young said that an assessment of the

defendant’s demeanor at the hospital was not important because “those kinds of human

determinations are really inaccurate and heavily influenced by bias.”

Doctor Young conceded that, during his tenure as a medical examiner in

the early 2000’s, he had attributed injuries like those that led to the victim’s death to

trauma and ruled those deaths as homicides. He explained that his knowledge “basically

has been evolving over about 10 years” and that “[t]his business about a lack of oxygen

leading to thin subdural hemorrhages, the research on that took place” after those

autopsies. He admitted that he had previously testified that bilateral retinal hemorrhages

-12-

were the result of a severe impact to the head or very severe motion inside the cranial

vault, but he explained that he no longer “believed in the shaken baby syndrome” because

“in pathology, you have this thing called progress, where, basically, people learn things

over time and things are discovered.”

Doctor Young testified that since having resigned his position as chief

medical examiner, he had testified primarily for criminal defendants, many of whom had

been accused of murdering children. He admitted that he testified in a Louisiana case on

behalf of a defendant accused of beating a 22-month-old child to death that the child’s

injuries were not the result of abuse but instead the result of a lack of oxygen to the brain.

He insisted, on the one hand, that the prosecutor’s account of his testimony in the

Louisiana case was “not entirely accurate” and, on the other, that he could not “recall the

details on the case.” Doctor Young conceded that he had testified in an Illinois case

involving a 21-month-old child who had over 50 wounds on his body at the time of his

death that sleep apnea caused a lack of blood flow, which, in turn, led to a coagulation

issue that made it more likely for that child to bruise from medical treatment. He

admitted having testified in another Illinois case, this one involving the death of a six-

year-old child, that the child’s injuries were the result of reduced blood flow that led to

coagulation issues that were then exacerbated by resuscitation efforts despite that

witnesses observed the defendant in that case beat the child. Doctor Young claimed that

he could not recall testifying in a Kansas case involving the death of a six-month-old

baby that a fall from a couch caused that child’s tibial fracture, subdural hematoma, and

bilateral bruising of the ears. Doctor Young admitted that he had testified on behalf of a

defendant in a 2016 Marion County case. He insisted, however, that he could not recall

testifying that a choking incident caused that child’s brain injury and also caused a

coagulation issue that resulted in severe bruising. When asked about the similarities

between his testimony in each of these cases and in the instant case, he said,

There may be elements that are similar and then there may be

elements that are different. Every case is unique, every case

is different. Now, it is true that a lack of oxygen and a lack of

blood flow may be a final common pathway in many cases.

Not all cases, but in many cases. But the circumstances and

the situations that lead up to that are all unique.

He conceded that he had testified in each case that injuries attributed by the State to child

abuse were actually the result of leaky blood vessels, but he insisted that he did not

“testify according to themes. Okay. Every case is different.” He maintained, however,

that “having hypoxic problems with the brain is a common problem” and that it was

“frequently being misunderstood as being shaken baby syndrome, and maybe that’s why

it seems to be a common theme to you, but my testimony on this is not stereotyped.

-13-

Every case is vastly different and you really can’t compare one to another, like you’re

trying to do.”

Following Doctor Young’s testimony, the defendant rested.

Based upon this proof, the jury convicted the defendant as charged of

felony murder and aggravated child abuse. The trial court imposed a sentence of life

imprisonment for the defendant’s conviction of felony murder and, following a

sentencing hearing, imposed a concurrent sentence of 15 years for the defendant’s

conviction of aggravated child abuse.

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

by a timely notice of appeal. In this appeal, the defendant asserts that the trial court erred

by denying his motion to disqualify the district attorney’s office, by admitting autopsy

photographs, by refusing to provide a jury instruction on facilitation as a lesser included

offense of both charged offenses, and by denying his motion for new trial based upon

Doctor Vance’s objectionable testimony. He also contends that the evidence was

insufficient to support his convictions. We consider each claim in turn.

I. Disqualification of the Hamilton County District Attorney’s Office

The grand jury returned the indictment in this case in March 2015, and the

trial court appointed Steve Brown from the Hamilton County Public Defender’s Office,

who had been originally appointed to the defendant’s case in the general sessions court,

to represent the defendant in criminal court. On May 15, 2015, Assistant District

Attorney General Leslie Longshore sent a memorandum to Mr. Brown that contained the

following:

Attached are summaries from Myrlene Marsa, Assistant

Federal Defender, regarding information her client, Jon

Farmer, obtained from Rhasean Lowry. This information was

obtained after Lowry and Farmer were placed in the same cell

at the jail. Farmer and Lowry came to be placed into the

same cell after a proffer session, initiated by Farmer, was

held. At the time of the proffer, Farmer had no useful

information; however, he indicated that he could get more

information if he were placed in the same cell as Lowry. We

agreed to have the two placed in the same cell, and the

attached information resulted.

-14-

Upon further consideration, I have concerns about the

reliability of the information, inmate Farmer’s motivation for

obtaining this information and the manner in which this

information was obtained. Based upon these concerns,

Lowry and Farmer are no longer housed in the same cell, and

Farmer’s attorney has been instructed that we will not be

using any information obtained by Farmer.

The State will not seek to use Jon Farmer as a witness, nor

will we in any way use the information contained within these

summaries against Rhasean Lowry. I have attached the

summaries so that you will be assured that this information is

not used against your client. Further, these emails were sent

only to myself, Assistant United States Attorney Jay Woods

and two Federal agents. The investigators involved in the

case against Mr. Lowry have not been made aware of this

information.

The two attached emails detailed information that Mr. Farmer had gleaned from the

defendant. Given the manner of the collection of this information, we do not recite it

here.

Following the receipt of General Longshore’s memorandum, Mr. Brown

moved to withdraw because Mr. Farmer had been represented by the public defender’s

office “in numerous criminal matters dating back to 1995.” Mr. Brown stated that his

office’s previous relationship with Mr. Farmer and Mr. Farmer’s role in obtaining

information from the defendant in the manner outlined above created a conflict of interest

that prevented Mr. Brown’s continuing to represent the defendant. The trial court granted

the motion to withdraw and appointed substitute counsel.

In August 2015, the defendant, by his newly-appointed counsel, moved the

trial court to disqualify “the entire 11th District Attorney General’s office” based on

General Longshore’s activities. The defendant argued that General Longshore’s

recruiting Mr. Farmer and placing him in the cell with the defendant to garner

information about the case amounted to prosecutorial misconduct. As evidence that

General Longshore’s actions had tainted the entire Hamilton District Attorney General’s

Office, the defendant exhibited to his motion an article from the Times Free Press.

Pertinent to this issue, the article contained the following:

Longshore declined to comment for this article. Melydia

Clewell, spokeswoman for the Hamilton County District

-15-

Attorney General’s Office, said she could not comment on

pending cases.

However, Clewell said that Longshore, Brown, and District

Attorney Neal Pinkston met with Judge Don Poole last week

to discuss Brown’s withdrawal. She said Poole indicated he

appreciated Longshore’s forthrightness in bringing the

situation to Brown’s attention and her “upholding to a higher

ethical standard than the rules require,” Clewell said.

Clewell also provided examples of two Tennessee opinions

she said would support the use in court of whatever Lowry

told Farmer.

The defendant argued that the spokeswoman’s statement to the newspaper indicated that

no one in the district attorney’s office appeared to grasp the gravity of the impropriety

and that, as a result, the office could not be relied upon to protect the defendant’s rights

going forward. In his response to the defendant’s motion, District Attorney General Neal

Pinkston averred that General Longshore “has not participated in any prosecutorial work

involving the defendant’s case and will not participate on any future prosecutorial work.”

Nevertheless, he observed that General Longshore had “not been disqualified from the

prosecution” of the defendant’s case but “instead has individually removed herself from

the case out of an abundance of caution.” He added that General Longshore had not

revealed the information she obtained from Mr. Farmer to anyone else in the office and

that “[t]he only shared confidences of the defendant that have been revealed in any public

forum are because defendant’s counsel attached them as exhibits to his motion to recuse

the entire office.” Additionally, General Pinkston took great personal umbrage at the

defendant’s suggestion that the conduct of his office had violated the rules of professional

conduct. He failed to address, however, the fact that General Longshore’s conduct did, in

fact, violate the defendant’s constitutional right to counsel. Finally, General Pinkston

maintained that the manner of its collection did not bar the admission at trial of the

information obtained by Mr. Farmer, adding, “The District Attorney General’s Office

reserves the right to determine whether they will seek to introduce statements made by

the defendant to John Farmer.”

At the October 12, 2015 hearing on the motion, the defendant argued that

General Longshore’s actions, which constituted prosecutorial misconduct and a clear

violation of the defendant’s sixth amendment right to counsel, should be imputed to the

entire district attorney’s office. He also argued that the fact that General Pinkston

continued to entertain the possibility of using information that had been obtained via a

clear violation of his constitutional rights indicated that General Pinkston did not

-16-

comprehend the magnitude of the misconduct and could not, therefore, be trusted to

implement appropriate screening measures. General Pinkston did not defend General

Longshore’s actions but insisted that the improperly-obtained information might be

admissible and that, because the evidence might be deemed admissible in the future, his

office should not be accused of misconduct. General Pinkston did not present any

information about what, if any, procedures had been implemented in this case to ensure

that the illegally obtained information was not used in any way. Instead, he treated the

defendant’s request as a personal attack upon his character and professionalism.

The trial court took the matter under advisement. In its order denying the

defendant’s motion, the court found that the State “does not dispute what was a clear

violation of the defendant’s right to counsel” and expressed some reservations about the

State’s response to the defendant’s motion as well as General Pinkston’s apparent

misunderstanding of the circumstances, particularly that General Longshore’s conduct

violated the defendant’s right to counsel. The court refused to exclude “the possibility of

disqualification of the entire office in the future on the basis of new developments” but

refused to “find an actual or apparent conflict of interest on the part of the entire office on

the basis of one, no-longer-participating member’s violation of the defendant’s right to

counsel . . . or the [S]tate’s response to the subject motion.”

The State did not attempt to admit into evidence at trial any of the

information provided by the defendant to Mr. Farmer.

In this appeal, the defendant contends that the trial court erred by refusing

to disqualify the entire Hamilton County District Attorney’s Office because that office

had failed to screen any members from information that had been obtained in violation of

his right to counsel. The State asserts that the trial court did not err because the

appropriate remedy for the constitutional violation was suppression of the evidence rather

than disqualification and because the defendant, and not any member of the district

attorney’s office, exposed the offending information.

The decision to disqualify an attorney lies within the sound discretion of the

trial court, and that decision will not be overturned absent a finding that the court abused

that discretion. See State v. White, 114 S.W.3d 469, 475 (Tenn. 2003) (citing Clinard v.

Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); State v. Culbreath, 30 S.W.3d 309, 312-

13 (Tenn. 2000)). Generally, “[a] trial court abuses its discretion when it applies

incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly

erroneous assessment of the proof, or applies reasoning that causes an injustice to the

complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).

-17-

Initially, we note that General Longshore’s memorandum to Mr. Brown and

the emails attached thereto clearly establish that General Longshore, by arranging for Mr.

Farmer to be placed in the defendant’s cell for the purpose of obtaining information about

this case, violated the defendant’s Sixth Amendment right to counsel. The right to

counsel embodied in the Sixth Amendment “attaches only at or after the initiation of

adversary judicial proceedings against the defendant . . . . whether by way of formal

charge, preliminary hearing, indictment, information, or arraignment.” United States v.

Gouveia, 467 U.S. 180, 187-88 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 688-89

(1972)). At the time General Longshore made the arrangement with Mr. Farmer’s

attorney, the defendant had been indicted, the Sixth Amendment right to counsel had

attached, and, indeed, counsel had already been appointed to represent the defendant.

Consequently, the State had “an affirmative obligation to respect and preserve” the

defendant’s right to counsel by not acting “in a manner that circumvents and thereby

dilutes the protection afforded by the right to counsel.” Maine v. Moulton, 474 U.S. 159,

170 (1985). “[K]nowing exploitation by the State of an opportunity to confront the

accused without counsel being present is as much a breach of the State’s obligation not to

circumvent the right to the assistance of counsel as is the intentional creation of such an

opportunity.” Id. at 176.

That being said, “[c]ases involving Sixth Amendment deprivations are

subject to the general rule that remedies should be tailored to the injury suffered from the

constitutional violation and should not unnecessarily infringe on competing interests.”

United States v. Morrison, 449 U.S. 361, 364 (1981). In the vast majority of cases,

suppression of the illegally-obtained evidence is the appropriate remedy for a violation of

the defendant’s right to counsel, see United States v. Henry, 447 U.S. 264, 273-74 (1980),

and there can be no question that, based upon the record, the evidence obtained by Mr.

Farmer should have been suppressed. In this case, despite some bluster from the State

regarding the potential admissibility of the illegally-obtained evidence, despite General

Longshore’s assurance that the State would not seek to utilize the information in any

way, the State did not seek the admission of any of the information gleaned by Mr.

Farmer. In our view, given General Longshore’s change of heart, relatively prompt

disclosure of the entire nefarious enterprise, and her assurance that she had not and would

not disclose the information to anyone else, the exclusion of this evidence was sufficient

to remedy the blatant violation of the defendant’s right to counsel.

We turn then, to the question whether the trial court should have

disqualified the entire Hamilton County District Attorney’s Office on the basis of General

Longshore’s actions as viewed through the lens of the Tennessee Rules of Professional

Conduct. We begin by observing that the parties’ reliance on Rules 1.9 and 1.11 was

inapt. Those rules detail the duties that a lawyer owes to former clients after “switching

sides.” Rule 1.11 governs the scope of disqualification when the attorney is a current or

-18-

former government employee. “In determining whether to disqualify an attorney in a

criminal case, the trial court must first determine whether the party questioning the

propriety of the representation met its burden of showing that there is an actual conflict of

interest.” White, 114 S.W.3d at 476. In this case, General Longshore did not, at any

point, represent the defendant. Moreover, the information she collected about the case

did not arise from her representation of the defendant but instead arose from her, perhaps

overzealous, representation of the State. Accordingly, no conflict of interest existed

under the Rules that would have prevented her from utilizing that information. Because

nothing in the Rules of Professional Conduct prevented General Longshore from

revealing the information she obtained from Mr. Farmer to anyone within the district

attorney’s office, that office was not required to implement any procedures to screen

others from the information. That is not to say, however, that General Longshore was not

right to try and prevent the dissemination of the information to the prosecutors and

investigators working on the defendant’s case given that it was obtained in violation of

the defendant’s right to counsel. That action served to protect the case from any potential

taint associated with the constitutional violation.

Moreover, this is not a situation wherein disqualification of the entire

district attorney’s office was required to negate an appearance of impropriety. Even

when “no actual conflict of interest” exists, disqualification may be based on “[t]he

‘appearance of impropriety’” as “an independent ground,” and, in consequence, “the

court must nonetheless consider whether conduct has created an appearance of

impropriety.” Clinard, 46 S.W.3d at 187 (quoting Culbreath, 30 S.W.3d at 312-13).

That being said, “the mere possibility of impropriety is insufficient to warrant

disqualification.” Id. Instead, “[t]he appearance of impropriety must be real” when

examined using an objective standard “determined from the perspective of a reasonable

layperson.” See Clinard, 46 S.W.3d at 187 (citations omitted). Stated differently, “an

appearance of impropriety exists ‘in those situations in which an ordinary knowledgeable

citizen acquainted with the facts would conclude that the . . . representation poses

substantial risk of disservice to either the public interest or the interest of one of the

clients.’” Id. (citations omitted). Although General Longshore’s questionable conduct

violated the defendant’s right to counsel, she voluntarily removed herself from the case

and attempted to protect the information she had gleaned from disclosure. Under these

circumstances, no evidence suggests that the continued participation of the Hamilton

County District Attorney’s Office “pose[d] substantial risk of disservice to either the

public interest or the interest of one of the clients.” See id.

Finally, the defendant contends that General Longshore violated Rule 4.2,

which provides:

-19-

In representing a client, a lawyer shall not communicate about

the subject of the representation with a person the lawyer

knows to be represented by another lawyer in the matter,

unless the lawyer has the consent of the other lawyer or is

authorized to do so by law or a court order.

Tenn. Sup. Ct. R. 8, RPC 4.2. Relative to a prosecutor’s duty under this rule, the

comments provide:

Once a represented person has been arrested, indicted,

charged, or named as a defendant in a criminal or civil law

enforcement proceeding, however, prosecutors and

government lawyers must comply with this Rule. A

represented person’s waiver of the constitutional right to

counsel does not exempt the prosecutor from the duty to

comply with this Rule.

Id., Comment 5. Based upon the record before us, it appears that General Longshore’s

actions ran afoul of this rule. That being said, nothing suggests that the impropriety

should be imputed to the entire district attorney’s office. Instead, the evidence suggests

that she acted alone in engaging Mr. Farmer’s interactions with the defendant, and,

accordingly, her revelation of the information to Mr. Brown and subsequent recusal from

the defendant’s case was a sufficient remedy for the violation. In consequence, the

defendant is not entitled to relief on this issue.

II. Admission of Autopsy Photographs

The defendant next asserts that the trial court erred by admitting certain

photographs taken during the autopsy of the victim, arguing that the probative value of

the photographs was substantially outweighed by the danger of unfair prejudice. The

State contends that the trial court did not err because the photographs were relevant and

necessary to aid in the presentation of Doctor Metcalfe’s testimony.

Prior to trial, the defendant objected to the admission of various

photographs taken during the victim’s autopsy.

One photograph depicts the victim lying face down on the autopsy table.

The defendant argued that the photograph was superfluous to the diagram drawn by

Doctor Metcalfe. The State argued that the photograph demonstrated “a healing rib

fracture to a rib in” the victim’s back and that the photograph was necessary to rebut the

defense expert’s theory that the injury was caused by resuscitation efforts. The trial court

-20-

deemed this photograph admissible, finding “that the probative value is substantial” and

that the photograph was “not gruesome.”

The second photograph depicts the victim’s internal organs with the

victim’s ribs retracted. The State argued that the photograph was relevant to show the

“damage to [the victim’s] internal organs under her rib cage, which would be protected in

a fall down the stairs.” The trial court concluded, however, that the probative value of

the photograph was substantially outweighed by the danger of unfair prejudice and

excluded the photograph.

The third photograph, a closeup of the stomach, ostensibly shows the

“squishing of the stomach.” The trial court admitted this photograph after finding that

the probative value was not outweighed by its prejudicial effect.

The next set of photographs depicted the victim’s head with the scalp

folded back to reveal the soft tissue between the skin and the skull. The State argued that

these demonstrated the depth and location of bruises on and behind the victim’s ears and

scalp to establish that injuries were not the “result of her tumbling and striking her ear on

a staircase.” The court allowed the photographs as relevant to “better explain[] the

testimony of the county medical examiner.”

The sixth photograph was a “photograph of the brain, showing . . . blood on

the surface of the brain.” The State argued that the “photograph demonstrates not just a

widespread injury to the brain, but a localized hematoma” and that it was relevant to

rebut the testimony of the defense expert “that the hematoma to the brain . . . [w]as a

result of resuscitation and possibly not inflicted injury.” The trial court excluded this

photograph barring later testimony increasing its probative value.

The seventh photograph depicted the victim’s “outer genitalia,” and the

State argued that the photograph was relevant to distinguish the vaginal injury from any

injury that might have been caused by the victim’s having been catheterized at the

hospital. After initially admitting this photograph with the admonition “that nothing

concerning sexual assault will be introduced,” the trial court later excluded the

photograph. The court ruled, however, that the parties could revisit the issue out of the

presence of the jury if the defense expert testified that the injury was caused by the

insertion of the catheter.

The remaining three photographs to which the defendant objected depicted,

according the defendant’s argument, the aftermath of the victim’s organs having been

harvested for donation. Although the record establishes that the parties and the court

were examining a set of photographs, it does not clearly establish which set of

-21-

photographs. In any event, the trial court determined that the photographs would be

admissible if the State cropped the images to remove the indicia of the organ harvesting

surgery.

“Tennessee courts have consistently followed a policy of liberality in the

admission of photographs in both civil and criminal cases.” State v. Carter, 114 S.W.3d

895, 902 (Tenn. 2003) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). “The

general rule . . . is that photographs of a murder victim’s body are admissible if they are

‘relevant to the issues on trial, notwithstanding their gruesome and horrifying character.’”

Carter, 114 S.W.3d at 902 (quoting Banks, 564 S.W.2d at 950-51). Even relevant

photographs may be excluded, however, if their probative value is substantially

outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403; Banks, 564 S.W.2d at

950-51. The term “unfair prejudice” has been defined as “[a]n undue tendency to suggest

decision on an improper basis, commonly, though not necessarily, an emotional one.”

See Banks, 564 S.W.2d at 951. “The admission of photographs lies within the sound

discretion of the trial court and will not be overturned on appeal absent a showing that the

trial court abused that discretion.” State v. Odom, 336 S.W.3d 541, 565 (Tenn. 2011)

(citing Banks, 564 S.W.2d at 949).

In this case, the record evinces a thoughtful and thorough consideration of

each of the challenged photographs and a measured approach to their admission and/or

exclusion. To be sure, the record does not establish that the trial court abused its

discretion. The photographs, though certainly graphic, were relevant to rebut the

defendant’s assertion that the victim sustained the injuries by falling down the stairs.

III. Facilitation Instruction

The defendant asserts that the trial court erred by denying his request, given

at the conclusion of the proof, for a jury instruction on the lesser included offense of

facilitation. The State contends that the instructions given were appropriate.

As an initial matter, we note that although the defendant made an oral

request for an instruction on facilitation, he did not make the request in writing. Code

section 40-18-110 provides, in pertinent part, as follows:

Notwithstanding any other provision of law to the contrary,

when the defendant fails to request the instruction of a lesser

included offense as required by this section, the lesser

included offense instruction is waived. Absent a written

request, the failure of a trial judge to instruct the jury on any

-22-

lesser included offense may not be presented as a ground for

relief either in a motion for a new trial or on appeal.

T.C.A. § 40-18-110(c). Because he failed to make a written request, the defendant has

waived plenary review of this issue. See id.; see also State v. Martin, 505 S.W.3d 492,

503 (Tenn. 2016) (finding waiver when defendant made an oral request for a lesser

included offense instruction but did not make a written request); State v. Fayne, 451

S.W.3d 362, 371 (Tenn. 2014).

“The waiver of a lesser included offense instruction does not, however,

preclude our consideration of the issue under the doctrine of plain error.” Fayne, 451

S.W.3d at 371 (citations omitted). This court will grant relief for plain error only when:

(1) the record clearly establishes what occurred in the trial

court; (2) the error breached a clear and unequivocal rule of

law; (3) the error adversely affected a substantial right of the

complaining party; (4) the error was not waived for tactical

purposes; and (5) substantial justice is at stake; that is, the

error was so significant that it “probably changed the outcome

of the trial.”

State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d

274, 282-83 (Tenn. 2000)). The party claiming plain error bears the burden of satisfying

all five criteria as a prerequisite to plain error review. See id. Because each factor must

be established, we need not consider all five factors when a single factor indicates that

relief is not warranted. Fayne, 451 S.W.3d at 372 (citing State v. Bledsoe, 226 S.W.3d

349, 355 (Tenn. 2007)). “[A]n error would have to [be] especially egregious in nature,

striking at the very heart of the fairness of the judicial proceeding, to rise to the level of

plain error.” Fayne, 451 S.W.3d at 372 (citation omitted) (alterations in Fayne).

Here, the defendant did not contend that the victim’s injuries were inflicted

by another person, and no evidence suggested that anyone other than the defendant was

involved in the offenses. The evidence established that the victim suffered the injuries

that led to her death on the morning of August 26, 2014, and that the defendant was her

sole caretaker during that time. The defendant claimed that the victim’s injuries were the

result of a fall down the stairs at the Econo Lodge, but the medical evidence rebutted this

claim. Consequently, the trial court did not err by refusing to provide the requested

instruction and, therefore, the defendant cannot establish plain error.

IV. Testimony of Doctor Vance

-23-

The defendant contends that the trial court erred by denying his motion for

new trial based upon the court’s handling of objectionable testimony offered by Doctor

Vance. The State asserts that the defendant waived our consideration of this issue by

declining the trial court’s offer of a curative instruction with regard to the testimony. We

agree with the State.

During Doctor Vance’s redirect examination, he testified that, based upon

his experience, it was his opinion that the victim’s injuries were inconsistent with the

defendant’s explanation that she had tripped and fallen. Instead, he said that it “[l]ooked

like she’d been assaulted.” The defendant objected to the testimony on grounds that the

doctor had made a legal conclusion instead of a medical one. Initially, the trial court

overruled the objection but then agreed that using the term “assault” “may be going too

far.” The court sustained the objection, but the defendant did not ask the trial court to

strike the testimony or provide a curative instruction, and the court did not take either

action at that point. Later, the trial court revisited the issue sua sponte and indicated a

willingness to issue a curative instruction. The defendant declined the offer, noting that

he was apprehensive about raising the issue again in front of the jury. During Detective

Puglise’s testimony, the court revisited the issue and again expressed a willingness “to

give an instruction that they should disregard that nonmedical diagnosis” offered by

Doctor Vance. The defendant again declined because “if I have you give an instruction,

then they get to hear that again.” The court said that it thought an instruction could be

given without repeating the testimony, but the defendant insisted that he did not want a

curative instruction.

In our view, the defendant has failed to establish entitlement to relief on

this issue. The defendant objected, and the trial court eventually sustained the objection.

Because the defendant did not ask the trial court to strike the testimony and refused the

offered curative instruction, he cannot be heard to complain about the deleterious impact

of the testimony. Furthermore, the offending testimony consisted of a single, fleeting

statement on the first day of a four-day trial. To say that this single error, particularly

considered in light of the defendant’s complete refusal of remedial measures, more

probably than not affected the outcome of the trial simply strains the bonds of credulity.

The defendant is not entitled to relief on this issue.

V. Sufficiency

The defendant also challenges the sufficiency of the convicting evidence,

arguing that the State failed to establish his identity as the perpetrator. The State asserts

that the evidence is sufficient.

-24-

Sufficient evidence exists to support a conviction if, after considering the

evidence—both direct and circumstantial—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. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh

the evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes,

331 S.W.3d at 379. The verdict of the jury resolves any questions concerning the

credibility of the witnesses, the weight and value of the evidence, and the factual issues

raised by the evidence. 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 well as all reasonable and legitimate inferences which

may be drawn from the evidence. Id.

The defendant was charged with first degree murder, which, in this case,

required the State to prove the that the defendant killed the victim “in the perpetration of

or attempt to perpetrate . . . aggravated child abuse.” T.C.A. § 39-13-202(a)(2). He was

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

“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 defendant does not challenge the evidence supporting the elements of

the offenses, but instead argues that the State failed to establish his identity as the

perpetrator. “The identity of the perpetrator is an essential element of any crime.” State

v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789,

793 (Tenn. 1975)). Whether the State has established the defendant as the perpetrator of

the charged offenses beyond a reasonable doubt is “a question of fact for the jury upon its

consideration of all competent proof.” State v. Bell, 512 S.W.3d 167, 198 (Tenn. 2015)

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(citing State v. Thomas, 158 S.W.3d 361 app. at 388 (Tenn. 2005)); accord State v.

Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982) (citing Stubbs v. State, 393

S.W.2d 150, 153 (Tenn. 1965)).

The medical testimony established that the three-year-old victim died as a

result of multiple blunt force trauma injuries. Essentially, she was beaten to death. Other

evidence, including the defendant’s statements to the police and to Doctor Young,

established that the victim sustained her injuries while in the defendant’s care. The

defendant told the police on more than one occasion that he was alone with the victim

and her younger sibling after he dropped the victim’s mother off at work and the victim’s

older brother off at school. Sometime between the time the defendant dropped the

victim’s brother at school and the time the defendant arrived at the emergency room with

the victim, she sustained multiple injuries to her head and body. The defendant insisted

that the victim sustained the injuries when she fell down the stairs, but the other evidence

offered by the State sufficiently rebutted this statement. From these facts, a rational trier

of fact could have found beyond a reasonable doubt that the defendant inflicted the

injuries that led to the victim’s death.

Conclusion

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

court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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