State of Tennessee v. Russell Dean Long and Jessica Renee Adkins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
June 26, 2013 Session

STATE OF TENNESSEE v. RUSSELL DEAN LONG AND JESSICA
RENEE ADKINS

Appeal from the Criminal Court for Washington County
No. 35192A, 35192B Robert E. Cupp, Judge

No. E2012-01166-CCA-R3-CD - Filed September 27, 2013

A Washington County jury convicted Russell Dean Long of first degree felony murder
committed during the perpetration of aggravated child abuse and first degree felony murder
committed during the perpetration of aggravated child neglect. The jury convicted Jessica
Renee Adkins of first degree felony murder committed during the perpetration of aggravated
child neglect. The trial court merged Defendant Long’s convictions and sentenced both of
the defendants to serve life in the Tennessee Department of Correction. On appeal,
Defendant Long asserts that: (1) there is insufficient evidence to support his convictions; (2)
the trial court allowed the introduction of inadmissible hearsay evidence through the
videotaped conversation between the defendants; and (3) the trial court erred by failing to
exclude an autopsy photograph of the victim. Defendant Adkins asserts that: (1) there is
insufficient evidence to support her conviction; and (2) the trial court improperly overruled
her objection to the State’s use of a visual aid during closing arguments. After a thorough
review of the record and applicable law, we conclude there exists no error in the judgments
of the trial court. Accordingly, we affirm the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Steve McEwen (on appeal), Mountain City, Tennessee and Jeffery C. Kelly and William
Donaldson (at trial), Johnson City, Tennessee, for the appellant, Russell Dean Long.

James T. Bowman, Johnson City, Tennessee, and Donna M. Bolton, Johnson City,
Tennessee, for the appellant, Jessica Renee Adkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Tony Clark, District Attorney General; and Erin McCardle, Assistant District
Attorney General for the appellee, State of Tennessee.

OPINION
I. Background and Facts

This case arises from the death of a two-month old infant girl as a result of blunt force
trauma. A Washington County grand jury indicted the victim’s father, Defendant Long, for
first degree felony murder committed during the perpetration of aggravated child abuse and
first degree felony murder committed during the perpetration of aggravated child neglect.
The grand jury also indicted the victim’s mother, Defendant Adkins, for first degree felony
murder committed during the perpetration of aggravated child neglect.

At the September 2011 trial on these charges, the parties presented the following
evidence: Investigator Joe Harrah, a Johnson City Police Department officer, testified that
he was involved in an investigation of the victim’s death. At approximately 1:30 a.m. on
March 6, 2009, a patrol supervisor instructed Investigator Harrah to report to the defendants’
apartment located in Johnson City, Tennessee. When Investigator Harrah entered the
apartment, he saw an infant, covered with a sheet, lying on the couch.

Investigator Harrah testified that he photographed the scene and then sat down in the
kitchen of the apartment with the defendants to ask a few questions about the circumstances
surrounding the victim’s death. He said that Defendant Adkins did not speak much, but
Defendant Long told him that the victim had been vomiting for a few days. Defendant Long
said that Defendant Adkins told him she had called the victim’s pediatrician on March 1,
2009, and was instructed to have the victim “looked at” if she did not improve. The couple
took the victim to Dr. Ledes’s office on Monday, March 2, 2009. The doctor told them the
victim had a stomach virus and instructed the parents to give the victim Pedialyte. Defendant
Long told the investigator that, on the day of her death, he fed the victim between 2:00 and
3:00 p.m. and laid her down to sleep at around 6:30 p.m. Defendant Adkins told Investigator
Harrah that she returned home from work that day at around 10:00 p.m. and checked on the
victim at around 11:30 p.m. Defendant Adkins recalled that the victim cooed when she
touched her hair. Defendant Adkins said that she went into the victim’s room again at around
1:00 a.m. and found the victim unresponsive.

Investigator Harrah testified that Defendant Long told him that the victim’s last “well
checkup” was on February 23, 2009, and the victim was “fine.” Investigator Harrah
reviewed a checklist of symptoms or illnesses with the couple, and they indicated that in the
seventy-two hours before the victim died, she was lethargic and slept more than usual, was
fussy, cried excessively, vomited, and had a decreased appetite. Investigator Harrah said that

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he included all of this information in his police report, which was sent to pathology along
with the autopsy report.

Investigator Harrah testified that he took a statement from Defendant Long that night
while at the apartment. Defendant Long reviewed and signed the statement prepared by
Investigator Harrah. Investigator Harrah read the statement for the jury as follows:

I put [the victim] in her crib around 6:00 or 7:00 p.m. I went back and checked
on her around 9:00 p.m., and she moved when I opened the door. She had a
stomach virus earlier and we took her to Dr. Ledes at Johnson City Pediatrics
and he said to keep giving [her] a bottle and Pedialyte. She wouldn’t keep her
formula [down] until the last two days and she was keeping it down good.
[Defendant Adkins], my wife, came in from work at 11:00 p.m., and she
checked on [the victim] and she came into the room and said that [the victim]
was fine. [Defendant Adkins] said that [the victim] had cooed and smiled.
[Defendant Adkins] got up around 1:00 a.m. or 1:30 a.m. and checked on [the
victim]. I heard [Defendant Adkins] saying, [“]Oh, my God. Oh, my God,
she’s dead, she’s dead.[”] [Defendant Adkins] had her in her arms and laid her
on the couch. I called 911 and they helped me try CPR till EMS got there.

Investigator Harrah said that, because Defendant Adkins was “distraught,” he arranged to
take a statement from her later that day.

Investigator Harrah testified that the defendants came to the police station during the
afternoon of March 6, 2009, and Defendant Adkins gave a signed statement to police.
Investigator Harrah read the following statement for the jury:

About a week ago today, my baby, [the victim], started throwing up for no
reason, that was a Friday, and she couldn’t keep anything down over the
weekend. She kept throwing up so I took her to Dr. Ledes. Dr. Ledes told us
that [the victim] had a stomach virus and it would have to run its course. That
was on Monday, the 2nd of March. On Tuesday morning, I fed [the victim]
around 7:00 a.m. and laid her back in her crib and she slept until 5:00 p.m.
I was concerned that she had slept that long and I called Dr. Ledes and he said
that it was okay for her to sleep that long. [The victim] was fine up until last
night. She kept her formula down really good and didn’t throw-up anymore.
I checked on her at 11:00 p.m. last night and she was fine. I went to feed her
at 1:00 a.m. and that was when I found her not moving and cold. [Defendant
Long] called 911 and tried CPR.”

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 On cross-examination, Investigator Harrah testified that, when he rolled the victim
over, he saw what appeared to be lividity, or the pooling of blood, on her back. He agreed
that someone who had been dead for three or four hours might show more lividity than
someone who had been dead for three or four minutes. Investigator Harrah stated that he
also noted that the victim was beginning to “become rigid a little bit and stiffen a little bit.”

On redirect examination, Investigator Harrah testified that, during the March 6, 2009,
interviews, neither defendant ever mentioned their older child, Lilliana,1 or a doctor’s
appointment involving Lilliana.

Terri Adams, a neighbor, testified that she lived in the unit behind the defendants’ unit
at the Edna Court apartments. She explained that, based on the proximity of the two
apartments, she shared a wall with the defendants. Adams said she was familiar with the
defendants’ two children, Lilliana and the victim. She stated that she was unaware of any
“health issues” related to the victim “[o]ther than the week that she died.”

Adams recalled that, the Sunday before the victim died, the defendants were standing
outside on the balcony and asked Adams to come over and look at the victim. Adams went
into the victim’s bedroom and, upon seeing her in the crib, “immediately” told Defendant
Adkins that she needed to take the victim to see a doctor or the emergency room. Adams said
that she could “immediately tell something was wrong” with the victim. Adams said that the
victim “looked pale and concrete color, lifeless, I mean, not like a newborn should.” Adams
said that she tapped the victim’s foot in an attempt to arouse her and found no response. She
did this two more times and, on the third attempt, when she “flipped [the victim] pretty
good,” the victim “barely shrugged.” In response to Adams’s statement that the victim
needed medical attention, Defendant Adkins said that she had already spoken with a doctor
and that, if the victim was not showing improvement by 5:00 p.m., she would take the victim
to the hospital. Adams said that she told Adkins, “No, you need to take her now, no if, ands
or buts about it, take her now.”

Adams testified that, later in the week, she prepared a bottle for her fiancé, Glen
Rokicka, to take to the defendants’ apartment to feed to the victim. She explained that her
son had a milk allergy and required a special formula. She thought that might also be the
case with the victim, so she prepared a bottle of the non-milk-based formula. When Rokicka
returned, she observed “spit-up” all over his arm and shirt. After this incident, Rokicka and
Adams spoke with Defendant Long and offered to watch Lilliana so that he could take the
victim to the hospital. Defendant Long said that he could not take the victim to the hospital

1
The police reports, transcripts, and medical records all use both “Lillianna” and “Lilliana” in
reference to the defendants’ older child. For the sake of clarity, we will spell her name, “Lilliana.”

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because he did not have the victim’s birth certificate. Adams said that she asked Defendant
Long, “When was the last time you’ve been to the ER [and] they’ve asked you for a birth
certificate?” Defendant Long gave no response.

Adams testified that Defendant Long had been staying with the children for a week
or two while Defendant Adkins was at work. During this time, there were occasions when
the music would be “extremely loud, not the tone you would have for two children in the
house.” She said that she would also hear the victim “crying a lot,” not “a normal cry, not
just an attention cry, it was unnerving.”

On cross-examination, Adams testified that she told Defendant Adkins about hearing
the victim “screaming and crying” while Defendant Adkins was at work. Adams said that
she did not speak with Defendant Adkins after seeing the victim on the Sunday before her
death. All subsequent conversations about the victim’s health were with Defendant Long.

Glen Rokicka, Adams’s fiancé and the defendants’ neighbor, testified that he and
Adams had a three-year-old child together. Rokicka said that, the week before the victim’s
death, Defendant Long stayed home and cared for the couple’s two children while Defendant
Adkins was at work. He also described hearing loud music coming from the apartment
during this time and the sound of the victim crying a lot.

Rokicka testified that, several days before the victim’s death, he took a four-ounce
bottle of formula to the victim in the defendants’ apartment. He fed the victim himself and
did not notice anything unusual about her color or appearance. She drank the entire bottle,
but “maybe ten seconds” after he removed the bottle from her mouth, she spit-up the formula.
Rockicka said that he then told Defendant Long he needed to take the victim to the hospital
because she was sick. He offered to care for Lilliana so that Defendant Long could take the
victim for medical treatment. The Defendant said that he could not take the baby without
proper identification and that Defendant Adkins would need to take the victim to the hospital.

Rokicka testified that both he and Adams spoke with Defendant Long “a few times
after that” suggesting that he seek medical attention for the victim. He said the hospital was
within walking distance of the apartment complex.

On cross-examination, Rokicka testified that he never spoke directly with Defendant
Adkins about the victim needing medical care but that he told both defendants to take the
baby to the hospital when he saw them coming and going from their apartment on the days
leading up to the victim’s death.

Rokicka testified that Investigator Harrah came to his apartment to discuss the

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victim’s death. Rokicka said that he could not remember everything he told Investigator
Harrah that afternoon; however, he believed that he told the investigator about advising
Defendant Long “numerous times to take the baby to the hospital.” Rokicka said that he
recalled reading and signing a statement for police but did not remember whether this
information was in the statement. Rokicka agreed that Defendant Long may have told him
that the reason he could not take the victim to the hospital was because he did not have the
TennCare card for the victim.

Dr. Teresa Allen Campbell, a forensic pathologist, testified that she conducted an
autopsy on the victim’s body. During Dr. Campbell’s examination of the victim, who was
two months and three weeks old at the time of her death, Dr. Campbell found blunt force
trauma to the victim’s head “evidenced by occipital skull fractures of different ages (acute
and healing) with bilateral subdural hemorrhages (histologic aging overall consistent with
approximately 5 to 8 days with some areas appearing more acute) causing increased
intercranial pressure, cerebral edema and death.” Based upon her examination, Dr.
Campbell concluded that the cause of the victim’s death was blunt force trauma to the head
and the manner of death was homicide. She explained that the victim died from head injuries
but had additional injuries to her body consistent with a homicide rather than an accidental
head trauma. The victim had injuries of “different ages” indicating multiple instances of
trauma to the victim, which suggested intentional as opposed to accidental injury. Dr.
Campbell stated that, in reaching her medical conclusions, she also considered the police
reports and found the explanation for the injuries inconsistent with the injuries found during
the autopsy.

Dr. Campbell testified that the victim suffered from bilateral subdural hemorrhages
of the brain with small, scattered subarachnoid hemorrhages. Dr. Campbell said that, upon
further examination, she determined that the subdural hemorrhages were five to eight days
old. Dr. Campbell also found areas with more acute hemorrhage but could not estimate the
age. Dr. Campbell testified that scattered subarachnoid hemorrhages are frequently
associated with blunt force trauma. Dr. Campbell estimated that these injuries likely
occurred around the same time as the subdural hemorrhages.

Dr. Campbell testified that the victim also sustained occipital skull fractures “of
different ages” with one of the fractures extending onto the left parietal bone. Dr. Campbell
determined that two of the fractures on the right occipital bone contained fibrous tissue and
had started to heal. After microscopic examination, she confirmed that the fractures on the
right were older than the fracture on the left side of the parietal bone. The fracture on the left
side of the victim’s skull showed no signs of healing. Dr. Campbell opined that this fracture
could have occurred a couple of hours before death, but it was no more than one to two days
old.

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 Dr. Campbell diagnosed the victim with cerebral edema, swelling of the brain, with
neuronal cell death and gliosis. Dr. Campbell explained that there are brain cells, glial cells,
that help support the brain and react when the brain is injured. Dr. Campbell found the
presence of proliferating glial cells, gliosis, indicating that the victim’s injuries were not
“fresh.” The brain had had “enough time” for reactive processes to begin in the brain.

Dr. Campbell testified that she found bilateral diffuse retinal and optic nerve sheath
hemorrhages and hemorrhage of the spinal cord. Dr. Campbell said that the victim suffered
four fractured ribs that were “about the same age,” between seven to fourteen days old. Two
other of the victim’s ribs had “older” fractures, which the doctor described as older than
fourteen days. The two older fractures were joined but were still in the process of healing.

The victim had pulmonary edema, fluid in the lung, a medical condition consistent
with a neurologic event. Dr. Campbell said that she also made a non-specific finding of
cardiac dilatation. She explained that this is a common progression before death when the
heart is having trouble beating and getting oxygenated.

Dr. Campbell identified a photograph taken during the autopsy of bruising on the
inside of the victim’s scalp. She explained that the bruises were located on both sides of the
victim’s head but not “right over” the fractures. Dr. Campbell described the injuries depicted
in the photograph as follows:

The little lines are blood vessels. These little discreet red-purple areas are
bruises or contusions. These would be from - bruises are from blunt trauma.
There are no lacerations or cuts or anything on the outer surface of the head,
so this was on the - this is the left and this is the right and I obtained there -
you can see multiple small discreet bruises so the cause could have been
multiple impacts with some small, some small object causing bruises or one
object with multiple protuberances on it possibly, and these are different ages
as well. . . . I did not sample each bruise, I got one section and this showed
more healing, both of them were healing, they were not fresh, they had
inflammation. The one on the right had more inflammation in the hemosiderin
I was telling you about than the one on the left, and I have hemosiderin but it
had inflammation. So there was some healing going on here but this older
healing on the right side.

Dr. Campbell testified it was “unlikely” that the victim’s injuries were caused by a
bump on the edge of a bathtub or an eighteen-inch fall from a couch. She explained:

Short-fall injuries do occur, they are rare. Children fall a lot and have no

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 significant brain injuries. So you can have significant injuries from short falls,
even lethal injuries. What makes this case different really is that we have got
more than one incident going on here. We’ve got two ages of rib fractures,
we’ve got two ages of skull fractures, we’ve got older subdural hemorrhage
and more fresh subdural hemorrhage, that’s what makes it even more so not
consistent with a single history of one fall.

Dr. Campbell testified about some of the symptoms associated with the victim’s blunt
force injuries as follows:

[S]ome of the things that might happen to you clinically if you have a head
injury or - you can be irritable or cry a lot, you might not be feeding well, you
can have vomiting with any kind of head injuries. Sometimes you act normal.
Sometimes you don’t have any symptoms. You can have seizures. You can
get lethargic, real sleepy or even go into a coma.

She said that pain and headaches are associated with skull fractures. Dr. Campbell said that
a routine physical exam would not have revealed the victim’s injuries. The victim’s head
injuries would have required a CT or MRI scan for detection, and the rib fractures would have
required an x-ray. She stated that, had the hemorrhages been detected, the victim could have
been treated medically for the injuries.

Dr. Campbell testified that she took a nasal swab to look for the presence of a
respiratory virus, and the results were negative. She also noted that the victim’s thymus was
small, indicating signs of stress. Dr. Campbell testified that based on the number of dead
neurons in the victim’s brain, the victim would have become less active “towards the end of
life.”

Dr. Marianne R. Neal, a pediatric radiologist, testified as an expert in the field of
pediatric radiology. Dr. Neal reviewed post-mortem x-rays of the victim. She identified an
image of an x-ray of the victim’s left rib cage. Dr. Neal pointed out an area of “increased
density or wideness” on the fifth through seventh ribs. She explained that this indicated a
healing fracture of the posterior portion of the rib near the victim’s spine. She said that the
“callus,” or healing, begins seven to ten days after a fracture occurs. She said that the victim’s
fractures could have been up to three weeks old but were at least seven to ten days old.

Dr. Neal identified an image of the victim’s occipital bone in her skull. Dr. Neal
pointed out a “squiggly line” that is a “normal suture in babies.” She then pointed out four
additional lines that are not normal and are consistent with skull fractures of the occipital
bone. Dr. Neal said that she could not estimate the age of the skull fractures due to the slow

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process of healing that occurs with skull fractures. Further, she was unable to view the
overlying soft tissue, which can be used to date skull fractures. On another x-ray of the
victim’s skull, Dr. Neal stated that the normal suture line was “a little bit widened” indicating
increased intracranial pressure or swelling on the brain. Dr. Neal described the victim’s skull
fractures as linear but complex. She said that complex skull fractures in infants are
“suspicious” for non-accidental trauma. She said that a high force object striking the head or
the head striking an object with high force is a mechanism consistent with the victim’s type
of injury. She said the victim’s injuries would equate with a fall of ten feet or greater or a
“high speed motor vehicle collision.”

Dr. Neal testified that the frontal bone and the occipital bone are the thickest bones in
the skull, and, therefore, rarely fractured. In her experience, fractures to the top and sides of
the skull where the bone is thinner are more common. Dr. Neal opined that the victim’s
fractures would have caused underlying intracranial bleeding and swelling of the brain, which
would have resulted in lethargy, irritability, vomiting, and seizures. She confirmed that pain
was associated with skull fractures.

Dr. Neal testified that posterior rib fractures were highly specific for non-accidental
trauma and generally consistent with squeezing. She said that the bones of infants bend more
easily than an adult bone. She explained that the bones in infants will take “significant
bending stress before breaking.” Dr. Neal said that bruising is not common with rib fractures
in infants, but often the fractures cause plural effusion, fluid on the lung, which is painful.

The State recalled Investigator Harrah to introduce a video recording of a second
interview with Defendant Long. Investigator Harrah testified that, after the March 6, 2009
interviews, he learned more about the victim’s injuries from the autopsy. On March 10, 2009,
Defendant Long agreed to again speak with the police about the victim’s death. This second
interview was video recorded and played for the jury. The video footage showed Investigator
Harrah confronting Defendant Long about the victim’s injuries. Defendant Long confirmed
that he was the only person with the victim and Lilliana on the day of the victim’s death. He
maintained that the victim was “fine that whole day.” Defendant Long said that the victim
was fine when Defendant Adkins left at approximately 3:00 p.m. Defendant Adkins called
him from work at 7:00 p.m. or 8:00 p.m., and Defendant Long told her that the victim had
been “puking.” Defendant Long told Investigator Harrah, in reference to the victim, “I don’t
want it cremated.”

During the interview, Defendant Long continued to deny any involvement in the
victim’s injuries. He admitted that he bathed the victim that day but denied that the victim
ever fell off of the couch or that he dropped her. Investigator Harrah confronted Defendant
Long with his prior statement that the victim did not sleep long periods of time on Tuesday

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when the victim actually slept from 7:00 a.m. until 5:00 p.m.

The video recording portrayed Investigator Harrah leaving the interview room and,
after a period of time, Investigator Teresa Higgins Campbell entering and asking Defendant
Long about the victim’s symptoms over the past week. Defendant Long told Investigator
Campbell that the victim became sick the previous Friday, throwing up at around 4:00 p.m.
or 5:00 p.m. after Defendant Adkins had gone to work. He said that they took the victim to
the doctor on March 2, 2009, because Lilliana had a scheduled doctor’s appointment, and Dr.
Ledes looked at the victim during Lilliana’s appointment. He said that he fed the victim
Pedialyte on Saturday and Sunday, and she “barely” threw it up.

While speaking with Investigator Campbell, Defendant Long denied “bumping” the
victim. He then said that he bumped the victim’s head on the ledge of the bathtub as he was
getting her out of the bathtub. He maintained that the bump was “not very hard” and that the
victim “did not even cry.” He demonstrated how he was seated on the ledge of the bathtub
and reached down into the bathtub to lift the victim up onto his lap when she bumped her
head. He denied dropping the victim. When asked why he had not disclosed this incident
before, he said that he had tried to tell Investigator Harrah.

Upon further questioning during the videotaped interview, Defendant Long said that
he was sitting on the toilet, not the edge of the bathtub, when the victim bumped her head on
the ledge of the bathtub. Defendant Long said that the victim did not cry after this incident.
Defendant Long drew a sketch of the bathroom and indicated on his diagram where he was
seated and where the victim bumped her head on the bathtub. He maintained that this was
“the only thing that [he] kn[e]w of” that could have caused injury and that there “wasn’t
nothing hurt.” Defendant Long was not sure when this bathtub incident took place but then
estimated that it was after the victim was “getting better,” on Tuesday or Wednesday.

On the video recording, Defendant Long told Investigator Campbell that Defendant
Adkins was at home on Saturday and Sunday and worked from 3:00 p.m. until 11:00 p.m. on
Monday through the rest of the week. Defendant Long said that Defendant Adkins called the
pediatrician’s office on Saturday about the victim. A woman from the pediatrician’s office
returned the call and told Defendant Long to “give it a couple of days” to see if the victim
could keep Pedialyte down. Defendant Long said that he went to the store and bought
Pedialyte and that Defendant Adkins fed it to the victim on Saturday.

The video recording showed Investigator Campbell leaving the room and, thereafter,
Investigator Harrah returned to the room. Investigator Harrah told Defendant Long that there
was probable cause to detain him. Defendant Long then told Investigator Harrah that, on
Friday, the victim rolled off the couch while he was in the kitchen. He said that he heard the

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victim cry and ran into the room and picked her up off the rug. He said that the victim cried
but that she acted “normal and fine” after the fall. Defendant Long said that he had not
disclosed this incident because he did not want to sound like a “bad father.” Defendant Long
said that he did not tell Defendant Adkins about the victim’s fall from the couch because he
wanted to “save an argument.” Defendant Long said that there were only two occasions that
the victim hit her head: when he was retrieving her from the bathtub on Tuesday and when
she rolled off the couch on Friday.

Billy Church, a Johnson City Police Department sergeant, testified that, on March 10,
2009, he spoke with Defendant Adkins in a separate room while Investigator Harrah
interviewed Defendant Long. He recorded the conversation between he and Defendant
Adkins with a handheld digital recorder. The audio recording of this interview was played
for the jury. On the recording, Defendant Adkins told Sergeant Church that Defendant Long
was her fiancé and that they had two children together: Lilliana and the victim. She said
Defendant Long cared for their children while she was at work. Defendant Adkins stated that,
at 1:00 a.m. Friday morning, she found the victim in her crib, already deceased.

Defendant Adkins told Sergeant Church that she took the victim to the pediatrician, Dr.
Ledes, on the Monday before the victim’s death because the victim had been sick. She
explained that she had an appointment for Lilliana but that, during the appointment, she told
Dr. Ledes that the victim was sick, and he agreed to “look at her.” She said Dr. Ledes told
her that it was the Norovirus, and “it would have to pass.” Dr. Ledes instructed Defendant
Adkins to use a medicine dropper, if necessary, to help the victim “to try to keep clear liquids
down.” She said the victim had been “throwing up” and “couldn’t keep her bottles down.”
Defendant Adkins told the sergeant that, on Wednesday morning, at 5:00 a.m., the victim
began “keeping all of her food down,” began smiling more, was not sleeping as much, and
her color improved.

During the recorded interview, Defendant Adkins told Sergeant Church that she woke
up at around 10:00 a.m. on Thursday and got the victim from her crib and placed her on the
couch. She recalled feeding the victim at 2:00 p.m. before leaving for work at 3:00 p.m. She
called Defendant Long during her break between 6:00 and 7:00 p.m., and he told her that the
victim had not eaten and “that all she wanted to do was sleep.” Defendant Adkins said that
she told Defendant Long that Dr. Ledes said that it was okay for the victim to “rest.” When
Defendant Adkins returned home from work that night at 10:00 p.m., she took Lilliana out
of her bed and checked on the sleeping victim, who was “fine.” Defendant Adkins put
Lilliana back into her bed at 11:00 p.m., and she heard the victim grunting. She went over to
the crib, rubbed the victim’s head, and the victim cooed. Defendant Adkins went out to the
living room and watched television until 1:00 a.m. Before going to bed for the night,
Defendant Adkins decided to try and feed the victim since she had not eaten since before

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Defendant Adkins left for work at 2:00 p.m. Defendant Adkins said that when she picked the
victim up out of her crib, the victim was cold, so she called 911.

During the interview, Defendant Adkins said that Defendant Long tried to feed the
victim at 6:00 p.m. on Thursday but that the victim “just wanted to sleep.” Defendant Adkins
described Defendant Long as a “good father” and said that he was “really good” with their
children. She denied that Defendant Long used drugs. She said Defendant Long used to
drink alcohol but stopped drinking alcohol when they had their first child, Lilliana. She said
that he was disappointed about losing his job but was not depressed. She said that the
Defendant never got frustrated or yelled at the children. She acknowledged that she and the
Defendant had argued and that police had come out to the apartment one time due to an
argument between the couple.

The video recording showed Sergeant Church excusing himself and leaving the room
for several minutes. When he returned, he told Defendant Adkins about the results of the
autopsy. She maintained that Defendant Long “would never hurt [the victim].” She described
Lilliana as “a Daddy’s girl.” She said that there had never been any incident of abuse with
Lilliana, and that Lilliana was not scared or fearful of Defendant Long. Defendant Adkins
maintained that the victim was “fine” and that she had been “getting better.”

Sergeant Church testified that, after he finished interviewing Defendant Adkins, he
allowed Defendant Adkins to speak with Defendant Long. The video recorder that had been
recording during Defendant Long’s interview continued to record during the discussion
between Defendant Long and Defendant Adkins. The video recording of this conversation
was played for the jury. Upon entering the room, Defendant Adkins asked Defendant Long,
“Why are you changing your story? Why didn’t you tell me?” Defendant Adkins then
confronted Defendant Long about his telling multiple stories regarding the possible source of
the victim’s injuries, and she told him he was going to jail because he kept “changing his
story.” Defendant Adkins said, “You didn’t really want two kids, did you?” and Defendant
Long responded, “Yes, I did.”

During the exchange, Defendant Adkins acknowledged that Defendant Long told her
she should take the victim to the hospital but responded that she did not seek medical attention
because she was unaware the victim had fallen from the couch. Defendant Adkins asked
Defendant Long how the victim fell off the couch when she could not yet roll over, and
Defendant Long responded that he did not know. Defendant Adkins told Defendant Long that
the victim’s brain was bleeding and “that’s why she couldn’t function or smile that much.”
She asked Defendant Long if he remembered the day when the victim was “boxing” and
“jerking,” and he said he did. She told Defendant Long that the victim’s body was jerking in
that manner because there was “so much” blood on the victim’s brain.

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 On cross-examination, Sergeant Church testified that Defendant Adkins was aware that
her interview with Sergeant Church was recorded. As to the conversation between Defendant
Adkins and Defendant Long, Sergeant Church did not inform Defendant Adkins that the
conversation would be recorded, but he believed she knew of the recording because the
camera was “visible.” He explained that the camera position had, at one point, been in a
position that was more obscure, but he thought it had been moved to a more visible location
at the time of these recordings. Sergeant Church testified that both defendants were released
after the March 10, 2009 interviews.

Sam Phillips, a Washington County Sheriff’s Office deputy, testified that he
interviewed Defendant Long on March 13, 2009, regarding the victim’s death. He identified
a DVD recording of the interview, and the State played the recording for the jury. During the
interview, Defendant Long told Deputy Phillips that “his little girl” fell off of the couch on
Friday, six days before her death. Defendant Long said he was in the kitchen at the time but
immediately ran to pick up the victim who was crying. He said the victim was “completely
fine.” He recalled that Lilliana had also fallen off the couch as an infant and that she was
“okay.” He said that the victim began vomiting the following day, Saturday. He said that
“we” thought it was just the Norovirus that was causing the victim to vomit. Defendant Long
told Deputy Phillips that Dr. Ledes looked at the victim when they took Lilliana for her annual
appointment on Monday. He said the victim was drinking Pedialyte and improving as the
week progressed.

During the recorded interview, Defendant Long said that his fiancée, Defendant
Adkins, called Johnson City Pediatrics on Saturday about the victim and was told Dr.
Bowman would return her call. Defendant Adkins got into the shower, and Defendant Long
answered the return telephone call from Dr. Bowman. He explained the victim’s symptoms
to Dr. Bowman, and Dr. Bowman advised him that a “stomach virus was going around” and
to give the victim Pedialyte. Dr. Bowman said to give the victim one-half to one ounce.
Defendant Long went to the store and bought Pedialyte for the victim. He tried to feed the
victim Pedialyte, but she threw it up.

Defendant Long recalled that the vomiting began on Saturday morning at 5:00 a.m. and
continued through Sunday and Monday. He said that on Tuesday and Wednesday the victim
began eating and “keeping it down.” Based on her improvement, Defendant Long said he
“didn’t understand” because the victim “was fine.” He said that the victim did not vomit on
Thursday at all. He denied that the victim displayed any other symptoms. Defendant Long
said that he did not tell Dr. Ledes about the victim’s fall off the couch. He said that he did not
tell anyone because he was afraid. He said that he did not tell Defendant Adkins about the
couch incident in order to “save an argument.”

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 Defendant Long recounted the hours leading up to the victim’s death. He said that he
put the victim in her crib between 7:00 and 8:00 p.m. and then put Lilliana in her bed at 9:30
p.m. He said that he checked on the victim when he put Lilliana to bed and that the victim
was “fine.” He recalled that Defendant Adkins arrived home from work at around 10:40 p.m.
and took Lilliana out of her bed. When she did this, she checked on the victim. Defendant
Adkins went back into the children’s room at 1:00 a.m. to feed the victim and found the
victim “cold.” He said Defendant Adkins began screaming, “She’s dead.” He called 911, and
the operator told Defendant Long to began administering CPR on the victim. Defendant Long
agreed that when he put the victim in her crib at around 7:00 p.m. she was “totally normal”
and “alert.”

Defendant Long told Deputy Phillips that he bathed the victim Friday night after she
fell off the couch and that he felt the back of the victim’s head and she was “fine.” Defendant
Long maintained that he did not harm the victim. At some point, Defendant Long told Deputy
Phillips that he stood up in the bathroom after bathing the victim, and she slipped from his
hands and hit the tub and then the floor. He said he was not sure how her head hit because
he was “trying to hurry up and pick her back up.” He said that the victim did not lose
consciousness when she fell but cried for five or ten minutes. He explained that this accident
was due to his trying to do too many things at once. Defendant Long said that he told
Defendant Adkins that the victim hit her head on the bathtub but did not tell anyone else. He
maintained that the victim did fall off the couch earlier that day, before the bath, but she was
“okay.”

Deputy Phillips left the room briefly and returned with the autopsy report. He showed
Defendant Long the victim’s injuries. Defendant Long said that the victim sustained the
injuries when she hit her head on the bathtub. Defendant Long maintained that he did not hurt
the victim. He said that he was never frustrated with or mad at the victim.

Teresa Campbell, a Johnson City Police Department investigator, testified that, in
addition to assisting Investigator Harrah in Defendant Long’s March 10, 2009 interview, she
also interviewed Defendant Adkins on March 13, 2009. Investigator Long explained the
circumstances that brought Defendant Adkins into the police office that day. She said that the
police were attempting to locate Defendant Long and, instead, made contact with Defendant
Adkins. Police brought Defendant Adkins back to the police department where Investigator
Campbell interviewed her. Investigator Campbell explained that this interview was not
recorded due to “some issues” with the recording devices at that time. Instead, Investigator
Campbell handwrote notes during the interview and then reviewed the document with
Defendant Adkins, giving her the opportunity to make changes if necessary. After reviewing
the statement, Defendant Adkins and Investigator Campbell both signed the statement.
Investigator Campbell read the statement for the jury as follows:

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[Defendant Long] and I been dating for four years. Around April 6, 2008,
[Defendant Long] and I broke up and he moved back to Chicago with his uncle.
A short time after April 23rd , I found out that I was pregnant. I called and told
[Defendant Long] that I was pregnant with our second child. [Defendant Long]
decided to come back to Johnson City to be with me and he got back on May
20th , 2009 [sic]. When he got back, he stayed with a friend for a while and we
eventually got an apartment at Clark Manor. [The victim] was born December
11th , 2008. [Defendant Long] lost his job working at Traco Windows around
the first week of February 2009. [Defendant Long] and I talked about him
staying at home with the kids while I worked and he agreed that it wouldn’t be
a problem. On Friday, February 27, 2009, I fed [the victim] around 12:00 p.m.
She was acting normal, she was laughing and being herself. She did not act
sick. I left for work around 3:00 p.m. I called [Defendant Long] between 6:45
and 7:30 p.m. to check on the kids. He said [the victim] was lying on the couch
and that he had fed her around 7:00 p.m. He said that after that, she fell asleep.
I called him again around 9:00 p.m. [Defendant Long] said that [the victim] was
in her crib. I got home around 11:45 p.m. On Saturday, February 28 th , 2009,
[the victim] woke up around 5:00 a.m. I fed her 4 ounces of formula with rice
cereal. About two minutes after I fed her, she puked. She puked all day
Saturday every time she was fed. She would doze off for about thirty minutes
to an hour and wake up and cry all day long. I walked around with her all day
while she cried. She had a different - a different sounding cry that day. [The
victim] puked and slept all day long. Finally around midnight she fell asleep.
On Sunday, March 1st , 2009, [the victim] woke up around 4:30 a.m., which was
unusual because she was sleeping through the night now. I fed [the victim]
again and she slept - and she kept it down for about fifteen minutes and puked
it up. She and I laid on the couch and slept till around 10:00 a.m. I tried to feed
her again around 11:30 a.m. but she wouldn’t take the bottle. She was making
whimpering sounds. I put her in the swing and she fussed for about fifteen
minutes. She slept all day until about 3:00 p.m. She’d wake up for a few
minutes here and there and cry but would fall back asleep. I got [the victim] up
around 3:00 p.m. and got her to drink one and a half ounces. I tried to burp her
and she puked. I called Johnson City Pediatrics and spoke to the answering
service. They told me that a doctor would call me back in thirty minutes.
About ten minutes later, a doctor called and talked to [Defendant Long].
[Defendant Long] told him about [the victim] being sick and the doctor said to
try Pedialyte. The doctor said to try Pedialyte the rest of the day, and if she
couldn’t keep it down, then to take her to the hospital. [Defendant Long] went
to the store and got [the victim] some Pedialyte. I gave her two ounces of it and
she kept it down. About thirty minutes later, I laid her in the crib. About thirty

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minutes after that, Terri and Glen from next door came over. I told Terri that
[the victim] was sick and she wanted to see [the victim]. Terri and I went to
[the victim]’s room and talked. Terri and Glen left shortly thereafter. About
an hour after Terri and Glen left, [the victim] woke up screaming and crying.
A little while later, we, me, [Defendant Long], [the victim] and Lilliana, went
to my friend Wayne and Gayle’s house in Erwin. [The victim] slept all the way
there, while we were there and all the way back home. [The victim] woke up
when we got back home while I was - while I was taking her out of the car seat
around 8:30 p.m. [The victim] got a little fussy and I gave her one ounce of
Pedialyte and she kept it down. So at 9:00 p.m., I tried giving her two ounces
of formula and she puked. I put [the victim] to bed around 9:30 p.m. and she
slept all night. Also, I noticed that [the victim] was not her usual color on
Sunday, she looked pale. I just thought it was from where she was sick and was
weak. Monday, March 2nd , 2009, [the victim] woke up around 7:00 a.m., I gave
her three ounces - a three-ounce bottle of formula, she drank all of it, she puked
it back up. I laid [the victim] on the couch where she slept until 7:45 a.m.
Around 8:50 a.m., I put [the victim] in the car seat so we could take Lilliana to
the doctor. We went to the doctor and saw Dr. Ledes. I told the doctor that [the
victim] had been sick. The doctor looked at [the victim] and said the symptoms
sounded like the norovirus. The doctor said that [the victim] may have the
virus. [The victim] slept nearly the rest of the day on the couch. [The victim]
slept better on the couch with her head propped up than in her crib. I went to
work around 3:00 or 3:15 p.m. I called [Defendant Long] around 4:45 to 5:00
p.m. He said that [the victim] was still asleep and she sounded congested. I
called [Defendant Long] again around 7:30 p.m. and [Defendant Long] said
that Glen came over and tried to feed [the victim] a different type of formula.
[Defendant Long] and I argued about him trying the new formula and
[Defendant Long] told me she didn’t hold it down either. I called [Defendant
Long] again around 9:15 p.m., and he said that he tried to give [the victim]
some Pedialyte, but she would not take it. I got home around 11:00 to 11:15
p.m. [Defendant Long] said he had put [the victim] to bed around 10:00 p.m.
I checked on [the victim], she seemed fine. Tuesday, March 3 rd , 2009, around
3:30 a.m., [the victim] woke up. [Defendant Long] got up and fed her two
ounces of formula and he said she spit up a little. [Defendant Long] put [the
victim] back to bed. [The victim] woke up again around 10:30 a.m., I got her
and put her on the couch. At around 11:15 a.m., I fed [the victim] two ounces
of Pedialyte. She kept it down, I laid her back on the couch. She stayed on the
couch until noon when she woke up. I then put her in her crib. I checked on
her around 1:45 p.m. and then again at 2:30 p.m. before I left for work. I left
for work about 2:30 p.m. At about 10 - at about 7:10 p.m., I called [Defendant

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 Long]. He said that [the victim] ate around 6:00 p.m. and puked a little. I got
home around 10:30 p.m. I looked at [the victim] around 12:30 a.m. and she
was fine. On Wednesday March 3rd , 2009, I fed [the victim] around 5:00 a.m.,
she kept it down. I put her back to sleep and she woke up at about 9:30 a.m.
I fed her three ounces of formula and she kept it down as well. [The victim]
slept the whole day on the couch. She didn’t eat while I was there the whole
day after 9:30 a.m. I went to work at around 3:00 p.m. I called [Defendant
Long] around 7:00 p.m., and he said [the victim] was up but had not ate. I
noticed that [the victim] had more color on Wednesday also. She also stayed
awake longer too. I called [Defendant Long] around 9:30 p.m., and he said that
he fed [the victim] around 8:15 p.m. and she kept it down. I got home from
work around 10:45 p.m., [Defendant Long] told me that he put [the victim] to
bed around 10:00 p.m. Thursday March 4th , 2009, [the victim] woke up around
8:00 a.m. fussing. I gave her a pacifier and she slept until around 12:30 p.m.
At around 12:30 p.m., I tried to feed [the victim] a bottle and she wouldn’t take
it, she’d just lay awake on the couch. At around 2:00 p.m., I gave her three
ounces of formula and she kept it down. I left for work at about 3:00 p.m. I
called [Defendant Long] at around 7:30 p.m., he said that [the victim] had been
awake and had laid in her crib - and he had laid her in her crib around 7:00 p.m.
I got home from work around 9:45 or 10:00 p.m. I went to the kitchen, smoked
and talked to [Defendant Long]. Lilliana started calling for me to come get her.
At first, [Defendant Long] didn’t want me to get her, but I eventually did. I
played with Lilliana for a little bit and put her back in the bed around 11:00
p.m. I walked over to [the victim] and looked at her. She made a noise and
sounded like she was congested. I rubbed her face and her lip moved. I went
back into the living room, I played Guitar Hero. At around 1:00 a.m., I told
[Defendant Long] I was going to try to feed [the victim] since she hadn’t eaten
since 2:00 p.m. I picked her up, she was cold and her body was limp. I
screamed that she was dead and [Defendant Long] just looked at me and said,
“What do you want me to do?” I told [Defendant Long] to call 911 and he did.
I took [the victim] to the den and put her on the couch. The 911 operator was
telling [Defendant Long] to give [the victim] CPR. I went outside and started
screaming and crying and waiting for the ambulance.

Investigator Campbell testified that she also interviewed the defendants’ neighbor,
Terri Adams.

Angie Galloway testified that, at the time of these events, she worked as a child abuse
investigator for the Department of Children’s Services (“DCS”). Galloway explained that she
was assigned to investigate this case. The initial information was “a baby death,” which

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Galloway described as “very vague.” In the course of her investigation she met with both
defendants in order to assess the safety in the home for the remaining child, Lilliana.
Galloway recalled that, initially, she observed the police interviews of both defendants. After
the police interview, Galloway met with Defendant Adkins on multiple occasions to discuss
the circumstances surrounding the victim’s death. Defendant Adkins told Galloway that she
worked at ACT and returned home one Friday night at around 11:00 p.m. She was worried
because the baby had been sick and attempted to feed the victim a few ounces, and the victim
threw that up. Defendant Adkins said the victim continued to be sick throughout the weekend
so she called the doctor’s office on Sunday and was instructed to give the victim Pedialyte.
If the victim did not improve, Defendant Adkins was to bring her in to the doctor’s office.
At some point during the following week, there was a doctor’s office visit during which
Defendant Adkins asked the doctor about the victim. The doctor told Defendant Adkins that
there was a stomach virus “going around” and to continue giving the victim Pedialyte.

Galloway testified that she had a conversation with Defendant Long at the time she
served him paperwork regarding custody of Lilliana. Defendant Long expressed concern to
Galloway about the family members Defendant Adkins had identified as options for
placement for Lilliana. At some point in the conversation, Galloway became aware that
Defendant Long did not initially think the victim was his child. Galloway asked the
Defendant about this, and “he said he had been out of town working . . . when [Defendant
Adkins] originally found out she was pregnant, and there was some doubt as to whether [the
victim] was his.”

Tracy Fair, a nurse employed at Johnson City Pediatrics, testified that she assisted Dr.
Ledes on March 2, 2009. She recalled seeing Defendant Adkins and Defendant Long in the
office that day for Lilliana’s routine visit. Fair said that the victim was at the appointment
with the family that day as well. Fair said that neither of the defendants ever mentioned to her
any issue with the victim or mentioned anything to Dr. Ledes about the victim while she was
present. Fair said that, had the defendants mentioned that the victim had been vomiting, she
would have “checked in” the victim to be seen by a physician. She said that checking in a
patient is a fairly easy process. Fair said that if either she or Dr. Ledes had examined the
victim it would have been documented as they are legally obligated to do with every patient.

On cross-examination, Fair said that she did not recall anything unusual about the
victim or her appearance on that day.

Dr. Chris Ledes, a Johnson City Pediatric Office physician, testified about the protocol
followed in the office when seeing or examining patients as follows:

We try our best to document any discussion, any encounter with any child in

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 our charts. Now before electronic medical records, we did that by way of
paper. Now it’s kept on a server so there are no sticky notes falling out of
charts or pages that rip out, and that’s - that’s of several different varieties.
There’s a scheduled appointment encounter where that will be - show up in the
chart as a history and a physical exam and a disposition or a decision as far as
what the diagnosis is, that sort of thing, and that’s organized as encounters.
There are also patient messages such as when mom calls in, asks a question, if
I have a discussion with her, the nurse has a discussion, that goes in the patient
message section and other things, prescription request, things like that, it should
all be there.

Dr. Ledes explained that this electronic system documents the child’s history and that he
carries a device into the room with him for reference and to add in new information as he
meets with a patient.

Dr. Ledes identified the victim’s medical records. He said that the first page indicated
four different visits: a newborn check-up, a weight re-check, a one-month check-up, and a
two-month check-up. He said that this is a routine appointment schedule for a new baby. He
read aloud for the jury the last entry, which was the victim’s two-month check-up on February
23, 2009.

Patient is a ten-week-old female who’s here for a well visit. The child is here
for a two-month visit. The historian is the mother. The child’s nutritional
intake is formula from a bottle. The brand of formula is Good Start. Feeding
takes place every four hours. The number of feedings are six per day. The
child takes in four ounces or four to five ounces per feeding. The child is going
to the bathroom a normal number of times a day, urinating a normal number of
times a day. Participates in the WIC program. The patient has not been
experiencing problems or concerns.

....

Child responds to sounds. The child looks at parents’ faces. The caretaker
does not have concerns about development or behavioral issues. The patient’s
sleeping habits include sleeping through the night, sleep seven to eight hours
a night. And the patient is not in daycare.

Dr. Ledes testified that the victim was given a complete exam that day with no noted
abnormalities. Dr. Ledes said that a four ounce feeding every four hours is “normal range”
for an infant of the victim’s size and age. Dr. Ledes identified a “call-in note,” which

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documents conversations between physicians and parents during on-call hours. The note
indicated that Defendant Adkins called the office on Sunday, March 1, 2009, with the
complaint that the victim was not keeping formula down. The doctor handling the call wrote,
“Vomiting-up formula, no fever, no diarrhea. Recommended Pedialyte, small amounts. Call
back if not keeping down.” Dr. Ledes explained that Pedialyte is not a substitution for milk
or formula but is used for re-hydration purposes.

Dr. Ledes identified Lilliana’s medical records. He testified that he performed
Lilliana’s routine two-year-old exam on March 2, 2009. He said that the victim was present
with the family during the appointment but that he did not examine the victim. He said that
he “vaguely recall[ed]” a “hypothetical question about if a baby were vomiting” at the end of
the checkup. Dr. Ledes said that he responded that a baby should be able to keep down little
bits of fluid and, if not, should be seen by a physician. He did not recall any further
discussion and reiterated, “it was sort of a hypothetical question in passing.” Dr. Ledes said
that if a parent mentioned concerns about the condition of a child, he would have made an
appointment to see the child. He said children often get sick “suddenly” and the practice
accommodates such situations routinely. Dr. Ledes said that if the defendants had told him
that the victim had been vomiting since Friday and could not keep formula down, he would
have asked them to have the victim seen by a physician. Dr. Ledes said that if he had been
told the victim had fallen from the couch and hit her head, he would have wanted to examine
the victim.

Dr. Ledes testified that Lilliana’s chart indicated that she had been brought to the
physician’s office for the following reasons: first newborn checkup, jaundice, two-week
checkup, weight checkup, one-month checkup, two-month checkup, sore throat and cold,
trauma to the face, four-month checkup, a rash, six-month checkup, an upper respiratory
infection, nine-month check up, flu shot, teething and fluid behind the ear drum, twelve-
month checkup, vomiting and diarrhea, cold with vomiting, a fifteen-month checkup, an
eighteen-month checkup, upper respiratory infection, and a two-year-old checkup. Dr. Ledes
read aloud for the jury the entry from February 21, 2008: “The Patient is a twelve-month-old
female who presents with a complaint of vomiting. The vomiting has been occurring for one
day. The course has been worsening. The symptoms have been associated with diarrhea and
fever. The historical information was given by the mother and father.”

On cross-examination, Dr. Ledes agreed that, based on the medical records, it appeared
that both of the defendants’ children had appropriate medical histories.

Upon agreement by the parties, the following stipulations were admitted into evidence:
Johnson City Pediatric medical records for the victim and Lilliana; Johnson City Medical
Center records for Lilliana; North Side Hospital medical records for Lilliana.

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 Investigator Harrah testified about the events leading up to the Defendant Long’s arrest
on March 13, 2009. He said that Defendant Adkins had not been charged at that time.
Investigator Harrah said that on March 6, both defendants provided him with their cellular
phone numbers. On March 6, both defendants came to the police department and spoke with
Investigator Harrah. Investigator Harrah contacted the defendants on March 10, and both
defendants came to the police department. After the defendants were released on March 10,
Investigator Harrah tried to contact the defendants but neither would answer their phone. On
March 13, 2009, several undercover officers located Defendant Adkins’s van. Police
informed Defendant Adkins that they were going to arrest Defendant Long. Defendant
Adkins initially told police that she did not know Defendant Long’s whereabouts but later told
police he was at a house on Stoney Creek.

Investigator Harrah testified that on March 19, 2009, he spoke with Fair and that on
March 23, 2009, he spoke with Dr. Ledes about the medical attention sought for the victim.
After speaking with Dr. Ledes and Fair, Investigator Harrah interviewed Defendant Adkins
on March 24, 2009. A recording of this interview was played for the jury. Investigator
Harrah confronted Defendant Adkins with the inconsistencies between her account of the
medical attention sought for the victim and the pediatric office’s records for the victim.
Defendant Adkins confirmed that Dr. Ledes told her that the victim had a stomach virus. She
said that Dr. Ledes instructed that she continue giving the victim Pedialyte and, if she had a
fever, to give her Motrin. Defendant Adkins gave a detailed account of Dr. Ledes instructions
regarding the victim’s ability to keep clear liquids down. She agreed that she had previously
stated that Dr. Ledes looked in the victim’s ears. She clarified saying that the doctor did not
use an instrument to look in the victim’s ear but turned her head and just visually looked into
each of the victim’s ears and then pressed the victim’s stomach. Defendant Adkins physically
demonstrated Dr. Ledes examination of the victim. As the interview progressed, Defendant
Adkins said that Dr. Ledes “just rolled over there” and looked at the victim. Investigator
Harrah asked for clarification about whether the doctor examined the victim or looked at her
and Defendant Adkins said that Dr. Ledes just looked at her because the victim was sleeping.

Defendant Adkins said that the doctor told her that the victim had “a bug and it had to
run its course.” She agreed that she told police that she called Dr. Ledes on the Tuesday
before the victim died because the victim had slept from 7:00 a.m. until 5:00 p.m. and that Dr.
Ledes had said that the victim needed to rest. When confronted with the fact that the
pediatrician’s office had no record of anyone calling regarding the victim on Tuesday,
Defendant Adkins said that Defendant Long told her that he called the pediatrician’s office.

Defendant Adkins stated that she knew something was wrong with the victim because
the victim’s “eyes would jerk,” and she “just stared.” Defendant Adkins admitted that she did
not do all she could have done to seek medical attention for the victim. She stated, “You

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don’t think I know that if I . . . would’ve f**king done more that she might still be alive?”

Defendant Adkins maintained that she did not seek medical attention for the victim
because the victim showed improvement on Wednesday. Despite Dr. Ledes’s statements to
the contrary, Defendant Adkins maintained that she spoke with Dr. Ledes about the victim’s
illness at Lilliana’s annual examination. She conceded that she did not tell Dr. Ledes that the
victim was not having bowel movements. She also conceded that Dr. Ledes did not give the
victim a full examination but maintained that he looked in the victim’s ears and pressed her
stomach.

Defendant Adkins denied that she asked Adams, her neighbor, to come over to the
apartment and look at the victim. She said that Adams came over to the apartment when her
boyfriend, Rokicka, brought Defendant Long clothing and asked to see the victim.

Defendant Adkins admitted that she lied to police about calling the pediatrician’s office
on Wednesday. She said she did not know why she told police that she called the
pediatrician’s office on Wednesday.

The State rested its case, and Defendant Long presented the following witnesses on his
behalf: Gail Ashby testified that she had known the defendants for six or seven years and
saw them on a weekly basis. Ashby said that through these interactions she had the
opportunity to observe Defendant Long with the children and described his relationship with
the children as “good.” She said when Defendant Long spoke with Lilliana, he was “soft” and
respectful.

Ashby testified that she last saw the family about a week before the victim died.
During the visit, she had occasion to hold the victim and described her as looking “good.”
She said that the victim cried “a little bit” and that Defendant Adkins told her the victim had
a “belly ache.”

On cross-examination, Ashby said that the defendants were in her home during their
last visit for approximately two hours, and she held the victim for “maybe” twenty minutes.
Ashby said that the victim did not eat that day while at her house, and she did not recall seeing
either parent try to feed the victim. Ashby said that several days after the visit, Defendant
Adkins told her the victim was vomiting. Ashby and Defendant Adkins spoke on three
occasions over the telephone about the victim’s illness. During one of these conversations,
Defendant Adkins told Ashby she had taken Lilliana to the doctor and mentioned to the doctor
that the victim was sick.

Dr. Jonathan Arden testified as an expert witness in the field of pediatric forensic

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pathology. In preparation for his testimony, Dr. Arden reviewed the victim’s autopsy report,
photographs, radiographs, slides, medical records, and police investigative reports. Dr. Arden
identified the photograph of the inside of the victim’s scalp. He pointed out the localized
areas of bleeding, or bruising, which are caused by “impact.” He said it was not impossible
but was unlikely that the bruising on the victim’s scalp were caused by knuckles or a fist. He
explained that the pattern of bruising was not consistent with the pattern of four knuckles
from a hand.

Dr. Arden testified that he reviewed Dr. Campbell’s microscopic summary and
correlating slides. He stated that he agreed with her description of the injuries. He explained
the healing process present in the various areas of the victim’s brain indicated injuries
sustained at different times. He said that the bruising did not occur on the night the victim
died but were already present at the time of death and beginning to heal.

Dr. Arden testified about the microscopic slides of the subdural hematoma. He said
the reports and photographs indicate that there was subdural bleeding “from fresh to healing
to greater healing ages.” He explained that “fresh bleeding” is an injury that occurred within
a day. “[H]ealing” indicates injuries approximately five to eight days old, and “greater
healing” indicates injuries sustained two weeks before or longer. Dr. Arden said that force
is required to sustain a hemorrhage or hematoma. He said the circumstances usually involve
“some kind of either acceleration or rotation of the head that tears the little blood vessels that
allow for the subdural bleeding.”

Dr. Arden explained that, whereas a subdural hematoma requires more than “light
trivial force,” a “re-bleed” or subsequent additional injury can occur with a “lesser impact”
or degree of force than the original injury. Dr. Arden said that he disagreed that force
equivalent to either a high fall or motor vehicle accident was necessary to cause the victim’s
injuries. He stated, “It is now very well-documented in the medical experience and medical
literature, that you do not require huge extreme amounts of force to cause significant, and
even sometimes fatal head injuries in children.” He agreed that “short falls” do not commonly
cause serious injury but that the circumstances of the fall must be considered.

Dr. Arden testified that he was provided a hypothetical scenario to consider in the case.
The scenario involved a child being held by an adult horizontal to the ground and then
dropped and landing on the edge of a bathtub with the passage of time from the event to death
of approximately one week. Dr. Arden said that “some” of the victim’s injuries were
consistent with this scenario. Dr. Arden explained that rib fractures can be caused by
compression; however, rib fractures can also result from contact injuries. He explained that
a hard landing on a flat surface can cause some compression resulting in fractures. He stated
that the aging of some of the injuries were consistent with an approximately one week old

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injury.

On cross-examination, Dr. Arden stated that the scenario presented “could explain
basically some” of the injuries, but not all of the victim’s injuries. Dr. Arden agreed that the
manner of death in this case was a homicide, “death at the hands of another person.”

Following this evidence, the jury convicted Defendant Long of first degree felony
murder committed during the perpetration of aggravated child abuse and first degree felony
murder committed during the perpetration of aggravated child neglect. The jury convicted
Defendant Adkins of first degree felony murder committed during the perpetration of
aggravated child neglect. The trial court merged Defendant Long’s convictions and sentenced
both defendants to serve life with the possibility of parole in the Tennessee Department of
Correction. It is from these judgments that the defendants appeal.

II. Analysis

On appeal, Defendant Long asserts that: (1) there is insufficient evidence to support
his convictions; (2) the trial court allowed the introduction of inadmissible hearsay evidence
through the videotaped conversation between the defendants; and (3) the trial court erred by
failing to exclude an autopsy photograph of the victim. Defendant Adkins asserts that: (1)
there is insufficient evidence to support her conviction; and (2) the trial court improperly
overruled her objection to the State’s use of a visual aid during closing arguments.

A. Sufficiency of the Evidence

When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State, “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) (emphasis in original); see Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91
S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing State
v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct evidence,
a criminal offense may be established exclusively by circumstantial evidence. Duchac v.
State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be given to
circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent
to which the circumstances are consistent with guilt and inconsistent with innocence, are
questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review [for

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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)).

In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “‘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. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973)). The Tennessee Supreme Court 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,
527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate
view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate
inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000).

Felony murder is “[a] killing of another committed in the perpetration of or attempt to
perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft,
kidnapping, aggravated child abuse, aggravated child neglect, or aircraft piracy.” T.C.A. §
39-13-202(a)(2) (2010). In this case, Defendant Long was convicted of first degree felony
murder in the perpetration of aggravated child abuse, and both defendants were convicted of
first degree murder in the perpetration of aggravated child neglect. The mental state required
for these convictions was that the defendants possess the intent to commit the underlying

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offense, which in this case was aggravated child abuse and/or aggravated child neglect.

Aggravated child abuse occurs when the accused knowingly, other than by accidental
means, treats a child under the age of eighteen in such a manner as to inflict injury and the act
of abuse results in serious bodily injury to the child. T.C.A. § 39-15-401(a) (2010); §
39-15-402(a)(1) (2010). Aggravated child neglect occurs when the accused knowingly treats
a child under the age of eighteen so as to adversely affect the child’s health and welfare and
the act of neglect results in serious bodily injury to the child. An accused acts “knowingly”
with respect to his or her conduct “when [he or she] is aware of the nature of the conduct.”
T.C.A. § 39-11-302(b) (2010).

1. The State’s Evidence Supporting Defendant Long’s Convictions

Defendant Long argues that the State failed to prove that he “knowingly” committed
either aggravated child abuse or aggravated child neglect. Defendant Long notes that “[t]here
was no direct proof that [he] knowingly or intentionally caused the injuries.” As we
previously stated, a criminal offense may be established solely by circumstantial evidence.
It is for the jury to determine “the weight to be given to circumstantial evidence, . . .‘[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence.’” Rice, 184 S.W.3d at 662. Therefore,
we review circumstantial evidence under the same standard as direct evidence. Dorantes, 331
S.W.3d at 379.

a. First Degree Felony Murder Committed During the Perpetration of Aggravated
Child Abuse

The evidence, presented in the light most favorable to the State, showed that Defendant
Long was the sole caregiver to both children while Defendant Adkins was at work. While
Defendant Adkins was at work, loud music and the victim’s crying could be heard from
outside the defendants’ apartment. Medical testimony showed that the victim sustained
multiple injuries in various stages of healing, indicating that the injuries were not the result
of one incident. The victim suffered from multiple fractures of her occipital bone, fractured
ribs, and subdural hemorrhages; injuries inconsistent with non-accidental trauma. The
autopsy indicated the cause of death was non-accidental blunt force trauma to the victim’s
head. Defendant Long was interviewed several times about the victim’s death. Initially, he
denied any knowledge of the cause of the victim’s injuries. Later, he stated that the victim
fell approximately eighteen inches from the couch onto a rug on the floor. Later, he added
that the vicitm also fell from his arms after a bath, hitting her head on the bathtub. Dr.
Campbell testified that a short fall was unlikely the cause of such injuries and that a single
injurious event was not consistent with the victim’s injuries.

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 Defendant Long’s neighbors urged him to seek medical help for the victim and his
response was that he could not seek medical help for the victim because he did not have the
victim’s birth certificate or the TennCare card. On the Monday before the victim’s death,
Defendant Long sat with the victim in the pediatrician’s office with a physician in the room
examining his other child, Lilliana, and he did not mention the victim’s symptoms or any
accidents that may have caused injury to the victim.

After willingly speaking with police on March 6, 2009, and March 10, 2009, Defendant
Long did not answer or return Investigator Harrah’s telephone calls and moved to a location
other than his apartment.

This evidence is sufficient for a jury to find the Defendant guilty beyond a reasonable
doubt of first degree felony murder during the perpetration of aggravated child abuse.
Defendant Long contends that the proof does not exclude the reasonable inference that the
victim’s injuries were caused by an accidental fall. The jury heard Defendant Long’s
statements to police recounting possible scenarios for how the victim could have been injured.
The jury, however, also heard the medical testimony indicating that the victim sustained a
series of traumas over a period of time. Further, they heard two physicians, one of which
testified for Defendant Long, state that the victim’s manner of death was homicide, a non-
accidental death at the hands of another person. Defendant Long’s accounts of how the victim
sustained the injuries, falling from the couch and hitting her head on the bathtub, according
to medical testimony, do not account for all of her injuries. It is within the province of the
jury to assess witness credibility and determine the weight and value to be given to the
evidence. Bland, 958 S.W.2d at 659. The jury, by its verdict, credited the medical testimony
in this case.

In addition to the medical testimony, the jury considered evidence that the victim was
in the custody and control of Defendant Long, Defendant Long’s evasive behavior during the
course of the investigation, and out-of-court statements by Defendant Long that were
inconsistent with the medical evidence. Under these circumstances, we conclude that the jury
had the prerogative to infer that Defendant Long acted knowingly, with an awareness of the
nature of his conduct, rather than accidentally.

Accordingly, we conclude that there was sufficient evidence upon which a jury could
find beyond a reasonable doubt that Defendant Long knowingly inflicted injuries upon the
two-month old victim resulting in serious bodily injury. Defendant Long is not entitled to
relief as to this issue.

b. Felony Murder Committed During the Perpetration of Aggravated Child Neglect

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 The evidence, considered in the light most favorable to the State, proves that Defendant
Long cared for the victim while Defendant Adkins was at work. On the Friday before her
death, the victim became unable to keep down her formula. Her inability to consume formula
continued Saturday and Sunday. On Sunday, Defendant Adkins called the pediatrician’s
office, and Defendant Long answered the return call. He informed the on-call doctor that the
victim had been vomiting. He did not mention the victim’s fall from the couch or her hitting
her head on the bath tub. Based on the information provided, the on-call physician instructed
Defendant Long to feed the victim Pedialyte for an upset stomach. Adams, the defendants’
neighbor, saw the victim on Sunday and voiced concern over the victim’s color and response.
She described the victim as “lifeless.” Adams offered to care for Lilliana so that Defendant
Long could take the victim to the hospital, an offer he refused. On Monday, the victim, still
unable to consume her formula, was present during Lilliana’s annual medical exam, where
Defendant Long remained silent about both the victim’s symptoms and any falls sustained by
the victim. On Tuesday, the victim slept from 7:00 a.m. until 5:00 p.m. On Wednesday, the
victim made her first bowel movement since the previous Friday. During the video recording
of the defendants conversation, the defendants discussed the victim’s “jerking” movements
observed by both of the defendants at some point during the week.

This evidence is sufficient for a rational trier of fact to find beyond a reasonable doubt
that Defendant Long failed to seek medical treatment for his severely injured child resulting
in her death, which constituted “neglect” pursuant to the statute. Defendant Long asserts that
he did not have “the medical knowledge to surmise” the victim’s injuries. Defendant Long
certainly could not have known the victim’s exact injuries; however, he was aware that the
victim could no longer consume her formula beginning on the Friday before her death, that
she failed to make a bowel movement for at least five days, that she was sleeping excessively,
and that she was displaying jerking movements. Moreover, on the video recording of the
defendants’ discussion, Defendant Long reminds Defendant Adkins that he said they should
take the victim to the hospital. This evinces his awareness of medical concerns in relation to
the victim and his subsequent failure to follow through with his belief that the victim needed
medical attention. Defendant Long spoke with an on-call physician over the telephone on the
Sunday before the victim’s death and sat in a pediatric medical examination room on Monday
with a physician, yet he chose not to address the victim’s medical concerns either time.

Accordingly, we conclude that there was sufficient evidence upon which a jury could
find, beyond a reasonable doubt, that Defendant Long’s failure to seek medical treatment for
the victim adversely affected her, resulting in serious bodily injury to the victim. The
Defendant is not entitled to relief as to this issue.

2. The State’s Evidence Supporting Defendant Adkins’s Conviction

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 Defendant Adkins asserts that the State failed to prove that she “knowingly neglected”
her child. She asserts that because “[t]here were no external injuries that informed Defendant
Adkins as to the true nature of the child’s medical condition,” her conviction can not stand.
She claims that her lack of experience, education, and information prevents the conclusion
that she knowingly neglected the victim. We respectfully disagree.

The victim, a two-month old infant, could not digest her formula for at least five
consecutive days. The victim did not make a bowel movement for at least five days. She was
lifeless, displayed jerking movements, and had poor color. The victim slept for excessively
long periods of time. Defendant Adkins, acknowledging her awareness of these symptoms,
called the physician on the Sunday before the victim’s death. The defendants were instructed
to feed the victim Pedialyte and, if the symptoms continued, to seek further medical attention.
The symptoms continued, but Defendant Adkins, inexplicably, failed to seek medical attention
for the victim.

Defendant Adkins’s neighbor, Adams, urged her to seek medical treatment for the
victim based on the victim’s appearance and failure to eat. Defendant Adkins did not do so.
The following day, Monday, Defendant Adkins took Lilliana to the pediatrician’s office for
an annual exam. The victim was also present. Although Defendant Adkins may not have
been aware of the victim’s exact injuries or how she sustained them, she had the opportunity
to have the victim examined and failed to fully disclose all of the victim’s symptoms to the
doctor or request a medical examination for the victim. Additionally, Defendant Adkins lied
to the police about the steps she took toward obtaining medical treatment for the victim.

Based upon these circumstances and the victim’s apparent symptoms and signs of
distress, a reasonable jury could find beyond a reasonable doubt that Defendant Adkins was
aware the victim needed medical treatment and that her failure to seek treatment for the dying
victim “adversely affected the [victim]’s health and welfare.” T.C.A. § 39-15-401(b).

We also note that Lilliana’s medical records show that the defendants had sought
medical treatment for Lilliana, then one-years-old, after twenty-four hours of vomiting. This
belies Defendant Adkins’s assertion that she did not have the experience to identify symptoms
in a baby requiring medical attention.

Accordingly, we conclude that there was sufficient evidence upon which a jury could
find, beyond a reasonable doubt, that Defendant Adkins’s failure to seek medical treatment
for the victim adversely affected the victim resulting in serious bodily injury. The Defendant
is not entitled to relief as to this issue.

B. Admission of Video Recorded Conversation Between the Defendants

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 Defendant Long challenges the trial court’s admission of a specific statement made by
Defendant Adkins during the course of the recorded conversation between the defendants.
Defendant Long asserts that Adkins’s statement, “They think you f**king punched her,
Russell,” is inadmissible hearsay because it is an out of court statement made to the police.
He argues that the trial court improperly admitted this statement under the “state of mind”
exception to the rule against hearsay. Tenn. R. Evid. 803(3). The State responds that the
statement at issue was not offered for the truth of the matter asserted and, therefore, is not
hearsay or subject to the Rule 802 exceptions to the rule against hearsay. We agree with the
State.

Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Tenn. R. Evid. 801(c). In general, hearsay statements are inadmissible. Tenn. R. Evid. 802
(“Hearsay is not admissible except as provided by these rules or otherwise by law.”). “‘The
determination of whether a statement is hearsay and whether it is admissible through an
exception to the hearsay rule is left to the sound discretion of the trial court.’” State v.
Thomas, 158 S.W.3d 361, 400 (Tenn. 2005) (quoting State v. Stout, 46 S.W.3d 689, 697
(Tenn. 2001)). This Court will not interfere with this exercise of discretion unless a clear
abuse appears on the face of the record.2 State v. Franklin, 308 S.W.3d 799, 803 (Tenn.
2010). A trial court abuses its discretion only when it applies an incorrect legal standard or
makes a ruling that is illogical or unreasonable and causes an injustice to the complaining
party. Id. (quotations omitted).

2
We are aware of the disagreement among panels of this court and also with our Supreme Court
regarding the appropriate standard of review of the admissibility of hearsay evidence. See State v. Dotson,
254 S.W.3d 378, 392 (Tenn. 2008) (in considering an issue involving hearsay, holding that “questions
concerning the admissibility of evidence rest within the sound discretion of the trial court, and this Court will
not interfere in the absence of abuse appearing on the face of the record”); Pylant v. State, 263 S.W.3d 864,
871 n. 26 (Tenn. 2008) (maintaining that the standard of review for hearsay issues is abuse of discretion);
Willie Perry, Jr. v. State, No. W2011-01818-CCA-R3-PC, 2012 WL 2849510, at *3 (Tenn. Crim. App. July
11, 2012) (stating that standard of review for admissibility of evidence is abuse of discretion); but see State
v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim. App. 2008) (stating that whether a statement is offered to prove
the truth of the matter asserted is “necessarily a question of law” and is not subject to review under abuse
of discretion standard); State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007) (holding that
appellate review of hearsay issues is de novo with no presumption of correctness); Willie Perry, Jr., 2012
WL 2849510, at *7 (Bivins, J., concurring) (applying de novo standard of review to hearsay issues). It is not
necessary for us to compare the merits of each position because, for purposes of our determination of this
issue, the evidence is admissible under either standard of review.

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 In response to Defendant Long’s objection to the videotaped recording of the
conversation between the defendants, the trial court initially found that the statement at issue
was “clearly hearsay.” Upon further discussion, however, the trial court agreed that the
statement was not offered for the truth of the matter asserted and was admissible, with a
limiting instruction to the jury. The trial court found that the statement was not offered for
the truth of the matter asserted but to show Defendant Adkins’s state of mind, which was a
crucial issue in the case against her. During the jury’s viewing of the video recording, the trial
court stopped the recording and instructed the jury as follows:

Ladies and gentlemen, you heard that statement and you might hear statements
throughout this thing of her referencing the Johnson City Police Department.
I’m letting this document in for one reason and one reason only, and that’s her
state of mind. And that’s the only thing you’re to consider it for. Therefore,
as - you’re not to consider the statement as she just made as a truth of the
matter asserted. Its purpose is only to show you her state of mind. This rule
does not authorize a statement by her as proof. In other words, this rule does
not authorize a statement by the defendant Adkins as proof of another state of
mind, that is, the Johnson City Police Department in this case. Therefore,
you’re not to consider the defendant Adkins what she says about, “They think
you punched her,” as to the truth of the matter asserted as to this defendant. .
. . If it’s repeated again ladies and gentlemen, keep understanding it’s not for
the truth of the matter asserted. She can’t say what’s in somebody else’s mind
and that’s what she’s attempting to do to that.

Defendant Long asserts that the trial court improperly found Defendant Adkins’s
statement admissible under the state of mind exception to the rule against hearsay. Based
upon the trial court’s dialogue with the parties on this issue and its instruction to the jury, it
is our view that the trial court did not admit the statement under a hearsay exception but
admitted the statement on the basis that it was not being offered for the truth of the matter
asserted and thus was not hearsay. The trial court’s instruction was clear that the jury was not
to consider Defendant Adkins’s statement for the truth of the matter asserted. If the trial court
had admitted the statement under a hearsay exception, as Defendant Long proposes, the
statement could have been considered as substantive evidence that the police department
thought Defendant Long punched the victim. See State v. Livingston, 907 S.W.2d 392, 395
(Tenn. 1995). The trial court repeatedly instructed the jury, however, not to consider the
statement for the truth of the matter asserted. Therefore, the record does not support the
conclusion that the trial court improperly admitted the recording under an exception to the rule
against hearsay.

Further, the trial court did not abuse its discretion when it determined that the statement

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was not being offered for the truth of the matter asserted. Although the trial court determined
that the statement was relevant to Defendant Adkins’s state of mind, the statement was also
relevant to the nonhearsay purpose of proving the effect on the listener. See State v. Venable,
606 S.W.2d 298, 301 (Tenn. Crim. App. 1980) (holding that a statement introduced for its
effect on the listener is not hearsay); N EIL P. C OHEN ET. AL, T ENNESSEE L AW OF E VIDENCE §
8.01, at 8-23 (5th ed. 2005) (“[A]ny time the statement is used to prove the hearer or reader’s
mental state upon hearing the declaration, words repeated from the witness chair are not
hearsay . . . because [the statement] is not used to prove the truth of the matter asserted in the
statement.”). Upon hearing Defendant Adkins’s statement that police believed Defendant
Long punch the victim, Defendant Long, crying, dropped his head and in a barely audible tone
said, “I didn’t punch her, baby.” While Defendant Long cried throughout the interaction with
Defendant Adkins, his demeanor significantly softened and became more subdued upon the
mention of the specific theory under which police believed the victim suffered abuse.

We note, however, that even were we to find that the statement was erroneously
entered as the Defendant contends, the error would be harmless in light of the strength of the
evidence supporting the Defendant’s conviction. See Tenn. R. App. P. 36(b).

Accordingly, the trial court did not abuse its discretion in admitting the video recording
of the defendants’ conversation in its entirety. Defendant Long is not entitled to relief as to
this issue.

C. Admission of Autopsy Photograph

Defendant Long argues that the trial court erred when it admitted an autopsy
photograph depicting the victim’s skull cap with the skin pulled back. He asserts that the
photograph had “very little” probative value and was prejudicial “due to the gruesome nature
of the photograph.” The State responds that the probative value of the photograph was great
because it contradicted Defendant Long’s accidental-fall explanation for the victim’s injuries.
It further asserts that the photograph was specifically cropped so that no other portion of the
victim’s body or face was visible.

The trial court responded to Defendant Long’s objection to the admission of the
autopsy photograph, stating:

[I]t’s able to convey to the jury what a doctor is attempting to do through a
color photograph they do much better than descriptive. There is nothing
objectionable about this. The probative value of this picture far outweighs
anything prejudicial about it. Furthermore, it’s simply not prejudicial, it’s just
not and that’s the Court’s ruling on it. . . . It’s just not there, I’m convinced of

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 that. That just - this jury can then understand the nature of those - by looking
at this photograph, the jury can really understand the nature of the injuries on
this child. It’s just that simple. She can set [sic] there and attempt to describe
them all day. She can hold up the picture and it describes itself.

The determination of the admissibility of photographs lies within the sound discretion
of the trial court. State v. Thomas, 158 S.W.3d 361, 394 (Tenn. 2005); see N EIL P. C OHEN,
ET AL., T ENNESSEE L AW OF E VIDENCE, § 4.01[18] [a], at 4-40 (5th ed. 2005). The decision
of the trial court to admit a photograph into evidence will not be overturned on appeal absent
a clear showing of an abuse of discretion. Thomas, 158 S.W.3d at 394. To be admissible, a
photograph must be relevant to some issue at trial, and the danger of unfair prejudice,
confusion of the issues, or misleading the jury must not substantially outweigh its probative
value. State v. Leach, 148 S.W.3d 42, 56 (Tenn. 2004). Generally, evidence is relevant if it
has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would without the
evidence.” Tenn. R. Evid. 401. 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.” State v. Price, 46 S.W.3d 785, 815 (Tenn. Crim. App. 2000) (citing State v.
Banks, 564 S.W.2d 947, 951)). Photographs must be relevant to prove some part of the
prosecution’s case and must not be admitted solely to inflame the jury and prejudice them
against the defendant. Id.

Autopsy photos should be particularly scrutinized because “they present an even more
horrifying sight and show the body in an altered condition.” Id. In deciding whether to admit
photographs, the trial court must consider the questions of fact that the jury will have to
consider in determining the accused’s guilt, as well as other evidence that has been introduced
during the course of the trial. State v. Carlos Sommerville, No. W2004-01083-CCA-R3-CD,
2005 WL 729142, at *4 (Tenn. Crim. App., at Jackson, Mar. 30, 2005) (citing State v.
Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995)), no Tenn. R. App. P. 11 application
filed. Before any photograph can be admitted into evidence, it must be verified and
authenticated by a witness with knowledge of the facts. State v. Jacob Edward Campbell, No.
M2003-00597-CCA-R3-CD, 2004 WL 508477, at *15 (Tenn. Crim. App., at Nashville, Mar.
15, 2004) (citing Banks, 564 S.W.2d at 949-50), perm. app. denied (Tenn. Oct. 4, 2004).

In the case under submission, the trial court did not abuse its discretion when it allowed
the autopsy photograph of the victim’s scalp to be entered into evidence. First, we note that
the photograph was relevant to the issue of the cause of the victim’s death. Defendant Long
claimed that the injuries to the victim occurred on the Friday before the victim’s death. The
photographs were useful to assist the jury to understand Dr. Campbell’s testimony and to
demonstrate the severity and varying ages of the victim’s injuries. The injuries to the victim

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were internal, and the autopsy photograph was necessary to show the scope and age of the
victim’s injuries.

Next, we note that the trial court did not abuse its discretion when it determined the
probative value of these photographs was not outweighed by unfair prejudice. This
photograph was relevant to prove the cause of the victim’s death and was not admitted solely
to inflame the jury and prejudice them against the defendants. The photograph at issue is
unquestionably unpleasant because it depicts an image of the internal lining of the victim’s
scalp that was exposed during the course of the autopsy. The primary purpose of the
photograph, however, was not to elicit the jurors’ emotions but rather to develop facts that
were relevant to show how the victim died. Consequently, the trial court did not abuse its
discretion, and the Defendant is not entitled to relief on this issue.

D. State’s Use of a Visual Aid During Closing Argument

Defendant Adkins argues that the trial court erred when it overruled her objection to
the State using baby bottles as a visual aid during closing argument. She asserts that, in so
doing, the State improperly argued facts outside the record. The State responds that its use
of visual aids during closing argument was permissible and, therefore, the trial court properly
overruled Defendant Adkins’s objection.

During closing argument, the prosecutor used baby bottles partially filled with formula
to demonstrate the amount of formula, according to Dr. Ledes’s testimony, the victim should
have been consuming versus the amount of formula that Defendant Adkins said the victim
actually consumed. Defendant Adkins’s attorney objected, stating that the bottles were not
in evidence. The State responded that the bottles were filled with the amounts of formula
testified to by Dr. Ledes and in Defendant Adkins’s statements. The trial court overruled the
objection.

The Tennessee Supreme Court “has long recognized that closing arguments are a
valuable privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156
(Tenn. 2001) (citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). “Consequently,
attorneys are given greater leeway in arguing their positions before the jury, and the trial court
has significant discretion in controlling these arguments, to be reversed only upon a showing
of an abuse of that discretion.” Terry, 46 S.W.3d at 156 (citing Sutton, 562 S.W.2d at 823);
see Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). This Court has explained that “closing
arguments must be temperate, based upon the evidence introduced at trial, relevant to the
issues being tried, and not otherwise improper under the facts or law.” See State v. Goltz, 111
S.W.3d 1, 5 (Tenn. Crim. App. 2003) (citing Coker v. State, 911 S.W.2d 357, 368 (Tenn.
Crim. App. 1995)).

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 In Goltz, this Court found that within the closing argument, five general areas of
prosecutorial misconduct are recognized:

1. It is unprofessional conduct for the prosecutor intentionally to misstate the
evidence or mislead the jury as to the inferences it may draw.

2. It is unprofessional conduct for the prosecutor to express his [or her]
personal belief or opinion as to the truth or falsity of any testimony or evidence
or the guilt of the defendant. See State v. Thornton, 10 S.W.3d 229, 235
(Tenn. Crim. App. 1999); Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim.
App. 1978); Tenn. Code Of Prof'l Responsibility DR 7–106(c)(4).

3. The prosecutor should not use arguments calculated to inflame the passions
or prejudices of the jury. See [ State v.] Cauthern, 967 S.W.2d [726,] 737
(Tenn. 1998); State v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).

4. The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence, by injecting issues broader
than the guilt or innocence of the accused under the controlling law, or by
making predictions of the consequences of the jury’s verdict. See Cauthern,
967 S.W.2d at 737; State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).

5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue
facts outside the record unless the facts are matters of common public
knowledge.

Goltz, 111 S.W.3d at 6 (quoting Standards Relating to the Prosecution Function and the
Defense Function §§ 5.8-5.9 Commentary (ABA Project on Standards for Criminal Justice,
Approved Draft 1971)).

A criminal conviction should not be lightly overturned solely on the basis of the
prosecutor’s closing argument. State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008) (citing
United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d 411, 425 (Tenn.
2001) (holding that a prosecutor’s improper closing argument does not automatically warrant
reversal). When an appellate court determines an argument to be improper, “the established
test for determining whether there is reversible error is whether the conduct was so improper
or the argument so inflammatory that it affected the verdict to the Appellant’s detriment.”
Goltz, 111 S.W.3d at 5 (citing Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)). In
measuring the prejudicial impact of an improper argument, this Court should consider the
following factors: “(1) the facts and circumstances of the case; (2) any curative measures

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undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the
cumulative effect of the improper conduct and any other errors in the record; and (5) the
relative strength or weakness of the case.” Goltz, 111 S.W.3d at 5-6 (citing Judge v. State,
539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)); see State v. Buck, 670 S.W.2d 600, 609
(Tenn. 1984).

Defendant Adkins asserts that the State attempted to argue facts outside the record
when it used baby bottles with formula as a visual aid during closing argument. In our view,
the use of these visual aids was not argument “outside the record.” The amount of formula
the victim had been ingesting was entered into evidence through her medical records and Dr.
Ledes’s testimony. Dr. Ledes confirmed that this amount, four or five ounces every four
hours, was an amount he would expect an infant the victim’s size and age to be consuming.
Defendant Adkins, in multiple statements, recited how much formula the victim was
consuming in her final days. Based on this evidence, the State provided a visual aid to
demonstrate the condition of the victim in the week before her death. The amount of formula
the victim should have been ingesting daily, according to Dr. Ledes, and the amount she
actually ingested, based on the defendants’ statements to police, were part of the record.
Additionally, the jury was instructed that arguments of counsel are not to be considered
evidence. The jury is presumed to follow the instructions of the trial court. State v. Smith,
893 S.W.2d 908, 914 (Tenn. 1994).

Accordingly, the trial court did not err when it overruled Defendant Adkins’s objection
to the State’s use of a visual aid during closing argument. Defendant Adkins is not entitled
to relief.
III. Conclusion

In accordance with the foregoing reasoning and authorities, the judgments of the
trial court are affirmed.

_________________________________
ROBERT W. WEDEMEYER, JUDGE

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