State of Tennessee v. Walter Andrew Ware

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 12, 2011 Session

STATE OF TENNESSEE v. WALTER ANDREW WARE

Direct Appeal from the Circuit Court for Obion County
No. CC-09-CR-133 William B. Acree, Jr., Judge

No. W2010-01992-CCA-R3-CD - Filed October 7, 2011

An Obion County jury convicted the Defendant, Walter Andrew Ware, of aggravated child
abuse, aggravated child neglect, and aggravated child endangerment. The trial court merged
the convictions and sentenced him to sixteen years, to be served at 100%. On appeal, the
Defendant contends that the evidence presented, which was circumstantial, is insufficient to
sustain his conviction and that the trial court made an improper ruling during voir dire. After
a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, Jr., J., joined.

William K. Randolph and Joseph P. Atnip, Dresden, Tennessee, for the Appellant, Walter
Andrew Ware.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarance E. Lutz, Assistant Attorney
General; Thomas A. Thomas, District Attorney General, and Kevin McAlpin, Assistant
District Attorney General, for the Appellee, State of Tennessee.

OPINION
I. Facts

This case arises from injuries sustained by an infant girl, who was subsequently
admitted to the hospital. For these injuries, the Obion County grand jury indicted the
victim’s mother, Jacqueline Elendt, and father, the Defendant, on charges of aggravated child
abuse, aggravated child neglect, and aggravated child endangerment. Elendt pled guilty to
child abuse and child neglect, Class E felonies, and agreed to testify against the Defendant.
 At the Defendant’s trial, the following evidence was presented: N.W.’s mother,
Jacqueline Elendt, testified that the Defendant was N.W.’s father and that N.W. was born on
May 21, 2009. After N.W.’s birth, she and the Defendant brought N.W. to live with them
at the Defendant’s mother’s house. The Defendant’s mother “pretty much” kicked them out
of her home, and they went to live in Union City with Dana Northam, a woman whom Elendt
had met through the Defendant and with whom she worked at an Arby’s restaurant. The
couple and N.W. had lived with Northam for approximately one month before N.W.’s
admission to the hospital on July 30, 2009.

Elendt testified that she never hurt N.W., and she recalled the events leading to N.W.’s
hospitalization. She said that, on July 28, a Tuesday, she worked at Arby’s Restaurant from
11:30 a.m. until 4:30 p.m., while N.W. stayed with the Defendant, who was unemployed.
When she left for work that morning, N.W. appeared fine. When she returned, the Defendant
“barely [let her] take care of [N.W.]” who had slept a lot that day. Elendt said that, in
hindsight, N.W.’s sleepiness was unusual, but she did not notice it at the time. N.W. awoke
two or three times during the night on Tuesday night, and the Defendant got up with her each
time. Elendt said that, on Wednesday morning, the couple took N.W. to the courthouse, and
she held N.W. while they were driving. It was then that she noticed bruises on N.W.’s face.
She asked the Defendant about the bruises, and he told her that “she was a baby and to leave
it alone.” Elendt said that, while this answer did not satisfy her, she was scared of the
Defendant, so she did not inquire further.

Elendt said that upon their return to Northam’s house N.W. appeared to be acting fine.
Elendt recalled that she and the Defendant then took N.W. to pick up Northam’s son and take
him to Arby’s Restaurant where Northam was working. They returned to Northam’s house,
only to leave again to retrieve Northam’s son from Arby’s Restaurant. Elendt said she, the
Defendant, and Northam’s son played together with the neighborhood children and with
N.W., who still appeared fine. Elendt recalled that she did not hold N.W. during this time
and that the Defendant primarily took care of her.

At 2:00 a.m. on the following Thursday morning, N.W. awoke with a fever. Elendt
said she got up with N.W. and gave her infant Tylenol in an attempt to reduce her fever.
When that did not work, she offered N.W. a bottle of milk, which N.W. drank “really fast”
and then “threw up.” Elendt said she woke up Northam and asked Northam if she had a
thermometer, to which Northam responded negatively. At that point, Elendt noticed that
N.W. was “shaking on one side of her body and her eyes were twitching,” so she woke the
Defendant telling him that they needed to go to the hospital. The Defendant “was like man,
let me see her. So [Elendt] handed [N.W.] to him and he just looked at her and he didn’t
want to go.” Northam, who was also awake, joined Elendt in encouraging the Defendant to

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take N.W. to the hospital until he finally acquiesced. As they were getting into the car, the
Defendant said to Elendt, “It’s gonna be [you] and [me] if there was nothing wrong with
her.”

On cross-examination, Elendt said that “Emmanuel,” Northam’s boyfriend, also lived
at Northam’s house with her, the Defendant, N.W., and Northam’s son, who was six or
seven. Elendt said that, at one point after N.W.’s birth, for approximately three days she and
N.W. lived with Elendt’s parents. The Defendant did not live with them, and Elendt was
N.W.’s primary caretaker. Elendt agreed that, in accordance with her agreement with the
State, she received a two year sentence on judicial diversion. She agreed she was going to
plead guilty to Class E Felony child abuse and neglect, both pleas of which would be
dismissed if she complied with the rules of diversion for two years.

Elendt agreed that the Defendant sometimes detailed cars to earn money. She said she
did not recall Northam ever watching N.W. so that the Defendant could work. After
reviewing her statement to the Department of Children’s Services (“DCS”), she agreed that
it indicated she told them that Northam watched N.W. so that the Defendant could “go
everywhere and wash people’s cars.” Elendt said she did not recall if Northam’s son was
present when Northam watched N.W.

Dana Northam testified that she had known the Defendant for five years because the
Defendant’s cousin was the father of Northam’s son. Through the Defendant she met Elendt,
with whom she worked at Arby’s restaurant. Two weeks before this incident, the Defendant,
Elendt, and N.W. moved into Northam’s house, where she lived with her six-year-old son
and her boyfriend. Northam said that she babysat N.W. a “few times” for “a couple of hours”
while they lived with her. Northam said, however, that she never babysat for N.W. while the
Defendant was working because he did not ever go to work while he lived with her.
Northam testified that she never saw any behavior that caused her concern. She said she
once saw a bruise on N.W.’s forehead, but, after she was told N.W. bumped her head, she
did not suspect anything.

Northam recalled that during the early morning hours of Thursday July 30, 2009,
Elendt knocked on her bedroom door upset because there was something wrong with the
baby. She wanted a thermometer to check N.W.’s temperature, and Northam could not find
one. Northam said that Elendt and the Defendant began arguing because Elendt wanted to
take N.W. to the hospital and the Defendant did not. After they left for the hospital, police
arrived at her house to investigate allegations that N.W. was abused. Northam denied ever
shaking N.W. and denied ever seeing anyone else shake N.W.

On cross-examination, Northam agreed she had previously stated that both Elendt and

3
the Defendant came into her room looking for a thermometer. Northam said she never saw
either parent do anything she deemed “inappropriate” with N.W. or endanger N.W. in any
way. On redirect examination, Northam testified that the Defendant normally took care of
N.W. and that, even when Elendt was home, the Defendant “had” N.W. more than Elendt.

Todd Wright, a Union City Police officer, testified that he responded to a call from
hospital staff about the possible child abuse of N.W. He arrived at the hospital before N.W.
was transferred to Memphis for treatment, and, after seeing the child, he interviewed the
Defendant and Elendt, who were at the hospital. They told him that N.W. was from “Big
Sandy,” which immediately caused him concern because that was several hospitals away.
He later determined that they had been staying with Northam in Union City immediately
before N.W.’s hospitalization. Officer Wright observed N.W and he noticed bruising and
seizure activity, which caused her eyes and arms to “jerk[].” The officer showed the jury
pictures taken of N.W. that morning.

Dr. Karen Lankin, the Medical Director for Lebonheur Child Assessment Program at
Lebonheur Children’s Medical Center in Memphis, testified as an expert in the field of
pediatric medicine. Dr. Lankin said that she served as a consulting physician for abused
children. She explained that, when children come to the hospital, they often had medical
conditions that, at the beginning, were unclear and may involve multiple sub-specialities.
The treating physicians often consult the “child assessment program” that the hospital has
to assist them in gathering all the information from the sub-specialists and to work with the
families. The consulting physician from the child assessment program also communicates
with the Department of Children’s Services (“DCS”), if necessary.

Dr. Lankin recalled that Union City hospital transferred N.W. to LeBonheur
Children’s Medical Center, on July 30, 2009, and on that same day N.W.’s treating physician
sought Dr. Lankin’s consultation. Dr. Lankin reviewed N.W.’s records, spoke with all the
doctors involved in treating N.W., and examined N.W. herself. When Dr. Lankin examined
N.W., N.W. had been classified as in “critical condition” and admitted into the pediatric
intensive care unit. She had come to the emergency room with a high fever and suffering
seizures. Dr. Lankin observed bruises on N.W.’s arms, torso, back, right thigh, above her
right cheek and right eyelid, and on her right ear. The infant had fractures of her right ninth,
tenth, and eleventh ribs, and her left seventh, eighth, ninth, and eleventh ribs. She also had
two “corner” fractured tibias, one each in her lower legs, and a third “corner” fracture to her
right femur. N.W.’s CT scan also indicated that she may have suffered a skull fracture, but
the CT was unclear because of the swelling. The doctor explained that a “corner” fracture
is very unusual unless there is some type of “torsion or twisting motion.” Therefore, these
injuries are “highly suspicious for non-accidental trauma” because it is not the type of
accidental injury usually suffered by an infant or a child. Dr. Lankin testified that these

4
injures could have been caused by N.W.’s being shaken to the point that her ribs were flailing
back and forth.

N.W. was also diagnosed as having “extensive retinal hemorrhages” in both her eyes
that went through both the intra-retinal and pre-retinal areas. This finding also would have
been “very unusual” in an otherwise healthy child. Doctors also found “extensive bleeding
or hemorrhaging on both hemispheres of N.W.’s brain and a significant area of a hematoma
in the area of her brain that ran between the hemispheres called the “falx.” N.W.’s injuries,
including the fractures, retinal hemorrhaging, and intra-cranial bleeding indicated that N.W.
had suffered abusive head trauma. The doctor opined that N.W.’s seizures had been caused
by the injuries to her tissue and the lack of oxygen that occurred with that type of injury.

Dr. Lankin said that doctors were unable to definitively determine precisely how old
the injures were but that they were no more than “a few days old.” She explained that, at
first, the radiologist reading the X-rays had opined that the fractures were a few days old
because he believed he saw that they were “healing.” Dr. Lankin explained, however, that
what looked like “healing” on the X-rays could also have been caused by hematomas forming
around the fractures, which would indicate that the injuries occurred much more recently than
“a few days.” The doctor said that after gathering N.W.’s medical history, and the statements
from her caregivers, she determined that all N.W.’s injuries occurred during one event within
72 hours of her first CT scan.

Dr. Lankin testified that the force required to cause N.W.’s injuries was so great that
any reasonable person would have recognized that it would have hurt or injured a child.
N.W.’s injuries were consistent with “Shaken Baby Syndrome,” and the injuries were life-
threatening.

On cross-examination, Dr. Lankin agreed that an infant can suffer skull fractures from
falling, including falling out of someone’s arms or off of a changing table. In most cases,
skull fractures heal by themselves without specific symptoms or consequences. The doctor
conceded that the skull fracture, by itself, could have been a result of a forceps extraction
during the child’s birth. She also agreed that an infant’s fever could be a “precipitating
factor” to the child suffering a seizure. Dr. Lankin testified that N.W.’s pediatric records
indicated that Jacqueline Elendt, N.W.’s mother, was her primary caretaker.

Calvin Walter Ware, the Defendant’s father, testified that he saw N.W. about three
times a month. He said N.W. was doing “pretty good . . . considering,” and was crawling and
talking. She, he said, seemed like a normal one-year-old child. On cross-examination, Ware
said he was unaware whether N.W. still took seizure medication, and he did not know if she
had been assessed for developmental delays or vision impairment.

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 Based upon this evidence, the jury convicted the Defendant of aggravated child abuse,
aggravated child neglect, and aggravated child endangerment. The trial court merged the
convictions, and sentenced the Defendant to sixteen years, to be served at 100%.

II. Analysis

On appeal, the Defendant contends that the evidence presented, which was
circumstantial, is insufficient to sustain his conviction and that the trial court made an
improper ruling during voir dire.

A. Sufficiency of Evidence

The Defendant contends that the evidence is insufficient to sustain his conviction. He
asserts that all the evidence against him is circumstantial and, while it may have proven he
was a suspect, it does not amount to evidence that he committed this crime beyond a
reasonable doubt. He contends that there were multiple people who had access to N.W.
during the time frame in which her injuries occurred, including Northam, Northam’s six-
year-old son, Northam’s boyfriend, and Elendt. The Defendant also notes that the main
testimony against him came from Elendt, who was legally considered an “accomplice.” The
State counters that both direct and circumstantial evidence supported the jury’s verdict that
the Defendant violently abused N.W.

It is well-established that once a jury finds a defendant guilty, his or her presumption
of innocence is removed and replaced with a presumption of guilt. State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the burden
of demonstrating to this Court why the evidence will not support the jury’s verdict. State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). To meet this burden, the defendant must establish that no “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); State v. Evans, 108 S.W.3d 231, 236 (Tenn.
2003); see also Tenn. R. App. P. 13(e). The jury’s verdict of guilt, approved by the trial
judge, accredits the State’s witnesses and resolves all conflicts in favor of the state. State v.
Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The State is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which may be drawn from that evidence.
Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of the witnesses,
conflicts in trial testimony, the weight and value to be given the evidence, and all factual
issues raised by the evidence are resolved by the trier of fact and not this court. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the
evidence. State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Likewise, we do not replace the
jury’s inferences drawn from the circumstantial evidence with our own inferences. State v.

6
Reid, 91 S.W.3d 247, 277 (Tenn. 2002).

The guilt of a defendant, as well as any fact required to be proved, may be established
by direct evidence, by circumstantial evidence, or by a combination of both. See State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Recently, in State v. Sisk,
our Supreme Court clarified the use of circumstantial evidence as a basis for a conviction.
343 S.W.3d 60, 65 (Tenn. 2011). In Sisk, the defendant was convicted of aggravated
burglary and theft at trial, primarily on the basis of circumstantial evidence. Id. at 63-64.
The circumstantial evidence involved a cigarette butt that was found at the scene and
contained a match to the defendant’s DNA. Id. On appeal, this Court reversed, holding that
the evidence was insufficient to support the convictions. Id. at *60. The State appealed,
arguing that the convictions should be reinstated. Id. On appeal our Supreme Court
chronicled the history of the use of convictions based on circumstantial evidence stating:

A criminal offense may, of course, be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973);
Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 456-58, 461 (1958).
Ultimately, however, the jury must decide the significance of the
circumstantial evidence, as well as “‘[t]he inferences to be drawn from such
evidence, and the extent to which the circumstances are consistent with guilt
and inconsistent with innocence.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (quoting Marable, 313 S.W.2d at 457). Appellate courts may not
substitute their own inferences for those drawn by factfinders in circumstantial
evidence cases. State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010).

Years ago, in State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610
(1971), this Court adopted a standard of proof in criminal prosecutions based
exclusively upon circumstantial evidence that purportedly required the State
to prove facts and circumstances “so strong and cogent as to exclude every
other reasonable hypothesis save the guilt of the defendant, and that beyond a
reasonable doubt.” Id. at 612. This Court also stated in Crawford that in such
cases, “[a] web of guilt must be woven around the defendant from which he
cannot escape and from which facts and circumstances the jury could draw no
other reasonable inference save the guilt of the defendant beyond a reasonable
doubt.” Id. at 613. This language was recited for years by Tennessee courts
as controlling in those cases in which the sufficiency of exclusively
circumstantial evidence was at issue; indeed, it was used by both the Court of
Criminal Appeals and the trial court in this case. See Sisk, 2010 WL 3502512,
at *2. In State v. James, 315 S.W.3d 440, 455 n.14 (Tenn. 2010), however, we
pointed out the inconsistency between the terminology employed in Crawford

7
 and its progeny and the standard of proof applied by the United States
Supreme Court in those cases in which the evidence is solely circumstantial.
See Jackson, 443 U.S. at 326, 99 S. Ct. 2781 (rejecting the notion “that the
prosecution [i]s under an affirmative duty to rule out every hypothesis except
that of guilt beyond a reasonable doubt”). Finally, in State v. Dorantes, 331
S.W.3d 370, 381 (Tenn. 2011), we adopted the federal standard in Tennessee
and eschewed any distinction between the standard of proof required in cases
based solely upon circumstantial evidence and that in cases where direct
evidence of guilt is presented by the State. Although we observed in Dorantes
that, as a practical matter, there was little difference between the federal
standard and the “reasonable hypothesis” language used in Crawford, we also
noted that, depending on the nature of the circumstantial evidence presented
at trial, the adoption of the federal standard of proof could result in a different
outcome in some cases. Id.

Id. at 65 (footnotes omitted). Based on that reasoning, our Supreme Court reinstated the
defendant’s convictions, finding:

The undamaged condition of the cigarette butt, Detective Grooms’
testimony that it was unlikely the cigarette had been tracked into the house and
that the victims themselves were not smokers, the proximity of the Defendant’s
residence to the burglarized house, the fact that the Defendant often was seen
smoking outside and had never been invited into the victims’ residence, and
the Defendant’s flight from police on January 3, 2007, all corroborate the
DNA evidence. While the intermediate appellate court posited that “[s]everal
plausible explanations for the presence of the defendant’s cigarette inside the
victims’ residence come to mind, including that the cigarette butt was ‘tracked’
into the residence,” Sisk, 2010 WL 3502512, at *3, our duty on appeal of a
conviction is not to contemplate all plausible inferences in the Defendant’s
favor, but to draw all reasonable inferences from the evidence in favor of the
State. Given Detective Grooms’ description of the cigarette butt and its
location [on the bottom of his shoe], it was perfectly reasonable for the jury to
believe the State’s theory that the Defendant had entered the victims’ residence
during the burglary and left the cigarette butt there. The evidence is sufficient
to support the jury’s verdict.

Id. at 67-68 (footnote omitted). By reinstating the convictions in Sisk, our Supreme Court
made clear that “[t]he standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” See State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275

8
(Tenn. 2009)).

Applying the analysis utilized in Sisk and Dorantes to the case herein, we review the
evidence at trial in a light most favorable to the State. To sustain the Defendant’s conviction
for aggravated child abuse, the State had to prove that the Defendant committed the offense
of child abuse or neglect, and the conduct resulted in serious bodily injury to the child. See
T.C.A. § 39-15-402(a)(1) (2009). Child abuse occurs when a person “knowingly, other than
by accidental means, treats a child under eighteen (18) years of age in such a manner as to
inflict injury.” T.C.A.§ 39-15-401(a) (2006). Bodily injury includes “a cut, abrasion, bruise,
burn or disfigurement, and physical pain or temporary illness or impairment of the function
of a bodily member, organ, or mental faculty . . . .” T.C.A. § 39-11-106(a)(2) (2006).
“‘Serious bodily’ injury means bodily injury that involves: [a] substantial risk of death;
[p]rotracted unconsciousness; [e]xtreme physical pain; [p]rotracted or obvious disfigurement;
or [p]rotracted loss or substantial impairment of a function of a bodily member, organ or
mental faculty[.]” T.C.A. § 39-11-106(a)(34)(A)-(E) (2006). The Tennessee Supreme Court,
in State v. Mateyko, described the child abuse and neglect statute as a single offense which
a defendant may commit “through one of two courses of conduct: child abuse through injury
and child abuse through neglect.” 53 S.W.3d 666, 668, n.1 (Tenn. 2001) (citing State v.
Hodges, 7 S.W.3d 609, 622 (Tenn. Crim. App. 1998)). Similarly, the State may establish
aggravated child abuse by either of these methods, in addition to serious bodily injury to the
child. T.C.A. § 39-15-402(a)(1) (2006); Hodges, 7 S.W.3d at 622-23; State v. Ducker, 27
S.W.3d 889, 895-96 (Tenn. 2000).

Doctors’ examinations of N.W. revealed that, in addition to fever and seizures, she
suffered bruises on her arms, torso, back, right thigh, above her right cheek and right eyelid,
and on her right ear. Seven of her ribs were fractured, on both her anterior and posterior
sides, and both her tibias and one of her femurs had “corner” fractures, which occurred when
the bone was twisted. N.W. suffered “extensive retinal hemorrhages” and extensive
hemorrhaging on both hemispheres of her brain. There was also a significant hematoma in
the area of her brain running between her two hemispheres. The doctor opined that N.W.’s
injuries indicated that she suffered abusive head trauma that was consistent with “Shaken
Baby Syndrome.” The doctors were unable to determine precisely when the injuries occurred
but definitively determined they occurred within 72 hours of her hospital admission.

The evidence also proved that the Defendant was not working during the time frame
in which N.W. was injured and that he cared for N.W. while N.W.’s mother, Elendt, was
working. Northam, the woman with whom the couple lived, testified that she did not babysit
N.W. during this time period and that the Defendant normally took care of N.W., even when
Elendt was home. Northam also recounted how, in the early morning hours before N.W.’s
hospital admission, Elendt came to her room seeking a thermometer to assess N.W.’s

9
temperature. Elendt implored the Defendant to take N.W., who was seizing and hot with
fever, to the hospital, and the Defendant stated his reluctance to seek medical treatment for
N.W. to both Elendt and Northam. After Elendt and the Defendant “argued” and after
Northam encouraged the Defendant to take N.W. to the hospital, the Defendant finally
acquiesced. When loading N.W. into the car to go to the hospital, the Defendant told Elendt
that it would be “him and her” if the hospital trip was unnecessary.

We conclude that a rational jury could have inferred that the Defendant’s reluctance
to seek medical treatment for N.W. indicated that he had hurt the child and did not want
doctors to examine her. In the 72 hours preceding N.W.’s hospitalization, the Defendant and
Elendt were N.W.’s caretakers and, by all accounts, the Defendant “had” N.W. even when
Elendt was home, and he kept N.W. when Elendt was working. Elendt testified before the
jury and denied hurting N.W. Hearing the evidence, the jury determined that the Defendant
was the only one who could have injured N.W., and we will not disturb their interpretation
of the evidence.

The Defendant specifically argues that his conviction cannot stand because it was
based largely upon his accomplice Elendt’s testimony. It is well-settled that in Tennessee,
“a conviction may not be based solely upon the uncorroborated testimony of an accomplice.”
State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). An accomplice is one “who knowingly,
voluntarily and with common intent unites with the principal offender[s] in the commission
of the crime.” State v. Ballinger, 93 S.W.3d 881, 887 (Tenn. Crim. App. 2001). When “a
witness denies involvement in the crime, the question of whether he or she is an accomplice
is one of fact to be submitted to the jury with proper instructions from the court on how to
consider such testimony.” Id. at 887-88.

The law in Tennessee regarding accomplice testimony has been described as follows:

The rule simply stated, is that there must be some fact testified to, entirely
independent of the accomplice’s testimony, which, taken by itself, leads to the
inference, not only that a crime has been committed, but also that the
defendant is implicated in it; and this independent corroborative testimony
must also include some fact establishing the defendant’s identity. This
corroborative evidence may be direct or entirely circumstantial, and it need not
be adequate, in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged. It is not necessary that
the corroboration extend to every part of the accomplice’s evidence.

Shaw, 37 S.W.3d at 903 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)

10
(citations omitted). Whether sufficient corroboration exists is a determination for the jury.
State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994).

In this case, Elendt denied that she harmed N.W. or that she knew the Defendant
harmed N.W. She testified that she pled guilty because she felt neglectful for returning to
the Defendant and leaving N.W. in the Defendant’s care. The court instructed the jury that
Elendt was an accomplice and charged the jury to find whether Elendt’s testimony had been
sufficiently corroborated. On appeal, we must presume that the jury followed the trial court’s
instructions. State v. Banks, 271 S.W.3d 90, 134 (Tenn. 2008). We presume the jury
properly considered Elendt’s testimony, along with the other testimony presented, and we
affirm the jury’s finding of guilt. Northam’s testimony corroborates Elendt’s testimony that
the Defendant was alone with N.W. immediately before the injuries. Therefore, the
Defendant is not entitled to relief on this issue.

B. Voir Dire

The Defendant next contends that the trial court erred when it sustained the State’s
objection preventing defense counsel from telling the jury that the crime for which the
Defendant was charged was the “most serious” felony. The State counters that the trial court
did not abuse its discretion in this regard.

During voir dire, the jury was sworn and the trial court instructed the jury on the
charges involved in the case, stating:

[Y]ou’ve been summoned as prospective jurors in a criminal case which
involves the alleged aggravated child abuse, aggravated child neglect and
aggravated child endangerment which allegedly occurred in Obion County.

The State’s attorney then introduced himself and gave a brief overview of the allegations
supporting the charges. The State’s attorney asked the venire if they knew any of the parties
involved, and then asked follow-up questions based upon their responses. The State’s
attorney then explained the “reasonable doubt” standard, and asked the jury if they could
follow this standard. The State’s attorney explained direct and circumstantial evidence, and
informed the jury that the victim’s mother had pled guilty to child abuse and would testify
against the Defendant. The State’s attorney informed the jury that this case involved child
abuse and asked if anyone had suffered abuse as a child. The trial court excused the two
jurors that responded affirmatively.

The Defendant’s counsel then introduced himself and responded to the State’s
example of circumstantial evidence and stated:

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 [Defendant’s counsel]: What if there’s not any evidence at all? You
can’t convict them - cannot convict without evidence? Could you convict,
convict them just because of the charge that they’re just charged with child
abuse? Do each of y’all realize that this is a Class A Felony?

I think we’ve tried several cases here during this term of court. We’ve
tried - I think I’ve tried all of them with y’all. I don’t think y’all have tried any
with anybody else. That’s unusual. It’s just how the cookie crumbles
sometimes. I think we’ve had an A Misdemeanor, a D Felony and a D Felony
and now we’ve got an A Felony. This is the most serious (inaudible). But this
is the most –

[State’s Attorney]: Can - can we approach?

(WHEREUPON, bench conference was held, to-wit:)

[State Attorney]: I mean, that’s not the truth. This is not the most
serious felony.

THE COURT: Objection sustained.

(WHEREUPON, bench conference was concluded.)

[Defense Counsel]: Would each of y’all agree with me that there are
several different kinds of felonies with E felonies being the least and A, of A
through E the A would be the most serous?

[State’s Attorney]: I’m still objecting. That’s –

[Defense Counsel]: I’d be happy to explain that a little bit better, Your
Honor –
[State’s Attorney]: Well, it’s an inappropriate –

[Defense Counsel]: – that there is –

(WHEREUPON, bench conference was held, to-wit:)

THE COURT: I thought I sustained the objection, did I not?

[Defense Counsel]: I am understand that there are A through E, with E -

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 with A being the most serious.

THE COURT: They know that. I tell them that during orientation.

[Defense Counsel]: You did?

THE COURT: yeah. I always do, every single time.

Article I, section 9 of the Tennessee Constitution guarantees a criminal defendant the
right to trial “by an impartial jury.” In fact, every accused is guaranteed “a trial by a jury free
of . . . disqualification on account of some bias or partiality toward one side or the other of
the litigation.” State v. Schmeiderer, 319 S.W.3d 607, 624-25 (Tenn. 2010) (citing State v.
Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993)). Thus, the function of voir dire is
essential. Id. Voir dire permits questioning by the court and counsel in order to lead
respective counsel to the intelligent exercise of challenges. Id. A trial court is vested with
great discretion in conducting the selection of a fair and impartial jury. State v. Howell, 868
S.W.2d 238, 247 (Tenn. 1993), cert. denied 510 U.S. 1215 (1994); State v. Harris, 839
S.W.2d 54, 65 (Tenn. 1992), cert. denied, 507 U.S. 954 (1993); see Tenn. R. Crim. P. 24(a).
Thus, this Court must uphold the trial court’s ruling unless the defendant establishes the
existence of a clear abuse of discretion. State v. Raspberry, 875 S.W.2d 678, 681 (Tenn.
Crim. App. 1993).

Although Rule 24(a) of the Tennessee Rules of Criminal Procedure provides that the
trial court “shall permit questioning by the parties for the purpose of discovering bases for
challenge for cause and enabling an intelligent exercise of peremptory challenges[,]” the trial
court, in the exercise of its discretion, controls the questions that can be asked to keep the
voir dire within relevant bounds. State v. Austin, 87 S.W.3d 447, 476 (Tenn. 2002).

In the case under submission, the statement posed to the jury, namely that this was the
“most serious felony” was not a question at all. It was not designed to elicit a response that
would assist counsel in the intelligent exercise of challenges. See Howell, 868 S.W.2d at
247. We conclude that the trial court did not abuse its discretion when it prohibited defense
counsel from telling the jury that the crime with which the Defendant was charged was the
“most serious felony” or explaining to the jury the grading of offenses. It appears from the
record that the defense counsel’s comment came after the defense attorney reminded the
venire that he had tried multiple cases in front of the venire. The trial court sustained the
objection, informing defense counsel that it had already instructed the jury on the grading of
offenses. The record also shows that defense counsel had ample opportunity to question the
jury about any potential biases. Therefore, the trial court did not abuse its discretion in this

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regard. The Defendant is not entitled to relief on this issue.

III. Conclusion

Having thoroughly reviewed the record and relevant authorities, we conclude that the
evidence is sufficient to sustain the Defendant’s conviction and that the trial court did not err
during voir dire. As such, we affirm the trial court’s judgment.

__________________________________
ROBERT W. WEDEMEYER, JUDGE

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