State of Tennessee v. LaQuenton Monger

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 6, 2001 Session

STATE OF TENNESSEE v. LAQUENTON MONGER

Direct Appeal from the Criminal Court for Shelby County
Nos. 98-01601, 98-01602 John P. Colton, Jr., Judge

No. W2000-00489-CCA-R3-CD - Filed August 27, 2001

The appellant, LaQuenton Monger, was convicted by a jury in the Shelby County Criminal Court
of one count of first degree felony murder by aggravated child abuse and one count of aggravated
child abuse. The trial court imposed concurrent sentences of life imprisonment in the Tennessee
Department of Correction for the felony murder conviction and twenty years imprisonment in the
Department for the aggravated child abuse conviction. On appeal, the appellant challenges the
sufficiency of the evidence underlying his conviction of felony murder and further challenges the
trial court’s failure to instruct the jury on lesser-included offenses of felony murder. Following a
thorough review of the record and the parties’ briefs, we reverse the appellant’s convictions of felony
murder and aggravated child abuse and remand the cases to the trial court for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Reversed and
Remanded.

NORMA MC GEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID H. WELLES, J., joined.

Edwin C. Lenow, Memphis, Tennessee, for the appellant, LaQuenton Monger.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
On February 10, 1998, a Shelby County Grand Jury returned indictments charging
the appellant with the first degree felony murder by aggravated child abuse of his seven-month-old
daughter, Quennisha Monger, between the dates of September 15, 1997, and September 17, 1997,
and the aggravated child abuse of Quennisha during the same time frame. The appellant’s case
proceeded to trial on November 2, 1999, concluding on November 5. At trial, the State established
that, on the evening of September 16, 1997, Quennisha and her twin brother Quentavious were
briefly in the sole care of the appellant. Specifically, the children’s mother, Kenisha Simmons, left
the Memphis apartment that she shared with the appellant at approximately 9:15 p.m. in order to pick
up her cousin, Utopia Sims, from school and to return videos to a Blockbuster store. She was
accompanied by the next-door neighbor’s daughter, Angela Averitt Hayes. Simmons and Hayes
returned home with Sims at approximately 10:00 p.m. Upon their return, Simmons learned that
Quennisha had stopped breathing, and the appellant had taken the baby to the next-door apartment
in search of assistance. Simmons entered the next-door apartment along with Hayes and Sims and
discovered Quennisha lying on the floor and the appellant speaking on the telephone with a 911
operator. Neither the police nor an ambulance had yet arrived.

Hayes recalled at trial that the scene was “chaotic.” Simmons immediately began
“crying and hollering,” and the appellant also appeared “kind of frantic and hysterical.” Hayes
attempted to console Simmons. Meanwhile, Sims approached Quennisha and noted that the baby
“was pale, her mouth like turned white.” She then went to Simmons and the appellant’s apartment
and retrieved Quentavious from the twins’ crib. Sims testified at trial that the baby boy appeared to
be unharmed.

The State further established that, sometime between 9:40 p.m. and 10:00 p.m. on
September 16, 1997, the appellant’s next-door neighbor, Gloria McKissack Wilson, was awakened
by someone knocking “rather hard” on her front door. When she opened her front door, she
discovered the appellant outside, carrying his infant daughter in his arms. The appellant requested
her assistance, stating that his daughter did not appear to be breathing. Upon confirming that
Quennisha was not breathing and attempting unsuccessfully to locate the baby’s pulse, Wilson
advised the appellant to call 911.

There ensued a series of efforts to resuscitate Quennisha. First, the 911 operator
guided the appellant in performing mouth-to-mouth resuscitation upon his daughter. The operator
was soon informed that the baby was responding to the appellant’s efforts in that she appeared to be
breathing once again and also had a pulse. Almost immediately thereafter, “a little bit before” 10:25
p.m., officers of the Memphis Police Department arrived. Officer James Sewell testified at the
appellant’s trial that, at this time, Quennisha was not breathing, nor did she have a pulse. The
officers unavailingly administered cardiopulmonary resuscitation (CPR) to Quennisha. Finally, at
approximately 10:31 p.m., paramedics employed by the Memphis Fire Department, including Gary
Garmon, arrived and continued the administration of CPR to Quennisha. Garmon confirmed at the
appellant’s trial that, at the time of the paramedics’ arrival, Quennisha was not breathing, and her
heart was not beating. However, he noted that Quennisha’s skin, although cool, was not yet cold;
her “color” was normal; and her pupils were not yet dilated. Moreover, upon performing an
electrocardiogram (EKG) on the baby, the paramedics discovered “electrical activity to the heart.”
Nevertheless, they too were unable to revive Quennisha, and she was ultimately pronounced dead
at a local hospital.

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 Wilson testified at the appellant’s trial that she observed the appellant’s efforts to
revive Quennisha. According to Wilson, the appellant appeared to follow the instructions of the 911
operator. Moreover, she asserted that, although she observed the appellant compress Quennisha’s
chest, she never observed the appellant use more than two fingers, and the appellant pushed on
Quennisha’s chest “pretty light[ly].” Wilson further observed, and it was undisputed at trial, that the
police officers and the paramedics likewise used two fingers when compressing Quennisha’s chest.
Wilson concluded that she never observed anyone push on Quennisha’s chest “with two hands the
way you might do on an adult” or otherwise “pound” on the baby’s chest.

On the night of Quennisha’s death, the appellant reported to Officer Jason Randolph
of the Memphis Police Department that there was “a gas leak in [his] apartment and he thought that
that was the reason the baby stopped breathing.” Moreover, an unidentified woman standing outside
Wilson’s apartment on the night in question reported to Officer Sewell that “apparently [there was
a] gas leak in the apartment [in which] the baby lived.” Finally, an unidentified woman standing
outside Wilson’s apartment informed Richard Waddell, a lieutenant with the Memphis Fire
Department, of a possible gas leak in the adjacent apartment. Waddell followed the woman next
door and investigated. He recounted at the appellant’s trial:
I went around like the appliances in the kitchen and things like that
to try to - - where you would check and maybe have gas leaks or any
kind of leaks like that in the apartments like the kitchen area, I
checked that out and I couldn’t detect anything.

Simmons testified at trial that Quennisha and Quentavious were in the care of their
grandmother during the day on September 16, 1997. She recalled that, when she collected the babies
that evening, they both appeared to be in normal health. Moreover, she related that, during the
ensuing evening, only the appellant had sole care of the babies for any length of time. She conceded
that the appellant regularly cared for the children at night and on weekends while she was at school
or working, and she had never previously noticed any injuries on either baby. However, she noted
that Quennisha had been exhibiting various unexplained physical and behavioral symptoms. For
example, Simmons recounted that, from the age of four months until her death, Quennisha
wouldn’t stand up like a normal little seven month will stand on their
knee - - on their feet and try to push up. She didn’t do none of that,
she always bend down and start crying like something was hurting
her.
Simmons also recalled that Quennisha “couldn’t keep no milk down, they changed her milk several
times and she still couldn’t keep it down.” Finally, Simmons remembered one occasion prior to her
daughter’s death when Quennisha “gagged” or briefly stopped breathing before resuming normal
respiration. Utopia Sims added at trial that, in the past, Quennisha had occasionally appeared to be
gasping for breath. On August 5, 1997, approximately one month prior to Quennisha’s death,
Simmons took her daughter to a Dr. Pisit for an examination but was informed that the baby was
healthy.

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 On the day following Quennisha’s death, Wendy Gunther, a forensic pathologist and
an assistant medical examiner for Shelby County, performed an autopsy on Quennisha’s body. In
performing the autopsy, Dr. Gunther first examined the exterior of Quennisha’s body. While she
observed no “obvious wounds on the baby’s body,” she did observe approximately one dozen
bruises, each measuring approximately one quarter of an inch, on the baby’s chest and abdomen.
The bruises extended from “a little above the nipple line towards the bottom of the ribs.” At trial,
she noted:
If I held the child with my hands, thumbs on her spine and my hands
in front my fingers roughly matched up to these bruises. I’d have to
shift my hands a couple of times to match all of them.
She opined that the bruises occurred prior to Quennisha’s “death,” i.e., prior to the baby’s loss of
blood pressure.

Dr. Gunther next conducted an internal examination of the baby’s body. Upon
incising both Quennisha’s chest and her abdomen, the doctor was “met by a gush of blood.” In all,
two fifths of the blood in Quennisha’s body had pooled in her chest and abdomen. With respect to
the baby’s abdomen, the doctor discovered that, in essence, “the whole liver had ruptured through
its center.” In other words, “the liver had broken in half.” Additionally, she observed “in the
abdomen . . . blood spots all over the small bowel, tiny blood spots as if little veins had given way.”
Finally, there was a “big spill of blood” in the mesentery, “the part of the body that connects the
blood supply to the guts.” Significantly, some of the blood pooled in the mesentery was “old blood,”
and there was scar tissue surrounding the “old blood crystal stuffed cells.” The presence of the “old
blood” and the scar tissue indicated that blood had pooled in Quennisha’s mesentery on several
previous occasions, including at least one occasion days or weeks prior to her death.

With respect to Quennisha’s chest, Dr. Gunther discovered a hole in the baby’s heart
that was larger than the diameter of a pencil. She recounted, “This hole had blood dissecting [or
pushing] into the heart tissue around its edges, suggesting that the heart had been under pressure, the
pressure had increased, the blood had dissected into the wall of the heart and the wall had given
way.” The doctor also discovered another hole in a major vein leading to the heart. The vein “had
blown open something like the way an inner tube on a bicycle blows open.” Finally, Dr. Gunther
discovered multiple rib fractures.

At trial, Dr. Gunther described to the jury in detail her findings relating to
Quennisha’s rib fractures:
The fractures that I found in the ribs were of at least three different
ages. The ribs that were primarily injured were ribs 5 through 10.
You have twelve ribs on each side, and incidentally women and men
have the same number of ribs. Ribs 1, 2, 3 and 4 which are up top,
weren’t injured at all. Rib 5, which starts right about at your nipple
or a little above it in the center which is where the top most bruise
was, is the first rib that I found injury in.

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 Six, 7, 8 and 9 were the worst injuries. And 10, which is coming
close to the edge of the ribs in front was slightly injured. Ribs 5 and
10 were hard to see the fracture because it had healed almost to the
point of disappearing, but you could see the angle where the rib was
bent abnormally. And if you look very closely you could see the little
wrinkle in the rib that showed the healing [site]. So ribs 5 and 10 had
fractured and healed weeks ago.

. . . Ribs 6 and 8 on the right and other ribs on the left had fractured
much more recently. . . .

They were fractures that would need to be 10 to 14 days old, and
could be as much as two or three weeks old. These areas had begun
to heal. But they’re weaker than normal bone and they will break
more easily, and three of them had broken again freshly.

So I had brand new rib fractures through healing re-fractures.
The doctor concluded that Quennisha had suffered a total number of ten or fifteen rib fractures
resulting from at least three separate acute injuries that occurred on at least three separate occasions,
including “just before death[,] at some period between 10 days and three weeks before death, and
at some period four to six weeks before death.”

With respect to the “fresh” rib fractures, Dr. Gunther further explained:
The reason I say they didn’t occur after death was there was blood
around them. A person doesn’t bleed around injuries unless they’re
alive, because when you’re dead you no longer have a blood pressure,
and without a blood pressure you don’t bleed.
She opined that the fresh rib fractures could have occurred within minutes or hours of Quennisha’s
death. However, she asserted that “[i]t seem[ed] most reasonable and likely” that the rib fractures,
the bruises, and the other recent injuries discovered in Quennisha’s abdomen and chest “happened
as part of one event,” in which case “they would have been sustained about the same time as death
or a few minutes prior.”

Specifically, Dr. Gunther concluded that “the mechanism of death which suggest[s]
itself is increasing pressure by the hands,” and she described the most likely sequence of events that
would result from the application of this “mechanism”:
As the pressure begins probably the first thing that happens is the
mesentery bleeds. And the second thing is those little veins pop on
the surface of the small bowel, because you start with the least and
you progress to the worst. And then probably the third thing that
happens is that the ribs re-fracture through the old fractures.

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 And then the fourth thing that happens probably is that the liver
ruptures. And the fifth thing is that the heart pops, and that hole is
bigger than a pencil, opens and the blood pours out and fills the
pericardial sack. And this does this until there’s so much pressure
that the superior vena cava has to rupture to release the pressure.
The doctor noted that the above five stages could occur fairly quickly “with intense sustain[ed]
increasing pressure, but it would not be instantaneous. It has to be time for each of those to rupture
in turn.”

Further addressing the timing of the injuries to Quennisha’s liver, heart, and “superior
vena cava,” Dr. Gunther testified at trial:
If at the time that the paramedic arrived to perform CPR on
Quennisha there was electrical activity in her heart and she was limp
but not stiff, and her pupils were not dilated and her fingers were not
blue and she had good color then she had been injured only minutes
before, at the outside something like ten minutes before because
without continuous CPR she was going to die.
Indeed, she noted that, even assuming the administration of CPR, the baby’s injuries “could not
permit life to be sustained . . . for more than minutes.”

That having been said, she remarked that she would be “very surprised” to learn that
Quennisha’s “color” was normal at the time the baby was examined by the paramedics because two
fifths of the blood in her body were pooled in her chest and abdomen. Moreover, Dr. Gunther
remarked that, in contrast to Garmon’s testimony at trial, his report indicated that, at the time of the
paramedics’ arrival, the “EKG showed asystole.” She explained that “asystole” “means the heart
is not attempting to beat at all,” i.e., electrical activity of the heart is absent. She conceded that the
“EKG strip” that was poorly photocopied onto the back of the report reflected “some sort of heart
activity.” However, she noted that the time recorded on the EKG strip was inconsistent with the time
during which Quennisha was reportedly in the care of the paramedics.

Dr. Gunther rejected the administration of CPR as a possible cause of Quennisha’s
injuries. Specifically addressing Quennisha’s rib fractures, she noted that children possess
“extremely elastic bones.” More importantly, she observed that Quennisha’s rib fractures were not
in locations common to injuries resulting from the administration of CPR, even “incorrectly
performed CPR.” Lastly, addressing all of Quennisha’s injuries, she remarked:
CPR must be performed for a reason. If these injuries were to follow
CPR as a result of CPR, which I do not believe they did, then the
child had to be almost dying for some other reason. There was no
other reason. There was no other injury. . . .

But in addition if CPR had been the cause of these injuries, which I
do not believe that it was, it would not explain why there were old
injuries.

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 Dr. Gunther acknowledged that, “[s]ince the new fractures fractured through the old
fractures, they would not have required as much pressure.” Accordingly, she conceded that,
[i]f the person grabbing the child in a panic state and rushing to see
maybe a neighbor had squeezed the child so hard that they burst her
ribs and liver and heart, then this could have happened that way. That
would [have] had to have been an extremely hard squeeze, but it
could have happened that way - - I was not there.
She reiterated, however, that a sufficient “squeeze” would not only have to be “extremely hard” but
would also entail “a sustained pressure.” She opined that Quennisha’s injuries were “non-
accidental.”

As to reports of a gas leak possibly associated with Quennisha’s death, Dr. Gunther
related that testing performed on the baby’s blood failed to detect the presence of poisonous gases,
including carbon monoxide. However, she conceded her uncertainty that the testing performed on
Quennisha’s blood was designed to detect Methane, the most common gas associated with leaks.
Nevertheless, she asserted that it was unlikely that a baby would die from Methane poisoning. The
doctor also conceded that, although she requested testing of the baby’s lungs for the presence of
natural gas, she never received a report setting forth the results of any such testing. She confirmed
that natural gas could cause a baby to stop breathing “if there’s so much of it in the room that it
pushes out the oxygen.”

Finally, the doctor opined at trial that the old fractures in Quennisha’s ribs had
occurred “by the same mechanism [that caused the new fractures,] which involves squeezing.”
Indeed, she noted her discovery of “cells holding crystals of old blood in the lungs” as well as the
mesentery and posited that the baby had previously been “squeezed until the ribs broke and blood
poured into the mesentery and some blood was spilled into the lungs.” She noted that squeezing a
crying child with sufficient pressure to break the child’s ribs could cause the child to “faint[] or
pass[] out and, therefore, stop[] crying.”

The doctor acknowledged that other explanations for the old rib fractures were
possible. For example, she testified that some of the older fractures could have occurred as a result
of the baby falling from a car seat onto the floorboard of a car. Nevertheless, she noted that such a
scenario was unlikely as “[m]ost children in the literature sustaining falls from much higher than a
car seat to a floor do not sustain rib fractures, leg fractures or arm fractures. A rare collar bone
fracture is almost the only fracture sustained by a child in a fall from less than six feet.”

Dr. Gunther confirmed that the older fractures in Quennisha’s ribs might have been
the cause of her refusal or inability to stand prior to her death, even when held up by family
members. The doctor explained that movement would be painful to a baby with rib fractures.
Additionally, if someone attempted to lift a baby with rib fractures, the pain would cause her to
respond by crying. Once the baby began crying, her pain would increase, and her legs might appear
to be “giving out.” The doctor added that the older rib fractures might have caused Quennisha to
have “some trouble breathing.” Moreover, she confirmed that

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 the bleeding in the mesentery probably would have made [Quennisha]
have a hard time taking food until it began to heal. She might have
been vomiting, she likely would have been fussy, she might have
been both hungry and then vomiting, which would have made her
more difficult to care for and would have made it more likely to
provoke punishment of her.

The appellant testified on his own behalf at trial. Preliminarily, he noted that,
approximately one month prior to his daughter’s death, she was thrown from her car seat onto the
floorboard of his car. In essence, the appellant asserted that he was unaware of any other possible
cause of his daughter’s older injuries. In particular, he denied ever striking his children or otherwise
abusing the children. Moreover, he stated that he had never seen Simmons mistreat either baby.

As to the instant offenses, the appellant confirmed that on September 16, 1997, his
wife left the apartment at approximately 9:15 p.m. or 9:20 p.m. His son began crying soon
thereafter. Accordingly, the appellant changed Quentavious’ diaper and gave him a bottle of
formula. Afterwards, the appellant checked on his daughter, who was sharing a crib with her twin.
The appellant recalled:
She had a blanket partially over her face, because she has a habit of
pulling the blanket over her face, you know, because I get up late at
night 2:00, 3:00 o’clock in the morning and she just had a habit of
pulling that blanket over her face, so I keep constantly pulling it
down. But anyway she - - I called her name a couple of times and she
didn’t answer me.

And then when I, you know, moved the blanket and picked her up she
was limp, you know, like lifeless. And I called her name and kept
calling her name, yet and still she wouldn’t respond. So I started
hitting her in her chest [with my hand] . . . .

....

I hel[d] her nose and I blew into her mouth real hard, and I kept
hitting her in her chest, and I know I turned her over and I hit her in
her back just in case she probably swallowed something or
something. But yet and still she still didn’t respond. So when - - I
grabbed and ran with her next door.

According to the appellant, he held his daughter “[w]ith his arms out” as he ran next
door. When he arrived at Wilson’s front door and while he was beating on the door, he placed
Quennisha in one arm. When Wilson responded to his knocks, the appellant informed her that
Quennisha had stopped breathing. Wilson indicated in turn that she was undressed and instructed
the appellant to hold his baby upside down and hit her on her back while Wilson obtained clothing.

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After dressing, Wilson examined Quennisha, attempting to discern whether the child was breathing
and to locate a pulse. When her efforts proved unsuccessful, Wilson instructed the appellant to call
911. The appellant confirmed at trial that the 911 operator guided him in performing mouth-to-
mouth resuscitation upon his daughter. However, he recalled that the operator failed to explain how
to perform chest compressions, and, accordingly, he pressed on his daughter’s chest with his entire
hand. The appellant conceded that he did not press on Quennisha’s chest hard enough “to blow a
hole in her heart.”

At the conclusion of the trial, the jury found the appellant guilty of first degree felony
murder by aggravated child abuse and aggravated child abuse. Because the State sought neither the
death penalty nor a sentence of life imprisonment without parole for the offense of felony murder,
the trial court sentenced the appellant to life imprisonment in the Tennessee Department of
Correction for that offense. The trial court imposed a concurrent sentence of twenty years
imprisonment in the Department for the offense of aggravated child abuse.

II. Analysis
A. Plain Error
Before resolving the issues raised by the appellant in this appeal, we are compelled
to address an error that plainly appears in the record before the court and has affected the substantial
rights of the appellant. Tenn. R. Crim. P. 52(b); State v. Smith, 24 S.W.3d 274, 282-283 (Tenn.
2000); see also State v. Kennedy, 7 S.W.3d 58, 70 (Tenn. Crim. App. 1999); State v. Epps, 989
S.W.2d 742, 745-746 (Tenn. Crim. App. 1998). Namely, the appellant’s dual convictions of first
degree felony murder by aggravated child abuse and aggravated child abuse effect multiple
punishments for the same offense thereby violating constitutional prohibitions against double
jeopardy.

The Fifth Amendment to the United States Constitution guarantees that no person
shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This prohibition
against double jeopardy is applicable to the states through the Fourteenth Amendment. Benton v.
Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062 (1969); State v. Howard, 30 S.W.3d 271, 277
n.7 (Tenn. 2000). Additionally, Article 1, Section 10 of the Tennessee Constitution provides in
almost identical language that “no person shall, for the same offense, be twice put in jeopardy of life
or limb.” In State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996), our supreme court reiterated the
three fundamental principles underlying federal and state constitutional guarantees against double
jeopardy: (1) protection against a second prosecution after acquittal; (2) protection against a second
prosecution after conviction; and (3) protection against multiple punishments for the “same” offense.
Again, this case implicates the protection against multiple punishments for the “same” offense.

The court in Denton set forth clear guidelines governing the “resolution of a double
jeopardy punishment issue under the Tennessee Constitution.” Id. at 379-381. In so doing, the court
required an inquiry more extensive than that required by the federal constitution. Id. at 381 n. 15;
State v. Winningham, 958 S.W.2d 740, 743 (Tenn. 1997). In summary, in order to determine under

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the Tennessee Constitution whether two offenses are the “same” for double jeopardy purposes and
therefore preclude multiple punishments, a court must conduct:
1. an analysis of the statutory offenses under Blockburger v. United
States[, 284 U.S. 299, 52 S. Ct. 180 (1932),] to determine “whether
each provision requires proof of an additional fact which the other
does not”;
2. an analysis, guided by the principals of Duchac v. State[, 505
S.W.2d 237 (Tenn. 1973),] of whether the same evidence is required
to prove each offense;
3. a consideration of whether there were multiple victims or discrete
acts; and
4. a comparison of the purposes of the respective statutes.
State v. Barney, 986 S.W.2d 545, 549 (Tenn. 1999) (footnotes omitted); see also Denton, 938
S.W.2d at 379-381.

None of the above factors is necessarily determinative, Denton, 938 S.W.2d at 381,
but our supreme court has emphasized that “[t]he key issue in multiple punishment cases is
legislative intent.” Denton, 938 S.W.2d at 379; see also Barney, 986 S.W.2d at 549. Indeed,
although passing Blockburger scrutiny is generally required under the federal Double Jeopardy
Clause, Winningham, 958 S.W.2d at 743; State v. Hayes, 7 S.W.3d 52, 55 (Tenn. Crim. App. 1999),
the United States Supreme Court has stated:
Where . . . a legislature specifically authorizes cumulative punishment
under two statutes, regardless of whether those two statutes proscribe
the “same” conduct under Blockburger, a court’s task of statutory
construction is at an end and the prosecution may seek and the trial
court or jury may impose cumulative punishment under such statutes
in a single trial.
Missouri v. Hunter, 459 U.S. 359, 368-369, 103 S. Ct. 673, 679 (1983). Correspondingly, Tennessee
courts have consistently held that, “when legislative intent is clear, a defendant may be separately
convicted of two offenses which arise from one criminal transaction.” State v. Ralph, 6 S.W.3d 251,
256 (Tenn. 1999).

An example pertinent to the instant case is our supreme court’s holding in State v.
Blackburn, 694 S.W.2d 934, 937 (Tenn. 1985), that a defendant may be convicted of both felony
murder and the underlying felony because “‘[n]othing in the statutory definitions of murder in the
first degree and of the [underlying] felonies . . . indicates a legislative intent that conviction and
punishment for both offenses should not be permitted.’” See also State v. Hall, 976 S.W.2d 121, 171
(Tenn. 1998)(appendix). Of course, at the time of the supreme court’s holding in Blackburn, the
killing of a child by aggravated child abuse was not included in the first degree murder statute. In
contrast to its holding in Blackburn, our supreme court in State v. Ducker, 27 S.W.3d 889, 893
(Tenn. 2000), cert. denied, __ U.S. __, 121 S. Ct. 1202 (2001), explained the intent underlying the
legislature’s later codification of the reckless killing of a child by aggravated child abuse as first
degree murder:

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 [A] legislative intent to permit dual convictions and sentences for
both felony murder and the predicate felony does not appear to be
present under the reckless killing of a child provision in Tenn. Code
Ann. § 39-13-202(a)(4) (1994). The legislature originally codified
the reckless killing of a child by aggravated child abuse in response
to [the public outcry following the conviction of Kerry Phillip Bowers
of the lesser offense of second degree murder of Scotty Trexler. See
State v. Kerry Phillip Bowers, No. 115, 1989 WL 86576 (Tenn. Crim.
App. at Knoxville, August 2, 1989).] This codification was known
as the “Scotty Trexler Law.” The intent of the Scotty Trexler Law
was not to permit dual convictions but to punish the reckless killing
of a child as first degree murder.

In a footnote, the court limited its dual conviction analysis to the first degree murder
statute in effect in 1994, id. at 893 n.2, noting that the reckless killing of a child by aggravated child
abuse was contained in a subsection separate from the general felony murder subsection. More
recently, however, in State v. Bobby G. Godsey, No. E1997-00207-CCA-R3-DD, 2000 WL
1337655, at *29 (Tenn. Crim. App. at Knoxville, September 18, 2000), perm. to appeal granted,
(Tenn. 2001), this court specifically addressed the 1995 amendment to the first degree murder statute
that simply added aggravated child abuse to the general felony murder subsection: “The legislative
history of the 1995 amendment to the first degree murder statute suggests that the objective was to
increase the degree of the penalty [for aggravated child abuse resulting in the death of the child], not
to implement an additional penalty.” In other words, the legislative objective of the 1995
Amendment was “to deter the commission of [aggravated child abuse] by holding the perpetrator
accountable for any death that might result.” Id. at *11. We also noted that, in contrast to the other
felonies enumerated in Tenn. Code Ann. § 39-13-202(a)(2) (1997), aggravated child abuse may be
a lesser-included offense of homicide. Godsey, No. E1997-00207-CCA-R3-DD, 2000 WL 1337655,
at **28-30 (citing Tenn. Code Ann. § 39-15-401(d) (1997)). But see Ducker, 27 S.W.3d at 893 n.1;
State v. Cornelius Michael Hyde, No. E2000-00042-CCA-R3-CD, 2000 WL 1877490, at *8 n.1
(Tenn. Crim. App. at Knoxville, December 28, 2000). Accordingly, we concluded in Godsey, No.
E1997-00207-CCA-R3-DD, 2000 WL 1337655, at *30, that, “[b]ecause the legislature did not
clearly intend a cumulative punishment for aggravated child abuse where there is a conviction and
punishment for first degree felony murder arising out of the same aggravated child abuse, the
defendant’s conviction for the former must be set aside.” See also State v. Benjamin Brown, No.
W1999-00327-CCA-R3-CD, 2000 WL 1664226, at **7-8 (Tenn. Crim. App. at Jackson, October
24, 2000)(defendant’s convictions of both first degree felony murder by aggravated child abuse and
aggravated child abuse violated principles of double jeopardy relating to multiple punishments for
the same offense).

Keeping in mind both our supreme court’s opinion in Ducker and our holding in
Godsey, we turn to the application of the guidelines set forth by our supreme court in Denton, 938
S.W.2d at 379-381, to the instant case. Initially, as charged in the indictment in this case, the offense
of first degree felony murder by aggravated child abuse comprised the following essential elements:

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(1) the appellant killed Quennisha; (2) the killing was committed in the perpetration of aggravated
child abuse; and (3) the appellant intended to commit aggravated child abuse. Tenn. Code Ann. §
39-13-202(a)(2) & (b); T.P.I. Crim. No. 7.03(b) (4th ed. 1995). Thus, in order to obtain a conviction
of first degree felony murder by aggravated child abuse, the State had to prove the appellant’s guilt
of aggravated child abuse. In relevant part, Tenn. Code Ann. § 39-15-402(a) (1997) provides that
a person commits the offense of aggravated child abuse who knowingly, other than by accidental
means, treats a child under eighteen years of age in such a manner as to inflict serious bodily injury.
See also Tenn. Code Ann. § 39-15-401(a) (1997). That having been said, in the separate indictment
charging the appellant with aggravated child abuse, the State sought to enhance the offense to a class
A felony. Accordingly, in order to obtain a conviction of aggravated child abuse, the State was also
required to prove beyond a reasonable doubt that Quennisha was six years of age or younger. Tenn.
Code Ann. § 39-15-402(b). In short, as required by Blockburger, 284 U.S. at 304, 52 S. Ct. at 182,
each offense does require proof of an additional fact which the other does not.

Nevertheless, while the offenses of first degree felony murder by aggravated child
abuse and aggravated child abuse pass Blockburger scrutiny, the remaining three prongs of the
Denton analysis point to a double jeopardy violation. It is apparent from the State’s closing
argument that it relied upon the same evidence to prove both offenses. Moreover, the record reflects
that there was only one victim, and the pathologist testified at trial that “[i]t seem[ed] most
reasonable and likely” that the baby’s recent injuries and consequent death “happened as part of one
event,” i.e., “increasing pressure by the hands.” Finally and most importantly, the legislature was
addressing the same evil, i.e., the aggravated abuse of a child, in codifying both first degree felony
murder by aggravated child abuse and aggravated child abuse. Godsey, No. E1997-00207-CCA-R3-
DD, 2000 WL 1337655, at *30.

In sum, we conclude that, under the Denton analysis, “only one offense was
committed and only one conviction may stand.” Brown, No. W1999-00327-CCA-R3-CD, 2000 WL
1664226, at *8. “Upon a finding that two convictions cannot both stand, the conviction for the
greater offense must stand and that for the lower offense must be vacated.” State v. Beard, 818
S.W.2d 376, 379 (Tenn. Crim. App. 1991); see also State v. Jeffery Eugene Wright, No. M1999-
00647-CCA-R3-CD, 2000 WL 264224, at *4 (Tenn. Crim. App. at Nashville, March 10, 2000).
Accordingly, we reverse the appellant’s conviction of aggravated child abuse.

B. Sufficiency of the Evidence
As to the issues raised by the appellant in this appeal, the appellant first challenges
the sufficiency of the evidence underlying his conviction of first degree felony murder by aggravated
child abuse. In order to prevail, the appellant must demonstrate to this court that no “rational trier
of fact” could have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Tenn. R. App. P. 13(e). In other words, on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State
v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). All factual issues raised by the evidence, including
questions concerning the credibility of witnesses and the weight and value to be given the evidence,

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are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990). These standards apply to convictions based upon direct evidence, circumstantial
evidence, or both. State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000); State v. Vann, 976 S.W.2d
93, 111-112 (Tenn. 1998)(appendix). Thus, as in the case of direct evidence, the weight to be given
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.’” Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958).

The State’s evidence in this case was wholly circumstantial. Accordingly, at trial, the
State was required “‘to exclude every other reasonable hypothesis save the guilt of the defendant,
and that beyond a reasonable doubt.’” Hall, 976 S.W.2d at 140 (appendix). Once again, the guilt
of the appellant of first degree felony murder by aggravated child abuse required findings by the jury
that the appellant killed Quennisha in the perpetration of aggravated child abuse, i.e., while
knowingly, other than by accidental means, treating her in such a manner as to inflict serious bodily
injury, 1 and that the appellant intended to commit aggravated child abuse. Tenn. Code Ann. § 39-13-
202(a)(2) & (b); Tenn. Code Ann. § 39-15-402(a); Tenn. Code Ann. § 39-15-401(a).

The appellant argues that the State failed to meet its burden of proof at trial because
Dr. Gunther’s testimony demonstrated that Quennisha was not in the care of the appellant at the time
she received the injuries in her chest and abdomen. Specifically, the appellant cites Dr. Gunther’s
testimony that, if paramedics examining Quennisha at 10:30 p.m. observed normal skin color and
pupils that were not yet dilated and further discovered electrical activity in the baby’s heart,
Quennisha must have received her injuries “at the outside something like 10 minutes before.” As

1
Specifically addressing the requisite nexus in the proof between the causation of death and the perpetration
of the underlying felony, our supreme court has recently remarked:
This Court has previously considered how the statutory phrase, “in the perpetration
of,” should be defined in the fe lony murde r context. See, e.g., State v. Buggs, 995
S.W.2d 102, 10 7 (Tenn . 1999); Farmer v. S tate, . . . 296 S.W .2d 879 ([Tenn.]
1956). For example, in Farmer, this Court explained that for a killing to occu r “in
the perpetration of” a felony so that the felony murder rule applies, the killing must
be done “in pursuance of the [felony], and not collateral to it. In other words, the
killing must have had an intima te relation and close c onnection with the felony . .
. and not be separate, d istinct, and inde penden t from it . . . .” Farmer, . . . 296
S.W.2d at 883 . . . . In addition, there must be a causal connection between the
felony and the killing. Farmer, . . . 296 S.W.2d at 884.

More recently, we rec ognized th at when dete rmining whether a killing is “in the
perpetration of” a felony cour ts in Tennessee have considered such factors as time,
place, and causa l connection . Buggs, 995 S.W .2d at 106 . We stressed in Buggs
that a killing “may precede, coincide with, or follow a fe lony and still be considered
as occurring ‘in the perpetr ation of’ the felon y, so long as ther e is a connec tion in
time, place, [c ausation,] and continuity of actio n.”
State v. Pierce, 23 S.W .3d 289 , 294 (T enn. 200 0)(alteration in original); see also State v. Patric k Winga te, No. M1999-
00624-CCA-R3-CD, 2000 WL 680388 , at *7 (Tenn. Crim. App. at Nashville, M ay 25, 20 00), perm. to appeal denied,
(Tenn. 2000).

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noted earlier, the police were administering CPR to Quennisha during the larger part of the ten
minutes preceding the paramedics’ arrival. Arguably, Dr. Gunther suggested that the administration
of CPR to Quennisha prior to the paramedics’ arrival might expand her estimation by minutes.
However, for at least twenty-five or thirty minutes prior to the arrival of police, the appellant was
attempting to provide care to his daughter in the presence of his neighbor. Moreover, the 911
operator was informed during this time period that Quennisha appeared to be breathing and had a
pulse.

Nevertheless, Dr. Gunther’s estimation of the time at which Quennisha’s injuries were
inflicted assumed the accuracy of paramedic Gary Garmon’s testimony concerning Quennisha’s
appearance and the presence of electrical activity in her heart at the time of Garmon’s arrival at
Wilson’s apartment. The jury was entitled to disbelieve Garmon’s testimony, particularly in light
of Dr. Gunther’s remark concerning her surprise that the color of Quennisha’s skin was normal at
the time of Garmon’s arrival, Utopia Sims’ testimony that the baby “was pale, her mouth like turned
white” one-half hour prior to Garmon’s arrival, and the notation in Garmon’s report that the “EKG
showed asystole.” Similarly, in light of Sims’ testimony and the chaotic atmosphere in Wilson’s
apartment immediately prior to the arrival of the police, the jury was entitled to discount the report
to the 911 operator that Quennisha briefly revived in response to the appellant’s efforts at
resuscitation. According deference to the jury’s resolution of questions concerning the credibility
of witnesses and the weight and value to be given the evidence, the remaining facts and
circumstances of this case are “so closely interwoven and connected that the finger of guilt is pointed
unerringly at the defendant.” State v. Crawford, 470 S.W.2d 610, 613 (Tenn. 1971); State v.
Adams, 916 S.W.2d 471, 476 (Tenn. Crim. App. 1995).

In summary, we reiterate that, earlier on the evening of her death, Quennisha appeared
to be in normal health. Thereafter, only the appellant had sole care of Quennisha and her brother for
any length of time. Indeed, the appellant had sole care of Quennisha when he sought Wilson’s
assistance because the baby had stopped breathing. Dr. Gunther testified that Quennisha’s death
would have occurred within minutes of the infliction of the injuries in the baby’s chest and abdomen.
The doctor rejected CPR as the cause of the injuries. Also, while she acknowledged that
Quennisha’s injuries could have been caused by the appellant grabbing the baby in panic and
carrying her to the next-door apartment, the doctor noted that the appellant would have had to exert
a sustained pressure sufficient to “burst [Quennisha’s] ribs and liver and heart.” Moreover, she
emphasized that she was unable to detect any reason other than Quennisha’s injuries for the baby’s
respiratory arrest and noted the presence of older injuries. State v. DuBose, 953 S.W.2d 649, 654
(Tenn. 1997). Accordingly, she opined that the injuries in Quennisha’s chest and abdomen were
non-accidental. Indeed, the only alternate explanations extractable from the evidence for
Quennisha’s respiratory arrest were the claims of the appellant and an unidentified woman
concerning a phantom gas leak in the appellant’s apartment and the claim of the appellant that, on
the night in question, Quennisha had pulled her blanket over her face. Assuming, as we must, that
the jury declined to accredit these claims, the circumstantial evidence was more than sufficient to
support the jury’s finding that the appellant killed Quennisha while intentionally committing
aggravated child abuse. This issue is without merit.

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C. Lesser-Included Offenses
Finally, the appellant challenges the trial court’s refusal to charge lesser-included
offenses of felony murder. We initially note the absence in the record of any request by the appellant
that the trial court charge lesser-included offenses of felony murder. Moreover, the record reflects
that, at the conclusion of the parties’ presentation of proof, the trial court discussed with counsel for
both the State and the appellant “whether or not [t]he [trial c]ourt was going to charge down below
murder in the perpetration of aggravated child abuse. And [the court] indicated that [it] w[as] not,
and that was accepted by both.” Nevertheless, a trial court’s duty to charge a jury as to the law of
each offense included in an indictment exists regardless of any request or objection by the appellant.
See, e.g., State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999); Tenn. Code Ann. § 40-18-110(a) (1997).
Indeed, the trial court’s duty exists regardless of any express agreement by the appellant to the
omission from the jury charge of instructions on lesser-included offenses. In this regard, our
supreme court has quoted with approval the following observation by the California Supreme Court:
“A trial court’s failure to inform the jury of its option to find the
defendant guilty of [a] lesser offense would impair the jury’s truth-
ascertainment function. Consequently, neither the prosecution nor the
defense should be allowed, based on their trial strategy, to preclude
the jury from considering guilt of a lesser offense included in the
crime charged. To permit this would force the jury to make an ‘all or
nothing’ choice between conviction of the crime charged or complete
acquittal, thereby denying the jury the opportunity to decide whether
the defendant is guilty of a lesser included offense established by the
evidence.”
State v. Bolden, 979 S.W.2d 587, 593 (Tenn. 1998)(quoting People v. Barton, 906 P.2d 531, 536
(Cal. 1995)).

Turning to the merits of the appellant’s claim, our supreme court recently held in
State v. Curtis Jason Ely, Nos. E1998-00099-SC-R11-CD & E1999-00170-SC-R11-CD, 2001 WL
605097 (Tenn. at Knoxville, June 5, 2001)(publication pending), that the offenses of second degree
murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony
murder. Id. at *9. However, we must still determine whether the evidence in the appellant’s case
warranted a jury instruction on these lesser-included offenses. In making this determination, a court
“must view the evidence liberally in the light most favorable to the existence of the lesser-included
offense[s] without making any judgments on the credibility of such evidence.” Burns, 6 S.W.3d at
469. If, when viewed in this light, “evidence exists that reasonable minds could accept as to the
lesser-included offense[s]” and this evidence is legally sufficient to support convictions of the lesser-
included offenses, the evidence will warrant instructions thereon. Id.

Applying the above test to the instant case, we preliminarily note that the distinction
between first degree felony murder and its lesser-included offenses lies in the requisite culpable
mental states. Ely, Nos. E1998-00099-SC-R11-CD & E1999-00170-SC-R11-CD, 2001 WL 605097,
at *9. Whereas the offense of first degree felony murder by aggravated child abuse requires an intent
to commit aggravated child abuse, Tenn. Code Ann. § 39-13-202(b), the offense of second degree

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murder requires a knowing killing of another, Tenn. Code Ann. § 39-13-210 (1997). “A person acts
knowingly with respect to a result of the person’s conduct when the person is aware that the conduct
is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b) (1997). Alternatively,
reckless homicide requires a reckless killing of another. Tenn. Code Ann. § 39-13-215 (1997).
“‘Reckless’ refers to a person who acts recklessly with respect to . . . the result of [his] conduct when
the person is aware of but consciously disregards a substantial and unjustifiable risk that . . . the
result will occur.” Tenn. Code Ann. § 39-11-302(c). Finally, criminally negligent homicide entails
criminally negligent conduct that results in death. Tenn. Code Ann. § 39-13-212 (1997). “‘Criminal
negligence’ refers to a person who acts with criminal negligence with respect to the . . . result of [his]
conduct when the person ought to be aware of a substantial and unjustifiable risk that the . . . result
will occur.” Tenn. Code Ann. § 39-11-302(d). In cases of reckless homicide and criminally
negligent homicide, the risk “must be of such a nature and degree” that its disregard or the failure
to perceive it, respectively, “constitutes a gross deviation from the standard of care that an ordinary
person would exercise under all the circumstances as viewed from the accused person’s standpoint.”
Id. at (c) & (d).

Reviewing once again the evidence adduced at the appellant’s trial, we reiterate that
the weight to be given 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.’” Marable, 313 S.W.2d at 457. We have already
determined that a rational jury could have found that the circumstantial evidence adduced at trial
excluded every reasonable hypothesis save the appellant’s intentional commission of aggravated
child abuse thereby causing Quennisha’s death. However, a rational jury could also have found that,
regardless of whether the appellant intended to engage in abusive conduct, “at least” he was aware
that his conduct was reasonably certain to cause Quennisha’s death, or he was aware of but
consciously disregarded a substantial and unjustifiable risk that death would occur, or he ought to
have been aware of a substantial and unjustifiable risk that death would occur. Ely, Nos. E1998-
00099-SC-R11-CD & E1999-00170-SC-R11-CD, 2001 WL 605097, at *12. In short, the absence
of any intent to commit aggravated child abuse is not an essential element of second degree murder,
reckless homicide, or criminally negligent homicide. Therefore, whether the evidence at trial
established the appellant’s intent to commit aggravated child abuse is immaterial when determining
whether sufficient evidence exists supporting the appellant’s guilt of the lesser-included offenses of
first degree felony murder. State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000); see also, e.g., Burns,
6 S.W.3d at 471-472 (observing that “[w]hether sufficient evidence supports a conviction of the
charged offense does not affect the trial court’s duty to instruct on the lesser offense if evidence also
supports a finding of guilt on the lesser offense”). Accordingly, the trial court’s failure in this case
to instruct the jury on the lesser-included offenses of first degree felony murder was error. Cf. State
v. Mitchell Shephard, No. E2000-00628-CCA-R3-CD, 2001 WL 767010, at *9 (Tenn. Crim. App.
at Knoxville, July 3, 2001).

Finally, as in Ely, Nos. E1998-00099-SC-R11-CD & E1999-00170-SC-R11-CD,
2001 WL 605097, at *14,

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 the jury in this case was given no option to convict of a lesser offense
than felony murder. Although the evidence clearly was sufficient to
support a conviction for second degree murder, reckless homicide, or
criminally negligent homicide, the jury was not given an opportunity
to reach a decision on these offenses. Under these circumstances, we
cannot say the failure to instruct on the lesser-included offenses was
harmless beyond a reasonable doubt.

III. Conclusion
For the foregoing reasons, we reverse the appellant’s convictions of first degree
felony murder by aggravated child abuse and aggravated child abuse and remand the cases to the trial
court for a new trial with the further caution that the trial court keep in mind the double jeopardy
concerns addressed in this opinion.

___________________________________
NORMA McGEE OGLE, JUDGE

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