IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
February 10, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9801-CC-00044
Appellee, )
) LINCOLN COUNTY
VS. )
) HON. CHARLES LEE,
JEFFERY EARL HOLDER, ) JUDGE
)
Appellant. ) (Aggravated Child Abuse)
FOR THE APPELLANT: FOR THE APPELLEE:
N. ANDY MYRICK, JR. JOHN KNOX WALKUP
116 W. Market Street Attorney General and Reporter
Fayetteville, TN 37334
DARYL J. BRAND
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
W. MICHAEL McCOWN
District Attorney General
WEAKLEY E. BARNARD
Assistant District Attorney General
Marshall County Courthouse
Room 407
Lewisburg, TN 37091
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Jeffery Earl Holder, appeals as of right his conviction by a
Lincoln County jury of aggravated abuse of a child six years of age or less. He
was sentenced as a Range I, standard offender to twenty-five years
incarceration for this Class A felony. On appeal, the defendant raises the
following issues:
1. Whether the trial court erred in failing to suppress his
sworn statement to the police;
2. Whether the trial court erred in admitting photographs
of the victim's injuries;
3. Whether the evidence is sufficient to support the verdict; and
4. Whether his sentence is excessive.
Upon our review of the record, the judgment of the trial court is AFFIRMED.
FACTS
At approximately 8:00 on Saturday evening, November 2, 1996, the
defendant staged a one car “accident” to account for serious head injuries which
had been inflicted on his five-month-old daughter (hereinafter referred to as
“victim”). The defendant drove his car off the road and into a ditch with the victim
strapped into a car seat in the back. There were no other passengers in the
defendant’s car. The “accident” occurred in Hazel Green, Alabama, not far from
defendant’s residence in Lincoln County, Tennessee.
Paramedic Jerry Burgess arrived at the scene. He saw no skid marks but
found the victim in the car. He described her condition as “blue and [she] didn't
appear to be breathing” and appeared to have suffered head trauma. Because
of the seriousness of her condition, she was flown by helicopter from the scene
of the accident to the hospital in Huntsville, Alabama. The defendant was taken
to the hospital by ambulance.
At the scene, defendant told Thomas Glenn Taylor, Jr., an Alabama state
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trooper, that he had fallen asleep at the wheel and run off the road. Like
Burgess, Taylor saw no skid marks.
Rony Najjar, a trauma surgeon, treated the victim upon her arrival
at the hospital. Her condition was critical, and her injuries life-threatening. His
“examination of the child revealed what appeared to be a severe trauma to the
head, with multiple bruises in the head region and the face area and the bridge
of the nose, the front of the head, the side of the head, especially the right side.”
It was “unlikely” that these injuries had been caused by a single drop.
Mark Weeks, a family practice physician, treated the victim nine times
from December 1996 through April 1997. He testified that the head injuries had
caused damage to the left arm and hand. He further testified that her speech
and vision would be affected in the future, that there was a possibility that her
ability to walk would be affected, that retardation was possible, and that her
ability to ever hold a permanent job was “[v]ery unlikely.”
Tennessee Bureau of Investigation (“TBI”) Special Agent, Donna Pence,
testified that she arrived at the hospital at approximately 2:30 a.m. on the night of
the accident. She observed the child and then met with the defendant and
advised him of his rights. He signed a rights waiver form and told her that he
was sleepy and groggy while driving and had the accident. Shortly thereafter,
Agent Pence overheard the defendant tell his wife, Sheila Holder, that he had
gotten dizzy at home and accidentally dropped the baby on the floor. In the
course of their discussions, defendant agreed to participate in later questioning
at TBI headquarters.
Defendant’s car was impounded after the wreck, so the Holders did not
have a way home. Officer Joyce McConnell had driven to the hospital with
Agent Pence. The officers offered the Holders a ride which they accepted. They
arrived home at approximately 6:30 a.m. Pence and McConnell returned to the
Holder residence at 8:45 a.m. the same morning to take them to TBI
headquarters for additional questioning. When no one responded to their
knocks, they left. They returned twice at about 9:30 and at 11:30 a.m. before the
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Holders answered the door. Defendant indicated he was still willing to
cooperate.
The four drove to TBI headquarters in Nashville and arrived at about 2:00
p.m. Sunday afternoon, November 3, 1996. Defendant was again advised of his
rights. He signed a second rights waiver and gave a sworn statement to Agent
Pence at 5:30 p.m. on November 3, 1996, in which he admitted his guilt and
described hitting his daughter several times with his fist. In the statement,
defendant explained that he “freaked” when he saw her head swelling and
worried about how to explain her injuries. He put her in the car and went to pick
up his wife when he decided to stage the accident.
Court transportation officer, Jeff Miller, testified that while driving the
defendant, defendant said he had taken “acid” and saw “bugs and monsters on
the child” and began beating them off of her. Defendant gave the same
explanation to Sheila Holder on one occasion and in two letters he wrote: one to
her and one to her lawyer.
The defendant did not testify at trial but put on two neighbors who testified
that they never saw defendant abuse the baby. He also introduced two letters
written by Sheila Holder in which she took responsibility for the victim’s injuries.
Holder testified she wrote the letters only to help the defendant. She denied at
trial that she inflicted the injuries.
MOTION TO SUPPRESS
In his first issue the defendant contends that his written statement should
have been suppressed because he had been deprived of sleep, was in a state of
shock, and had just failed a polygraph test.1 In other words, he complains that
his physical state was such that he did not knowingly and voluntarily waive his
rights before confessing. At the suppression hearing, Agents Pence and Smith
both testified as well as Officer McConnell. According to all three of these
1
Testimony regarding the polygraph test was admitted in the course of the
suppression hearing but not at trial.
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witnesses, the defendant did not appear to be in shock, did not complain about
his alleged lack of sleep, and did not appear to be under the influence of drugs
or alcohol. Sheila Holder testified at the suppression hearing that, on their way
home from TBI headquarters after the polygraph, the defendant was conversant
and she had no problems talking with him. The trial court denied the defendant's
motion to suppress, finding as follows:
Those persons who had direct observations of the Defendant
testified that he did not appear to be sleepy or inattentive.
Probably the person who could testify most accurately about any
abnormalities to be observed in the Defendant, being his wife,
testified that she had no difficulties communicating with him.
The atmosphere that the Defendant was placed in is not one of a
coercive nature. There's no evidence that he was locked away.
He went to the [TBI headquarters] voluntarily. The proof is just not
there.
“[A] trial court's findings of fact in a suppression hearing will be upheld [on
appeal] unless the evidence preponderates otherwise.” State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). Questions regarding the witnesses' credibility, the
weight and value of the evidence, and resolution of conflicts in the evidence are
all matters entrusted to the trial court. Id. The party prevailing on the
suppression motion is entitled to the strongest legitimate view of the evidence as
well as all reasonable and legitimate inferences which may be drawn therefrom.
Id.
While the record supports the inference that the defendant did not have
much sleep during the twenty-four hours preceding his sworn statement, this
alone is not determinative. See Monts v. State, 214 Tenn. 171, 379 S.W.2d 34,
38 (1964). At issue is whether the confession was voluntary, and the
circumstances of each case must be examined. State v. Smith, 933 S.W.2d
450, 455 (Tenn. 1996). The evidence does not preponderate against the
findings of the trial court relating to the voluntariness of the confession.
This issue is without merit.
PHOTOGRAPHS
The defendant next contends that the trial court erred in admitting into
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evidence three photographs of the victim taken on the Monday morning following
her admission to the hospital. Each of the photographs depicts the injuries to the
child's head. Upon the defendant's objection to their admission, the trial court
acknowledged that the photographs were “potentially inflammatory,” but
continued, “[h]owever, there is no other way to get an accurate description other
than the picture or photographic depiction of the bruises to the front of the child.”
The court then specifically ruled that the probative value of the photographs
outweighed their prejudicial effect, while requiring the state to choose one of two
particular photographs which showed essentially the same view.
The defendant argues that the trial court erred because “the probative
value of the [admitted] photographs is slight compared to the extremely
prejudicial effect [they] would have on the jury.” He claims the photographs were
unnecessary in light of Dr. Najjar's testimony about the injuries.
Under our rules of evidence, relevant proof may be excluded “if its
probative value is substantially outweighed by the danger of unfair prejudice . . .
or by considerations of . . . needless presentation of cumulative evidence.”
Tenn. R. Evid. 403. The determination of admissibility is left to the sound
discretion of the trial court and this Court will not disturb that determination
absent a clear showing of abuse of discretion. State v. Banks, 564 S.W.2d 947,
949 (Tenn. 1978). The mere fact that the subject of the photographs could be
described in words does not render them inadmissible. See Collins v. State, 506
S.W.2d 179, 185 (Tenn. Crim. App. 1973).
This Court has reviewed the photographs admitted at trial and agrees with
the trial court's ruling. There is no clear abuse of discretion. This issue is
without merit.
SUFFICIENCY OF THE EVIDENCE
The defendant also contends that the evidence is insufficient to support
his conviction. A defendant challenging the sufficiency of the proof has the
burden of illustrating why the evidence is insufficient. State v. Tuggle, 639
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S.W.2d 913, 914 (Tenn. 1982). When a defendant challenges the sufficiency of
the convicting evidence, we review the evidence in the light most favorable to the
prosecution to determine whether “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). We do not reweigh or re-evaluate the
evidence and are required to afford the state the strongest legitimate view of the
proof contained in the record as well as all reasonable and legitimate inferences
which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978).
Questions concerning the credibility of witnesses, the weight and value to
be given to the evidence, as well as factual issues raised by the evidence are
resolved by the trier of fact, not this Court. Id. A guilty verdict rendered by the
jury and approved by the trial judge accredits the testimony of the witnesses for
the state, and a presumption of guilt replaces the presumption of innocence.
State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
The defendant was convicted of aggravated abuse of a child six years of
age or less. That offense is committed when a person “knowingly, other than by
accidental means, treats a child [six years of age or less] in such a manner as to
inflict injury” and the “abuse results in serious bodily injury to the child.” Tenn.
Code Ann. §§ 39-15-401(a); 402(a)(1) (Supp. 1996). The evidence in this case
is more than sufficient to support the jury's verdict.
While the defendant argues that Sheila Holder confessed to the crime, the
jury chose to believe the defendant's confession. The jury was entitled to do so,
and we will not disturb its decision. This issue has no merit.
SENTENCING
Finally, the defendant complains that his sentence is excessive. The
defendant was convicted of a Class A felony. See Tenn. Code Ann. § 39-15-
402(b) (Supp. 1996). As a standard offender, defendant was subject to a Range
I sentence of fifteen to twenty-five years. See Tenn. Code Ann. § 40-35-112(a).
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The trial court imposed the maximum sentence of twenty-five years. Because
the defendant committed the offense of aggravated child abuse, he must serve
one hundred percent of his sentence, less sentence credits earned and retained.
See Tenn. Code Ann. § 40-35-501(i).
In imposing sentence, the trial court found no applicable mitigating factors
and six applicable enhancement factors. The defendant argues that the trial
court incorrectly applied one of the enhancement factors and should have
mitigated his sentence based on his background.
When a defendant complains of his or her sentence, we must conduct a
de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-
401(d). This presumption, however, “is conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). The appealing party bears the burden of showing that the sentence is
improper. Id.
The presumptive sentence for a Class A felony is the midpoint of the
range. Tenn. Code Ann. § 40-35-210(c). If there are enhancing and mitigating
factors, the court must start at the presumptive sentence in the range and
enhance the sentence as appropriate for the enhancement factors and then
reduce the sentence within the range as appropriate for the mitigating factors.
Tenn. Code Ann. § 40-35-210(e). If there are no mitigating factors, the court
may set the sentence above the presumptive sentence but still within the range.
Tenn. Code Ann. § 40-35-210(d). The weight to be given each factor is left to
the sound discretion of the trial judge. State v. Shelton, 854 S.W.2d 116, 123
(Tenn. Crim. App. 1992).
The defendant testified at his sentencing hearing that he was abused as a
child; lived in foster homes; and eventually lived on the street. Contrary to the
defendant's argument, the trial court did consider this testimony and specifically
found that it did not “rise to the level of a mitigating factor.” W e agree. This
issue has no merit.
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As to enhancement factors, the trial court applied the following:
(1) The defendant has a previous history of criminal
convictions in addition to those necessary to establish
the appropriate range;
(4) The victim was particularly vulnerable because of
her age;
(6) The personal injuries inflicted upon the victim
were particularly great;
(8) The defendant has a previous history of
unwillingness to comply with the conditions of a
sentence involving release in the community;
(15) The defendant abused a position of private trust;
and
(18) The victim suffered permanent impairment of
either physical or mental functions as a result of the
abuse.
See Tenn. Code Ann. § 40-35-114. The defendant only contends that the trial
court erred in finding that the victim was particularly vulnerable because of her
age, arguing that this factor is an essential element of the offense.2
When defendant made this same argument at the sentencing hearing, the
trial court responded:
Age is an element of the offense, but it's not the age that one must
look at, but whether, because of the age, the [victim] was
particularly vulnerable.
In this case, the testimony was that this child was a five-month-old
child; could not escape her attacker; could not even tell anyone
about the abuse that she had been subjected to. And because of
her age, she was particularly vulnerable in her inability to
communicate to those around her that she was the subject of this
abuse. . . .
We agree with the trial court that, under the circumstances of this case, the
enhancement factor applies. See State v. Walton, 958 S.W.2d 724, 729 (Tenn.
1997) (even where the child's age is an essential element of the offense, the
“particularly vulnerable” factor may be applied where, because of the child's age,
he or she was incapable of resisting, summoning help, or testifying against the
perpetrator).
2
Because the victim was less than six years old, the offense is elevated from a
Class B felony to a Class A felony. See Tenn. Code Ann. § 39-15-402(b) (Supp.
1996).
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The defendant has failed to demonstrate that his sentence is improper.
This issue has no merit.
CONCLUSION
Based upon the foregoing, the judgment of the trial court is AFFIRMED.
__________________________
JOE G. RILEY, JUDGE
CONCUR:
(Not Participating)
PAUL G. SUMMERS, JUDGE
_____________________________
L. T. LAFFERTY, SENIOR JUDGE
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