State v. Hodges

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
AUGUST SES SION, 1998 December 11, 1998

Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9710-CR-00451
)
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.
ANTHONY HODGES, ) JUDGE
)
Appe llant. ) (First Deg ree Mu rder,
) Aggravated Child Abuse)

ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUN TY

FOR THE APPELLANT: FOR THE APPELLEE:

JEFFREY A. DeVASHER JOHN KNOX WALKUP
Assistant Public Defender Attorney General & Reporter
(On A ppea l)
KENNETH W. RUCKER
KARL F. DEAN Assistant Attorney General
Metro Public Defender 425 Fifth Avenu e North
(At Tria l) Nashville, TN 37243

RICHARD TENNENT VICTOR S. JOHNSON
Assistant Public Defender District Attorney General
(At Tria l)
BILL REED & LILA STATOM
1202 Stahlman Building Assistant District Attorneys
Nashville, TN 37201 General
Washington Square, Suite 500
222 Se cond A venue North
Nashville, TN 37201

OPINION FILED ________________________

AFFIRMED
DAVID H. WELLES, JUDGE

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 OPINION

The Defendant, Anthony Hodges, pursuant to Tennessee Rule of Appellate

Procedu re 3(b), appeals his convictions and sentences for first degree felony

murder and aggravated ch ild abuse. We affirm both the convictions and

sentences.

Defendant assigns seven points of error from the proceedings below: (1)

the trial court im properly denied Defen dant’s m otion to su ppress his statement

to police, (2) the trial court erred by not requiring the State or the jury to elect a

factual theory , (3) the trial cou rt impro perly refused to allow Defendant to present

evidence that his seve red co-d efenda nt had a bused the victim in the pas t, (4) the

evidence was insufficient to convict Defendant of felony murder and aggravated

child abuse, (5) the trial cou rt improperl y instructed the jury regarding criminal

responsibility, (6) the tr ial cou rt impro perly d enied Defendant’s motion to strike

the State’s proposed aggravating factors for sentencing, and (7) the trial court

impro perly applied the maximum sentence available for aggravated child abuse.1

In February 1996, Defendant Anthony Hodges, and his wife Kena Hodges,

were indicted by the Davidson County Grand Jury on one count of murder

committed during the perpetration of aggravated child abuse in violation of

Tennessee Code Annotated § 39-13-202(a)(2) and one count of aggravated child

1
We address these issues in different order.

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abuse and ne glect in viola tion of § 39 -15-402 . The De fendan t successfully

moved to sever h is trial from tha t of his wife and co -defend ant; and fo llowing his

trial in January of 1997 , a jury return ed guilty ve rdicts on b oth charges. Th e jury

sentenced Defendant to life imprisonment without the possibility of parole for

felony murde r, and the trial court sen tenced him to tw enty-five years for

aggravated child abu se, to be served concurrent with his life sentence. The trial

court denie d Def enda nt’s m otions for a ne w trial, for judgment of acquittal, for a

new sentencing hearing, and for imposition of life with the possibility of parole;

and D efenda nt timely a ppeale d.

I. SUFFICIENCY OF THE EVIDENCE

We first addres s the sufficie ncy of the evidenc e in orde r to review the facts

presented by the State at trial. Defendant contends that the evidence was not

sufficient to convict him o f felony murde r or aggravated child abuse—on either

a theory that he was the principal perpetrator or a theory that Kena Hodges

inflicted the abus e and Defe ndan t is crim inally re spon sible for her actio ns. We

disagre e.

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings

of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the finding by the trier of fact beyond a

reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

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evidence was insufficient. McB ee v. Sta te, 372 S.W.2d 1 73, 176 (Te nn. 1963);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (Tenn. 1 977)); State v. Tugg le, 639 S.W .2d 913 , 914 (Te nn. 198 2); Holt v.

State, 357 S.W .2d 57, 61 (Te nn. 1962).

In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the ev idenc e as w ell as all reason able an d legitima te

inferences that may be drawn there from.” Tugg le, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The court may not “re-

weigh or re-evaluate the eviden ce” in the re cord be low. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the rev iewing court

find particular conflicts in the trial testimony, the co urt mu st reso lve the m in favor

of the jury v erdict or trial co urt judgm ent. Tugg le, 639 S.W.2d at 914.

A. Facts

In this case, the evidence clearly establishes that the young victim, Miyoshi

Richardson, died of blunt force trauma as a result of intentional blows to her head

and torso. In addition, it is decisively apparent tha t either the mother, Kena

Hodges, or the s tep-fat her, D efend ant, inflic ted the fatal inju ries and that the

victim was in the sole custody of Defendant throughout the day of her dea th. The

State could not show, howeve r, which perso n—if only one—actually administered

the blow s; but it argu es that it ne vertheles s met its b urden o f proof.

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 1. Proof of Injury

Metropolitan Nashville and Davidson County police officers testified that

they were dispatched to Defendant’s home at approximately 5:00 p.m. on

December 28, 1995. A paramedic unit was present at the scene when the

officers arrived , but m edica l perso nnel w ere pre paring to leav e. The officers

observed the victim , a twenty-eight month old child, on a couch as they entered

the home. At that time, officers observed that the child was already stiff with rigor

mortis, had the appearance of having been deceased for some time, had a large

bruise with swelling on the left side of her face, and had dried b lood in one n ostril.

The officers moved th e victim to a back bedroom while awaiting the medical

examine r.

Officers confiscated several items of physical evidence from the residence,

including a bed sh eet, a pair o f pants , a tow el, a diaper, a cotton pad, a sponge,

and a child’s sw eat shirt. Testing by the Ten nesse e Bure au of Inve stigation (T BI)

revealed the pres ence o f blood on these items.2 Officers also seized a coat

hanger that had been bent and secured with tape, which was hanging on a hook

in the victim’s room. While the State characterized this hanger as evidence of

punishment, the defense argued that it m ay ha ve be en sim ply a tool for turning

on lights above the child’s reach. In addition, the State presented evidence of

other items taken from th e hou se, inc luding a mo p, that it characterized as having

2
Only one item contained enough blood to determine identity. The blood on that
item— the shirt—belonged to the victim.

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been used to clean the home. The mop was wet when seized, but the TBI found

no trace s of blood on it.

The medical exam iner, a fo rensic pathologist, examined the victim’s body

at the scene of the crime, after another representative from the examiner’s office

had pronounced the child dead. Photographs introduced at trial depicted bruising

of her skin along the left side of her face, with abrasions on the side of the face

and around the eye, a nd bru ising apparent on her arms and legs. The doctor

testified that the victim also had a laceration inside her left nostril and on the

inside of h er uppe r lip, and ad ditional ab rasions o n her ha nds an d legs.

The next day, the medical examiner performed an autopsy on the victim

and determined that she died as a result of blunt force injury of the head and

torso. Seve ral mo re con tusion s, lace rations, and abrasions were found over

various parts of the victim’s body, including her chin, lower lip, ear, abdomen,

buttocks, knee, heel, tongue, and hands. The doctor testified that all external

manifestations of injury were con sistent with blunt force-typ e trauma, and that

injuries to the child’s hands were characteristic of defensive wounds. Finally,

areas of the v ictim’s scalp were v isible through her h air, indica ting tha t her ha ir

may h ave be en pulled from he r head.

Upon internal examination, the medical examiner ascertained that the

victim suffered hemorrhaging underneath the scalp; betw een th e brain and s kull,

undern eath the protective membrane of the brain; and on the surfac e of the brain

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itself. Hemorrhaging also appeared around the optic nerves and within the eyes

themselves. The victim’s liver was lacerated and contained areas of

hemorrhage. All internal inju ries rem ained co nsistent with blunt force trauma,

and hemo rrhages of the victim ’s eye reg ion were comp atible with injuries

received from violent, forceful shaking. The doctor concluded that the victim’s

death resulted from multiple blows to the child’s head and torso, and that the

blows were inte ntional— they we re incons istent with any type of accidental injury.

The doctor then testified regard ing the victim’s proba ble status during the

day of her death. He opined that, while conscious, the victim would likely have

been irritable from likely headache and nausea, with increasing lethargy and

decreasing activity. Next, the child would have slipped into unconsciousness,

followed by com a and th en dea th. Although the doctor could not determine the

exact time that death occurred, he estimated that, based upon the extent of rigor

mortis present at his 5:30 p.m. examination, the victim had been dead for at least

several hours u p to twelv e hours or longe r. According to the medical exa miner,

if the ch ild’s injur ies ha d bee n inflicte d at or b efore a pprox imate ly 6:00 a.m . on

the day of her death, the bruises would have been visible and apparent by noon,

and proba bly much earlier.

2. Statements by Anthony and Kena Hodges

The primary proof presented by the State to show how, when, and by

whom the injuries to Miyoshi were inflicted was gleaned from the sometimes

consiste nt, some times co nflicting state ments by An thony a nd Ken a Hod ges to

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police. Detective Kent McAlister of the Metropolitan Police Department testified

concerning many of the statements made by the Hodges.

Defendant related that he and the victim had been alone together

throughout the day of her death. Kena Hodges left the home for work at

appro xima tely 6:30 a.m. and did not return until shortly before 5:00 p.m.

McAlister stated that, at the scene, Defendant explained the child’s facial bruises

by telling officers she had fallen off of the commode earlier in the day.

Separately, Kena stated at the s cene that the child ha d fallen in her presence that

mornin g, hitting he r head o n the ba throom heater.

McAlister requested the Hodges to appear at the Criminal Justice Center

later the same evening for extended interview, which they did. In that interview,

Defendant told McAlister that early in the morning, while Kena prepared for work,

he heard a “boom” from the bathro om. A ccord ing to D efend ant, Ke na told him

that the child had fallen and hit her head on the bathroom heater, burning her

hair. During th is statem ent, Defendant denied seeing this first fall and stated that

the victim acted normally after it occurred, although she did not cry or complain,

as she usually w ould.

In addition, Defendant informed McAlister that around 10:00 a.m., he saw

the victim stumble once, and he placed the victim on the commode because she

had partially soiled he r clothes. While the victim was in the bathroom, Defendant

walked to the kitchen to feed their dog. When he heard a loud noise from the

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bathroom, he returned to find the child lying on the floor. He stated that though

she appea red to be all right, she fell again while trying to walk out of the room.

Following these falls, Defendant noted that the victim appeared sleepy and less

responsive, and she seemed “in a daze.” He then put the child to bed.

Defendant spok e with h is wife by telephone between 10:00 and 11:00 a.m., and

he inform ed he r that the child ha d fallen and seemed extremely sleepy.

According to Defenda nt, Kena reassured him that the child was merely tired

becau se she hadn’t ha d muc h sleep th e night be fore.

Kena telephoned Defendant at approximately 12:30 p.m., and Defendant

informed her that the ch ild was still sleep ing. In h is state men t, Defe ndan t told

police that he was then worried about Miyoshi because he thought she should be

awake. Kena reportedly again told Defendant to let the child sleep—that she was

tired. Kena called back at approximately 2:00 p.m., at which time Defendant told

her the victim was still sleeping and that he wanted to wake her. He took a wet

towel and squeezed it over her face and told his wife that “it looked like she

moved her eyes.” Kena again told Defendant the child was just sleepy, but he

told Dete ctive Mc Alister that h e knew some thing wa s wron g:

And I said . . . som ething just do n’t see m righ t beca use s he no rmally
be up because I at this point I had my stereo on in the living room I
said music is up and I said th e dog been barkin g you know I said
there’s comm otion goin g on an d my w ife said well go get her. So I
went to the bed , got her, brought her out and my wife was on the
other line and my wife I said well baby you talk to her maybe you
can call her and maybe she’ll respond and my wife started you know
Miyo shi, Miyo shi, Miyoshi, Miyoshi and I said it look like she moving
and my wife said well check her temperature and she told me the
thermometer which we have a home thermometer is in the . . .

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 bathroom cabinet so I went back to the cabinet and got the
thermo meter c leaned off, put it in her m outh, flush ed it.
. . . . . . . It seemed like she was [responding] and my wife just
kept because my wife was, you know, coaching me more or less
along because I told my w ife she sh ouldn’t be asleep th is long. My
wife kept telling me s he’s tire d, she ’s sleepy. I said she shouldn’t be
asleep this long.

When asked how s he se eme d to be respo nding , Defe ndan t told Detective

McAlister that “[s]he would open her eyes just like vaguely, like a sleepy . . . look,

partially like you know vaguely just open them with a sleepy look.” During the

same conve rsation w ith his wife, D efenda nt rema rked tha t he thought Miyoshi

might have had a seizure because it looked as though she had been biting her

tongue. According to Defendant, Kena told him the child had not had a seizure

and to put her to bed. Defendant therefore put the victim back to bed. He denied

noticing anything unusual about her appearance other than her lack of

responsiveness. When asked about the discoloration of her face, he stated that

he assumed she bruised herself in the falls, but that he did not notice when the

bruises a ppeare d on he r face.

Kena Hodges arrived home shortly before 5:00 p.m. and attempted to

wake the victim. In his statement, Defendant told McAlister that “she started

playing with the baby’s like legs she said the baby is some kind of, you know,

medical term w ord sh e use d I don ’t know , she s aid the ba by is w ell tight.” They

called the child’s grandmother to tell her the child was dead. They then called

911. Defendant stated that after the paramedics informed the Hodges that the

child wa s conclu sively de ad,

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 . . . it hit home and, you know, I was breaking down at that point and
she was stro ng. She was telling me, baby, you know, it was my
fault. I was saying, baby, it’s my fault cause I should have had, you
know, when the baby fell out a couple of times called the, you know,
ambu lance the n and w hat not.

Defendant gave another statement to police the next night, December 29,

1995. During th at statem ent, Dete ctive Mc Alister inform ed De fendan t that the

victim died fro m be ing be aten, n ot from falling, and implored him to tell police

what had happened the previous day. Defendant immediately denied beating the

child, and he admitted that Kena sometimes acted abusive ly towa rd Miy oshi.

When asked the last time he remembered Kena “over discipline” the victim,

Defendant responde d, “Thursday morning,” the d ay of her dea th. He stated, “I

hone stly do n’t belie ve sh e just fe ll I mean it was a throw . . . ,” and he indicated

that he he ard K ena s ay to th e child in the bathroom, “Get the f__k out of here you

mother f__ kin’ bitch. I’ll kick your f__king ass.”

Defendant continued to repeatedly maintain that he did nothing to harm the

victim, and h e exp lained his scraped knuckle and bruised toe by insisting that he

helped his neighbor move several large appliances the day before Miyoshi died.

When pressed again, the following exchange occurred:

ANT HON Y: Earlier in the m orning my w ife well my wife was
abusive with her. . . .

MCA LISTE R: What’d she do?

ANTHONY: First she hit her in the sink. I was in the bed
sleep and I know she hit her head on the side of the coming out of
our bathroom there is a fire well fireplace, no heater and you know
boom , I heard the noise. . . .

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MCALISTER: . . . [T]ell us what happened, tell us what you
saw?

PINKERTON: What kind of co nversa tion and what did you see?

ANTHONY: I seen her with her hair going to the door. I mean
it’s like, get your ass up, you know and boom

MCALISTER: Boom what?

ANTHONY: Kicking h er[.]

MCALISTER: Kicking her where?

ANTHONY: From the bathr oom[.]

MCALISTER: Kicking her where did she kick her on her body?

ANTHONY: In her in her ass or between her legs or whatever
because it tipped up out into the bedroom.

PINKERTON: So where did s he, where did she land when she
fell when she got kicked out of the bathroom?

....

ANTHONY: I have a, wha t is it, a milk c rate. I ha ve an old
milk crate. It was closer d own. I us e it as a nig ht stan d. She hit
that and moved it back.

PINKERTON: What part of her body hit the milk crate?

ANTHONY: Well she was upside down. She had flipped and
so the milk crate was like moved and I moved the milk crate back in
the corner.

PINKERTON: And what time of morning was this?

ANTHONY: Is [sic] was about six-fifteen right before she had
to go to w ork. Six so methin g.

MCALISTER: So she kicked her one time.

...

ANTHONY: No she was pretty abusive.

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MCALISTER: Well expla in to me what pretty a busiv e is. W ould
you please explain that to me. I guess I’m just dumber than a rock.

ANTHONY: She made the baby sta nd up in the co rner all
night.

...

PINKERTON: Which night are w e talking a bout?

ANTHONY: We’re talking about Wednesday, Thursday,
Thursday morning.

PINKERTON: Talking about the nigh t before the ba by’s death.

ANTHONY: Right. She made the baby stand up in the corner
and h old he r hand s up o n the w all.

PINKERTON: Why? Why did she say she done that? Why?

ANTHONY: The baby girl said she had to pee and then so
she slep t in the corn er all night.

PINKERTON: Standin g up? W hat did yo u say ab out that?

ANTHONY: Baby put the baby to bed.

...

ANTHONY: Okay. F__k you you don’t have nothing to say
about, yo u know . I said, baby , put the ba by to bed . . . .

PINKERTON: So y’all slept in the bed and th e bab y stan ding in
the corner

ANTHONY: With her hands up.

PINKERTON: When did you notice that she got up and the
baby wa s out of the corne r?

ANTHONY: I noticed possibly all night one o’clock, two
o’clock, three o’clock, she’d holler at the baby, are you ready to say
something, you ready to say something. She would get up and get
her norm al[.]

PINKERTON: Get up and get what? We don’t know what
normal is.

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 ANTHONY: Smack the ba by, hit the baby. You can’t say you
gotta go to bed, you can’t say you gotta go to the bathroom.

PINKERTON: When she hit her after she was standing and you
woke up one of those few times you woke up and she was hitting
her, when she slapped the baby where did the baby h it? Did sh e hit
her head on anything else? Or did she just slap her and the baby
just stood still or did she fall down or wha t?

ANTHONY: She was constantly falling. Constantly giving up.

...

PINKERTON: How often did this happen?

ANT HON Y: Too m uch.

Upon cross-examination, Detective McAlister testified to several

statem ents made by Kena Hodg es over the same time period—the evening of

her daughter’s death, December 28, 1995, and the next night, technically the

early morning hours of December 30, 1995. During her first interv iew, K ena to ld

McAlister that Miyoshi ha d fallen and hit her h ead on the bathroom heater. Later,

when apparently co nfronted with D efendant’s state ments incu lpating her, 3 Kena

denied ever kicking the victim, yet she admitted inflicting some harm. Kena told

detectives that sh e had struck the ch ild lightly with a plastic coat ha nger, causing

her to fall an d hit her he ad aga inst the ba throom sink.

In her statement, Kena expressed disbelief that her actions caused the

child’s death , but sh e acc epted respo nsibility if th at we re indeed the case.

McAlister testified to her words:

3
The transcript of Kena’s interview begins abruptly, and the record does not reflect the
conversation prior to the beginning of what has been recorded; but Kena has clearly been
informed somehow of allegations that she kicked the child.

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 “I’m hurt. Don ’t think I’m no t hurt. And I feel bad, because, like I
said, I don’t believe that that’s what did it to her, but I guess it did, so
I’m wrong . . . . I was think ing of any body a nd any thing but m e. I
could n’t believe this was me, but I’m being honest. It’s not enough
to say, I’m so rry. It’s no t enou gh to s ay, I did n’t think that w ould
happe n.
....
I didn’t th ink tha t wou ld resu lt from tha t. It’s not e noug h. It’s
not enough and you’re right. And it’s not enough for me to say that
I should have, would have, could have. It’s not enough. Her life is
gone, and I’m being honest. True enough, I don’t -- I don’t think I
was a neglige nt Mam a. I guess I was ne gligent the n. Abus ive, I
don’t think I was abusive, but I gu ess I w as ab usive then. I d on’t
think I was a bad parent. I m ade a m istake an d I’m wro ng. I guess
I’ve got to pay for it. I hate to be honest, you kn ow, I g uess this is
going to be said in court, played in court, whatever. I’m being
honest in my heart. Don’t think I don’t feel bad. I have felt bad
since it happened. I’m truly a Christian, but I make mistakes. I do
wrong. This was one, true enough. Hey, you-all are saying it’s a
biggie. It is a biggie. I do feel bad. Now, I’m not going to say I want
you-all to jus t believe m e. I’m not g oing to sit here and just lie and
say, hey. Bu t, now, I gu ess if I did -- did it, I’d be, I guess I’ll keep
saying it, if beca use I s till don’t w ant to b elieve that, it was me. But
if I did it, I did it, and I’m wrong . I’m no t trying to pass the bu ck. I’m
not trying to point fingers, and I’m not going to steer yo u wrong.”

Officers asked Kena why she failed to admit the prior night that she hit the

victim with a coat hanger, and she responded that she blocked the incident out

of her m ind beca use sh e did not b elieve sh e caus ed harm to the child:

“I guess I want to block that out. I did not even remember that, but
after I sat there, I thought about it and say, you know, what now, that
I think about it. Three blows to the head. It might have been just
me, now that I think a bout it, a fter I thou ght ab out w hat rea lly
happen ed.”

McAlister testified that, to his knowledge, Kena had not mentioned before that

she hit her daughter three times. Finally, the detective testified to Kena’s words

shortly before police arrested her: “‘Jesus, I am so sorry, Miyosh i. I never wanted

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to do nothing to you. How many years does a person go to jail for something like

this?’”

Upon redirect examination of Detective McAlister, the State presented

evidence that at the first interview, in response to the question of whether

Defendant had struck the victim in a harmful manner, Kena stated,

“No, and that was much -- we loved Miyoshi, like I said, and you
know, but this incident, he called me during the day, because he
wanted for me to reassure him, because he’s like I said, he’s real
nervous about th is, so he didn’t know -- so he jus t went on what I
said, like I said, feel bad because I feel I should have did more, but
like I assume , she asleep, yo u know . . . .”

To impeach the credibility of Kena’s statements implicating herself, the

State also introduced Kena’s earlier s tatem ent tha t she d id not k now exac tly

where or how the vict im fell in th e bath room : “I gues s that’s when she fe ll. I can’t

say I saw it . . . .” In addition, the jury heard this account by Kena through

McAlister:

“I said, Baby, don’t worry about it. Should I call the ambulance? I
was like, Baby, no. I sa id, no, a nd I ad mit tha t, beca use I’m
thinking, there ain’t nothing wrong with her. And that’s the honest
truth, and I was telling everybody on my job, well, my husband was
nervous about my da ughter. And if you ask him, he’s a little nervous
abou t her, bu t I don’t think wro ng [sic] with her. Betty punches me
to herself, and says, get over -- and says, get over it. She’s fine.
He’s just overre acting. And I don’t know. And so then I was telling
him little things to do to her and stuff to try and hear her. I was like,
well Baby, take her in the tub and lay her in the tub and just take a
little cold water and put it on her belly. That will probably make her
squint, you know, if the temperature. No, Baby, it’s too cold to do
that. I don’t wa nt to ma ke her co ld. I said, oka y, well, th at’s
understandable, you know.
....

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 And so, I said, well, B aby, I don ’t think nothin g wron g. I think
she fine. Y ou’re just o verreac ting.”

The general substance of this telephone call and another that day were verified

by Kena’s co-worker, who heard Kena speak. According to Kena’s statem ent,

Defendant called her back soon thereafter to request her to come home as soon

as possible because of the child’s condition. Regarding pain or marks on the

victim, De tective M cAlister tes tified that Ke na stated ,

“Like I said, I did not notice those things before I had left. I didn ’t
see them, and I didn’t do them, and I didn’t see him do any while I
was there. I d on’t be lieve h e did w hile I was not there. I didn’t see
it and h e didn ’t tell me if h e did. . . . Like you-all are saying, you
trying to figure out whether it was him, o r whe ther it was m e, and I’m
trying to be like, I know for a fact it wasn’t me .”

Finally, the Sta te introd uced this con versa tion be twee n polic e and Kena : “‘Wh o’s

been doing it?’ . . . ‘It was not m e.’ . . .’Wh o’s be en do ing it?’ . . . “H im.’”

B. Leg al Ana lysis

Defendant was convicted of aggravated child abuse in violation of

Tennessee Code A nnotated § 3 9-15-402(a )(1) and first degre e murder in

violation of § 39-13-202(a)(2)—specifically, murder committed during the

perpetration of aggravated child abuse. We will address the murder conviction

first.

Defendant argues that his conviction for murder during the perpetration of

aggravated child abuse should be reversed because the evidence was

insufficient to show (1) that he inflicted the abuse upon the victim, or (2) that he

was criminally responsible for Kena’s infliction of injury upon the child. W e

-18-
conclude that the evidence was su fficient for the ju ry to find D efenda nt guilty as

the princip al perpetrator of felony mu rder. We furthe r find that even if the jury

believed Kena Hodges inflicted the fatal blows, the evidence is nevertheless

sufficient to convict Defendant based upon his subs eque nt neg lect of th e victim

and his c riminal res ponsib ility for Kena ’s condu ct.

1. Felony M urder by Infliction of Injury

At the time of this offense, Tennessee Code Annotated § 39-13-202 read

in part: “First degree murder is . . . [a] killing of another committed in the

perpetration of or attem pt to perp etrate any . . . ag grava ted ch ild abuse.” Tenn.

Code Ann. § 39-1 3-202(a)(2). The legislature prescribed that “[a] person is guilty

of the offe nse o f aggra vated child ab use w ho co mm its the o ffense of child abuse

as defined in § 39-15-401 and . . . [t]he act of abuse results in serio us bo dily

injury to the child.” Id. § 39-15 -402(a)( 1) (emp hasis ad ded). In turn, the cross-

referenced § 39-15-401, entitled “Child Abuse and Neglect,” stated:

Any person who kn owingly , other than by accid ental m eans, tre ats
a child un der eig hteen (18) y ears of a ge in suc h a ma nner as to
inflict injury or neglects such a child so as to adversely affect the
child’s health and welfare is guilty of a Clas s A misde meano r;
provided that if the abused child is six (6) years of age or less, the
penalty is a Class D felony.

There can be no question that a killing has occurre d within the mean ing of § 39-

13-202(a)(2 ). Likewise, there can be no mistake that an act of abuse has

resulted in serio us bo dily injur y within the meaning of § 39-15 -402(a)(1).

Defen dant disp utes ne ither statem ent; he ac know ledges in his brief,

Taken in the light m ost favora ble to the State, the evidence at
trial established either that (1) the de fendan t’s co-defe ndant, Kena

-19-
 Hodges, inflicted the inju ries that ca used th e victim’s d eath, while
the defendant was awake and aware of such abuse, made no
attempt to stop said abuse, a nd made no effort to obtain medical
assistance for the victim; or (2) disregarding Kena Hodges’
confession, the defendant inflicted the injuries that caused the
victim ’s death, he r injuries be ing cons istent with being struc k with
rings the defendant may have been wearing on his hand(s); or (3)
some combination of the two theories outlined above.

Turning to a facet of greater dispute, therefore, we examine whether the

proof establish ed De fendan t’s guilt as the deliverer of ph ysical blow s. Defen dant,

by his own admission, cared for the victim alone between the hours of

appro xima tely 6:30 a.m. and 5:00 p.m. The mother, Kena Hodges, did not rec all

noticing any signs of physical injury to the c hild prior to leavin g her in Defe ndan t’s

care. The jury viewed photographs of Defendant’s bruised toe, scraped knuckle,

and the rings he norm ally wo re. The jury he ard D efend ant’s statement, in which

he recounted that the victim had soiled her clothes during the day, and could

have surmised that the incident provoked him. Although Kena admitted to having

struck the child in th e morn ing hou rs, the jury a lso heard , by her sta temen t to

police, tha t she did n ot believe she cou ld have c aused such se vere injurie s. In

addition, Defendant conceded that the victim h ad be en furth er injure d while in his

care by falling at leas t twice, inclu ding on ce from the heigh t of a com mode .

Our supre me c ourt ha s long stated , “[T]he weig ht to be given circumstantial

evidence and ‘“[t]he inferences to be drawn from such evidence, and the extent

to which th e circum stance s are con sistent w ith guilt and in consiste nt with

innocence, are questions primarily for the jury.”’” State v. Mann, 959 S.W.2d 503,

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518 (Tenn. 1997) (quoting Marab le v. State , 313 S.W.2d 451, 457 (Tenn. 1958)

(quoting Wharton ’s Criminal Evide nce)). We conclude that it was within th e jury’s

purview to find Defendant guilty of battering the victim while alone with her the

day of her de ath. See g enera lly State v. Donald Ray Lacy, No. 02C01-9701-CC-

00013, 1997 WL 729261 (Tenn. Crim. App., Jackson, Nov. 25, 1997) (finding

circumstantial evide nce s ufficien t to con vict of fe lony m urder by ag grava ted ch ild

abuse when victim wa s in defen dant’s so le care); State v. Cynthia & Rhodney

Roberson, No. 02C01-9503-CC-00059, 1995 WL 765009 (Tenn. Crim. App.,

Jackson, Dec. 28 , 1995) (s ame); State v. James DuBose, No. 01C01-9405-CC-

00160, 1995 WL 504803 (Ten n. Crim. App ., Nashville, Aug. 25 , 1995) (sam e),

aff’d, State v. DuBose, 953 S.W.2d 649 (Tenn. 1997) (perm ission to appeal

denied on s ufficiency issue).

2. Felony Murder by Acts of Neglect

Likewise, we find the evidence sufficient for the jury to find Defendant guilty

of neglecting the victim within the meaning of Tennessee Code Annotated § 39-

15-401(a) and, by incorporation, §§ 39-15-402(a)(1) and 39-13-202(a)(2). As

explained above, first degree felony murder is a “killing committed in the

perpetration of or attem pt to perp etrate any . . . ag grava ted ch ild abuse.” Tenn.

Code Ann. § 39-1 3-202(a)(2). Next, aggravated child abuse is the commission

of “child abu se as de fined in § 3 9-15-40 1" that cau ses serio us bod ily injury. Id.

§ 39-15-402(a)(1). Child abuse, as defined in § 39-15-401, includes “knowingly,

other than by accidental mean s, . . . neglect[ing a child un der eigh teen] so a s to

adversely affec t the child’s health and welfare.” Id. § 39-15-401.

-21-
 Defendant argues to the contrary. He agrees that the evidence establishes

the crime of neglect, but disputes that he was charged with that offense:

[T]he most that the evidence at trial establishes is that the defendant
neglected the victim, an offense with which he wa s not cha rged. . .
. At the time of the offense, the offense of aggravated child neglect
did not exist in Tennessee. Child neglect is a distinct offense from
child abus e. Child negle ct is not a pred icate o ffense for felony
murder.

(Footno te omitted.) (Citing State v. C ynthia D enise S mith, No. 1153, 1990 WL

134934 (Tenn. C rim. App ., Knoxv ille, Sept. 20, 1990.)) In addition, Defendant

argues that this Court “held that child neglect was insufficient to suppo rt a

conviction for felony murder” in State v. Den ise M aupin , No. 272, 1991 WL

197420 (Tenn. Crim. App., Knoxville, Oct. 7, 1991); and he argues that the

supreme court affirmed this conclusion in State v. Ma upin, 859 S.W.2d 313, 315

(Tenn. 1 993).

The primary distinction between both Mau pin opinions and the case at bar

is that the statute at issue in Mau pin was no t, as Defe ndant c laims, the felony

murder statute. See Mau pin, 859 S.W .2d at 314 . Rather, th e proble matic sta tute

was Tenness ee Code Annotated § 39-2-202 (a)(2), which the legislature had

recently enacted.4 Subse ction (a)(2 ), reading ,

It shall also be murder in the first degree to kill a child less than
thirteen (13) years of age, if the child’s death results from one (1) or
more incide nts of a protra cted p attern o r multip le incide nts of c hild
abuse comm itted by the defe ndant a gainst su ch child, or if death
results from the cumulative effects of such pattern or incidents,

4
At that time, subsection (a)(1) of § 39-2-202 included the collection of offenses that
we deem “felony murder.”

-22-
was determined to be unconstitutional by our supreme court in the case of

Mau pin’s boyfriend , State v. Hale , 840 S.W.2d 307 (Tenn. 1992 ), decid ed wh ile

Mau pin was on appea l to the sup reme c ourt.

Desp ite the obvious and significant difference in the relevant statute, a

similarity exists between the “child abuse murder” statute of Mau pin and the

“felony murder by aggravated child abuse” statute we contemplate here. The

child abuse murder statute also d id not d efine “c hild ab use” w ithin its terms, and

courts turned to the statutory offense of child abuse: § 39-4-401.5 Like § 39-15-

401 that w e con sider in this case, § 39-4-401 was entitled “Child Abuse and

Neglec t.” Section 39-4-40 1 conta ined two separa te ways to satisfy commission

of the offens e—b y either inflicting injury upo n or neg lecting a ch ild. Beca use th is

Court had previously upheld a conviction for child neglect alone under § 39-4-

401,6 a panel of this Court concluded in Mau pin that “child abuse, as proscribed

in [the child ab use m urder sta tute], did not include child neglect.” Mau pin, 1991

WL 197420, at *5.

Turning to the felony murder by aggravated child abuse statute at issue

here, howeve r, we respe ctfully disagree that the leg islature did not intend for the

term “child abuse” to include child neglect. Throughout our Code, different

5
Section 39-4-401, as considered in Maupin, differed from § 39-15-401, the child abuse
statute in force at the time of Miyoshi Hodges’s death, because it was strictly a misdemeanor
offense, whereas child abuse may now constitute a Class D felony.
6
When a jury had returned a verdict of guilty as to neglect and not guilty as to infliction
of injury, or “abuse.” See State v. Cynthia Denise Smith, No. 1153, 1990 WL 134934, at *3-4
(Tenn. Crim. App., Knoxville, Sept. 20, 1990).

-23-
concepts, prohibitions, and mandates are expressed in separate sections and

subsections. Specifically, our criminal laws are divided into explicit subsections

to avoid ambiguity of interpretation. Tennessee Code Annotated § 39-15-401

creates one crime which can be satisfied by two different courses of conduct, not

two sep arate crim es.

When stating, “A person is guilty of the offense of aggravated child abuse

who commits the offense of child abuse as defined in § 39-15-401 . . . ,” we do

not believe our legisla ture intend ed to refe r only to one half of an unenumerated,

uninterrupted, unpunctuated statute subsection, as Defendant would have us

conclude. “Child abuse as defined in § 39-15-401" encompasses § 39-15-401(a)

in its entirety:

Any person who kn owingly , other than by accid ental m eans, tre ats
a child und er eighte en (18) y ears of a ge in such a mann er as to
inflict injury or neglects such a child so as to adversely affect the
child’s health an d welfa re is guilty of a Class A m isdemea nor;
provided, that if the abus ed ch ild is six (6) years of age or less, the
penalty is a Class D felony .

See Tenn. Code Ann. §§ 39-1 5-402, -4 01; see also State v. Cynthia & Rhodney

Roberson, No. 02C01-9503-CC-00059, 1995 WL 765009, at *6 (Tenn. Crim.

App., Jacks on, Dec. 28 , 1995).

The facts presented by the State support a jury verdict of murder during the

perpetration of aggravated child abuse based upon neglect of the victim “so as

to adversely affe ct the c hild’s he alth an d welfa re,” res ulting in seriou s bod ily

injury. See Tenn. Code Ann. § § 39-1 5-401 , -402. D efend ant kn ew th at the c hild

-24-
had been forced to stan d for ho urs ov ernigh t again st the w all, una ble to s leep,

eat, or reliev e hers elf. Ear ly the next morning, Defendant admitted that he heard

a loud boom while Kena and the victim were in the bathroom together.

Imm ediate ly thereafter, he “seen [sic] her with her hair going to the door”; and the

victim flew across the room, hit a milk-crate nightstand, and flipped upside down,

landing on the floor. Defendant either knew or strongly suspected that Kena had

kicked M iyoshi.

Toward mid-morning, Defendant observed the victim fall at least twice, and

he noticed that she was too sleepy to awaken herself, as she would normally do.

Closer to midday, Defendant attempted several times to wake Miyoshi, but the

victim man aged only a slight re spon se, if any. Kena told police that Defendant

was extremely distressed about the victim’s condition throughout the day, and

that at one po int, Defendant was alarmed enough to try to hear her heartbeat and

feel her pulse. The jury saw pho tographs in w hich the child’s facial bruise s were

eviden t, and m edica l perso nnel te stified that bruises were apparent when they

arrived a t the scen e.

Defendant knew this child was in serious medical trouble. Defendant took

no action to provide medical attention for the child he considered his own.

Miyoshi died as a result. Cf. State v. Bord is, 905 S.W.2d 214, 225-26 (Tenn,

Crim. App. 19 95) (finding that evide nce wa s sufficient to convict o f second

degree murder where “deterioration [of victim] was evident and the need for

medical attentio n was apparent,” yet defendant elected not to nourish or seek

-25-
medical assistance). We find the evidence sufficient to p ermit the jury to convict

him of first de gree fe lony m urder base d upo n a the ory tha t Defe ndan t know ingly

neglec ted her s o as to ad versely a ffect her he alth and w elfare.

Finally, this same evidence is sufficient to show that Defendant is criminally

respo nsible for the c ondu ct of Ke na Ho dges . To be crimin ally responsible,

Defen dant, “[h]aving a duty imp osed b y law . . . and ac ting with inte nt . . . to

promo te or ass ist [the o ffense ’s] com miss ion,” must have “fail[ed] to make a

reaso nable effort to prevent com mission of the o ffense.” Tenn. Code Ann. § 39-

11-402(3). As Miyoshi’s step-parent and caretaker, D efenda nt bore a duty to

protect her from harm a nd prov ide her w ith eme rgency attention. D efendant,

although not the victim’s legal guardian, was entrusted by her legal guardian to

watch over her on a daily basis. We consider this to be a “duty imposed by law”

within the me aning o f § 39-11 -402(3). See State v. Michael Tyrone Gordon, No.

01C01-9605-CR-00213, 1997 WL 578961, at *6 (Tenn. Crim. App., Nashville,

Sept. 18, 1997); State v. Jeffrey Lloyd Winders , No. 88-142-III, 1989 WL 105710,

at *2-3 (Tenn. Crim. App., Nashville, Sept. 14, 1989). Kena admitted that she

struck the child o n the m orning o f December 28, 1995, and Defendant grew

increa singly awar e of the child’s m edically severe condition as the day

progressed. This proo f is sufficient for th e jury to infer Defen dant’s inte nt to

promo te or assis t in the infliction o f injury or ne glect of the child.

3. Aggravated Child Abuse

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 Because we have already found the evidence sufficient to find Defendant

guilty of aggravated child abuse based upon either a theory that Defendant

know ingly inflicted injury on the victim, causing her death, or a theory that

Defendant knowingly neglected the child so as to adversely affect her health and

safety, causing her death, we need not further address the argument that the

evidence is not sufficient to support his conviction of aggravated child abuse.

This issu e lacks m erit.

II. ELECTION OF OFFENSES

At trial, prior to Defendant’s presentation of proof, he move d the cou rt to

compel the State to elect on e of its two th eories of g uilt—w hether th e State

wished to proceed on a theory that Defendant inflicted injury upon the victim, or

wheth er Defendant was criminally responsible for Kena Hodges’s infliction of

injury upon the victim. Defendant also moved for a special jury instruction, which

wou ld have advised the jury that its verdict must be unanimous regarding

whether Defendant was guilty as a principal or as criminally responsible for Kena.

The trial court denied Defendant’s m otion, and the jury re ceived a stan dard

unanim ity instruction at the conclusion of proof. In addition, the State argued

strenu ously in closing that the jury’s verdict need not be unanimous regarding the

theory o f guilt.

Defendant argue s that “[w ]hen a defen dant is charg ed with multip le

poss ible crimes in one indictment, the State must elect which charge on which

to proce ed.” Mo reover, h e conte nds tha t

-27-
 the trial court’s failure to require election cre ated the potential that
each juror did not co nside r the ‘sa me o ccurre nce’ in arriving at the
verdicts. Some jurors may have considered only the incident where
Kena Hodges physically abused the victim before she left for work,
and convicted the defendant under a criminal responsibility theory.
Other jurors may have considered only the defendant’s alleged
conduct in abusing the victim after Kena Hodges left for work.

We disag ree tha t electio n was require d in this case . Proo f of mu ltiple

occurrences of the offense, any of which the State offers to satisfy the

requirements of the in dicted offens e, is the typica l situatio n in wh ich ele ction is

crucial to a defendant’s constitutional right to a unanimous jury. See, e.g., State

v. Shelton, 851 S.W .2d 134 (Tenn. 1 993); Burlison v. State, 501 S.W.2d 801

(Tenn. 1973); State v. Hoyt, 928 S.W.2d 935 (Tenn. Crim. App. 1995). In those

situations, such as when a child alleges some type of abuse yet cann ot relate

when the offenses occurred, the jury must support a verdict of guilt by a

unanimous decision that the defendant committed one specific offense—one

juror may not convict based upon a decision that the defendant committed the

offense on one da te, while anothe r juror believes the defendant committed the

same statutory offense, but on different date. Such a defendant would be

convicte d of differen t offenses , each by a partial jury.

Here, in contrast, Defendant could only have been convicted of the same

offense: a killing c omm itted in perpetration of or attempt to perpetrate aggravated

child abuse on December 28, 1995. Although the State did indeed present the

jury two distinct alternatives, in doing so it posed no threat to D efend ant’s

constitutional rights, because it offered not two alternative offenses, but two

-28-
alternative means for culpability for a single offense. Specifically, if several jurors

believed Defen dant inflicted blows to the victim, and several jurors believed that

Defendant neglected the victim following blows by Kena, then we believe they

may all convict of first degree murder committed during the perpetration of or

attemp t to perpe trate agg ravated child abu se.

Similarly, the State need not elect between prosecution as a principal actor

and prosec ution for crim inal respo nsibility in this ca se. See State v. Williams,

920 S.W.2d 247 (Tenn. Crim. App. 1995). In William s, this Court found no error

in the trial court’s failure to require election between theories of actual

perpetration of aggravated rape and criminal responsibility for the conduct of

anothe r. Id. at 257-58. We stated,

Unlike the cited authority, this case involves one particular offense
occurring during one criminal event. Problems with a unanimous
jury verdict generall y arise when the State fails to elect among
different offenses. Here the State properly elected to seek a
conviction of aggravated rape by serious bodily injury. The trial
judge instruc ted the jury on the ele men ts of this offense, and found
the evidence to warrant a further instruction on criminal
respon sibility for anoth er, and fo r criminal re spons ibility relative to
the elements of aggravated rape. The jury reached a verdict based
on one se t of facts relatin g to the one incident of rape. We conclude
that the Defendant’s constitutional right to a unanimous jury verdict
was no t violated b y the cou rt’s instruction s.

Id.

Furthermore, if upon further review it is determined that failure to require

election was error, we conclude that such error was harmless beyond a

reaso nable doubt. The jurors ne cessar ily must h ave ag reed up on the fac ts

-29-
underlying the co nvictio n. Tha t is to say , those jurors, if a ny, wh o con victed

Defendant because they believed he inflicted blows upon Miyoshi, must

nece ssarily have come to the conclusion that he then, for the remainder of the

day, neglected her in such a manner as to adversely affect her health or safety.

One cannot reach the former conclusion without subsequently reaching the latter

conclus ion— to do so would be tota lly inconsistent with the proof presented by the

State. Likewise, those same jurors would have essentially concluded that

Defendant breached his custodial duty to protect the child with the intent to

promo te commission of the aggravated child abuse initiated by Kena earlier in the

morning, satisfyin g the o ffense of crim inal res pons ibility for h er con duct. T his

issue lac ks me rit.

III. MOTION TO SUPPRESS

Next, D efenda nt argue s that the tria l court erred in denyin g his mo tion to

suppress a statement taken by Detective E.J. Bernard of the Metropolitan

Davidson County Police Department. In essence, Defendant claim s that th is

statement should have been excluded from trial based upon its inherent

unreliability. To demonstrate its unreliability, Defendant argues (1) that the

statement was neither audiotaped nor videotaped, although both methods of

recordation were available; and (2) that the most prejudicial of assertions found

in Detective Bernard’s typewritten account of Defendant’s statement cannot be

found in Bernard’s contemporaneous, handwritten notes.

-30-
 Relying on his typewritten report of Defendant’s statement, Detective

Bernard testified to Defendant’s accou nt of the even ts surro undin g the v ictim’s

death. Specifically, he included:

[Defen dant] stated the child was placed in the bed and she
was crying, for whatever the reasons may be. He further stated that
he put some covers over her face, turned the radio up loud so that
he wouldn’t have to listen to the cries. That the child died at
appro xima tely noon that da y, and the m other d idn’t co me h ome ‘till
appro xima tely 5 o’clock. . . . And he stated tha t . . . then they came
up with a story abo ut calling 91 1.

Defendant denied ever making these statements and argues that “any of these

statements, had they actually been made by him, were of such importance that

any trained police investigator taking contemporaneous notes would have

included this information therein.” He remarks that the statements cannot be

corroborated by any other statement made by Defendant, by a recording of the

statement made to Bernard, or by Bernard’s handwritten notes.

Defendant urges th is Court to require, a s a condition to admissibility,

recordation of a custodial interrogation when it is feasible. H e notes that both

Minne sota and Texas require custodial interrogations to be recorded, as do the

Uniform Rules of Crim inal Procedure and the Model Code of Pre-Arraignment

Procedure. We decline to adopt this rather bright-line rule of admissibility,

reserving this issu e for ou r supre me c ourt or the leg islature . In add ition, we

conclude that the State was not required to record this particular interrogation as

a prereq uisite to its ad missibility.

-31-
 Here, Defendant had an opportu nity to cross-exam ine Detective B ernard

regarding discrepancies between Bernard’s testimon y at trial, b ased upon his

typewr itten statem ent, and his handwritten notes. Defendant did indeed cross-

examine on such discrepancies, as well as the feasibility of recording the

interrogation. Detective Be rnard testified that the typed statement was produced

from the notes within twenty-fours hours, that he accurately transcribed the

statem ent, and that no record ing de vices w ere av ailable in the p articula r room in

which th e statem ent wa s taken.

Defendant does n ot dispute that he ga ve the sta temen t knowingly and

voluntarily; he dispu tes the ac curacy of Detec tive Bern ard’s reco llection. W e

consider this an issue of credibility appropriate for the jury. Through cross-

examination, the jury heard evidence that the typed statement contained

statem ents not rec orded in the d etectiv e’s no tes, an d the ju ry app arently

accred ited Dete ctive Ber nard’s tes timony . This issue is without m erit.

IV. EVIDENCE OF PRIOR ABUSE BY KENA HODGES

In his fourth issue, Defendant argues that the trial court erred by refusing

to perm it Defendant to present evidence through the testimony of two witnesses

that Kena Hodg es, the victim’s mo ther, had abused the child in the past. The

State argues, and the trial court agreed, that Tennessee Rule of Evidence 404(b)

mandates the inadm issibility of this ev idence . In response, Defendant cites State

v. Smith , 868 S.W .2d 561 , 574 (Te nn. 199 3), State v. Turn bill, 640 S.W.2d 40,

46-47 (Tenn. Crim. App. 1982), and State v. Glebock, 616 S.W.2d 897, 905-06

-32-
(Tenn. Crim. App. 1981), for the proposition that evidence of prior acts of violence

against the victim are releva nt to show motive and intent to commit the offense.

Tennessee Rule of Evidence 404(b) reads:

Evidence of other crim es, wron gs, or acts is not admissible to prove
the character of a person in orde r to sho w actio n in conform ity with
the character trait. It may, ho wever, be a dmissible for other
purposes. The conditions which must be satisfied before allowing
such e vidence are:
(1) The court upon request must hold a hearing outside the
jury’s pres ence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and the
reasons for admitting the evidence; and
(3) The court must exclude the evidence if its probative value
is outweighed by the danger of unfair prejudice.

The State correctly notes that, once the above criteria of Rule 404(b) have been

satisfied, the appropriate standard of review is whether the trial court ab used its

discretion when ruling upo n the ad missibility o f evidenc e at trial. State v.

DuBose, 953 S.W .2d 649 (Tenn. 1 997). The trial court followed the strictures of

Rule 404(b) by conducting a hearing out of the presence of the jury; by ruling on

the record that the evidence was being offered to show the propensity of Kena

Hodges to commit abuse, rather than for any other purpose; and by indicating

that the evidence was cumulative—that the record already reflected other similar

evidence. The trial court, therefore, must be afforded an abuse of discretion

standard of review.

-33-
 State v. Smith , relying upon Turn bill and Glebock, held that “violent acts

indicating the relationship between the victim of a violent crime and the defendant

prior to the commission of the offens e are re levan t to sho w def enda nt’s hostility

toward the victim, malice, intent, and a settled purpose to harm the victim.” 868

S.W.2d at 574. Here, w e have a distingu ishable c ase: the S tate does not seek

to introduce evidenc e again st the acc used; ra ther, Defe ndant s eeks to introduce

evidence that another pe rson, Kena Hodges , comm itted a prior violent act

agains t the victim.

Examining Rule 40 4(b) in con junction w ith Rule 401, this evidence may or

may not be relevant evidence in this case—that is to say, it may or may not have

“any tenden cy to ma ke the ex istence o f any fact th at is of consequence to the

action more p robable or less pro bable tha n it would be witho ut the evid ence.”

Tenn. R. Evid. 401. As sumin g that und er Rule 4 04(b), prio r violent ac ts against

the victim can be relevant evidence of motive and intent to com mit the acts again,

evidence in this case that Kena had abused the child could be relevant evidence

that she had abused Miyoshi on the day of her death, but it would not make

abuse or negle ct by De fendan t any less likely. Therefore, we conclude that the

trial judge did not abuse his discretion by denying admission of this evidence.

V. JURY INSTRUCTION ON CRIMINAL RESPONSIBILITY

Defendant next contends that the trial court committed an error of

constitutional magnitude when it instructed the jury on the third section of criminal

respon sibility for the con duct of an other an d a juven ile crimina l statute mandating

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that persons who have knowledge of child abuse report such abuse to the

authorities. See Tenn. Code Ann. §§ 39-11-402(3), 37-1-403. Specifically, the

trial court instructed:

The defendant is criminally responsible for an offense
committed by the conduct of another if having a duty imposed by
law or voluntarily undertaken to prevent commission of the offense
and acting with the intent to benefit in the proceeds or results of the
offense or to promote or ass ist its com miss ion, the defen dant fa ils
to make a reasonable effort to prevent commission of the offense.

In a later instruction, sepa rated by ninete en pages of the record, the trial court

advised the jury,

Any person having knowledge of or called upon to render aid to any
child who is suffering from or has sustained any wound, injury,
disability or physical or mental condition which is of such a nature as
to reasonably indicate that it has been caused by brutality, abuse or
neglect or which on the basis of available inform ation re ason ably
appears to have b een ca used b y brutality, ab use or n eglect shall
report such harm immediately by telephone or otherwise to the
judge having juvenile jurisdiction or to the county office of the
Department of Human Services or to the office of the Sheriff or the
chief law en forcem ent offic ial of the m unicip ality wh ere the child
resides. Person s include s, but is not limited to neighbor, relative,
friend or any other person.

We conclude that, while the latter instruction was likely not warranted by the facts

of this case , its inclusion was not erroneous; and furthermore, if erroneous, such

error wa s harm less bey ond a re asona ble dou bt.

We find that these instructions were charged to the jury each separate from

the other, with no indica tion from the trial court that the jury should consider them

together and with no further instruction that the latter constituted a “duty imposed

by law” under the former. Had the jury decided that Defenda nt failed to report

child abuse in violation of this instruction, such a decision nevertheless sho uld

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have had no bearing on fulfillmen t of the crim inal respo nsibility statute, because

the third crimin al respon sibility prong requires “a duty im posed by law . . . to

prevent commission of the offe nse.” T enn. C ode A nn. § 3 9-11- 402(3 ) (emp hasis

added). Failing to report child abuse, by its terms, is an altogether different

proposition and do es not sa tisfy this pron g of crimin al respon sibility. The tw o

instructions combined created no error. Therefore, we now co ntemp late whether

the instructions given alone created error.

“It is the duty of the trial court to give a complete charge of the law

applic able to the facts of a case .” State v. Harbison, 704 S.W.2d 314, 319 (Tenn.

1986) (citing State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)); see State

v. Burkley, 804 S.W.2d 458, 461 (Tenn. Crim. App. 1990). In this case, the State

presented a theory by which the jury could conclude that Defendant was

crimin ally responsible for Kena H odges ’s actions. We have determined that the

evidence was sufficient to find Defendant guilty of criminal responsibility for felony

murder by reason of Defendant undertaking the obligation to care for and protect

a young, helpless child. Therefore, we find that the trial court was w arran ted in

charging the jury with the th ird prong of crimina l respons ibility—ha ving a du ty

imposed by law.

The second instruction, dealing with failure to report child abuse, we find

to be essentially irrelevant. Defendant was not charged under the juvenile code

with failure to report child abuse, nor does this instruction assist the trier of fact

in determining a ny issue releva nt to a charged offense. Our su preme co urt

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addressed irrelevant jury instructions in Adcock v. State, 236 S.W.2d 88 (Tenn.

1949), and Pedigo v. State, 236 S.W.2d 8 9 (Tenn. 19 51), in which im proper jury

instructions required reversal of conv ictions . We fin d both case s disting uisha ble

from the cas e at bar.

In Pedigo, the supreme court described the jury instruction as follows:

A photos tat of the charge as it was handed to the jury,
convinces us that by reason of inco mpeten t and irrelevant m atter,
illegible interlineation and mea ningle ss annotation, the charge might
as well have been written in a fore ign lan guag e and could serve no
purpos e exce pt to confu se the jury .

236 S.W.2d at 90. Here, we have only a single irrelevant instruc tion, no illegible

interlineation and no meaningless annotation. This case clearly does not rise to

the magnitude of the impropriety in Pedigo. Turning to Adcock, the predecessor

to Pedigo and the case of P edigo’s c o-defen dant, we find that the written

instructions given to the jury “contained not only points of law applicable to the

. . . case, but also much that was inapplicable and confusing.” Furthermore,

[n]ot only did [the Adcock jury] receive much law that had no
application to the facts of this case, but they were also given
instruction on many facts which were not in evidence and were
contrary to the theo ry of the D efenda nt.
The defense of the accused was an alibi. In the charge taken
by the jury to the jury room , it was state d . . . , “the Defe ndant a dmits
that he did the killing, but says that it was done by him in his own
necessa ry self-defense, etc.” Then follows an elaborate charge on
self-defense.

236 S.W.2d at 89.

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Again, we conclude that the case at bar clearly does not reach the significance

of Adcock. We find no reversible error in the trial court’s inclu sion of this a ccurate

and non-misleading, yet irrelevant instruction.

VI. STATUTORY AGGRAVATING FACTORS

A. Tennessee Code Annotated § 39-13-204(i)(1)

Defendant argues that the trial court erred by instructing the jury on both

statutory aggravating factors requested by the State during sentencing. The first

factor, listed in Tennessee Code Annotated § 39-13-204(i)(1), reads: “The murder

was committed against a person less than twelve (12) years of age and the

defendant was eighteen (18) years of age, or older.” Tenn. Code Ann. § 39-13-

204(i)(1).

In support of his argument, Defendant contends that this factor “should not

apply to cases of felony murder where the underlying felony is aggravated child

abuse, because such application would automatically support a sentence of life

without parole for any defend ant ove r the age of eightee n.” Moreover, Defendant

claims,

Application of this factor in no meaningful way narrows the class of
defendants eligible for a se ntenc e of life w ithout p arole. T his
aggravating factor unconstitutionally duplicates a single aspect of
the alleged crime - the victim’s age - and thereby violates due
process, doub le jeop ardy, th e right to a fair trial, and the protections
against cruel and unusual punishment as guaranteed by the Fifth,
Sixth, Eighth, a nd Fou rteenth A mend ments to the United States
Constitution; and Artic le I, §§ 8, 9, 16, and 17 of the Tennessee
Constitution.

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 This issue has be en resolved by our supre me cou rt in State v. Butler, No.

02S01-9711-CR-00094, 1998 WL 710632 (Tenn., Jackson, Oct. 12, 1998) (for

publication). In Butler, the supreme court held that “there are no constitutional

or statutory prohibitions” to relying upon the felony murder aggravating

circumstance when seeking a senten ce of life with out the po ssibility of parole for

defend ants charged w ith felony m urder. Id. at 2 (discussing Tennessee Code

Anno tated § 39 -13-204 (i)(7)).

The court firs t stated that, w hen th e prop osed pena lty is not death,

constitutional provisions prohibiting cruel and unusual punishment and defining

the need to narrow the class of offenders “are not at issue.” Id. at 4-5. Second,

the court disc ussed statutory s entenc ing requ iremen ts—specifically, §§ 39-13-

204 and 39-13-207—and determined that “[n]othing in the text of either section

39-13-207 or 39-13-204 prohibits the jury from considering an aggravating

circumstance when the aggravator duplicates an element of the underlying

offense.” Id. at 7.

Although in this case the trial court instructed as an aggravator a different

element of the underlying offense, we are confronted with a nearly identical

situation. Furthermore, prior to Butler, this Court approved the use of the same

aggravator in a case in which age was an element of the offen se. State v. Danny

Ray Lacy, No. 02C 01-970 1-CC -00013 , 1997 W L 7292 61 (Ten n. Crim. A pp.,

Jackson, Nov. 25, 1997) (permitting § 39-13-204(i)(1) as an aggravating factor

in a prose cution for first d egree m urder by aggrav ated ch ild abuse ), perm. to

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appeal denied (Tenn . 1998 ). We th erefor e hold that there are no constitutional

or statutory im pedim ents to the use of § 39-13-204(i)(1) as a sentencing

aggrav ating facto r by the trial co urt in this cas e.

B. Tennessee Code Annotated § 39-13-205(i)(5)

Defendant next argues that the evidence was insufficient for the jury to find

the statutory aggravating factor in Tennessee Code Annotated § 39-13-

204(i)(5)—that the murder was “especially heinous, atrocious, or cruel in that it

involved torture or serious physical abuse beyond that necessary to produce

death.” The State contends that it presented sufficient evidence by which the jury

could have co me to this conc lusion be yond a reason able do ubt, and we agree.

“Torture” has be en define d as “the infliction of sev ere phy sical or m ental

pain upon the vict im wh ile he o r she re main s alive and con scious.” State v.

William s, 690 S.W .2d 517 , 529 (Te nn. 198 5); State v. Nes bit, 1998 WL 670966,

at *10 (Tenn., Jackson, Sept. 28 1998). In State v. Pike, 1998 WL 690064

(Tenn., K noxville, O ct. 5, 1998 ), the supre me co urt noted that “[w]ith res pect to

‘serious physical abuse beyond that necessary to produce death,’ we explained

in State v. Odom that ‘seriou s’ alludes to a matter of degree, and that the physical

abuse must be ‘beyo nd tha t’ or mo re than what is ‘nece ssary to prod uce d eath.’”

1998 WL 690064, at *14. When determining whether the evidence shows

“severe physica l or men tal pain,”

[t]he jury may use their common know ledge and experience
in deciding whether a fact is logically deducible from the
circumstances in evidence, or in making reasonable inferences from

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 the evidence, and may test the truth and weight of the evidence by
their own general knowledge and judgment derived from
experience, observ ation, and reflection; bu t neither jurors nor judges
when acting as arbiters of guilt are permitted to base their decisions
on the existence or non-existence of facts according to their
personal beliefs or experiences, but only on facts established by
legal and competent evidence or on infe rence s ded ucible from such
proven facts as a re autho rized by la w.

Fairbanks v. State, 508 S.W.2d 67, 69 (Tenn. 1974) (citing 23A C.J.S. Criminal

Law § 1373 ), quote d in Nesb it, 1998 W L 6709 66, at *11 .

According to the proof in the record, Miyoshi Richardson conclusively

sustained blunt force trauma to the head and torso, each injury being sufficient

to caus e dea th, as a result o f multip le blows causing various hemorrhaging of the

brain and lace rations to th e liver. In addition to these grievous injuries , the vic tim

showed affirmative evidence of shaken baby syndrome by her damaged,

hemorrhaging optic n erve a rea. Fin ally, in addition to her serious physical

injuries, the jury he ard evide nce tha t the child suffered both physical

torture—through an explanation of the child’s worsening symptoms throughout

the day of he r death prior to slippin g into unc onsciou sness, d ue to deprivation of

medical attention; as well as mental torture—through a detailed description of

how the tw o-yea r-old ch ild was forced to stan d with h er palm s aga inst the wall,

in a corner of the room all night long, while her mother and Defendant engaged

in sexual intercourse and slept, without being permitted to sleep, sit down, or

relieve herself. We find the evidence sufficient to perm it a jury to find this

aggravating factor.

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 VII. MAXIMUM SENTENCE FOR AGGRAVATED CHILD ABUSE

Defe ndan t’s final argum ent is that the trial court erred by imposing the

max imum senten ce av ailable by law for the c onvic tion of a ggrav ated c hild

abuse—twenty-five years as a Range I offender. He co ntends that the trial court

applied one enhancement factor in error, while also improperly denying one

mitigating factor. Although this Court must conduct a de novo review when a

criminal defendant appeals the length, range, or manner of service of sentence;

the legislat ure ha s ma ndate d a “pre sum ption that the determinations made by the

court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-

401(d). The presumption of correctness is conditioned, however, upon proper

consideration by the trial court of the sentencing principles in Tennessee Code

Annotated § 40-35 -103. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). We

find no error by the trial court in this case.

Tennessee Code Annotated § 40-35-114(5)

The trial court applied the statuto ry enh ance men t factor fo und in

Tennessee Code Annotated § 40-35-114(5): “The defendant treated or allowed

a victim to be treated with exceptional cruelty during the commission of the

offense .” Tenn. Code Ann. § 40-35-114(5). Defend ant as serts th at this

enhancement factor was improperly considered because it is inherent to the

crime—an “essential element” of the offense. Defendant cites this Cour t’s

opinion in State v. Claybrooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994), for

the proposition that “[f]actors that are inherent in a particular offense, even if not

designated as an ele ment, m ay not be applied to increase a sen tence.”

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Specifically, he arg ues th at it is impossible to inflict serious bodily injury upon a

child of six year s or less— eleme nts of the o ffense— without tre ating the c hild with

“excep tional crue lty.”

The State, in support of its argument that this enhancement factor was

appro priately applied, cites State v. Poo le, 945 S.W.2d 93 (Tenn. 1997), in which

our supre me c ourt he ld that th e elem ent of “s erious bodily injury,” as includ ed in

the offense e specially a ggrava ted robb ery, doe s not nec essarily co nstitute

“exceptional cruelty.” Id. at 98. The court stated, “In other words, the facts in a

case may sup port a finding of ‘exce ptional cruelty’ that ‘dem onstrates a culpability

distinct from a nd ap precia bly greater than that incident to’ the crime of esp ecially

aggravated robbery.” Id. We be lieve that Poole provides appropriate guidance

in this case. Defendant in this case could be convicted of aggravated child abuse

without a finding of exceptional cruelty and, for that reason, application of the

enhancement factor was permissible in this case.

B. Tennessee Code Annotated § 40-35-113(4)

Defendant’s final argument is that the trial court should have applied the

statutory mitigating factor foun d in Tenne ssee Co de Anno tated § 40-35 -113(4):

“The defendant played a minor role in the comm ission of the offense.” The trial

court was w ithin its a uthority to rejec t this mitigating factor in light of the evidence

presented. Even if the evidence showed that Kena Hodges inflicted the blunt

force trauma upon the victim, Defendant at the very least ignored the obvious,

severe medical peril of a helpless, two-year-old child for whom he had accepted

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a primary care responsibility on a regular basis and for whom he had accepted

a parental relationship. Taken even in the light m ost favora ble to Defendant, the

evidence does not portray a minor role for him.

C. Maximum Sentence

Under Tenn esse e Cod e Ann otated § 40-3 5-210 , the trial c ourt sh all

presu mptiv ely apply the mid-point of the sentencing range for Class A felonies.

Tenn. Code Ann. § 40-35-210(c). H ere, the m id-point of th e range is twenty

years because Defenda nt is a Range I offender. Whe n enhanc ement fac tors are

found but no mitigating factors are found, the trial court may sentence a

defendant above this presumptive sentence.7 Because the trial court found two

statutory enha ncem ent fac tors, w e con clude that the trial cou rt did no t err in

senten cing Defe ndan t to twe nty-five years on the charg e of ag grava ted ch ild

abuse .

In conclusion, we affirm the judgment of conviction for first degree murder

committed during perpe tration o f aggra vated child abuse and the conviction for

aggravated child abuse. Furthermore, we affirm Defen dant’s se ntence s of life

imprisonment without the possibility of parole for murder an d twenty-five yea rs

for aggravated child abuse.

7
Despite the fact that a plain-language reading of § 40-35-210 would indicate that a
sentencing court must return to the minimum sentence in the range when enhancement factors
are present (although the presumptive sentence with no mitigating or enhancement factors is
the mid-point), the appropriate and correct result is to start from the mid-point of the range.
See State v. Katherine Irene Warren, No. 01C01-9710-CC-00455, 1998 WL 749412, at *4
(Tenn. Crim. App., Nashville, Oct. 28, 1998) (following State v. Chance, 952 S.W.2d 848 (Tenn.
Crim. App. 1997), which noted the incongruity of § 40-35-210(c), (d), and (e), but concluded
that a plain-language reading of its provisions would create an absurd result).

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 ____________________________
DAVID H. WELLES, JUDGE

CONCUR:

______________________________
JERRY L. SMITH, JUDGE

______________________________
JOHN K. BYERS, SENIOR JUDGE

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