State of Tennessee v. Antonio Terrell Pewitte

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 21, 2016

STATE OF TENNESSEE v. ANTONIO TERRELL PEWITTE

Appeal from the Criminal Court for Davidson County
No. 2014-A-511 J. Randall Wyatt, Jr., Judge
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No. M2015-02103-CCA-R3-CD – Filed November 14, 2016
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Defendant, Antonio Terrell Pewitte, was convicted of aggravated child neglect and
received a sentence of twenty years. Defendant raises the following issues in his direct
appeal: (1) whether the trial court erred by failing to require the State to make an election
of offenses; (2) whether the evidence is sufficient to support his conviction; (3) whether
the trial court abused its discretion by admitting multiple photographs of the victim‟s
injuries; (4) whether the trial court erred by admitting hearsay testimony; (5) whether the
trial court abused its discretion by not granting a mistrial based on prosecutorial
misconduct during closing argument; and (6) whether the trial court abused its discretion
during sentencing. Following a careful review of the record, the judgment of the trial
court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, J., joined. NORMA MCGEE OGLE, J., filed a concurring opinion.

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal), Emma Rae
Tennent (on appeal), Jonathan Wing (at trial), and Ellen Forrester (at trial), Assistant
Public Defenders, for the appellant, Antonio Terrell Pewitte.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Brian Holmgren (at trial) and
Katie Miller (at sentencing), Assistant District Attorneys General, for the appellee, State
of Tennessee.

OPINION
 Factual Summary

For placing the hands of his girlfriend‟s daughter under scalding hot water,
Defendant was charged with one count of aggravated child abuse resulting in serious
bodily injury, see T.C.A. § 39-15-402(a)(1), one count of aggravated child abuse
accomplished by use of a dangerous instrumentality, see T.C.A. § 39-15-402(a)(2), one
count of aggravated child neglect resulting in serious bodily injury, see T.C.A. § 39-15-
402(a)(1), and one count of aggravated child neglect accomplished by use of a dangerous
instrumentality, see T.C.A. § 39-15-402(a)(2). All of these charges were indicted as
alternative theories for the same criminal conduct. Defendant and his girlfriend, Mother,
had been dating for almost three years at the time of the incident. She had a son, M.O.,
and a daughter, N.C., who was six years old.1 Mother and her children lived with
Defendant and his young son.

On the evening of December 1, 2013, Mother was at work, and Defendant was
watching her children. Before dinner, N.C. went into the bathroom next to the kitchen
and began washing her hands with cold water. Defendant and the other children were at
the kitchen table waiting on N.C. to finish washing her hands so that they could begin
eating together. Defendant joined N.C. in the bathroom and turned the faucet handle to
hot water. Defendant then “grabbed” her wrists and put her hands under the hot water so
that the water ran over the back of her hands and thumbs. N.C. testified that the hot
water was “painful” and that she cried when she felt it. N.C. said that Defendant did not
apply soap to her hands or rub her hands together while her hands were under the water.
According to N.C., Defendant also “tried to put [her] face in the water.”

N.C. thought that Defendant changed the water temperature because she was
“taking too long,” and she thought he was “angry.” N.C. also testified that, prior to the
incident, Defendant believed that N.C. was “messing with nail polish,” so he punished
her by making her “stand in the corner with one leg up and one leg down” while raising
both of her hands to her head. N.C. thought that Defendant put her hands under the hot
water on purpose and that it was not an accident.

Afterward, Defendant told N.C. to go sit down at the kitchen table, and she
complied. During dinner, N.C.‟s hands hurt and made it difficult for her to use her fork.
Throughout the night, N.C. had trouble sleeping because her hands hurt.

M.O., who was twelve years old at the time of trial, testified that he was at the
kitchen table and heard N.C. scream after Defendant went into the bathroom with her.
M.O. saw that N.C.‟s hands were red, but he did not recall Defendant doing anything to
help treat N.C.‟s hands. M.O. also heard N.C. “moaning” before she went to bed.

1
It is the policy of this Court to protect the identities of minor victims and witnesses.
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 While Mother was at work, she talked with Defendant on the phone around half a
dozen times. He told her that N.C. was playing with her nail polish and said that he was
going to let Mother “handle it” when she got home. According to Mother, Defendant
sounded “angry.” On one of the phone calls, Defendant made N.C. tell Mother that she
was in trouble because she “lied” about playing with the nail polish. Mother testified that
she did not believe her daughter lied about the nail polish because N.C. was crying on the
phone. Although they spoke on the phone numerous times, Defendant never called
Mother to tell her that N.C.‟s hands were burned, and he did not mention the incident to
Mother when she returned home from work. Mother‟s shift ended at 11 p.m. When she
got home, she fell asleep on the couch in the living room.

The following morning, N.C. awakened Mother and said that her hands hurt.
Mother observed that there were blisters on the front and back of N.C.‟s hands. The
blisters covered “most” of her hands. Mother was “shocked” and “worried.” Mother
woke up Defendant and asked him what happened.

Given the nature of the injuries, Mother thought that N.C. needed to go to the
hospital, but Defendant disagreed. Defendant told Mother that she was “stupid” and said
that N.C. “didn‟t need to go to no f***ing hospital.” Then, Defendant soaked N.C.‟s
hands in rubbing alcohol and tried to “pop” the blisters with a safety pin. Mother went to
the store and bought gauze wrap and Neosporin cream. She used both to treat N.C.‟s
hands.

Mother called her mother, Carla Agins, and told her about what happened. After
learning that N.C.‟s hands were burned, Ms. Agins called 911 and the hotline for the
Department of Children‟s Services. According to Ms. Agins, Mother seemed scared
because she was whispering on the phone.

Detective Jeffrey Gibson of the Nashville Police Department went to the house
and inspected the bathroom where the incident occurred. When Detective Gibson
arrived, Defendant was cooperative and seemed “visibly upset.” The sink‟s faucet had a
single lever which turned back and forth horizontally to change the water temperature.
Detective Gibson turned on the hot water as high as it would go and then he used a digital
thermometer to check the temperature of the water over a period of about two minutes.
The temperature of the water fluctuated, but the highest reading was 141.6 degrees
Fahrenheit, and the most consistent temperature reading was around 131.6 degrees
Fahrenheit. When Detective Gibson checked the water temperature with an analog
thermometer, it reached almost 130 degrees Fahrenheit. While the water was running,
steam would come from the water intermittently.

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 After checking the hot water heater, Detective Gibson discovered that the
temperature control dial was on the setting just below the hottest. The hot water heater
was located next to the bathroom, so the water would not have had to travel far before
reaching the bathroom faucet. Mother testified that she had not adjusted the hot water
heater temperature settings. She was not aware that anyone had previously been burned
by the hot water in their home. The house in which they lived was government-owned
housing, so the tenants did not handle maintenance issues.

An ambulance took N.C. to the hospital, where she remained for six days, during
which she received aqua therapy and had to perform exercises “to keep flexibility in her
hands.” N.C. stayed on pain medication throughout the hospitalization. Mother had to
change N.C.‟s bandages twice a day after N.C. was discharged, and N.C. had to continue
doing flexibility exercises for two months.

Carrie Donnell was a nurse practitioner at Vanderbilt University Medical Center
who evaluated N.C. in the emergency department on the day after the incident. The trial
court certified her as an expert in child abuse pediatrics without objection. Ms. Donnell
described N.C.‟s injuries as a mix of superficial thickness burns and partial thickness
burns located on “the palm and the back of her hand and then extended from her wrist
down to her fingers” on each hand. Ms. Donnell explained:

[B]urns are described . . . on a continuum being partial thickness to full
thickness burns. And within partial thickness, you can have superficial and
deep partial thickness burns. So, if you think about a superficial burn, it
would be like a sunburn, redness to the skin, but no loss of skin. And then,
as the burn progresses and gets . . . deeper, you will have blistering and loss
of skin. In a full thickness burn, [it] would enter into subcutaneous tissue
and even bone.

The majority of N.C.‟s burns were partial thickness burns, including deep partial
thickness burns on both hands. Ms. Donnell explained that “superficial and partial
thickness burns are actually more painful than full thickness burns . . . because the nerve
endings are exposed but not yet killed off, . . . and the full thickness burns are so deep
that the nerve endings are just completely [gone], . . . so you don‟t actually feel that
sensation anymore.” Because N.C.‟s burns were of the former type, they required
“ongoing pain management” until they healed.

After N.C. sustained the injuries, “her hands would have been obviously very red.
While they might not have been blistered immediately upon burn—that would have
developed over some time—but it would have been clear to any prudent caregiver that
she had been injured.” Ms. Donnell explained that immediate medical attention is “very
important” for a child with such injuries in order to reduce the risk of developing
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“difficulty in flexing that extremity or body part.” Ms. Donnell testified that popping the
blisters and applying burn ointment was not “an appropriate form of medical
intervention” for N.C.‟s injuries because opening a wound increases the risk of infection.
N.C.‟s injuries caused loss of pigmentation to her skin and also reduced the range of
motion in her hands.

Ms. Donnell testified that the burns on N.C.‟s hands were consistent with both
hands having been placed “perpendicular to the floor” with the thumbs upwards
underneath the hot water. According to Ms. Donnell, a child can comfortably wash in hot
water with a temperature of about 101 degrees, and burns can begin forming at 113
degrees with prolonged exposure. A child like N.C. would be expected to cry out in pain
and withdraw from 113-degree water. Accordingly, N.C.‟s injuries were not accidentally
self-inflicted. N.C.‟s burns required “increased temperature and increased exposure
time” beyond that of quick contact with 113-degree water. Ms. Donnell testified that, in
water of 130 degrees Fahrenheit, it would take approximately six to ten seconds for a
child to sustain the injuries that N.C. did. A full thickness burn would result after
approximately one second from a child‟s exposure to water of 140 degrees Fahrenheit.

Defendant did not testify. The jury convicted Defendant of one count of
aggravated child neglect, a Class A felony, and acquitted him of the other three counts.
The trial court sentenced Defendant to serve twenty years and denied his motion for new
trial. Defendant timely filed a notice of appeal.

Analysis

Defendant raises the following issues: (1) whether the trial court erred by failing to
require the State to make an election of offenses; (2) whether the evidence is sufficient to
support his conviction; (3) whether the trial court abused its discretion by admitting
multiple photographs of the victim‟s injuries; (4) whether the trial court erred by
admitting hearsay testimony; (5) whether the trial court abused its discretion by not
granting a mistrial based on prosecutorial misconduct during closing argument; and (6)
whether the trial court abused its discretion during sentencing.

A. Election of Offenses

Defendant argues that his right to a unanimous jury verdict was violated when the
trial court refused to require the State to elect which offense it was prosecuting under
each count of the indictment. He maintains that the jury‟s guilty verdict for aggravated
child neglect could have been based on either his conduct in holding the victim‟s hands
under hot water or his conduct in failing to seek prompt medical assistance for the victim.
The State argues that no election was required because Defendant‟s continuing course of
conduct was a single offense. We agree with the State.
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 A criminal defendant‟s constitutional right to a jury trial includes the right to a
unanimous jury verdict. See State v. Lemacks, 996 S.W.2d 166, 169-70 (Tenn. 1999).
“[W]here the prosecution presents evidence to the jury that tends to show more than one
criminal offense, but the underlying indictment is not specific as to the offense for which
the accused is being tried,” the trial court must require the State to elect which offense it
is submitting for the jury‟s consideration. Id. at 170. The purpose of the election
requirement is to prevent “patchwork” verdicts, wherein some of the jury base their
decision on one offense, while others base their decision on another offense. State v.
Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). Accordingly, no election is necessary where
there is only evidence of a single offense. State v. Adams, 24 S.W.3d 289, 294 (Tenn.
2000).

In Adams, our supreme court declared that child neglect may be a single,
“continuing course of knowing conduct beginning with the first act or omission that
causes adverse effects to a child‟s health or welfare” and continuing “until the person
responsible for the neglect takes reasonable steps to remedy the adverse effects to the
child‟s health and welfare caused by the neglect.” Id. at 296. Although not always the
case, “a continuing offense may be composed of multiple discrete acts where a single
scheme or motivation is present.” Id.

In this case, the conduct for which Defendant was prosecuted and convicted was a
continuing course of conduct which began when he caused the victim‟s hands to be
burned by holding them under hot water and continued for as long as he failed to properly
attend to her injuries.2 This remains true even though the course of conduct was
composed of more than one discrete act. While failure to seek medical care, in some
cases, may constitute the entirety of the allegedly criminal conduct for a charge of
neglect, we do not believe that it necessarily follows that an election of offenses is
required anytime a period of failure to seek medical care accompanies other discrete
conduct which more directly contributes to the infliction of injury. Under these
circumstances, there was no need for an election of offenses because the neglect charges
were predicated upon a single, continuing course of conduct, and therefore, the evidence
only suggested a single criminal offense of neglect. Defendant is not entitled to relief on
this basis.

B. Sufficiency of the Evidence

2
Indeed, the jury instructions informed the jury as much: “„Neglect‟ is a continuing course of
conduct beginning with the first act or omission that causes adverse effects to a child‟s health and welfare
and can be an act of commission or omission. Neglect also includes a failure to provide or seek
appropriate medical care.”
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 Closely related to the preceding argument, Defendant argues that the evidence is
insufficient to support his conviction for aggravated child neglect because “[n]o evidence
established that the defendant‟s failure to seek immediate medical treatment, or any other
act of neglect, caused serious bodily injury to the victim.” The State disagrees.

When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question
the reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury‟s verdict replaces
the presumption of innocence with one of guilt; therefore, the burden is shifted onto the
defendant to show that the evidence introduced at trial was insufficient to support such a
verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to
the “„strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.‟” State v. Goodwin, 143 S.W.3d 771, 775
(Tenn. 2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). It is not the role
of this Court to reweigh or reevaluate the evidence, nor to substitute our own inferences
for those drawn from the evidence by the trier of fact. Reid, 91 S.W.3d at 277.
Questions concerning the “„credibility of the witnesses, the weight to be given their
testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury
as the trier of fact.‟” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State
v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “„A guilty verdict by the jury,
approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution‟s theory.‟” Reid, 91 S.W.3d at 277
(quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). This standard of review
applies whether the conviction is based upon direct evidence, circumstantial evidence, or
a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

Tennessee Code Annotated section 39-15-401(b) makes it a crime to “knowingly .
. . neglect[] a child under eighteen (18) years of age, so as to adversely affect the child‟s
health and welfare[.]” When the neglect “results in serious bodily injury to the child,” it
becomes aggravated child neglect. T.C.A. § 39-15-402(a). Serious bodily injury
includes “extreme physical pain,” “protracted or obvious disfigurement,” “protracted loss
or substantial impairment of a function of a bodily member,” and “second- or third-
degree burns.” T.C.A. § 39-11-106(34); T.C.A § 39-15-402(d). To establish the offense,
“the defendant‟s neglect [must have] produced an actual, deleterious effect or harm upon
the child‟s health and welfare,” rather than merely “a risk of harm.” State v. Mateyko, 53
S.W.3d 666, 671-72 (Tenn. 2001).

The evidence in this case establishes that Defendant joined the victim in the
bathroom as she was washing her hands for dinner. He turned the water faucet from cold
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to hot, grabbed both of the victim‟s wrists, and held her hands under the hot water. The
victim yelled and began crying because the water was painfully hot. Later, she had
difficulty using her fork at dinner and had trouble sleeping because of the burns on her
hands. The victim‟s brother noticed that her hands were red and heard her moaning
before she went to sleep. The following morning, the victim‟s hands continued to hurt
and were covered in severe blisters. Although the victim‟s mother wanted to take the
victim to a doctor, Defendant refused and instead chose to treat the victim‟s injuries by
popping the blisters with a safety pin. The victim‟s mother then applied ointment and
wrapped the injuries with bandages.

Ultimately, the victim sustained both superficial thickness and partial thickness
burns on both of her hands. The medical expert testified that these types of burns were
more painful than other types of more severe burns and required continuous pain
management. The medical expert also testified that Defendant‟s methods of treating the
injuries were inappropriate because they increased the risk of infection. The victim‟s
injuries precipitated a six-day hospital stay and required months of physical therapy.
Even after treatment, the victim‟s hands remained discolored and suffered a reduced
range of motion.

The hot water heater in Defendant‟s home was set on the next to hottest
temperature setting and was producing water up to around 130 degrees Fahrenheit with
possible spikes in temperature over 140 degrees Fahrenheit. Even after the incident
occurred, Defendant did not take any action to mitigate the victim‟s suffering, such as
running her hands under cool water or giving her pain reducer. Although Defendant was
on the phone with the victim‟s mother throughout the day, he never informed her about
the incident.

Defendant does not contest that the victim suffered serious bodily injury or that
the evidence is sufficient to establish knowing neglect of the victim. Instead, he
maintains that the victim‟s burns were caused by his conduct in holding the victim‟s
hands under hot water, for which the jury acquitted him of child abuse, and were not
caused by his conduct in failing to seek prompt medical attention for the victim, for
which he was convicted of child neglect. Accordingly, Defendant argues that the
evidence is insufficient to support his conviction for aggravated child neglect because his
neglectful conduct did not cause the victim‟s serious bodily injury. We disagree.

As explained above, Defendant‟s conviction for aggravated child neglect is
predicated on a single, continuing course of conduct which includes the burning of the
victim‟s hands and the ensuing failure to seek medical treatment. It was that entire
course of conduct which caused not only the victim‟s burns but also her accompanying
extreme physical pain, which persisted until she received proper medical attention.
Defendant draws several conclusions from the jury‟s acquittal on the other three counts to
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support his argument that the neglectful conduct was limited to his failure to seek medical
attention for the victim. However, in accordance with our case law regarding
inconsistent verdicts, we decline to make any extrapolations from the acquittals. See,
e.g., State v. Davis, 466 S.W.3d 49, 76-77 (Tenn. 2015).

Defendant relies on a line of cases holding that, when a defendant is convicted of
both child abuse and child neglect, there must “exist some evidence that the alleged act of
neglect resulted in serious bodily injury in addition to and apart from the serious bodily
injury caused by the initial act or abuse.” State v. Wanda Elaine Brock, No. E2009-
00785-CCA-R3-CD, 2011 WL 900053, at *5 (Tenn. Crim. App. Mar. 16, 2011), no
perm. app. filed.3 However, those cases are distinguishable. This was not a case where
the neglect charge was confined to ongoing failure to seek medical treatment. Neither
was this a case where the State was seeking two separate convictions for separate acts of
abuse and neglect, such that each offense required a separate injury.4 Here, both parties
and the trial court understood, acknowledged, and agreed that the State was ultimately
seeking only one conviction and that all counts were alternative theories of guilt for the
same continuing course of conduct because the State was uncertain about how the jury
would interpret the proof. Thus, we conclude that the evidence was sufficient for a
rational jury to find that this entire course of conduct, which began with Defendant
neglectfully holding the victim‟s hands under hot water and continued through
Defendant‟s failure to seek medical treatment, caused the victim‟s injuries.

C. Photographs of Injuries

3
Defendant also cites State v. James Prindle, No. W2012-02285-CCA-R3-CD, 2014 WL
683879, at *22-23 (Tenn. Crim. App. Feb. 19, 2014), perm. app. denied (Tenn. Sept. 18, 2014); State v.
Jeffrey Scott Gold, No. E2012-00387-CCA-R3-CD, 2013 WL 4278760, at *13-14 (Tenn. Crim. App.
Aug. 15, 2013), perm. app. denied (Tenn. Jan. 14, 2014); State v. Marcos Acosta Raymundo, No. M2009-
00726-CCA-R3-CD, 2010 WL 4540207, at *13-15 (Tenn. Crim. App. Nov. 10, 2010); State v. John
Barlow, No. W2008-01128-CCA-R3-CD, 2010 WL 1687772, at *11 (Tenn. Crim. App. Apr. 26, 2010),
perm. app. denied (Tenn. Sept. 24, 2010); State v. Denise Wiggins, No. W2006-01516-CCA-R3-CD,
2007 WL 3254716, at *4-5 (Tenn. Crim. App. Nov. 2, 2007), perm. app. denied (Tenn. Mar. 3, 2008);
and State v. Vernita Freeman, No. W2005-02904-CCA-R3-CD, 2007 WL 426710, at *1 (Tenn. Crim.
App. Feb. 6, 2007).
4
Some of the cases cited by Defendant were decided before our supreme court‟s observation in
Dorantes, 331 S.W.3d at 385 n.15, that child abuse and child neglect are now separate offenses rather
than a single offense committed by alternative courses of conduct, as was previously the case, see
Mateyko, 53 S.W.3d at 668 n.1. As such, it remains to be determined whether convictions for both child
abuse and child neglect can stand for the same course of conduct. Cf. State v. Vernica Shabree Calloway,
No. M2011-00211-CCA-R3-CD, 2014 WL 1394653, at *29 n.6 (Tenn. Crim. App. Apr. 4, 2014) (taking
no position on whether dual convictions may stand without merger where a charge of child abuse is
predicated upon one act in a continuous course of conduct which is also the basis for a charge of child
neglect), perm. app. denied (Tenn. Sept. 25, 2014). We need not take a position on it here because
Defendant was only convicted of one offense.
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 Defendant argues that the trial court erred by admitting numerous photographs of
the victim‟s injuries at various stages of treatment and healing because many of the
photographs were unnecessarily cumulative and unfairly prejudicial. The State disagrees.

To be admissible, evidence must satisfy the threshold determination of relevancy
mandated by Rule 401 of the Tennessee Rules of Evidence. See, e.g., State v. Banks, 564
S.W.2d 947, 949 (Tenn. 1978). Rule 401 defines “relevant evidence” as being “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. However, relevant “evidence may be excluded if its
probative value is substantially outweighed by . . . the danger of unfair prejudice.” Tenn.
R. Evid. 403; see also Banks, 564 S.W.2d at 951. The term “unfair prejudice” has been
defined as “[a]n undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.” Banks, 564 S.W.2d at 951 (quoting Fed. R.
Evid. 403, Advisory Comm. Cmts).

Graphic, gruesome, or even horrifying photographs of crime victims may be
admitted into evidence if they are relevant to some issue at trial and their probative value
is not substantially outweighed by their prejudicial effect. Banks, 564 S.W.2d at 949-51.
On the other hand, “if they are not relevant to prove some part of the prosecution‟s case,
they may not be admitted solely to inflame the jury and prejudice them against the
defendant.” Id. at 951 (citing Milam v. Commonwealth, 275 S.W.2d 921 (Ky. 1955)).
The decision as to whether such photographs should be admitted is entrusted to the trial
court, and that decision will not be reversed on appeal absent a showing of an abuse of
discretion. Id. at 949; State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993).

In Banks, the Supreme Court gave the trial courts guidance for determining the
admissibility of relevant photographic evidence and determined that a trial court should
consider the following: (1) the accuracy and clarity of the picture and its value as
evidence; (2) whether the picture depicts the body as it was found; (3) the adequacy of
testimonial evidence in relating the facts to the jury; and (4) the need for the evidence to
establish a prima facie case of guilt or to rebut the defendant‟s contentions. Id. at 951.
“Moreover, the admissibility of photographic evidence does not depend upon the
defendant‟s offer to stipulate to the facts depicted therein.” State v. Carruthers, 35
S.W.3d 516, 577 (Tenn. 2000).

In this case, the trial court denied a pre-trial motion to suppress photographs of the
victim‟s injuries, and at trial, it admitted thirteen photographs. Seven of those
photographs were taken on the day of the victim‟s admittance to the hospital; four
photographs were taken on the following day; and the remaining two were taken at
different times later in the healing process. Of the first seven, there is one photograph of
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each side of each of the victim‟s hands, showing the blisters. The remaining three in that
group are similar to the previous photographs but include a ruler next to the victim‟s
hands. Of the four photographs taken on the second day of her hospital stay, there is one
photograph for each side of each hand, showing partially removed blisters. The next
photograph shows the palm side of the victim‟s right hand with debrided blisters. The
last photograph shows the backside of both of the victim‟s hands and the loss of
pigmentation resulting from the burns.

Defendant argues that the three additional photographs of the initial seven were
cumulative. Defendant also argues that the photographs taken later in the healing process
were not relevant to the nature of the injuries. We disagree. While the photographs were
accompanied by testimony from the medical expert, we believe the photographs were still
probative and helpful to the jury. The State was required to prove serious bodily injury,
and the photographs were relevant to prove the nature of the victim‟s injuries. Evidence
of disfigurement and impairment of function as depicted in the latter photographs is
relevant to serious bodily injury as defined by statute. We note that all of the pictures are
unpleasant, but none are particularly repulsive or gruesome. The number of photographs
is not excessive. Having reviewed the photographs, we cannot say the trial court abused
its discretion by admitting any of the photographs.

D. Hearsay

Defendant argues that the trial court erred by admitting into evidence statements
made by the victim to the nurse practitioner at the hospital. Defendant maintains that the
statements were procured for the purpose of facilitating criminal prosecution rather than
for medical diagnosis and treatment. The State disagrees.

Tennessee Rule of Evidence 803(4) allows for the admission of hearsay in the
form of statements for the purposes of medical diagnosis or treatment. The rule requires
either that (1) the statement must have been made for the purposes of diagnosis and
treatment, in effect describing medical history, past or present symptoms, or pain or
sensations, or (2) the statement must address the cause or source of the problem if
reasonably pertinent to diagnosis and treatment. State v. McLeod, 937 S.W.2d 867, 870
(Tenn. 1996). This hearsay exception is justified because “the declarant‟s motive of
obtaining improved health increases the statement‟s reliability and trustworthiness.”
State v. Barone, 852 S.W.2d 216, 220 (Tenn. 1993). In addition, “if physicians or other
medical personnel rely upon the statement in diagnosing and treating the patient, then the
statement should be sufficiently trustworthy to be admissible in a court of law.” McLeod,
937 S.W.2d at 870 (citing Barone, 852 S.W.2d at 220; State v. Edwards, 868 S.W.2d
682, 699 (Tenn. Crim. App. 1993)).

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 In order to determine the admissibility of a statement made by a child-declarant
pursuant to Rule 803(4), the trial court is required to conduct an evidentiary hearing
outside the jury‟s presence. Id. at 869. When determining whether a child‟s statement
qualifies for a hearsay exception under Rule 803(4), the trial court “must consider criteria
such as the circumstances surrounding the making of the statement,” including “the
timing of the statement and its contents,” whether “the statement was inappropriately
influenced by another,” whether the statement “was in response to suggestive or leading
questions,” and whether there were any other factors that might “affect trustworthiness,
such as a bitter custody battle or family feud.” Id. at 871.

Ms. Donnell was employed by Vanderbilt University Hospital and worked in their
Child Abuse Response and Evaluation (“CARE”) Team. The CARE Team is called in to
evaluate injuries possibly caused by child abuse or neglect. Ms. Donnell and her team act
as a liaison with the Department of Children Services and law enforcement officers when
necessary. The CARE Team works on over 200 cases each year, and Ms. Donnell
handles about a third of those cases. In every case, Ms. Donnell takes a medical history
from the child, if able to speak, as well as the caregiver. The medical history includes
questions about the source of and the circumstances surrounding an injury because that
information is useful in formulating a medical diagnosis and recommendations for
treatment. Medical professionals also use this information to ensure that a child will not
be released back into an environment where the injury may occur again. Knowledge of
previous injuries or a history of domestic violence against a patient would be utilized by
any medical professional in diagnosing and treating an injury. In her capacity, Ms.
Donnell does not actually provide treatment to patients, but she makes treatment
recommendations to the attending physician. Ms. Donnell testified, “The purpose of my
evaluation is strictly medical. It has an investigative value, but we are not investigators . .
. .”

At trial, the prosecutor asked Ms. Donnell to read the medical history portion of
her medical record for N.C. Ms. Donnell conveyed the following:

I first met with [N.C.] at the bedside who reports that last night she was
washing her hands in the bathroom before dinner and that her mother‟s
boyfriend, who she refers to as daddy, purportedly told her to “hurry up and
wash her hands.” When I asked how she hurt her hands, she states, “My
daddy put them under hot water.” When asked why she thinks he did that,
she states, “I was going slow, washing, and then he came in and put it on
hot water.” She reports that he was “mad” when he did this “because he is
tired of me because I didn‟t hurry up and wash my hands.” When asked
what . . . the temperature was when she first went in the bathroom to wash
her hands, she states, “I put it on cold water first.” She states that, after he
turned the water to hot, “He put my hands under hot water.” She reports
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 that she pulled her hands out of the water. She reports that she did not say
anything at the time but states, “My hands were red. It hurt.” When asked
if her father said anything to her after that, she states, “He told me to sit
down.”

Later, Ms. Donnell testified that N.C. told her that she had been placed in a corner
as a form of discipline. She also related what she learned about the incident from
Mother. Mother told her that N.C.‟s hands looked like “water balloons” and that N.C.
appeared to be in pain. Mother also explained what she and Defendant did to treat the
burns and told Ms. Donnell that she called her mother about the incident.

Defendant relies on State v. Cannon, 254 S.W.3d 287, 304-05 (Tenn. 2008), where
our supreme court held that statements made by a patient to a sexual assault nurse
examiner violated the Confrontation Clause. However, that case is factually
distinguishable from this case, and the court only conducted a Confrontation Clause
analysis—it did not discuss whether the victim‟s statements satisfied the hearsay
exception under Rule 803(4).

Our courts have routinely applied this hearsay exception to statements of victims
provided in response to questions about how an injury was inflicted. See, e.g., State v.
Parker, 350 S.W.3d 883, 901 (Tenn. 2011). Additionally, our supreme court has
determined that “statements made to a physician identifying a perpetrator who is a
member of a child‟s household may be reasonably pertinent to proper diagnosis and
treatment of emotional and psychological injury.” State v. Stinnett, 958 S.W.2d 329, 333
(Tenn. 1997) (quoting State v. Livingston, 907 S.W.2d 392, 397 (Tenn. 1995)). Here,
Ms. Donnell testified that she was conducting a medical evaluation not an investigation.
Her questions about the nature of the injury and the circumstances under which it was
caused were intended to elicit information that any physician would utilize in diagnosing
and treating injuries to a child. Similarly, the statements made by the victim‟s mother
describing the victim‟s injuries and the steps taken to provide treatment prior to
hospitalization were relevant to diagnosis and treatment. The trial court did not err by
admitting testimony about the statements made regarding the victim‟s injuries.
Defendant is not entitled to relief on this issue.

E. Prosecutorial Misconduct

Defendant argues that the trial court erred by failing to grant a mistrial based on
inappropriate closing argument by the prosecutor. The State responds that no
prosecutorial misconduct occurred.

A trial court has the authority to declare a mistrial, and its decision is reviewed for
an abuse of discretion. See State v. Nash, 294 S.W.3d 541, 546 (Tenn. 2009).
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“Normally, a mistrial should be declared only if there is a manifest necessity for such
action.” State v. Saylor, 117 S.W.3d 239 (Tenn. 2003). A mistrial is appropriate when “a
trial cannot continue, or a miscarriage of justice would result if it did.” Id. (internal
quotation omitted).

Closing argument is “a valuable privilege that should not be unduly restricted.”
Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001); see State v. Bane, 57 S.W.3d 411, 425
(Tenn. 2001); State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). Closing arguments
“have special importance in the adversarial process,” allowing the parties “to present
their theory of the case and to point out the strengths and weaknesses in the evidence to
the jury.” State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008). Attorneys “should be given
great latitude in both the style and the substance of their arguments.” Id. at 131. “[A]
prosecutor‟s closing argument must be temperate, must be based on the evidence
introduced at trial, and must be pertinent to the issues in the case.” Id. Although not
exhaustive, this Court has recognized five general areas of prosecutorial misconduct
during closing arguments: (1) intentionally misstating the evidence or misleading the jury
as to the inferences it may draw; (2) expressing personal beliefs or opinions as to the truth
or falsity of any testimony or evidence or the guilt of the defendant; (3) inflaming or
attempting to inflame the passions or prejudices of the jury; (4) injecting issues broader
than the guilt or innocence of the accused; (5) arguing or referring to facts outside the
record unless the facts are matters of common public knowledge. State v. Goltz, 111
S.W.3d 1, 6 (Tenn. Crim. App. 2003).

A trial court has significant discretion in controlling closing argument, and its
decisions relative to the contents of argument may only be reversed upon an abuse of
discretion. Terry, 46 S.W.3d at 156; State v. Trusty, 326 S.W.3d 582, 607 (Tenn. Crim.
App. 2010). “A criminal conviction should not be lightly overturned solely on the basis
of the prosecutor‟s closing argument.” Banks, 271 S.W.3d at 131. Instead, “an improper
closing argument will not constitute reversible error unless it is so inflammatory or
improper that it affected the outcome of the trial to the defendant‟s prejudice.” Id. In
reviewing the propriety of a prosecutor‟s closing argument, this Court considers:

(1) the conduct at issue in light of the facts and circumstances of the case,
(2) the curative measures undertaken by the trial court and the prosecution,
(3) the intent of the prosecutor in making the improper argument, (4) the
cumulative effect of the improper argument and any other errors in the
record, and (5) the relative strengths and weaknesses of the case.

Id.; Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

Defendant first complains about allusions to a fictitious radio show character
called “The Shadow.” The prosecutor quoted a line from the show, “Who knows what
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evil lurks in the hearts of men? The Shadow knows.” The prosecutor then went on to
make several comments and ask rhetorical questions about the difficulty of discerning
one‟s intent or motives for one‟s conduct. When concluding, the prosecutor said, “Ladies
and gentlemen, who knows what evil lurks in the hearts of men? You have seen a little
glimpse of that evil in the courtroom.”

Having carefully reviewed the transcript of the State‟s closing argument, it appears
that the purpose of these comments may have been to highlight that the jury had the
difficult responsibility of determining the nature of Defendant‟s conduct and his
accompanying state of mind. However, we believe that the prosecutor‟s statements using
the word “evil” were improper because, in this context, they subtly suggested that the
defendant either had an evil heart or embodied the evil “glimpse[d]” in the courtroom by
the jury.

Defendant next complains about the prosecutor‟s references to child abuse cases in
general. The prosecutor argued that cases involving burns always occur in “a two-step
process” involving a preparatory step and then an execution step. The prosecutor then
suggested that the preparatory step in such cases is evidence of the accused‟s guilty state
of mind. While making this argument, the prosecutor referred to other instrumentalities
that are commonly involved in burn cases, such as hot water, a lighter, a cigarette, and an
iron. Defendant maintains that the prosecutor was arguing evidence outside of the record
by making these references. However, we do not think that is an accurate
characterization of that argument. The prosecutor never asserted or suggested that any of
those other hypotheticals occurred in this case. Instead, he was merely using examples of
other types of conduct to help the jury understand the State‟s theory of the case—that
Defendant intended to harm the victim and “staged” his crime by turning the water faucet
from cold to hot. While we take no position on the efficacy of such an argument, we
cannot say that the prosecutor‟s comments amounted to inappropriately arguing evidence
outside of the record.

Last, Defendant complains about a statement made by the prosecutor in his
rebuttal closing argument: “[Defense counsel] suggests that we are essentially arguing
that a parent who carries a baby out and slips and falls on the ice is guilty of child abuse
or neglect. How many of those cases do you think I have prosecuted?” Defendant
maintains that the prosecutor was invoking the reputation of his office and his personal
judgment to implicitly vouch for the integrity of the prosecution in this case. We agree.
In this instance, the prosecutor‟s remark implied that he would not have prosecuted this
particular case against Defendant unless he personally believed Defendant was guilty.
Expressions of personal belief about the case which “exploit the influence of the
prosecutor‟s office” are prohibited. Goltz, 111 S.W.3d at 6. This comment was
improper.

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 Nonetheless, under the totality of the circumstances, we conclude that the
improper comments made during closing argument did not constitute such error that
warranted a mistrial. The improper comments during closing argument were neither
particularly egregious nor pervasive. We do not believe that the comments were “so
improper ... or inflammatory that it affected the verdict to the [defendant's] detriment.”
See Goltz, 111 S.W.3d at 5. Furthermore, any benefit that would have presumably
inured to the State from the improper comments appears to have not materialized because
the jury did not find Defendant guilty of child abuse on the State‟s theory of intentional
mistreatment of the victim. Based on the record as a whole, we conclude that the trial
court did not abuse its discretion by failing to grant a mistrial based on the prosecutor‟s
improper comments during closing argument. Defendant is not entitled to relief on this
basis.

F. Sentencing

Defendant argues that the trial court abused its discretion by imposing an
excessively lengthy sentence. When a defendant challenges the length or manner of
service of a within-range sentence, this Court reviews the trial court‟s sentencing decision
under an abuse of discretion standard with a presumption of reasonableness. State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708
(Tenn. 2012). This presumption applies to “within-range sentencing decisions that reflect
a proper application of the purposes and principles of the Sentencing Act.” Bise, 380
S.W.3d at 707. A trial court abuses its discretion in sentencing when it “applie[s] an
incorrect legal standard, or reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669
(Tenn. 1997) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This
deferential standard does not permit an appellate court to substitute its judgment for that
of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The
defendant bears the burden of proving that the sentence is improper. T.C.A. § 40-35-101,
Sentencing Comm‟n Cmts.

In reaching its decision, the trial court must consider the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-102, -
103, -210(b); see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed
“should be no greater than that deserved for the offense committed” and also “should be

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the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. § 40-35-103(2), (4).

This Court will uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. The weighing of
various enhancement and mitigating factors is within the sound discretion of the trial
court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The misapplication of an
enhancement or mitigating factor by the trial court “does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Bise, 380 S.W.3d at 706.

Aggravated child neglect is a Class A felony. T.C.A. § 39-15-402(b). The
pertinent sentencing range for a standard offender is fifteen to twenty-five years. T.C.A.
§ 40-35-112(a)(1). After conducting a sentencing hearing, the trial court imposed a
within-range sentence of twenty years.

At the sentencing hearing, the trial court considered the presentence report, which
indicated that Defendant had four previous felony convictions. Detective Gibson testified
about a statement made by Defendant during the investigation, in which he admitted “that
he knew he that he had burned her because he knew how hot the water can get, and at that
time, he advised . . . that he had burned himself on that water resulting in a blister to his
own hand.” Defendant also stated that he observed that the victim‟s hands were “a little
red.” An audio recording of the statement was introduced into evidence. Additionally,
the victim‟s grandmother, Ms. Agins, testified about the scarring on the victim‟s hands.

Defendant‟s mother, Nellie Guyton, testified that Defendant “had compassion for
people” and “got along well with people.” She stated that Defendant‟s father did not help
raise Defendant. Defendant‟s younger brother, Alvin Bond, testified that Defendant was
an “outgoing” and “hard-working person.” Ken Novak, a prison minister, testified that
Defendant “attended every single [church] service” since February 2014. Mr. Novak
described Defendant as a “very sincere man [with a] strong desire to live right.” Mr.
Novak stated that Defendant has expressed remorse about the incident in this case.

Defendant testified that he felt a special connection with N.C. and considered her
to be his own daughter. He explained that “it hurts to know that I hurt[] her, and it also
hurts to know that I can‟t ever be around no more.” Defendant told his version of the
incident and described it as an accident that occurred while he was distracted by the other
children. Defendant denied that he was punishing N.C. with the hot water or
intentionally trying to harm her. He said that he noticed her hands were red, and after it
happened, he rinsed her hands with cold water and then “patted butter on her hands.”
Defendant denied knowing that the injury was serious before N.C. went to bed.
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Defendant explained that he incurred the felony convictions when he was young and
testified that he attended various classes while in confinement, including an anger
management class. During cross-examination, Defendant acknowledged that he
previously pled guilty to assaulting N.C.‟s mother.

The trial court took the case under advisement and issued a written sentencing
order. In determining the length of Defendant‟s sentence, it applied four enhancement
factors: Defendant had a previous history of criminal behavior; the victim was treated
with exceptional cruelty; the victim‟s injuries were particularly great; and Defendant
abused of a position of private trust. See T.C.A. § 40-35-114(1), (5), (6), (14). The trial
court applied one mitigating factor: Defendant completed corrective programs and did
not have a disciplinary record while incarcerated. See T.C.A. § 40-35-113(13).

Defendant argues that the trial court erroneously applied the enhancement factors
for exceptional cruelty and particularly great injuries and that it failed to apply the
mitigating factor for crimes not motivated by a sustained intent to violate the law. See
T.C.A. § 40-35-113(11). However, even if these assertions were true, that would not
remove the presumption of reasonableness afforded to the trial court‟s sentencing
decision. See Bise, 380 S.W.3d at 706. Defendant does not contest that the trial court
properly applied the enhancement factors for previous criminal history and abuse of a
position of private trust, and the application of those enhancement factors is supported by
the record. Because the trial court properly applied at least two enhancement factors and
imposed a within-range sentence that is consistent with the purposes and principles of the
sentencing scheme, the trial court did not abuse its discretion in deciding Defendant‟s
sentence. Defendant is not entitled to relief on this issue.

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.

____________________________________
TIMOTHY L. EASTER, JUDGE

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