State of Tennessee v. Rhasean Lowry

04/15/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
November 19, 2019 Session

STATE OF TENNESSEE v. RHASEAN LOWRY

Appeal from the Criminal Court for Hamilton County
No. 294418 Don W. Poole, Judge

No. E2019-00113-CCA-R3-CD

Aggrieved of his Hamilton County Criminal Court jury convictions of felony murder in
the perpetration of aggravated child abuse and aggravated child abuse, the defendant,
Rhasean Lowry, appeals. The defendant alleges that the trial court erred by denying his
motion to disqualify the Hamilton County District Attorney General’s Office, by
admitting into evidence photographs taken during the victim’s autopsy, by refusing to
provide a jury instruction on facilitation as a lesser included offense of felony murder and
aggravated child abuse, and by denying his motion for new trial based upon the
admission of certain testimony. He also contends that the evidence was insufficient to
support his convictions. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., J., joined. THOMAS T. WOODALL, J., filed a separate concurring opinion.

Daniel J. Ripper, Chattanooga, Tennessee, for the appellant, Rhasean Lowry.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Neal Pinkston, District Attorney General; and Cameron Williams and
Lance Pope, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Hamilton County Grand Jury charged the defendant with one count of
felony murder in the perpetration of aggravated child abuse, one count of aggravated
child abuse, one count of rape of a child, and one count of making a false police report in
conjunction with injuries inflicted on three-year-old T.E. that eventually led to her death.
 Prior to trial, the State dismissed the charges of rape of a child and making
a false report, and the case proceeded to trial on the remaining two counts in December
2017.

At trial, registered nurse Deborah Kay Blevins testified that she was
working when the victim was brought into the emergency room at Parkridge Medical
Center on August 26, 2014. Ms. Blevins recalled that the attending physician, Doctor
Bryan Vance, carried the victim inside from the parking lot and placed her on a stretcher,
and Ms. Blevins “immediately started chest compressions.” The victim “was pulseless,
breathless, her pupils were fixed, her eyes were open, she was cool to the touch.” Ms.
Blevins observed that “[t]he whole entire lobe of [the victim’s] ear was black, and around
in front of her ear and behind it was black.” Ms. Blevins said that she pointed out the
discoloration to Doctor Vance, saying, “I didn’t know exactly what the story was at that
time, but I could tell that she had trauma to her head.” Ms. Blevins remembered that a
man came into the room later, but she “never really paid attention to him.” She added,
“He had no emotion, he was quiet, . . . except for a couple of questions that they asked
him, he didn’t say or do anything. He was not tearful.”

After approximately 15 minutes of resuscitation efforts, medical personnel
were able to restart the victim’s pulse, and she was immediately placed into a waiting
ambulance and taken to TC Thompson Children’s Hospital at Erlanger Medical Center
(“Children’s Hospital”).

Doctor Bryan Vance testified that he was standing at the front desk of the
emergency room at Parkridge Medical Center on August 26, 2014, when a nurse
mentioned that someone needed help getting a patient out of a car, so he went to help. He
said that he did not get “a sense that it was something urgent, so I thought I would just go
out and look to see who needed help.” When he walked outside, Doctor Vance did not
see anyone parked in the loading and unloading area just outside the doors. Eventually,
he saw the defendant standing in the parking lot and “summoning me over with his
hand.” He described the defendant’s demeanor as “matter-of-fact” and said that he
“continued to believe that I was maybe just assisting someone who just needed a little bit
of help, not that there was something urgent going on.” Doctor Vance said that when he
approached the vehicle, he saw the victim “just sitting in the backseat with a sippy cup in
her lap but not holding it, and her head was to the side and she was just staring forward
with a gray appearance to her.” Doctor Vance also observed “blood on the corner of her
mouth,” some bruising “right at the top of her jaw, around the neck,” and “a swelling and
a bruise” on her ear. At that point, the defendant commented that the victim had been
“drinking milk and fell” and that “she wasn’t acting right.”

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 Doctor Vance testified that he put his hand on the victim’s chest and neck
in an attempt to determine whether she was breathing or had a pulse, but he “did not
expect to find either; she looked dead to me at that time.” When he felt no pulse or
respirations, Doctor Vance picked the victim up in a manner designed to “protect[] her
cervical spine as best as I can in case there’s an injury to her neck” and “then ran, as
probably fast I’ve ever run, straight back into the emergency department with her.”

Once inside the hospital, Doctor Vance placed the victim on a bed in one of
the trauma rooms, and “a lot of things began to happen at once.” Medical personnel
placed a cervical collar on the victim, intubated her, and then began performing
cardiopulmonary resuscitation (“CPR”) and administering intravenous medication and
fluids “using a small drill to put an IV into her lower leg.” After what he deemed “an
extended period of time,” they “eventually did get a heartbeat back.” Doctor Vance
immediately began the process of transferring her to Children’s Hospital, saying,

I wasn’t sure what the extent of her internal injuries were.
Obviously, she was injured severely or her heart would not
have stopped beating, so, you know, part of being the ER
doctor is recognizing when it’s beyond you. And this was
beyond me, I’d done what I can do, that’s my job, to stabilize
her, and I need to get her to more advanced care.

Chattanooga City Police Department (“CPD”) Officer Caleb Brooks
worked as a crime scene investigator in August 2014. On August 26, 2014, he went to
Children’s Hospital to document the victim’s injuries. When Officer Brooks arrived at
the pediatric intensive care unit, the victim was lying on her back with “multiple cords
and lines and medical equipment coming about her body,” “a neck brace on her neck,
with gauze secured underneath the chin area,” and “numerous medical staff around her,
giving her treatment at the time.” Fifteen photographs were exhibited to his testimony
and displayed to the jury. Officer Brooks identified bruising on the victim’s ears, the left
side of her chest, lower abdomen, upper left arm, and lower back. He said that he noticed
patterned bruising “like the shape of a strap or a belt” on both her legs and a “large gash”
inside her lower lip.

Kanti Patel, manager of the Econo Lodge motel on Bonny Oaks Drive in
Chattanooga, testified that he was working the front desk on August 26, 2014, when, just
before 10:00 a.m., the defendant came into the office “to make the payment for the
second day. . . . He made his payment and I gave him the key.” Surveillance video from
the motel from that morning was played for the jury.

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 CPD crime scene investigator Gregory Mardis testified that he
photographed the lobby area, front entrance, and the room where the victim had been
staying at the Econo Lodge. Mr. Mardis observed “what appeared to be a bloodstain”
near a column “on the walkway” as well as “some reddish stains on the concrete, going
into the laundry room area.” Inside the room where the victim had been staying with the
defendant, officers discovered “some bedding and a wash cloth that had bloodstains on
them” and bloodstained paper towels inside one of the trash cans. Mr. Mardis collected
two pairs of flip flops. The wear pattern on the blue flip flops that belonged to the victim
suggested that the shoes had been too big.

Forensic testing confirmed the presence of the victim’s blood on the sheets
and paper towels taken from the motel room.

CPD Investigator Matthew Puglise, who took over as the lead investigator
after the victim died, testified that he responded to the hospital but did not see the victim.
Instead, after speaking with the doctors, Investigator Puglise spoke with the defendant
and the victim’s mother. During that interview, the defendant said that he and the
victim’s mother had been staying at the Econo Lodge with the victim, her older brother,
and her younger sister while the family was in the process of moving. The victim’s
mother had just started a job at Hardee’s, but the defendant did not work. The defendant
told Investigator Puglise that

[a]s he and the victim were coming from breakfast “between
9:45 and 10:00” and he had the baby in a carrier and told the
victim to start walking up the stairs while he went to the car
to get the baby’s bottle. She stopped at the top of the steps to
look back, then her flip flop got caught and she started
“tumbling.” He then saw that she had blood on her lip and “a
gash” in her mouth. She complained that her head was
hurting. He took her to the room, then he helped her rinse her
mouth with water. Then he put ice into a freezer bag and had
the victim hold it against her head. When she continued to
say that her head hurt, he decided to take her to the hospital.
Because he was unfamiliar with the area, he took her to the
only hospital that he could recall having seen before. On the
way to the hospital, the victim stopped responding about
halfway to the hospital and he noticed that she looked sleepy.
She was “panting.” When he got to the hospital, the victim
was just staring straight ahead. The victim was on the “next
to the last step” when the “bottom of her flip flop caught.”
She was “holding a cup of milk” when she fell. He said that
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 he picked the cup up and threw it into the trashcan “right
there by the Coke machine” when he “came back through” to
get ice to put on her mouth. She was on the “backside steps”
that were closest to the car.

Investigator Puglise ordered the collection of surveillance video from the
Econo Lodge. That video recording was played for the jury. The surveillance video
established that the defendant and the victim’s mother left the motel at 6:43 a.m., and the
defendant may have been carrying a baby carrier. The defendant returned shortly after
7:00 a.m. and exited the car with the baby carrier. The defendant, carrying the baby
carrier, and a small boy left at 7:48 a.m. The defendant returned to the motel and exited
the car with the baby carrier approximately 10 minutes later. The defendant did not
return to his vehicle until 9:49 a.m., when he can be seen carrying the baby carrier to the
car. A couple of minutes later, the defendant appears carrying the victim “like a
fireman’s carry.” The defendant put the victim into the car and drove around to the lobby
area of the motel. He then went inside and returned to the car approximately three
minutes later. The surveillance video established that neither the defendant nor the
victim entered the lobby or breakfast area of the motel any time that morning.

Investigator Puglise said that, after viewing the video surveillance footage,
he interviewed the defendant for a second time at approximately 6:30 p.m. at the “service
center.” The video recording was played for the jury but not transcribed. The defendant
maintained that the victim had fallen “on the west side” stairs.

During cross-examination, Investigator Puglise acknowledged that he lied
to the defendant during the interview. He also acknowledged that although the defendant
told him that he had thrown the coffee and milk cups into the upstairs trash can, he did
not ask investigators to search those cans. The defendant told him that the victim’s flip
flops were too big for her, and he agreed that the shoes “looked about a half inch
extended from her feet.” The defendant told Investigator Puglise that he had placed the
victim on the bed and wiped her mouth with paper towels from the bathroom, and
Investigator Puglise admitted that DNA testing confirmed the presence of the victim’s
blood on the sheets and the paper towels.

During redirect examination, Investigator Puglise testified that the
surveillance video from the Econo Lodge established that the defendant lied about going
to get milk and coffee, lied about going to his car to get the baby’s bottle, lied about
taking the victim with him to drop her mother off at work, and lied about taking her with
him to drop her brother off at school. When he did a walk-through of the motel, he did
not observe any evidence of milk having been spilled on the stairs.

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 Doctor Gregory Talbott, Division Chief and Medical Director of Pediatric
Critical Care at Children’s Hospital was working as the attending physician on August
26, 2014, and participated in the treatment of the victim. Doctor Talbott testified that
when the victim was transferred into his care, “she was recurring mechanical ventilation,
she also had a low blood pressure,” so medical personnel “were simultaneously trying to
resuscitate her, which involves fluids, the administration of medications to try and raise
her blood pressure.” Additionally, the victim had “bleeding problems” that necessitated a
blood transfusion. He said that the victim was “[i]n a critical condition. She was in
shock.” After engaging someone to continue the resuscitation efforts, Doctor Talbott
went to speak with the victim’s family. He said that it was “vitally important to have
accurate history because it can lead us to potentially have other diagnostic findings and
treatment, things that we would need to do based on the history.” The defendant
provided Doctor Talbott with the same version of events that he had initially provided to
the police, telling the doctor that the victim had fallen down “one flight of stairs, which
he described as metal stairs with a concrete anti-tread mat” after “she caught the toe of
her flip-flops and fell over backwards.”

After speaking to the family, Doctor Talbott conducted a more thorough
examination of the victim. During this examination, he noted tissue swelling of the left
occipital area and pinnae bruising, which he clarified was “bruising around the ear here
and onto the earlobe.” He stated that the pinnae bruising caused him concern, explaining,
“Bruising of the pinnae, or bruising of the earlobes, particularly bilaterally, is highly
correlated with inflicted injury on a child.” He also noticed “bleeding and bruising
lacerations, which are basically cuts on the inside of the lip.” He said that these
lacerations in addition to the bruised earlobes began “to paint a picture of injury that may
not fit the story that was proffered.” Doctor Talbott also observed a linear patterned
bruise that wrapped around the victim’s hip, indicating that she had been “struck with an
object that has some flexibility” as opposed to steps, which are inflexible.

Doctor Talbott testified that the victim’s neurological examination
“indicated profound brain injury.” “She had no evidence of cortical brain function,
which is upper brain function; things that involve voluntary action.” In addition, the
involuntary brain functions were absent, demonstrating “no evidence of cerebral or
deeper-in stem activity. She was deeply comatose.” It was his opinion that “this is a
combined brain injury from both traumatic, blunt trauma brain injury, compounded by a
period of time when she had cardiorespiratory arrest. At that point, circulation’s not
adequate to the brain, that adds additional injury.” He said that the hemorrhage in the
victim’s brain was “evidence of abusive head injury” and not attributable to the hypoxic
brain injury or to the resuscitation efforts. He stated that when he viewed the images of
the victim’s brain, he was shocked to see that “[s]he had absolutely terrible brain injury,
and honestly, I didn’t suspect that she would survive.” The victim “had massive swelling
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in the brain” as well as “evidence of small areas of bleeding within the brain” and “a
small amount of blood outside the brain but beneath the covering of the brain.” Later
studies and imaging indicated that “she had absence of circulation, which is part of the
determination of brain death.”

As part of the trauma protocol, medical personnel scanned the victim
“basically from the top of the head all the way through the chest and abdomen.” On
those scans, Doctor Talbott observed “evidence of a splenic contusion, so a bruise of the
spleen,” which he said was associated with inflicted injury. The victim also had bilateral
retinal hemorrhages, which he said “requires a massive amount of force, more than any
individual would reasonably handle a child.” He said that the bilateral bruising of the
earlobes, the pattern bruising on the victim’s body, the bruising of the spleen, the
presence of retinal hemorrhages, and the evidence of severe traumatic brain injury were
all inconsistent with the victim’s having fallen down the stairs. He added,

Most concerning to me, too, was there was no abrasions on
her skin, it was all just, it appeared to be more blunt trauma.
And from falling down a metal staircase, concrete and anti-
slip tread, I would have anticipated some abrasion somewhere
on her body. So my concern was that this constellation of
findings indicated that this child had suffered inflicted injury.

He emphasized that “it’s the overall picture when you put everything together” and that
“[n]o one single injury . . . can be indicative of child abuse, but when you put together
multiple suspicious injuries, including vaginal injuries, retinal hemorrhages, multiple
bruises, pattern bruises, lack of abrasions, when you put the whole picture together, it just
doesn’t fit the story” given by the defendant. Doctor Talbott said that it was “relatively
uncommon” for children to be “injured enough from a flight of stairs to end up in the
ICU.” He testified that he had never seen a child with a pattern of injuries like those
sustained by the victim who had fallen down the stairs.

Doctor Talbott had reviewed photographs taken during the victim’s
autopsy, including one that documented damage to her vaginal wall. He stated that the
victim had a Foley catheter inserted into her urethra during treatment but that it was not
placed into the victim’s vagina. Additionally, the catheter was very small and made of
soft silicone. He said that he had reviewed the notes of the three nurses responsible for
placing and maintaining the victim’s catheter and noted that, combined between the three
nurses, “there’s probably 50 years of critical care experience.” It was his medical opinion
that the catheter could not have caused the injury to the victim’s vaginal wall.

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 Despite the victim’s poor prognosis, the doctors continued treating the
victim with “support of all the vital organ systems.” Doctor Talbott testified that “despite
all our efforts,” the victim “progressed to brain death and was pronounced dead.”
Following this declaration, some of the victim’s organs were harvested for donation.

During cross-examination, Doctor Talbott testified that he was aware that
the victim had been treated for head trauma in October 2013. He acknowledged that his
notes indicated that he found “blood around the urethral opening” during his initial
examination but explained, “[Y]ou cannot determine if that had come from the vagina
and just happened to be around the urethra; they’re quite close together. . . . Follow-up
examination revealed vaginal injury that we did not see initially . . . .” Doctor Talbott
maintained that the victim’s injuries were highly correlated with inflicted injury, but he
could not say specifically how they occurred or who might have inflicted them. He
added,

I stated it earlier, one specific bruise or one specific injury
can come about by a myriad of ways; however, the
constellation of findings, and there’s a long list of them here,
pattern bruising, bruising not consistent with my information
from the scene, bleeding . . . in the back of the eyes, further
autopsy findings which indicated upper spinal cord injury,
broken rib, which was posterior and not correlated with CPR,
all of that together does not fit the constellation of findings
that would indicate to me it was an accidental injury.

Doctor Talbott insisted that he could, “with medical certainty, say that that pattern bruise,
that the child was struck by an object.” He also said that he could “tell you that
hemorrhaging in the back of the eyes is from axial rotation of the head being shaken.
Posterior rib injuries are highly correlated with blunt trauma and abusive injury, not by
CPR.” Doctor Talbott could not give a specific time that the injuries occurred but he
could say that “if this child had had those injuries happen earlier, that resulted in cardiac
arrest, she would never have arrived at the hospital alive. So I believe them to be rather
approximate to the time that medical care was involved.”

Doctor James Kenneth Metcalfe conducted the victim’s autopsy on August
31, 2014. Doctor Metcalfe testified that he first saw the victim in the hospital because he
“was called by the detectives that this child was about to have organ donation and was on
ventilator waiting for that.” He said that he was present during the donation surgery, and
he also reviewed the video recording of the organ donation surgery so that he could “see
what injuries were caused by the surgeon and what were caused by pre-existing
happenings.” The victim’s manner of death was homicide and the cause of death was
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“[b]lunt force injuries of head and trunk.” “The pattern of injury is consistent with
inflicted multiple blunt trauma.”

The victim had a number of blunt force injuries to her trunk and
extremities. She had at least 70 bruises on her body, including ones on her head,
buttocks, chest, back, and hip. He said that more than half of the bruises were to the front
of her body. “On the right hip, this is a picture of the trunk and the right buttock and the
legs, and there you can see this H-shaped, letter H-shaped mark.” There was a row of
four bruises on her left leg, and another row of five bruises on the left side of her chest.
There were bruises on her left hip that wrapped around her body.

Internally, “there were bruising areas in the lungs, and especially there on
the left lung.” The victim’s “stomach had a large bruise on it, and in the wall and also
breaking into the lining, tearing the lining” as well as “bruising in the front middle part of
the spleen. . . . And also there’s a bruise on the one loop of small intestine.” It was his
opinion that these injuries were all caused by the same blow based upon “how it looked .
. . inside.” Doctor Metcalfe testified that the injury to the victim’s stomach was in an
area that would ordinarily be protected by the ribs and that such an injury would have
required “quite a substantial force.” He noted that it was “a localized injury” that was
“kind of roundish.” It was his opinion that “a blow that went up under the rib cage”
would have been necessary “to impact the soft part of the abdomen, and then come up
under the rib cage. Like an upward force.” The instrument or item that caused the blow
would have been two to three inches in size. He said that this type of injury would not
ordinarily occur from a fall down the stairs “[b]ecause it’s up out of the way.” The
victim also had a fractured rib “with bleeding around it.” Part of that injury occurred at
the same time as the other injuries on her body but another part showed signs of healing
and might have occurred “several days before.” He said that neither injury was
associated with resuscitation efforts.

Doctor Metcalfe testified that the victim had bruises to the right side of her
head, right eye, and right ear, with some “spotty bruising on the scalp above the ear.”
When he peeled back the victim’s scalp, Doctor Metcalfe observed extensive bruising
that was indicative of “a substantial force.” She also had bruising on the left side of her
head and “a fan-shaped, fanning-out shaped, bruise above the ear, above and behind the
ear” that “look[ed] like fingers.” There were also five bruises across the top of the
victim’s head that Doctor Metcalfe said were inconsistent with a fall down the stairs. She
also had a bruise on her left jaw and left cheek. There was bruising in the inner part of
the upper lip as well as a laceration on “the bottom part of the inner lower lip” and a torn
frenulum, injuries that would have required “[a] substantial force against the lip . . .
something squashing the lips to the teeth. And there was also some bruising on the
outside.”
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 The victim suffered a subdural hemorrhage “mainly on the right side” and a
“subarachnoid hemorrhage” that “was toward the back and on the top and sides.” She
also suffered “a bruise of the brain tissue, cortical contusion,” which was a bruise of “the
gray matter of the brain,” as well as “some hemorrhage in the brain stem.” Doctor
Metcalfe said that none of the injuries to the victim’s brain were attributable to a hypoxic
event or to the resuscitation efforts following the hypoxic event, “[w]ith the possible
exception of” the “brain stem hemorrhages.” He explained,

So the brain injury, the brain gets shook up and then the tiny
blood vessels leak fluid, and what leaks first is water and the
brain swells. And then the pressure inside the head, because
the brain is so swollen, gets very high and the . . . heart can’t
even pump blood inside of her head because the pressure
inside is so high. And so the brain starts to get soft, that’s
why they talk about brain death.

Doctor Metcalfe said that the fact that the blood in the victim’s brain “is what she already
had from the injury,” coupled with the absence of internal bleeding in the brain, indicated
that the brain injury was not the result of the hypoxic event. He observed hemorrhages in
the victim’s retinas and “blood around the optic nerve,” which, he said, “can occur with
substantial force, and especially the blood around the optic nerve.” He also documented
an acceleration or “whiplash” injury to the victim’s spine evidenced by a hemorrhage
“between the 3rd and 4th and 5th vertebrae.”

Doctor Metcalfe observed “some bleeding and tearing” in the victim’s
vagina and in the urethra. He said that the injury to the victim’s vaginal wall could not be
attributed to the placement of the catheter because “it was too much of it, and there was
tearing, under the microscope, and bleeding and tearing was off to the side, around the
vaginal opening.” He said that the pattern of the victim’s injuries was not consistent with
a fall down the stairs but was instead consistent with “[m]ultiple inflicted injury.”

Following Doctor Metcalfe’s testimony, the State rested.

Forensic Pathologist Doctor Thomas Young testified on behalf of the
defendant that, after having reviewed the evidence provided to him, he concluded

to a reasonable degree of medical certainty, that the story
offered by the defendant here, the child falling down the stairs
and then becoming unresponsive and then having the child be
resuscitated and then the outcome there in the intensive care
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 unit, it is my opinion that the autopsy findings are entirely
consistent with that account, and that there are no
inconsistencies.

Doctor Young explained that “[o]ne of the things that could happen in a small child that’s
three years old is that if they get head trauma, even a relatively minor head trauma, the
brain will start to swell” and that such a condition “can be made worse by subsequent
traumas.” He said that he found evidence of coagulopathy, “a disorder of blood clotting,”
in this case, which, he said, resulted from the victim’s having been deprived of oxygen
for some 20 minutes. He explained,

[A]fter a period of 20 minutes or so, if you get the heart going
again and the breathing going again, then blood flow is
resumed but the blood clotting cells don’t work and the blood
vessels are leaky. So what then happens is that with that
resumption of blood flow, then you start getting all kinds of
bruising and bleeding.

He said that the victim’s extensive bruising, including the bruising in her brain, was
“evidence[] of such bleeding” instead of evidence of blunt force trauma. Doctor Young
added that, as a result of the clotting disorder, injuries inflicted before the cessation of
breathing and “any handling of the child during the medical care is going to lead to lots
and lots of bruises all over her body, and also internally.” According to Doctor Young,
the “multiple bruises in her scalp, face, mouth and ears, would be expected in this
situation” given all the medical interventions following the victim’s fall down the stairs.

Doctor Young testified that the presence of “widespread and . . . thin”
subdural hemorrhage at autopsy was “not a traumatic thing” but was evidence of “a lack
of oxygen problem for a period of time.” Additionally, he noted that the “bleeding
below” the subarachnoid membrane was “over a broad area” and concluded that the
bleeding was “not a result of trauma, it’s a result of going for a period of time without
oxygen.” He clarified that the victim

did have a traumatic injury: She fell down a set of stairs. If
maybe her coagulation system was working properly, the
bruise wouldn’t have showed up, but the fact that she’s got a
vulnerability to it, she does have one area where there’s
some bruising of the brain tissue, it’s a contusion.

Doctor Young also opined that the swelling of the victim’s brain, rather than inflicted
trauma, caused both the bruising “in the pons and the midbrain” and the retinal
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hemorrhages. He added that it was common for “children who end up on respirators in
the intensive care unit, that do not have any trauma,” to have retinal hemorrhages.

Doctor Young testified that many of the bruises on the victim’s body could
be attributed to the handling of the victim’s body during her hospitalization, saying,
“[A]ny kind of time that they’re handling her is sufficient to make bruises in a child
whose platelets aren’t working and has had damage to the blood vessels as a lack of
oxygen.” He insisted that what Doctor Metcalfe had deemed a contusion on the victim’s
lungs was actually “a complication of just being on a respirator.” Additionally, Doctor
Young maintained that the contusions on the victim’s gastrointestinal tract were the result
of the combination of the fall down the stairs and the deprivation of oxygen, saying that
“in a situation where there is no breathing, blood is shunted away from the
gastrointestinal tract” and that “in that kind of a setting, you can get some bloody areas in
loops of small intestine and in the stomach, which is what [Doctor Metcalfe]’s describing
here in this autopsy.” He also maintained that the victim’s rib fracture was caused by the
administration of chest compressions during CPR and claimed that it was “entirely
possible” that the damage to the victim’s vaginal wall occurred during the insertion of the
Foley catheter. Doctor Young said that hemorrhages in the “anterior paraspinal muscles”
were not evidence of an acceleration injury but instead “would be expected” from
“hospital personnel handling her and also from a fall down the stairs.”

During cross-examination, Doctor Young acknowledged that Doctor
Metcalfe’s autopsy was thorough, but he testified that Doctor Metcalfe was “drawing the
wrong conclusions from what he’s seeing.” He conceded that “[a]nytime you have a
situation where you see a child as bruised up as this child, it’s a situation where it
demands an explanation,” but he said that “[y]ou don’t just simply pull the child abuse
leverage just because you see bruises, you’ve got to hear the story.” Doctor Young
asserted instead that “[t]he trauma here is the minor part.” He insisted that although it
would be important to assess the accuracy of the defendant’s version of events, it was his
job to take the defendant’s “story as-is and compar[e] it to the findings at the autopsy and
seeing if there is a fit or if there is not a fit” and that, in this case, the autopsy findings fit
with the defendant’s version of events. Doctor Young said that an assessment of the
defendant’s demeanor at the hospital was not important because “those kinds of human
determinations are really inaccurate and heavily influenced by bias.”

Doctor Young conceded that, during his tenure as a medical examiner in
the early 2000’s, he had attributed injuries like those that led to the victim’s death to
trauma and ruled those deaths as homicides. He explained that his knowledge “basically
has been evolving over about 10 years” and that “[t]his business about a lack of oxygen
leading to thin subdural hemorrhages, the research on that took place” after those
autopsies. He admitted that he had previously testified that bilateral retinal hemorrhages
-12-
were the result of a severe impact to the head or very severe motion inside the cranial
vault, but he explained that he no longer “believed in the shaken baby syndrome” because
“in pathology, you have this thing called progress, where, basically, people learn things
over time and things are discovered.”

Doctor Young testified that since having resigned his position as chief
medical examiner, he had testified primarily for criminal defendants, many of whom had
been accused of murdering children. He admitted that he testified in a Louisiana case on
behalf of a defendant accused of beating a 22-month-old child to death that the child’s
injuries were not the result of abuse but instead the result of a lack of oxygen to the brain.
He insisted, on the one hand, that the prosecutor’s account of his testimony in the
Louisiana case was “not entirely accurate” and, on the other, that he could not “recall the
details on the case.” Doctor Young conceded that he had testified in an Illinois case
involving a 21-month-old child who had over 50 wounds on his body at the time of his
death that sleep apnea caused a lack of blood flow, which, in turn, led to a coagulation
issue that made it more likely for that child to bruise from medical treatment. He
admitted having testified in another Illinois case, this one involving the death of a six-
year-old child, that the child’s injuries were the result of reduced blood flow that led to
coagulation issues that were then exacerbated by resuscitation efforts despite that
witnesses observed the defendant in that case beat the child. Doctor Young claimed that
he could not recall testifying in a Kansas case involving the death of a six-month-old
baby that a fall from a couch caused that child’s tibial fracture, subdural hematoma, and
bilateral bruising of the ears. Doctor Young admitted that he had testified on behalf of a
defendant in a 2016 Marion County case. He insisted, however, that he could not recall
testifying that a choking incident caused that child’s brain injury and also caused a
coagulation issue that resulted in severe bruising. When asked about the similarities
between his testimony in each of these cases and in the instant case, he said,

There may be elements that are similar and then there may be
elements that are different. Every case is unique, every case
is different. Now, it is true that a lack of oxygen and a lack of
blood flow may be a final common pathway in many cases.
Not all cases, but in many cases. But the circumstances and
the situations that lead up to that are all unique.

He conceded that he had testified in each case that injuries attributed by the State to child
abuse were actually the result of leaky blood vessels, but he insisted that he did not
“testify according to themes. Okay. Every case is different.” He maintained, however,
that “having hypoxic problems with the brain is a common problem” and that it was
“frequently being misunderstood as being shaken baby syndrome, and maybe that’s why
it seems to be a common theme to you, but my testimony on this is not stereotyped.
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Every case is vastly different and you really can’t compare one to another, like you’re
trying to do.”

Following Doctor Young’s testimony, the defendant rested.

Based upon this proof, the jury convicted the defendant as charged of
felony murder and aggravated child abuse. The trial court imposed a sentence of life
imprisonment for the defendant’s conviction of felony murder and, following a
sentencing hearing, imposed a concurrent sentence of 15 years for the defendant’s
conviction of aggravated child abuse.

The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, the defendant asserts that the trial court erred
by denying his motion to disqualify the district attorney’s office, by admitting autopsy
photographs, by refusing to provide a jury instruction on facilitation as a lesser included
offense of both charged offenses, and by denying his motion for new trial based upon
Doctor Vance’s objectionable testimony. He also contends that the evidence was
insufficient to support his convictions. We consider each claim in turn.

I. Disqualification of the Hamilton County District Attorney’s Office

The grand jury returned the indictment in this case in March 2015, and the
trial court appointed Steve Brown from the Hamilton County Public Defender’s Office,
who had been originally appointed to the defendant’s case in the general sessions court,
to represent the defendant in criminal court. On May 15, 2015, Assistant District
Attorney General Leslie Longshore sent a memorandum to Mr. Brown that contained the
following:

Attached are summaries from Myrlene Marsa, Assistant
Federal Defender, regarding information her client, Jon
Farmer, obtained from Rhasean Lowry. This information was
obtained after Lowry and Farmer were placed in the same cell
at the jail. Farmer and Lowry came to be placed into the
same cell after a proffer session, initiated by Farmer, was
held. At the time of the proffer, Farmer had no useful
information; however, he indicated that he could get more
information if he were placed in the same cell as Lowry. We
agreed to have the two placed in the same cell, and the
attached information resulted.

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 Upon further consideration, I have concerns about the
reliability of the information, inmate Farmer’s motivation for
obtaining this information and the manner in which this
information was obtained. Based upon these concerns,
Lowry and Farmer are no longer housed in the same cell, and
Farmer’s attorney has been instructed that we will not be
using any information obtained by Farmer.

The State will not seek to use Jon Farmer as a witness, nor
will we in any way use the information contained within these
summaries against Rhasean Lowry. I have attached the
summaries so that you will be assured that this information is
not used against your client. Further, these emails were sent
only to myself, Assistant United States Attorney Jay Woods
and two Federal agents. The investigators involved in the
case against Mr. Lowry have not been made aware of this
information.

The two attached emails detailed information that Mr. Farmer had gleaned from the
defendant. Given the manner of the collection of this information, we do not recite it
here.

Following the receipt of General Longshore’s memorandum, Mr. Brown
moved to withdraw because Mr. Farmer had been represented by the public defender’s
office “in numerous criminal matters dating back to 1995.” Mr. Brown stated that his
office’s previous relationship with Mr. Farmer and Mr. Farmer’s role in obtaining
information from the defendant in the manner outlined above created a conflict of interest
that prevented Mr. Brown’s continuing to represent the defendant. The trial court granted
the motion to withdraw and appointed substitute counsel.

In August 2015, the defendant, by his newly-appointed counsel, moved the
trial court to disqualify “the entire 11th District Attorney General’s office” based on
General Longshore’s activities. The defendant argued that General Longshore’s
recruiting Mr. Farmer and placing him in the cell with the defendant to garner
information about the case amounted to prosecutorial misconduct. As evidence that
General Longshore’s actions had tainted the entire Hamilton District Attorney General’s
Office, the defendant exhibited to his motion an article from the Times Free Press.
Pertinent to this issue, the article contained the following:

Longshore declined to comment for this article. Melydia
Clewell, spokeswoman for the Hamilton County District
-15-
 Attorney General’s Office, said she could not comment on
pending cases.

However, Clewell said that Longshore, Brown, and District
Attorney Neal Pinkston met with Judge Don Poole last week
to discuss Brown’s withdrawal. She said Poole indicated he
appreciated Longshore’s forthrightness in bringing the
situation to Brown’s attention and her “upholding to a higher
ethical standard than the rules require,” Clewell said.

Clewell also provided examples of two Tennessee opinions
she said would support the use in court of whatever Lowry
told Farmer.

The defendant argued that the spokeswoman’s statement to the newspaper indicated that
no one in the district attorney’s office appeared to grasp the gravity of the impropriety
and that, as a result, the office could not be relied upon to protect the defendant’s rights
going forward. In his response to the defendant’s motion, District Attorney General Neal
Pinkston averred that General Longshore “has not participated in any prosecutorial work
involving the defendant’s case and will not participate on any future prosecutorial work.”
Nevertheless, he observed that General Longshore had “not been disqualified from the
prosecution” of the defendant’s case but “instead has individually removed herself from
the case out of an abundance of caution.” He added that General Longshore had not
revealed the information she obtained from Mr. Farmer to anyone else in the office and
that “[t]he only shared confidences of the defendant that have been revealed in any public
forum are because defendant’s counsel attached them as exhibits to his motion to recuse
the entire office.” Additionally, General Pinkston took great personal umbrage at the
defendant’s suggestion that the conduct of his office had violated the rules of professional
conduct. He failed to address, however, the fact that General Longshore’s conduct did, in
fact, violate the defendant’s constitutional right to counsel. Finally, General Pinkston
maintained that the manner of its collection did not bar the admission at trial of the
information obtained by Mr. Farmer, adding, “The District Attorney General’s Office
reserves the right to determine whether they will seek to introduce statements made by
the defendant to John Farmer.”

At the October 12, 2015 hearing on the motion, the defendant argued that
General Longshore’s actions, which constituted prosecutorial misconduct and a clear
violation of the defendant’s sixth amendment right to counsel, should be imputed to the
entire district attorney’s office. He also argued that the fact that General Pinkston
continued to entertain the possibility of using information that had been obtained via a
clear violation of his constitutional rights indicated that General Pinkston did not
-16-
comprehend the magnitude of the misconduct and could not, therefore, be trusted to
implement appropriate screening measures. General Pinkston did not defend General
Longshore’s actions but insisted that the improperly-obtained information might be
admissible and that, because the evidence might be deemed admissible in the future, his
office should not be accused of misconduct. General Pinkston did not present any
information about what, if any, procedures had been implemented in this case to ensure
that the illegally obtained information was not used in any way. Instead, he treated the
defendant’s request as a personal attack upon his character and professionalism.

The trial court took the matter under advisement. In its order denying the
defendant’s motion, the court found that the State “does not dispute what was a clear
violation of the defendant’s right to counsel” and expressed some reservations about the
State’s response to the defendant’s motion as well as General Pinkston’s apparent
misunderstanding of the circumstances, particularly that General Longshore’s conduct
violated the defendant’s right to counsel. The court refused to exclude “the possibility of
disqualification of the entire office in the future on the basis of new developments” but
refused to “find an actual or apparent conflict of interest on the part of the entire office on
the basis of one, no-longer-participating member’s violation of the defendant’s right to
counsel . . . or the [S]tate’s response to the subject motion.”

The State did not attempt to admit into evidence at trial any of the
information provided by the defendant to Mr. Farmer.

In this appeal, the defendant contends that the trial court erred by refusing
to disqualify the entire Hamilton County District Attorney’s Office because that office
had failed to screen any members from information that had been obtained in violation of
his right to counsel. The State asserts that the trial court did not err because the
appropriate remedy for the constitutional violation was suppression of the evidence rather
than disqualification and because the defendant, and not any member of the district
attorney’s office, exposed the offending information.

The decision to disqualify an attorney lies within the sound discretion of the
trial court, and that decision will not be overturned absent a finding that the court abused
that discretion. See State v. White, 114 S.W.3d 469, 475 (Tenn. 2003) (citing Clinard v.
Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); State v. Culbreath, 30 S.W.3d 309, 312-
13 (Tenn. 2000)). Generally, “[a] trial court abuses its discretion when it applies
incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly
erroneous assessment of the proof, or applies reasoning that causes an injustice to the
complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).

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 Initially, we note that General Longshore’s memorandum to Mr. Brown and
the emails attached thereto clearly establish that General Longshore, by arranging for Mr.
Farmer to be placed in the defendant’s cell for the purpose of obtaining information about
this case, violated the defendant’s Sixth Amendment right to counsel. The right to
counsel embodied in the Sixth Amendment “attaches only at or after the initiation of
adversary judicial proceedings against the defendant . . . . whether by way of formal
charge, preliminary hearing, indictment, information, or arraignment.” United States v.
Gouveia, 467 U.S. 180, 187-88 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 688-89
(1972)). At the time General Longshore made the arrangement with Mr. Farmer’s
attorney, the defendant had been indicted, the Sixth Amendment right to counsel had
attached, and, indeed, counsel had already been appointed to represent the defendant.
Consequently, the State had “an affirmative obligation to respect and preserve” the
defendant’s right to counsel by not acting “in a manner that circumvents and thereby
dilutes the protection afforded by the right to counsel.” Maine v. Moulton, 474 U.S. 159,
170 (1985). “[K]nowing exploitation by the State of an opportunity to confront the
accused without counsel being present is as much a breach of the State’s obligation not to
circumvent the right to the assistance of counsel as is the intentional creation of such an
opportunity.” Id. at 176.

That being said, “[c]ases involving Sixth Amendment deprivations are
subject to the general rule that remedies should be tailored to the injury suffered from the
constitutional violation and should not unnecessarily infringe on competing interests.”
United States v. Morrison, 449 U.S. 361, 364 (1981). In the vast majority of cases,
suppression of the illegally-obtained evidence is the appropriate remedy for a violation of
the defendant’s right to counsel, see United States v. Henry, 447 U.S. 264, 273-74 (1980),
and there can be no question that, based upon the record, the evidence obtained by Mr.
Farmer should have been suppressed. In this case, despite some bluster from the State
regarding the potential admissibility of the illegally-obtained evidence, despite General
Longshore’s assurance that the State would not seek to utilize the information in any
way, the State did not seek the admission of any of the information gleaned by Mr.
Farmer. In our view, given General Longshore’s change of heart, relatively prompt
disclosure of the entire nefarious enterprise, and her assurance that she had not and would
not disclose the information to anyone else, the exclusion of this evidence was sufficient
to remedy the blatant violation of the defendant’s right to counsel.

We turn then, to the question whether the trial court should have
disqualified the entire Hamilton County District Attorney’s Office on the basis of General
Longshore’s actions as viewed through the lens of the Tennessee Rules of Professional
Conduct. We begin by observing that the parties’ reliance on Rules 1.9 and 1.11 was
inapt. Those rules detail the duties that a lawyer owes to former clients after “switching
sides.” Rule 1.11 governs the scope of disqualification when the attorney is a current or
-18-
former government employee. “In determining whether to disqualify an attorney in a
criminal case, the trial court must first determine whether the party questioning the
propriety of the representation met its burden of showing that there is an actual conflict of
interest.” White, 114 S.W.3d at 476. In this case, General Longshore did not, at any
point, represent the defendant. Moreover, the information she collected about the case
did not arise from her representation of the defendant but instead arose from her, perhaps
overzealous, representation of the State. Accordingly, no conflict of interest existed
under the Rules that would have prevented her from utilizing that information. Because
nothing in the Rules of Professional Conduct prevented General Longshore from
revealing the information she obtained from Mr. Farmer to anyone within the district
attorney’s office, that office was not required to implement any procedures to screen
others from the information. That is not to say, however, that General Longshore was not
right to try and prevent the dissemination of the information to the prosecutors and
investigators working on the defendant’s case given that it was obtained in violation of
the defendant’s right to counsel. That action served to protect the case from any potential
taint associated with the constitutional violation.

Moreover, this is not a situation wherein disqualification of the entire
district attorney’s office was required to negate an appearance of impropriety. Even
when “no actual conflict of interest” exists, disqualification may be based on “[t]he
‘appearance of impropriety’” as “an independent ground,” and, in consequence, “the
court must nonetheless consider whether conduct has created an appearance of
impropriety.” Clinard, 46 S.W.3d at 187 (quoting Culbreath, 30 S.W.3d at 312-13).
That being said, “the mere possibility of impropriety is insufficient to warrant
disqualification.” Id. Instead, “[t]he appearance of impropriety must be real” when
examined using an objective standard “determined from the perspective of a reasonable
layperson.” See Clinard, 46 S.W.3d at 187 (citations omitted). Stated differently, “an
appearance of impropriety exists ‘in those situations in which an ordinary knowledgeable
citizen acquainted with the facts would conclude that the . . . representation poses
substantial risk of disservice to either the public interest or the interest of one of the
clients.’” Id. (citations omitted). Although General Longshore’s questionable conduct
violated the defendant’s right to counsel, she voluntarily removed herself from the case
and attempted to protect the information she had gleaned from disclosure. Under these
circumstances, no evidence suggests that the continued participation of the Hamilton
County District Attorney’s Office “pose[d] substantial risk of disservice to either the
public interest or the interest of one of the clients.” See id.

Finally, the defendant contends that General Longshore violated Rule 4.2,
which provides:

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 In representing a client, a lawyer shall not communicate about
the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter,
unless the lawyer has the consent of the other lawyer or is
authorized to do so by law or a court order.

Tenn. Sup. Ct. R. 8, RPC 4.2. Relative to a prosecutor’s duty under this rule, the
comments provide:

Once a represented person has been arrested, indicted,
charged, or named as a defendant in a criminal or civil law
enforcement proceeding, however, prosecutors and
government lawyers must comply with this Rule. A
represented person’s waiver of the constitutional right to
counsel does not exempt the prosecutor from the duty to
comply with this Rule.

Id., Comment 5. Based upon the record before us, it appears that General Longshore’s
actions ran afoul of this rule. That being said, nothing suggests that the impropriety
should be imputed to the entire district attorney’s office. Instead, the evidence suggests
that she acted alone in engaging Mr. Farmer’s interactions with the defendant, and,
accordingly, her revelation of the information to Mr. Brown and subsequent recusal from
the defendant’s case was a sufficient remedy for the violation. In consequence, the
defendant is not entitled to relief on this issue.

II. Admission of Autopsy Photographs

The defendant next asserts that the trial court erred by admitting certain
photographs taken during the autopsy of the victim, arguing that the probative value of
the photographs was substantially outweighed by the danger of unfair prejudice. The
State contends that the trial court did not err because the photographs were relevant and
necessary to aid in the presentation of Doctor Metcalfe’s testimony.

Prior to trial, the defendant objected to the admission of various
photographs taken during the victim’s autopsy.

One photograph depicts the victim lying face down on the autopsy table.
The defendant argued that the photograph was superfluous to the diagram drawn by
Doctor Metcalfe. The State argued that the photograph demonstrated “a healing rib
fracture to a rib in” the victim’s back and that the photograph was necessary to rebut the
defense expert’s theory that the injury was caused by resuscitation efforts. The trial court
-20-
deemed this photograph admissible, finding “that the probative value is substantial” and
that the photograph was “not gruesome.”

The second photograph depicts the victim’s internal organs with the
victim’s ribs retracted. The State argued that the photograph was relevant to show the
“damage to [the victim’s] internal organs under her rib cage, which would be protected in
a fall down the stairs.” The trial court concluded, however, that the probative value of
the photograph was substantially outweighed by the danger of unfair prejudice and
excluded the photograph.

The third photograph, a closeup of the stomach, ostensibly shows the
“squishing of the stomach.” The trial court admitted this photograph after finding that
the probative value was not outweighed by its prejudicial effect.

The next set of photographs depicted the victim’s head with the scalp
folded back to reveal the soft tissue between the skin and the skull. The State argued that
these demonstrated the depth and location of bruises on and behind the victim’s ears and
scalp to establish that injuries were not the “result of her tumbling and striking her ear on
a staircase.” The court allowed the photographs as relevant to “better explain[] the
testimony of the county medical examiner.”

The sixth photograph was a “photograph of the brain, showing . . . blood on
the surface of the brain.” The State argued that the “photograph demonstrates not just a
widespread injury to the brain, but a localized hematoma” and that it was relevant to
rebut the testimony of the defense expert “that the hematoma to the brain . . . [w]as a
result of resuscitation and possibly not inflicted injury.” The trial court excluded this
photograph barring later testimony increasing its probative value.

The seventh photograph depicted the victim’s “outer genitalia,” and the
State argued that the photograph was relevant to distinguish the vaginal injury from any
injury that might have been caused by the victim’s having been catheterized at the
hospital. After initially admitting this photograph with the admonition “that nothing
concerning sexual assault will be introduced,” the trial court later excluded the
photograph. The court ruled, however, that the parties could revisit the issue out of the
presence of the jury if the defense expert testified that the injury was caused by the
insertion of the catheter.

The remaining three photographs to which the defendant objected depicted,
according the defendant’s argument, the aftermath of the victim’s organs having been
harvested for donation. Although the record establishes that the parties and the court
were examining a set of photographs, it does not clearly establish which set of
-21-
photographs. In any event, the trial court determined that the photographs would be
admissible if the State cropped the images to remove the indicia of the organ harvesting
surgery.

“Tennessee courts have consistently followed a policy of liberality in the
admission of photographs in both civil and criminal cases.” State v. Carter, 114 S.W.3d
895, 902 (Tenn. 2003) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). “The
general rule . . . is that photographs of a murder victim’s body are admissible if they are
‘relevant to the issues on trial, notwithstanding their gruesome and horrifying character.’”
Carter, 114 S.W.3d at 902 (quoting Banks, 564 S.W.2d at 950-51). Even relevant
photographs may be excluded, however, if their probative value is substantially
outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403; Banks, 564 S.W.2d at
950-51. 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.”
See Banks, 564 S.W.2d at 951. “The admission of photographs lies within the sound
discretion of the trial court and will not be overturned on appeal absent a showing that the
trial court abused that discretion.” State v. Odom, 336 S.W.3d 541, 565 (Tenn. 2011)
(citing Banks, 564 S.W.2d at 949).

In this case, the record evinces a thoughtful and thorough consideration of
each of the challenged photographs and a measured approach to their admission and/or
exclusion. To be sure, the record does not establish that the trial court abused its
discretion. The photographs, though certainly graphic, were relevant to rebut the
defendant’s assertion that the victim sustained the injuries by falling down the stairs.

III. Facilitation Instruction

The defendant asserts that the trial court erred by denying his request, given
at the conclusion of the proof, for a jury instruction on the lesser included offense of
facilitation. The State contends that the instructions given were appropriate.

As an initial matter, we note that although the defendant made an oral
request for an instruction on facilitation, he did not make the request in writing. Code
section 40-18-110 provides, in pertinent part, as follows:

Notwithstanding any other provision of law to the contrary,
when the defendant fails to request the instruction of a lesser
included offense as required by this section, the lesser
included offense instruction is waived. Absent a written
request, the failure of a trial judge to instruct the jury on any

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 lesser included offense may not be presented as a ground for
relief either in a motion for a new trial or on appeal.

T.C.A. § 40-18-110(c). Because he failed to make a written request, the defendant has
waived plenary review of this issue. See id.; see also State v. Martin, 505 S.W.3d 492,
503 (Tenn. 2016) (finding waiver when defendant made an oral request for a lesser
included offense instruction but did not make a written request); State v. Fayne, 451
S.W.3d 362, 371 (Tenn. 2014).

“The waiver of a lesser included offense instruction does not, however,
preclude our consideration of the issue under the doctrine of plain error.” Fayne, 451
S.W.3d at 371 (citations omitted). This court will grant relief for plain error only when:

(1) the record clearly establishes what occurred in the trial
court; (2) the error breached a clear and unequivocal rule of
law; (3) the error adversely affected a substantial right of the
complaining party; (4) the error was not waived for tactical
purposes; and (5) substantial justice is at stake; that is, the
error was so significant that it “probably changed the outcome
of the trial.”

State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d
274, 282-83 (Tenn. 2000)). The party claiming plain error bears the burden of satisfying
all five criteria as a prerequisite to plain error review. See id. Because each factor must
be established, we need not consider all five factors when a single factor indicates that
relief is not warranted. Fayne, 451 S.W.3d at 372 (citing State v. Bledsoe, 226 S.W.3d
349, 355 (Tenn. 2007)). “[A]n error would have to [be] especially egregious in nature,
striking at the very heart of the fairness of the judicial proceeding, to rise to the level of
plain error.” Fayne, 451 S.W.3d at 372 (citation omitted) (alterations in Fayne).

Here, the defendant did not contend that the victim’s injuries were inflicted
by another person, and no evidence suggested that anyone other than the defendant was
involved in the offenses. The evidence established that the victim suffered the injuries
that led to her death on the morning of August 26, 2014, and that the defendant was her
sole caretaker during that time. The defendant claimed that the victim’s injuries were the
result of a fall down the stairs at the Econo Lodge, but the medical evidence rebutted this
claim. Consequently, the trial court did not err by refusing to provide the requested
instruction and, therefore, the defendant cannot establish plain error.

IV. Testimony of Doctor Vance

-23-
 The defendant contends that the trial court erred by denying his motion for
new trial based upon the court’s handling of objectionable testimony offered by Doctor
Vance. The State asserts that the defendant waived our consideration of this issue by
declining the trial court’s offer of a curative instruction with regard to the testimony. We
agree with the State.

During Doctor Vance’s redirect examination, he testified that, based upon
his experience, it was his opinion that the victim’s injuries were inconsistent with the
defendant’s explanation that she had tripped and fallen. Instead, he said that it “[l]ooked
like she’d been assaulted.” The defendant objected to the testimony on grounds that the
doctor had made a legal conclusion instead of a medical one. Initially, the trial court
overruled the objection but then agreed that using the term “assault” “may be going too
far.” The court sustained the objection, but the defendant did not ask the trial court to
strike the testimony or provide a curative instruction, and the court did not take either
action at that point. Later, the trial court revisited the issue sua sponte and indicated a
willingness to issue a curative instruction. The defendant declined the offer, noting that
he was apprehensive about raising the issue again in front of the jury. During Detective
Puglise’s testimony, the court revisited the issue and again expressed a willingness “to
give an instruction that they should disregard that nonmedical diagnosis” offered by
Doctor Vance. The defendant again declined because “if I have you give an instruction,
then they get to hear that again.” The court said that it thought an instruction could be
given without repeating the testimony, but the defendant insisted that he did not want a
curative instruction.

In our view, the defendant has failed to establish entitlement to relief on
this issue. The defendant objected, and the trial court eventually sustained the objection.
Because the defendant did not ask the trial court to strike the testimony and refused the
offered curative instruction, he cannot be heard to complain about the deleterious impact
of the testimony. Furthermore, the offending testimony consisted of a single, fleeting
statement on the first day of a four-day trial. To say that this single error, particularly
considered in light of the defendant’s complete refusal of remedial measures, more
probably than not affected the outcome of the trial simply strains the bonds of credulity.
The defendant is not entitled to relief on this issue.

V. Sufficiency

The defendant also challenges the sufficiency of the convicting evidence,
arguing that the State failed to establish his identity as the perpetrator. The State asserts
that the evidence is sufficient.

-24-
 Sufficient evidence exists to support a conviction if, after considering the
evidence—both direct and circumstantial—in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh
the evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes,
331 S.W.3d at 379. The verdict of the jury resolves any questions concerning the
credibility of the witnesses, the weight and value of the evidence, and the factual issues
raised by the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the
evidence contained in the record as well as all reasonable and legitimate inferences which
may be drawn from the evidence. Id.

The defendant was charged with first degree murder, which, in this case,
required the State to prove the that the defendant killed the victim “in the perpetration of
or attempt to perpetrate . . . aggravated child abuse.” T.C.A. § 39-13-202(a)(2). He was
also charged with aggravated child abuse, which required the State to establish that he
“knowingly, other than by accidental means,” treated the victim “in such a manner” that
“result[ed] in serious bodily injury to the” victim. T.C.A. §§ 39-15-401(a); -402(a)(1).
“‘Knowing,’” in this instance, “means that a person acts knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is aware of the
nature of the conduct or that the circumstances exist.” Id. § 39-11-106(20). For purposes
of the aggravated child abuse statute,

“[s]erious bodily injury to the child” includes, but is not
limited to, second- or third-degree burns, a fracture of any
bone, a concussion, subdural or subarachnoid bleeding,
retinal hemorrhage, cerebral edema, brain contusion, injuries
to the skin that involve severe bruising or the likelihood of
permanent or protracted disfigurement, including those
sustained by whipping children with objects.

Id. § 39-15-402(d).

The defendant does not challenge the evidence supporting the elements of
the offenses, but instead argues that the State failed to establish his identity as the
perpetrator. “The identity of the perpetrator is an essential element of any crime.” State
v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789,
793 (Tenn. 1975)). Whether the State has established the defendant as the perpetrator of
the charged offenses beyond a reasonable doubt is “a question of fact for the jury upon its
consideration of all competent proof.” State v. Bell, 512 S.W.3d 167, 198 (Tenn. 2015)
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(citing State v. Thomas, 158 S.W.3d 361 app. at 388 (Tenn. 2005)); accord State v.
Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982) (citing Stubbs v. State, 393
S.W.2d 150, 153 (Tenn. 1965)).

The medical testimony established that the three-year-old victim died as a
result of multiple blunt force trauma injuries. Essentially, she was beaten to death. Other
evidence, including the defendant’s statements to the police and to Doctor Young,
established that the victim sustained her injuries while in the defendant’s care. The
defendant told the police on more than one occasion that he was alone with the victim
and her younger sibling after he dropped the victim’s mother off at work and the victim’s
older brother off at school. Sometime between the time the defendant dropped the
victim’s brother at school and the time the defendant arrived at the emergency room with
the victim, she sustained multiple injuries to her head and body. The defendant insisted
that the victim sustained the injuries when she fell down the stairs, but the other evidence
offered by the State sufficiently rebutted this statement. From these facts, a rational trier
of fact could have found beyond a reasonable doubt that the defendant inflicted the
injuries that led to the victim’s death.

Conclusion

Based upon the foregoing analysis, we affirm the judgments of the trial
court.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

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