dissenting.
Although I concur in the majority’s decision that this case must be reversed be-. cause of improper jury instructions, I dissent from its holding that T.C.A. § 39-2-202(a)(2) (Supp.1988) violates Article I, § 8, of the Tennessee Constitution. Furthermore, because I would construe the term “child abuse” used in the statute as referring only to aggravated child abuse, I also disagree with the majority’s holding that a sentence of death for violation of § 39-2-202(a)(2) is constitutionally disproportionate punishment under Article I, § 16, of our state constitution.
The majority holds that T.C.A. 39-2-202(a)(2) violates the due process guarantee of Article I, § 8, because it requires the jury “to declare a defendant guilty of prior crimes for which the defendant was never charged or tried and, moreover to sentence that defendant to death based upon those ‘convictions.’ ” The statute does no such thing. It requires as an element of the offense the defendant’s commission of a protracted pattern or multiple incidents of child abuse against the victim. A similar element, the defendant's commission of another offense, is found in the crimes of felony murder and involuntary manslaughter under the criminal code prior to November 1989. See T.C.A. § 39-13-202(a)(2) (1991); § 39-2-221 (1982). No one would argue that the statutes establishing these two offenses violate due process for the reason asserted by the majority. As in the *316case of felony murder or involuntary manslaughter, all that the due process provision of the Tennessee Constitution requires is that the State prove the offense that is an element of the homicide beyond a reasonable doubt in order to convict the defendant of the crime. See State v. McLerran, 604 S.W.2d 841, 845 (Tenn.1980).
One problem with the majority’s holding is that it would limit convictions under the statute to those persons who have previously been convicted of abusing the victim. Obviously, such cases would be rare, and the legislature’s action in passing the statute would be almost meaningless. One other interpretation of the majority’s opinion is that the State (1) must charge a defendant whom it wished to prosecute under T.C.A. § 39-2-202(a)(2) with those acts of child abuse upon which it intended to rely in proving the homicide and (2) must convict the defendant of those offenses either prior to or as a part of the homicide prosecution before due process will be satisfied under our state constitution. This ritualistic procedure contributes nothing to the protection of a defendant’s rights to due process under Article I, § 8, that is not already afforded by requiring the State to prove the incidents of child abuse beyond a reasonable doubt at the homicide trial.1
State v. Bobo, 727 S.W.2d 945 (Tenn.1987), cited by the majority as authority for its holding, can be distinguished from this case. Bobo involved the construction of T.C.A. § 39-2-203(i)(12) [now § 39-13-204(i)(12) ], which provides as an aggravating circumstance in capital sentencing the defendant’s commission of “mass murder,” defined by the statute as “the murder of three or more persons within the state of Tennessee within a period of forty-eight (48) months, ... perpetrated in a similar fashion in a common scheme or plan.” This Court’s conclusion that circumstance (i)(12) required prior convictions of murder was made in the unique context of a capital sentencing proceeding, at which both the state and federal constitutions require heightened due process and increased reliability. See State v. Hines, 758 S.W.2d 515, 523-524 (Tenn.1988); Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). If construed to have allowed the jury to consider previously unproven, unrelated and separate charges of murder as an aggravating circumstance directly weighed in its sentencing determination, T.C.A. § 39-2-203(i)(12) would have violated the principles of reliability required in capital sentencing. In the present case, the jury is not sentencing the defendant to death based upon proof of unrelated and separate offenses never established without the panoply of protections afforded by trial. The defendant has been afforded these protections at the guilt hearing, at which the acts of abuse are relevant as elements of the offense.
Furthermore, I cannot agree with the majority’s conclusion that the term “child abuse” used in § 39-2-202(a)(2) “cannot legitimately be construed to refer to ‘aggravated child abuse’ as then defined in T.C.A. § 39-4-422 [Supp.1988].” Review of the legislative history of the statute2 shows *317that the offense in § 39-2-202(a)(2) was consistently equated with felony murder by the General Assembly. It is also clear that the statute was enacted specifically in response to the murder of twenty-one-month-old Scotty Trexler. The pattern of abuse inflicted upon Trexler was not misdemeanor child abuse. It involved the intentional infliction of serious and extensive burns, dislocation of the hip joints, and trauma to the head. See State v. Kerry Phillip Bowers, 1989 WL 86576 (Tenn.Crim.App., Knoxville; August 2, 1989). It is also evident from the legislation’s history that the General Assembly considered the statute a codification of this Court’s decision in State v. LaChance, 524 S.W.2d 933 (Tenn.1975). The persistent pattern of abuse inflicted upon the young victim in that case — long and brutal beatings inflicted with belts, boards, boots and fists — was likewise what would later be condemned as the felony of aggravated child abuse under T.C.A. § 39-4-422.
Construing the statute to require aggravated child abuse is not only in complete accord with the intent of the General Assembly but also follows established principles of statutory construction. It is a recognized rule that, where one construction will render a statute void as unconstitutional and another will render it constitutionally valid, the courts will adopt the latter interpretation even though the former construction may initially seem more natural. State v. Bobo, 727 S.W.2d at 955. In the present case, I might agree with the majority that, if § 39-2-202(a)(2) allowed imposition of a sentence of death for killings committed during the perpetration of a misdemeanor, there could be serious proportionality problems under Article I, § 16, of the Tennessee Constitution. However, interpreting the statute as referring to aggravated child abuse avoids any such constitutional defect. Once the defendant’s culpability is that required for the commission of a felony involving the deliberate or reckless use of lethal, or potentially lethal, violence, problems with general proportionality under Article I, § 16, no longer exist. Cf State v. Smith, 695 S.W.2d 954, 960 (Tenn.1985); State v. Simon, 635 S.W.2d 498, 502 (Tenn.1982).3
For these reasons, I dissent from the majority’s opinion in this case. I would hold that T.C.A. § 39-2-202(a)(2) (Supp. 1988) does not violate Article I, § 8, of the Tennessee Constitution. I would also conclude that the term “child abuse” used in the statute encompasses only the offense of aggravated child abuse as defined in T.C.A. § 39-4-422 (Supp.1988) and that imposition of the death penalty for violation of § 39-2-202(a)(2) (Supp.1988) does not, therefore, violate the cruel and unusual punishments provision of Article I, § 16, of the Tennessee Constitution. Because, however, I would find that the trial court erred in instructing the jury on misdemeanor child abuse rather than the felony of aggravated child abuse, I concur in the majority's holding that this case must be reversed, but I would remand for a new trial rather than dismiss the charges against the defendant.
I am authorized to state that Justice O’BRIEN concurs in this dissenting opinion.
. The greatest potential for due process violation in a prosecution under the statute lies in the fact that, unlike the other crimes which tire elements of felony murder and involuntary manslaughter, many of the acts of child abuse necessary to establish the offense in § 39-2-202(a)(2) will usually have occurred at a time other than that of the killing. A broad range of conduct extending over an indefinite period of time is thus relevant at trial. A defendant may be seriously disadvantaged in defending himself against proof of this conduct without some notice of the nature of the evidence the State intends to offer in carrying its burden of proving a protracted pattern or multiple incidents of child abuse. Cf. Application of Boyd, 189 F.Supp. 113, 117-118 (M.D.Tenn.1959), aff’d, 281 F.2d 195 (6th Cir.1960) (finding Tennessee’s 1939 Habitual Criminal Act violated federal due process clause because a defendant prosecuted under it did not receive notice of prior offenses to be used against him sufficient to enable him to prepare and present a defense to the charges against him). The defendant has not asserted that this aspect of § 39-2-202(a)(2) hampered his defense in the present case.
. See Legislative Journal, 1988 Tenn.Pub.Acts, Ch. 802; Senate Debate, April 14, 1988, Senate Bill 2503 (Senate Tape 81); House Debate, April *3177, 1988, House Bill 2479 (House Tape 64), 95th General Assembly.
. This does not, however, preclude a finding of case specific disproportionality based upon the circumstances of each murder and the character of each defendant. See State v. Pritchett, 621 S.W.2d 127, 140 (Tenn.1981).