State of Tennessee v. Thomas Bethel Hendrix ( 2019 )

05/14/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 15, 2018 Session
STATE OF TENNESSEE v. THOMAS BETHEL HENDRIX
Appeal from the Circuit Court for Williamson County
No. II-CR047916 James G. Martin, III, Judge
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No. M2017-00386-CCA-R3-CD
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A Williamson County Circuit Court Jury convicted the Appellant, Thomas Bethel
Hendrix, of two counts of aggravated child abuse and one count of child abuse, and the
trial court imposed a total effective sentence of twenty-five years in confinement. On
appeal, the Appellant contends that the trial court erred by admitting certain statements he
made to law enforcement and that the trial court erred by failing to merge his convictions
into a single conviction of aggravated child abuse. Based upon the oral arguments, the
record, and the parties’ briefs, we affirm the judgments of the trial court but conclude that
the Appellant’s convictions must be merged. Accordingly, the case is remanded to the
trial court for merger of the convictions into a single conviction of aggravated child
abuse. We note that merger of the convictions does not affect the Appellant’s twenty-
five-year sentence because the trial court ordered that he serve the sentences
concurrently.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed,
Case Remanded
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT H. MONTGOMERY, JR., JJ., joined.
J. Gregory Burlison, Franklin, Tennessee, for the Appellant, Thomas Bethel Hendrix.
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Mary Katharine White
and Tammy Rettig, Assistant District Attorneys General, for the Appellee, State of
Tennessee.
OPINION
I. Factual Background
In April 2014, the Williamson County Grand Jury returned an indictment charging
the Appellant in counts one and two with aggravated child abuse resulting in serious
bodily injury and in count three with child abuse. Each count alleged that the offense
occurred between January 4 and January 8, 2014.
The victim of the alleged crimes was the two-month-old son of the Appellant’s
then-girlfriend, Jennifer Barnes. Before trial, the Appellant filed a motion for a bill of
particulars, and the State ultimately responded that count one referred to “injury to the
victim’s ribs/rib,” count two referred to “injury to the victim’s brain,” and count three
referred to “bruising of the victim’s skin.”
At trial, Barnes testified that she was originally from Detroit, Michigan, and that
she had lived in Dickson, Tennessee, for approximately three years. She had two sons,
WBB,1 who was ten years old at the time of trial, and the victim, who was two years old
at the time of trial. Barnes’ relationship with the victim’s father ended two weeks after
she learned she was pregnant with the victim.
The victim was born on October 15, 2013, at twenty-nine weeks gestation. As a
result of his premature birth, he had pulmonary lung disease, was placed in the Neonatal
Intensive Care Unit (NICU), and was put on a ventilator and a respirator. Three days
after the victim’s birth, Barnes’ long-time friend, Andrea Hendrix,2 visited Barnes in the
hospital. Andrea, who was married to the Appellant’s brother, Ben Hendrix, brought the
Appellant to the hospital with her, and the Appellant and Barnes met for the first time.
Shortly thereafter, Barnes was released from the hospital, but the victim remained
in the NICU. At that time, Barnes was living with her friend, Tonya Pezzi, in Pezzi’s
apartment in Dickson. Barnes visited the victim in the hospital almost daily, and the
Appellant usually accompanied her. Barnes and the Appellant quickly developed a
romantic relationship, and they talked about getting married and renting an apartment
together. Barnes spent some nights with the Appellant, who lived in a house with Ben
and Andrea in Fairview.
Approximately two days before Thanksgiving, the victim was released from the
hospital after forty-five days in the NICU. The victim continued to suffer from
pulmonary issues, which required that he have weekly checkups with his doctor. He also
had to be taken to the hospital on several occasions due to breathing issues. Notably, on
December 24, 2013, Barnes took him to the hospital because he was sick and had labored
1
This court will refer to the minors by their initials.
2
Because several individuals in this case share a surname, we will refer to them by their first
names for clarity. We mean no disrespect to these individuals.
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breathing. A chest x-ray was taken that day. Barnes thought another x-ray was taken on
January 3, 2014, during a follow-up appointment.
Barnes began working for Dunkin’ Donuts in November or December 2013, and
she had to leave for work about 4:15 a.m. While she was at work, WBB stayed with
Barnes’ father, who had late-stage cancer. Barnes usually left the victim with Jennifer
Dructor, a babysitter who lived in the same apartment complex as Pezzi. Dructor’s
boyfriend, Eric Newberry, sometimes helped Dructor care for the victim. On other
occasions, Angela or the Appellant watched the victim.
On Monday, January 6, 2014, Barnes worked until 4:00 p.m. The next day,
January 7, the victim was ill, and Barnes stayed out of work to care for him. WBB stayed
with Barnes’ father, and Barnes and the victim stayed at Pezzi’s apartment until
approximately 6:00 p.m. Before leaving the apartment, Barnes changed the victim’s
diaper, dressed him in a “onesie,” and put him in a “sleep sack.” Barnes explained, “You
put the baby into the sleep sack and you zip it up and it has two flaps that kind of wrap
over the sides and kind of swaddle them.” Barnes then retrieved WBB from her father’s
house and took her sons to the Appellant’s house. The victim was asleep when they
arrived, but he woke a couple of times while Barnes and the Appellant sat on the couch
and watched television. Either the Appellant or Barnes held the victim when he woke;
when he fell asleep, they put him in his car seat on the floor in front of the couch. The
victim often slept in his car seat because sleeping at an angle helped his breathing.
Around 11:00 p.m., Barnes went into the bedroom of Angela’s son, Dominic, to
sleep, and she put the victim in his car seat beside the bed. The Appellant stayed in the
living room to sleep on the couch. Barnes changed the victim’s diaper right before she
went to sleep and did not see any marks or signs of injury on the victim. The victim’s
behavior that day had been “perfectly fine,” despite his illness.
Barnes woke around 1:00 or 2:00 a.m. because the victim was crying. She
discovered he was not in his car seat beside the bed but was in the living room with the
Appellant. Barnes called out and asked the Appellant if everything was okay. The
Appellant sighed and responded, “[Y]eah, he’s just having a really bad night tonight.”
After a few minutes, the victim’s crying increased, and Barnes asked the Appellant to
bring the victim to her. The Appellant did “a lot of huffing and puffing and sighing,” and
Barnes heard sounds that made her think the Appellant was changing the victim’s diaper.
Barnes mentioned to the Appellant that no lights were on in the house, which was
unusual. The Appellant explained that Ben and Angela were trying to save money on the
electric bill; however, Barnes had never heard that they wanted to save money on
electricity. Barnes asked the Appellant to turn on a light and make a fresh bottle for the
victim. After complying, the Appellant brought the victim to Barnes, “kind of shoved”
the victim at her, and said, “‘[H]ere.’” Barnes thought the Appellant was acting
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“frustrated and angry.” Barnes fed the victim and rocked him, and he fell asleep while
eating. Barnes put him back in his car seat beside the bed, and she went back to sleep.
Barnes woke about 4:00 or 4:30 a.m. on January 8 to get ready for work. About
5:30 a.m., she placed the victim in his car seat beside the couch where the Appellant was
sleeping and shook the Appellant to tell him she was leaving. She took WBB to her
father’s house and headed to work.
Barnes initially went to the Dunkin’ Donuts store in Fairview but was sent to the
store in Dickson. She got off work about 12:00 or 12:30 p.m. and spent “several
minutes” in the parking lot talking with a coworker about wanting to get a loan so she
and the Appellant could rent an apartment. After the conversation, Barnes went into a
nearby loan office to start the loan process. Upon leaving the loan office, Barnes went to
her father’s house, retrieved WBB, and returned to the Appellant’s house.
When Barnes arrived around 1:00 p.m., the victim was still wearing his sleep sack.
He was asleep in his car seat beside the couch; Barnes noted that the victim typically
slept a lot during the day. Ben was home, asleep in his bedroom. Someone from the loan
office called and asked Barnes to return to sign additional paperwork. Before leaving,
Barnes asked if the Appellant wanted to go with her. He responded that he had things he
needed to do on the computer, so he would stay home and watch Barnes’ sons until she
returned to get them for the victim’s pediatrician appointment, which was scheduled for
4:00 p.m.
Barnes’ return to the loan office took longer than she expected. Upon leaving the
office, she called the pediatrician to advise she would be a little late for the appointment.
She then called the Appellant and asked him to have the boys ready to go. The Appellant
met her outside with the boys when she arrived. The Appellant told her that the victim
had been “very agitated” and that he had spent much of the day trying to keep the victim
quiet so the victim would not wake Ben. After both boys were in Barnes’ car, the
Appellant kissed Barnes and told her that he loved her. Barnes thought the Appellant
seemed “rushed,” “anxious,” and “antsy.”
Upon arriving a few minutes late for the 4:00 p.m. appointment at Old Harding
Pediatrics, a nurse led Barnes and her sons into an exam room and told Barnes to undress
the victim. As Barnes took the victim out of his sleep sack, she noticed that his hands
were balled into fists and that one of his hands had what appeared to be marks of dirt or
ink across the knuckles. Barnes licked her thumb and wiped at the marks, but they did
not come off. Barnes picked up the victim, and his fists opened. On the palm of the
marked hand, the victim had “a perfect circle of the same type of markings [she] had
found on his knuckles.” Barnes took the victim into the hall and summoned a nurse, who
then summoned the pediatrician, Dr. Jennifer Ragsdale. The marks were determined to
be bruises. Barnes had not seen the bruises before and did not know how they got there.
-4-
The pediatrician told Barnes to take the victim to Vanderbilt Children’s Hospital
(Vanderbilt).
While in the parking lot of the pediatrician’s office, Barnes sent text messages to
the Appellant about the bruises.3 In the texts, Barnes asked why the victim was bruised
and noted that the Appellant was the last person with the victim. The Appellant
responded that he did not know how the victim was bruised, that he did not see bruises on
the victim, and that Barnes forgot to put formula in the victim’s bag. When Barnes
specifically asked how the victim’s fingers and palm were bruised, the Appellant replied
that he had seen the bruises but had not drawn Barnes’ attention to them. Barnes asserted
that she did not injure the victim and that the victim was not bruised when she went to
bed or when she fed the victim in the middle of the night. The Appellant responded,
“Baby, [the bruises were] there when you took him to me in the morning. Maybe I
swaddled him too hard and I won’t do it again.” Barnes again asserted that the bruises
were not there when she went to bed and maintained that the victim had been swaddled
the entire time he was at the Appellant’s house. The Appellant insisted that he was 100%
positive the victim had bruises the night before. Barnes responded that she had changed
the victim’s diaper before coming to the Appellant’s house and that the victim had no
bruises at that time. She had noticed the bruises immediately when she removed the
swaddling at the pediatrician’s office. The Appellant said, “I know. I didn’t see [the
bruises] until this morning.” Barnes repeated that the victim was not bruised the night
before and that the victim had been with only the Appellant. The Appellant responded, “I
understand this. I never accused you.” Barnes cautioned the Appellant that if the
victim’s bruises had been caused by child abuse, their relationship was over. At that
point, Barnes stopped sending the Appellant text messages and drove to the hospital.
Upon arriving at the hospital, the victim was rushed to the Intensive Care Unit
(ICU) where he was completely undressed and full body x-rays, a CT scan, and an MRI
were performed. In the midst of the testing, Barnes learned the victim had bruises and
bleeding on the brain. Barnes then sent the Appellant additional text messages. She told
the Appellant that their relationship was over, that she could not risk her children for the
Appellant, that the victim had bleeding on his brain, that the victim was just a baby, and
that bleeding on the brain did not just happen. The Appellant replied that he never did
anything. Barnes stated, “[Y]ou were the only one that’s been around him since Monday
besides myself and he has blood on his brain now. And there’s these marks that were not
here yesterday. And I know I didn’t do anything.” Barnes then stopped exchanging text
messages with the Appellant.
Barnes called the Appellant’s cellular telephone after 10:00 p.m. on January 8 and
discovered that his telephone number had been changed. She said, “I immediately went
3
Copies of the text messages exchanged by Barnes and the Appellant on the night of January 8,
2014, were introduced as exhibits.
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to social media because we were friends on Facebook and . . . I was deleted, I was
blocked, I couldn’t even find him.”
At some point on the night of January 8, Detective David Bohler came to the
victim’s hospital room. Barnes spoke with him and showed him the text messages she
and the Appellant had exchanged.
Detective Bohler returned to the hospital the next day, January 9, and asked if
Barnes would make a recorded controlled telephone call to the Appellant. She agreed,
and Detective Bohler “prompted” her to say certain things to the Appellant. Because she
knew of no other way to contact the Appellant, Barnes called his workplace, a Sonic
restaurant in Fairview. During the call, the Appellant accused Barnes of being vindictive,
being crazy, and wanting to press charges against him. Barnes denied his accusations and
explained she only wanted to find out what happened to the victim. The Appellant said
he and Dructor were afraid of Barnes. At trial, Barnes acknowledged that she was “a
northern girl” who “grew up in Detroit” and that her tone of voice could come across as
“forceful,” “overbearing,” and “loud.” However, she denied ever doing anything to make
the Appellant or Dructor afraid of her.
Also on January 9, Dr. Lowen informed Barnes that the victim had multiple rib
fractures, which shocked Barnes. Barnes told Dr. Lowen she felt guilty for failing to
protect the victim. Barnes denied injuring the victim, saying that she loved her children
and would never hurt them.
Barnes testified that the Appellant never showed her the bruises on the victim.
Additionally, the Appellant did not show any remorse or concern for the victim during
the call. The Appellant never came to visit the victim during the three or four days he
was in the hospital, and the Appellant did not ask about the victim’s welfare.
Contrastingly, Dructor was upset and concerned about the victim’s injuries, did not cease
contact with the victim and Barnes, and continued to watch the victim for months after
his release from the hospital.
Barnes testified that she was “heartbroken” by the Appellant’s lack of care or
interest, especially because the Appellant had shown interest in being the victim’s “father
figure.” Barnes continued to take the victim to all of his doctor’s appointments, as she
had since his birth. At the time of trial, Barnes and her sons were living in an apartment
in Dickson.
On cross-examination, Barnes acknowledged that her sons did not have the same
father and that she had full custody of both boys. Barnes had been diagnosed with
uterine cancer when she was twenty-seven years old. She was told she would not be able
to have more children and was surprised when she became pregnant with the victim.
-6-
Barnes testified that after meeting the Appellant, their relationship developed
quickly. The Appellant was very fond of the victim. He also liked WBB, but it “seemed
like there was a bit of jealousy between [them] over [Barnes’] time.” The victim required
more attention than most babies because he had medical issues due to his premature birth.
Barnes never saw the Appellant harm the victim and noted that he volunteered to get up
with the victim in the night so she could sleep.
Barnes recalled that sometime between 1:00 and 3:00 a.m. on January 8, she woke
because the victim was crying. She thought she heard the Appellant change the victim’s
diaper because she “hear[d] the sounds that a disposable diaper [makes] when you take
off the tabs.” After the Appellant brought the victim to her, she spent twenty or thirty
minutes feeding and rocking the victim before he fell asleep.
Barnes stated that she may have gotten off work about 11:00 a.m. and estimated
that she talked with a coworker for twenty or thirty minutes before going to a nearby loan
office. About 1:30 p.m., she was called back to the loan office from the Appellant’s
house. Afterward, she picked up her sons and arrived at the pediatrician’s office at 4:05
p.m.
Barnes recalled that while at Vanderbilt, she spoke with Detective Bohler and with
an employee of the Department of Children’s Services (DCS) for thirty to sixty minutes.
She thought Detective Bohler arrived at the hospital around 7:00 p.m. At Detective
Bohler’s request, Barnes agreed to make a controlled call to the Appellant to find out
what happened to the victim. Barnes acknowledged that Ben was home that day but
stated that he was asleep in his room and hard to wake.
Barnes thought the issue was important enough to warrant calling the Appellant
while he was working. During the call, the Appellant said he did not know what
happened to the victim but wished he knew. When Barnes asked the Appellant if the
injuries were the result of an accident, the Appellant denied “actively” harming the
victim. Although the Appellant had said he loved her and wanted to marry her, he told
her their relationship was over because of her accusations in the text messages. He did
not try to convince her to work things out.
Barnes stated that after she left for work on the morning of January 8, the
Appellant was the only person who interacted with the victim, noting that Andrea was at
work, Ben was asleep in his bedroom, and Dominic was at school.
Dr. Jennifer Ragsdale testified that she had been the victim’s doctor since he was
discharged from the hospital after his premature birth. She noted that the victim was born
at twenty-eight weeks gestation and that babies born that prematurely had problems with
lung development. Shortly after the victim’s discharge from the NICU in November, the
victim caught a cold, and he was seen at the Vanderbilt emergency room two or three
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times for breathing problems. Specifically, the victim was seen at Vanderbilt on
December 24, 2013. On January 2, 2014, Dr. Ragsdale’s partner in the pediatric practice
saw the victim at a follow-up appointment and ordered x-rays, which were performed the
next day, January 3.
On January 8, 2014, Barnes brought the victim to the office because of
“fussiness.” She and the victim were led into the exam room, and she was asked to
undress him. Afterward, she took him across the hall to be weighed and have his
temperature taken. Dr. Ragsdale thought that as the victim was being weighed, his hand
opened, and Barnes and the nurse “noticed a large purple spot on this hand.” Thereafter,
the nurse asked Dr. Ragsdale to look at the victim’s hand. Dr. Ragsdale saw a large
purple bruise in the middle of the victim’s palm and a line of bruising across his
knuckles. Because the victim was a “tiny baby” who was fussy and had multiple bruises,
Dr. Ragsdale was concerned that the victim had been injured and advised Barnes to have
the victim assessed by a child abuse team at Vanderbilt. Barnes agreed to take the victim
to the hospital immediately.
Dr. Ragsdale opined that Barnes’ demeanor was typical of a shocked mother who
did not know how her child was injured and that Barnes was agreeable to further
investigation. Dr. Ragsdale continued to be the victim’s doctor after the discovery of his
injuries. The victim had no injuries after January 8.
Dr. Deborah Lowen testified that she was the head of the Center for Child
Protection and Well-Being, also known as the CARE Team, at Vanderbilt. She explained
that the CARE Team “evaluate[d] children when there are concerns about the possibility
of abuse or neglect.” Without objection, Dr. Lowen testified as an expert in the field of
child abuse pediatric medicine.
On the evening of January 8, 2014, someone from Vanderbilt’s emergency
department called Dr. Lowen and advised her that the victim had been admitted due to
concerns of abuse or neglect. Dr. Lowen saw the victim on the morning of January 9 for
a formal consultation.
During her examination of the victim, Dr. Lowen noticed he had several external
areas of bruising: right ear, right forearm, several fingers of the right hand, right palm,
and left calf. The victim was only two months old; therefore, he did not have enough
strength to have bruised himself. Moreover, he had bruises on different parts of his body
and no history of accidental injury. Accordingly, the bruising “happened multiple times.”
Dr. Lowen said that bruising “at any location on a baby at this age in this developmental
ability is very concerning.” She could not say when the bruising occurred.
Because of lung issues, the victim had x-rays taken of his chest area on December
24, 2013, and on January 3, 2014. At that time, no fractures were noticed on the x-rays.
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After the victim’s bruises were discovered, x-rays were taken on January 8, 2014, which
clearly revealed that the top rib on the right side was fractured. Additionally, because the
x-rays reflected that blood was around the lung, the doctor was concerned that some of
the lower ribs on the right side also were fractured. Follow-up x-rays on January 31,
2014, revealed that the victim had a total of seven healing rib fractures, all on the right
side of the body.
Dr. Lowen concluded that the victim’s rib fractures occurred after January 3,
noting that it took fractures seven to ten days to show signs of healing on an x-ray. She
explained that new rib fractures could be difficult to detect until they began to heal and
bony calluses formed. The victim had no bruising on his chest associated with the
fractures, which was typical with acute rib fractures “in little babies.” Dr. Lowen stated
that the fractures would have caused the victim to exhibit fussiness, irritability, and
difficulty in getting comfortable.
Dr. Lowen noted that the top rib was “relatively protected” because it was
underneath the collarbone and that fracturing it required “substantial force . . . that [was]
well outside that of normal caregiving.” The fractures could not be caused by swaddling
unless it was done in a “very forceful, aggressive manner with somebody manipulating
the chest.” Dr. Lowen and radiologists examined all of the victim’s x-rays and
determined that the fractures were in “different stages of . . . healing.”
A CT scan revealed that the victim had a cortical contusion, which was “bruising
to the very top of the brain, the very outside part of the brain.” Dr. Lowen was concerned
about subdural bleeding, although it had not been revealed clearly by the CT scan.
Accordingly, an MRI was performed, which revealed that the victim had “bleeding
around the brain called [a] subdural hematoma.” The cortical contusion and subdural
hematoma were “separate and distinct injuries” that were the result of “abusive head
trauma.” The victim’s head trauma would have caused him to exhibit fussiness,
irritability, and possibly a low-grade fever. Dr. Lowen concluded that the victim’s
injuries were the result of “child physical abuse.”
Dr. Lowen recalled that during her evaluation of the victim, Barnes was
forthcoming about the victim’s family and medical history. Barnes was “upset in an
appropriate way” about the victim’s injuries and “expressed a lot of guilt.”
On cross-examination, Dr. Lowen testified that she would have been concerned
about abuse “in a baby this age” even by a single bruise. Because the victim had a
number of other injuries, she concluded that he had been injured in “multiple different
ways.” Dr. Lowen opined that “some of the rib fractures were at different ages.” The
cortical contusion was “relatively recent” but could not be dated with specificity. Dr.
Lowen noted that subdural hematomas were “difficult to date.”
-9-
On redirect examination, Dr. Lowen testified that if the victim had come to the
hospital with only bruising, only rib fractures, or only the brain injuries, she would have
diagnosed him with nonaccidental child abuse. The combination of injuries signaled that
the victim “has been a victim of child abuse . . . involving multiple different parts of his
body.”
Dr. Gabriella Crane, a pediatric radiologist at Vanderbilt, testified without
objection as an expert in her field. Dr. Crane explained that the ends of a new rib fracture
often did not separate, making the fracture difficult to see on an x-ray. Instead, doctors or
radiologists had to look for secondary signs of a new rib fracture such as swelling or
bleeding.
Dr. Crane testified that the victim came into Vanderbilt’s emergency room on
December 24 because he had shortness of breath and that chest x-rays were taken. She
examined those x-rays and detected no rib fractures. The victim returned to the
emergency room on January 3 due to acute bronchiolitis, which was a type of respiratory
infection. X-rays were taken of the victim’s lungs but also showed the ribs. Dr. Crane
examined the January 3 x-rays and could see no clear fracture lines in the ribs. However,
she saw blood in the pleural space between the right lung and ribs five, six, and seven.
The blood was originally “read” as “a little inflammation.” However, Dr. Crane opined
that it was a subtle finding of rib fractures.
The victim’s January 8 x-rays revealed a widening in the pleural space between
the right lung and ribs five, six, and seven as well as new fractures on ribs one, two,
eight, and nine. The fractures on ribs eight and nine were more subtle than the fractures
on ribs one and two. The fractures led Dr. Crane to believe that the rib fractures occurred
from at least “two episodes of trauma.”
When Dr. Crane examined the victim’s January 31, 2014 x-rays, she confirmed
that he had “multiple rib fractures of different stages of healing,” all on the right side of
his body. The victim had seven total rib fractures, specifically fractures to ribs one, two,
five, six, seven, eight, and nine. All of the fractures had thick, bony calluses around
them, signifying they were in the late stages of healing.
On cross-examination, Dr. Crane explained that no broken ribs were noted at the
time the January 3 x-rays were taken. However, when the January 3 x-rays were
examined again at a later date, she saw fluid in the pleural space next to ribs five, six, and
seven which indicated “bleeding from the ribs.” The January 8 x-ray reflected that ribs
five, six, and seven were in the process of healing and were close to one week old.
Detective David Bohler testified that he was a member of the Child Protective
Investigating Team (CPIT), which was a part of the Criminal Investigation Division of
the Fairview Police Department. CPIT was comprised of law enforcement officers from
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the Williamson County area, DCS workers, members of the district attorney general’s
office, and members of the Child Advocacy Center in Williamson County.
Around 8:30 p.m. on January 8, DCS employee Jeanine Hall called Detective
Bohler to inform him that a two-month-old infant with suspicious injuries was admitted
into Vanderbilt. When Detective Bohler arrived at Vanderbilt sometime between 9:30
and 10:00 p.m., Hall introduced him to Dr. Rebecca Kidd. Dr. Kidd described the
victim’s injuries to Detective Bohler, advised him that the injuries were the result of non-
accidental trauma, and showed him photographs of the injuries. Detective Bohler noted
that the victim had several bruises in “suspicious” locations.
When Detective Bohler entered the victim’s hospital room, he saw that Barnes’
eyes were red and moist, indicating she had been crying. Her voice was shaky, and she
appeared nervous and upset. She was willing to speak with Detective Bohler and was
forthcoming with information concerning where and with whom the victim had been
prior to his injuries. Barnes showed Detective Bohler the text messages she and the
Appellant had exchanged earlier that evening. Detective Bohler and Barnes spoke for
forty-five minutes to one hour.
Dr. Kidd informed Detective Bohler that the victim had signs of a possible
contusion and/or bleeding under his skull, which was later confirmed by follow-up
testing. On the night of January 8, Detective Bohler did not know about the victim’s rib
fractures.
Detective Bohler initially considered everyone who had had contact with the
victim to be a suspect, and he spoke with all of the suspects. He was able to verify the
information Barnes gave him, finding her statements to be “consistent and truthful.” He
also eliminated Dructor, Newberry, Ben, and Angela as injuring the victim. Eventually,
he concentrated on the Appellant as the perpetrator.
Detective Bohler explained that he saw a text message the Appellant sent to
Barnes, acknowledging that the Appellant had seen the victim’s bruises before Barnes
took the victim to the pediatrician. Given the severity of the victim’s bruises, Detective
Bohler did not understand the Appellant’s failure to call 911. Detective Bohler, a father
of three children, did not believe the Appellant’s claim that the victim’s injuries were
caused by the Appellant’s swaddling the victim “too hard.” Detective Bohler said the
Appellant’s text messages were inconsistent with each other, noting that the Appellant
initially told Barnes he did not see the victim’s bruises until the morning of January 8 but
later said he had seen the bruises the previous night.
Detective Bohler learned that the victim had a regularly-scheduled appointment at
Old Harding Pediatrics on January 8. He opined that if Barnes had caused the victim’s
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bruises, she probably would not have kept the appointment because she would have
known the bruises would be discovered.
Detective Bohler asked Barnes to make a recorded, controlled telephone call to the
Appellant. Barnes agreed and made the call from the victim’s hospital room on January
10. Barnes called the Appellant’s workplace because the Appellant had changed his
telephone number the day after the injuries were first discovered, and she had no other
way to contact him. During the call, the Appellant told Barnes that he had changed his
telephone number because he was being harassed. However, Detective Bohler examined
the Appellant’s telephone records and determined that the Appellant’s claim was not
supported. Additionally, Detective Bohler opined that the Appellant changed his
telephone number so quickly that he could not have suffered much, if any, harassment.
In order to make the Appellant think the police suspected someone else, Detective
Bohler and his partner, Officer Jennifer Beech, “set up a ruse” by informing the
Appellant’s mother that they “were following up on a Dickson County investigation into”
Barnes. Officer Beech then tried to arrange an interview with the Appellant. She
initially was unable to contact him, but he left a voicemail message on her telephone.
Thereafter, Officer Beech contacted the Appellant’s supervisor at Sonic and obtained
permission for the Appellant to leave work for the interview.
The officers arrived at Sonic at 9:00 a.m., and the Appellant voluntarily rode to the
police department with Officer Beech. After arriving at the police department, Officer
Beech advised the Appellant of his Miranda rights, and he agreed to speak with the
officers. While Officer Beech and the Appellant talked, Detective Bohler sat at a side
desk and acted “disinterested.” Officer Beech asked the Appellant to provide a
handwritten statement describing his last interaction with the victim. The Appellant
wrote that he and Barnes began dating about October 15, 2013. He said the relationship
was rough from the beginning, maintaining that Barnes had an aggressive nature and
would fight until she got her way. He said he knew from the start that he had to “tread
lightly” around Barnes. Barnes told the Appellant, Angela, and Ben about her past,
including how she had been abusive toward her loved ones. The Appellant said he
generally let Barnes have her way. Near the end of their relationship, Barnes’ stress level
increased beyond normal, and she took it out on her eight-year-old son. The Appellant
said the victim was “tossed around” from one house to the next, and the Appellant
offered to pay for one babysitter but Barnes would not allow it. Barnes would come to
the Appellant’s house, hand the victim to the Appellant, and take a nap. The Appellant
usually left the victim sleeping in his car seat. When the victim awoke, the Appellant
would change his diaper, return him to his car seat, and turn the car seat to face the
television. The week prior to the discovery of the victim’s injuries, the Appellant “stayed
up with him every night and he slept through most nights.” If the victim did not sleep
through the night and woke crying, Barnes stormed into the living room, violently
snatched the victim from the Appellant’s hands, and stormed back to Dominic’s room to
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lie down with the victim to sleep. Since the discovery of the victim’s injuries, Barnes had
“harassed [the Appellant] and accused [him] along with all of [his] loved ones.” The
Appellant did not recall any events with him or his family “that could have caused this.”
After the Appellant finished his handwritten statement, the officers began to talk
about what allegedly happened on January 8. Detective Bohler acted as if he had not
heard about the victim’s injuries. The Appellant then asked to write an addendum to his
statement. In the addendum, the Appellant wrote that on January 8, Barnes took the
victim to a doctor’s appointment. Thereafter, she called the Appellant and accused him
of causing the victim’s injuries. She then included Ben and Angela in the accusation.
The Appellant noted that Angela was at work the entire day, that Dominic was at work
with her, and that Ben was at the house that day. Barnes told the Appellant that the
victim had bruising behind his ear, on the palm of his hand, on his knuckles, and on his
legs. Additionally, he had internal bleeding and bleeding on his brain. The Appellant
wrote, “When he left my supervision, none of these marks were present.”
Detective Bohler asked the Appellant to explain why he told the police that no
marks were on the victim when the victim left the Appellant’s supervision but told
Barnes he had seen bruises on the victim the night of January 7 and the morning of
January 8. The Appellant denied making such a statement to Barnes. Detective Bohler
then showed the Appellant a copy of the text messages Barnes and the Appellant
exchanged. The Appellant seemed “surprised” and said, “Oh, oh, yeah, that, yes, I guess
I did see that. There was like a little red dot in the palm of his hand, and maybe
something on his knuckle, whatever. Yeah, I do remember seeing that.” Detective
Bohler thought the Appellant’s response indicated that he was “covering” after being
caught in a lie.
Detective Bohler showed the Appellant a photograph of the victim’s injuries. The
Appellant maintained that the injuries he had seen had not looked as severe as the injuries
in the photograph. The Appellant initially described the marks on the victim as red dots,
but as he continued to speak, he also described the marks as purple. The Appellant
originally told Detective Bohler that he showed Barnes the marks on the victim on the
morning of January 8. However, after being shown the text messages, the Appellant
acknowledged he mentioned the marks to Barnes on the night of January 7.
Detective Bohler was aware that the Appellant had served in the military and
decided to engage the Appellant in a discussion about military service. Detective Bohler
wanted to build a rapport with the Appellant based upon their shared experience of being
in the Army. The Appellant told Detective Bohler that he had been a medic and that he
had attended Airborne School. He said he had been selected to serve as a medic for the
“First Ranger Regiment on a top secret mission to Afghanistan in support of the 3rd
Brigade, 3rd Infantry Division,” which was assigned to Kelley Hill, Fort Benning.
Detective Bohler testified that that brigade was the last one he had served in while on
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active duty. Detective Bohler was familiar enough with Army practices to know that the
Appellant’s claim was not truthful for a number of reasons.4 Detective Bohler told the
Appellant that he was young and should consider returning to military service, and the
Appellant responded that he was considering it. Detective Bohler knew the Appellant
was ineligible for reenlistment due to the circumstances of his discharge. Detective
Bohler asked the Appellant if he had lied about anything while speaking with the police,
and the Appellant acknowledged that he had lied about being eligible for reenlistment.
The Appellant told Detective Bohler that Barnes called him at approximately 5:00
p.m. on January 8 while Ben was driving the Appellant to work at Sonic. The Appellant
talked with Barnes and ended the call as he walked into the restaurant. Telephone
records did not back up the Appellant’s claim. Additionally, the telephone records
revealed “[t]hat there was no substance to [the Appellant’s] statement that he was being
harassed.” Detective Bohler noted that the Appellant initially said Barnes “snatched” the
victim from him on the night of January 7 but then said he took the victim to Barnes in
the bedroom and handed the victim to her.
On cross-examination, Detective Bohler testified that no controlled calls were
placed to any other suspects. Ben told Detective Bohler that “he was never within three
feet of the baby” and that he never saw or heard anything he thought was abuse. The
Appellant told Detective Bohler that he never intentionally harmed the victim.
Jennifer Dructor testified that she provided childcare for the victim when he was a
baby. At that time, her then-boyfriend, Eric Newberry, lived with her. She usually
babysat the victim four days a week, including the Monday before the victim’s bruises
were discovered. Dructor denied injuring the victim or treating him in a way that would
cause him injury. She noted that Newberry was gentle and caring with the victim.
Dructor said Barnes never did anything to make Dructor afraid of her and opined
that Barnes was a good mother who loved her children. Dructor did not recall babysitting
the victim after his injuries were discovered but acknowledged that she could have.
On cross-examination, Dructor testified that she thought she started babysitting the
victim when he was six months old. However, she did not question that the victim was
two and one-half months old when his injuries were discovered. She acknowledged that
she may have babysat the victim once or twice after his injuries were discovered. She
asserted that she cared for the victim as if he were a member of her family.
4
Detective Bohler explained that the Army “can’t deploy a mechanized infantry division in
secret.” Additionally, he asserted that the Rangers did not select members straight from Airborne School
and did not support a mechanized infantry division. Detective Bohler also knew that the duration of the
Appellant’s military service did not allow for a deployment such as the Appellant described and that the
3rd Brigade, 3rd Infantry Division did not deploy as a brigade at any time to Afghanistan.
- 14 -
Eric Newberry testified that he never noticed any injuries on the victim and never
noticed Dructor treating the victim harshly. Newberry and Dructor “almost treated [the
victim] like he was a porcelain doll with all of his premie issues and everything.”
Newberry thought Barnes appeared to be a loving and attentive mother.
Dr. Rebecca Kidd, an emergency medicine physician at Vanderbilt, testified that
she was one of the doctors who treated the victim when he came into the emergency
room. Dr. Kidd stated that Barnes was “very kind and appropriately concerned about her
child.”
Dr. Kidd observed that the victim’s pediatrician allowed Barnes to bring the
victim to the hospital. She opined that if the pediatrician had been concerned that Barnes
had caused the victim’s injuries, the pediatrician would have called an ambulance instead
of allowing Barnes to leave with the victim.
Tonya Pezzi testified that she and Barnes had known each other for approximately
ten years. In 2013, right after the victim was born, Pezzi allowed Barnes to move into her
apartment until Barnes could find her own apartment. Barnes stayed at Pezzi’s apartment
approximately fifty percent of the time and with the Appellant the rest of the time. Pezzi
never saw any injuries to the victim, and she was surprised when Barnes informed her
about the victim’s injuries. Pezzi said Barnes was a loving, good mother.
At the close of the State’s proof, defense counsel argued that the State was
required to elect a specific injury on which to proceed on each count of the indictment in
order to ensure jury unanimity, noting that the victim had multiple rib injuries, multiple
brain injuries, and multiple bruises. The State ultimately elected to proceed on count one
with the fracture to rib one, on count two with the subdural hematoma, and on count three
with the bruising to the victim’s hand. The Appellant did not testify or present any proof,
and the jury convicted him as charged. The trial court sentenced the Appellant as a
Range I, standard offender to twenty-five years for each aggravated child abuse
conviction and eight years for the child abuse conviction. The sentences were to be
served concurrently for a total effective sentence of twenty-five years.
II. Analysis
A. Rule 404(b)
The Appellant contends that the trial court erred by finding that certain statements
he made to Detective Bohler were admissible under Tennessee Rule of Evidence 404(b).
The State argues that the trial court did not abuse its discretion by admitting the
statements. We agree with the State.
- 15 -
During a pause in jury selection, the State advised the trial court that it wanted to
address in its opening statement “the lies that the defendant told Detective Bohler” about
his military service. Defense counsel objected, arguing that the Appellant’s statements
were inadmissible because the State was seeking to introduce them to show the
Appellant’s character for untruthfulness. The trial court initially noted that the
Appellant’s untruthful statements were admissions by a party opponent and, therefore,
qualified as an exception to the hearsay rule under Tennessee Rule of Evidence 803(1.2).
The court then asked the State to explain how the statements were relevant. The State
responded that the Appellant’s untruthful statements were relevant to show why
Detective Bohler “zeroed in on him as the primary suspect.” The State advised the court
that while the statements “[did] go to show that the defendant was untruthful,” the
Appellant had questioned potential jurors during voir dire about whether they would be
willing to consider another suspect as the culprit for the victim’s injuries; therefore, the
State had a right to show that Detective Bohler “did consider other suspects, but that his
radar was heightened by the defendant’s own actions, . . . him being motivated to present
himself in a better light, which would show a guilty conscience.” The trial court ruled
that it needed to hear from Detective Bohler in order to “sort this out” and that it would
hold a jury-out hearing. Until then, the State could not mention the Appellant’s lying to
Detective Bohler in its opening statement.
On direct examination, Detective Bohler testified that he developed a “pool of
suspects” in this case that included Jennifer Barnes, Jennifer Dructor, Eric Newberry,
Tonya Pezzi, Ben and Andrea Hendrix, and the Appellant. Detective Bohler said he then
began “whittling down who could have possibly done this.” At that point, the State
requested that the trial court hold the jury-out hearing.
During the hearing, Detective Bohler testified that the Appellant agreed to an
interview at the police department. Detective Beech primarily handled the interview
while Detective Bohler sat off to the side and acted disinterested. After the Appellant
gave a written statement, Detective Bohler became more involved in the interview and
tried to build a rapport with the Appellant by sharing experiences about their military
service. The Appellant told Detective Bohler that he was a medic for a first ranger
regiment and that he had been deployed to a top secret location he could not discuss with
the police. The Appellant said the deployment was in support of the 3rd Brigade, 3rd
Infantry Division, which happened to be the last unit Detective Bohler had served in
when he was on active duty. Detective Bohler knew that such a mechanized infantry
brigade could not be deployed in a top secret capacity. The Appellant also told Detective
Bohler that he was eligible to reenlist, which Detective Bohler knew was false.
Detective Bohler testified that in addition to the Appellant’s lying about his
military service, other parts of the Appellant’s interview heightened his suspicions of the
Appellant. For example, the Appellant wrote in his statement that “‘there were no marks
on that child when he left my supervision’” but told Barnes in a text message that he did
- 16 -
see marks on the victim. Detective Bohler confronted the Appellant about the
inconsistencies, but the Appellant only admitted lying about his military service.
At the conclusion of Detective Bohler’s testimony, defense counsel again argued
that the Appellant’s false statements were inadmissible because “the only purpose in
introducing these statements would be to attack the defendant’s character for
truthfulness.” The State countered that the Appellant’s statements were admissible under
Tennessee Rule of Evidence 404(b) to show identity. Defense counsel argued that the
Appellant’s lies to the officer did not fall under the scope of Rule 404(b) because they
were not “prior bad acts.” Moreover, defense counsel argued that even if the trial court
determined that Rule 404(b) applied, the danger of unfair prejudice outweighed the
probative value of the statements.
The trial court acknowledged that the testimony related to the Appellant’s
credibility but found that the Appellant’s false statements to Detective Bohler were bad
acts that fell under Rule 404(b). The court also found that the material issue other than
conduct conforming with a character trait to which the statements were pertinent was the
issue of identity. The trial court noted that the case was “clearly a circumstantial
evidence case” and that the identity of the perpetrator was the central issue of the case.
The trial court further found that the State produced clear and convincing evidence of the
statements and noted that the probative value of the testimony was not outweighed by the
danger of unfair prejudice. On appeal, the Appellant challenges this ruling.
“‘Relevant evidence’ means 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. Generally, “[a]ll
relevant evidence is admissible except as [otherwise] provided . . . . Evidence which is
not relevant is not admissible.” Tenn. R. Evid. 402. However, even relevant evidence
“may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R.
Evid. 403.
Tennessee Rule of Evidence 404 provides:
(b) Other Crimes, Wrongs, or Acts. - Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order
to show action in conformity with the character trait. It may, however, be
admissible for other purposes. The conditions which must be satisfied
before allowing such evidence are:
(1) The court upon request must hold a hearing outside
the jury’s presence;
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(2) The court must determine that a material issue
exists other than conduct conforming with a character trait
and must upon request state on the record the material issue,
the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime,
wrong, or act to be clear and convincing; and
(4) The court must exclude the evidence if its
probative value is outweighed by the danger of unfair
prejudice.
See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005), State v. Parton, 694
S.W.2d 299, 302 (Tenn. 1985). Generally, “[o]nly in an exceptional case will another
crime, wrong, or bad act be relevant to an issue other than the accused’s character. Such
exceptional cases include identity, intent, motive, opportunity, or rebuttal of mistake or
accident.” State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).
“If there is no Rule 404(b) issue, the question becomes whether the evidence
should have been admitted under Rules 401 and 402.” State v. Jennifer Hannah, No.
M2012-00842-CCA-R3-CD, 2014 WL 117400, at *12 (Tenn. Crim. App. at Nashville,
Jan. 14, 2014) (citing State v. DuBose, 953 S.W.2d 649, 653 (Tenn. 1997)). The
admission of evidence under Rules 401, 402, 403, and 404(b) are all reviewed under an
abuse of discretion standard; however, “the decision of the trial court [regarding the
admission of 404(b) evidence] should be afforded no deference unless there has been
substantial compliance with the procedural requirements of the Rule.” DuBose, 953
S.W.2d at 652; see State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).
In the instant case, the State was not seeking to use Detective Bohler’s testimony
to show that the Appellant had a propensity to lie or that his propensity to lie made it
more likely he physically abused the victim. Instead, the State wanted to use Detective
Bohler’s testimony to show that the Appellant’s lying about his military service during
his interview, along with other inconsistencies, caused the detective to identify the
Appellant as his primary suspect. Therefore, Rule 404(b) does not bar admission of the
testimony.
Moreover, while we agree that the Appellant’s lying about his military service was
highly prejudicial, the Appellant’s strategy throughout the trial was that the police
unfairly targeted him during their investigation. In defense counsel’s opening statement,
he said that there was “the rush to judgment to point the finger” at the Appellant. During
Detective Bohler’s cross-examination, Detective Bohler acknowledged that he used a
controlled telephone call and “trickery” on the Appellant but not the other suspects. In
- 18 -
closing arguments, defense counsel stated that the Appellant “was the suspect from the
start” and that Detective Bohler focused only on the Appellant. Therefore, Detective
Bohler’s testimony as to why he identified the Appellant as his primary suspect was
relevant and highly probative to the State’s case. Accordingly, we cannot say that
probative value of the evidence was substantially outweighed by the danger of unfair
prejudice and conclude that the Appellant is not entitled to relief.
B. Merger
The Appellant contends that his three convictions violate double jeopardy;
therefore, they must be merged into a single conviction of aggravated child abuse. The
State contends that the trial court properly refused to merge the convictions. We agree
with the Appellant that the convictions must be merged.
The grand jury indicted the Appellant in count one for aggravated child abuse
“resulting in serious bodily injury to the child, to wit: a fracture to any bone.” The grand
jury also indicted the Appellant in count two for aggravated child abuse resulting in
serious bodily injury and in count three for child abuse; however, neither count specified
the injury. The Appellant filed a motion for a bill of particulars, and the State filed a
response, arguing that a bill of particulars was not required because the Appellant had
received sufficient information about the charges in the wording of the indictment and
through open file discovery.
During a pretrial hearing on the Appellant’s motion, defense counsel argued that a
bill of particulars was necessary because the defense did not know if count two was
alleging an alternate theory of injury to the injury alleged in count one, which would
require merger of counts one and two upon conviction, or if “the State is taking the
position . . . that two separate instances of aggravated child abuse can be substantiated
from the proof at trial.” Similarly, defense counsel argued that a bill or particulars was
necessary because the defense did not know if the State was relying on a specific injury
to support the child abuse conviction in count three or if count three was a lesser-included
offense of count one in the event the State could not prove serious bodily injury in count
one. The State responded that it was relying on “a broken bone,” for the serious bodily
injury in count one; “a brain contusion,” for the serious bodily injury in count two; and
“bruising on the hand in the palm and on the back,” for the bodily injury in count three.
The trial court noted that the medical records reflected that the victim sustained
two broken ribs, a brain contusion, and bruising on the hand and that it appeared from the
records that “these injuries were part of the same transaction or occurrence.” The State
responded that the pediatric radiologist was going to testify about “two separate injuries”
to the ribs but that, otherwise, the State agreed with the trial court. The trial court
overruled the Appellant’s motion for a bill of particulars, finding that the discovery
materials provided to the Appellant gave him sufficient notice of the offenses charged.
- 19 -
Nevertheless, the trial court “urge[d]” the State to file a bill of particulars. The State did
so four days later, informing the Appellant that count one referred to “injury to the
victim’s ribs/rib,” count two referred to “injury to the victim’s brain,” and count three
referred to “bruising of the victim’s skin.”
At the close of the State’s proof, defense counsel requested that the trial court
require the State to elect a single count of the indictment on which to proceed. Defense
counsel contended that the State was pursing three convictions based on separate injuries,
not separate acts of abuse, to the victim. In support of his claim, defense counsel cited
State v. Adams, 24 S.W.3d 289 (Tenn. 2000), in which our supreme court required that
the State elect one specific injury for the charge of aggravated child abuse. The State
responded that the defense was “confusing different points of law,” noting that an
election was necessary when a single count could refer to multiple injuries. The State
argued that election was not required in this case because the Appellant had been charged
in three separate counts for three separate injuries. The State then stated as follows:
If at the time the jury returns a verdict of guilt on all three
counts, and it’s determined to be [one] incident that can’t be
properly broken up, the Court shall then merge them.
However, I don’t believe merger will apply. But that’s the
difference, he’s trying to confuse election with merger.
The trial court ruled that all three counts would go to the jury, and the jury convicted the
Appellant as charged.
At sentencing, the Appellant contended that the State’s theory was that all of the
injuries occurred sometime between the evening of January 7 and the afternoon of
January 8. The Appellant further contended that because the State failed to prove exactly
how or when the victim’s injuries occurred, “the State failed to prove that they weren’t all
caused through the same act or transaction.” The State asserted that because it elected
three separate injuries, all of which were in different areas of the body that could not be
“tied” to each other, the Appellant committed separate and distinct acts of harm to the
victim. Therefore, the convictions should not merge.
The trial court ruled the merger was not necessary, stating as follows:
[T]he nature of these injuries is so separate and distinct that the trier of fact
just simply could not have found they occurred simultaneously. You’ve got
a subdural hematoma, [which] would give support for the conviction in
Count II. You’ve got the broken rib[] that support[s] the conviction in
Count I.
....
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And then you’ve got the bruising to the hand, palm, and the back of the
hand, which support[s] the conviction in Count III.
It goes back to the case where you had the injured child that had
bruising to the chest and internal injuries. The Court there said based upon
medical proof, that it’s completely consistent that a child that’s got internal
injuries would also display external of evidence of that through [bruising].
In this case, we’ve got medical doctors who testified concerning three very
distinct injuries and in the Court’s mind, the logic does not at all lead to the
conclusion that it would be a single act that would result in three distinct
injuries of the nature that we have in this case.
The double jeopardy clauses of the United States and Tennessee Constitutions
protect an accused from (1) a second prosecution following an acquittal; (2) a second
prosecution following conviction; and (3) multiple punishments for the same offense.
See State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012). The instant case concerns the
third category, protection against multiple punishments for the same offense in a single
prosecution. Multiple convictions for the same offense violate federal and state
constitutional prohibitions against double jeopardy. See U.S. Const. amend. V; Tenn.
Const. art. I, § 10. “It is well settled in Tennessee that, under certain circumstances, two
convictions or dual guilty verdicts must merge into a single conviction to avoid double
jeopardy implications.” State v. Berry, 503 S.W.3d 360, 362 (Tenn. 2015). “Whether
multiple convictions violate double jeopardy is a mixed question of law and fact that we
review de novo with no presumption of correctness.” State v. Smith, 436 S.W.3d 751,
766 (Tenn. 2014).
“Multiple punishment claims fall into one of two categories: (1) unit-of-
prosecution claims; or (2) multiple description claims.” State v. Hogg, 448 S.W.3d 877,
885 (Tenn. 2014) (citing Watkins, 362 S.W.3d at 543). “Unit-of-prosecution claims arise
when defendants who have been convicted of multiple violations of the same statute
assert that the multiple convictions are for the same offense.” Watkins, 362 S.W.3d at
543. “Multiple description claims arise in cases in which defendants who have been
convicted of multiple criminal offenses under different statutes allege that the convictions
violate double jeopardy because the statutes punish the ‘same offense.’” Id. at 544.
The Appellant’s dual convictions of aggravated child abuse resulting in serious
bodily injury present a unit-of-prosecution claim. “‘In determining the unit of
prosecution, we first examine the statute in question to determine if the statutory unit of
prosecution has been expressly identified.’ If the unit of prosecution is clear from the
statute, there is no need to review the history of the statute and other legislative history.”
Hogg, 448 S.W.3d at 885 (quoting State v. Smith, 436 S.W.3d 751, 768 (Tenn. 2014)).
However, “any ambiguity in defining the unit of conduct for prosecution is resolved
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against the conclusion that the legislature intended to authorize multiple units of
prosecution.” Watkins, 362 S.W.3d at 543 (citing Gore v. United States, 357 U.S. 386,
391-92 (1958)).
Our Code defines aggravated child abuse as follows:
(a) A person commits the offense of aggravated child abuse, . . .
who commits child abuse, as defined in § 39-15-401(a) . . . and:
(1) The act of abuse . . . results in serious bodily
injury to the child;
....
(d) “Serious 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.
Tenn. Code Ann. § 39-15-402(a)(1), (d) (emphasis added). Child abuse occurs when
“[a]ny person knowingly, other than by accidental means, treats a child under eighteen
(18) years of age in such a manner as to inflict injury . . . ; provided, however, that, if the
abused child is eight (8) years of age or less, the penalty is a Class D felony.” Tenn.
Code Ann. § 39-15-401(a) (emphasis added). Thus, both statutes appear to specify that
the unit of prosecution intended is each act that inflicts injury, not the injury itself.
Moreover, while our courts have not specifically addressed a unit-of-prosecution
issue in relation to aggravated child abuse or child abuse cases, we find the following
case helpful. In State v. Glenn Lydell McCray, No. M2011-02411-CCA-R3-CD, 2013
WL 1870872, at *14 (Tenn. Crim. App. at Nashville, May 2, 2013), the jury convicted
the defendant of two counts of aggravated assault with a deadly weapon on one victim.
One conviction related to the defendant’s causing the victim reasonably to fear imminent
bodily injury by using or displaying a rifle, and the second conviction related to the
defendant’s causing the victim reasonably to fear imminent bodily injury by using or
displaying a knife. Id.; see Tenn. Code Ann. § 39-13-101(a)(2), -102(a)(1)(A)(iii). In
analyzing the defendant’s unit-of-prosecution claim under Watkins, this court determined
that the defendant committed two aggravated assaults: first by assaulting the victim with
the rifle and later by assaulting her with the knife when she tried to leave their apartment.
Glenn Lydell McCray, No. M2011-02411-CCA-R3-CD, 2013 WL 1870872, at *14.
Accordingly, because the defendant’s “attack was not continuous, the aggravated assaults
were separate and distinct offenses” and did not violate double jeopardy principles. Id.
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In reaching its conclusion, this court also distinguished the facts in Glenn Lydell
McCray from the facts in State v. Pelayo, 881 S.W.2d 7 (Tenn. Crim. App. 1994), a pre-
Watkins case. In Pelayo, the defendant was charged with one count of aggravated assault
causing serious bodily injury to the victim and one count of aggravated assault causing
bodily injury to the victim by using or displaying a deadly weapon. 881 S.W.2d at 12.
Our supreme court noted that although the State appeared to charge the defendant under
two separate theories of aggravated assault, the State argued at trial that a stab wound to
the victim’s arm and a stab wound to the victim’s leg supported the two separate
convictions. Id. In finding that the dual convictions violated double jeopardy principles,
our supreme court explained that while the defendant stabbed the victim’s arm inside her
house and stabbed her leg after she ran outside, the defendant committed only one
aggravated assault because the stabbings “coalesced into an ‘unmistakable single act,’
though separated by a few seconds and feet.” Id. at 13. The court then stated as follows:
Our conclusion is bolstered by the fact that the aggravated assault
statute, though listing several methods of commission, focuses on the act of
causing injury, fear, or physical contact. We finding nothing in the statute
to indicate that the legislature intended for defendants to be punished
separately for each blow or injury.
....
Therefore, we conclude that the factual circumstances of this case do
not merit separate convictions. Further, we are convinced that the
legislature did not intend for defendants committing acts of aggravated
assault to be punished separately for each individual blow. This opinion is
not intended to suggest that separate blows inflicted on the same victim at
times and places more distinct than involved in this case cannot provide
sufficient grounds for multiple convictions.
Id.
Like the aggravated assault statute, we conclude that the aggravated child abuse
statute focuses on the act resulting in injury and that the legislature did not intend for
defendants charged with aggravated child abuse to be punished separately for each
individual injury. Instead, the unit of prosecution is the act that caused the injury.
The State argues that it “elected particular injuries for each offense in a way that
allows this Court to conclude that the jury did not convict Hendrix more than once for
each of them” and relies on State v. Glenn Climer, Jr., No. M2013-00651-CCA-R3-CD,
2014 WL 2734109 (Tenn. Crim. App. at Nashville, June 16, 2014), in support of its
argument. In Glenn Climer, Jr., employees at a hospital observed the defendant
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“behaving bizarrely” in the parking lot. No. M2013-00651-CCA-R3-CD, 2014 WL
2734109, at *5. A security supervisor approached the defendant and saw that he was
holding his one-year-old son. Id. at *1. The baby had a bruise on his face. Id. at *2.
The defendant, still holding his son, got into a car with the security supervisor and
calmed down briefly. Id. However, after the police arrived and got into the car with the
defendant, the defendant began yelling and twisted the victim’s neck. Id. The jury
convicted the defendant as charged of attempted aggravated child abuse for holding and
twisting the victim’s head and neck and child abuse for the victim’s facial bruise. Id. at
*6. On appeal, the defendant argued that the convictions violated double jeopardy, but
this court disagreed, concluding that the convictions were based on two separate and
distinct acts. Id.
The State also contrasts the facts in the instant case with the pre-Watkins case of
State v. Marcos Acosta Raymundo, No. M2009-00726-CCA-R3-CD, 2010 WL 4540207
(Tenn. Crim. App. at Nashville, Nov. 10, 2010). In Marcos Acosta Raymundo, this court
considered whether the defendant’s convictions of attempted aggravated child abuse for
the victim’s internal injuries and child abuse for the victim’s multiple bruises violated
double jeopardy principles. This court concluded that the convictions violated double
jeopardy because the victim’s bruises “would have accompanied, and been inflicted at the
same time as, the internal injuries. . . . Dr. Berutti discussed the victim’s serious internal
injuries and also stated that he had never seen a case where a child had serious internal
injuries from trauma but did not have any external bruising.” Marcos Acosta Raymundo,
No. M2009-00726-CCA-R3-CD, 2010 WL 4540207, at *18.
Turning to the instant case, the State was required to show that the victim’s rib one
fracture in count one and subdural hematoma in count two were the result of separate and
distinct acts in order to sustain separate convictions of aggravated child abuse. Dr.
Lowen could not say when the victim’s rib fractures or subdural hematoma occurred. Dr.
Crane testified that the victim suffered two episodes of trauma to the ribs. The first
episode occurred sometime before the victim’s x-rays on January 3, and the second
episode occurred sometime after January 3 but before his x-rays on January 8. The
victim’s rib one fracture occurred during the second episode. Although the victim would
have exhibited symptoms of his injuries such as fever, irritability, difficulty getting
comfortable, and possibly fever, his mother did not testify as to noticing any symptoms
that would have helped determine when his injuries occurred. Therefore, we are
compelled to agree with the Appellant that the State failed to show that the victim’s rib
one fracture and subdural hematoma were the result of separate and distinct acts.
Accordingly, his two convictions of aggravated child abuse violate double jeopardy
principles and must be merged. See State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim.
App. 1997).
The Appellant’s dual convictions of aggravated child abuse resulting in serious
bodily injury and child abuse present a multiple description claim. In Watkins, our
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supreme court adopted a two-step process derived from Blockburger v. United States,
284 U.S. 299 (1932), in order to determine whether a multiple description claim violates
the principles of due process. 362 S.W.3d at 545. “First, the threshold inquiry under
Blockburger is whether the alleged statutory violations arise from ‘the same act or
transaction.’” Id. (citing Blockburger, 284 U.S. at 301-04). If the separate convictions
are not derived from the same act or transaction, no double jeopardy violation has
occurred, and courts do not need to procced to the second step of the Blockburger test.
Id. However, if the convictions are derived from the same act or transaction, a court must
examine the statutes to determine whether the crimes constitute the same offense. Id.
(citing Blockburger, 284 U.S. at 304). If the elements are the same or one offense is a
lesser included offense of the other, then the reviewing court presumes that multiple
convictions were not intended by the legislature. Id. at 557.
Dr. Lowen testified that while the victim had bruising on different parts of his
body, which indicated an external force had been applied multiple times, she could not
say when the bruising occurred. Likewise, the victim’s mother did not give any
testimony to help determine exactly when the bruising on the victim’s hand occurred.
Thus, the proof also failed to show that the bruising was not part of the same transaction
or occurrence as the rib fracture or subdural hematoma. The threshold has been met, and
we turn to the statutes to determine whether the crimes constitute the same offense. Child
abuse is a lesser-included offense of aggravated child abuse. Therefore, we presume that
multiple convictions were not intended by the legislature and violate double jeopardy.
Accordingly, the Appellant’s conviction of child abuse also must merge.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ brief, we conclude that
the Appellant’s two convictions of aggravated child abuse and one conviction of child
abuse violate double jeopardy principles and must merge into a single conviction of
aggravated child abuse. The judgments of the trial court and the Appellant’s twenty-five-
year sentence are otherwise affirmed. The case is remanded to the trial court for the
amendment of the judgments consistent with this opinion.
_________________________________
NORMA MCGEE OGLE, JUDGE
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