State of Tennessee v. Juan Villa ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLLE
Assigned on Briefs June 23, 2015
STATE OF TENNESSEE v. JUAN VILLA
Appeal from the Criminal Court for Bradley County
No. 12-CR-425B Amy Reedy, Judge
No. E2014-01990-CCA-R3-CD – Filed October 8, 2015
The Defendant, Juan Villa, was found guilty by a Bradley County Criminal Court jury of
aggravated child abuse, a Class A felony. See T.C.A. § 39-15-402 (2014). The trial court
sentenced the Defendant to twenty-three years‟ confinement at 100% service as a violent
offender. On appeal, the Defendant contends that (1) the evidence is insufficient to support
his conviction, (2) the trial court erred by denying his motion for a mistrial, and (3) his
sentence is excessive. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and TIMOTHY L. EASTER, JJ., joined.
Andrew J. Brown (on appeal) and Carl F. Petty (at trial), Cleveland, Tennessee, for the
appellant, Juan Villa.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Robert Stephen Bebb, District Attorney General; and Cynthia Lecroy-Schemel, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
In this case, the Defendant and the codefendant, Lindsey Lewis, were indicted for
aggravated child abuse as a result of multiple bone fractures sustained by their infant son.
The victim was less than two months old at the time the injuries were discovered.
At the trial, Cleveland Police Detective Andy Wattenbarger testified that on July 6,
2012, he drove to a hospital to investigate a child abuse allegation. He spoke to a physician
in the emergency room, reviewed the victim‟s x-rays, and spoke to the Defendant and the
codefendant. After speaking with the Defendant and the codefendant, Detective
Wattenbarger learned that on June 10, the Defendant fell against a coffee table while he was
holding the victim. The detective learned that the incident occurred around midnight and that
the codefendant took the victim to the hospital around 6:00 p.m. the following day. The
detective said that on June 21, between 7:30 and 8:30 a.m., the Defendant fell while walking
up stairs and holding the victim, that paramedics responded to the home, and that the
codefendant and the victim were taken to the hospital by an ambulance. The victim‟s
medical records were received as exhibits.
The medical records relative to June 10, 2012, reflect that the codefendant told
medical personnel that the Defendant fell while holding the victim at 9:00 a.m., that the
victim hit his head on a coffee table, and that later in the afternoon the codefendant found
blood in the victim‟s left ear. The records reflect that the victim was treated at the hospital at
7:37 p.m. Relative to June 21, the records reflect that at 8:10 a.m., the codefendant was
holding the victim when the paramedics arrived at the home, that she stated the Defendant
fell down seven to ten stairs while holding the victim, that the victim appeared lethargic
initially and had irregular breathing, that the victim had a bruise on the right side of his
forehead, and that the victim was moving all of his extremities and could open his eyes.
Relative to July 6, the records reflect that the victim was taken to a children‟s hospital, that
the victim underwent a bone scan while being treated in the emergency room, that the results
of the scan showed a left parietal skull fracture, healing fractures to the tenth and eleventh
left ribs, a healing fracture to the left anterior fifth rib, “metaphyseal” corner fracture to the
right femur, a displaced complete fracture to the left femur, incomplete fractures to the right
tibia and fibula, new bone formation on the right fibula, a healing fracture to the left
proximal tibial metaphysic, and a healing metaphyseal fracture to the left humerus, for a total
of sixteen bone fractures. The records reflect the codefendant advised medical personnel that
the victim was usually fussy, that she did not know how the fractures were inflicted, and that
the victim was “never out of her sight.”
Detective Wattenbarger testified that the victim lived with the Defendant and the
codefendant. Detective Wattenbarger identified photographs of the victim taken at the
children‟s hospital on July 6, which showed that the victim had a swollen left leg and thigh,
bruises on the left side of the head, small cuts to the left ear, a scrape on the left nostril, and
hemorrhaging in the right eye.
Detective Wattenbarger testified that on July 10, 2012, four days after the victim was
admitted to the children‟s hospital, he visited the Defendant and the codefendant‟s home. He
looked for evidence of any type of fall and for the locations of the coffee table and an area
rug. He took photographs, which showed the entrance, living room, coffee table, and stairs.
The area rug that had been under the coffee table had been rolled and placed outside on the
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front walkway. The detective said that he spoke to the codefendant‟s mother, Leisa Jarocki,
who reported caring for the victim on July 1 and July 2. The detective said that he excluded
Ms. Jarocki as the person who inflicted the victim‟s injuries. He said that the Defendant and
the codefendant cared for the victim at all other times between the victim‟s birth and the
victim‟s admission to the children‟s hospital on July 6.
On cross-examination, Detective Wattenbarger testified relative to the June 10
incident that the victim was taken to the hospital and that medical personnel did not contact
the police about the victim‟s injuries. Relative to the June 21 incident, Detective
Wattenbarger said the CT scans and x-rays showed “everything was okay.” He agreed that
on June 26, the Defendant and the codefendant discovered the victim‟s swollen leg, that they
took the victim to Cleveland Pediatrics as they were advised to do, that the victim was seen
by Dr. Felicito Fernando, who referred the victim to Dr. Gary Voytik, and that Dr. Fernando
did not contact the police regarding the injury. The detective agreed that Dr. Voytik did not
contact the police after treating the victim. The detective agreed that the victim was treated
four or five times by licensed physicians at the Defendant and the codefendant‟s request. He
did not find evidence that the Defendant and the codefendant disregarded any medical advice
provided by the physicians.
Detective Wattenbarger testified relative to July 6, the physicians treating the victim at
the children‟s hospital obtained the June 10 and 26 x-rays from the previous hospital. The
detective agreed the rug he saw outside the Defendant and the codefendant‟s home on July 10
was the rug over which the Defendant said he had tripped, causing the victim to hit his head
on the coffee table. The detective was told that the rug was removed because it was a hazard.
He agreed that the Defendant and the codefendant were interviewed separately and that they
provided consistent statements on the “major points.” The detective agreed they both stated
that while the codefendant was in the shower, the Defendant fell down the stairs while
holding the victim and that the Defendant yelled for the codefendant. The detective agreed
that usually suspects‟ statements were inconsistent. He agreed that the Defendant and
codefendant did not implicate each other and that no evidence showed the Defendant and
codefendant were abusive toward each other between June 10 and July 6.
Detective Wattenbarger testified that on July 6, the victim was first taken to the
pediatrician‟s office because of a fever and that the pediatrician had an ambulance transport
the victim to the children‟s hospital. The detective‟s investigation showed that the
codefendant was the victim‟s primary caregiver during the day while the Defendant worked.
Detective Wattenbarger said the only information he had relative to when the injuries
occurred was the victim‟s medical records.
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Detective Wattenbarger testified that when he arrived at the hospital on July 6, the
codefendant, her mother, and her sister were present. He said that based on his interaction
with the Defendant at the police station on July 6, he concluded that the Defendant was not
abusing drugs. He agreed the codefendant was home but not present when the Defendant fell
while holding the victim on June 10 and 21. The detective learned that two additional
children lived in the family home and that the children‟s ages were five years and less than
one year. He agreed the codefendant mentioned that the child who was less than one year old
had crawled on the victim.
Detective Wattenbarger testified that the codefendant took the victim to the victim‟s
two-week-old wellness visit on May 20, that no skull fracture was noted in the victim‟s June
10 medical records, and that the codefendant took the victim for his one-month wellness visit
on June 15. Relative to June 21, the detective agreed that the codefendant was asleep
upstairs when the Defendant fell down the stairs while holding the victim and that the
codefendant awoke to the Defendant‟s yelling. The codefendant reported seeing the victim
and the Defendant lying on the floor and said she called 9-1-1. The detective agreed that at
the hospital, the x-rays and CT scans of the victim‟s skull, spine, and chest were negative,
that the victim was treated by numerous physicians, and that the victim was released to go
home. The detective agreed that later the same night, the Defendant and the codefendant saw
the victim‟s swollen left leg, that they contacted the hospital, and that they were advised by
hospital personnel to take the victim to the pediatrician‟s follow-up appointment scheduled
for the next day. Detective Wattenbarger agreed Dr. Fernando treated the victim at the
pediatrician‟s follow-up visit on June 22 and did not report any suspicions of child abuse,
although an x-ray showed a fractured tibia. Dr. Fernando referred the victim to Dr. Voytik
for the fractured tibia.
Detective Wattenbarger testified that on June 26, Dr. Voytik treated the victim and
concluded that the victim had a “questionable” leg fracture. Detective Wattenbarger agreed
that in child abuse cases, parents often delayed obtaining medical attention. He agreed that
on June 21, the physicians and nurses at the hospital did not notice a swollen left leg and that
it was appropriate for the codefendant to obtain medical treatment for the victim.
Detective Wattenbarger testified that the Defendant and the codefendant‟s home was
clean and maintained. He agreed the photographs of the home showed that the victim‟s
bassinet was beside the Defendant and the codefendant‟s bed, that only one hand rail was
installed at the stairs, and that the stairs were “open to the living room” without a rail. The
detective did not obtain measurements of the stairs or the distances between the tenth step
and the landing.
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On redirect examination, Detective Wattenbarger testified that he scheduled an
appointment to visit the Defendant and the codefendant‟s home. The detective stated that he
was unable to find any medical records reflecting that the Defendant was injured during his
falls while holding the victim. He agreed the medical records showed the codefendant stated
that she did not know “how any of that happened, he is never out of my sight” and that the
victim was “usually a fussy baby.” On recross-examination, Detective Wattenbarger stated
that he was not present when the codefendant made the statements and that he could not
speak to their accuracy. He agreed he only visited the Defendant and the codefendant‟s home
once.
Leisa Jarocki, the codefendant‟s mother, testified that she provided the police with
photographs of the victim. She identified the photographs, which depicted the victim at the
hospital on the day of his birth and two days after his birth at the Defendant and the victim‟s
home. Ms. Jarocki identified a bruise on the victim‟s left cheek in the photographs taken two
days after the victim was born. She identified photographs of the victim taken on July 9 and
July 11, while the victim was being treated at the children‟s hospital. The photograph taken
on July 11 showed splints on the victim‟s left arm and both legs and a feeding tube inserted
into the victim‟s nose.
On cross-examination Ms. Jarocki testified that during the month of June, she saw the
victim after the Defendant fell down the stairs while holding the victim because the
codefendant asked Ms. Jarocki to examine the victim after the victim was released from the
hospital. Ms. Jarocki noted that she had been a nurse for twenty years and that most of her
work involved pediatrics. She said the victim was fussy but was okay. She denied noticing
anything wrong with the victim during the month of June. She never saw the Defendant or
the codefendant abuse any of their children and said they were good parents. She said that
the Defendant worked hard and provided for his family and that she never suspected him of
abusing any of the children. She said the codefendant would have never allowed anyone to
harm her children.
Ms. Jarocki testified that she accompanied the codefendant and the victim to the
victim‟s one-month wellness visit and that the doctor said the victim was healthy. Ms.
Jarocki said that she cared for the victim and the codefendant‟s daughter from a previous
relationship for three days at the end of June because the Defendant‟s young daughter from a
previous relationship was hospitalized for “strep[].” Ms. Jarocki stayed at the Defendant and
the victim‟s home during that time and said the home was in typical condition for a
household with three children. She denied the home was dirty. She said that during the three
days she cared for the children, the victim was a little fussy like any baby the same age and
that the victim cried when he was hungry, needed a clean diaper, or was uncomfortable. She
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had no concerns about the victim‟s welfare. On redirect examination, Ms. Jarocki testified
that she had never seen the codefendant‟s daughter from a previous relationship hold the
victim inappropriately, hit the victim, or shake the victim.
Jacqueline Lewis, the codefendant‟s sister, identified a photograph she took of the
Defendant holding the victim with one hand away from the Defendant‟s body. She said that
at the time the photograph was taken, the Defendant was swaddling the victim before putting
the victim to bed, that the victim looked “cute,” that she asked to take the victim‟s
photograph, and that the Defendant held up the victim. She was unsure whether the
codefendant was present for the photograph but knew the codefendant was home. She
thought the photograph was taken between June 10 and June 21, before the fall down the
stairs and when the victim was about one month old.
On cross-examination, Ms. Lewis testified that she had never seen the Defendant
mistreat any of the children and that the Defendant did not do anything to place the children
purposefully in danger. She said she did not have any concern about the manner in which the
Defendant was holding the victim in the photograph. She said the victim did not appear to be
hurt.
Ms. Lewis testified that she drove the codefendant and the victim twice to the
pediatrician‟s office, that she visited the Defendant and the codefendant‟s home once per
week, and that she sometimes stayed overnight. Ms. Lewis said she had no concerns about
the manner in which the codefendant and the children interacted. She said the Defendant and
the codefendant fed the victim, changed the victim‟s diapers, and cared for the children like
normal parents.
Dr. Felicito Fernando, a board certified pediatrician, testified that on May 30, 2012,
the victim was seen by a nurse practitioner for a routine visit and that no concerns arose from
the visit. He said “everything seemed to be appropriate” at the victim‟s one-month wellness
visit on June 15, although there were concerns about thrush, nasal congestion, and the
victim‟s circumcision. Dr. Fernando said his notes did not reflect the parents‟ mentioning the
Defendant‟s falling while holding the victim. The victim returned one week later on June 22.
At that visit, Dr. Fernando was told the Defendant had fallen down the stairs while holding
the victim and that the victim was treated at the hospital. Dr. Fernando observed swelling in
the victim‟s left leg, and the x-ray he ordered showed a “minimally displaced fracture” of the
left tibial plateau. Dr. Fernando referred the victim to Dr. Voytik, an orthopedic specialist.
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Dr. Fernando testified that he next saw the victim on July 6 and that the chief
complaints were congestion since birth, decreased appetite, and fever. He said the victim had
an abnormal appearance, was extremely irritable, and was failing to thrive. The victim had
only gained eight grams per day during the previous two weeks, and Dr. Fernando noted that
children of the same age gained between twenty-four to fifty grams per day. The victim also
had bruises on his chin and left check, had hemorrhaging on the white area of his right eye,
had a swollen and bruised ear, had an abrasion on his right nostril, and had dry and cracked
lips. Dr. Fernando noted that only the congestion had been previously observed. The victim
also was in respiratory distress and had a fast heartbeat. Dr. Fernando noted that the victim
could move all of his exterminates but “arched,” indicating the victim was experiencing pain.
He said that he was concerned about the victim‟s failure to gain weight, the fever, and the
bruising, which were inexplicable based on the history presented by the codefendant. He
said, though, the codefendant explained that the victim‟s older sister was found sitting on the
victim and pulling the victim‟s ear. Dr. Fernando did not believe the explanation was the
cause of the victim‟s ailments. He said the Defendant did not attend any of the victim‟s
appointments.
Dr. Fernando testified that the abrasions to the victim‟s ear and the eye hemorrhage
were caused by trauma and that he was concerned about the victim‟s leg. The victim was
admitted into the children‟s hospital to investigate the extent of the victim‟s injuries and to
place him in protective custody. Dr. Fernando had significant concerns about physical abuse,
although he could not observe any of the victim‟s fractures without an x-ray. He noted that
infant bones were more pliable in order to prevent breaking during birth and said that the
most common bone broken during delivery was the clavicle. He said any other broken bone
on a child the victim‟s age was suspicious.
On cross-examination, Dr. Fernando testified that the tibia fracture was minimal and
that the victim‟s fever was caused by trauma, not an infection. Dr. Fernando‟s notes from the
July 6 visit in which the codefendant described finding the victim‟s older sister lying on the
victim reflected that the codefendant‟s female friend was present at the appointment. Dr.
Fernando recalled the hospital contacting him on June 10 regarding the victim and said his
notes showed that the victim was injured during a fall by hitting the victim‟s head on a coffee
table, that the victim had a one to two centimeter lesion, that the head CT was normal, and
that the nurse practitioner “did not feel ill at ease” with the reported cause of the injury.
Dr. Fernando testified that he had not reviewed Dr. Voytik‟s report and that the report
was not in his file. He said that between May 30 and June 22, he did not provide the
codefendant with any restrictions about the victim‟s care or activity. He agreed he did not
report any concerns of child abuse until July 6, when he had the victim admitted to the
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children‟s hospital. He said he would have reported any suspected abuse if he had been
convinced the victim had been abused.
Dr. Marla Sammer, an expert in pediatric radiology, testified that as bone fractures
healed, calcium deposits called callus developed at the site of the fracture and that over time
the fracture disappeared. She said that if no callus were seen at the site of a fracture, the
fracture would have been less than fifteen days old. She said the classic bone fracture
associated with child abuse was a metaphyseal bone fracture in which a portion of a bone
was “sheared off” and usually resulted from violent shaking.
Dr. Sammer testified that she reviewed the victim‟s various x-rays and bone survey.
She said that unlike adults, children had bone growth plates and that metaphyseal corner
fractures occurred at the growth plates. She said that although infant bones were capable of
bending, infant bones also fractured easily. She concluded that the June 10 CT scan showed
a left non-healing mandible fracture but no skull fracture. She said the mandible fracture
most likely occurred seven days before the June 10 x-rays. She said that the June 21 x-rays
showed healing left rib fractures, which indicated that the fractures were sustained before
June 21. The June 21 x-rays showed a new skull fracture on the left parietal bone, non-
healing rib fractures, and a non-healing tibia fracture. She noted that the June 21 x-rays did
not show a femur fracture but that the July 6 x-rays showed a healing femur fracture, which
indicated the fracture was sustained after the June 21 x-rays but before the July 6 x-rays. She
said the July 6 x-rays also showed a new non-healing right tibia fracture, indicating the
fracture was less than ten days old. She said the July 6 x-rays also showed multiple fractures
at the growth plate and a classic metaphyseal lesion, which were “highly specific for non-
accidental trauma” and called corner fractures. She noted that the fractures were healing, that
they occurred between seven and ten days before the July 6 x-rays, and that they were
“suppose[d] to be from very . . . violent shaking.” She said the victim also had a healing
fracture on the left fibula.
Dr. Sammer testified that the skull fracture was not present on the June 10 x-rays but
that the fracture was present on the June 21 x-rays and that the victim had soft-tissue
swelling, hemorrhaging, and edema at the site of the fracture. She said that due to the soft-
tissue swelling, the fracture was probably sustained on June 20 or 21. Relative to the rib
fractures, she said that the June 21 x-rays showed that the fifth anterior rib was healing and
that the victim had sustained recent and non-recent healing right rib fractures. She said the
right rib fractures were probably sustained on June 20 or 21. She said that the July 6 x-rays
showed lumbar and thoracic spine fractures, which were rare and usually caused by non-
accidental trauma. She noted that these fractures and extremity fractures healed differently
and said that she could not determine when the spinal fractures were sustained. She
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concluded, though, that the fractures were caused by significant trauma. She said that she
would not expect the victim to have sustained the bone fractures from a ten-month-old girl
sitting on the victim.
Dr. Sammer testified that additional x-rays were taken on July 7, which showed
metaphyseal corner fractures to the right and left wrists, and that the fractures were consistent
with holding the victim by his wrists and shaking him. She said the fractures were sustained
about seven to ten days before the x-rays. She stated that the victim‟s bone fractures took
weeks and months to heal completely and that the fractures could not heal in a matter of days.
On cross-examination, Dr. Sammer testified that although determining the length of
time it took for bone fractures to heal was difficult, physicians used the best data available
based on the x-rays. She did not know if the victim underwent testing to determine if he had
any type of bone disease. She said the non-healing right tibia fracture was consistent with
blunt trauma and was probably sustained between June 26 and July 6. She said the mandible
fracture was sustained as early as June 3. She said that although she considered ways in
which the victim‟s bone fractures could have been sustained as a result of accidental trauma,
the fractures were indicative of classic non-accidental trauma.
Dr. Sammer testified that all the fractures were sustained between approximately June
1 and July 7. She said that shaking was the most consistent explanation for most of the
fractures, although some fractures looked as though they were caused by blunt force trauma.
She agreed the skull fracture was consistent with striking the head against an object. She
agreed numerous factors might affect the ability to date a bone fracture but said the series of
x-rays narrowed the dates of infliction. She agreed corner fractures were difficult to identify
and to date, and she said follow-up x-rays were usually obtained fourteen days after the initial
x-rays to look for healing metaphyseal corner fractures.
Dr. Sammer testified that she did not examine the victim and that she did not receive
any information about how the injuries might have occurred. She said that based solely on
the x-rays, her opinion was the bone fractures were caused by non-accidental trauma. She
agreed that a healing rate might have been affected by a person‟s overall health and that she
did not determine the victim‟s overall health in making her conclusions.
Dr. Karla Garcia, a pediatrician and child abuse expert, testified that she was the
director of the child protective team at the children‟s hospital. She said that corner fractures
were small fractures at the end of long bones, including the wrist and elbow areas and at the
end of the arm and leg bones. She said that casual bouncing, shaking, jostling, and tossing a
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child in the air typical of most parents did not cause corner fractures and that corner fractures
resulted from non-accidental trauma and physical abuse.
Dr. Garcia testified that she evaluated the victim on July 9, 2012, and that the victim
had fifteen bone fractures, which were sustained between June 5 and July 6. She said that the
victim and the parents underwent genetic testing to determine if the victim might have had a
disorder to explain the bruising and fractured bones and that the results were negative. The
victim also was negative for brittle bone disease, metabolic disorders, and organic diseases
that could have explained the victim‟s condition. The victim also had normal bone mineral
density. Dr. Garcia reviewed the victim‟s medical records, which stated that on June 10, the
codefendant told medical personnel that while she was sleeping, the Defendant fell while
holding the victim, that the victim struck his left cheek on the edge of a coffee table, and that
the Defendant had never exerted force or abused any of the children. The records reflected
that the victim had a bruise on his left cheek, a blood streak in his left ear canal, scabbing
around his nose, and abdominal colic. The victim did not show indications of injuries to his
extremities. The June 10 CT scan of the victim‟s head was negative for fractures.
Dr. Garcia testified that the June 21 medical records showed that the codefendant
reported the Defendant fell down ten stairs while holding the victim, that the victim had
bruises on the right forehead and behind both ears, and that swelling was visible behind the
right ear. The victim, though, did not display indications of significant injury or tenderness
to his extremities and had full range of joint motion. The June 21 chest x-ray and CT scan
were negative, and the results were later used for comparison purposes in July. Relative to
Dr. Fernando‟s June 22 records, Dr. Garcia said that the codefendant told Dr. Fernando the
Defendant fell down the stairs while holding the victim, that the victim had a runny nose,
nasal congestion, and a swollen left leg. The records noted that the congestion had worsened
since June 15, and that the victim had moved from the tenth to the sixth percentile for body
weight. The records reflect that the victim had thrush and that although the left leg was
larger than the right leg, no redness, bruising, or tenderness was present. An x-ray showed a
fracture to the left tibia.
Dr. Garcia testified that Dr. Fernando‟s July 6 medical records reflect that the victim
had a fever and that the codefendant wanted the victim tested for “RSV” and “staph” because
another child in the home had staph. Dr. Garcia noted the codefendant‟s stating that another
child sat on the victim and pulled his ear. The codefendant reported that the victim had a loss
of appetite, crankiness since birth, fever and chills, runny nose, and nasal congestion. The
codefendant also reported a daytime cough and difficulty breathing the previous two days.
The physical exam showed the victim had a small conjuntival hemorrhage that was not
present at birth, a swollen left ear with a bruise, extreme nasal congestion, an abrasion on the
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right nostril, dry lips and gums, and small bruises on the left cheek and left side of the chin.
Dr. Fernando referred the victim to the children‟s hospital because of the victim‟s fever and
because Dr. Fernando suspected that the injuries were non-accidental. The children‟s
hospital emergency room records reflect similar information. Dr. Garcia noted that the eye
hemorrhage and the injury to the ear were consistent with a “direct blow.” X-rays and CT
scans were obtained and compared with the previous results, and physicians confirmed skull,
left tibial, and rib fractures. The codefendant told the physicians that she was not told about
a skull fracture, that the leg fracture was treated by an orthopedic specialist, who said the
tibia was normal, and that she denied any “injuries, shaking or falls.” The emergency room
records did not report any additional children in the family home, although Dr. Fernando‟s
records showed other children were in the home.
Dr. Garcia testified that a fussy newborn could frustrate parents, that parents were
instructed never to shake a newborn because it would result in severe injury or death, and that
fussy newborns were at a higher risk for future physical abuse. Dr. Garcia noted sixteen
fractures, which included fractures to the skull, mandible, right posterior tenth and eleventh
ribs, left anterior fifth rib, right proximal humerus, right distal radius and ulna, left distal
humerus, left distal radius and ulna, right proximal and distal femur, right proximal tibia,
right fibula, left proximal femur, left distal femur, left proximal tibia, left proximal fibula,
and third and twelfth vertebrae.
Dr. Garcia testified relative to the skull fracture that the MRI showed chronic
hemorrhages and encephalomalacia, or scarring and deterioration of brain tissue, which was
typically found in areas of trauma. Based on all of the medical records, she concluded four
events occurred between June 5 and July 10. She noted seven corner fractures among all the
bone fractures. She said that although the skull fracture was present on June 21, the original
reading of the CT scan was negative for fractures. She noted that the mandible fracture was
present on the June 6 CT scan but was not detected on the June 10 or 21 scans and that the
radiologist dated the fracture before June 10. She said that the June 21 chest x-ray showed
three rib fractures, although the original reading was negative for fractures. The June 21 x-
rays were reevaluated by the radiologist on July 6. She noted that the June 22 x-rays only
showed a left proximal tibia corner fracture, although the distal femur metaphyseal corner
fracture and the left proximal femur metaphysis fracture were not present. She said the distal
femur metaphyseal corner fracture and the left proximal femur metaphysis fracture were
present on the July 6 x-rays, which meant that the fractures were sustained after June 22 but
before July 6.
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Dr. Garcia testified that in her opinion, the notable healing reflected in the July 6 x-
rays indicated that the left distal radius and ulna fractures were sustained between June 26
and July 1. She said that five fractures were sustained after the Defendant fell twice while
holding the victim and that two of those fractures were corner fractures. She noted that
nothing in the medical records reflected that the victim suffered a “direct blow” after June 21
and that the fractures sustained after June 21 were not caused by blunt force trauma. She said
that none of the victim‟s injuries could have been inflicted by a ten-month-old child‟s sitting
on the victim. Dr. Garcia noted the significant swelling and bruising around the victim‟s ear
on July 6 and said the injury was not normally associated with a pulling injury but was
associated with direct blunt force trauma. She noted that although the Defendant‟s falling
were explanations for the June 10 and June 21 injuries, no explanations were provided for the
mandible fracture and the additional fractures present on July 6.
Dr. Garcia testified relative to the June 10 incident that the bruise on the victim‟s face
was consistent with a fall. She said, though, that the mandible fracture occurred before June
10 because the June 10 CT scan showed a healing mandible fracture, although the physician
who interpreted the scan on June 10 did not detect the fracture. Relative to the June 21
incident, she said that the skull fracture could have been caused by the Defendant‟s falling
down the stairs while holding the victim. She noted, though, that posterior rib fractures
rarely occurred from a fall. She conceded she did not know how the Defendant might have
been holding the victim or if the victim fell out of the Defendant‟s hands. She said that the
corner fractures she previously identified were not typically caused by a fall and that corner
fractures were consistent with a shaking-type motion.
Dr. Garcia testified that the skull fracture would have caused swelling of the head and
irritability. The mandible fracture would have impaired the ability to eat. The posterior rib
fractures would have resulted in difficulty breathing and “splinting.” She noted metaphyseal
corner fractures presented no visible signs because these fractures were generally small. She
said, though, the diaphysis fracture of the tibia was a large fracture and would have caused
decreased movement and significant swelling. She noted the victim suffered pain from all
the fractures. She said that the femur fracture caused the most developmental concern
because the fracture might not heal properly, causing a bend to form in the bone or causing
one leg to be longer than the other because of varying bone growth rates. She said the only
course of treatment was to observe the leg growth over time. She noted the possible long
term pain and functional disability associated with the fracture. She said that if one leg grew
longer than another, playing sports and other physical activities might not be permitted.
Relative to the brain injury and eye hemorrhaging, she said that some children recovered
without any future issues and that other children developed significant health problems,
including seizures, cerebral palsy, learning disabilities, and childhood developmental delays.
-12-
Dr. Garcia testified that based on her review of all the medical records, the histories
provided for the two events, the sixteen bone fractures, the various rates of fracture healing,
and the new fractures occurring before June 10 and after June 21, she concluded that the
injuries were inconsistent with the reported falls, that the victim suffered non-accidental
trauma, and that the victim had been physically abused.
On cross-examination, Dr. Garcia testified that the types of bone fractures the victim
sustained were small and did not cause outside bruising. She agreed that although the victim
might have been irritable and had minor swelling, a person without medical training would
not have seen bruises or known the victim had bone fractures. She said the largest fractures
were sustained to the tibia and femur. She agreed that on June 10, the trained medical
personnel at the hospital did not note any fractures, although later review of the June 10 x-
rays showed the victim had sustained the mandible fracture and possibly an anterior rib
fracture before June 10. She said that the records showed scabbing around the victim‟s nose
and agreed nasal scabbing was consistent with nasal discharge, which was noted throughout
the victim‟s history since birth. She said the skull fracture could have been caused by falling
down stairs. She agreed she could not determine who caused the fractures.
Dr. Garcia testified that healing rates varied based upon numerous variables, including
the nutritional status of the child and whether the child was born prematurely, but that most
fractures began healing within seven to ten days and most were not healed fully until six or
more weeks. She agreed that relative to the fractures sustained by June 21, the fractures
would have healed without medical intervention. She agreed that the victim‟s skull fracture
was consistent with the Defendant‟s falling down stairs while holding the victim, causing the
victim to hit his head on a wall or the floor. She also said that if those events occurred, the
skull fracture would have been an accidental injury caused by blunt force trauma.
Dr. Garcia testified that generally, she discussed a child‟s medical history with the
child‟s parents if they were available. She said, though, the victim‟s parents were not
available because the Department of Children‟s Services (DCS) prevented the parents from
having contact with the victim after his July 6 hospital admission.
Dr. Garcia testified that she first saw the victim on July 9. Relative to the victim‟s
medical history, she said that at the victim‟s one-month wellness visit, the codefendant
reported the victim‟s being fussy and having increased congestion. She said that on June 22,
the codefendant reported to Dr. Fernando that the Defendant had fallen down stairs while
holding the victim the previous day, that the victim had continued nasal congestion, and that
the victim‟s left leg was swollen. Dr. Garcia said that on July 6, the codefendant reported to
the children‟s hospital that the victim had decreased appetite, fever, congestion, irritability,
-13-
and difficulty breathing. She noted that congestion made it difficult for an infant to breathe
and drink from a bottle simultaneously and that weight loss began after a couple days if the
infant did not receive adequate nutrition. Relative to the victim‟s symptoms, she did not
expect his condition to have affected the fracture healing rate because the fractures were
recently sustained.
Dr. Garcia testified that shaken baby syndrome resulted in retinal hemorrhages of the
eyes. She conceded that the victim did not have retinal hemorrhages and said that an
optometrist confirmed that no blood was pooled behind the victim‟s eyes. She agreed the
single subconjuntival hemorrhage to the outer portion of the victim‟s eye could have been
caused by a fall, a scratch to the eye, or forceful coughing and vomiting.
Dr. Garcia testified that she examined the victim once or twice after July 9 and that
she had not examined him since. She said each of the victim‟s injuries would have been
inflicted within seconds. She noted medical literature did not discuss the duration of time
necessary to inflict injuries similar to the victim‟s and said she did not think a long duration
would have been required. She said that if an infant were slung by the infant‟s extremity and
struck by a wall, the corner fractures might be caused by the slinging action, not by striking
the wall. Dr. Garcia said her records did not reflect that the codefendant called the hospital
after the victim was released on June 21 due to the codefendant‟s noticing the victim‟s
swollen left leg. Dr. Garcia said that the initial test to determine whether the victim had
brittle bones was inconclusive and that extensive tests were conducted over several weeks.
Dr. Garcia said that the victim suffered no additional bone fractures after July 6.
On redirect examination, Dr. Garcia testified that the victim underwent physical
therapy as a result of the fractures and that a January 2013 report from the physical therapist
showed the victim was “developmentally delayed.” Dr. Garcia had no further information
about the victim‟s prognosis. On recross-examination, Dr. Garcia said factors other than
excessive fussiness that might place an infant at risk for physical abuse included financial
stress and a parental history of domestic abuse, alcohol abuse, substance abuse, or sexual
abuse.
Dr. Gary Voytik testified on behalf of the Defendant that Dr. Fernando referred the
victim to Dr. Voytik‟s orthopedic practice and that he treated the victim on June 26, 2012.
Dr. Voytik concluded that the victim had lower limb and left knee pain and a questionable
tibia fracture. Dr. Voytik said that the codefendant brought the victim to his office and that
he would have told her that the victim had a questionable fracture. He explained pediatric
bone fractures healed quickly. He said that he looked at the x-ray again and concluded that
the tibia was fractured but would heal within one to six days. He provided this information
-14-
to the codefendant. He did not apply a leg splint or wrap the victim‟s left leg and told the
codefendant to bundle the victim in a blanket because the fracture would heal quickly.
On cross-examination, Dr. Voytik testified that bones in a five-week-old infant
generally healed in five to seven days. He said that although he treated children for
orthopedic injuries, he did not treat many one-month-old infants for the type of injury the
victim sustained. He said, though, he probably treated a few similar injuries per year. He
agreed he only ordered an x-ray of the victim‟s left leg.
The Defendant testified that he was twenty-nine years old and that he had worked as a
welder, plumber, carpenter, fabricator, and mechanic. He said that he had been in a
relationship with the codefendant for more than one year and that the victim was their son.
They lived together with his daughter from a previous relationship and the codefendant‟s
daughter from a previous relationship. He said he had custody of his daughter, who was ten
months old at the time of the incident, until his arrest in the present case. He said the
codefendant‟s daughter was five years old at the time of the incident. He said that the
daughters shared a bedroom, that he and the codefendant shared a second bedroom, and the
victim slept in a bassinet beside his and the codefendant‟s bed.
The Defendant testified that at the time of the incident, he was working about fifty
hours per week at two part-time jobs and that he worked “quite a few” Saturdays. He said
that when he worked, the children stayed home with the codefendant, the primary caregiver.
He said the codefendant‟s mother cared for the children a couple of times. He described the
family home as hectic and said “it could add up to some stress.”
The Defendant testified relative to the June 10 incident that he, the codefendant, the
victim were downstairs and that he thought the two daughters were asleep upstairs. He said
that he had been sitting on the sofa, that he stood from the sofa while holding the victim, that
he walked toward the stairs, and that he tripped on a rug, causing the victim to hit his head
and chest on the side of the coffee table. The Defendant noted that they had recently
received the rug from a friend and that the ends of the rug were curved upward. The
Defendant did not hit his head on the coffee table, although he fell on the floor. When asked
if he dropped the victim, he said, “I had [the victim] and when I fell, I was falling forward, I
hit knee first and his head caught the table and then I just rolled.” The Defendant got up
from the floor and went upstairs to find the codefendant, who was taking a shower. He said
the codefendant examined the victim and made a doctor‟s appointment the following day.
The Defendant said the victim was not bleeding and seemed fine. The Defendant said he fed
the victim a bottle just before the fall occurred. The Defendant said that he rolled the rug and
threw it outside on the night of the incident.
-15-
The Defendant testified that he went to work on June 11 and received a text message
from the codefendant that she was taking the victim to the pediatrician‟s office that day. He
recalled that after he arrived home from work, he inquired about the appointment. He said
that the victim only had a small bruise and that the victim seemed fine. He said that the
family continued their daily routine until June 21. He said that on June 21, he awoke for
work around 7:30 or 8:00 a.m., heard the victim crying, picked up the victim, walked
downstairs, prepared a bottle, and began walking up the stairs. He said that he was holding
the victim in one arm and the bottle in his opposite hand, that he reached the ninth or tenth
stair, and that he tripped on his socks, which were loose and extended beyond his feet. He
said, “I started falling forward and when I was trying to brace myself up I started falling
backwards and when I started falling backwards I was trying to [move the victim] closer to
my chest and as soon as I hit the stairs I had let go.” He said it happened quickly. He said
that after he landed on his back, he stood and saw the victim lying by the front door. The
Defendant said he let go of the victim before the Defendant “hit the bottom of the stairs.” He
said the victim was crying. The Defendant said he screamed for the codefendant, who ran
downstairs, and told her to grab her cell phone. The Defendant said he called 9-1-1 while the
codefendant held the victim. He said the ambulance arrived within five minutes. The
codefendant went to the hospital with the victim, and the Defendant stayed home with the
two daughters. He said that the codefendant and the victim returned home from the hospital
around 1:00 p.m. and that the victim was calm.
The Defendant testified that later that night, he noticed the victim‟s leg was swollen.
He said that the codefendant called the hospital and that the codefendant was told to wait
until the following day to talk to the victim‟s pediatrician. He said the victim appeared fine,
except for the swollen leg. When asked about how the victim sustained the fifteen bone
fractures, the Defendant said he did not know how the injuries could have occurred if the
fractures were not caused by the two falls. He denied harming the victim. He said that he
was at work when the codefendant and her sister took the victim to Dr. Fernando‟s office on
July 6. The Defendant recalled the victim had a fever, thrush, and nasal congestion, which
had been an ongoing concern. He said that the victim did not appear to be suffering from
pain, was not irritable, and was not upset when the Defendant left for work on July 6. The
Defendant recalled the victim was sleeping when he left for work.
The Defendant testified that he and Ms. Jarocki had a good relationship and that Ms.
Jarocki came to his and the codefendant‟s home periodically. He said, though, he first
learned when Ms. Jarocki testified the previous day that Ms. Jarocki went to their home to
examine the victim after the fall. The Defendant said the codefendant did not mention
anything to him about Ms. Jarocki‟s visit. He said that on July 6, the victim had been
admitted to the children‟s hospital by the time he left work and that he went to the hospital
-16-
that evening. He said he learned of the incident in which his ten-month-old daughter was
found on the victim and pulling the victim‟s ear when he left work that day. He said that
when he was at the hospital that night, nobody asked him about the incidents involving the
coffee table and the stairs. He said he returned home after a few hours, left the codefendant
at the hospital, went to work on July 7, and returned to the hospital after work.
The Defendant testified that when he arrived at the hospital on July 7, the physicians
had ordered several tests and that nobody at the hospital asked him any questions. He said
the codefendant told him about the victim‟s bone fractures. He said that the codefendant
asked if he had done anything to harm the victim and that he told the codefendant he had not
hurt the victim. The Defendant said DCS contacted him on June 21 and that two caseworkers
came to his home as a result of his falling while holding the victim. The Defendant told the
DCS caseworkers how the falls occurred, and he said DCS did not attempt to obtain custody
of the victim at that time. The Defendant said DCS did not have him charged with a crime or
require him to take any tests. He said his next contact with DCS was at the children‟s
hospital. The Defendant said he spoke to the DCS caseworker who came to his home on
June 21. The Defendant said the DCS caseworker spoke to him and the codefendant about
signing a waiver of rights form and asked the Defendant to submit to a drug screen. The
Defendant complied and passed the drug screen. He denied abusing the victim and said he
had never seen anyone abuse the victim.
The Defendant testified that he told Detective Wattenbarger about his tripping on the
rug and falling down stairs while holding the victim. He denied ever being accused of
abusing any of his children before this incident. He did not recall if he knew about the
victim‟s swollen ear before the victim was seen by Dr. Fernando on July 6 but recalled the
victim had nasal congestion for “quite awhile” by July 6. He recalled he and the codefendant
began suctioning the victim‟s nose when the victim was three weeks old, which caused the
victim‟s nose to develop little lacerations.
The Defendant said that during the relevant time period, the only people who had
access to the victim other than himself and the codefendant were friends and family. He
learned of the victim‟s bone fractures on July 6. The Defendant said that he saw a bruise on
the victim‟s face after the victim struck the coffee table and that he saw a bruise on the back
of the victim‟s head after the fall down the stairs. He said that between June 22 and July 5,
he only knew of the victim‟s nasal congestion and generally “being sick.” He denied failing
to provide the victim food, clothes, shelter, or medical care. He denied hurting the victim.
-17-
On cross-examination, the Defendant testified that he was employed in the roofing
industry at the relevant time period and that he almost fell off a roof once. He said that his
ten-month-old daughter lived with him and the codefendant for about six months. He denied
witnessing the codefendant‟s five-year-old daughter hurt the victim. He agreed that at the
time of his July 6 interview with the detective, he had been laid off from his job. He said,
though, that during the time the victim allegedly sustained his injuries, he worked at Rick‟s
Plumbing. He agreed that at the relevant time period, he took prescribed oxycodone for
scoliosis. He took thirty milligrams four times per day and said he knew he could not operate
machinery or a vehicle while taking the medication. He said he had taken the medication
when he tripped on the living-room rug but denied taking any medication when he fell down
the stairs because he had just awoke to the victim‟s crying.
The Defendant testified that on June 10, when he tripped on the rug, the codefendant
was taking a shower. He agreed that his July 6 statement said that the codefendant was
asleep and that the Defendant held the victim all night. He denied lying and said he thought
he told the police that the codefendant was taking a shower. He said, “I think I got it mixed
up, I don‟t know if she was in the shower, I don‟t think she was.” He denied that taking
oxycodone prevented him from knowing what occurred and said that the medication did not
have anything to do with it. He agreed that having three children under six years old in the
house was difficult and that the codefendant sometimes tired of staying at home with three
children.
The Defendant testified that the codefendant “got on to” him about the manner in
which he played and interacted with the victim and that the codefendant thought he was too
rough with the victim. He agreed that the codefendant told him when he played too rough
with the children, including the victim, and that he swung the victim by his arms. He said he
was about 5'10" and weighed 145 pounds at the time of the incidents. He agreed he told the
police that he did not know if he hurt the victim by “playing with him, punching him in my
face or get[ting] his legs and kick[ing] them.” Relative to the photograph taken by the
codefendant‟s sister showing the Defendant holding the victim with one hand away from the
Defendant‟s body, the Defendant said that at the time, he did not think holding the victim in
that manner was inappropriate but that he realized he should not have held the victim that
way. He denied knowing the victim had bone fractures at the time the photograph was taken.
The Defendant testified that he did not recall telling the detective that he was at home
when his ten-month-old daughter climbed on the victim, although he did not dispute the
substance of his written police statement. He admitted he had taken oxycodone the day he
spoke to the detective and said he took four doses that day. He agreed he fought with the
-18-
codefendant‟s father at the hospital when the victim was born and admitted he broke the
codefendant‟s cell phone, although he denied almost breaking the codefendant‟s finger.
The Defendant testified that the only thing he knew that could have caused the
victim‟s skull fracture was the fall down the stairs. He had no explanation for the cause of
the victim‟s mandible, femur, tibia, fibula, radius, ulna, humerus, spine, and rib fractures. He
was aware that the corner fractures were caused from shaking an infant. He agreed that he
and the codefendant were the primary caregivers, that the codefendant cared for the victim
the majority of the time, and that the victim did not attend daycare.
The Defendant testified that his ten-month-old daughter‟s mother had a substance
abuse problem, that DCS contacted him about his daughter, and that he became the custodial
parent. He said the codefendant treated his daughter and the codefendant‟s five-year-old
daughter equally. He said neither daughter was injured while they lived with him and the
codefendant. He agreed he and the codefendant argued during their relationship. He said
that during one argument, he pulled back the codefendant‟s finger but denied the finger was
broken. He denied that any other physical confrontations occurred and that the arguments
involved the children. He said they argued about trivial matters, including his not wanting
the codefendant to use Facebook.
The Defendant testified that his daughter required surgery after she came to live with
the Defendant and the codefendant. The Defendant said that when his daughter was in the
hospital for the surgery, he and the codefendant‟s father had an argument and were asked to
leave the hospital. The codefendant stayed with the Defendant‟s daughter at the hospital. He
agreed the codefendant was a good mother to their daughters and to the victim.
The Defendant testified relative to the June 10 incident that the codefendant took a
shower and went to bed, that he told the codefendant what occurred, and that she took the
victim to the pediatrician‟s office. Relative to the June 21 incident, he said that he told the
codefendant to stay in bed and that he would feed the victim. He agreed the codefendant
drank alcohol occasionally and said he had no reason to believe the codefendant drank
alcohol around the children. He said that the codefendant did not use illegal drugs, that the
only medications he took were prescribed, and that he took the medication as directed.
The Defendant testified that it had been years since he had cared for an infant and that
the codefendant told him how to suction mucus from the victim‟s nose after noticing the
Defendant had done it improperly. He agreed that initially he held the victim‟s jaw rather
than the victim‟s forehead to suction the victim‟s nose and that it was possible he continued
to hold the victim‟s jaw after the codefendant told him to hold the forehead. He agreed that
-19-
the codefendant told him that he was too rough when pulling the victim‟s arms and legs but
denied that he continued to be too rough after the codefendant talked to him about it. He
agreed that he had never seen the codefendant grab and pull the victim‟s legs and that the
codefendant was not rough with the children.
Kimberly Ledford testified on behalf of the codefendant that Ms. Ledford‟s son began
a romantic relationship with the codefendant when the codefendant‟s daughter was about
nine months old and that the relationship lasted about three and one-half years. She said that
her son and the codefendant lived in her home and planned to marry but that her son was
killed by an intoxicated driver. She said that the codefendant was a good mother and that the
codefendant took her daughter to the park, read and sang to her daughter, and took her
daughter to the pediatrician‟s office when necessary. Ms. Ledford said the codefendant‟s
daughter never sustained any injuries while the codefendant lived with Ms. Ledford. Ms.
Ledford said that the codefendant moved out of her home before the victim was born and that
she did not see the victim and the codefendant interact, although she continued to see the
codefendant‟s daughter and the victim, who were living with the codefendant‟s father and
stepmother at the time of the trial. She said that she visited the codefendant‟s daughter twice
per week and that the victim talked and walked well and appeared smart. She said that the
victim‟s nose was “caved in” slightly, that she thought the victim had minor continuing nasal
congestion, and that the victim appeared to be doing well. She said the physicians continued
treating the congestion.
On cross-examination, Ms. Ledford testified that her son, the codefendant, and the
codefendant‟s daughter moved into her home in February 2010, that Ms. Ledford‟s son was
killed in July 2010, and that the codefendant and her daughter continued living in her home
until March 2011. Ms. Ledford said she visited the codefendant and the Defendant‟s home at
least once per week to visit the codefendant‟s daughter. She said, though, most of her visits
occurred before the victim was removed from the home.
Jacqueline Lewis, the codefendant‟s sister, was recalled by the codefendant and
testified that she lived with her father, stepmother, the victim, and the codefendant‟s
daughter. She said that after the victim was born, she visited the Defendant and the
codefendant‟s home about once per week for a few hours, that she sometimes stayed
overnight, and that she never saw the codefendant engage in any type of inappropriate
behavior toward the victim. She said the codefendant took good care of the victim and the
other children. She denied witnessing the Defendant or the codefendant abuse the victim and
denied witnessing the Defendant abuse the codefendant. Ms. Lewis said that the Defendant
and the codefendant both cared for the victim and the two daughters. Ms. Lewis said she had
no concerns about the care the Defendant and the codefendant provided the children.
-20-
Ms. Lewis identified photographs of the victim she had taken between September 9,
2013, and September 19, 2013.1 The photographs showed the victim at a park playing in the
sandbox and on the swing and playing on a rocking horse. Ms. Lewis noted that the victim
learned quickly how to turn on and off the rocking horse by pushing on the horse‟s ear. An
additional photograph showed the victim standing in a doorway, and Ms. Lewis said the
victim could stand and walk without assistance. She said that the victim did not have any
health-related problems at the time of the trial.
On cross-examination, Ms. Lewis testified that she understood the long-term impact of
the victim‟s fractures was unknown. She agreed she did not know what occurred in the
Defendant and the codefendant‟s home when she was not present.
Kimberly Gibson, the codefendant‟s sister, testified she had no concerns about the
codefendant‟s treatment of the victim and the codefendant‟s daughter. She thought the
codefendant was a great mother, who provided and cared for her children. She recalled that
on Father‟s Day 2012, she drove the codefendant, the victim, and the two daughters to Ms.
Gibson and the codefendant‟s father‟s home. Ms. Gibson recalled that the victim was a
normal baby and that she did not have any concerns. She recalled that in late June 2012, the
codefendant, the victim, and the codefendant‟s daughter stayed overnight at Ms. Gibson‟s
home because the Defendant and the codefendant had an argument. Ms. Gibson did not
notice any bruises or marks on the codefendant, the victim, or the codefendant‟s daughter.
On cross-examination, Ms. Gibson testified that the codefendant returned to the family
home with the Defendant after staying one night at Ms. Gibson‟s house. Ms. Gibson said
that after a DCS caseworker came to the hospital to investigate the victim‟s injuries, she
contacted DCS to “vouch” for the codefendant and to report that the home environment was
okay and that the codefendant was a good mother. Ms. Gibson denied telling the prosecutor
at a previous meeting that Ms. Gibson called DCS after the Defendant fell down the stairs to
report her concerns about the home environment. She admitted, though, that she was
concerned about the victim after the second fall. She said the codefendant asked her to pick
her up once or twice after the victim was born because the codefendant and the Defendant
had argued. When asked if the codefendant feared the Defendant, Ms. Gibson said the
codefendant was angry and wanted to leave.
1
We note that the trial began on September 17, 2013, and concluded on September 20, 2013.
-21-
Erica Bells testified that the codefendant and the codefendant‟s daughter lived with
her and her husband when the codefendant‟s daughter was about ten months old. Ms. Bells
never had any concerns about the manner in which the codefendant treated her daughter. Ms.
Bells said that she had a nine-month-old child at the time of the trial and that her approach to
parenting was modeled after the codefendant. She said the codefendant taught her much
about being a parent. Ms. Bells said that she and her husband owned a roofing company and
that her husband hired the Defendant. Ms. Bell agreed that she maintained the company‟s
finances, that the Defendant began working around the time of the victim‟s birth, and that the
Defendant worked for a couple of weeks. She said that she provided the codefendant
transportation to the codefendant‟s supervised visits with the victim after the victim was
removed from the Defendant and the codefendant‟s home.
On cross-examination, Ms. Bells testified that she visited the Defendant and the
codefendant‟s home once or twice per week. She agreed, though, she did not know what
happened after she left the home. She was unaware of the number of bone fractures the
victim sustained. On redirect examination, Ms. Bells stated that she did not believe the
codefendant inflicted the victim‟s injuries.
The codefendant testified that she first learned the details of the victim‟s injuries
during the trial. She said she was upset with the physicians at the first hospital and at the
pediatrician‟s office because she trusted the physicians‟ telling her that the victim was okay.
She said the only fracture she knew about was the tibia fracture.
The codefendant testified that she and the Defendant were able to pay the bills with
the Defendant‟s income and that although money was “tight” with three children in the home,
they were not overwhelmed. She said she loved being a mother to the children. She said that
other than the Defendant‟s falling while holding the victim, she did not know how the victim
received the bone fractures. She recalled, though, that around July 1, she told the Defendant
not to hold the victim‟s face while suctioning the victim‟s nostrils. She also recalled that on
July 4, the Defendant‟s ten-month-old daughter climbed on the victim while the codefendant
was in another room of the home. She also noted that the suctioning bulb slipped out of the
Defendant‟s hand on one occasion and that the bulb cut the victim‟s upper lip. She said she
told the detective about these incidents in response to the detective‟s request for information
relating to “anything that had happened.” The codefendant denied knowing about the extent
of the victim‟s injuries at the time she spoke to the detective.
The codefendant testified relative to the victim‟s nasal congestion that the Defendant
held the victim by his chin and cheek, which she thought was inappropriate. She said that
she demonstrated the proper way to hold the victim when suctioning the victim‟s nostrils and
-22-
that afterward, the Defendant held the victim properly. She said that she knew of the
Defendant‟s falling twice while holding the victim and that none of the physicians treating
the victim told her the victim‟s injuries were inconsistent with the falls reported by the
Defendant.
The codefendant testified that she never delayed seeking medical attention for the
victim and that the Defendant did not display anger toward the children. She said the
Defendant sometimes displayed anger toward her, and she admitted the Defendant broke her
cell phone. She said that on one occasion, she and the Defendant argued, the Defendant
attempted to leave in her car, she reached for her car key, and her finger “got jammed.” She
said that after July 6, she asked the Defendant if he hurt the victim and that the Defendant
denied hurting the victim intentionally. She said the Defendant never denied falling while
holding the victim. She said that she initially believed the Defendant but that she now
believed the Defendant injured the victim.
The codefendant testified that she did not injure the victim and that she was not in the
room when the Defendant fell with the victim, although she was home. She said that since
the victim was born, the Defendant had worked at various employers. She said the
Defendant took care of the victim, his ten-month-old daughter, and the codefendant‟s
daughter. Relative to the July 6 incident, she said that she awoke earlier than usual because
the Defendant‟s daughter had a follow-up doctor‟s appointment related to the surgery one
week previously. She said she woke the daughters, fed them, and got them ready to leave
before waking the victim. She said that the victim had a fever of 103.2 degrees, that she
called the pediatrician, and that she scheduled an appointment for the victim after the
Defendant‟s daughter‟s follow-up appointment.
The codefendant testified that on July 6, she asked the victim‟s pediatrician to test the
victim for RSV because the Defendant‟s daughter had RSV when she came to live with the
Defendant and codefendant. She also requested the pediatrician to determine if the victim
had staph because the Defendant‟s daughter‟s surgery was related to a staph infection and
because the codefendant knew staph could present with respiratory problems. She said that
on July 6, she knew about the Defendant‟s falling twice but did not know about the victim‟s
injuries. She was only attempting to provide the pediatrician with information.
The codefendant testified relative to July 5 that the victim was lying on the
Defendant‟s lap, that the Defendant was holding the victim‟s hands, and that the Defendant
was “punching himself in the face” with the victim‟s hands. The codefendant told the
Defendant to stop because the Defendant was “doing it fast.” She did not think, however,
that the Defendant used force. She said that her mother babysat the three children around
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June 12, while the codefendant and the Defendant went to dinner for their anniversary and
that her mother babysat for three days while the Defendant‟s daughter underwent surgery.
She said that around the time of the Defendant‟s daughter‟s surgery, the Defendant and the
codefendant argued and that the codefendant, the victim, and the codefendant‟s daughter left
the family home and went to the codefendant‟s sister‟s home. The codefendant intended to
stay overnight at her sister‟s home but left and went to the hospital to be with the Defendant‟s
daughter. She said she remained at the hospital for three days, and her mother cared for the
victim during that time. She said her mother‟s boyfriend also cared for the victim
periodically.
The codefendant testified that she spoke to her mother, Ms. Jarocki, about her
concerns regarding the victim. The codefendant said that at the victim‟s two-week-old
wellness visit, she discussed with the nurse practitioner that the victim was not “breathing
clear enough” and was fussier than the daughters. She said the victim‟s formula was changed
because the nurse practitioner thought the victim might have had colic. The codefendant said
the nurse practitioner stated that the congestion was probably material remaining after the
birth and that the codefendant should continue to suction the victim‟s nose until the material
“pass[ed] on its own.”
The codefendant testified relative to the June 10 incident that she was upstairs
sleeping when the Defendant fell, that the Defendant woke her around midnight and told her
what occurred, and that she examined the victim. She said that the victim “seemed fine” and
not “bothered by” the fall. She said the victim was not crying. The following morning she
saw a bruise on the victim‟s left cheek but said the bruise did not “seem to bother” the victim.
She said that later the same day, she saw a spot of dried blood in the victim‟s left ear and that
she took the victim to the emergency room. She reported the information to the medical
personnel, who ordered a CT scan of the victim‟s head. She said the CT scan results were
negative. She recalled that medical personnel asked if the Defendant had exerted force
toward the victim and that she did not believe the Defendant had done anything improper.
She said the victim was discharged from the hospital that evening.
The codefendant testified that on June 15, she took the victim to his one-month
wellness visit and that she expressed concerns about the victim‟s congestion, fussiness, and
lack of appetite. She said she was told that the congestion was related to a virus and that she
should continue to suction the victim‟s nose and to use saline drops. She was told the
pediatrician‟s office would schedule an appointment for the victim with an ear, nose, and
throat doctor. She said that when she called the office about the referral, nobody returned her
call.
-24-
The codefendant testified relative to the June 21 incident that the victim woke around
7:00 a.m., that she reached over to pick up the victim from his bassinet, that the Defendant
told her to go back to sleep, and that the Defendant said he would feed the victim, change his
diaper, and bring the victim to her when the Defendant left for work. She said that she fell
asleep and that she next heard the Defendant yelling for her from the living room. She said
she ran downstairs and found the Defendant and the victim on the floor. She said the victim
was crying softly, almost whimpering. She thought the victim might have been in shock and
saw that the victim‟s head was swollen. The victim had bruises behind his ears and on the
right side of his forehead. The codefendant said that at the hospital, chest x-rays and a CT
scan were performed and that the results were negative. She noted that nobody told her the
victim‟s injuries were inconsistent with a fall and that the victim was released from the
hospital by 12:30 p.m.
The codefendant testified that when she and the victim arrived home from the
hospital, two DCS caseworkers were there. The codefendant and the Defendant spoke with
one of the DCS caseworkers, who inspected the home, examined and spoke with the children,
and said it appeared the codefendant was doing everything correctly. The codefendant said
that the DCS caseworker asked her to call him with information related to the victim‟s
follow-up appointments. The codefendant said she requested Ms. Jarocki come to the home
to examine the victim because the codefendant was concerned, although the hospital staff
said the victim was fine. Ms. Jarocki examined the victim and also thought the victim was
fine. The codefendant said that the Defendant was home when she and the victim arrived
from the hospital and that the Defendant asked about the victim‟s condition. After the
codefendant explained what the physicians told her about the victim‟s condition, the
Defendant went upstairs to sleep. She recalled the Defendant‟s complaining his back hurt
and said the Defendant had a “swollen knot” on his left lower back and a scratch on his leg.
The codefendant testified that on the night of June 21, she and the Defendant were
sitting on the sofa with the victim. She said that the Defendant noticed the victim‟s leg was
swollen and that they decided to call the emergency room physician who treated the victim.
The codefendant said that based upon her conversation with the physician, she took the
victim to the pediatrician‟s office to the previously scheduled follow-up appointment on June
22. The codefendant said she told Dr. Fernando about the victim‟s swollen leg and discussed
the victim‟s continued issues with congestion and eating habits. She said an x-ray taken at
the hospital on June 22 showed a tibia fracture. She said that nobody suggested the victim‟s
injuries were caused by abuse. The codefendant took the victim to Dr. Voytik‟s office on
June 26. The codefendant said that after discussing the x-rays with Dr. Voytik, the
codefendant did not believe the victim‟s leg was fractured.
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The codefendant testified that her statement at the children‟s hospital that she never
allowed the victim out of her sight was not meant literally. She said that although she left the
victim‟s presence to take showers, to sleep, to use the restroom, and to purchase groceries,
she did not think the victim was away from her long enough for the injuries to have occurred.
She said that she initially did not think the Defendant harmed the victim and that she would
never have allowed the Defendant to be around the victim or her daughter had she thought
the Defendant had harmed the victim.
The codefendant testified that the Defendant‟s pain medication was prescribed for
back pain, that she never saw the Defendant take the medication, and that the Defendant
never appeared intoxicated. She never questioned the Defendant‟s ability to do anything
properly. She never saw the Defendant act in a manner that would have caused her to believe
the Defendant would hurt any of the children intentionally or unintentionally.
On cross-examination, the codefendant testified that she met the Defendant in June
2011 and that they were living together by August or September 2011. Relative to the
Defendant‟s work schedule, she said that the Defendant worked for various people, that he
worked when it was available, that his schedule varied, that he worked eight to twelve hours
per day, and that he occasionally worked on the weekend. Relative to the children, she said
the Defendant helped “quite a bit.” Relative to the argument she and the Defendant had in
which she left the family home, she agreed she left the Defendant‟s daughter behind with the
Defendant. She said she felt comfortable leaving the Defendant‟s daughter with him.
The codefendant testified that she and the Defendant received the rug from Ms.
Ledford shortly before the June 10 incident. The codefendant agreed the edges of the rug
were curled upward and said the rug had been removed from the home before she came
downstairs. She agreed that the Defendant told her what occurred when he woke her and that
she examined the victim immediately. Relative to the June 21 incident, she agreed the
Defendant screamed her name and that the Defendant did not attempt to conceal what had
occurred.
The codefendant testified that she never saw the Defendant do anything that caused
her to suspect he caused the victim‟s injuries. Relative to the Defendant‟s suctioning the
victim‟s nostrils, she said that she did not believe the Defendant was intentionally attempting
to hold the victim‟s jaw and that the Defendant was only attempting to hold the victim still.
She agreed that the Defendant could not “master that technique” and that it seemed “little bit
above” the Defendant. Relative to the photograph showing the Defendant holding the victim
with one hand away from the Defendant‟s body, the codefendant said she thought she was
-26-
home when the photograph was taken but could not recall if she was in the room. She said
the Defendant did not have a habit of “holding his child like a pizza.”
The codefendant testified that on July 4, the Defendant‟s daughter and the victim were
in the living room, that the codefendant left the room, that the codefendant returned, and that
the Defendant‟s ten-month-old daughter was on the victim. The codefendant said that as she
picked up the Defendant‟s daughter, the Defendant‟s daughter held onto and pulled the
victim‟s ear. She said the victim was lying in a rocker that was sitting on the floor. She
thought the Defendant was in the kitchen but was unsure. She said that to her knowledge, the
Defendant never hit or kicked the victim. She said that when she told the Defendant to stop
“play boxing” with the victim, the Defendant stopped.
The codefendant testified that the Defendant always wore his socks pulled out and
tucked under his feet. She agreed wearing socks in that manner was hazardous, especially
when walking up stairs. She never believed the Defendant “staged” the victim or himself on
June 21. She said that although she had plenty of time to think about how the victim was
injured, she could only recall the Defendant‟s falling twice while holding the victim as the
causes. Relative to the Defendant‟s pain medication, she said she did not know the quantity
the Defendant took.
The codefendant testified that based upon the medical evidence presented at the trial
and the timeline of the injuries, she believed the Defendant was responsible for the victim‟s
injuries. She denied harming the victim and said no other explanation existed for the injuries.
She denied noticing signs that the victim was being abused. Relative to the June 10 incident,
she said the Defendant lied when he testified that the Defendant did not wake her. She said
the Defendant woke her after falling while holding the victim. She said, “I heard him testify
yesterday to quite a few things that were not the truth.” Relative to the June 21, incident, she
said the Defendant‟s testimony that the victim was screaming when the codefendant came
downstairs was false and that the victim was only whimpering. She agreed that although she
was home at the time of the June 10 and 21 falls, she was not present and did not know what
occurred.
The codefendant testified that she did not shake the victim because she was frustrated
with the victim‟s fussiness and having three children in the home. She agreed that the
medical testimony showed the victim‟s injuries could not have been caused by the
Defendant‟s ten-month-old daughter and said that she only provided the police with
information about the incident involving the Defendant‟s daughter because she was asked to
list any incident she thought might have caused the victim‟s injuries. She denied blaming the
Defendant‟s daughter for the victim‟s injuries.
-27-
The codefendant testified that the Defendant worked “a few days” per week and that
he was home if he was not at work. She said she might have left the children with the
Defendant for a few hours to run errands and to purchase groceries, but she denied leaving
the victim with the Defendant for an entire day. She said that although she knew the victim
was uncomfortable because of his fussiness, she did not know the victim was in pain.
Upon this evidence, the Defendant was convicted of aggravated child abuse. The
codefendant was acquitted of all charges. This appeal followed.
As a preliminary matter, the State contends that the Defendant filed an untimely
motion for a new trial and that as a result, the Defendant‟s notice of appeal was untimely.
The State requests this court to dismiss the appeal because of the untimely notice of appeal,
and alternatively, to waive the Defendant‟s issue related to his request for a mistrial because
of the untimely motion for a new trial. In his reply brief, the Defendant concedes the motion
for a new trial was untimely and requests this court to consider his appeal in the interest of
justice.
Tennessee Criminal Procedure Rule 33(b) states, “A motion for a new trial shall be in
writing . . . within thirty days of the date the order of sentence is entered.” The thirty-day
requirement is mandatory and jurisdictional and cannot be waived. State v. Martin, 940
S.W.3d 567, 569 (Tenn. Crim. App. 1997); see Tenn. R. Crim. P. 45(b)(3) (stating, in
relevant part, that a trial court may not extend the time for taking any action pursuant to
Criminal Procedure Rule 33). This court “does not have the authority to waive the untimely
filing of a motion for new trial.” State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App.
1997); see T.R.A.P. 4(a). “A motion for a new trial which is not timely filed is a nullity.”
State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). As a result, a trial court has
no jurisdiction to hold a hearing or render a ruling on an untimely motion for a new trial. See
State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997).
The record reflects that the sentencing hearing was held and the judgment form was
filed on February 10, 2014. Although the motion for a new trial does not reflect a trial court
stamp-filed date, the certificate of service reflects that the motion was submitted on March
20, 2014. The Defendant‟s motion for a new trial was untimely, and he has waived his right
to appeal any issues contained in the motion, except sufficiency of the evidence and
sentencing. See Patterson, 966 S.W.2d at 440 (citing State v. Givhan, 616 S.W.2d 612, 613
(Tenn. Crim. App. 1980)); see also State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim. App.
1987) (limiting appellate review to issues that would result in a dismissal when a motion for
a new trial is untimely).
-28-
The record also reflects that the trial court‟s order denying the Defendant‟s motion for
a new trial was entered on September 9, 2014, and that the notice of appeal was filed on
September 22, 2014. Although the notice of appeal was filed within thirty days of the order
denying the motion for a new trial, the untimely motion for a new trial does “not toll or defer
the thirty-day period for filing the notice of appeal.” Davis, 748 S.W.2d at 207; see T.R.A.P.
4(a), (c). As a result, the notice of appeal was untimely. However, the timely filing of a
notice of appeal is not jurisdictional, and this court is permitted to waive the timely filing in
the interest of justice. T.R.A.P. 4(a). Although this court lacks jurisdiction to consider the
Defendant‟s issue relative to the motion for a mistrial, we will consider the sufficiency of the
evidence and the sentence imposed by the trial court in the interest of justice.
I
Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support his conviction. He
argues that the State failed to prove that he inflicted any injury by non-accidental means, that
he knowingly caused serious bodily injury, and that he exercised exclusive control over the
victim, excluding the possibility that other people inflicted the victim‟s non-accidental
injuries. The State responds that the evidence is sufficient. We agree with the State.
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence 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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521
(Tenn. 2007). The State is Aafforded the strongest legitimate view of the evidence and all
reasonable inferences@ from that evidence. Vasques, 221 S.W.3d at 521. The appellate
courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier
of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “In the absence of direct evidence, a criminal
offense may be established exclusively by circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). “The standard of review „is the same whether the conviction
is based upon direct or circumstantial evidence.‟” Id. (quoting State v. Hanson, 279 S.W.3d
265, 275 (Tenn. 2009)).
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In relevant part, “[a] person commits the offense of aggravated child abuse . . . who
commits the offense of child abuse, as defined in § 39-15-401(a) . . . and . . . [t]he act of
abuse . . . results in serious bodily injury to the child.” T.C.A. § 39-15-402(a)(1). Generally,
the offense is a Class B felony, but the offense is a Class A felony if the abused child is eight
years of age or less. Id. § 39-15-402(b). A person commits a form of child abuse “who
knowingly, other than by accidental means, treats a child under eighteen (18) years of age in
such a manner as to inflict injury.” Id. § 39-15-401(a) (2014). 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.
A person acts knowingly with respect to a result of the person‟s conduct when
the person is aware that the conduct is reasonably certain to cause the result.
Id. § 39-11-106(a)(20) (Supp. 2011) (amended 2014); see id. § 39-11-302(b) (2014).
The Criminal Code provides serious bodily injury includes “[a] broken bone of a child who is
eight (8) years of age or less.” Id. § 39-11-106(a)(34)(F). Relative to aggravated child
abuse, serious bodily injury against a child includes “a fracture of any bone[.]” Id. § 39-15-
402(d).
In the light most favorable to the State, the record reflects that the victim, who was
less than two months old during the relevant time frame, sustained at least fifteen bone
fractures. Relative to the Defendant‟s argument that the State failed to establish that he
exercised exclusive control over the victim, excluding the possibility that others inflicted the
victim‟s non-accidental injuries, the jury‟s verdicts reflect that it credited the codefendant‟s
testimony that she did not harm the victim. The other individuals who had access to the
victim during the time in which the victim sustained the multiple bone fractures were Ms.
Jarocki, Ms. Lewis, Ms. Gibson, Ms. Bells and the Defendant. Relative to Ms. Jarocki, Ms.
Lewis, Ms. Gibson, and Ms. Bells, the jury‟s verdict reflects that it credited each witnesses‟
testimony and found that none of them inflicted the victim‟s injuries. Relative to the
Defendant, though, the verdict reflects that the jurors discredited the Defendant‟s testimony
that he only inflicted accidental trauma as the result of his falling while holding the victim on
June 10 and 21. Questions regarding witness credibility and conflicts in the evidence were
resolved by the jury. Bland, 958 S.W.2d at 659; see Sheffield, 676 S.W.2d at 547. We note
that the victim‟s bone fractures were sustained between June 5 and July 6 based upon when
the fractures were visible on the x-rays and the various rates of healing and that the record
reflects that Ms. Jarocki, Ms. Lewis, Ms. Gibson, or Ms. Bells‟s access to the victim was
limited during the relevant period. Although the codefendant was the victim‟s primary
caretaker, the Defendant cared for the victim when he was home and not working. Although
none of the prosecution‟s witnesses saw the Defendant inflict the victim‟s non-accidental
-30-
injuries, the codefendant testified that the Defendant was alone with the victim when the
codefendant shopped for groceries, slept, used the restroom, and showered. Dr. Garcia
testified that the fractures would have been inflicted within seconds. As a result, we
conclude that the jury could have reasonably found that the Defendant exercised exclusive
control over the victim in which to inflict the victim‟s bone fractures.
Relative to the Defendant‟s argument that the State failed to prove that he inflicted
any bone fracture by non-accidental means and that he knowingly caused serious bodily
injury, the record reflects that Dr. Sammer concluded that the victim‟s fractures were
consistent with shaking and blunt force trauma. Genetic disorders, metabolic disorders, and
organic diseases were excluded as causes for the fractures. Dr. Garcia stated that corner
fractures did not result from casual bouncing, shaking, jostling, and tossing a child in the air
and that corner fractures were the result of non-accidental trauma and physical abuse. Dr.
Garcia concluded that, based upon the various fractures and healing rates, four events
occurred between June 5 and July 10 and that the victim sustained seven corner fractures.
Assuming the jury credited the Defendant‟s testimony that he fell twice while holding the
victim, two events remained unexplained. Although Dr. Garcia testified that the bruise on
the victim‟s face was consistent with the June 10 fall as reported by the Defendant, the
fractured mandible was sustained before June 10 based upon the healing fracture visible on
the June 10 x-ray. Dr. Garcia conceded the skull fracture was consistent with the June 21 fall
as reported by the Defendant, but she stated that rib corner fractures as sustained by the
victim were consistent with a shaking-type motion. Dr. Garcia concluded that the victim
sustained the fractures as a result of non-accidental trauma and was physically abused. As
we have stated, a bone fracture sustained by a child who is age eight or less is defined by our
statutes as serious bodily injury. See T.C.A. § 39-11-106(a)(34)(F); id. § 39-15-402(d). We
conclude that the jury could have found beyond a reasonable doubt that the Defendant
inflicted the victim‟s injuries by non-accidental means and that the Defendant knowingly
caused serious bodily injury. Likewise, we conclude that sufficient evidence exists to
support the conviction and that the Defendant is not entitled to relief on this basis.
II
Motion for a Mistrial
The Defendant contends that the trial court erred by denying his request for a mistrial
after Detective Wattenbarger testified that Ms. Jarocki offered to undergo a polygraph
examination in an effort to exclude her as the person who inflicted the victim‟s injuries. As
previously stated, the Defendant‟s untimely motion for a new trial deprives this court of the
jurisdiction to review the issue. The Defendant is not entitled to relief on this basis.
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III
Sentencing
The Defendant contends that his sentence is excessive. He argues that the trial court
erroneously applied enhancement factors and failed to apply a mitigating factor. See T.C.A.
§§ 40-35-113 (2014), 40-35-114 (2014). The Defendant requests a fifteen-year sentence.
The State responds that the trial court properly applied enhancement and mitigating factors
and that that the Defendant‟s sentence is reasonable.
As a preliminary matter, we note that the Defendant erroneously cites to the de novo
standard of review of sentencing determinations. Our supreme court delineated the current
review standard involving questions related to the length of a sentence in State v. Bise, 380
S.W.3d 682 (Tenn. 2012), three years previously. This court reviews challenges to the length
of a sentence within the appropriate sentence range “under an abuse of discretion standard
with a „presumption of reasonableness.‟” Bise, 380 S.W.3d at 708. A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report, the
principles of sentencing, counsel‟s arguments as to sentencing alternatives, the nature and
characteristics of the criminal conduct, any mitigating or statutory enhancement factors,
statistical information provided by the Administrative Office of the Courts as to sentencing
practices for similar offenses in Tennessee, any statement that the defendant made on his own
behalf, and the potential for rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014); State v. Moss, 727 S.W.2d
229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987)); see
T.C.A. § 40-35-102 (2014).
Likewise, a trial court‟s application of enhancement and mitigating factors is reviewed
for an abuse of discretion with “a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court‟s misapplication of an enhancement or
mitigating factor does not invalidate the sentence imposed unless the trial court wholly
departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as there are other
reasons consistent with the purposes and principles of sentencing, as provided by statute, a
sentence imposed . . . within the appropriate range” will be upheld on appeal. Id.
At the sentencing hearing, the presentence report was received as an exhibit. The
report reflects that the Defendant had a previous conviction for driving with a revoked
license. The Defendant was previously charged with drag racing and domestic assault, both
of which were dismissed. Although the domestic assault charge was dismissed upon
-32-
payment of court costs and fines, the Defendant was placed on probation pending full
payment and violated his probation for nonpayment and failure to report to his probation
officer. More than one year later, the Defendant‟s probation was revoked again, and he was
ordered to serve thirty days in confinement. The Defendant completed the tenth grade but
did not graduate from high school. The Defendant reported good mental and physical health,
although he suffered from scoliosis and had developed diabetes before the trial. The
Defendant reported he first drank alcohol at age eighteen, drank socially, always remained
sober while drinking, and stopped drinking by the end of 2010. The Defendant reported
smoking marijuana between ages sixteen and twenty-two and said he stopped using drugs for
employment-related reasons.
Victim impact statements were included in the presentence report. Teresa Lewis, the
victim‟s maternal grandmother and legal guardian, discussed her becoming a parent to the
codefendant‟s daughter and to the victim. She said the victim required future nose surgery
and possibly eye surgery. She noted that the codefendant‟s daughter suffered emotional
injury as a result of her family being “ripped” from her. Ms. Lewis said the codefendant‟s
daughter had been in counseling because of the stress and noted the codefendant‟s daughter
“cried, . . . wet the bed and had nightmares.” Ms. Lewis requested the Defendant receive the
maximum sentence and never be permitted to have contact with the children.
Gary Lewis, the victim‟s paternal grandfather and legal guardian, discussed the
victim‟s living with him and Ms. Lewis. He said that although the victim was strong and
intelligent, the victim‟s physicians did not know the long term effects of the victim‟s injuries.
Although Mr. Lewis had no opinion about the length of the Defendant‟s sentence, Mr. Lewis
wanted the Defendant‟s parental rights terminated.
Probation and Parole Officer Judith Hilton-Coffman prepared the Defendant‟s
presentence report. She provided testimony consistent with the presentence report she
prepared relative to the Defendant‟s criminal history, education, mental and physical health,
and medical history. She said the Defendant did not mention taking pain medication at the
time of the offense. Ms. Hilton-Coffman did not speak to the Defendant‟s family. She said
the Defendant‟s employment history was sporadic, noting the Defendant‟s working for Sys-
Tech, Progressive Logistics, and a plumbing company.
Ms. Hilton-Coffman testified that although the Defendant did not submit a statement,
he mentioned to her that he did not know how the victim sustained the bone fractures.
Relative to the victim impact statements, Ms. Hilton-Coffman said the long term effects of
the victim‟s injuries were still unknown. She noted the victim would most likely require
surgery in the future. She said that her primary duty was to prepare presentence reports and
-33-
that she had never seen a child abuse case in which an infant victim had been subjected to
such violence.
Mary Lou Allen, the Defendant‟s mother, testified for the defense that the Defendant
was born in Texas and that he moved to Tennessee to live with her when he was age twelve
or thirteen. She said the Defendant was a good child and helped around the house when he
was a teenager. She noted the Defendant worked for people in the neighborhood performing
odd jobs as a teenager. She said the Defendant had always had a good work ethic.
Ms. Allen testified that the Defendant had three children and that she had never seen
the Defendant abuse any of his children. She said relative to the Defendant‟s daughter who
was ten months old at the time of the incidents, the Defendant sought custody of his daughter
because of the mother‟s drug addiction. The mother of the Defendant‟s oldest child moved
to Chicago with the son shortly after the birth. She said that the Defendant, the codefendant,
and their respective daughters lived with Ms. Allen for two or three months in October 2011
or 2012. Ms. Allen said the Defendant helped take care of the children when he was not at
work. She said that the Defendant worked regularly, unless he was laid off, and that the
Defendant took an active role in his children‟s lives. She denied that the Defendant abused
or neglected his children.
Ms. Allen testified that after the victim was released from the hospital on the day the
Defendant fell while holding the victim, she spoke to the Defendant, who asked her to go to
his and the codefendant‟s home to check on the victim. Ms. Allen said the victim looked fine
to her, although the codefendant asked her to look at the victim‟s head. The codefendant
mentioned the victim‟s head was swollen. Upon further examination, Ms. Allen saw that the
victim‟s head was swollen and asked why the hospital allowed the victim to go home. While
at the home, Ms. Allen saw the codefendant‟s five-year-old daughter doing cartwheels and
said the victim was almost kicked in the head. She denied she blamed the daughter for the
victim‟s injuries.
On cross-examination, Ms. Allen testified that she had no knowledge of the Defendant
and the codefendant‟s fighting at the hospital when the victim was born. She identified the
photograph of the Defendant holding the victim with one hand away from the Defendant‟s
body and said that the manner in which the Defendant held the victim was not inappropriate
when done properly. She noted the Defendant was proud of having a son. She denied she
blamed the codefendant and the daughters for the victim‟s injuries and said she knew her son
did not cause the victim‟s injuries.
-34-
Ms. Allen testified relative to the Defendant‟s domestic violence charge that the
mother of the Defendant‟s daughter “started the whole thing” and that witnesses saw the
Defendant was innocent. She noted the daughter‟s mother was charged with domestic
violence against the Defendant.
The trial court stated that in determining the Defendant‟s sentence it had reviewed the
sentencing guidelines, considered the evidence and exhibits presented at the trial, and
considered the proof at the sentencing hearing. Relative to mitigating factors, the trial court
found that none of the factors applied. Although the Defendant requested the court apply
factor (6), the court refused. See id. § 40-35-113(6) (“The defendant, because of youth . . . ,
lacked substantial judgment in committing the offense[.]”). The court noted that the
Defendant “did it over and over, and over and over, and over and over, and over and over,
and over and over again.”
Relative to enhancement factors, the court found that factor (1) applied because the
Defendant had a “history of convictions,” although the Defendant had no previous felony
convictions. See T.C.A. § 40-35-114(1) (“The defendant has a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the appropriate
range[.]”). The court noted it did not place much weight on this factor because the Defendant
“barely ha[d] a criminal record.” The court found that factor (3) applied because the
evidence showed more than one victim. See id. § 40-35-113(3) (“The offense involved more
than one (1) victim[.]”). The court noted the presentence report showed “proof of
psychological and emotional injury” to the codefendant‟s daughter. The court found that the
daughter had been receiving counseling, had nightmares, had wet the bed, and had cried
because her family “was ripped apart by this act.” The trial judge stated that “I do weigh that
factor of enhancement in this matter.” The court found that factor (14) applied because the
photograph of the Defendant holding the victim with one hand away from the Defendant‟s
body showed a “picture of vulnerability . . . [and] a picture of trust.” See id. § 40-35-114
(14) (“The defendant abused a position of . . . private trust . . . in a manner that significantly
facilitated the commission or the fulfillment of the offense[.]”). The court weighed heavily
upon this factor. The court refused to apply factors (4), (5), (10), and (12). See id. § 40-35-
113(4) (“The victim of the offense was particularly vulnerable because of age or physical or
mental disability[.]”); -113(5) (“The defendant treated, or allowed a victim to be treated, with
exceptional cruelty during the commission of the offense[.]”); -113(10) (“The defendant had
no hesitation about committing a crime when the risk to human life was high[.]”); -113(12)
(“During the commission of the felony, the defendant intentionally inflicted serious bodily
injury upon . . . a victim[.]”). The court sentenced the Defendant to twenty-three years‟
confinement.
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Relative to enhancement factor (1) regarding previous criminal convictions and
behavior, the Defendant states in his brief that he had only one prior conviction for driving
with a revoked license, which is supported by the record. Although he notes that the State
did not request application of this factor, he fails to state how the trial court abused its
discretion by applying this factor and fails to cite to any legal authority reflecting application
of this factor in the present case was erroneous. In any event, application of factor (1) is
appropriate. Although a misdemeanor, the Defendant was previously convicted of a criminal
offense. Likewise, the Defendant admitted during the presentence investigation that he had
smoked marijuana. The Defendant‟s criminal conviction and criminal conduct reflect a
previous history of “criminal convictions or criminal behavior.” We note that the trial court
placed little weight on this factor because the court found that the Defendant “barely ha[d] a
criminal record.” Application of this factor was not improper.
Relative to enhancement factor (3) regarding more than one victim, the Defendant
argues that no allegation was made during any of the proceedings that more than one victim
existed and that the trial court should not have considered the codefendant‟s five-year-old
daughter as a victim for sentencing purposes. Again, he does not cite to any legal authority
showing application of this factor was erroneous. In any event, the record reflects that the
trial court applied this factor because of the “psychological and emotional injury” to the
codefendant‟s daughter based on the information provided in the victim impact statement.
In State v. Imfeld, 70 S.W.3d 698 (Tenn. 2002), our supreme court addressed the application
of enhancement factor (3) in the context of aggravated assault. The court noted that
convictions for aggravated assault were obtained based upon a named victim and that the
“statutory language of the „multiple victims‟ factor . . . limits its application to „an offense‟
involving more than one (1) victim.” Id. at 705-706. (emphasis in original). The court
concluded that “there cannot be multiple victims for any one offense of aggravated assault
committed against a specific, named victim.” Id. at 706. In contrast, our supreme court
concluded that factor (3) was applicable to aggravated arson convictions because the offense
does “not permit multiple convictions in spite of the fact that multiple persons” might be
victimized by a fire. State v. Lewis, 44 S.W.3d 501, 508 (Tenn. 2001).
In State v. Gabriel Cordova Delarosa, No. E2008-01940-CCA-R3-CD, 2010 WL
454806, at *5 (Tenn. Crim. App. Feb. 10, 2010), this court reached a similar conclusion to
Imfeld in the context of vehicular homicide. This court concluded that application of factor
(3) was improper for a vehicular homicide conviction because the offense had a specific,
named victim and that factor (3) “cannot apply . . . where the charge is necessarily limited to
a specific, named victim.” Id. (citing Imfeld, 70 SW.3d at 705-06). Likewise, in State v.
Mark Allen Haskett, No. E2001-00600-CCA-R3-CD, 2002 WL 31431498, at *10 (Tenn.
Crim. App. Oct. 31, 2002), the trial court applied factor (3) to enhance a sentence for assault
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on the basis that the Defendant‟s four-year-old daughter was present when the Defendant
assaulted his former wife. Relying on Imfeld, this court concluded that application of factor
(3) was improper because “there cannot be multiple victims for an offense committed against
a specific, named victim.” Id. (citing Imfeld, 70 S.W.3d at 705-706).
In the present case, the Defendant was convicted of aggravated child abuse of a child
eight years of age or less. See T.C.A. § 39-15-402; 39-15-401(a). The offense requires a
named victim because the State must prove beyond a reasonable doubt that a defendant
knowingly treated a child, other than by accidental means, in such a manner as to inflict
injury. Id. § 39-15-401(a). Likewise, the State is required to prove beyond a reasonable
doubt that the abuse resulted in “serious bodily injury to the child.” Id. § 39-15-402(a)(1)
(emphasis added). We note the indictment contained one count of aggravated child abuse
against the infant victim. The codefendant‟s daughter was not identified as a victim in the
indictment. As a result, we conclude that the trial court‟s application of factor (3) was
improper.
Relative to enhancement factor (14) regarding a position of trust, the Defendant
argues that the trial court‟s reliance on the photograph showing the Defendant holding the
victim with one hand away from the Defendant‟s body to find the Defendant abused a
position of trust was erroneous. He argues, rather, that the photograph shows “a loving
relationship between father and son.” The trial court‟s comments regarding the photograph
do not reflect that it found a depiction of abuse in the photograph. The court‟s statement
reflects that an infant only a few weeks old was vulnerable and at the mercy of his parents to
provide life necessities. The Defendant was the victim‟s father, and as a result, held a
position of private trust. The Defendant was alone with the victim because he was the
victim‟s father, and the Defendant‟s position of trust facilitated the commission of the
offense. The court‟s application of factor (14) was proper.
Relative to mitigating factor (6) regarding the Defendant‟s lacking substantial
judgment, the Defendant argues that the trial court erred by refusing to find the factor
applicable. Likewise, he argues that the court‟s stating that he “did it over and over, and over
and over, and over and over, and over and over, and over and over again,” was a
mischaracterization of the evidence because he was only indicted for one count of aggravated
child abuse and because the evidence did not establish multiple incidents of abuse. Although
the Defendant correctly notes that he was only indicted for one count of aggravated child
abuse, the expert testimony at the trial established that multiple events occurred, resulting in
the victim‟s fifteen or sixteen bone fractures. The varying rates of healing bone fractures and
the varying amount of callus found in the victim‟s x-rays taken at differing times supports a
finding that the Defendant engaged in a pattern of abusive conduct on at least four occasions
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that caused the victim‟s injuries. We note that although some of the victim‟s injuries were
consistent with the Defendant‟s reported falls, some of the victim‟s injuries were sustained
before and after those incidents and were inconsistent with falling and consistent with non-
accidental trauma. The trial court did not abuse its discretion by refusing to apply factor (6).
Although we have concluded that the trial court improperly applied enhancement
factor (3), the Defendant is not entitled automatically to relief. “[A] trial court‟s
misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Bise, 380 S.W.3d at 706. “So long as there are other reasons consistent with the purposes
and principles of sentencing, as provided by statute, a sentence imposed . . . within the
appropriate range” will be upheld on appeal. Id. The Defendant received a within-range
sentence for a Class A felony, and the record reflects that the trial court complied with the
purposes and principles of sentencing. The court properly applied two enhancement factors
and weighed heavily upon factor (14) in determining the Defendant‟s sentence. We note that
the victim‟s injuries consisted of fifteen or sixteen bone fractures that were inflicted during at
least four incidents between June 5 and July 6. The trial court did not abuse its discretion by
imposing a twenty-three-year sentence. The Defendant is not entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, we affirm the judgment of
the trial court.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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