State of Tennessee v. Martha Patlan ( 2011 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Remanded by the Supreme Court May 26, 2011
    STATE OF TENNESSEE v. MARTHA PATLAN
    Direct Appeal from the Criminal Court for Davidson County
    No. 2006-D-3184 Steve R. Dozier, Judge
    No. M2011-01175-CCA-RM-CD - Filed July 18, 2011
    This case is before this court upon the Tennessee Supreme Court’s remand for further
    consideration in light of its opinion in State v. Dorantes (Dorantes II), 
    331 S.W.3d 370
    (Tenn. 2011). A Davidson County jury convicted the defendant, Martha Patlan, of
    aggravated child abuse, a Class A felony, and first degree felony murder during the
    perpetration of aggravated child abuse. The trial court sentenced the defendant to a
    mandatory sentence of life imprisonment for the murder conviction and, consecutive to the
    life sentence, twenty years for the aggravated child abuse conviction both to be served in the
    Tennessee Department of Correction. On appeal, the defendant argued that (1) the evidence
    was insufficient to convict her of aggravated child abuse and felony murder; (2) her felony
    murder conviction is unconstitutional; (3) the trial court erred when it failed to require the
    state to elect an incident of neglect; (4) the trial court erred when it refused to allow
    testimony regarding bruises on the defendant’s face; (5) the trial court erred when it allowed
    certain photographs into evidence; (6) the trial court erred in overruling the defendant’s
    objection to the use of the term Battered Child Syndrome; and (7) the trial court erred by
    ordering that the defendant serve her sentences consecutively. This court affirmed the
    defendant’s convictions and sentences. Upon review, we again conclude that the evidence
    was sufficient to support the defendant’s convictions and that the defendant’s sentence is
    proper. Accordingly, we affirm the judgments of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
    J.C. M CL IN, J., delivered the opinion of the court, in which J ERRY L. S MITH and T HOMAS T.
    W OODALL, JJ., joined.
    Paula Ogle Blair (on appeal), and Paul Walwyn, Ross Alderman, District Public Defender,
    and Amy Harwell, Assistant Public Defender, Nashville, Tennessee, for the appellant,
    Martha Patlan.
    Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
    General; Victor S. Johnson, III, District Attorney General; and Katrin Miller and Brian
    Holmgren, Assistant District Attorneys General, for the appellant, State of Tennessee.
    OPINION ON REMAND
    On June 17, 2003, a Davidson County grand jury indicted the defendant, Martha
    Patlan, and her co-defendant, Genaro Edgar Espinosa Dorantes, for aggravated child abuse,
    a Class A felony, and first degree felony murder during the perpetration of aggravated child
    abuse. The grand jury returned a superseding indictment on December 17, 2006, which
    charged the defendant with three counts of first degree felony murder and one count of
    aggravated child abuse. Before trial, the court dismissed two of the felony murder charges.
    The defendant’s jury trial began on April 9, 2007. During the trial, the parties presented the
    following evidence, as summarized by this court’s opinion in the co-defendant’s direct
    appeal:
    On the morning of February 23, 2003, the body of a four-year-old child
    was found in a park in Nashville, Tennessee. After being alerted by a jogger
    in the park, Officer Jerry Moore with the Metropolitan Park Police located the
    child’s body behind an earthen mound between 8:30 a.m. and 8:45 a.m.
    Officer Moore drove to the area, secured the scene, and called for a detective
    on his radio. The body was later identified as [L.C.]1 , the victim in this case.
    Jose Luis Cisneros Servantes (“Jose”),[FN1.] [the defendant]’s husband,
    testified that he and the [defendant], along with their other three children, lived
    in Mexico when the victim was born. After Jose and the [defendant]
    separated, Jose left the children with his wife and moved to Houston, Texas.
    In 2001, Jose took the children from Mexico and moved them to Texas with
    him. In June 2002, while the victim was at Jose’s home in Texas, the victim
    “went missing.” Jose never saw his son alive again. Jose stated that the victim
    was physically “one hundred percent normal and healthy,” did not have any
    mental difficulties, and did not wear diapers before he disappeared. Jose
    identified a photograph of the victim taken prior to his death which was
    admitted into evidence.
    [FN1.] Due to several witnesses having similar names, some of
    the witnesses will be referred to by their first or middle name.
    No disrespect is intended by this format.
    1
    It is this court’s policy to refer to minor victims by initials only.
    -2-
    On cross-examination by [the defendant]’s counsel, Jose testified that
    he went to Nashville to search for the victim approximately two months after
    he disappeared. Jose stated that the children were originally with his wife in
    Mexico before they moved to Houston with him.
    Martha Bernece Cisneros Patlan (“Bernece”), [the defendant]’s and
    Jose’s oldest child, testified that she was present when [the defendant] took the
    victim from their father’s residence in Texas. Bernece stated that [the co-
    defendant] was with [the defendant] at the time the victim was taken. She saw
    [the defendant] put the victim in a black car, which was the last time she had
    seen the victim alive. Bernece identified both [the defendant] and [the co-
    defendant] in open court at trial.
    On cross-examination by [the co-defendant]’s counsel, Bernece testified
    that she did not know [the co-defendant’s] identity at the time the victim was
    taken. Bernece was only able to identify [the co-defendant] after she saw
    photographs of [the co-defendant] on the news and learned of the victim’s
    death several months later.
    Antonia Patlan (“Antonia”), [the defendant]’s sister, testified that in
    February of 2003, [the defendant] came to her apartment in Nashville and asked
    for money. [The defendant] told her that she needed the money “to buy a
    cream because [the victim] had been burned.” [The defendant] told Antonia
    that the victim “had burned himself with some corn cobs that she was cooking.”
    Antonia gave [the defendant] forty dollars to buy the medicine. A week later,
    [the defendant] returned to Antonia’s apartment to store some items and told
    Antonia that she was going on a trip. Antonia then asked to see the victim, who
    was waiting inside a white van driven by [the co-defendant]. Upon seeing the
    victim, Antonia touched his head and asked “what happened to you, my child?”
    She was unable to understand the victim’s response. Antonia stated that the
    victim appeared to be sitting “in a position like maybe not to hurt himself,”
    protecting his buttock area. [The co-defendant] then said, “‘Let’s go, let’s go
    woman, let’s go, woman.’” Antonia stated that she could not distinguish the
    color of the victim’s clothes at the time because it was dark outside. She only
    remembered that he was fully clothed in dark clothing and did not see his feet.
    On cross-examination by [the co-defendant’s] counsel, Antonia testified
    that [the defendant] and her family traveled frequently and never rented an
    apartment or stayed in one place. On cross-examination by [the defendant]’s
    counsel, Antonia testified that [the defendant] seemed concerned and worried
    -3-
    when she asked for the money to buy the medicine for the victim and that [the
    co-defendant] was in a hurry to leave for the trip.
    Maria Patlan-Cano (“Maria”), [the defendant]’s other sister, testified that
    she observed the victim’s appearance while he was in Mexico and in Nashville.
    While in Mexico, the victim was “chubbier” and “very happy.” When Maria
    saw him in Nashville, the victim was “very thin and very crestfallen.” Maria
    stated that on February 20, 2003, [the defendant] came to her job crying and
    asking for money because the victim was very sick and needed medicine.
    Maria stated that [the defendant] told her that the victim had been burned from
    corn on the cob and that she was very afraid that he was going to die. Maria
    went outside and asked to see the victim, who was inside a white van driven by
    [the co-defendant]. [The co-defendant] declined her request, stating that he had
    to move the van because he was blocking traffic. After [the co-defendant]
    moved the van away from traffic, Maria went into the van. Upon entry, she
    screamed “why was the child like this, why was the child like that?” Maria
    stated that the victim did not move when she called his name. She noticed that
    the victim was “very skinny” and that his foot was bandaged. [The defendant]
    then told Maria to leave the vehicle because [the co-defendant] was angry.
    While [the defendant] was crying, [the co-defendant] told [the defendant] to get
    in the van. As Maria was getting out of the van, the van began to move. Maria
    stated that she was able to get the license plate number of the van to give to the
    police. In a photograph taken of the victim at the park, Maria identified the
    victim’s body and stated that he was wearing the same clothes when she saw
    him on February 20, 2003.
    On cross-examination by [the defendant]’s counsel, Maria testified that
    [the defendant] was scared when [the co-defendant] became angry at her. She
    stated that [the co-defendant] asked her (Maria) to leave the van when she was
    asking questions about the victim.
    Maria was recalled to testify by the State. She testified that she asked
    [the co-defendant] why he did not give the victim any medicine or take the
    victim to the doctor. [The co-defendant] replied that “since he wasn’t [the
    victim’s] father he didn’t have any reason to want to make [the victim] get
    better.” Maria then asked [the co-defendant] why he took the victim away
    from his father. [The co-defendant] said that “he didn’t want to bring [the
    victim] but that [expletive referring to [the defendant]] wanted it to happen.”
    -4-
    On cross-examination by [the co-defendant’s] counsel, Maria
    acknowledged that she did not mention the above conversation with [the co-
    defendant] in her sworn affidavit.
    Juan Sanchez (“Juan”), Maria’s brother-in-law, testified that Maria
    asked him to call the police after her encounter with [the co-defendant] and [the
    defendant]. Juan also officially identified the victim’s body when it was found
    in the park.
    Keith Sutherland, a detective with the Metropolitan Nashville Police
    Department, testified that fugitive extradition warrants were issued for [the co-
    defendant] and [the defendant]. Detective Sutherland stated that he assisted in
    transporting [the co-defendant] and [the defendant] from Mexico back to
    Nashville.
    Sara Bruner, a detective with the Youth Services Division of the
    Metropolitan Nashville Police Department, testified that she was assigned to
    investigate the victim’s death. She received a report taken by patrol officers
    that some children were “in poor condition” and “in a state of shock”. On
    February 21, 2003, as part of Det. Bruner’s investigation, she telephoned Juan
    Sanchez whose number was listed in the report. Based on her conversation
    with Sanchez, Det. Bruner issued a notice to other police officers to be on the
    look out for the van [the co-defendant] and [the defendant] were driving. Days
    later, Det. Bruner learned that the victim was found dead in a park. She stated
    that [the co-defendant] and [the defendant] were the only suspects in the case.
    In 2006, Det. Bruner learned that [the defendant] was in Mexico.
    Brad Corcoran, a detective with the Homicide Division of the
    Metropolitan Nashville Police Department, testified that he responded to a call
    that a child’s body was found in West Park. Detective Corcoran stated that the
    victim’s body “appeared [as though] it had been placed [in the park] rather than
    [having] walked there” because the victim did not have any debris on the
    bottom of his socks and there was no debris or vegetation around the victim that
    had been moved. He noticed that the body was fully clothed except for shoes
    or a jacket. Detective Corcoran stated that the body was behind a dirt mound
    and would not have been seen by anyone from the road or the park’s parking
    lot. Detective Corcoran concluded that the body had not been there long
    because it had snowed the night before, and no snow was present on the body.
    There were also several people present in the park on the previous day. On
    February 24, 2003, [the co-defendant] and [the defendant] were named as
    suspects, and warrants were issued for their arrest. After approximately three
    -5-
    years of media coverage and tips, [the co-defendant] and [the defendant] were
    arrested in Mexico and brought back to Nashville.
    Carla Aaron with the Department of Children’s Services testified that all
    caregivers are responsible for providing proper nutrition, medical treatment,
    and a safe environment for a child. After becoming aware of the victim’s
    death, Aaron inquired about past complaints involving the victim and his
    siblings, but none were found. She testified that if a medical provider had seen
    the victim’s condition, the provider should have reported it to the Department
    of Children’s Services.
    Amy R. McMaster, the Deputy Chief Medical Examiner for Davidson
    County and a practicing physician, testified that on February 24, 2003, she
    performed an autopsy of the victim’s body. Dr. McMaster outlined the injuries
    sustained by the victim that were consistent with child abuse. The external
    examination of the victim revealed “multiple injuries of varied ages over
    virtually every surface of [the victim’s] body.” The victim had bandages
    wrapped around his feet and was wearing a diaper. Dr. McMaster concluded
    that the diaper was used to absorb blood caused by scabbing over burns that
    were on his buttocks and genitals. She explained the victim had sustained
    extensive burn injuries to his feet, buttocks, scrotum, and penis. The burn
    injuries were consistent with the victim having been intentionally placed in
    water over 150 degrees by an adult caregiver. She stated that the burns were
    inconsistent with injuries caused by cooking corn cobs. The burns to the
    victim’s feet would have prevented him from walking and the burns to his
    buttocks would have prevented him from sitting comfortably. The burns were
    from a couple of days to a couple of weeks old. Dr. McMaster stated that the
    victim had sustained scars on his face and multiple bruises and puncture
    wounds on other areas of his body. The puncture wounds were consistent with
    having been poked with “some type of pointed instrument.” The injuries on the
    skin were at different stages of healing.
    Examination of the victim’s internal injuries revealed that he had
    sustained blunt trauma to his brain and skull. Changes to his organs “suggested
    [that] he had an infection throughout his body.” Dr. McMaster stated that the
    victim had “fluid that accumulated in different body spaces, which could
    indicate that because of the infection or for other reasons his organs began to
    fail,” and that he would have died from the infection. Dr. McMaster stated that
    the most significant injury to the victim was the blunt force trauma to his head
    consisting of an abrasion on a portion of his left ear, a skull fracture, and
    bleeding around the brain caused by something striking his head. The swelling
    -6-
    of the victim’s brain indicated that the brain injuries were more recently
    sustained. Dr. McMaster stated that the victim likely died within “a couple of
    hours after the head injury was inflicted.” She opined that the blunt force head
    trauma was “non-accidental.” She reasoned that the victim “was not able to get
    up and walk around, interact with his surroundings. [The victim] basically,
    from his burns, would have been immobile. He would have been . . . lying [sic]
    in one place. So there’s really no mechanism for him getting this blunt trauma
    to his head unless it’s inflicted by another individual.” She further opined that
    bruises found on the victim’s right hand possibly indicated that he attempted to
    protect his head or other body parts from the blunt force trauma. Dr. McMaster
    also discovered an old contusion on the right side of the victim’s brain,
    indicating that he had previously sustained blunt force head trauma.
    In order to assist the medical examiner in explaining the autopsy, the
    following photographs of the victim’s body illustrating his injuries were
    admitted into evidence and displayed to the jury: (1) a photograph of the
    victim’s lower back, Exhibit No. 7-E; (2) a photograph of the burns on the
    victim’s back, buttocks, right hand, and elbow, Exhibit No. 7-O; (3) a
    photograph of the burns on the victim’s buttocks, legs, and feet, Exhibit No. 7-
    P; (4) a photograph of the burns on the victim’s legs and feet, Exhibit No. 7-J;
    (5) a photograph of the burns on the victim’s right leg and foot, Exhibit No. 7-
    N; (6) a photograph of the burns on the bottom of the victim’s left foot, Exhibit
    No. 7-X; and (7) a photograph of the injury to the victim’s elbow, Exhibit No.
    7-R.
    Dr. McMaster also testified that the victim’s injuries indicated that he
    had been physically neglected. She stated that the victim had untreated,
    infected burns on his body, and the bacteria from these infections had spread
    throughout his body. She also stated that the victim was “very thin” and
    “malnourished . . . . [H]is ribs were very easily seen beneath his skin.” At the
    time of the victim’s death, he weighed thirty-four pounds with “just a little bit
    of thick fluid” in his stomach. Dr. McMaster did not recall examining the
    victim’s colon or large bowel contents to determine if he had recently eaten.
    Despite the victim’s blunt trauma to his head, Dr. McMaster stated the victim
    would have died if the infections from the burns remained untreated. Based on
    the combination of these injuries, Dr. McMaster concluded the victim’s cause
    of death was Battered Child Syndrome, “a medical diagnosis used to describe
    a child who has been subjected to repeated bouts of severe physical child
    abuse.” The term is also used to characterize injuries involving neglect. Dr.
    McMaster stated that the manner of the victim’s death was homicide.
    -7-
    Neither [the co-defendant] nor [the defendant] presented any proof at
    trial.
    State v. Genaro Edgar Espinosa Dorantes (Dorantes I), M2007-01918-CCA-R3-CD, 
    2009 WL 4250431
    , at *1-6 (Tenn. Crim. App., at Nashville, Nov. 30, 2009), aff’d in part, rev’d
    rev’d in part 
    331 S.W.3d 370
    (Tenn. 2011).
    After hearing the evidence, the jury convicted the defendant of felony murder and
    aggravated child abuse. The court held a sentencing hearing on May 25, 2007, and it affirmed
    the defendant’s mandatory life sentence with the possibility of parole for the felony murder
    conviction and sentenced the defendant to a consecutive twenty-year sentence for the
    aggravated child abuse conviction.
    The defendant’s trial counsel did not file a timely motion for new trial. Trial counsel
    and the state submitted an agreed order for the trial court to hear the untimely motion for new
    trial; however, the trial court denied the motion.
    The defendant filed a petition for post-conviction relief on April 8, 2008, alleging that
    her trial counsel was ineffective for failing to file a motion for new trial and notice of appeal.
    The court appointed post-conviction counsel and the post-conviction court granted the
    defendant’s request for a delayed appeal. The defendant filed her motion for new trial, and
    the trial court denied the motion. The defendant now appeals.
    Analysis
    On appeal, the defendant argues that (1) the evidence was insufficient to support her
    aggravated child abuse and felony murder convictions; (2) her felony murder conviction is
    unconstitutional; (3) the trial court erred when it failed to require the state to elect an incident
    of neglect; (4) the trial court erred when it refused to allow Maria to testify regarding bruises
    on the defendant’s face; (5) the trial court erred when it allowed certain photographs into
    evidence; (6) the trial court erred in overruling the defendant’s objection to the use of the term
    Battered Child Syndrome as the cause of the victim’s death; and (7) the trial court erred by
    ordering that the defendant serve her sentences consecutively.
    1. Sufficiency of the Evidence
    The defendant argues that the record is insufficient to support both her conviction for
    first degree felony murder based on aggravated child abuse and her conviction for aggravated
    child abuse. Regarding her aggravated child abuse conviction, the defendant contends that
    “the evidence was insufficient for the trier of fact to find that [she] purposely caused injury
    to the victim, that she neglected the victim’s injuries, or that she acted with [the co-defendant]
    -8-
    in neglecting or abusing the victim.” She further contends that because the evidence was
    insufficient for the jury to convict her of aggravated child abuse, the evidence was insufficient
    to convict her of felony murder based on aggravated child abuse.
    It is well-established that once a jury finds a defendant guilty, his or her presumption
    of innocence is removed and replaced with a presumption of guilt. State v. Evans, 
    838 S.W.2d 185
    , 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the burden
    of demonstrating to this court why the evidence will not support the jury’s verdict. State v.
    Carruthers, 
    35 S.W.3d 516
    , 557-58 (Tenn. 2000); State v. Tuggle, 
    639 S.W.2d 913
    , 914
    (Tenn. 1982). To meet this burden, the defendant must establish that no “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); State v. Evans, 
    108 S.W.3d 231
    , 236 (Tenn. 2003); see
    also Tenn. R. App. P. 13(e). In contrast, the jury’s verdict approved by the trial judge
    accredits the state’s witnesses and resolves all conflicts in favor of the state. State v. Harris,
    
    839 S.W.2d 54
    , 75 (Tenn. 1992). The state is entitled to the strongest legitimate view of the
    evidence and all reasonable inferences which may be drawn from that evidence. Carruthers,
    35 S.W.3d at 558. Questions concerning the credibility of the witnesses, conflicts in trial
    testimony, the weight and value to be given the evidence, and all factual issues raised by the
    evidence are resolved by the trier of fact and not this court. State v. Bland, 
    958 S.W.2d 651
    ,
    659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the evidence. State v. Rice,
    
    184 S.W.3d 646
    , 662 (Tenn. 2006). Likewise, we do not replace the jury’s inferences drawn
    from the circumstantial evidence with our own inferences. State v. Reid, 
    91 S.W.3d 247
    , 277
    (Tenn. 2002).
    A defendant may be convicted on the basis of direct or circumstantial evidence or a
    combination of both. State v. Winters, 
    137 S.W.3d 641
    , 654 (Tenn. Crim. App. 2003); see
    also State v. Pendergrass, 
    13 S.W.3d 389
    , 392-93 (Tenn. Crim. App. 1999). In fact,
    circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 
    726 S.W.2d 896
    , 899-900 (Tenn. 1987). Moreover, the state does not have the duty to exclude
    every other hypothesis except that of guilt. See Dorantes II, 331 S.W.3d at 381 (adopting the
    United States Supreme Court standard that the jury is only required to weigh evidence,
    whether direct or circumstantial, against the reasonable doubt standard); see also State v.
    James, 
    315 S.W.3d 440
    , 455 n. 14 (Tenn. 2010) (noting that federal courts have rejected the
    notion that the government has a duty to exclude every other hypothesis save that of the
    defendant’s guilt). “Circumstantial evidence in this respect is intrinsically no different from
    testimonial evidence.” Holland v. United States, 
    348 U.S. 121
    , 140 (1954). Therefore, when
    considering the sufficiency of evidence, we treat direct and circumstantial evidence the same.
    A. Aggravated Child Abuse
    -9-
    To sustain the defendant’s conviction for aggravated child abuse, the state had to prove
    that the defendant committed the offense of child abuse or neglect, and the conduct resulted
    in serious bodily injury to the child. See Tenn. Code Ann. § 39-15-402(a)(1). Child abuse
    occurs when a person “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). Bodily
    injury includes “a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary
    illness or impairment of the function of a bodily member, organ, or mental faculty . . . .” Id.
    § 39-11-106(a)(2). “‘Serious bodily’ injury means bodily injury that involves: [a] substantial
    risk of death; [p]rotracted unconsciousness; [e]xtreme physical pain; [p]rotracted or obvious
    disfigurement; or [p]rotracted loss or substantial impairment of a function of a bodily
    member, organ or mental faculty[.]” Id. § 39-11-106(a)(34)(A)-(E).
    The Tennessee Supreme Court, in State v. Mateyko, 
    53 S.W.3d 666
    , 668 n. 1 (Tenn.
    2001), described the child abuse and neglect statute as a single offense which a defendant may
    commit “through one of two courses of conduct: child abuse through injury and child abuse
    through neglect.” (citing State v. Hodges, 
    7 S.W.3d 609
    , 622 (Tenn. Crim. App. 1998)).
    Similarly, the state may establish aggravated child abuse by either of these methods, in
    addition to serious bodily injury to the child. Tenn. Code Ann. § 39-15-402(a)(1) (Supp.
    2002); Hodges, 7 S.W.3d at 622-23; State v. Ducker, 
    27 S.W.3d 889
    , 895-96 (Tenn. 2000).
    More specifically, in Hodges, this court held that the term “child abuse,” as charged in an
    indictment, also included child neglect. Hodges, 7 S.W.3d at 622-23. The Hodges court
    reasoned that “[c]hild abuse as defined in § 39-15-401 encompasses § 39-15-401(a) in its
    entirety[.]” Id. at 623. Additionally, this court has concluded that “the legislature fully
    intended for aggravated child abuse to include child abuse through neglect that results in
    serious [bodily] injury. The language of the statute supports such an interpretation.” State
    v. John and Rita Adams, No. 02C01-9707-CR-00246, 
    1998 WL 389066
    , at *4 (Tenn. Crim.
    App., at Jackson, July 14, 1998), aff’d, 
    24 S.W.3d 289
     (Tenn. 2000); but see State v. Denise
    Maupin, No. 272, 
    1991 WL 197420
    , at * 5 (Tenn. Crim. App., at Knoxville, Oct. 7, 1991),
    (stating that child abuse as proscribed in a child abuse murder statute did not include child
    neglect) aff’d, 
    859 S.W.2d 313
     (Tenn. 1993).
    A defendant “is criminally responsible as a party to an offense if the offense is
    committed by the person’s own conduct, by the conduct of another for which the person is
    criminally responsible, or by both.” Tenn. Code Ann. § 39–11–401(a). “Each party to an
    offense may be charged with commission of the offense.” Tenn. Code Ann. § 39–11–401(b).
    Criminal responsibility, is an alternative theory under which the state may establish the
    defendant’s guilt based upon the conduct of another. State v. Lemacks, 
    996 S.W.2d 166
    , 170
    (Tenn. 1999). A defendant may be held criminally responsible for an offense committed by
    the conduct of another if, “[a]cting with intent to promote or assist the commission of the
    offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids,
    or attempts to aid another person to commit the offense [.]” Tenn. Code Ann. §
    -10-
    39–11–402(2). An individual’s participation may be inferred from presence and
    companionship with the perpetrator of a felony before and after the commission of the crime.
    See State v. Phillips, 
    76 S.W.3d 1
    , 9 (Tenn. Crim. App. 2001). Moreover, the state is not
    required to demonstrate any specific act or deed. State v. Ball, 
    973 S.W.2d 288
    , 293 (Tenn.
    Crim. App. 1998). In order to be convicted of the crime, the evidence must establish that the
    defendant in some way knowingly and voluntarily shared in the criminal intent of the crime
    and promoted its commission. State v. Maxey, 
    898 S.W.2d 756
    , 757 (Tenn. Crim. App.
    1994); State v. Foster, 
    755 S.W.2d 846
    , 848 (Tenn. Crim. App. 1988). The criminal
    responsibility statute “is a restatement of the principles of Tennessee common law which
    provide equal criminal liability for principals, accessories before the fact, and aiders and
    abettors.” State v. Carson, 
    950 S.W.2d 951
    , 953 (Tenn. 1997) (citation omitted). The jury
    is not obligated “to determine unanimously whether a defendant is either directly liable or
    criminally responsible for the harm inflicted. Dorantes II, 
    331 S.W.3d 370
    , 389 (Tenn. 2011)
    (quoting State v. Nunn, No. E2007–02333–CCA–R3–CD, 
    2009 WL 4790211
    , at *25 (Tenn.
    Crim. App., at Knoxville, Dec. 14, 2009), perm. app. denied (Tenn. 2010)).
    The proof at trial, viewed in the light most favorable to the state, established that the
    defendant and co-defendant abducted the victim on June 18, 2002 and shared physical custody
    of the victim until his death. It is undisputed that the victim was under eight years old and
    suffered serious bodily injury. The medical examiner’s autopsy showed that the victim
    suffered second and third degree burns within two weeks of his death as the result of being
    immersed in scalding hot water, buttocks and feet first, in a fetal-like position. Dr. McMaster,
    who conducted the autopsy, concluded that the burns could not have been accidental. In
    addition to the burns, the victim’s skull was fractured from blunt force trauma. Dr. McMaster
    likewise concluded that the blow to the victim’s head could not have been accidental because
    of a wound to the victim’s right hand that was consistent with the victim trying to protect
    himself from attack. The autopsy concluded that the immediate cause of death was blunt
    trauma injury to the brain and skull; however, Dr. McMaster stated that the infections from
    the burns would have inevitably been fatal without medical treatment.
    During the time of his abuse and up to his death, the victim was in the exclusive care
    of the defendant and co-defendant. The victim was visibly injured and in need of medical
    attention. The co-defendant and the defendant knew that the victim needed medical attention,
    yet neither of them sought medical treatment for the victim. When asked why he did not take
    the child to the doctor, the co-defendant stated,“since he wasn’t [the victim’s] father he didn’t
    have any reason to want to make [the victim] get better.” The co-defendant further stated that
    the defendant had wanted to take the victim from Texas, and he did not. There was no
    evidence that the co-defendant coerced the defendant or that the defendant attempted to report
    the abuse or otherwise prevent the victim from being further abused. Likewise, the defendant
    never reported that the co-defendant was abusing her. Instead, whenever someone expressed
    -11-
    concern about the victim’s condition, the defendant provided excuses, which the medical
    testimony refuted, and fled with the co-defendant. When speaking with her sisters, the
    defendant asked for money allegedly for medicine to treat the victim’s injuries and told
    Antonia she was going on a trip, but she never indicated that she was abused, held captive
    against her will, or afraid of the co-defendant. Moreover, after the victim’s death, the
    defendant fled to Mexico with the co-defendant where they hid out and evaded arrest for
    nearly three years. “[F]light and attempts to evade arrest are relevant as circumstances from
    which, when considered with other facts and circumstances in evidence, a jury can properly
    draw an inference of guilt.” State v. Zagorski, 
    701 S.W.2d 808
    , 813 (Tenn. 1985).
    We conclude that the circumstantial evidence presented to the jury created a
    “reasonable inference that the defendant either knowingly, other than by accidental means,
    committed aggravated child abuse as the primary actor or, at a minimum, intentionally
    solicited, directed, aided, or attempted to aid the co-defendant in the commission of the
    offenses.” Dorantes II, 331 S.W.3d at 387-8 (citing Tenn. Code Ann. § 39–11–402(2)).
    “[P]hysical participation in the crime is not an essential element under the criminal
    responsibility theory; encouragement of the crime is enough.” Id. at 388. Thus, we conclude
    that the evidence was sufficient for the jury to find the defendant guilty of aggravated child
    abuse through injury under a theory of criminal responsibility.
    Furthermore, even if we did not find the defendant criminally responsible for the co-
    defendant’s behavior, the facts presented by the state support the jury’s verdict of guilty for
    the aggravated child abuse based upon the defendant’s neglect of the victim, which adversely
    affected the victim’s health and welfare and resulted in serious bodily injury. See Tenn. Code
    Ann. §§ 39-15-401, -402. The defendant knew that the victim had burns on his body and
    needed treatment. The evidence is clear that the victim’s injuries were obvious, and he was
    visibly in need of medical attention. The defendant’s sisters testified that upon viewing the
    victim they became concerned with his health. Antonia stated that when she saw the victim
    in the van, he appeared to be sitting in a position which protected his buttocks and would not
    hurt. Maria testified that the victim was unresponsive, “very skinny,” and had a bandaged
    foot when she saw him. The medical examiner testified that the victim was physically
    neglected. She stated that the victim’s burns were infected, which indicated they were
    between two days to two weeks old. Further, the evidence showed that the defendant was
    aware that the victim needed medical treatment and sought money allegedly for treatment, but
    there was no evidence that the defendant ever took the victim to a doctor, a hospital, or even
    purchased the medicine for which she allegedly sought money. Thus, we conclude that the
    evidence, even though entirely circumstantial, is sufficient to support the jury’s finding of the
    defendant’s guilt beyond a reasonable doubt of aggravated child abuse.
    B. Felony Murder
    -12-
    The Tennessee General Assembly amended the felony murder statute, effective July
    1, 1998, by adding aggravated child neglect to the list of felonies upon which a felony murder
    charge could be based: “First degree murder is: . . . (2) A killing of another in the perpetration
    of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,
    kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy[.]” Dorantes
    II, 331 S.W.3d at 383 (citing Act of Apr. 29, 1998, ch. 1040, § 3, 1998 Tenn. Pub. Acts 911
    (codified at Tenn. Code Ann. § 39-13-202(a) (Supp.1998)). In amending the statute, the
    General Assembly provided “two separate and distinct courses of conduct, aggravated child
    abuse and aggravated child neglect, upon which a felony murder may be predicated.” Id. at
    384. Thus, charging a defendant with murder in the perpetration of aggravated child abuse
    does not charge murder in the perpetration of aggravated child neglect. Id. (citing Dorantes
    I, 
    2009 WL 4250431
    , at *17 (Tipton, P.J., dissenting)).
    Upon finding that the evidence supports the aggravated child abuse conviction under
    a theory of criminal responsibility, we conclude that the evidence was also sufficient to enable
    a rational trier of fact to find the defendant guilty of first degree felony murder. There is no
    question that a killing has occurred within the meaning of Tennessee Code Annotated section
    39-13-202(a)(2). Although the state could not prove which of the two defendants
    administered the fatal injuries, there can be no mistake that an act of abuse resulted in serious
    bodily injury within the meaning of Tennessee Code Annotated section 39-15-402(a)(1) while
    the victim was in the defendants’ care. The evidence presented at trial showed that Battered
    Child Syndrome caused the victim’s death. Although the victim died within a few hours of
    the blunt force trauma to his head, Dr. McMaster stated that the victim would have eventually
    died if the infections from the burns remained untreated. The record shows that the evidence
    presented by the state supported the jury’s guilty verdict for the felony murder committed
    during the perpetration of aggravated child abuse. Accordingly, the defendant is not entitled
    to relief on this issue.
    2. Constitutionality of the defendant’s felony murder conviction
    The defendant contends that her conviction for felony murder under Tennessee Code
    Annotated section 39-13-202 is unconstitutional because the statute “deprives the accused the
    right to a trial by jury as guaranteed by the United States and Tennessee Constitutions.” In
    State v. Godsey, the Tennessee Supreme Court rejected the claim that our felony murder
    “statute violates due process by failing to include a culpable mental state.” 
    60 S.W.3d 759
    ,
    773 (Tenn. 2001). Under Tennessee law, the felony murder doctrine requires that the state
    prove that the defendant committed the underlying felony with the applicable culpable mental
    state, and the doctrine allows the transfer of that culpability to the homicide. Id. “[W]here
    the offense is committed in the perpetration of a designated felony, the elements of malice,
    deliberation and premeditation are implied.” State v. Middlebrooks, 
    840 S.W.2d 317
    , 336
    (Tenn. 1992) (citing State v. Barber, 
    753 S.W.2d 659
    , 671 (Tenn.1988); State v. Norris, 684
    -13-
    S.W.2d 650, 653 (Tenn. Crim. App. 1984)) superseded by statute as stated in State v. Reid,
    
    91 S.W.3d 247
    , 306 (Tenn.2002). Thus, our supreme court has determined that the transfer
    of the culpable mental state, which our felony murder statute allows, is constitutional.
    Godsey, 60 S.W.3d at 773. Published precedent binds us, and, therefore, we conclude that the
    defendant’s felony murder conviction is constitutional. See Tenn. S. Ct. R. 4(G)(2)
    (“Opinions reported in the official reporter, however, shall be considered controlling authority
    for all purposes unless and until such opinion is reversed or modified by a court of competent
    jurisdiction.”). The defendant is not entitled to relief on this issue.
    3. Failure of trial court to require the state to elect an incident of neglect
    The defendant argues that the trial court committed an error when it failed to require
    the state to elect which injury or event it relied upon to convict the defendant for neglect. The
    defendant contends that the trial court’s failure deprived her of the fundamental right to a
    unanimous jury verdict.
    Our supreme court has held that where a defendant commits multiple offenses against
    a victim, the state has a duty to elect which act or occurrence relates to which particular
    charged offense for which the state seeks a conviction. State v. Adams, 
    24 S.W.3d 289
    , 294
    (Tenn. 2000). The court, in Adams, elaborated upon the purposes of election in the following
    manner:
    First, [election] ensures that a defendant is able to prepare for and make a
    defense for a specific charge. Second, election protects a defendant against
    double jeopardy by prohibiting retrial on the same specific charge. Third, it
    enables the trial court and the appellate courts to review the legal sufficiency
    of the evidence. The most important reason for the election requirement,
    however, is that it ensures that the jurors deliberate over and render a verdict
    on the same offense. [State v.] Brown, 992 S.W.2d [389, 391 (Tenn. 1999)];
    [State v.] Burlison, 501 S.W.2d [801, 803 (Tenn. 1973)]. This right to a
    unanimous verdict has been characterized by this Court as “fundamental,
    immediately touching on the constitutional rights of an accused . . . .” Burlison,
    501 S.W.2d at 804.
    Id. Additionally, our supreme court has noted that:
    election at the end of the state’s proof does little to aid the defendant in
    preparing his defense. A defendant is obviously better served by requesting a
    bill of particulars before trial . . . . The third Burlison rationale addresses the
    most serious concern: the well-established right under our state constitution to
    a unanimous jury verdict before a criminal conviction is imposed. For this
    -14-
    reason, when evidence suggests that a defendant has committed many . . .
    crimes against a victim, the court must require the state to elect the particular
    offenses for which convictions are sought.
    State v. Shelton, 
    851 S.W.2d 134
    , 137 (Tenn. 1993)(internal citations omitted). When the
    evidence does not establish that multiple offenses were committed, the need for election never
    arises. Adams, 24 S.W.3d at 294. Likewise, “[i]n cases when the nature of the charged
    offense is meant to punish a continuing course of conduct, however, election of offenses is
    not required because the offense is, by definition, a single offense.” Id.
    The offense of aggravated child abuse through neglect is a continuing course of
    conduct. See id. at 296. (holding that “the General Assembly intended for the offense of
    aggravated child abuse through neglect to punish a continuing course of knowing conduct
    beginning with the first act or omission that causes adverse effects to a child’s health or
    welfare”). “Child abuse through neglect continues ‘until the person responsible for the
    neglect takes reasonable steps to remedy the adverse effects to the child’s health and welfare
    caused by the neglect.’” Mateyko, 53 S.W.3d at 671 (quoting Adams, 24 S.W.3d at 296).
    Given the defendant’s knowledge and awareness of the victim’s obvious physical
    injuries, as stated in Section 1 above, her decision to knowingly forego medical treatment, at
    whatever point in time she made it, was child neglect. This neglect continued until the victim
    ultimately died. In this case, the defendant’s neglect was “continuous and without
    interruption,” and we cannot break the defendant’s conduct into “separate and discrete periods
    of time and space.” Adams, 24 S.W.3d at 297. Accordingly, we conclude that the state was
    not required to make an election of offenses, and the trial court did not commit an error in
    failing to require the state to make an election.
    It does not appear that the defendant also challenges the trial court’s failure to require
    the state to make an election of offenses regarding the felony murder count. To ensure a
    thorough review, however, we have reviewed the issue and conclude that election was not
    required in this case. A defendant convicted of felony murder by aggravated child abuse
    “could only have been convicted of the same offense: a killing committed in perpetration of
    or attempt to perpetrate aggravated child abuse . . . .” Hodges, 7 S.W.3d at 624. Presenting
    alternative means for culpability for one offense does not threaten the defendant’s
    constitutional rights. Id. Under the law at the time of the instant offense, the state was not
    required to elect a theory of prosecution. See id. at 625. Thus, the defendant is not entitled
    to relief on this issue for either count.
    4. Testimony regarding bruising on the defendant’s face
    -15-
    The defendant contends that the trial court erred when it refused to allow the defense
    to question Maria about the bruises which she observed on the defendant’s face. The
    defendant claims that the testimony about the bruises on her face was “relevant to show her
    state of mind and/or duress.” The defendant further claims that the trial court’s not allowing
    the testimony regarding the defendant’s bruises deprived her of presenting a defense of
    duress.
    The admissibility of evidence is a matter committed to the sound discretion of the trial
    court and will not be overturned on appeal without a clear showing of abuse of that discretion.
    State v. Porterfield, 
    746 S.W.2d 441
    , 450 (Tenn. 1988). “[T]he modern trend is to vest more
    discretion in the trial judge’s rulings on admissibility.” State v. Leach, 
    148 S.W.3d 42
    , 63
    (Tenn. 2004) (citing Carruthers, 35 S.W.3d at 577).
    Evidence is relevant if it has “any tendency to make the existence of any fact that is
    of consequence to the determination of the action more probable or less probable than it
    would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence is generally
    admissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its
    probative value is substantially outweighed by the danger of unfair prejudice, confusion of
    the issues, or misleading the jury, or by considerations of delay, waste of time, or needless
    presentation of cumulative evidence. Tenn. R. Evid. 403.
    In a jury out hearing, the trial court ruled that Maria’s testimony regarding bruises on
    the defendant’s face neither showed that the defendant was under duress or afraid nor that
    the co-defendant caused the bruises. Thus, the trial court ruled that the testimony was
    irrelevant. We agree. There was no evidence that the co-defendant caused the bruises.
    Maria testified that the defendant was afraid that something would happen to Maria, and
    there was no evidence that the defendant was afraid for her own safety. Maria’s testimony
    regarding the bruising on the defendant’s face showed nothing more than the fact that the
    defendant had bruises when Maria saw her.
    We now turn to whether the trial court’s exclusion of testimony regarding bruises on
    her face denied the defendant the right to present the defense of duress. In State v. Brown,
    
    29 S.W.3d 427
    , 432 (Tenn. 2000), our supreme court recognized that “[t]he Sixth
    Amendment and the Due Process Clause of the Fourteenth Amendment clearly guarantee a
    criminal defendant the right to present a defense which includes the right to present witnesses
    favorable to the defense.” In State v. Kiser, 
    284 S.W.3d 227
     (Tenn. 2009), our supreme court
    noted the limits of its previous ruling, stating:
    We also recognized in Brown, however, that a defendant’s right to present
    witnesses is not absolute. [Brown, 29 S.W.3d at 432]. Rather, “[i]n the
    exercise of this right, the accused, as is required of the State, must comply with
    -16-
    established rules of procedure and evidence designed to assure both fairness
    and reliability in the ascertainment of guilt and innocence.” Chambers v.
    Mississippi, 
    410 U.S. 284
    , 302 . . . (1973).
    Kiser, 284 S.W.3d at 267. In determining whether the exclusion of evidence violated a
    defendant’s right to present a defense, this court must “consider whether: (1) the excluded
    evidence is critical to the defense; (2) the evidence bears sufficient indicia of reliability; and
    (3) the interest supporting exclusion of the evidence is substantially important.” Brown, 29
    S.W.3d at 433-34 (citing Chambers, 410 U.S. at 298-301.).
    In our view, Maria’s testimony that the defendant had bruises on her face was not
    critical to her defense. There was no evidence the defendant was afraid of the co-defendant,
    that the co-defendant coerced her, or that the co-defendant caused the bruises. The bruises
    on her face alone would not show that the defendant was under duress or provide any insight
    as to her complicity in the crimes. Therefore, we conclude that the trial court did not abuse
    its discretion in preventing Maria from testifying about the bruises on the defendant’s face.
    5. Admission of photographs into evidence
    The defendant argues that the trial court erred in allowing the state to introduce certain
    photographs of the victim’s body because “they were not relevant to prove any fact at issue
    in this case,” and their sole purpose was to inflame the jury. The state asserts that the
    defendant waived the issue by failing to include the objectionable photographs in the record
    on appeal. In the alternative, the state contends that it used the photographs to show “the
    nature of the injuries inflicted upon the victim.” Thus, the state asserts that they were “highly
    relevant,” and their probative value outweighed the risk of unfair prejudice.
    The admissibility of evidence is a matter committed to the sound discretion of the trial
    court and will not be overturned on appeal without a clear showing of abuse of that
    discretion. Porterfield, 746 S.W.2d at 450. “[T]he modern trend is to vest more discretion
    in the trial judge’s rulings on admissibility.” Leach, 148 S.W.3d at 63 (citing Carruthers,
    35 S.W.3d at 577.).
    Evidence is relevant if it has “any tendency to make the existence of any fact that is
    of consequence to the determination of the action more probable or less probable than it
    would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence is generally
    admissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its
    probative value is substantially outweighed by the danger of unfair prejudice, confusion of
    the issues, or misleading the jury, or by considerations of delay, waste of time, or needless
    presentation of cumulative evidence. Tenn. R. Evid. 403.
    -17-
    Rules 401 and 403 of the Tennessee Rules of Evidence govern admissibility of
    photographs. See State v. Banks, 
    564 S.W.2d 947
    , 949-951 (Tenn. 1978). The trial court
    must first determine whether the photograph is relevant to an issue that the jury must decide.
    Tenn. R. Evid. 401; see also State v. Cole, 
    155 S.W.3d 885
    , 912 (Tenn. 2005). The trial
    court must then apply Rule 403 to determine whether the evidence’s “probative value is
    substantially outweighed by the danger of unfair prejudice.” The Tennessee Supreme Court
    has explained:
    [Rule 403] is a rule of admissibility, and it places a heavy burden on the party
    seeking to exclude the evidence. Excluding relevant evidence under this rule
    is an extraordinary remedy that should be used sparingly and persons seeking
    to exclude otherwise admissible and relevant evidence have a significant
    burden of persuasion.
    State v. James, 
    81 S.W.3d 751
    , 757-58 (Tenn. 2002) (internal quotations and citations
    omitted).
    The record on appeal is void of the photographs that the defendant claims that trial
    court should not have admitted into evidence. It is the duty of the accused to provide a record
    that conveys a fair, accurate, and complete account of what happened concerning the issues
    which form the basis of the appeal. Tenn. R. App. P. 24(b); see State v. Taylor, 
    992 S.W.2d 941
    , 944 (Tenn. 1999). Ordinarily, without an adequate record we would be unable to review
    the merits of the omitted issues, and we would “presume that the trial court’s ruling was
    adequately supported by the record.” State v. Beech, 
    744 S.W.2d 585
    , 588 (Tenn. Crim. App.
    1987). However, “[t]he rule has long since been firmly established in this State that a Court
    may take judicial knowledge of facts which it has learned in an earlier hearing of the same
    case and of what it has done at a previous hearing of that case.” Pruitt v. State, 
    460 S.W.2d 385
    , 395 (Tenn. Crim. App. 1970).
    Here, the court tried the defendant and co-defendant together. The co-defendant raised
    the issue of the admissibility of the photographs to which the defendant objects in his direct
    appeal, and another panel of this court has already ruled on the admissibility of the
    photographs in question during the co-defendant’s direct appeal. This court concluded that:
    Dr. McMaster testified that the autopsy photos were necessary to explain
    her medical testimony. The record reflects that a total of thirty-nine (39) photographs were
    submitted for the trial court to review. Although the trial court engaged in a lengthy
    discussion, considering the relevance of the photos as well as weighing their probative value
    against any unfair prejudicial effect, the trial court did not specify which photos it referred to
    on the record. Nevertheless, the trial court excluded twenty-six (26) of the thirty-nine (39)
    photographs. We have also specifically reviewed the photographs admitted during the
    -18-
    medical examiner’s testimony and conclude that the trial court did not abuse its discretion by
    their admission. Accordingly, [co-defendant] is not entitled to relief on this issue.
    Dorantes I, 
    2009 WL 4250431
    , at *11. We take judicial notice of this court’s ruling on the
    photographs during the co-defendant’s direct appeal. We conclude that the defendant has
    waived the issue of the admission of photographs of the victim. Despite the defendant’s
    waiver, a panel of this court addressed this issue in Dorantes I and concluded that the trial
    court did not abuse its discretion. The defendant is without relief for this issue.
    6. Use of the term Battered Child Syndrome as the cause of the victim’s death
    Next, the defendant argues that the trial court erred when it allowed the state’s expert
    to refer to the victim’s cause of death as Battered Child Syndrome. According to the
    defendant, “[t]he danger of unfair prejudice to [her] clearly outweighed the probative value
    of the use of this term.” The defendant claims that the jury’s hearing the expert’s testimony
    that the victim died due to Battered Child Syndrome was prejudicial because it determined
    the issue of whether the defendant had abused the victim for the jury.
    The admissibility of evidence is a matter committed to the sound discretion of the trial
    court and will not be overturned on appeal without a clear showing of abuse of that discretion.
    Porterfield, 746 S.W.2d at 450. Evidence is relevant if it has “any tendency to make the
    existence of any fact that is of consequence to the determination of the action more probable
    or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Relevant
    evidence is generally admissible. Tenn. R. Evid. 402. However, relevant evidence may be
    excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
    confusion of the issues, or misleading the jury, or by considerations of delay, waste of time,
    or needless presentation of cumulative evidence. Tenn. R. Evid. 403.
    The trial court allowed the state’s expert, Dr. McMaster, to testify regarding the
    victim’s injuries, including the diagnosis of Battered Child Syndrome. Dr. McMaster did not
    use the term broadly or as a generalization. She testified in detail regarding the nature of the
    victim’s injuries and whether the explanation given for the injuries was reasonable. Battered
    Child Syndrome is “a medical diagnosis used to describe a child who has been subjected to
    repeated bouts of severe physical child abuse.” Dorantes I, 
    2009 WL 4250431
    , at *5. The
    defendant admits in her brief that Battered Child Syndrome is an accepted medical diagnosis
    and that the jury would have received the same information about the victim’s injuries and
    physical condition without using the term Battered Child Syndrome. The defendant has not
    shown how Dr. McMaster’s stating an accepted medical diagnosis as the cause of the victim’s
    death is unfairly prejudicial. Accordingly, we conclude that the defendant is without relief
    for this issue.
    -19-
    7. Consecutive sentencing
    Finally, the defendant argues that the trial court erred when it ordered that she serve
    her sentences consecutively. Specifically, the defendant contends that the trial court erred by
    finding that she was a dangerous offender and that consecutive sentencing was necessary to
    protect the public from further criminal conduct by her.
    An appellate court’s review of a challenged sentence is de novo on the record with a
    presumption that the trial court’s determinations are correct. Tenn. Code Ann. §
    40-35-401(d). The Sentencing Commission Comments to this section of the statute indicate
    that the defendant bears the burden of establishing that the sentence is improper. When the
    trial court follows the statutory sentencing procedure and considers the factors and principles
    relevant to sentencing, this court may not disturb the sentence. See State v. Carter, 
    254 S.W.3d 335
    , 344-45 (Tenn. 2008).
    Generally, it is within the discretion of the trial court to impose consecutive sentences
    if it finds by a preponderance of the evidence that at least one of following statutory criteria
    applies:
    (1) [t]he defendant is a professional criminal who has knowingly devoted such
    defendant’s life to criminal acts as a major source of livelihood;
    (2) [t]he defendant is an offender whose record of criminal activity is extensive;
    (3) [t]he defendant is a dangerous mentally abnormal person so declared by a
    competent psychiatrist who concludes as a result of an investigation prior to
    sentencing that the defendant’s criminal conduct has been characterized by a
    pattern of repetitive or compulsive behavior with heedless indifference to
    consequences;
    (4) [t]he defendant is a dangerous offender whose behavior indicates little or no
    regard for human life, and no hesitation about committing a crime in which the
    risk to human life is high;
    (5) [t]he defendant is convicted of two (2) or more statutory offenses involving
    sexual abuse of a minor with consideration of the aggravating circumstances
    arising from the relationship between the defendant and victim or victims, the
    time span of defendant’s undetected sexual activity, the nature and scope of the
    sexual acts and the extent of the residual, physical and mental damage to the
    victim or victims;
    (6) [t]he defendant is sentenced for an offense committed while on probation;
    or
    (7) [t]he defendant is sentenced for criminal contempt.
    Tenn. Code Ann. § 40-35-115(b).
    -20-
    If the court concludes that the defendant is a dangerous offender under Tennessee Code
    Annotated section 40-35-115(b)(4), it must make two further determinations in addition to
    applying general sentencing principles. State v. Imfeld, 
    70 S.W.3d 698
    , 708 (Tenn. 2002).
    First, it must find an extended sentence is necessary to protect the public from further criminal
    conduct by the defendant, and, second, it must find consecutive sentencing to be reasonably
    related to the severity of the offenses. State v. Wilkerson, 
    905 S.W.2d 933
    , 939 (Tenn. 1995).
    However, such specific factual findings are unnecessary for the other categories of Tennessee
    Code Annotated section 40-35-115(b). State v. Lane, 
    3 S.W.3d 456
    , 461 (Tenn. 1999).
    Here, the trial court found that the defendant was a dangerous offender “whose
    behavior indicate[d] little or no regard for human life, and no hesitation about committing a
    crime in which the risk to human life [was] high.” We also conclude that the trial court found
    the Wilkerson factors by concluding that because of the manner in which the defendant
    committed the crime against her child, the attempts of the defendant and co-defendant to hide
    the abuse, and the defendant’s not seeking treatment for the victim made consecutive
    sentencing necessary. A trial court need only find one statutory criterion to support an
    imposition of consecutive sentences. See State v. Black, 
    924 S.W.2d 912
    , 917 (Tenn. Crim.
    App. 1995). The record does not preponderate against the trial court’s findings, and the
    defendant does not present any statutory or case law to support her position that the trial court
    should not have imposed consecutive sentences under the facts of this case. Therefore, we
    conclude that the trial court acted within its discretion when ordering consecutive sentences,
    and the defendant is without relief on this issue.
    Conclusion
    Based on the foregoing, we affirm the judgments of the trial court.
    ___________________________________
    J.C. McLIN, JUDGE
    -21-