State of Tennessee v. Phillip Jerome Gardner, III & Latonia Maria Gardner ( 2024 )

10/30/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 14, 2024 Session
STATE OF TENNESSEE v. PHILLIP JEROME GARDNER, III &
LATONIA MARIA GARDNER
Appeal from the Criminal Court for Davidson County
No. 2019-C-1895 Walter C. Kurtz, Judge
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No. M2022-01131-CCA-R3-CD
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In a joint trial, a Davidson County jury convicted Phillip Jerome Gardner, III, and Latonia
Maria Gardner of felony murder committed in the perpetration of aggravated child neglect
and three counts of aggravated child neglect. Additionally, Latonia Gardner was convicted
of felony murder committed in the perpetration of aggravated child abuse and one count of
aggravated child abuse. Each was sentenced to life plus seventeen years. On appeal, the
Defendants raise separate issues. Ms. Gardner argues that the evidence is insufficient to
support her convictions. She also alleges that the trial court erred when it failed to sever
offenses; improperly admitted expert testimony and video evidence; gave a misleading
supplemental jury instruction; and imposed consecutive sentencing. Mr. Gardner similarly
challenges the sufficiency of the evidence supporting his convictions. He also argues that
the trial court erred when it took under advisement his motion for a judgment of acquittal;
failed to sever the Defendants; failed to exclude evidence of the victim’s prior injuries;
failed to instruct the jury on his alibi defense; and gave the same misleading supplemental
jury instruction. Upon review, the court affirms Ms. Gardner’s conviction and life sentence
for felony murder in perpetration of aggravated child abuse. However, the court agrees
with the parties that the jury was improperly instructed on one aggravated child neglect
count, and we remand that count and its associated felony murder count for a new trial as
to both Defendants. With the parties’ agreement, we also reverse the order for consecutive
sentences in Ms. Gardner’s cases and remand for the trial court to consider the factors
outlined in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Finally, we remand both cases
for entry of corrected judgments of conviction. In all other respects, we respectfully affirm
the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right;
Judgments of the Criminal Court Affirmed in Part, Reversed in Part;
Cases Remanded
TOM GREENHOLTZ, J., delivered the opinion of the court, in which J. ROSS DYER and
KYLE A. HIXSON, JJ., joined.
Phillip Jerome Gardner, III, Pro Se (on appeal), Nashville, Tennessee, and Shaw
Cunningham (at trial), Nashville, Tennessee, for the appellant, Phillip Jerome Gardner, III.
Emma Rae Tennent and Chris Street-Razbadouski (on appeal), Nashville, Tennessee, and
William Allensworth and Jon Wing (at trial), Nashville, Tennessee, for the appellant,
Latonia Marie Gardner.
Jonathan Skrmetti, Attorney General and Reporter; Lacy E. Wilber, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman and
Jeffrey George, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
This case involves a four-year-old child, J.H.,1 who died while in the Defendants’
care. Latonia Gardner was J.H.’s stepmother, and her codefendant, Phillip Jerome Gardner,
was J.H.’s biological father. J.H.’s biological mother had asked the Defendants to care for
J.H. during the holiday season while she worked as a postal carrier for the United States
Postal Service in Ohio. J.H.’s autopsy revealed that he had numerous scars, burn marks,
thermal burns, broken bones, and brain injuries.
A. THE EVENTS LEADING TO DECEMBER 7, 2016
On November 27, 2016, Officer Rico Jones with the Goodlettsville Police
Department received a call from a friend of the Defendants’ teenage daughter, directing
him to the Defendants’ residence. When he arrived at their residence, the Defendants’
teenage daughter met Officer Jones outside and showed him a video that showed a mark
under J.H.’s left eye and marks on his back. Officer Jones then went into the residence
with his supervisor. The Defendants and two other children were inside.
The officers asked the Defendants about J.H.’s injuries, and they told the officers
that he had fallen into the bathtub and injured his eye. As for an explanation for the marks
on his back, the Defendants told the officers that he hurt his back while he was playing
1
It is the policy of this court to identify minor victims by only their initials.
2
outside. Officers then asked J.H. what had happened, and he corroborated the Defendants’
statements. The officers looked at J.H.’s back and saw two to three marks. Officer Jones
observed no other injuries, although he did not look at J.H.’s stomach or buttocks. The two
officers subsequently determined that further investigation was not necessary.
Ten days later, on December 7, 2016, Officers Charles Hausken and David Reid
with the Goodlettsville Police Department responded to a call of an unresponsive child in
possible cardiac arrest at the Defendants’ address. Upon their arrival, Ms. Gardner
answered the door screaming, and she pointed upstairs when one of the officers asked
where the child was. Officer Hausken entered the bathroom and saw J.H. lying on the floor
beside the bathtub with clear liquid in his ear, leading Officer Hausken to assume that he
had drowned.
J.H. did not have a pulse and was cold to the touch. Officer Hausken began
performing CPR. Every time he gave J.H. a breath, J.H. vomited into Officer Hausken’s
mouth. Officer Hausken spit the vomit into the bathtub and then continued CPR.
After paramedics took J.H. to the hospital, Officer Hausken asked Ms. Gardner what
had happened. Ms. Gardner told Officer Hausken that J.H. had started to vomit, so she
placed him over the side of the bathtub, and he subsequently went limp. Five days later,
on December 12, 2016, J.H. passed away.
B. DEPARTMENT OF CHILDREN ’S SERVICES AND LAW ENFORCEMENT
INVESTIGATION
After J.H. arrived at the hospital, the staff called the Department of Children’s
Services (“DCS”) to investigate his injuries. Moneshiuna Perry, an investigative
caseworker, responded and immediately went to J.H.’s hospital room, where he was
unresponsive and on a ventilator. Ms. Perry observed the injuries to J.H.’s body, noting
that his left eye was bruised and had scratches underneath it. She also observed that J.H.
had bruising on the left side of his chest and burns on his buttocks. Ms. Perry concluded
that these injuries were not accidental.
Ms. Perry then spoke with Mr. Gardner, who was calm and showed no emotion
throughout the interview. Mr. Gardner explained that J.H. had lived with him, Ms. Gardner,
and two other children since October 2016. Mr. Gardner also stated that he did not allow
his extended family in his home because they disliked Ms. Gardner.
Mr. Gardner stated that J.H. had been defecating on himself and having various
behavioral issues. Mr. Gardner told Ms. Perry that he punished J.H. by spanking him on
the buttocks with a belt. He further stated that he was frustrated with J.H.’s behavior, did
3
not want to deal with him any longer, and would have driven J.H. back to his mother as
soon as possible if it were an option. Mr. Gardner told Ms. Perry that Ms. Gardner was
“good with the kids” and stayed home to care for them. Mr. Gardner had no issues with
how Ms. Gardner treated J.H.
When Ms. Perry asked about J.H.’s injuries, Mr. Gardner said that his wife told him
that J.H. had fallen once when he got out of the bathtub and fell again when she put him
on the toilet. Ms. Perry further asked Mr. Gardner about the burns on J.H.’s hands, and he
stated that he did not see the burns for two days because he worked. However, he then
elaborated by saying that when he saw the bandages on J.H.’s hands, Ms. Gardner told him
that J.H. was cleaning with bleach and had an allergic reaction. Mr. Gardner confirmed
that he did not take the victim for medical treatment at any point.
Ms. Perry then observed the other two children and found no marks or bruises. She
discovered that they were clean and well-kept, and when asked about discipline, the oldest
child stated that they did not get disciplined. However, she also indicated that J.H. would
get disciplined because Ms. Gardner was frustrated with him when he defecated on himself
and that Ms. Gardner would make J.H. clean up the feces. Ms. Gardner told this child that
the burns on J.H.’s hands were from bleach.
Next, Ms. Perry spoke to Ms. Gardner, who was unhappy that J.H. was living with
them. Ms. Gardner consistently told Mr. Gardner that J.H. needed to return to his mother
because he had several issues; in fact, they attempted to reach her, but she blocked their
calls. She also believed that J.H. was purposefully defecating on himself and acting out
because he missed his mother. She initially stated that J.H. had arrived at their house with
scratches on his back but then later claimed that they were from J.H. scratching his dry
skin.
As for J.H.’s injuries, Ms. Gardner claimed that the eye injury came from her placing
him on the toilet and him falling off. Ms. Gardner said that she had heard a noise in the
bathroom. She found J.H. in the bathtub and assumed the bruise on his forehead came
from him falling in the bathtub. As for the burns on his hands and buttocks, Ms. Gardner
claimed that she found J.H. cleaning the bathtub with bleach one day. However, she could
not confirm the specific type of cleaner he used.
When asked about the events on December 7, Ms. Gardner showed no emotion
while explaining that she had awoken J.H. from a nap and then took him to the bathroom,
where he started vomiting. She claimed that after vomiting, J.H.’s stomach “went limp,”
and she called 911.
4
J.H.’s biological mother, LaShawna Hunter, arrived at the hospital, and she was
hysterical. Ms. Hunter told Ms. Perry that she had taken J.H. to a doctor in Ohio before he
came to Tennessee. Ms. Perry later contacted that doctor, who confirmed that there were
no concerns about abuse or neglect at that time.
Goodlettsville detectives specializing in child abuse cases interviewed both Mr. and
Ms. Gardner. Ms. Gardner told the officers the same stories that she had told Ms. Perry
but distinguished that J.H. had used a spray bottle to clean the bathtub the day he got the
burns on his hands and buttocks. One of the detectives then went into J.H.’s hospital room
and took photographs of his body. She noted that there was discoloration on his chest, his
head seemed enlarged, his hands had burns on them, his toes had blisters, he had marks on
his face, and various scars and marks were on his back, legs, and buttocks.
Detectives confirmed that Mr. Gardner clocked in for work at 1:34 p.m. on
December 7, 2016. Detectives also discovered that Mr. Gardner had spoken to family
members about wanting to cut off communication with J.H.’s biological mother, claiming
that J.H. would be depressed after speaking with her. Mr. Gardner then sent messages to
his family members, instructing them not to contact him or Ms. Gardner.
C. THE TRIAL
On August 13, 2019, a Davidson County grand jury issued a superseding indictment
charging Mr. and Ms. Gardner with one count of felony murder committed during the
perpetration of or attempt to perpetrate aggravated child abuse, one count of felony murder
committed during the perpetration of or attempt to perpetrate aggravated child neglect, one
count of aggravated child abuse resulting in serious bodily injury, and two counts of
aggravated child neglect.2 The trial started on March 21, 2022.
1. State’s Proof
At trial, the State presented testimony about J.H.’s physical condition from Ms.
Perry, Detective Vaughn, and nurse practitioner Danielle Knox. Nurse Knox worked for
the Child Abuse Response and Evaluation Team at Vanderbilt Children’s Hospital in 2016,
and the trial court qualified her as an expert in the field of pediatric child abuse. Nurse
2
The original indictment charged the Defendants with one count of felony murder in the
perpetration of aggravated child abuse. The superseding indictment also charged the Defendants with two
additional counts of aggravated child abuse and aggravated child neglect arising from the treatment of J.H.
during his time in their care. These counts were subsequently severed by the trial court and are not at issue
in this appeal.
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Knox completed a report on J.H.’s case. During her investigation, the Defendants told
Nurse Knox the same story about the prior injuries and December 7 that they had told the
others. Nurse Knox noted that she was “highly concerned” about J.H.’s injuries and
determined that many were unusual and not accidental.
Nurse Knox’s report included a burn team consult, during which an expert in burns
examined J.H. This consult noted that the various burns on J.H. were likely from different
methods, including chemical burns and cigarette burns, and were made at different times.
The report determined that the burns affected several layers of skin, including the layer that
involved the nerves, and J.H. would have been in pain.
Nurse Knox ultimately concluded that J.H.’s pain could have been lessened if he
had received medical attention for any of his injuries. Nurse Knox concluded that J.H.
would have been in pain and exhibiting physical symptoms for many of his injuries and
that a prudent caregiver would have sought medical treatment. Finally, Nurse Knox
concluded that “[t]he constellation of skin findings indicate[s] that [J.H.] has been a victim
of child abuse on multiple occasions.”
Ms. Hunter testified that she took J.H. to the Defendant’s house on September 28,
2016, and that the Defendants did not allow her to speak to J.H. the entire time he was in
their care. J.H. did not have any injuries before he visited the Defendants’ house, and
friends and family members testified that J.H. was a normal, happy child before his stay
with the Defendants.
The State also presented the testimony of Dr. Thomas Deering, the Deputy Medical
Examiner who performed J.H.’s autopsy, to offer an expert opinion on the cause and
manner of J.H.’s death. As part of that opinion, he testified that the cause of death was
hypoxic/anoxic encephalopathy, or the brain not receiving sufficient oxygen following a
blunt force injury to the head. Dr. Deering also testified that a contributing cause of death
was battered child syndrome or battered child appearance, which he characterized as a
series or pattern of injuries that were indicative of child abuse because of the type and
unexplained nature of the injuries suffered by the child. He further opined that the manner
of death was a homicide, and he offered this testimony as part of a larger opinion that the
December 7 injury suffered by J.H. was not the result of an accident but was “probably
inflicted.”
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2. Defense Proof
Ms. Gardner testified on her own behalf. She stated that she did not abuse J.H. in
any way and loved him as her own son. She also said that J.H. had several marks on him
when he arrived at their house in September and that she wanted Mr. Gardner to confront
Ms. Hunter about them. She did not report the marks or take J.H. to the doctor because the
marks were “old” and Mr. Gardner assured her that J.H. was “never going back.” Ms.
Gardner eventually admitted to spanking J.H. with a thin belt and “pop[ping]” him on his
hands.
Ms. Gardner made J.H. clean his own clothes if he defecated on himself. She
testified that she never got frustrated with J.H. and said that if she spanked him, it only
made him angrier. To explain his injuries and scars, Ms. Gardner described that J.H. wore
a diaper, picked and scratched at his wounds, scratched his face with a zipper, cleaned the
bathroom with bleach when she was not watching, was tackled while playing, and fell in
the bathroom several times. Despite J.H.’s injuries being “dramatic looking,” she did not
seek medical care because J.H. never said he was in pain, and she knew how to take care
of children.
Ms. Gardner testified that two days before she called 911 about J.H., he began to act
“loopy,” slurring his words and walking strangely. According to Ms. Gardner, J.H. acted
like nothing had happened the next morning, so she did not seek medical help. As for the
events on December 7, Ms. Gardner testified that J.H. was complaining about his head
hurting and did not want to get out of bed when instructed. When she took him to the
bathroom, J.H. vomited twice and then became unresponsive. Ms. Gardner then called
911.
Regarding the video taken by the Defendants’ daughter, Ms. Gardner claimed that
she filmed it and sent it to a friend to be “vindictive.” She stated that during her daughter’s
visit to their house, she questioned Ms. Gardner on why she had hit J.H. Ms. Gardner
explained that she just “popped him on his forehead” and that she was not “popping him
hard.” She further testified that her daughter left early because the visit became “tense”
due to her daughter’s behavior.
Ms. Gardner’s seventeen-year-old daughter, who lived with the Defendants,
testified at trial. She remembered J.H. visiting them once before and said that he was very
different when he came to see them this time. J.H. defecated on himself, and Ms. Gardner
punished him by making him do exercises, such as push-ups and holding phone books, or
spanking him. Ms. Gardner’s daughter confirmed that J.H. had cleaned the bathtub and
then developed blisters on his hands, which she witnessed him picking at and told him to
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stop. She also stated that she was in the house when J.H. fell in the bathtub and off the
toilet.
Dr. John Hunsaker, an expert in the field of forensic pathology, reviewed Dr.
Deering’s report and findings and agreed with Dr. Deering’s cause of death and signs of
abuse. However, he disagreed with Dr. Deering’s conclusion that the fatal head injury was
inflicted on December 7, instead believing that the trauma occurred at least three days
earlier. He also disagreed with Dr. Deering’s conclusion that the brain injuries would have
been immediately apparent. Dr. Hunsaker also questioned Dr. Deering’s decision to
include multimodality trauma as a contributory cause of J.H.’s death, claiming that he had
never seen an autopsy characterize a cause of death in this manner and believing that it
went beyond what a medical examiner should do in a case. Dr. Hunsaker believed that the
Defendants’ version of events was plausible.
3. Verdict, Sentences, and Appeal
The jury found Ms. Gardner guilty as charged of two counts of first degree felony
murder, one count of aggravated child abuse, and three counts of aggravated child neglect.
It also found Mr. Gardner guilty of felony murder accomplished through aggravated child
neglect and three counts of aggravated child neglect. However, the jury acquitted Mr.
Gardner of the charges related to felony murder during the perpetration of aggravated child
abuse and aggravated child abuse.
After a sentencing hearing on June 9, 2022, the trial court sentenced each Defendant
to an effective sentence of life imprisonment plus seventeen years. Both Defendants filed
timely motions for a new trial, which the trial court denied on August 10, 2022. Mr.
Gardner filed a timely notice of appeal nine days later. Ms. Gardner also filed a timely
notice of appeal twenty-nine days later.
ANALYSIS
Although the Defendants were tried in a joint trial, they largely raise different issues
and arguments in this appeal. As such, in this consolidated case, we will address the issues
raised by each Defendant separately. We address the issues in Ms. Gardner’s appeal first
and refer to her as “the Defendant” until we turn to the issues raised by Mr. Gardner.
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I. ISSUES RAISED BY LATONIA GARDNER
In this appeal, the Defendant argues that the evidence is legally insufficient to
support her conviction for felony murder that was committed during the perpetration of or
attempt to perpetrate aggravated child neglect and one of her aggravated child neglect
convictions. She also asserts that the trial court erred by permitting Dr. Deering to testify
about battered child syndrome without ensuring that his testimony was based upon relevant
scientific methods. She also argues that the trial court erred by failing to sever some of the
offenses, allowing the State to introduce a video of the victim, and providing a misleading
jury instruction. Finally, she contends that the trial court abused its discretion in imposing
consecutive sentences. We address each of these issues in turn.
A. LEGAL SUFFICIENCY OF THE EVIDENCE
The Defendant argues that the evidence is legally insufficient to support her
conviction for felony murder based on aggravated child neglect and one of her convictions
for aggravated child neglect.3 Specifically, she asserts that the State failed to prove that
there was serious bodily injury arising out of aggravated child neglect separate and apart
from J.H.’s injuries alleged in the aggravated child abuse charges. In response, the State
argues that the proof was sufficient to establish that J.H. experienced several other injuries
while in the Defendant’s care, therefore establishing separate injuries between the neglect
and abuse. We agree with the State.
1. Standard of Appellate Review
“The standard for appellate review of a claim challenging the sufficiency of the
State’s evidence 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.’” State v. Miller, 638 S.W.3d 136, 157 (Tenn. 2021) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard of review is “highly
deferential” in favor of the jury’s verdict. See State v. Lyons, 669 S.W.3d 775, 791 (Tenn.
3
The Defendant seems to argue that the evidence is also insufficient to support her other
aggravated child neglect convictions in Counts 9 and 10, respectively. However, she does not raise this in
her issue statement or point heading, and she offers no argument on this point. For these reasons, we find
that the challenge to the sufficiency of the evidence on those counts is waived. See State v. Molthan, No.
M2021-01108-CCA-R3-CD, 2022 WL 17245128, at *2 (Tenn. Crim. App. Nov. 28, 2022), no perm. app.
filed. Additionally, the Defendant does not argue that the evidence is legally insufficient to support her
aggravated child abuse and corresponding felony murder conviction. As such, we do not address the
evidence supporting these convictions further. See Tenn. R. App. P. 13(b) (“Review generally will extend
only to those issues presented for review.”).
9
2023). Indeed, “[w]hen making that determination, the prosecution is afforded the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
which may be drawn therefrom.” State v. Thomas, 687 S.W.3d 223, 249 (Tenn. 2024)
(citation and internal quotation marks omitted). To that end, “[w]e do not reweigh the
evidence, because questions regarding witness credibility, the weight to be given the
evidence, and factual issues raised by the evidence are resolved by the jury, as the trier of
fact.” State v. Shackleford, 673 S.W.3d 243, 250 (Tenn. 2023) (citations omitted). “The
standard of review is the same whether the conviction is based upon direct or circumstantial
evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citation and internal
quotation marks omitted).
2. First Degree Felony Murder and Aggravated Child Neglect
The Defendant does not challenge her conviction for first degree felony murder
committed in the perpetration of aggravated child abuse. However, she does challenge her
convictions for felony murder committed in the perpetration of aggravated child neglect,
as well as the underlying charge of aggravated child neglect. First degree felony murder is
defined as the “killing of another committed in the perpetration of or attempt to perpetrate
any . . . aggravated child neglect[.]” Tenn. Code Ann. § 39-13-202(a)(2) (2018). No
culpable mental state is required for a felony murder conviction except the intent to commit
the underlying felony, id. § 39-13-202(b), and the defendant “must intend to commit the
underlying felony at the time the killing occurs[.]” State v. Buggs, 995 S.W.2d 102, 107
(Tenn. 1999). In determining whether the killing occurred during the perpetration of the
felony, our supreme court has stated that “consideration of such factors as time, place, and
causation is helpful in determining whether a murder was committed ‘in the perpetration
of’ a particular felony.” Id. at 106. Further, “the killing may precede, coincide with, or
follow the felony and still be considered as occurring ‘in the perpetration of’ the felony
offense, so long as there is a connection in time, place, and continuity of action.” Id.
To sustain the Defendant’s conviction for first degree felony murder, the State must
first establish that the underlying felony of aggravated child neglect occurred. As charged
in this case, aggravated child neglect occurs when a person commits the offense of child
neglect, and the neglect “results in serious bodily injury to the child[.]” Tenn. Code
Ann. § 39-15-402(a)(1) (2018). The offense of child neglect is defined as “[a]ny person
who knowingly abuses or neglects a child under eighteen (18) years of age, so as to
adversely affect the child’s health and welfare.” Id. § 39-15-401(b) (2018); see State v.
Mateyko, 53 S.W.3d 666, 671-72 (Tenn. 2001).
The code does not provide for a specific definition of “neglect.” State v. Sherman,
266 S.W.3d 395, 405 (Tenn. 2008). However, our supreme court has recognized that “a
child is neglected whenever the breach of a legal duty endangers the health or welfare of
10
that child or otherwise places the child’s health or welfare at some risk of harm.” Mateyko,
53 S.W.3d at 671. Consistent with Mateyko, Black’s Law Dictionary defines neglect as
meaning “to omit, fail, or forbear to do a thing that can be done, or that is required to be
done, but it may also import an absence of care or attention in doing or omit a given act.”
Neglect, Black’s Law Dictionary (6th ed. 1990); State v. Goodwin, No. M2022-00540-
CCA-R3-CD, 2023 WL 7324497, at *38 (Tenn. Crim. App. Nov. 7, 2023) (“This court has
repeatedly held that the common understanding of ‘neglect’ is ‘to ignore or disregard’ or
‘to fail to care for or attend to sufficiently or properly.’” (cleaned up)), no perm. app. filed.4
As the statute makes clear, the neglect of a child must adversely affect the child’s
health or welfare. Tenn. Code Ann. § 39-15-401(b); Mateyko, 53 S.W.3d at 671-72. These
effects include, but are not limited to, “adverse effects on the emotional and mental health
and welfare of the child, the natural effects of starvation or dehydration, or acts of female
genital mutilation[.]” Tenn. Code Ann. § 39-15-401(h). And, of course, the requirement
of serious bodily injury to the child in this context
includes, but is not limited to, second- or third-degree burns, a fracture of any
bone, a concussion, subdural or subarachnoid bleeding, retinal hemorrhage,
cerebral edema, brain contusion, injuries to the skin that involve severe
bruising or the likelihood of permanent or protracted disfigurement,
including those sustained by whipping children with objects and acts of
female genital mutilation as defined in § 39-13-110.
Tenn. Code Ann. § 39-15-402(c). Where the child is eight years of age or less, the offense
of aggravated child neglect is a Class A felony. Id. § 39-15-402(b).
In this case, no party disputes that J.H. was in the Defendant’s care for over one
month before his death and that, as his stepmother, the Defendant had a legal duty to care
for him. See Sherman, 266 S.W.3d at 404. Before his stay with the Defendant, J.H. lived
with Ms. Hunter in Ohio. Immediately before taking him to stay with the Defendant in
Tennessee, Ms. Hunter took J.H. to his pediatrician, and J.H. did not have any concerning
injuries at that time. However, after his death, it was discovered that J.H. had several
4
In interpreting statutory language, we look to the natural and ordinary meaning and ask
“how a reasonable reader, fully competent in the language, would have understood the text at the time it
was issued.” Williams v. Smyrna Residential, LLC, 685 S.W.3d 718, 723 (Tenn. 2024) (citation and internal
quotation marks omitted). In this task, we may consult “authoritative dictionaries published around the
time of a statute’s enactment.” State v. Deberry, 651 S.W.3d 918, 925 (Tenn. 2022). Although the courts
have looked to several different dictionaries, our supreme court has often looked to the sixth edition of
Black’s Law Dictionary, published in 1990, to construe our criminal statutes first enacted at that time. See,
e.g., State v. Perry, 656 S.W.3d 116, 128 (Tenn. 2022); Deberry, 651 S.W.3d at 927. As such, we do so
here.
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injuries that were inflicted in the weeks before the fatal strike to his head. In fact, the
medical examiner attributed these injuries as a contributory cause of death. Specifically,
during the autopsy, he discovered various scars, healing burns, and healing rib fractures,
and the age of these injuries indicated that J.H. was abused by someone before his death.
The medical examiner further testified that the injuries, at the very least, would have
justified a visit to a medical professional. Yet, it is undisputed that the Defendant failed to
seek help from a medical professional for any of J.H.’s injuries, except for the final one.
The Defendant does not challenge any particular element of her convictions.
Instead, the Defendant asserts that the State erroneously linked the brain injury to the two
separate offenses of aggravated child abuse and aggravated child neglect, and as such, one
of them must be vacated. Specifically, during the closing argument, the State told the jury,
“If you find them guilty of count four, aggravated child neglect, . . . for the brain injury,
then the only thing you have to find for count two is that [J.H.] died from the course of that
neglect.” The Defendant argues that the State also connected the brain injury to the
separate offense of Count 3 aggravated child abuse and, therefore, there was no separate
and apart injury caused by the neglect. In response, the State argues that the evidence was
legally sufficient to support the Defendant’s convictions.
Importantly, the State specifically noted in its closing argument and bill of
particulars that the aggravated child neglect in Count 4 was an alternate theory to the
aggravated child abuse in Count 3. Thus, the child abuse allegations in Count 3 proceeded
under a theory that the Defendant intentionally inflicted the blunt force trauma to J.H.’s
head. Alternatively, the child neglect allegations in Count 4 proceeded under a theory that
the Defendant ignored J.H.’s pattern of significantly injuring himself and that this neglect
led to his fatal head injury. We address both alternative theories in turn.
First, the evidence is legally sufficient to support the Defendant’s conviction for
aggravated child abuse in Count 3. The medical examiner testified that the constellation
of injuries leading up to December 7 allowed him to deduce that the blunt force trauma to
the head was intentional and not an accident. He also testified that J.H. died from a lack
of oxygen to the brain after the blunt force injury to his head. Viewing this evidence in the
light most favorable to the State, we conclude that a rational juror could find that the
Defendant intentionally inflicted the blunt force trauma to J.H.’s head, resulting in the
child’s death.
Second, the evidence is also legally sufficient to support the Defendant’s conviction
for aggravated child neglect as alleged in Count 4. At trial, the State described Count 4 as
an alternative to its prior child abuse theory. The Defendant testified that she knew, or was
aware of, multiple falls before December 7, including the three incidents where J.H. fell
before December 7. For example, she referred to a time when she heard a “boom” and
found J.H. in the tub, holding his head, and she knew he had slipped. Indeed, she further
12
stated that “the way of the sound that he hit his head, he hit pretty hard,” but she never
sought medical treatment. The following day, he woke up with a black eye. She still did
not seek medical treatment. Another time, she “lotion[ed] him down” and left him alone
in the bathroom. She heard a thud and surmised that he had fallen again. Next, three days
before the fatal head injury, she described J.H. falling and hitting his head while playing
with other children. The Defendant recalled that after this fall, J.H. was acting “like he’s
drunk, like he’s loopy” because he could not even stand up in the shower or stay on the
toilet without falling.
After describing the last incident during her testimony, the following exchange
occurred:
[Defense Counsel:] Looking back, knowing now that [J.H.] died two days –
well, that he went into cardiac arrest two days later as a result of a severe
brain injury, how do you feel about your decision not to take [J.H.] to the
doctor after he was staggering and slurring his speech?
[Defendant:] I wish I did. I wish I took him. I didn’t know. I didn’t know,
but what I know now – if I could turn that time back, I wish I could.
This exchange, in conjunction with the Defendant’s testimony, makes it clear that the
Defendant knew something was wrong with J.H. yet did not seek medical treatment. She
specifically recalled that J.H. was unable to stand on his own and that he was acting loopy,
yet she did not seek medical treatment. Instead, she continued to leave him alone with no
supervision, as she did on December 7. That day, she left J.H. alone to nap and, once again,
heard a loud noise. Upon investigating the noise, she found J.H. unable to stand, grabbing
his head, and a clear liquid coming out of his nose and mouth. After she rushed him to the
bathroom, J.H. vomited multiple times and went limp. Only at this point did the Defendant
finally seek the long-needed medical treatment by calling 911.
In this version of events, the Defendant’s ongoing neglect continued until
December 7 and climaxed with the fatal injury to the head. As such, a reasonable jury
could have accepted the Defendant’s testimony as true. Therefore, discarding all
countervailing evidence, the jury could have found that a failure to seek medical treatment
or to investigate further the cause of J.H.’s constant falls through medical treatment or
otherwise could have resulted in a blunt force trauma to the head on December 7. As such,
this neglect adversely affected J.H.’s health and welfare and ultimately resulted in his death
five days later.
Put simply, the State presented two different theories to the jury. The first theory
was that the head trauma was intentionally inflicted. The second theory was, alternatively,
13
that the Defendant was aware that J.H. fell and injured himself multiple times before
December 7 and never sought to identify the cause of the falls through medical treatment
or otherwise.
The Defendant seems to argue that the jury could not return a guilty verdict for both
versions of the events. We respectfully disagree. Even if the verdicts are inconsistent, the
supreme court has recognized that “[i]nconsistent verdicts may occur in trials . . . of
multiple charges against a single defendant.” State v. Davis, 466 S.W.3d 49, 72 (Tenn.
2015). Further, “this [c]ourt will not upset a seemingly inconsistent verdict by speculating
as to the jury’s reasoning if we are satisfied that the evidence establishes guilt of the offense
upon which the conviction was returned.” Wiggins v. State, 498 S.W.2d 92, 94 (Tenn.
1973). As such, we will not attempt to peek behind the curtain of the jury’s deliberations.
Viewing the evidence in the light most favorable to the State, as we must, a rational
juror could find that the Defendant knowingly neglected the victim, which adversely
affected his health and welfare and subsequently resulted in serious bodily injury, including
burns, rib fractures, brain injuries, and, ultimately, his death. A rational juror could also
find that the death of J.H. occurred during and because of this constant neglect and that his
death was closely connected to the neglect in time, place, causation, and continuity of
action. We, therefore, conclude that the proof is legally sufficient to support the
Defendant’s convictions for the first degree felony murder and the aggravated child neglect
of J.H.
B. EXPERT TESTIMONY
The Defendant next argues that the trial court erred when it allowed Dr. Deering to
testify about battered child syndrome because it did not ensure that his testimony was based
upon scientific methods, processes, and data. Specifically, the Defendant claims that the
trial court abused its discretion by applying an incorrect legal standard when deciding the
admissibility of Dr. Deering’s testimony. The State responds that the trial court properly
admitted expert testimony on the cause and manner of death, including battered child
syndrome. We agree with the State.
1. Background
Before trial, the trial court held a hearing to determine whether Dr. Thomas Deering,
the Deputy Chief Medical Examiner for Davidson County, could testify that J.H.’s injuries
demonstrated a pattern consistent with battered child syndrome. Dr. Deering conducted
J.H.’s autopsy and concluded that he died from a lack of oxygen to the brain after a blunt-
force injury to the head. In addition to this, Dr. Deering determined that a contributing
cause of death was also various scars, burns, and fractures, which he called “multimodality
14
trauma.” Dr. Deering opined that the combination of J.H.’s injuries, with some being older
and some being recent, formed a pattern that he diagnosed as battered child syndrome.
Dr. Deering testified that medical personnel created battered child syndrome to
assist in reporting more cases of child abuse. Specifically, medical personnel learned what
to look for when evaluating cases of potential child abuse or neglect. If medical personnel
diagnosed a patient with battered child syndrome, they would have to report the case to the
Department of Children’s Services.
To explain his diagnosis in J.H.’s case, Dr. Deering first noted that there were several
scars with various patterns on J.H. in unusual places, indicating the possibility of cigarette
burns and the use of a belt or wire. J.H. also had healing burns in several places on his
body. When informed of the Defendant’s explanation that J.H. was cleaning with bleach
for those burns, Dr. Deering determined that the appearance of the burns was not consistent
with the Defendant’s story. Due to the age of these wounds, Dr. Deering believed it
indicated that J.H. had been abused; however, he noted that the wounds were not fatal.
Additionally, Dr. Deering observed that J.H. had a swollen, bruised eye and several brain
injuries.
Of significant note to Dr. Deering, he discovered at the autopsy that J.H. had healing
rib fractures. He testified that J.H. would have been in pain with noticeable symptoms and
that there was no history to suggest J.H. “ever got hurt” or received any medical care.
Dr. Deering testified that the previous injuries were all inflicted within a two-month
window and were different forms of trauma, which stood out as “highly suspicious.” After
analyzing all the injuries and wounds, Dr. Deering believed that someone had abused J.H.
and that he could not testify at trial about how he determined the cause of death without
discussing battered child syndrome.
The trial court allowed Dr. Deering to testify about battered child syndrome during
the trial. In making this determination, the trial court analyzed Tennessee Rules of
Evidence Rules 702 and 703 and various case law cited by the State. The court held that
the diagnosis of battered child syndrome was well-accepted in the medical community. As
such, the Rules of Evidence did not prohibit Dr. Deering’s testimony about battered child
syndrome.
2. Standard of Appellate Review
A trial court’s decision regarding the “admissibility, qualifications, relevancy and
competency of expert testimony” is subject to review under an abuse of discretion standard.
State v. Watkins, 648 S.W.3d 235, 260 (Tenn. Crim. App. 2021) (quoting McDaniel v. CSX
15
Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997)). Our supreme court has emphasized that
“[d]iscretionary decisions must take the applicable law and relevant facts into account.”
Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn.
2008). To that end, “an abuse of discretion occurs when a court strays beyond the
applicable legal standards or when it fails to properly consider the factors customarily used
to guide the particular discretionary decision.” State v. McCaleb, 582 S.W.3d 179, 186
(Tenn. 2019) (citation and internal quotation marks omitted). “A court abuses its discretion
when it causes an injustice to the party challenging the decision by (1) applying an incorrect
legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision
on a clearly erroneous assessment of the evidence.” Moore v. Lee, 644 S.W.3d 59, 63
(Tenn. 2022) (citation and internal quotation marks omitted).
3. Admission of Dr. Deering’s Opinions
The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007). More
specifically, Rule 702 addresses “when expert testimony is needed and the expert’s
qualifications.” State v. Davidson, 509 S.W.3d 156, 207 (Tenn. 2016). Rule 703 “focuses
on [the] reliability of expert testimony.” Id.Our supreme court has consistently acknowledged that
[t]rial courts act as gatekeepers when it comes to the admissibility of expert
testimony. Their role is to ensure that an expert, whether basing testimony
upon professional studies or personal experience, employs in the courtroom
the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.
State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (citation and internal quotation marks
omitted)). As such, the trial court “must determine that the expert testimony is reliable in
that the evidence will substantially assist the trier of fact to determine a fact in issue and
that the underlying facts and data appear to be trustworthy.” Brown v. Crown Equip. Corp.,
181 S.W.3d 268, 274 (Tenn. 2005).
In applying these standards, our jurisprudence sometimes characterizes the overall
framework for the admission of expert testimony in different terms. For example, in Scott,
our supreme court recognized “four general inter-related components” for the reliability
analysis: “(1) qualifications assessment, (2) analytical cohesion, (3) methodological
reliability, and (4) foundational reliability.” Scott, 275 S.W.3d at 402. In other cases, the
supreme court has noted that, assuming the testimony is relevant and helpful to the trier of
16
fact, the admission of expert testimony essentially involves three steps. In State v. Ferrell,
277 S.W.3d 372, 378 (Tenn. 2009), for example, the supreme court recognized,
As a threshold issue, the trial judge must first consider whether a witness
qualifies by knowledge, skill, experience, training, or education to offer an
opinion within the area of his or her expertise. If the expert is so qualified,
the trial judge must then analyze the science and not merely the
qualifications, demeanor or conclusions of experts. When those two criteria
are met, it is only when there is too great an analytical gap between the data
and the opinion proffered, that the evidence may be excluded.
(citation and internal quotation marks omitted). Importantly, though, these different
descriptions are merely variations on the essential theme: “the reliability of the testimony
and whether it provides substantial assistance to the jury serve as the essential guidelines
for the determination of admissibility.” Payne v. CSX Transp., Inc., 467 S.W.3d 413, 455
(Tenn. 2015). Using these frameworks, we conclude that the trial court acted within its
discretion in admitting Dr. Deering’s testimony as to the cause and manner of J.H.’s death.
a. Relevance
After determining whether the witness was qualified to testify as an expert, the next
step in the analysis is to determine whether the expert’s opinion is relevant and helpful to
the trier of fact. See State v. Bonds, 502 S.W.3d 118, 141 (Tenn. Crim. App. 2016)
(“Additionally, an expert witness’s testimony must be relevant to the issues at trial.”).
Evidence is relevant when 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.
In this case, Dr. Deering offered an expert opinion on the cause and manner of J.H.’s
death. As part of that opinion, he testified that the cause of death was hypoxic/anoxic
encephalopathy, or the brain not receiving sufficient oxygen following a blunt force injury
to the head. According to Dr. Deering, battered child syndrome refers to a series or pattern
of injuries that suggest child abuse, rather than accidental harm, due to the type and
unexplained nature of the injuries sustained by the child. See also State v. Patlan, No.
M2011-01175-CCA-RM-CD, 2011 WL 2848395, at *15 (Tenn. Crim. App. July 18, 2011)
(describing battered child syndrome as being “a medical diagnosis used to describe a child
who has been subjected to repeated bouts of severe physical child abuse.”), no perm. app.
filed; see also Estelle v. McGuire, 502 U.S. 62, 66 (1991) (defining battered child syndrome
as “[the] syndrome [that] exists when a child has sustained repeated and/or serious injuries
by nonaccidental means.”). Dr. Deering further opined that the manner of death was a
17
homicide, and he offered this testimony as part of a larger opinion that the December 7
injury suffered by J.H. was not the result of an accident but was “probably inflicted.”
The trial court found that “the prior injury evidence” was “relevant to whether these
injuries were due to accidents or were inflicted intentionally.” We agree. The United States
Supreme Court has recognized that “evidence demonstrating battered child syndrome helps
to prove that the child died at the hands of another and not by falling off a couch, for
example; it also tends to establish that the ‘other,’ whoever it may be, inflicted the injuries
intentionally.” Estelle, 502 U.S. at 68. The trial court acted within its discretion in finding
that if Dr. Deering was properly qualified as an expert and his opinion was sufficiently
reliable and demonstrated analytical cohesion, then his opinion about the cause and manner
of J.H.’s death was relevant evidence for the jury’s consideration. See Tenn. R. Evid. 402,
702.
b. The Expert’s Qualifications
The next step was for the trial court to determine whether Dr. Deering was qualified
by knowledge, skill, experience, training, or education to offer an opinion within the area
of his expertise. See Tenn. R. Evid. 702. Without objection, the State tendered Dr. Deering
as an expert in forensic pathology. He testified that he worked in “medical examining or
forensic pathology” for about twenty-five years in Memphis and Nashville. Among other
things, he stated that he had a medical degree from the University of Iowa and a residency
in pathology. He estimated that he had personally performed more than 5,000 autopsies,
and he confirmed that he had been previously admitted as an expert in forensic pathology
in other cases as well. The trial court acted within its discretion in finding that Dr. Deering
was qualified by knowledge, skill, experience, training, and education to offer an opinion
within the field of forensic pathology.
c. Foundational Reliability of the Expert’s Field of Expertise
The next inquiry is whether the field of Dr. Deering’s expertise was sufficiently
reliable, both in terms of methodological and foundational reliability, to enable him to offer
an opinion. Scott, 275 S.W.3d at 402. As Dr. Deering defined the field of his expertise,
“[P]athology studies a lot of things. From surgical pathology to what happens in a
laboratory is kind of the area of pathology. And forensic is a word that means legal. So
there are times when a death has legal implications[.]” He stated that he seeks to identify
“the cause of death of an individual” and “the manner of death.”
In this context, Dr. Deering explained that the “cause of death” is a conclusion based
on the circumstances and the physical examination of the body. For example, he noted that
the cause of death could include natural diseases, environmental conditions, trauma,
18
gunshot wounds, and blunt force injuries. In this case, Dr. Deering concluded that the cause
of J.H.’s death was hypoxic/anoxic encephalopathy, or the brain not receiving sufficient
oxygen following a blunt force injury to the head. However, Dr. Deering also testified that
a contributing cause of death was battered child syndrome or battered child appearance.
This contributing cause of death helped him to identify the manner of death as a homicide,
as he believed that the injuries to J.H. on December 7 were inflicted injuries and not
accidental. It is with this conclusion that the Defendant takes issue.
The Defendant asserts that the trial court erred in allowing testimony about battered
child syndrome, arguing that the trial court did not apply the appropriate factors under
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997), to determine the reliability
of testimony about battered child syndrome. We respectfully disagree.
Our supreme court has clarified that trial courts must assess “the expert’s field or
discipline by focusing on the reliability of the studies, articles, and data that compose the
field and provide the underlying foundation for the expert’s testimony.” Davidson, 509
S.W.3d at 211 (citing Scott, 275 S.W.3d at 402-03). As part of this assessment, the trial
court may consider several nonexclusive factors as identified by our supreme court in
McDaniel:
(1) whether scientific evidence has been tested and the methodology with
which it has been tested; (2) whether the evidence has been subjected to peer
review or publication; (3) whether a potential rate of error is known;
(4) whether . . . the evidence is generally accepted in the scientific
community; and (5) whether the expert’s research in the field has been
conducted independent of litigation.
McDaniel, 955 S.W.2d at 265. Importantly, however, these factors are “not requirements
for [the] admissibility” of an expert opinion. Davidson, 509 S.W.3d at 208. Indeed,
individual factors may not even “fit” in a particular case. Scott, 275 S.W.3d at 404. As
such, applying the McDaniel factors to assess reliability depends upon the nature of the
issue, the witness’s particular expertise, and the subject of the expert’s testimony. Brown,
181 S.W.3d at 277.
In this case, the trial court focused on the fourth McDaniel factor when admitting
Dr. Deering’s testimony, finding that it was a “well-accepted diagnosis in the medical
community.” This was certainly an appropriate consideration and one that is supported in
our case law. For example, our trial courts have admitted evidence of battered child
syndrome for nearly five decades. See, e.g., Dorantes, 331 S.W.3d at 376 (affirming
convictions for aggravated child abuse and felony murder by aggravated child abuse; proof
at trial involved testimony by the medical examiner classifying the cause of death as
19
battered child syndrome); Hawkins v. State, 555 S.W.2d 876, 876 (Tenn. Crim. App. 1977)
(affirming a conviction for second degree murder; the State’s theory at trial involved the
child dying as a result of battered child syndrome); State v. Taylor, No. M2015-02142-
CCA-R3-CD, 2017 WL 2179952, at *12 (Tenn. Crim. App. May 16, 2017) (affirming a
conviction for reckless homicide; proof at trial involved the medical examiner classifying
the circumstances of the victim’s death as being battered child syndrome), perm. app.
denied (Tenn. Sept. 21, 2017); State v. Mark, No. M2014-00651-CCA-R3-CD, 2015 WL
4720038, at *21 (Tenn. Crim. App. Aug. 10, 2015) (affirming convictions for felony
murder and aggravated child abuse; proof at trial included testimony by a forensic
pathologist, Dr. Deering, that “[t]he pattern of the chronic injuries with the now fatal acute
injury to the brain suggests a pattern of ongoing child abuse, battered child syndrome”),
perm. app. denied (Tenn. Dec. 10, 2015); State v. Branam, No. E2014-01345-CCA-R3-
CD, 2015 WL 4594158, at *18 (Tenn. Crim. App. July 31, 2015) (affirming convictions
for aggravated child abuse and felony murder; proof at trial included medical examiner’s
expert testimony that the child was a “victim of battered child syndrome and the manner
of [her] death was homicide”), perm. app. denied (Tenn. Feb. 14, 2018); State v. Mathis,
No. M2009-00123-CCA-R3-CD, 2012 WL 4461767, at *28 (Tenn. Crim. App. Sept. 26,
2012) (affirming convictions for felony murder, aggravated child abuse, and aggravated
child neglect; proof at trial included testimony from a forensic pathologist that the victim
suffered from battered child syndrome and ultimately died from strangulation), perm. app.
denied (Tenn. Feb. 25, 2013); Patlan, 2011 WL 2848395, at *15 (affirming convictions for
aggravated child abuse and felony murder during the perpetration of aggravated child
abuse; proof at trial established that cause of death was battered child syndrome, defined
as “a medical diagnosis used to describe a child who has been subjected to repeated bouts
of severe physical child abuse”) (internal quotation marks omitted); State v. Maze, No.
M2004-02091-CCA-R3-CD, 2006 WL 1132083, at *4 (Tenn. Crim. App. Apr. 28, 2006)
(affirming convictions for felony murder and aggravated child abuse; proof at trial involved
expert testimony diagnosing the victim with battered child syndrome which “is a
recognized [medical] diagnosis that can actually be coded for billing and insurance
purposes”), perm. app. denied (Tenn. Aug. 28, 2006); State v. Wester, No. E2004-02429-
CCA-R3-CD, 2006 WL 304700, at *5 (Tenn. Crim. App. Feb. 9, 2006) (affirming a
conviction for felony murder in the perpetration of aggravated child abuse; proof at trial
involved the Chief Medical Examiner of Tennessee testifying that the victim suffered from
battered child syndrome), perm. app. denied (Tenn. June 26, 2006); State v. Toporan, No.
M2004-00561-CCA-R3-CD, 2005 WL 2255692, at *4 (Tenn. Crim. App. Aug. 24, 2005)
(affirming convictions for felony murder and aggravated child abuse; proof at trial involved
testimony by the Chief Medical Examiner for Tennessee that the victim’s cause of death
was “due to multiple blunt force injuries and that the manner of death was homicide under
the circumstances of being a battered child”), no perm. app. filed; State v. Pipes, No.
02C01-9410-CC-00222, 1995 WL 146125, at *2 (Tenn. Crim. App. Apr. 5, 1995)
(affirming a conviction for aggravated child abuse; proof at trial included a medical
diagnosis of the child with battered child syndrome), perm. app. denied (Tenn. July 3,
1995).
20
In addition, the United States Supreme Court has recognized the admissibility of
testimony related to battered child syndrome evidence “when a child has sustained repeated
and/or serious injuries by nonaccidental means.” Estelle, 502 U.S. at 66. And courts in
our sister states have also long affirmed admission of expert testimony in this field. For
example, some twenty-five years ago, the Kansas Supreme Court recognized that “battered
child syndrome has gained wide judicial acceptance and is not novel scientific evidence[.]”
State v. Heath, 957 P.2d 449, 465 (Kan. 1998) (citing cases). Twenty years before that, the
North Carolina Supreme Court recognized that “[a]s far as our research reveals, all courts
which have considered the question, including our own Court of Appeals, have concluded
that such expert medical testimony concerning the battered child syndrome as was offered
in this case is properly admitted into evidence.” State v. Wilkerson, 247 S.E.2d 905, 912
(N.C. 1978). More recently, admission of battered child syndrome testimony has been
described as “well-settled law” when offered “to refute a claim of accidental death.”
Cardona v. State, 299 So. 3d 1142, 1145 (Fla. Dist. Ct. App. 2020); see also State v.
Martinez, 68 P.3d 606, 616-17 (Haw. 2003) (“[E]vidence of [battered child syndrome] is
admissible in a trial in which a defendant is charged with an offense implicating the breach
of a legal duty to seek and obtain timely medical treatment for an injured child in order to
prove that the child’s injury was not accidental, regardless of whether the prosecution is
able to link the child’s prior injuries directly to the defendant.”).
As we noted above, the McDaniel factors are not requirements, and the trial court
need not consider all of the factors in determining the reliability of the expert’s field of
expertise or discipline. This may be particularly true when courts in Tennessee and other
jurisdictions have widely accepted the field or discipline. Cf. Davidson, 509 S.W.3d at
211-12 (finding testimony about the ACE-V methodology for fingerprinting to be
sufficiently reliable against a challenge to the methodology when the method “has been
widely accepted by courts,” even without proof supporting other McDaniel factors). We
conclude that the trial court properly found that testimony in the field of battered child
syndrome possessed sufficient reliability to be considered by the jury.
d. Methodological Reliability and Analytical Cohesion of
Dr. Deering’s Opinion
Finally, we examine whether Dr. Deering’s opinion about the cause and manner of
death was analytically cohesive and whether there was a significant analytical gap between
his opinion and the data upon which it was based. See Davidson, 509 S.W.3d at 210. As
the supreme court has recognized, a trial court “may conclude that an expert’s opinions are
reliable if the expert’s conclusions are sufficiently straightforward and supported by a
rational explanation which reasonable [persons] could accept as more correct than not
21
correct.” Brown, 181 S.W.3d at 275 (citation and internal quotation marks omitted;
alteration in original).
The Defendant argues that Dr. Deering’s opinion was based on speculation about
the nature of J.H.’s prior injuries. More specifically, the Defendant asserts that Dr. Deering
speculated when he testified that the wounds on J.H.’s hands showed a splash pattern. He
also claims that the expert further speculated about the source of the circular scars on J.H.
In essence, we understand this argument to assert that too great an analytical gap existed
between Dr. Deering’s conclusion that J.H.’s injuries were inflicted and the facts (or data)
he relied upon to reach that conclusion.
We respectfully disagree that Dr. Deering’s opinions as to the cause and manner of
death were mere speculation. Dr. Deering testified in detail as to his observations, the lack
of any reasonable explanation given for the injuries that J.H. suffered, and the inexplicable
absence of medical care for injuries that would have been painful to J.H.
With respect to the splash pattern, Dr. Deering testified that the “pattern” was
unusual and that the burns varied in depth. He stated that the location of the chemical burns
did not “match” the explanation he was given, which was that J.H. had an allergic reaction
after using a bleach cleaner and that it appeared to him as though the chemical burns on
each hand happened at different times. He also testified that he had not seen this type of
injury previously from a child cleaning with bleach.
Regarding the circular scars, Dr. Deering testified that he did not definitively know
the source of the scars. But he testified that he saw healed blistered skin on the tips of
J.H.’s fingers and toes. He also believed that other scars were healed burns. Dr. Deering
noted that, while he could not say conclusively, the small circular scars on J.H.’s back
appeared to be cigarette burns, given their appearance and location.
Although Dr. Deering could not definitively identify the source of these scars, this
inability did not render his opinion as to the cause and manner of death so speculative as
to be unreliable or unhelpful to the jury. It was not. On the contrary, the expert explained
that his testimony was based on his training in forensic pathology and his experience and
observations in other cases. From this training and experience, he believed that the scars
were found in places that were not typical for accidents, and he had no information showing
any “other reasonable mechanism to explain [the scars].” Moreover, he offered his
observations as to these scars in the context of other injuries, such as rib fractures, that also
occurred in the absence of any medical treatment or credible information as to the causes.
Thus, from his education, experience, and observations, Dr. Deering testified that,
to a degree of medical certainty, the head injury suffered by J.H. on December 7 was
22
inflicted and was not accidental. Notably, Dr. Deering did not opine as to the mere
possibility of a causal relationship. Instead, he identified the most likely cause of the head
injury and gave a “rational explanation which reasonable [persons] could accept as more
correct than not correct.” Brown, 181 S.W.3d at 275. Thus, the trial court was “entitled to
admit the opinion and leave its weight to the jury.” Lindsey v. Miami Dev. Corp., 689
S.W.2d 856, 862 (Tenn. 1985) (citations omitted); State v. Cannon, 642 S.W.3d 401, 441
(Tenn. Crim. App. 2021) (“Any deficiencies in the theory, methodology, or application can
be explored on cross-examination, and the jury can then give the opinion whatever weight
it deems appropriate.”). We conclude that the trial court acted within its discretion in
admitting the evidence for the jury to consider.
4. Expert’s Testimony as to Injuries Generally Caused by Falls
In a related argument, the Defendant asserts that the trial court erred in allowing Dr.
Deering to testify about the relationship between falls and injuries. More specifically, the
Defendant takes issue with the following testimony offered by the expert, asserting that the
testimony as to the ratio of injuries to deaths is speculative:
This is child abuse to me. These old injuries that didn’t -- didn’t themselves,
in his death, point me to look at that last event and say I don’t think it’s an
accident. I think it’s inflicted. It would be important to know that kids fall
all the time. Kids fall and hit their head[s] all the time. And maybe one in a
million of those falls dies. So a kid – if the explanation is well, he must have
fallen, it’s a really rare event and it was quite the fall.
Even if this testimony were objectionable—and in the overall context of the expert’s
testimony, we do not so hold—the Defendant did not object when offered at trial.
Ordinarily, before a party can challenge the admission of evidence on appeal, the party
must have preserved the issue in the trial court. “To preserve an issue, the party should
first assert a timely objection identifying a specific ground.” State v. Thompson, No.
W2022-01535-CCA-R3-CD, 2023 WL 4552193, at *3 (Tenn. Crim. App. July 14, 2023),
no perm. app. filed.
Because the Defendant did not raise an objection in the trial court based on this
testimony, we conclude that the Defendant has waived plenary review of this issue on
appeal. See State v. Dotson, 450 S.W.3d 1, 95 (Tenn. 2014). Moreover, because the
Defendant does not request review of this issue for plain error, we respectfully decline to
address the issue sua sponte. See State v. Funk, No. E2022-01367-CCA-R3-CD, 2023 WL
7130289, at *2 (Tenn. Crim. App. Oct. 30, 2023), no perm. app. filed. The Defendant is
not entitled to relief.
23
5. Trial Court’s Pretrial Assessment of the Evidence
The Defendant makes one final argument on this issue, claiming that the trial court
erred by allowing the admission of the expert testimony following an erroneous assessment
of the evidence supporting the opinion. More specifically, she asserts that the court
erroneously found that Dr. Deering believed all of J.H.’s injuries were caused in the two
months before December 2016. From this, she argues that because the expert’s testimony
did not support the trial court’s findings, the expert’s testimony was inadmissible. In
response, the State argues that the Defendant is confusing “injuries” with “marks” and
“scars,” which could not be dated, and therefore, the trial court’s findings of facts are not
erroneous. We agree with the State.
The trial court issued a written order concerning Dr. Deering’s testimony. In the
order, it made several findings of fact. Among those findings, the court found that “Dr.
Deering is of the opinion that the injuries found on the victim were caused within the two
months prior to his admittance to the hospital in December of 2016.” Another finding was
that “[t]here are pediatric records reflecting the child did not have any injuries prior to
leaving Ohio in September of 2016.”
These findings were consistent with the testimony offered by Dr. Deering in the
pretrial hearing. During that testimony, Dr. Deering distinguished between “injuries” on
the one hand and scars and marks on the other. When he referred to J.H.’s “injuries,” the
expert referred generally to the healed rib fractures that occurred, in his view, some four to
six weeks before J.H.’s death. When he discussed other evidence of abuse to J.H., such as
the “numerous scars,” the expert did not definitively date these marks, and he did not refer
to them as “injuries.”
Dr. Deering’s testimony fully supports the trial court’s findings that no injuries, such
as rib fractures, existed before September 2016. The court simply did not conclude, as the
Defendant suggests, that “all injuries,” defined as bone fractures, scars, and marks,
occurred between September and December 2016. More importantly, even if the findings
were as the Defendant believes them to be—and they are not—they are not sufficiently
material in light of the trial testimony to reveal an abuse of discretion. We conclude that
Dr. Deering’s expert testimony related to the cause and manner of J.H.’s death and that it
was admissible for the jury to consider for whatever weight it believed appropriate.
24
C. SEVERANCE OF OFFENSES
1. Background
The Defendant next argues that two counts of aggravated child neglect, Counts 9
and 10, should have been severed from the remainder of the offenses and tried separately.
As background for this issue, the grand jury charged the Defendant with ten offenses
grouped into five separate offense dates.5 The offenses were as follows:
• Count 1 charged the felony murder during the perpetration of or attempt to
perpetrate aggravated child abuse, with the predicate offense of aggravated
child abuse charged in Count 3. Count 1 had an offense date of December
12, 2016, which was the date of J.H.’s death, and Count 3 had an offense date
of December 7, 2016, which was the date of the fatal blow to J.H.’s head.
• Count 2 also charged the felony murder during the perpetration of or attempt
to perpetrate aggravated child neglect, with the predicate offense of
aggravated child neglect charged in Count 4. As before, Count 2 had an
offense date of December 12, 2016, which was the date of J.H.’s death, and
Count 4 had an offense date of December 7, 2016, which was the date of the
fatal blow to J.H.’s head.
• Counts 5 and 6 charged aggravated child abuse and aggravated child neglect
with an offense date of November 25, 2016. In its bill of particulars, the
State specified that these counts referred to injuries to J.H.’s “left cheek, left
nasal bone fracture, and associated injuries.” Count 6 was noted as an
alternate theory to Count 5, citing that the Defendant failed to seek proper
treatment for the injuries.
• Counts 7 and 8 also charged aggravated child abuse and aggravated child
neglect but with an offense date between September 28, 2016, and December
1, 2016. The State specified that these counts referred to J.H.’s healing rib
fractures. Count 8 was noted as an alternate theory to Count 7, again
charging that the Defendant failed to seek proper treatment for these injuries.
5
Originally, the State charged the Defendant with one count of felony murder committed
during the commission of aggravated child abuse that was later dismissed. The State issued a superseding
indictment that charged ten offenses, as discussed here.
25
• Counts 9 and 10 charged alternative theories of aggravated child neglect with
the offense date as a continuing course of conduct between September 28,
2016, and December 7, 2016. In its bill of particulars, the State specified that
these counts included “head injuries, broken ribs, severe and painful burns to
the victim’s hands, feet and other parts of his body[.]” Count 9 referred to
the Defendant’s failure to seek proper medical treatment. Count 10 was an
alternate theory to Count 9, alleging that the Defendant’s conduct amounted
to especially heinous conduct, atrocious or cruel conduct, and the infliction
of torture.
Before trial, the Defendant filed a motion to sever the offenses. At a pretrial hearing,
she requested that the trial court sever the offenses based on their separate offense dates.6
Specifically, she asked the trial court to conduct separate trials for Counts 1 through 4;
Counts 5 and 6; Counts 7 and 8; and Counts 9 and 10.
At the hearing, the parties did not present any proof apart from incorporating Dr.
Deering’s prior testimony into the hearing. The Defendant argued that the various offenses
were not part of the same criminal transaction and should be severed. She further asserted
that Counts 9 and 10 should be severed from Counts 1 through 4 because the ongoing
failure to provide treatment did not apply to J.H.’s fatal head injury. The State maintained
that Counts 9 and 10 were continuing offenses and should not be severed.
The trial court issued an order severing the offenses in the groupings as requested
by the Defendant, finding that there was no common scheme or plan, no conspiracy, and
that the offenses did not occur in the same criminal episode. However, the court permitted
the State to combine Counts 9 and 10 with any of the severed groups because they alleged
neglect that covered the entire period of the ongoing abuse. The State elected to try Counts
9 and 10 with Counts 1 through 4, which are the subject of this appeal.7
6
The Defendant filed a written motion requesting the trial court sever counts 1 through 4
from the rest of the offenses. However, this was filed prior to the State’s bill of particulars. After receiving
the bill of particulars, the Defendant modified her request at the pre-trial hearing on the matter. At the
hearing, the Defendant asked the trial court to separate the charges by their respective offense dates into
four different sets. As such, we consider the Defendant’s amended request to sever the charges by the
offense date.
7
With the agreement of the parties, the trial court renumbered Counts 9 and 10 as Counts 5
and 6 before submitting them to the jury. This was a permissible procedure to ensure that the jury was
unaware of other criminal offenses with which the Defendant was originally charged. See State v.
Thompkins, No. E2023-00209-CCA-R3-CD, 2023 WL 8112826, at *1 n.2 (Tenn. Crim. App. Nov. 21,
2023), no perm. app. filed. However, because of the complex procedural history of this case, we use the
enumeration of the counts as designated by the grand jury.
26
2. Standard of Appellate Review
“We review decisions concerning permissive joinder and severance of offenses
pursuant to [Tennessee] Rules of Criminal Procedure 8(b) and 14(b)(1) for an abuse of
discretion.” Spicer v. State, 12 S.W.3d 438, 442 (Tenn. 2000) (citing State v. Shirley, 6
S.W.3d 243, 247 (Tenn. 1999)). “As such, a trial court’s decision to consolidate or sever
offenses will not be reversed unless the court applied an incorrect legal standard, or reached
a decision which is against logic or reasoning that caused an injustice to the party
complaining.” Id. (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citations
and internal quotation marks omitted)).
3. Severance of Offenses
The Defendant vigorously attacks the State’s elected joinder of Counts 9 and 10
with Counts 1 through 4 for a consolidated trial. The Defendant claims there were no
grounds under Rule 14 to establish a common scheme or plan and that even if a common
scheme or plan had been established, the trial court did not make the proper findings under
Rule 404(b) to consolidate the trial. The State argues that the consolidation was appropriate
because the offenses were part of the same criminal transaction. It further argues, though,
that any error would have been harmless.
Decisions concerning the joinder and severance of offenses are governed by
Rules 8(b) and 14(b)(1) of the Tennessee Rules of Criminal Procedure. Shirley, 6 S.W.3d
at 247. “To consolidate separate indictments under Rule 8(b), the state needs only to show
that the offenses are parts of a common scheme or plan or that the offenses are of the same
or similar character.” Spicer, 12 S.W.3d at 443 (internal quotation marks omitted). On the
other hand, “a defendant has a right under Rule 14(b)(1) to a severance of offenses
permissively joined, unless the offenses are parts of a common scheme or plan and the
evidence of one offense would be admissible upon the trial of the others.” Id. (internal
quotation marks omitted). “Upon the defendant’s motion to sever permissibly joined
offenses, the State bears the burden of establishing both prongs.” State v. Eady, 685 S.W.3d
689, 709 (Tenn. 2024). Importantly, “[t]he primary inquiry into whether a severance should
have been granted under Rule 14 is whether the evidence of one crime would be admissible
in the trial of the other if the two counts of the indictment had been severed.” State v.
Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984).
Errors in severance are analyzed under the harmless error standard. Eady, 685
S.W.3d at 715. Under this standard, relief is only warranted if the error “more probably
than not affected the judgment or would result in prejudice to the judicial process.” State
v. Rodriguez, 254 S.W.3d 361, 374 (Tenn. 2008). As our supreme court has recognized,
“We often have observed that the line between harmless and prejudicial error is in direct
27
proportion to the degree by which proof exceeds the standard required to convict.” Eady,
685 S.W.3d at 715 (citing State v. Denton, 149 S.W.3d 1, 15 (Tenn. 2004)). Thus,
when looking to the effect of an error on the trial, we will evaluate that error
in light of all of the other proof introduced at trial. The more the proof
exceeds that which is necessary to support a finding of guilt beyond a
reasonable doubt, the less likely it becomes that an error affirmatively
affected the outcome of the trial on its merits.
State v. Gilliland, 22 S.W.3d 266, 274 (Tenn. 2000). Ultimately, “[t]he key question is
whether the error likely had an injurious effect on the jury’s decision-making process. If
the answer is yes, the error cannot be harmless.” State v. Brown, No. M2017-00904-CCA-
R3-CD, 2019 WL 1514551, at *30 (Tenn. Crim. App. Apr. 8, 2019) (citing State v. Dotson,
254 S.W.3d 378, 389 (Tenn. 2008)), perm. app. denied (Tenn. Aug. 15, 2019).
Additionally, evidence involving prior acts is often admitted for the non-propensity
purposes of providing necessary contextual background. State v. Reynolds, 635 S.W.3d
893, 921 (Tenn. 2021). Indeed, “[e]vents do not occur in a vacuum, and in many cases,
knowledge of the events surrounding the commission of the crime may be necessary for
the jury to realistically evaluate the evidence.” Gilliland, 22 S.W.3d at 272 (citation and
internal quotation marks omitted). Nevertheless, when contextual background evidence
consists of a defendant’s other acts, the evidence may be offered only when “exclusion of
that evidence would create a chronological or conceptual void in the presentation of the
case and that void would likely result in significant jury confusion concerning the material
issues or evidence in the case.” Id. Under these circumstances, background evidence can
certainly be admissible to “complete the story” for the jury, so long as the danger of unfair
prejudice does not outweigh its probative value. Reynolds, 635 S.W.3d at 903.
Even if the consolidation of Counts 9 and 10 with Counts 1 through 4 was an error—
and we make no such finding—we agree with the State that it had no injurious effect on
the jury’s decision-making process. As discussed above, Dr. Deering’s testimony
concerning the prior scars, marks, and injuries would have been relevant and introduced
regardless of whether Counts 9 and 10 were tried with Counts 1 through 4. Dr. Deering’s
testimony was crucial to an essential element of the felony murder and predicate felony
counts, as it established the manner of death.
Further, the evidence in Counts 9 and 10 would have been admissible as contextual
background in Counts 1 through 4 and vice versa. The evidence in Counts 9 and 10
consisted of the previous scars, marks, and injuries to J.H. that occurred in the two months
he was in the Defendant’s care. This evidence was present in Dr. Deering’s autopsy and
contributed to Dr. Deering’s establishing the manner of death as homicide. The background
28
of the events forming the basis of Counts 9 and 10 was important, if not essential, to the
medical examiner’s conclusion that the fatal head blow was intentionally inflicted and not
accidental. As such, this evidence generated the felony murder charges and their predicate
felonies of aggravated child abuse and aggravated child neglect in Counts 1 through 4.
Conversely, if Counts 9 and 10 were to be tried separately from Counts 1 through 4,
then the evidence in Counts 1 through 4 would also be admissible as necessary contextual
background evidence in that trial of those later counts. The evidence in Counts 1 through
4 would necessarily be admitted because it would have to be introduced through Dr.
Deering’s testimony as the medical examiner who performed J.H.’s autopsy. Included in
that autopsy would be the fatal blunt force trauma to the head that was inflicted on
December 7, which is the offense charged in Counts 1 through 4. For the jury to
realistically evaluate the evidence in Counts 9 and 10, it would have been necessary for the
jury to know of the discovery of J.H.’s abuse and neglect from Dr. Deering’s
examination―evidence that was inseparable from that necessary to establish Counts 1
through 4. As such, evidence of the crimes in Counts 1 through 4 would have been
necessary contextual background evidence in the trial of Counts 9 and 10.
Accordingly, we conclude that the Defendant has not shown that the trial court’s
decision to allow the consolidation “more probably than not affected the judgment” or
“result[ed] in prejudice to the judicial process.” Tenn. R. App. P. 36(b); Rodriguez, 254
S.W.3d at 374. The Defendant is not entitled to relief on this issue.
D. AUTHENTICATION OF V IDEO EVIDENCE
The Defendant next argues that the trial court erred in holding that the State properly
authenticated a video of J.H. that was recorded from a cell phone belonging to a non-
testifying third party. The State asserts that the trial court acted within its discretion when
it admitted the video of J.H. We agree with the State.
1. Background
During the trial, defense counsel objected to the State introducing the video that the
Defendant’s daughter initially showed officers during their first visit to the Defendant’s
home. Detective Miranda Vaughn, the lead detective on the case, testified that
approximately one day after J.H. went to the hospital, she learned that the Defendant’s
daughter had taken a video of J.H. when she was visiting the Defendant over Thanksgiving.
29
She learned that the daughter showed this video to Officer Rico Jones on November 27,
2016.
To track down the video, Detective Vaughn determined that the initial call to the
police came from the daughter’s best friend in Minnesota, Nikitta Higgs, who had been
sent the video from the Defendant’s daughter. Detective Vaughn then went to Minnesota
to interview Ms. Higgs and the Defendant’s daughter. During these interviews, Detective
Vaughn viewed both of their phones and saw the video and messages surrounding it in the
Snapchat app. Detective Vaughn could see that the messages occurred on November 25,
as they were still in the Snapchat app. Additionally, Ms. Higgs informed Detective Vaughn
that she had received the messages and video at 11:43 p.m. on November 25, 2016.
Detective Vaughn then recorded the video on a camera. She also took possession of both
phones, but the police department in Minnesota could not forensically extract the video.
Detective Vaughn identified J.H. in the video and noticed that he had several marks
on his face and back. Further, Detective Vaughn testified that what she saw on the video
was consistent with what she saw on J.H. when he was in the hospital. Detective Vaughn
then provided the video to Dr. Deering.
The State sought to introduce the video through Detective Vaughn and not through
Ms. Higgs or the Defendant’s daughter, citing that they were not cooperative. The trial
court found that a “reliable foundation” existed to permit the introduction of the video.
2. Standard of Appellate Review
We review a trial court’s determination that evidence has been properly
authenticated for an abuse of discretion. State v. Mickens, 123 S.W.3d 355, 376 (Tenn.
Crim. App. 2003). “An abuse of discretion occurs when the trial court applies an incorrect
legal standard or reaches a conclusion that is illogical or unreasonable and causes an
injustice to the party complaining.” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)
(citation and internal quotation marks omitted); State v. Murray, No. M2021-00688-CCA-
R3-CD, 2022 WL 17336522, at *6 (Tenn. Crim. App. Nov. 30, 2022) (citation and internal
quotation marks omitted), perm. app. denied (Tenn. Mar. 8, 2023).
3. Authentication
Tennessee Rule of Evidence 901(a) provides that evidence may be authenticated
“by evidence sufficient to the court to support a finding by the trier of fact that the matter
in question is what its proponent claims.” Further, “[a]uthentication can be properly
established by the testimony of a witness with knowledge that the ‘matter is what it is
30
claimed to be.’” Mickens, 123 S.W.3d at 376 (citing Tenn. R. Evid. 901(b)(1)). As a
leading treatise has observed, “[a]uthentication is actually a facet of conditional relevance
discussed in rule 104(b).” Neil P. Cohen, et al., Tennessee Law of Evidence § 9.01[2][a]
(6th ed. 2011) (hereinafter Tennessee Law of Evidence). In this process, “[t]he judge looks
at the evidence presented by the proponent of the proof and decides whether the jury, if
presented with that evidence, could reasonably find that the proffered item is what it is
claimed to be.” Id. Once the evidence is admitted, “the jury, then, is free to give [the
evidence] as much or little weight as the jury thinks appropriate.” Id. § 9.01[2][c]; State v.
Hinton, 42 S.W.3d 113, 127 (Tenn. Crim. App. 2000).
Specifically regarding the admissibility of videos, “[a] leading treatise has explained
that ‘[v]ideos . . . are authenticated the same way as photographs.’” State v. Spivey, No.
M2018-00263-CCA-R3-CD, 2020 WL 598347, at *10 (Tenn. Crim. App. Feb. 7, 2020)
(quoting Tennessee Law of Evidence § 9.01[3][c]), perm. app. denied (Tenn. June 3, 2020).
Further, “[a] photograph can [be] authenticated by proof that it depicts what it is claimed
to depict, Rule 901(a).” Tennessee Law of Evidence § 401[21][e] (internal quotation marks
omitted). However,
[i]t is not necessary . . . that the witness through whom a photo is being
introduced was also the photographer who took the photo in question. Any
person, whether or not the photographer, familiar with the place or item that
was photographed can authenticate the picture by testifying that it is a true
and accurate depiction of the location or item at issue in the case.
Id.
Additionally, we have previously held that a video is admissible even if the
testifying party was not present at the scene and does not know when it was taken. See
State v. Glass, No. E2019-00965-CCA-R3-CD, 2020 WL 3056502, at *8-9 (Tenn. Crim.
App. June 9, 2020) (holding that the trial court did not abuse its discretion in admitting
video evidence where the testifying officer was not present at the scene and did not clearly
know when the video was taken due to an erroneous time stamp), perm. app. denied (Tenn.
Oct. 7, 2020). Further, “Rule 901 provides that the testimony of a witness with knowledge
is but one in a list provided ‘by way of illustration only, and not by way of limitation.’” Id.(quoting Tenn. R. Evid. 901). “Also included in the illustrative list is the ability to
authenticate a matter using ‘appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with the circumstances.’” Id.In this case, Detective Vaughn was familiar with J.H.’s appearance. She saw him in
person when he was in the hospital and was, therefore, able to identify him in the video.
Further, Detective Vaughn testified that the marks she saw on the video were consistent
with the marks she saw on J.H. when he was in the hospital.
31
Additionally, Detective Vaughn saw the date the video was sent to Ms. Higgs, as it
was still saved in Snapchat, along with the conversation surrounding the video. While the
messages could be inadmissible hearsay in front of a jury, perhaps depending on why they
would be offered, they served as important context for the trial court as it considered the
admissibility of the evidence. The trial court correctly identified that Tennessee Rule of
Evidence 104 permits the court to ask preliminary questions concerning those privileges.
In this context, the circumstances surrounding the video were essential to determine its
authenticity. Specifically, the Defendant’s daughter reached out to Ms. Higgs to express
concern for J.H., informing her that “somebody needed to help [J.H.].” To reinforce this
concern, she sent the video of J.H., which was consistent with what Detective Vaughn saw
in the hospital days later.
Although this is a unique situation, the standard of appellate review is important.
Under an abuse of discretion standard, “[t]he reviewing court need not find that the trial
court made the best decision or the one the appellate court would have made; instead, the
reviewing court must confine itself to determining whether the trial court’s decision was
within the range of acceptable alternatives.” State v. Willis, 496 S.W.3d 653, 729 (Tenn.
2016). The trial court’s decision here was not illogical or wholly unreasonable, and it was
not based on a clearly erroneous assessment of the evidence. See In re Karissa V., No.
E2016-00395-COA-R3-PT, 2017 WL 758513, at *13 (Tenn. Ct. App. Feb. 27, 2017), perm.
app. denied (Tenn. May 24, 2017). As such, when the contents of the video and the
surrounding circumstances are taken together, we cannot conclude that the trial court erred
in finding that the video was sufficiently authenticated for admission. The Defendant is
not entitled to relief on this issue.
E. SUPPLEMENTAL JURY INSTRUCTION
The Defendant next argues that the trial court improperly gave a supplemental jury
instruction in response to a jury question. Specifically, the Defendant asserts that the trial
court provided a contradictory and misleading instruction that jeopardized the jury’s
unanimity and undermined the verdict’s integrity. The State concedes this point and agrees
that Count 4 should be remanded for a new trial. We agree with the parties.
1. Background
As background for this issue, we note that during the closing argument, the State
informed the jury that they could group the counts together. Specifically, the State told the
jury that they could group Counts 1 and 3 together as felony murder committed during the
perpetration of or attempt to perpetrate aggravated child abuse. As an alternate theory, the
State told the jury that they could group Counts 2 and 4 together as felony murder
committed during the perpetration of or attempt to perpetrate aggravated child neglect.
32
However, the State also told the jury that both groupings referred to the blunt force trauma
to the head that occurred on December 7. The State further explained that Counts 9 and 10
referred to “the continuing course of conduct of neglect from September 28th of 2016 to
December 7th of 2016.”
Later, during deliberations, the jury asked whether Count 3 referred to a specific
context or event, and the parties agreed that it referred to the blunt force trauma inflicted
on December 7. The court instructed the jury of that. The jury then asked whether Count
4 referred specifically to the blunt force trauma inflicted on December 7. Appearing to
change its position, the State then argued that it did not have to prove the date of the offense
beyond a reasonable doubt, and as such, the jury should not be instructed that Count 4
specifically referred to the head trauma. Defense counsel pointed out that Count 4 seemed
to refer to the head trauma and asked the court to instruct the jury to refer to the indictment
for further clarification. Instead, the trial court instructed the jury, “No, but refer to the
instructions.” Defense counsel objected to this answer, believing that the supplemental
instruction misled the jury about the law.
2. Standard of Appellate Review
“Questions involving the propriety of jury instructions are mixed questions of law
and fact,” which this court reviews de novo with no presumption of correctness. State v.
Benson, 600 S.W.3d 896, 902 (Tenn. 2020); State v. Hollon, 671 S.W.3d 561, 564 (Tenn.
Crim. App. 2023).
3. Supplemental Jury Instruction
A defendant is entitled “to a correct and complete charge of the law so that each
issue of fact raised by the evidence will be submitted to the jury on proper instructions.”
State v. Perrier, 536 S.W.3d 388, 403 (Tenn. 2017) (citation and internal quotation marks
omitted). In general, “trial courts have the duty, without request, to give proper jury
instructions as to the law governing the issues raised by the nature of the proceeding and
the evidence introduced at trial.” State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013)
(citation omitted).
Further, “[i]n order to determine whether a conviction should be reversed on the
basis of an erroneous instruction to the jury, this [c]ourt must consider whether the ailing
instruction by itself so infected the entire trial that the resulting conviction violates due
process.” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (citation and internal quotation
marks omitted). A jury charge “is erroneous if it fails to fairly submit the legal issues or if
it misleads the jury as to the applicable law.” Id. (citation and internal quotation marks
33
omitted). When an error occurs in jury instructions, it is generally subject to a harmless
error analysis. Hawkins, 406 S.W.3d at 128.
In this case, the parties agree that the supplemental instruction misled the jury into
thinking they could consider other actions as the basis for a conviction in Count 4. In its
closing argument, the State explicitly told the jury that Count 4 referred to the blunt force
injury that occurred on December 7. Then, when the jury sought clarification of this count,
it was told the exact opposite. As such, the supplemental instruction led the jury to believe
that it could possibly consider any act or omission as the basis for a conviction in Count 4,
even those unconnected with December 7. We agree with the parties that the instruction
jeopardized the unanimity of the jury’s verdict and that the error was not harmless. Count
4 must be remanded for a new trial.
Having prevailed in obtaining a new trial on Count 4, the Defendant argues that all
her other convictions must also be remanded for a new trial as well. She argues that the
improper instruction in Count 4 casts doubt over the jury’s deliberations concerning the
remaining counts. For its part, the State concedes only that Count 4 must be remanded,
and it disagrees that any additional count requires a new trial as a result of the improper
instruction.
From our review of the record, we see no plausible argument that the improper
instruction on Count 4 affected the jury’s deliberations on the felony murder or aggravated
child abuse allegations in Counts 1 and 3. The charges stand alone as an alternate theory
to Counts 2 and 4. They have different elements and facts and require a different analysis
than the actions in Count 4. We also see no plausible argument that the improper instruction
affected the other aggravated child neglect charges in Counts 9 and 10. These offenses
encompass the entire course of conduct from September 28 to December 7 and, in the case
of Count 10, had substantive different elements as well. Moreover, the record contains
overwhelming evidence to establish J.H.’s neglect throughout his six-week stay with the
Defendant. As such, jury unanimity is not at risk for the other counts, particularly as the
jury was properly instructed as to these other counts.
However, a different case is present with Count 2. This count charged the Defendant
with first degree murder in the perpetration of the aggravated child neglect felony alleged
in Count 4, a relationship that the parties do not dispute. A guilty verdict in Count 2, then,
was linked to the jury’s finding that the Defendant was guilty of aggravated child neglect
as alleged in Count 4. If, as all agree, the unanimity of the jury was jeopardized with
respect to Count 4, then it must follow, as the night the day, that the same concern is present
with the jury’s consideration of that same felony in Count 2. In other words, if the jury
was misled as to what they could consider for the underlying felony, then it is impossible
to ensure the unanimity of the resulting felony murder, as the elements of both are identical
for the underlying felony.
34
Accordingly, the Defendant’s convictions in Count 2 and the predicate felony in
Count 4 are reversed, and the case is remanded for a new trial on these counts alone. We
specifically affirm the Defendant’s conviction and life sentence for felony murder in the
perpetration of aggravated child abuse in Count 1, as well as the convictions for aggravated
child abuse in Count 3 and aggravated child neglect in Counts 9 and 10.
F. CONSECUTIVE SENTENCING
In her final issue, the Defendant argues that the trial court erred in imposing partial
consecutive sentencing. Specifically, the Defendant asserts that the trial court erred when
it found the Defendant a dangerous offender under Tennessee Code Annotated section
40‑35-115(b)(4) but did not consider the proper factors as enumerated in State v. Wilkerson,
905 S.W.2d 933 (Tenn. 1995), when making this determination. The State concedes that
the trial court did not consider the Wilkerson factors and that the case should be remanded
for resentencing. We agree.
1. Background
During the sentencing hearing, the State argued for consecutive sentencing. They
argued that the Defendants were dangerous offenders under Tennessee Code Annotated
section 40-35-115(4) and treated J.H. so poorly that it indicated they had little to no regard
for human life; therefore, the public needed to be protected from them. The Defendant
argued that the dangerous offender category did not apply to her for consecutive sentencing
because the factor that she had no hesitation when she committed the crime when the risk
to human life was high only applied when a Defendant’s actions put people other than the
victim at risk. Mr. Gardner’s counsel also argued that the consecutive sentencing factors
did not apply.
The court sentenced the Defendant to life imprisonment on the two felony murder
convictions and imposed seventeen-year sentences for her remaining convictions. The
court merged the Defendant’s two felony murder convictions and the two aggravated child
neglect convictions. The court ordered the two seventeen-year sentences to run
concurrently with each other but consecutive to the life sentence. The court agreed with
the State that the Defendants were dangerous offenders because “this situation went on for
a period of two and a half months” and imposed consecutive sentences.
2. Standard of Appellate Review
When a defendant challenges the trial court’s decision to impose consecutive
sentences, we review that decision for an abuse of discretion accompanied by a
35
presumption of reasonableness. See State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013).
Thus, we defer to “the trial court’s exercise of its discretionary authority to impose
consecutive sentences if it has provided reasons on the record establishing at least one of
the seven grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]” Id. at 861.
As our supreme court has recognized, “[s]o long as a trial court properly articulates reasons
for ordering consecutive sentences, thereby providing a basis for meaningful appellate
review, the sentences will be presumed reasonable and, absent an abuse of discretion,
upheld on appeal.” Id. at 862.
3. Dangerous Offender Classification
The process of imposing discretionary consecutive sentences pursuant to Tennessee
Code Annotated section 40-35-115(b) involves two steps. See State v. Gilliam, No. E2023-
00533-CCA-R3-CD, 2024 WL 1829118, at *3 (Tenn. Crim. App. Apr. 26, 2024), no perm.
app. filed. First, the trial court must find by a preponderance of the evidence that “the
defendant qualifies for consecutive sentencing under one of the classifications set forth in
section 40-35-115(b).” State v. Perry, 656 S.W.3d 116, 127 (Tenn. 2022) (footnote
omitted). Second, the trial court must “then choose whether, and to what degree, to impose
consecutive sentencing based on the facts and circumstances of the case, bearing in mind
the purposes and principles of sentencing.” Id.In this case, the trial court found that the Defendant was a dangerous offender and
qualified for consecutive sentencing pursuant to Tennessee Code Annotated section
40‑35‑115(b)(4). Our supreme court has held that “before imposing consecutive sentences
based upon the dangerous offender classification, trial courts must conclude that the
evidence has established that the aggregate sentence is ‘reasonably related to the severity
of the offenses’ and ‘necessary in order to protect the public from further criminal acts.’”
Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905 S.W.2d at 938). These conclusions
also must be supported by “particular facts” in the record. See State v. Brodie, No. M2023-
00135-CCA-R3-CD, 2024 WL 3272795, at *17 (Tenn. Crim. App. July 2, 2024) (“Because
the trial court failed to make any specific findings regarding Harbison’s actions as they
related to the Wilkerson factors in determining that he was a dangerous offender, the record
cannot support consecutive sentencing.”), no perm. app. filed.
In this case, the State agrees that the appropriate findings were not made to impose
consecutive sentences under Wilkerson. As such, we cannot “presume that the consecutive
sentences are reasonable,” nor can we “defer to the trial court’s exercise of its discretionary
authority.” Pollard, 432 S.W.3d at 863-64. Because the considerations required under
Wilkerson involve “a fact-intensive inquiry . . . the better course is to remand to the trial
court for consideration of the Wilkerson requirements in determining the propriety of
36
consecutive sentencing.” Id.; State v. Ragland, No. W2022‑01303-CCA-R3-CD, 2023 WL
3947501, at *6 (Tenn. Crim. App. June 12, 2023) (citations omitted), no perm. app. filed.
We respectfully vacate the order imposing consecutive sentences and remand for
the trial court to consider the sentencing factors outlined in Wilkerson. We note that the
trial court’s reasoning need not be “particularly lengthy or detailed,” but it “simply must
set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Perry,
656 S.W.3d at 126 (citation and internal quotation marks omitted). In all other respects,
the trial court’s sentences are affirmed.
II. ISSUES RAISED BY PHILLIP GARDNER
We now turn to Mr. Gardner’s issues raised in his appeal. For this next section of
our opinion, we refer to Mr. Gardner as “the Defendant.”
In this appeal, the Defendant argues that the evidence is legally insufficient to
support his convictions. He also asserts that the trial court erred by (1) taking his mid-trial
motion for a judgment of acquittal under advisement; (2) denying the motion to sever the
Defendants; (3) failing to exclude evidence of prior injuries to the child; (4) failing to
instruct the jury on his alibi defense; and (5) giving an improper supplemental jury
instruction.
We address each of these issues in turn.
A. LEGAL SUFFICIENCY OF THE EVIDENCE
The Defendant argues that the evidence is legally insufficient to support his
conviction for felony murder based on aggravated child neglect and his convictions for
aggravated child neglect. He asserts that the State failed to prove that he knowingly
neglected J.H. because he was at work when the fatal head injury occurred. The State
responds that the evidence is legally sufficient to prove aggravated child neglect and felony
murder. We agree with the State.
1. Standard of Appellate Review
As we observed above, “The standard for appellate review of a claim challenging
the sufficiency of the State’s evidence is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
37
elements of the crime beyond a reasonable doubt.” Miller, 638 S.W.3d at 157 (citation and
internal quotation marks omitted).
2. First Degree Felony Murder and Aggravated Child Neglect in
Counts 2 and 4
The Defendant challenges his convictions for felony murder and aggravated child
neglect.8 We identified the statutory elements with respect to these two crimes in our
discussion of Ms. Gardner’s case. Without repeating the entire discussion here, first degree
felony murder as charged in Count 2 is defined as the “killing of another committed in the
perpetration of or attempt to perpetrate any . . . aggravated child neglect[.]” Tenn. Code
Ann. § 39‑13‑202(a)(2). To sustain the Defendant’s conviction for first degree felony
murder, the State must first establish that the underlying felony of aggravated child neglect
occurred.
In addition, Count 4 charged the Defendant with aggravated child neglect. As we
noted above, the offense of child neglect is defined as “[a]ny person who knowingly abuses
or neglects a child under eighteen (18) years of age, so as to adversely affect the child’s
health and welfare.” Tenn. Code Ann. § 39-15-401(b). As charged in this count, the offense
becomes aggravated when the neglect “results in serious bodily injury to the child[.]”
Id. § 39-15-402(a)(1).
a. “Knowing” Element
The Defendant first challenges the “knowing” mens rea element of the child neglect
charge. He asserts that because he was at work on December 7, 2016, he could not have
knowingly neglected J.H. on that day. In response, the State argues that for the child
neglect convictions, it was immaterial whether the Defendant was present when J.H.
suffered the fatal blow. Instead, it argues that he knowingly left J.H. in Ms. Gardner’s care
after a series of mysterious injuries and never sought medical help. We agree with the
State.
Our supreme court has recognized that the offense of child neglect is a nature-of-
conduct offense. State v. Ducker, 27 S.W.3d 889, 897 (Tenn. 2000). As applied to a nature-
of-conduct element, the mens rea of “knowingly” is established when the proof shows that
“the person is aware of the nature of the conduct[.]” See Tenn. Code Ann. § 39-11-106(23)
(2018) (emphasis added). As such, in the context of child neglect, criminal liability may
8
The Defendant also appears to challenge the sufficiency of the convicting evidence for
aggravated child abuse and the corresponding felony murder count. However, the jury acquitted him of
these charges.
38
exist where the defendant is aware of the neglectful nature of his or her conduct, and this
conduct adversely affects the child’s health and welfare. See State v. Hanson, 279 S.W.3d
265, 277 (Tenn. 2009); State v. Dewitt, No. M2015-00816-CCA-R3-CD, 2016 WL
6638857, at *7 (Tenn. Crim. App. Nov. 10, 2016) (“The statute merely requires that the act
of neglecting the child must be knowing.”), no perm. app. filed. A defendant “is not
required to have any awareness of the likelihood that injury could result from the neglect.”
State v. Doty, No. W2018-00701-CCA-R3-CD, 2020 WL 4045669, at *11 (Tenn. Crim.
App. July 17, 2020), no perm. app. filed.
In this case, there is no dispute that J.H. lived with the Defendant for over one month
before his death and that the Defendant, as J.H.’s father, had a legal duty to care for J.H.
See Sherman, 266 S.W.3d at 404. There is also no dispute that the Defendant continually
left J.H. in the sole care of Ms. Gardner when he went to work.
According to the medical examiner, J.H. suffered from broken ribs and a fractured
nose during the time he was in the care of the Defendant and Ms. Gardner. The medical
examiner confirmed that these injuries would have caused J.H. to be in obvious pain for
several days and that several burns, bruises, and marks on J.H.’s body would have been
visible to the Defendant. Moreover, when Ms. Perry spoke with the Defendant, he admitted
that he knew about J.H.’s fall in the bathtub, as well as his black eye and the burns to his
hands. He confirmed to her that J.H. was in Ms. Gardner’s care during these times and that
Ms. Gardner told him what happened.
Viewing the evidence in the light most favorable to the State, a rational juror could
find that the Defendant was aware that his son was suffering from noticeable injuries and
severe pain after being in Ms. Gardner’s care. However, despite this awareness, the
Defendant nevertheless continued to leave J.H. in her exclusive care on December 7, 2016,
when J.H. suffered a fatal blow to his head that resulted in his death. Contrary to the
Defendant’s arguments, we conclude that a rational juror could have found that the
Defendant acted with an awareness that his conduct in leaving his son in the care of Ms.
Gardner evidenced “an absence of care or attention” in his health and welfare that placed
J.H. at risk of harm. See Neglect, Black’s Law Dictionary (6th ed. 1990). The evidence is
legally sufficient to support the jury’s finding that the Defendant knowingly neglected his
son as alleged in Count 4.
b. “Adversely Affect” Element
The Defendant next argues that the State failed to prove that J.H.’s welfare was
adversely affected by his neglect. More specifically, he asserts that his delay in seeking
medical treatment for J.H. (or complete lack thereof) did not lead to an actual, deleterious
effect upon J.H. Instead, he maintains that only Ms. Gardner’s abuse led to an adverse
39
effect on J.H. and that his delay in seeking medical treatment was, therefore,
inconsequential. The State responds that the evidence is sufficient to establish that element
because the Defendant’s neglect resulted in J.H. suffering a blow to the head that resulted
in his death. We agree with the State.
As we observed above, the statute makes clear that the neglect of a child must
adversely affect the child’s health or welfare. Tenn. Code Ann. § 39-15-401(b); Mateyko,
53 S.W.3d at 671-72. Our supreme court has emphasized that the statute requires more
than a mere risk of harm. Instead, “before a conviction for child neglect may be sustained,
the State must show that the defendant’s neglect produced an actual, deleterious effect or
harm upon the child’s health and welfare.” Mateyko, 53 S.W.3d at 671-72.
As we also observed above, Count 4 was an alternative to the child abuse theory in
Count 3. Although Count 3 proceeded under the theory that the Defendants directly
inflicted the blunt force trauma that later resulted in J.H.’s death, Count 4 rested on the
theory that the Defendants were aware that J.H. was suffering from a condition that caused
him to fall or otherwise injure himself. As the State argued, the Defendants neglected J.H.
by leaving him unsupervised and failing to investigate or seek medical attention for this
condition, with J.H. suffering a fatal head injury as a result.
In this context, the Defendant continually left J.H. under the sole care of Ms.
Gardner, where J.H. suffered multiple unexplained injuries. The Defendant admits that he
knew about these injuries yet took no action to help J.H. and continued to leave him under
Ms. Gardner’s care. Further, according to the medical examiner, J.H.’s pain from his
injuries would have been obvious to others, and the Defendant chose to ignore this, as well.
The Defendant’s continuous neglect of J.H. by failing to seek medical treatment, as well as
his continuous neglect in leaving J.H. in the sole care of Ms. Gardner, where he would get
harmed, led to the events of December 7 and J.H.’s eventual death. As such, when viewed
in the light most favorable to the State, a rational juror could find that, as a result of the
Defendant’s neglect, J.H. suffered an actual, deleterious effect or harm upon his health and
welfare.
Finally, viewing the evidence in the light most favorable to the State, a rational juror
could also find that the death of J.H. occurred because of this neglect and that his death
was closely connected to the neglect in time, place, causation, and continuity of action.
We, therefore, conclude that the proof is legally sufficient to support the Defendant’s
convictions for the first degree felony murder and the aggravated child neglect of J.H. as
alleged in Counts 2 and 4 of the indictment.
40
3. Aggravated Child Neglect in Counts 9 and 10
The Defendant next appears to argue that the evidence was also insufficient to
support his convictions in Counts 9 and 10, which were two alternative theories of
aggravated child neglect. We will address each of these theories in turn.
a. Count 9
As set forth in the indictment, Count 9 alleged that the Defendant committed the
offense of aggravated child neglect between the dates of September 28, 2016, and
December 7, 2016. Therefore, Count 9 shares the same statutory elements as Count 4,
though with a different date range.
In this case, J.H. was in the Defendant’s care for over one month before his death.
According to the medical examiner, J.H. suffered from broken ribs and a fractured nose
during the time he was in the Defendant’s care. The medical examiner confirmed that these
injuries would have caused J.H. to be in obvious pain for several days and that several
burns and marks on J.H.’s body would have been visible to the Defendant. When Ms. Perry
spoke with the Defendant, he admitted that he knew about J.H.’s fall in the bathtub, as well
as his black eye and the burns to his hands.
Our supreme court has recognized that a parent’s decision to knowingly forgo
medical treatment, with knowledge and awareness of a child’s obvious physical anguish,
may constitute criminal child neglect. See, e.g., State v. Adams, 24 S.W.3d 289, 297 (Tenn.
2000). This neglect “lasts as long as such care is not provided, and a child continues to be
in a situation of want as long as the morals or health of the child is endangered.” Id. at 296.
Viewing the evidence in the light most favorable to the State, a rational juror could find
that the Defendant was aware that J.H. was suffering from significant injuries that were
causing obvious pain, bruising, and other marks. A rational juror could also find that the
Defendant knowingly neglected his son when he continually failed to seek medical
treatment despite this awareness. We conclude that the proof is legally sufficient to support
the Defendant’s conviction for aggravated child neglect as alleged in Count 9.
b. Count 10
As set forth in the indictment, Count 10 alleged that the Defendant committed the
offense of child neglect, and the neglect “was especially heinous, atrocious or cruel, or
involved the infliction of torture to the victim[.]” Tenn. Code Ann. § 39-15-402(a)(3). The
offense of child neglect is defined as “[a]ny person who knowingly abuses or neglects a
child under eighteen (18) years of age, so as to adversely affect the child’s health and
41
welfare.” Id. § 39-15-401(b); see Mateyko, 53 S.W.3d at 671-72. This court has previously
defined “heinous, atrocious, and cruel” as follows:
• Heinous: “Grossly wicked or reprehensible; abominable; odious; vile.”
• Atrocious: “Extremely evil or cruel; monstrous; exceptionally bad;
abominable.”
• Cruel: “Disposed to inflict pain or suffering; causing suffering; painful.”
State v. Bradshaw, No. W2014-00175-CCA-R3-CD, 2015 WL 523688, at *6-7 (Tenn.
Crim. App. Feb. 9, 2015) (citing State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985)),
perm. app. denied (Tenn. May 18, 2015).
Although the Defendant appears to argue generally that the evidence is insufficient
to support this count, he does not specifically challenge whether the neglect J.H. suffered
was especially heinous, atrocious, or cruel. However, as we discussed above, J.H. was in
the Defendant’s care for over one month before his death. According to the medical
examiner, J.H. suffered from broken ribs and a fractured nose during the time he was in the
Defendant’s care. The medical examiner confirmed that the rib injuries were four- to six-
weeks old and would have caused J.H. to be in obvious pain. In addition, the Defendant
admitted that he was actually aware that J.H. suffered several other injuries across his body
as a whole that occurred at different times.
Viewing the evidence in the light most favorable to the State, a rational juror could
find that the Defendant knowingly neglected his son and that the neglect was especially
cruel. Given the number and nature of J.H’s injuries, as well as the duration of the adverse
effects to his health and welfare from the failure to seek medical care, a rational juror could
find that the Defendant’s neglect needlessly and callously caused J.H. to suffer significant
pain above that contemplated by the neglect elements themselves. As such, we conclude
that the proof is legally sufficient to support the Defendant’s convictions for aggravated
child neglect as alleged in Count 10.
42
B. MOTION FOR A JUDGMENT OF ACQUITTAL
The Defendant next argues that the trial court erred when it took the motion for a
judgment of acquittal under advisement at the close of the State’s proof. In response, the
State asserts that the Defendant waived plenary review of this issue because he failed to
object in the trial court. We agree with the State.
As background for this issue, Ms. Gardner’s counsel made a motion for a judgment
of acquittal after the State’s close of proof. Counsel cited several cases discussing the
differences between child abuse and child neglect and then asked the court to review the
cases overnight. The Defendant’s counsel then joined the motion, asking for the court’s
ruling to apply to him as well. The court agreed and took the motion under advisement.
The following day, the trial court denied the motion. The court noted that it had
read numerous cases and found that the facts here were “significantly murky.”
Characterizing the issue as close, it nevertheless denied the motion and allowed the
codefendants to proceed with their respective cases.
Citing Mathis v. State, 590 S.W.2d 449 (Tenn. 1979), the Defendant now argues that
it was reversible error for the trial court to have taken the motion under advisement. We
respectfully disagree. The supreme court’s decision in Mathis does not prohibit a trial court
from carefully considering a motion for a judgment of acquittal while taking the necessary
time to do so. It only holds that when the motion is made after the State’s case, the court
must consider only the State’s evidence and rule on the motion before allowing the trial to
proceed. Mathis, 590 S.W.2d at 453 (finding error when the trial judge “elected to take the
motion under advisement and hear the entire case before making a final ruling”). In the
present case, the trial court ruled on the motion for judgment of acquittal before allowing
the defense to present its evidence. Taking a reasonable period to consider the motion was
both appropriate and within the court’s discretion. The Defendant is not entitled to relief
on this issue.
C. SEVERANCE OF DEFENDANTS
The Defendant next argues that the trial court erred in failing to sever the
Defendants’ cases pursuant to Tennessee Rule of Criminal Procedure 14. He asserts that
because the State confirmed his alibi for December 7, 2016, any evidence about that date
was prejudicial to him. He further alleges that with a severance, “no direct or
circumstantial evidence” would have been offered against him.
43
In response, the State observes that the Defendant did not file a motion to sever
Defendants prior to trial. It also asserts that the Defendant has failed to show that he
suffered any prejudice, particularly given that he was acquitted on the charges of
aggravated child abuse. We conclude that the Defendant did not properly preserve this
issue for plenary review on appeal.
The Tennessee Rules of Criminal Procedure require that a motion to sever
defendants must be raised before trial. Tenn. R. Crim. P. 12(b)(2)(E). If a party does not
file a motion to sever before trial, then the party waives consideration of the issue. See
Tenn. R. Crim. P. 12(f)(1); State v. Branham, 501 S.W.3d 577, 591 (Tenn. Crim. App.
2016); State v. Williams, No. W2018-00924-CCA-R3-CD, 2020 WL 211546, at *28 (Tenn.
Crim. App. Jan. 14, 2020) (“The Defendant did not file a pretrial motion to sever and has
therefore waived consideration of the issue.”), perm. app. denied (Tenn. June 5, 2020).
However, the mere filing of a pretrial motion “is not sufficient to raise an issue for
the court to decide.” See State v. Hurn, No. E2022-01192-CCA-R3-CD, 2023 WL
7001621, at *8 (Tenn. Crim. App. Oct. 24, 2023), perm. app. denied (Tenn. Apr. 11, 2024).
Instead, to avoid waiving the issues raised by a pretrial motion, a defendant must
affirmatively “bring [the] motion to the attention of the trial judge and have the trial judge
rule upon the motion prior to trial.” State v. Aucoin, 756 S.W.2d 705, 709 (Tenn. Crim.
App. 1988); State v. Burton, 751 S.W.2d 440, 445 (Tenn. Crim. App. 1988) (citing Tenn.
R. Crim. P. 12(b)(3)). Indeed, “if a written motion is filed and the moving party takes no
further action to bring the motion to the trial court’s attention, the motion will be treated as
abandoned.” Hurn, 2023 WL 7001621, at *8 (citing State v. Banks, 271 S.W.3d 90, 170
(Tenn. 2008)).
In this case, the Defendant never filed a motion to sever his case from his
codefendant. Although his codefendant filed such a limited motion to sever based on
Bruton issues,9 see Tenn. R. Crim. P. 14(c)(1), the Defendant did not join the motion during
its litigation. In fact, the trial court’s written order recognized that only Ms. Gardner had
requested relief.
Some fifteen months later, the Defendant’s newly appointed counsel filed a request
to join all of Ms. Gardner’s previously argued motions. He asserted that this request was
“to protect his rights should this matter require judicial review.” In response, the trial court
subsequently issued an order that joined the Defendant in all previously argued motions so
that “the record does not reflect that [the Defendant] waived the aforementioned arguments
9
See Bruton v. United States, 391 U.S. 123 (1968) (holding that allowing a codefendant’s
inadmissible confession that implicates the defendant in a joint trial violates the defendant’s Sixth
Amendment right to confrontation).
44
at the trial level.” Importantly, the trial court added that the “Latonia Gardner rulings be
applied to Phillip Gardner if appropriate.”
In its discretion, a trial court may permit a defendant to join a specific motion filed
by a codefendant. See United States v. Nance, 168 F. Supp. 3d 541, 554 (W.D.N.Y. 2016)
(granting a motion to join where the defendant also has standing and relief would be
applicable to the defendant); but see United States v. Cobb, 544 F. Supp. 3d 310, 344
(W.D.N.Y. 2021) (adopting a policy “requiring each defense counsel to independently file
motions on behalf of their clients and not simply file boilerplate motions seeking to ‘join
in relevant motions of co-counsel.’”). However, unless the defendant raises additional
grounds for relief, the joining defendant will necessarily be limited to the issues actually
raised and decided in the original motion.
Here, Ms. Gardner’s motion only sought severance pursuant to Tennessee Rule of
Criminal Procedure 14(c)(1) because of Bruton issues. It did not seek a severance under
Rule 14(c)(2), as the Defendant does in this court, or argue that a severance was necessary
to achieve a fair determination of the guilt or innocence of one or more defendants. By
joining Ms. Gardner’s motion and having its ruling apply to him, the Defendant arguably
achieved only the preservation of her Bruton issues, nothing more.10
Had the Defendant wished to raise a severance issue on grounds other than Bruton,
he was first required to raise that issue in a written motion before trial. Tenn. R. Crim. P.
12(b)(2)(E). He was then obligated to bring that motion to the trial court’s attention and
seek a ruling from the court before trial. Hurn, 2023 WL 7001621, at *8. He did neither.
Instead, he asks us to place the trial court in error on an issue that it was never asked to
consider or rule upon in the first instance.11 We respectfully decline the invitation. See
10
This case illustrates well the dangers of uncritically joining motions filed by other parties.
Ms. Gardner sought a severance because of concerns that the Defendant’s statements would be used against
her. Because the Defendant’s own statements would be admissible against him in any event, this request
for Bruton relief is nonsensical when applied to the Defendant himself. Cf. State v. Luckie, 106 N.E.3d 289,
298 (Ohio Ct. App. 2018) (“The testimony concerned Appellant’s own statement, not that of Ramirez, his
non-testifying co-defendant. Therefore, the testimony does not implicate Bruton as to Appellant.”). By
joining this motion without a further request for relief, he effectively preserved no issue at all for further
review.
11
Despite not raising this issue before trial, the Defendant attempted to raise it after trial in
his motion for a new trial. This action failed to preserve the issue for appellate review. See State v. Vance,
596 S.W.3d 229, 253 (Tenn. 2020) (“[A] party is bound by the ground asserted when making an objection
to the admission of evidence and cannot assert a new or different theory to support the objection in the
motion for new trial.”). Indeed, it is well-established that “[w]hen a party abandons the ground asserted
when the objection was made and asserts completely different grounds in the motion for a new trial and in
[the appellate] court, the party waives the issue.” State v. Howard, No. M2020-01053-CCA-R3-CD, 2021
45
Thompson, 2023 WL 4552193, at *4 (“[W]e have been extremely hesitant to put a trial
court in error where its alleged shortcoming has not been the subject of a contemporaneous
objection.” (citation and internal quotation marks omitted)).
We conclude that the Defendant has waived plenary review of whether a severance
of defendants should have been granted pursuant to Rule 14(c)(1). Because the Defendant
does not request plain error review otherwise, we do not consider the issue further. See
State v. Woodruff, No. W2023-01446-CCA-R3-CD, 2024 WL 2874583, at *3 (Tenn. Crim.
App. June 7, 2024), no perm. app. filed. The Defendant is not entitled to relief.
D. EVIDENCE OF PRIOR INJURIES
The Defendant next appears to argue that the State failed to establish venue because
he asserts that J.H.’s injuries occurred in Ohio and not in Davidson County. He further
asserts that the trial court erred in failing to exclude evidence of these previous injuries
under Rule 404(b) of the Tennessee Rules of Evidence. The State responds that there was
sufficient evidence the offenses were committed in Davidson County and that the trial court
properly held that Rule 404(b) did not control whether the evidence of prior injuries was
admissible. We agree with the State.
1. Venue
The Defendant first argues that venue was never established because, he claims, the
injuries inflicted upon J.H. occurred while in the care of Ms. Hunter in Ohio. In response,
the State argues that venue was established because the proof showed that the offenses
happened in Davidson County. We agree with the State.
A defendant has the right to be tried by an impartial jury of the county in which the
crime was committed. Tenn. Const. art. I, § 9; Tenn. R. Crim. P. 18. As our supreme court
has recognized, “[p]roof of venue is necessary to establish the jurisdiction of the court, but
it is not an element of any offense and need only be proved by a preponderance of the
evidence.” State v. Young, 196 S.W.3d 85, 101 (Tenn. 2006). The question of venue is for
the jury to decide. Venue may be established by circumstantial evidence, and “the jury is
entitled to draw reasonable inferences from the evidence.” Id. at 101-02.
Initially, the Defendant alleged in his motion for a new trial and on appeal that the
venue of the “suspected abuse” was not established. However, the jury found the
WL 5918320, at *6 (Tenn. Crim. App. Dec. 15, 2021), no perm. app. filed; see also State v. Schiefelbein,
230 S.W.3d 88, 129 (Tenn. Crim. App. 2007).
46
Defendant not guilty of the child abuse charge and its associated felony murder count. As
such, any issue as to venue for the child abuse allegations has been rendered moot by the
jury’s acquittal. See State v. Adams, 916 S.W.2d 471, 477 (Tenn. Crim. App. 1995) (“When
the trial court granted the motion for judgment of acquittal, it rendered the issues contained
in the appellee’s motion for new trial moot.”); State v. Amble, No. E2016-02495-CCA-R3-
CD, 2018 WL 1989632, at *2 (Tenn. Crim. App. Apr. 27, 2018) (recognizing that “an issue
is moot upon acquittal”), perm. app. denied (Tenn. Sept. 13, 2018).
However, for two reasons, we conclude that venue in Davidson County was plainly
established with respect to the child neglect charges. First, the elements of aggravated
child neglect do not require that particular injuries occur in Tennessee. See Tenn. Code
Ann. §§ 39-15-401(b); 39-15-402(a)(3). As such, even if J.H.’s injuries occurred in Ohio—
and we note that the Defendant admitted to knowing that at least some of the injuries
occurred in Tennessee—the place where J.H.’s injuries were inflicted is immaterial if the
Defendant’s knowing neglect occurred in this state.
Second, the evidence establishes that the Defendant’s knowing neglect of J.H.
occurred in Davidson County. As we explained above, a rational juror could find that the
Defendant knowingly neglected the victim when he continually failed to seek medical
treatment despite knowing about many of his unexplained injuries. Additionally, a rational
juror could have found that J.H. would have been in visible pain due to several of his
injuries, and, as such, the Defendant would have known of the pain and the associated
injuries. Yet, he continually chose not to seek medical treatment, and all of these decisions
occurred in Davidson County. Moreover, despite knowing about all these injuries, the
Defendant still decided to leave J.H. in the exclusive care of Ms. Gardner on December 7,
2016, in Davidson County, when J.H. suffered a fatal blow to his head that resulted in his
death.
From our review of the record, all of the events surrounding the Defendant’s own
aggravated child neglect that ultimately led to J.H.’s death occurred in Davidson County.
As such, because a rational juror could find, by a preponderance of the evidence, that the
offenses of felony murder and aggravated child neglect occurred in Davidson County, the
State established venue by a preponderance of the evidence. The Defendant is not entitled
to relief on this issue.
47
2. Tennessee Rule of Evidence 404(b)
The Defendant also argues that the trial court erred when it failed to exclude
evidence of J.H.’s prior injuries pursuant to Tennessee Rule of Evidence 404(b).12
Specifically, he claims that the trial court erred in finding that the State had met “the
requisites of 404(b)” and that the danger of unfair prejudice outweighed the probative value
of the evidence. The State responds that because there was no evidence as to the identity
of the person who inflicted the injuries, Rule 404(b) did not apply. We agree with the State.
Tennessee Rule of Evidence 404(b) provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show action
in conformity with the character trait.” The rationale supporting the rule is that the
admission of such evidence “carries with it the inherent risk of the jury convicting a
defendant of a crime based on his or her bad character or propensity to commit a crime,
rather than the strength of the proof of guilt on the specific charge.” Eady, 685 S.W.3d at
712 (citation and internal quotation marks omitted).
Importantly, unless the evidence shows that the defendant committed the prior act,
the evidence cannot show “that the defendant had a criminal disposition and that he could
be expected to act in conformity therewith.” State v. Stevens, 78 S.W.3d 817, 837 (Tenn.
2002). Thus, in the context of child abuse cases, our supreme court has recognized that
Rule 404(b) does not exclude evidence of a child’s prior injuries if the evidence does not
show that the defendant inflicted the injuries.
For example, in State v. DuBose, 953 S.W.2d 649 (Tenn. 1997), the defendant was
convicted of felony murder committed during the perpetration of child abuse, and the court
allowed evidence of prior abdominal injuries to be admitted over the defendant’s objection.
Id. at 653. Our supreme court then held that “[s]ince the evidence admitted did not show
the identity of the person who caused the prior abdominal injuries sustained by the victim,
it was not inadmissible under Rule 404(b) as reflecting upon the character of the
defendant.” Id.; see also State v. Gomez, 367 S.W.3d 237, 245 n.6 (Tenn. 2012) (“In this
case, the assaults [on the child] were committed by Mr. Gomez. Rule 404(b) therefore is
inapplicable as to Ms. Lopez.”). As such, if the evidence does not show that the defendant
caused the child’s prior injuries, “the relevancy of the evidence should be tested under
Tennessee Rules of Evidence 401 and 402, not 404(b).” State v. Lacy, 983 S.W.2d 686,
692 (Tenn. Crim. App. 1997) (citing DuBose, 953 S.W.2d at 654).
12
The Defendant does not argue that this evidence is inadmissible under other evidence rules
or statutes, save for the relevance of the previous injuries. See Tenn. R. Evid. 402. We addressed the
relevance of this evidence in our discussion of the expert testimony issues, and because the Defendant
argues no grounds for exclusion other than Rule 404(b), we limit our discussion to that issue.
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In this case, the trial court correctly held that Rule 404(b) did not apply because
there was no evidence that the defendant inflicted the prior injuries. Without this evidence,
J.H.’s prior injuries do not show that the Defendant had a criminal disposition and acted in
conformity therewith. See Stevens, 78 S.W.3d at 837. In other words, because it was never
claimed that the Defendant inflicted the prior injuries, the evidence could not reflect on his
character and, therefore, be excluded by Rule 404(b) as it applied to him. Because the trial
court correctly determined that Rule 404(b) did not apply to this evidence, the Defendant
is not entitled to relief on this issue.
E. JURY INSTRUCTIONS
The Defendant next argues that the trial court improperly gave a supplemental jury
instruction in response to a jury question. He also asserts that he was entitled to an alibi
instruction. We address each of these issues in turn.
1. Standard of Appellate Review
A defendant is entitled “to a correct and complete charge of the law so that each
issue of fact raised by the evidence will be submitted to the jury on proper instructions.”
Perrier, 536 S.W.3d at 403 (citation and internal quotation marks omitted). In general,
“trial courts have the duty, without request, to give proper jury instructions as to the law
governing the issues raised by the nature of the proceeding and the evidence introduced at
trial.” Hawkins, 406 S.W.3d at 129 (citations omitted). A jury charge “is erroneous if it
fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.”
James, 315 S.W.3d at 446 (citation and internal quotation marks omitted). “Questions
involving the propriety of jury instructions are mixed questions of law and fact,” which
this court reviews de novo with no presumption of correctness. Benson, 600 S.W.3d at
902; Hollon, 671 S.W.3d at 564.
2. Jury Question and Supplemental Instruction
Like his co-defendant, the Defendant argues that the trial court improperly gave a
supplemental jury instruction in response to a jury question. Specifically, the Defendant
asserts that the trial court provided a contradictory and misleading instruction that
jeopardized the jury’s unanimity and undermined the verdict’s integrity. The State
concedes this point and agrees that Count 4 should be remanded for a new trial. We agree.
As discussed above, the parties agree on appeal that the supplemental instruction
misled the jury into thinking they could consider other actions as the basis for a conviction
in Count 4. We agree with the parties that the instruction jeopardized the unanimity of the
49
jury’s verdict and that the error was not harmless. For the reasons we have discussed,
Count 4 must be remanded for a new trial.
The Defendant further argues that his remaining convictions must also be remanded
for a new trial as well. For the reasons given above in our analysis of Ms. Gardner’s nearly
identical argument, we agree with respect to Count 2 but respectfully disagree as to Counts
9 and 10. As such, we vacate the convictions in Counts 2 and 4 and remand the case for a
new trial on these counts alone.
3. Alibi
Finally, the Defendant argues that the trial court should have given an alibi jury
instruction because he was not home when J.H. suffered the trauma to his head on
December 7, 2016. The State responds that any error was harmless because the jury
acquitted him of the abuse that occurred on December 7, 2016. We agree with the State.
We have defined an “alibi” as being “[a] defense based on the physical impossibility
of a defendant’s guilt by placing the defendant in a location other than the scene of the
crime at the relevant time.” State v. Looper, 118 S.W.3d 386, 416-17 (Tenn. Crim. App.
2003). Importantly, however, an alibi defense cannot be fairly raised by the evidence
without a physical impossibility of committing the crime. See State v. Gomez, No. M2018-
00529-CCA-R3-CD, 2019 WL 911160, at *4 (Tenn. Crim. App. Feb. 22, 2019), no perm.
app. filed; Looper, 118 S.W.3d at 417 (recognizing that “the essence of an alibi is the
physical impossibility of a defendant’s having been at the scene when the crime was
committed”).
The trial court must instruct the jury of an alibi defense when it is fairly raised by
the evidence, regardless of whether the defendant requests the instruction. Manning v.
State, 500 S.W.2d 913, 915 (Tenn. 1973). In Manning, our supreme court identified three
sets of circumstances where an alibi defense could be fairly raised: “(1) where the
defendant’s alibi has been corroborated by other credible witnesses; (2) where the victim
has been unable to identify the defendant; [or] (3) where the proof against the defendant is
wholly circumstantial.” Id. at 916 (citations omitted). A failure to instruct the jury of an
alibi defense when the proof fairly raises it could constitute reversible error. Moffitt v.
State, 29 S.W.3d 51, 57 (Tenn. Crim. App. 1999).
In this case, the State’s proof supported the Defendant’s alibi. It introduced evidence
that the Defendant was at work on December 7, 2016, when J.H. suffered the fatal blow to
his head. Indeed, Detective Vaughn testified that she confirmed that the Defendant was at
work that day. As such, because the relevant evidence fairly raised an alibi defense, the
Defendant was entitled to an alibi instruction with respect to the child abuse charges. That
50
said, because the Defendant was acquitted of these charges, the failure to give an instruction
as to Counts 1 and 3 could not have affected the jury’s verdict. See State v. Cecil, 409
S.W.3d 599, 610 (Tenn. 2013) (“In order to determine whether an instructional error is
harmless, the appellate court must ask whether it appears beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.” (citation and internal
quotation marks omitted)). We conclude that any error in failing to give an alibi instruction
as to the child abuse charges was clearly harmless beyond a reasonable doubt. Cf. Benson,
600 S.W.3d at 907 (analyzing a failure to instruct on a general defense under constitutional
harmless error standard).
However, there was no error in failing to give an alibi instruction as to the child
neglect charges. No evidence shows that the Defendant’s being at work prevented him
from arranging medical care for his son’s serious injuries that were obvious and actually
known to the Defendant. Indeed, despite knowing about these injuries, the Defendant still
decided to leave J.H. in the care of Ms. Gardner on December 7, 2016. In other words,
because nothing about the Defendant’s being at work on that day, or any other day, rendered
his neglect impossible to commit, the proof did not fairly raise an alibi defense as it applied
to the child neglect charges and its associated felony murder count. We conclude that the
Defendant is not entitled to relief on this ground.
III. CORRECTION OF JUDGMENTS OF CONVICTION
On our own motion, we note an issue with the count numbers reflected in the
judgments of conviction as to both Defendants. As noted above, Counts 9 and 10 were
renumbered for the trial jury as Counts 5 and 6. This procedure was perfectly permissible.
See supra, footnote 7. However, once the trial is concluded, the judgments “must correctly
reflect the charges as presented in the indictment and the disposition for each indicted
offense.” State v. Bullock, No. E2021-00661-CCA-R3-CD, 2022 WL 3012460 (Tenn.
Crim. App. July 29, 2022), no perm. app. filed. As such, the judgments should reflect the
disposition of the charges as they were brought and numbered by the grand jury rather than
as they were presented to the trial jury. See State v. Jones, No. W2022-00046-CCA-R3-
CD, 2023 WL 1980871, at *1 (Tenn. Crim. App. Feb. 14, 2023) (“For the sake of
consistency with the transcripts, we will refer to the counts as renumbered by the trial court;
however, we note that the judgment forms must be corrected to reflect the counts as
enumerated in the indictment.”), perm. app. denied (Tenn. May 15, 2023).
In this case, the judgments in each case reflect dispositions on Counts 9 and 10 as
they were renumbered for the trial jury, not as they were originally charged.13 As such, on
13
These inadvertent misidentifications occur in both the count designations and in the
“Special Conditions” boxes.
51
remand, the trial court is respectfully requested and ordered to correct the judgments to
reflect the enumeration of the counts as charged by the grand jury.
CONCLUSION
In summary, we affirm Ms. Gardner’s conviction and life sentence for felony murder
in the perpetration of aggravated child abuse and her conviction for aggravated child abuse
in Count 3. As to both Defendants, we affirm their respective convictions for aggravated
child neglect in Counts 9 and 10. However, we respectfully reverse and vacate the
Defendants’ convictions in Counts 2 and 4 and remand those charges for a new trial. Upon
the agreement of the parties, we also respectfully reverse Ms. Gardner’s consecutive
sentences and remand those counts for the trial court to consider the factors outlined in
State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Finally, we remand each case for entry
of corrected judgments of conviction. In all other respects, we affirm the judgments of the
trial court.
_____________________________________
TOM GREENHOLTZ, JUDGE
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