State of Tennessee v. Anthony Blackwell

06/26/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 18, 2017 Session
STATE OF TENNESSEE v. ANTHONY BLACKWELL
Appeal from the Circuit Court for Giles County
No. CR16292 Russell Parkes, Judge
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No. M2016-01063-CCA-R3-CD
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The Defendant, Anthony Blackwell, was convicted by a Giles County jury of the
aggravated rape of a child, a Class A felony, and sentenced as a Range III, Persistent
Offender to fifty-years’ imprisonment at one-hundred percent service. On appeal, the
Defendant contends that the evidence was insufficient to support his conviction, that the
trial court erred by allowing certain medical testimony and records pertaining to “child
sexual abuse,” and that his sentence was unlawful. Upon review, we affirm the judgment
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and JOHN EVERETT WILLIAMS, JJ., joined.
Hershell Koger, Assistant Public Defender (at trial and on appeal), and Brandon E. White
(on appeal), Columbia, Tennessee, for the Defendant-Appellant, Anthony Blackwell.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Brent A. Copper, District Attorney General; and Chuck Crawford and Jonathan Davis,
Assistant District Attorney Generals, for the Appellee, State of Tennessee.
OPINION
On July 10, 2013, the Giles County Grand Jury indicted the Defendant for the
aggravated rape of a child, four-month-old A.T.1 The offense occurred in June 2013
while the Defendant cared for the child when the victim’s mother was at work.
1
It is the policy of this court to refer to minor victims by their initials.
The Defendant filed several pretrial motions, including two motions to redact
portions of A.T.’s medical records from three different treatment providers, Hillside
Hospital, Vanderbilt Children’s Hospital, and Our Kids Center. On September 23, 2015,
the trial court held a pretrial hearing on the Defendant’s motions.
At the hearing, defense counsel argued that references in the medical records to
“child abuse” or “child sexual abuse” were highly prejudicial and were not an appropriate
medical diagnosis. The trial court reserved ruling on most of the challenged statements
until trial but did order two statements redacted from the Our Kids Center records. After
the hearing, the Defendant filed a motion to preclude testimony from Dr. Kevin Oothout2
regarding “child sexual abuse” and requested the trial court reconsider the admission of
A.T.’s medical records. The trial court overruled the Defendant’s motion. A jury trial
began on October 5, 2015, at which the following evidence was presented.
Trial. The victim’s mother testified that, in June 2013, the Defendant had been
living with her and her fiancé for about two months. During this time, the Defendant
would occasionally babysit A.T. and his two-year-old brother when the victim’s mother
was at work. Shana Martin, a family friend, regularly cared for the children while the
victim’s mother was at work. On June 8, 2013, Martin cared for the children until around
5:00 or 6:00 p.m. when the victim’s mother returned from work. The victim’s mother
testified that A.T. did not have any injuries when she bathed him and put him to bed on
the night of June 8, 2013.
The Defendant offered to care for the children the next day, June 9, 2013, while
the victim’s mother was at work. The victim’s mother left for work around 6:00 a.m.
while the children were still asleep. She testified that the Defendant was in the living
room, and that he had been out all night and had not slept at all. However, the Defendant
told her he was still able to babysit the children, and she testified that the Defendant was
“acting fine” and that she “trusted to leave [her] kids with him.”
The victim’s mother testified that she next heard from the Defendant around 12:30
p.m., when he called her and said that A.T. “had had a bowel movement and he was
bleeding just a little bit.” Around 12:45 p.m., the victim’s mother texted the Defendant
and told him she would “pick up some juice for [A.T.] for constipation after [she] got off
work.” She did not speak with the Defendant again until she got home from work around
5:30 p.m. When the victim’s mother arrived home, she asked the Defendant where
A.T.’s soiled diaper was so that she could inspect it. The Defendant responded that he
2
This witness is referred to as both Dr. “Oothoud” and Dr. “Oothout” in portions of the
transcripts and by the parties. For consistency, we will refer to him as Dr. “Oothout,” as indicated in the
Hillside Hospital medical records.
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had thrown the diaper away in a nearby dumpster because “it smelled really bad.” The
victim’s mother testified that the Defendant left about ten minutes after she arrived, and
that he appeared to be in a hurry. She then checked A.T.’s diaper and noticed that
“[A.T.]’s rectum was bigger, it was red, it was swollen,” and “[i]t was torn in one place.”
The victim’s mother decided to take A.T. to the emergency room at Hillside Hospital.
She called the Defendant and told him that she was “taking [A.T.] to the ER for
constipation,” and asked if he could come back to babysit A.T.’s brother. The victim’s
mother testified that, at the time, she believed A.T.’s injuries were due to constipation,
and she still trusted the Defendant to watch her other son.
At the Hillside Hospital emergency room, A.T. was initially diagnosed with an
infection. However, after a second examination of A.T., the doctor informed the victim’s
mother that he was suspicious of A.T.’s injuries, and he called the Department of
Children’s Services. The victim’s mother testified that A.T. was later transferred to
Vanderbilt Children’s Hospital by ambulance, where he was hospitalized for two days
and was further examined.
On cross-examination, the victim’s mother confirmed that, when she brought A.T.
to the hospital, he had been suffering from “a small diaper rash” for the past two days.
However, she did not tell anyone at Hillside Hospital about the rash “because [she]
figured it was just a diaper rash.” The victim’s mother did not tell anyone at Hillside
Hospital that she had concerns about A.T.’s care. On redirect, the victim’s mother again
confirmed that there was no bruising, swelling, or tearing to A.T.’s anus when she bathed
him the night before, and that there were no other adults around A.T. after she gave him
the bath other than the Defendant and herself.
Shana Martin testified that she had been a friend of the victim’s mother for eight
years and that she would babysit A.T. “[a]t least a couple of times a week.” Martin
testified that she watched A.T. on June 8, 2013, while his mother was at work, and that
the Defendant was also at the apartment. Martin testified that she changed A.T.’s diaper
multiple times that day and that she did not notice anything unusual, including any
redness, swelling, bruising, or tearing to his anus. Martin also testified that there was no
blood in A.T.’s stool or anything else unusual about his diapers. Martin denied that she
cut A.T. with her fingernails or caused any injuries to A.T.
The victim’s father testified that he had been engaged to the victim’s mother for
about two years and that they had been together for about eight years. He said that, on
the weekend of June 8 and 9, 2013, he was serving time in the Giles County Jail for
violation of his probation. The victim’s father testified that he met the Defendant at a
local tattoo parlor and invited the Defendant to live with his family for a few months
when the victim’s mother was pregnant with A.T. After a while, the Defendant moved to
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Alabama for a few months, and then he returned to live with the family again. The
victim’s father testified that the Defendant lived with them for a month or two before the
incident occurred. He said that he was not an active father and that he had never bathed
A.T. or changed his diaper. He testified that he last saw A.T. on June 7, 2013, around
6:30 p.m. before reporting to jail and that he did not injure A.T. in any way.
Kelly Duncan testified that she had been a registered nurse for fourteen years and
that she was working in the emergency room of Hillside Hospital on June 9, 2013.
Duncan testified that she examined A.T. after he had initially been seen by a nurse intern.
At that time, A.T.’s mother requested that Duncan look “at A.T.’s bottom area.” Duncan
testified that, when she examined A.T.’s bottom, she noticed “bruising all over . . . the
cheeks of his bottom” that was “kind of red and a very dark purple.” Duncan also
testified that A.T.’s anus was dilated about four times the normal size for an infant and
that “there was tearing that extended from his anus all the way up to what would be his
bottom.” Duncan testified that, because of the color of the bruising, she believed the
injuries were fairly new. Duncan said that there was no evidence that A.T. was
constipated and that they charted a normal stool while A.T. was in the emergency room.
Duncan also testified that there was no evidence a hard stool had caused the injuries to
A.T. Duncan confirmed that A.T. was four months old and weighed 16.99 pounds when
he was examined. After her examination, Duncan asked Dr. Oothout to physically
examine A.T. as well. Although Dr. Oothout had already seen A.T. in the examination
room and examined his diaper, he had not looked at A.T.’s bottom. After Duncan and
Dr. Oothout examined A.T. together, they immediately contacted the Department of
Children’s Services and the Pulaski Police Department. Duncan testified that Giles
County EMS transferred A.T. and his mother to Vanderbilt Children’s Hospital where he
could be evaluated for trauma. Duncan explained that the transfer was requested because
they “suspected sexual abuse,” and Vanderbilt had experts that focused on children and
abuse.
On cross-examination, Duncan confirmed that A.T.’s medical records reflected
that his “symptoms began or occurred gradually two days ago,” and that this was noted in
A.T.’s medical records by Dr. Oothout. On redirect, Duncan denied that A.T.’s injuries
could have been caused by digital extraction or a fingernail cut. Duncan testified that
A.T.’s injuries were caused by an object larger than a finger to cause the amount of
dilation to his anus. Duncan testified that, in her fourteen years of experience as a nurse
treating both adults and children, she had never seen injuries like those suffered by A.T.
Dr. Kevin Oothout, an expert in the field of emergency medicine, testified that he
was a physician at Hillside Hospital in June 2013. Dr. Oothout, along with Duncan,
treated A.T. on June 9, 2013. A.T.’s medical records from Hillside Hospital were
admitted into evidence without objection. Dr. Oothout confirmed that A.T. arrived at the
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emergency room for injury to his rectum, and that he did both a preliminary examination
and a second more thorough examination. During the preliminary examination, Dr.
Oothout testified that he mostly relied on the nurse intern’s information. Dr. Oothout
testified that, during his later examination, he thoroughly examined A.T.’s rectum and
that his diagnosis was that “[t]here was tears to the rectum, there was dilation of the
rectum, and there was bruising around the rectum.” Dr. Oothout concluded that A.T.’s
injuries were caused by “non-accidential trauma. There was a high index of suspicion for
some type of abuse.” Dr. Oothout confirmed that he chose “child abuse” as the diagnosis
in A.T.’s medical records. Dr. Oothout explained that their medical records are kept
electronically, and that “[he] looked for rectal injury in that drop down menu and it
wasn’t available, and [he] felt like [child abuse] was the closest thing that [he] could
cho[o]se from the list that fit.”
Dr. Oothout opined that A.T.’s injuries “probably occurred in the last 48 hours
before [he] saw [A.T.].” Dr. Oothout based his opinion “[o]n the color of the bruising,
the fact that the tears were not healed and the bruising still was red to purple, which is
consistent with within 48 hours.” Dr. Oothout testified that he did not believe that A.T.’s
injuries were accidental, particularly considering that A.T. was four months old and could
not have injured himself. Dr. Oothout concluded that, based on his observations,
“something was placed inside the child’s rectum with force enough to cause the bruising
and large enough [in] diameter to cause the tearing,” or, in other words, A.T. suffered
“inflicted trauma caused by penetration.” Dr. Oothout testified that, because of A.T.’s
injuries, he was obligated to contact the police and the Department of Children’s Services
and to transfer A.T. “to a bigger medical center to make sure there weren’t other injuries
that were deeper.” Dr. Oothout testified that constipation, application of ointment, digital
extraction, or fingernails could not have caused A.T.’s injuries. Rather, Dr. Oothout
testified that A.T.’s injuries were caused when “[s]omething was placed into the rectum
with force that was probably larger [in] diameter than your finger and smaller than a
baseball bat.” Dr. Oothout testified that, in his two decades as an emergency room
physician, he had never seen injuries like A.T.’s injuries on an infant.
Defense counsel objected to the presentation of the State’s next witness, Lori
Litrell, a medical provider from Our Kids Center. The parties agreed to first conduct a
direct examination of Littrell “for purposes of qualifications” and then to conduct a voir
dire outside the presence of the jury to determine whether she would be qualified as an
expert witness. As to her qualifications, Littrell testified that she was a physician
assistant at Our Kids Center, an outpatient clinic of Nashville General Hospital. Littrell
testified that Our Kids Center “perform[s] forensic medical evaluations on children when
there are concerns of sexual abuse.” Littrell testified that she had a master’s degree in
nursing and was licensed as both a family nurse practitioner and physician’s assistant.
Littrell stated that she received specialized training in and presented lectures on child
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sexual abuse. Littrell said she was also a member of the American Academy of
Pediatrics and the American Professional Society on the Abuse of Children, which
provided her with continuing education and resources in the field of child sexual abuse.
Littrell estimated that she had given approximately fifty presentations or lectures on
topics relating to child sexual abuse. Littrell testified that her training at Our Kids Center
included forty hours of classroom training and observation or performance of one-
hundred supervised examinations before becoming an independent provider. Littrell
estimated that she had performed over one-thousand forensic examinations. Littrell said
that she had testified multiple times in cases of child sexual abuse and was qualified as an
expert witness in all prior cases.
After Littrell presented her qualifications, the trial court held a hearing outside the
presence of the jury to determine whether Littrell would be qualified as an expert witness
and to rule on the Defendant’s motion to redact portions of the Our Kids Center medical
records. Defense counsel voir dired Littrell regarding her background and the function of
Our Kids Center. Littrell testified that “[Our Kids Center] do[es] not diagnose sexual
abuse.” Rather, Littrell said that she intended to testify that A.T.’s injuries were “the
result of penetrated trauma.” After defense counsel’s voir dire, the State requested that
the trial court qualify Littrell as an expert witness in the field of “child sexual abuse, and
specifically, in the area of conducting and evaluating forensic examination[s] of alleged
child abuse victims.” Defense counsel argued that, although Littrell may be an expert in
the field of child sexual abuse, it was not “relevant for the case that we’re here on today”
because the charges against the Defendant were for aggravated rape of a child, not child
abuse. The State responded that “a finding of inflicted injury from penetrated trauma, is
very relevant and something that the jury can conclude is child sexual abuse.” The trial
court ruled that Littrell had specialized knowledge and that, “based on her education,
training, field of specialty, [and] her prior certifications,” Littrell was accepted as an
expert in the field of child sexual abuse. The trial court then proceeded to hear from the
parties regarding the redaction of the Our Kids Center medical records. The trial court
ordered certain portions of the records redacted and the State proceeded with its direct
examination of Lori Littrell.
Littrell testified that children were referred to Our Kids Center by law
enforcement, the Department of Children’s Services, referrals from other medical
providers, and by concerned parents. She explained the procedures for an examination
and testified that each exam was documented by photographs, videos, or a combination
of both. Littrell testified that, on June 10, 2013, she performed the forensic examination
of A.T. and created a report on the examination, which was admitted without objection.
Littrell testified that she observed redness, bruises, and swelling around A.T.’s anal area,
and that the anal opening was dilated. Littrell also noted two separate anal tears. Littrell
testified that the examination was performed at the Vanderbilt Children’s Hospital
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emergency room and that the examination was recorded and photographed. Littrell
identified multiple photographs of A.T.’s bruised and torn anal area, which were admitted
into evidence and published to the jury without objection. Littrell also identified a video
of A.T.’s examination, which was admitted into evidence and played for the jury. Littrell
testified that, based on her experience, she classified A.T.’s injuries as acute, meaning
that they would have happened “any time in the last 72 hours, but there’s no way to
pinpoint an exact date.” Littrell also testified that she “found the injuries consistent with
penetrative trauma.” Litrell said that “[t]here was no history whatsoever of any sort of
accident.” Litrell also said that A.T.’s injuries could not have been caused by
constipation, application of ointment, or digital extraction. Although Littrell opined that
it was “possible” some of A.T.’s injuries could have been caused by long fingernails, she
explained that she “wouldn’t expect fingernails to cause bruising.”
Dr. Cristina Estrada testified that she was employed at Vanderbilt Children’s
Hospital where she served as an associate professor of pediatrics and emergency
medicine and the division chief of pediatric emergency medicine and the fellowship
training program for pediatric emergency medicine. Dr. Estrada testified that her primary
duty was to work as a physician in the pediatric emergency room and treat children at
Vanderbilt Children’s Hospital. Dr. Estrada testified that she had evaluated
approximately 70,000 children, including approximately 30,000 infants, since she began
practicing medicine in 2001. Dr. Estrada was qualified as an expert in the field of
pediatric emergency trauma and general pediatric emergency room care. Dr. Estrada
testified that she treated A.T. at the Vanderbilt Children’s Hospital emergency room in
the early morning hours of June 10, 2013. A.T.’s medical records from his
hospitalization at Vanderbilt Children’s Hospital were admitted into evidence without
objection. Regarding A.T.’s injuries, Dr. Estrada testified that he had “a tear . . . [on] his
anus as well as some bruising around his anus and he also had a bruise to his lower
back.” Dr. Estrada said that the bruising and tear were “significant” and that the tear
“was at least one centimeter in depth and length.” Dr. Estrada testified that the tear was
significant because it was not an anal fissure and “did not appear to have occurred by
normal routine daily life.” Dr. Estrada also testified that A.T.’s rectum “appear[ed]
enlarged and dilated.” Dr. Estrada confirmed that she relied on Littrell’s examination and
notes in treating A.T. as well. Dr. Estrada testified that she had seen injuries similar to
A.T.’s injuries and that they were “exclusively penetrating traumatic injuries.” Dr.
Estrada also testified that A.T.’s injuries could not have been caused by digital extraction,
a fingernail cut, constipation or a hard-stool bowel movement. Dr. Estrada concluded
that “[b]ased on the child’s developmental age and stage, these would certainly have to
be by penetrating trauma.” On redirect examination, Dr. Estrada also confirmed that she
“100 percent believe[d] that this was as a result of sexual abuse.” Dr. Estrada noted that
it was “very difficult to stage or age any of [A.T.’s] injuries,” but that “they appear to be
more recent than not.”
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Dr. Harold Lovvorn, an expert in the field of pediatric surgical care, testified that
he was a faculty pediatric surgeon at Vanderbilt Children’s Hospital. Dr. Lovvorn also
treated A.T. at Vanderbilt Children’s Hospital on June 10, 2013. Dr. Lovvorn testified
that he performed an exam of A.T. under anesthesia in the operating room in order to get
a complete and thorough exam both externally and internally. Dr. Lovvorn testified that
he observed “pretty significant injuries to [A.T.’s] anal region,” including “two
lacerations” and bruising around his anal opening. Dr. Lovvorn testified that the injuries
were “very unusual in a four-month-old baby and [were] highly suspicious for injury
inflicted upon the child.” Dr. Lovvorn explained that, at four months old, a baby is not
mobile, and his limited movements could not have caused the injuries. Dr. Lovvorn also
testified that there was no “consistency with passage of a firm stool that would have
caused that level of injury.” Dr. Lovvorn confirmed that A.T.’s injuries were likely
caused by a type of penetration. Dr. Lovvorn said that he “would put the injury
somewhere around 12 hours would be [his] best estimate.” On redirect, Dr. Lovvorn
opined that the object used to penetrate A.T.’s anus would have been about an inch or
more in diameter.
Investigator Ryan Southerland of the Pulaski Police Department testified that he
was notified about A.T.’s case on June 10, 2013. Investigator Southerland obtained
A.T.’s medical records, spoke with medical personnel at Hillside Hospital, Vanderbilt
Children’s Hospital, and Our Kids Center, and interviewed the victim’s mother after A.T.
was released from the hospital. After the interview, Investigator Southerland also
searched for A.T.’s diapers that were allegedly thrown in the dumpster, but no diapers
were found. Investigator Southerland said that the dumpster was “half to less than half”
full and was located thirty to forty feet away from the balcony of the victim’s mother’s
apartment.
Investigator Southerland confirmed that A.T.’s mother was at work on June 9,
2013, and A.T.’s father was incarcerated all weekend. On June 12, 2013, Investigator
Southerland located the Defendant, who agreed to come to the police department for an
interview. Investigator Southerland testified that the interview lasted around an hour and
that it was video and audio recorded. The video was admitted without objection and
played for the jury. Investigator Southerland testified that the Defendant was asked
multiple times during the interview what happened to A.T. First, the Defendant told
Investigator Southerland that the only thing he noticed was blood in the diaper. The
Defendant told Investigator Southerland that he spoke with A.T.’s mother on the phone
and that she advised him “to put Vaseline on it.” Later in the interview, the Defendant
mentioned that there were also rips to A.T.’s anus as well as a green and off-white
substance. Investigator Southerland testified that each time the Defendant was asked
about what happened, he noticed and recalled different things. The Defendant also told
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Investigator Southerland repeatedly that he did not do anything to A.T. The Defendant
told Investigator Southerland that the night before he babysat A.T. he was painting at a
friend’s house and consumed “six or seven” beers and was intoxicated. The Defendant
told Investigator Southerland that he arrived back at the apartment around 4:30 a.m. and
that he had been up all night. Investigator Southerland also testified that the Defendant
said during his interview that “he may have got [sic] rough with the child and . . . he
wasn’t going to deny that he did get rough with the child.” During the interview, a DNA
swab was taken from the Defendant. After the interview, Investigator Southerland
prepared rape kits to be sent to the Tennessee Bureau of Investigation (“TBI”), obtained
final copies of the medical records, and presented the case to the Giles County Grand
Jury.
On cross-examination, Investigator Southerland confirmed that A.T.’s mother,
A.T.’s father, and Martin were never suspects. Investigator Southerland did not recall
reading in the Hillside Hospital medical records that A.T.’s injuries had “began, occurred
gradually two days ago.” Investigator Southerland also did not recall if A.T.’s mother
told him that A.T.’s injuries had started or gotten worse two days before he was taken to
the hospital.
Casey Koza, a forensic technician formerly employed by the TBI, testified for the
defense. Koza testified that, in June 2013, she specifically worked in the area of forensic
biology and serology. Regarding A.T.’s case, Koza testified that she received two sexual
assault kits containing various bodily swabs, an article of baby’s clothing, and two
diapers with wipes. Koza testified that, given the charge of aggravated rape of a child,
she was testing only for semen on the items she received, and that all items tested
negative for the presence of semen. According to TBI policy, because no semen was
found, none of the items were sent for any further DNA testing. On cross-examination,
Koza confirmed that the presence of fecal matter in A.T.’s diapers made it difficult to test
for semen and that she could not conclusively say there was no semen present. Koza also
testified that the fecal matter contained bacteria which could degrade biological evidence
over time, and that the diapers were not examined until August and September 2013.
Koza also confirmed that diaper changes would have affected whether there were any
fluids present for testing and that condom use would have eliminated the biological
evidence.
The Defendant testified that he met A.T.’s father and mother at a tattoo shop in
Pulaski, Tennessee, where his girlfriend worked. The Defendant testified that he lived in
Huntsville, Alabama at that time and wanted to move to Pulaski, so the victim’s father
invited him to stay at his house until he found work. The Defendant confirmed that he
had a criminal history, including felony theft and burglary convictions. The Defendant
testified that he did not have a job and that he would frequently watch A.T. and his
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brother while A.T.’s mother was at work. The Defendant testified that he did not watch
the children on June 8, 2013, but that he did watch them the next day, June 9, 2013. The
Defendant stated that, around 11:30 p.m. or 12:00 a.m. on June 8, he went to help a friend
paint his apartment. He did not arrive back home until 4:30 or 5:00 a.m. in the morning.
The Defendant testified that he stayed awake so that he could watch A.T. and his brother
after A.T.’s mother left for work. The Defendant confirmed that he had consumed seven
or eight beers that night.
The Defendant testified that, while he was watching the children on June 9, 2013,
he “noticed that [A.T.] had a hard stool early that morning after he woke up and [the
Defendant] fed him.” He testified that he “cleaned [A.T.] up” and “found some blood in
his diaper,” but that he “didn’t think nothing [sic] about it until later on that day.” The
Defendant testified that, after changing A.T.’s diaper, he went outside on the balcony to
smoke a cigarette and threw the diaper in a dumpster about ten to fifteen feet away. The
Defendant stated that he noticed “what looked like cuts” on A.T.’s anus later that day,
and so he called A.T.’s mother. The Defendant testified that A.T.’s mother told him to
“put some Vaseline on it and make sure that he was comfortable.” The Defendant stated
that he later noticed an “off-white, green and pink substance” in A.T.’s diaper. The
Defendant testified that when A.T.’s mother arrived home from work, he left for a
friend’s house. The Defendant said that A.T.’s mother called him after he left and told
him she was taking A.T. to the hospital and asked the Defendant to come back to watch
A.T.’s brother. The Defendant testified that he “got a little frustrated” with A.T. while he
was watching him and that he “may have been a little rough, but [he] didn’t hurt him.”
The Defendant confirmed that when he said he “may have been a little rough,” he was
referring to “handling [A.T.]” and picking him up or putting him down. However, the
Defendant testified that he did not cause any injuries to A.T.
On cross-examination, the Defendant confirmed that he was alone with the
children for eleven hours on June 9, 2013. The Defendant also testified that he first
noticed A.T.’s injuries after he had been “rough” with A.T. At the conclusion of the
proof, the jury found the Defendant guilty as charged.
Sentencing Hearing. At the sentencing hearing, Alisha Helton testified that she
was employed by the Tennessee Department of Corrections and that she prepared the
Defendant’s presentence report, which was admitted without objection. Helton testified
that the Defendant had a criminal history in Alabama, which included three outstanding
warrants. The Defendant’s criminal history also included a misdemeanor conviction in
Giles County. Helton confirmed that the Defendant had been on probation in Alabama
when he committed the instant offense, and that his probation was subsequently revoked.
On cross-examination, Helton confirmed that the Defendant did not have any prior sex
related offenses.
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The trial court applied enhancement factor (1), that the defendant has a previous
history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range; (4), that the victim was particularly vulnerable because of
age or physical or mental disability; (5), that the defendant treated or allowed the victim
to be treated with exceptional cruelty during the commission of the offense; (8), that the
defendant before trial or sentencing has failed to comply with the conditions of a sentence
involving release into the community; (13), that at the time the felony was committed, the
defendant was released on probation; and (14), that the defendant abused a position of
public or private trust. See T.C.A. § 40-35-114. The trial court did not find that any
mitigating factors applied, and noted that this case was “one of the most heinous crimes”
the court had ever seen. The trial court imposed a sentence of fifty years’ incarceration,
to be served at one-hundred percent. The Defendant filed a motion for new trial, which
was heard and denied on April 18, 2016. This timely appeal followed.
ANALYSIS
On appeal, the Defendant argues that (1) the evidence was insufficient to sustain
his conviction for aggravated rape of a child, (2) the trial court improperly allowed
specific testimony and medical records “regarding the diagnosis of ‘child sexual abuse,’”
and (3) the Defendant’s sentence was unlawful. The State responds that the convicting
evidence was sufficient, that the trial court did not abuse its discretion in admitting the
challenged expert witness testimony and medical records, and that the Defendant has
failed to prove the trial court’s sentencing decision was not presumptively reasonable.
I. Sufficiency of the Evidence. First, the Defendant challenges both the
sufficiency of the convicting evidence as well as his identity as the perpetrator. The State
responds that the medical testimony conclusively proved that A.T. sustained injuries
indicative of non-accidental, forcible, penetrative trauma, and that the Defendant was the
only individual who was with A.T. during the time period in which the injuries were
inflicted.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992)). When a defendant challenges the sufficiency of the evidence, the standard of
review applied by this court is “whether ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” State v. Parker, 350 S.W.3d
883, 903 (Tenn. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states, “Findings of
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guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence
is insufficient to support the finding by the trier of fact of guilt beyond a reasonable
doubt.” When this court evaluates the sufficiency of the evidence on appeal, the State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011)
(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the
credibility of the witnesses, determine the weight given to witnesses’ testimony, and
reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,
the jury determines the weight to be given to circumstantial evidence and the inferences
to be drawn from this evidence, and the extent to which the circumstances are consistent
with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes,
331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When
considering the sufficiency of the evidence, this court shall not substitute its inferences
for those drawn by the trier of fact. Id.
Additionally, “[t]he identity of the perpetrator is an essential element of any
crime.” Rice, 184 S.W.3d at 662 (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn.
1975)). The State has the burden of proving the identity of the defendant as the
perpetrator beyond a reasonable doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn.
1998). The identity of the defendant as the perpetrator may be established by direct
evidence, circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d
at 793. The identification of the defendant as the perpetrator is a question of fact for the
jury after considering all the relevant proof. State v. Thomas, 158 S.W.3d 361, 388
(Tenn. 2005) (citing State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993)).
As relevant here, aggravated rape of a child is the unlawful sexual penetration of a
victim by the defendant if the victim is three years of age or less. T.C.A. § 39-13-531(a).
“Sexual penetration” is defined as “sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of
any object into the genital or anal openings of the victim’s, the defendant’s, or any other
person’s body, but emission of semen is not required.” Id. § 39-13-501(7).
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Taken in the light most favorable to the State, the evidence presented at trial
showed that four-month-old A.T. was healthy and without injury when his mother
washed him the evening of June 8, 2013. Subsequently, A.T. and his two-year-old
brother were alone with the Defendant for eleven hours on June 9, 2013. When the
victim’s mother returned home, she discovered that A.T.’s anus was enlarged, red,
swollen, bruised, and that there were visible tears. A.T. was taken to Hillside Hospital,
where Dr. Oothout noted that A.T.’s rectum was torn, dilated, and bruised. Because
A.T.’s injuries were non-accidental and Dr. Oothout was suspicious of abuse, A.T. was
transferred to Vanderbilt Children’s Hospital for a more thorough examination. There,
A.T. was seen by more medical professionals and was examined under anesthesia by a
pediatric surgeon who determined that A.T. had suffered penetration by an object larger
than an inch in diameter. All of the medical witnesses testified that A.T.’s injuries were
caused by forceful penetration, and that the injuries could not have been caused by any
accidental means, including constipation or a fingernail cut, as the Defendant implied at
trial.
Based on this evidence, we conclude that any rational trier of fact could find that
the Defendant penetrated A.T.’s anus by some means. The Defendant argues that the
State did not prove “what type of object, if any object, penetrated A.T.’s anus,” and that
the State did not present any evidence of the Defendant’s semen on the A.T. or any of
A.T.’s diapers or clothes. However, the State was not required to identify the actual
object which caused the penetration to sustain a conviction of aggravated rape and,
likewise, the presence of semen was not required to prove penetration. See id. §§ 39-13-
531, -501(7). Additionally, although the Defendant argues that the victim’s mother
testified inconsistently regarding A.T.’s recent medical history and a prior diaper rash,
the jury heard any conflicting evidence and chose to accredit the testimony of the State’s
witnesses. Likewise, by their verdict, the jury rejected the Defendant’s theory that the
injuries occurred before June 9, 2013, or as a result of constipation or a fingernail cut. As
noted above, this court will not “re-weigh the evidence or substitute its inferences for
those drawn by the trier of fact.” See Dorantes, 331 S.W.3d at 379.
Finally, the Defendant argues that the State did not adequately establish his
identity as the perpetrator. The Defendant primarily challenges the State’s witnesses’
testimony regarding when A.T.’s injuries occurred. He argues that, at most, he had the
“‘mere opportunity’” to commit the offense, and that the medical witnesses’ differing
timelines are “speculation and conjecture.” Duncan and Dr. Estrada generally testified
that A.T.’s injuries were new or recent; however, Dr. Oothout estimated that A.T.’s
injuries had occurred within forty-eight hours, Littrell estimated that A.T.’s injuries had
occurred within seventy-two hours, and Dr. Lovvorn estimated that A.T.’s injuries likely
occurred within twelve hours. The Defendant is again challenging the credibility of the
State’s witnesses and the jury’s conclusions regarding the weight of the evidence.
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Moreover, although some of the medical experts estimated specific timeframes within
which A.T.’s injuries likely occurred, all of the medical witnesses testified that A.T.’s
injuries were new, particularly because A.T. had unhealed bruises and tears.
Additionally, the victim’s mother and A.T.’s usual babysitter, Martin, testified that A.T.
had no injuries until he was left alone with the Defendant. Again, the jury accredited the
State’s witnesses and their testimony regarding the timing of A.T.’s injuries, as was their
prerogative. Any rational trier of fact could have concluded that the Defendant
committed this offense. Accordingly, the evidence was sufficient to sustain the
Defendant’s conviction.
II. Admission of Evidence. The Defendant next challenges the admission of
certain medical testimony and records regarding A.T.’s “diagnosis of ‘child sexual
abuse.’” Specifically, the Defendant challenges (A) the admission of Dr. Oothout’s
testimony; (B) the admission of Dr. Estrada’s testimony; (C) Lori Littrell’s qualification
as an expert witness and admission of her testimony; (D) admission of the Our Kids
Center medical records; (E) admission of medical records from Hillside Hospital and
Vanderbilt Children’s Hospital.3 The Defendant also contends that the individual and
cumulative effects of these errors prejudiced his ability to receive a fair trial.
A. Testimony of Dr. Oothout. First, the Defendant challenges the testimony of
Dr. Kevin Oothout. After describing his examination of A.T., Dr. Oothout testified as
follows:
State: Okay. Did you make some conclusion based on what
you saw there?
Dr. Oothout: Yes, I did.
State: And what was that conclusion?
Dr. Oothout: I felt that it was -- it was non-accidental trauma. There
was a high index of suspicion for some type of abuse.
State: In fact, did you include the words, ‘child abuse,’ in this
report?
Dr. Oothout: I did on the diagnosis.
State: Okay. Is that a common diagnosis that doctors make?
3
The Defendant’s issues in this section have been reordered for clarity.
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Dr. Oothout: Yes.
State: Is that a diagnosis in [sic] included in the codes or is
that just something that you see so rarely that you
wrote that in?
Dr. Oothout: No, I didn’t write it in. We use a computer system
now. I don’t write anything but I have to cho[o]se
from a drop-down menu of different diagnosis, and
that was the one I cho[]se.
State: And it was child abuse?
Dr. Oothout: I believe it said, child abuse, sexual child abuse.
State: Is that your medical opinion of what caused these
injuries to this child?
Dr. Oothout: I’m not sure. I looked for rectal injury in that drop
down menu and it wasn’t available, and I felt like that
was the closest thing that I could cho[o]se from the list
that fit.
Initially, we note that the Defendant arguably waived this issue by failing to make
any contemporaneous objection to Dr. Oothout’s testimony at trial. See Tenn. R. App. P.
36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”); see also Tenn. R. Evid. 103(a)(1)
(requiring a timely objection as a prerequisite to a finding of error based on the trial
court’s admission of evidence). Failure to comply with this basic rule will ordinarily
constitute a waiver of the issue. State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim.
App. 1997) (citing State v. Hammons, 737 S.W.2d 549, 552 (Tenn. Crim. App. 1987)).
Additionally, the Defendant’s reliance on his pretrial motion in limine requesting the
preclusion of Dr. Oothout’s testimony is insufficient because the trial court overruled the
motion. See State v. McGhee, 746 S.W.2d 460 (Tenn. 1988) (holding that it is a case-by-
case determination when a defendant fails to make a contemporaneous objection at trial
to testimony after the trial court has overruled a defendant’s motion in limine to exclude
that evidence). Nevertheless, we will address the issue.
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The admissibility of expert testimony is governed by Rules 702 and 703 of the
Tennessee Rules of Evidence. Rule 702, which addresses the need for expert testimony
and the qualifications of the expert, provides: “If scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise.” The Tennessee
Supreme Court defined the role of trial courts in determining the admissibility of expert
testimony:
Trial 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. A court must assure itself that the expert’s
opinions are based on relevant scientific methods, processes, and data, and
not upon an expert’s mere speculation. The court’s reliability analysis has
four general inter-related components: (1) qualifications assessment, (2)
analytical cohesion, (3) methodological reliability, and (4) foundational
reliability.
State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotation
marks omitted). The witness’s necessary expertise may be acquired through formal
education or life experiences. Neil P. Cohen, et al., Tennessee Law of Evidence, §
7.02(4) at 7-21. However, the witness must possess such superior skill, experience,
training, education, or knowledge within the particular area that his or her degree of
expertise exceeds the scope of common knowledge and experience possessed by the
average person. Id. (citations omitted).
Tennessee Rule of Evidence 703 provides guidance regarding the proper bases for
expert testimony:
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence. Facts or data
that are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that their
probative value in assisting the jury to evaluate the expert’s opinion
substantially outweighs their prejudicial effect. The court shall disallow
- 16 -
testimony in the form of an opinion or inference if the underlying facts or
data indicate lack of trustworthiness.
“Generally speaking, the trial court is afforded broad discretion in resolving
questions concerning the admissibility of expert testimony; in consequence, we will not
overturn its ruling on appeal absent a finding that it abused its discretion.” State v.
Ferrell, 277 S.W.3d 372, 378 (Tenn. 2009) (citing State v. Copeland, 226 S.W.3d 287,
301 (Tenn. 2007); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)). “A trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its decision on a clearly erroneous assessment of the evidence, or
employs reasoning that causes an injustice to the complaining party.” Scott, 275 S.W.3d
at 404-05 (citing Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008)).
The Defendant argues that, pursuant to this court’s decisions in State v. Turner, 30
S.W.3d 355 (Tenn. Crim. App. 2000) and State v. Dewey Burton, Jr., No. E2015-00879-
CCA-R3-CD, 2016 WL 3351316 (Tenn. Crim. App. June 9, 2016), Dr. Oothout’s
testimony is not admissible because it pertains to an ultimate issue and “the jury could
readily draw its own conclusions on the matter without the aid of the witnesses’ opinion.”
Turner, 30 S.W.3d at 360. In Turner, this court held that it was improper for a medical
expert to testify about “whether it would be child abuse for an adult male to hold a young
child’s arm against a kerosene heater, causing second degree burns.” Id. We noted that,
while Tennessee Rule of Evidence 704 generally allows opinion evidence, which
embraces an ultimate issue, “opinion testimony is not admissible on an ultimate issue if
the jury could readily draw its own conclusions on the matter without the aid of the
witness’[s] opinion.” Id. (citing Neil P. Cohen, et al., Tennessee Law of Evidence, §
704.2 (3d ed. 1995); Blackburn v. Murphy, 737 S.W.2d 529, 533 (Tenn. 1987)).
Likewise, in Dewey Burton, Jr., this court held that it was improper for a medical expert
to testify that it was child neglect to leave a seventeen-month-old alone in a bathtub while
hot water was running. Dewey Burton, Jr., 2016 WL 3351316, at *7-8. However, in
both Turner and Dewey Burton, Jr., we held that the errors were harmless because this
court could not conclude “that the admission of the testimony more probably than not
affected the judgment.” Id. at *9; see also Turner, 30 S.W.3d at 360-61.
In general, we find the instant case distinguishable from Turner and Dewey
Burton, Jr. In those cases, the experts were asked to opine as to whether the defendant
was guilty of the crimes charged, child abuse and child neglect, respectively. Here, the
challenged medical expert testimony concerns the sexual abuse of A.T., while the
Defendant was charged with aggravated rape of a child. Although this is a narrow
distinction, we find that these are two different categories of cases. In Dewey Burton, Jr.,
this court stated that the medical expert “did not explain how her opinion was based on
- 17 -
her medical expertise,” and “[a]lthough the vast majority of [the medical expert’s]
testimony was relevant and helpful, her testimony in this regard was nothing more than
her personal opinion about what is and is not neglectful parental conduct.” Dewey
Burton, Jr., 2016 WL 3351316, at *9.
Here, Dr. Oothout’s provided a medical basis for his opinion, and his testimony
was not merely a personal opinion. In fact, Dr. Oothout did not offer an opinion as to
whether the Defendant raped or sexually abused A.T. While Dr. Oothout acknowledged
that he included the words “child abuse” in his report, he testified that his diagnosis of
A.T.’s injuries was “non-accidental trauma,” and that he would have preferred to
categorize A.T.’s injuries as “rectal injuries” in the medical records, but that he was
limited by the electronic record system’s pre-determined list of diagnoses. We believe
Dr. Oothout adequately explained any use of the words “child abuse” or “child sexual
abuse,” and that his testimony was appropriate and did not relate to the ultimate issue or
invade the jury’s ability to draw its own conclusion. We also note that physicians have
an affirmative duty to report child abuse and, accordingly, we cannot find that a
physician’s testimony regarding a diagnosis of child abuse is prejudicial, particularly in a
case where the ultimate issue and charge is not child abuse. The Defendant is not entitled
to relief.
B. Testimony of Dr. Estrada. The Defendant also challenges Dr. Cristina
Estrada’s testimony regarding a conclusion of sexual abuse. The Defendant again argues
that the testimony was inappropriate and did not conform to the principles of Turner and
Dewey Burton, Jr. Dr. Estrada testified as follows on redirect examination:
State: Dr. Estrada, once again, in your expert opinion, is this injury
to [A.T.] consistent with child sexual abuse?
Dr. Estrada: Without --
Defense counsel: Judge, I’m going to object to the form of that question and the
relevancy.
Trial court: Overruled.
Dr. Estrada: I 100 percent believe that this was as a result of sexual abuse.
State: No further questions, Your Honor.
Unlike Dr. Oothout, Dr. Estrada provided an opinion as to whether A.T. was
sexually abused. Accordingly, because the jury could have easily drawn this conclusion
- 18 -
for itself based on Dr. Estrada’s testimony about A.T.’s injuries, the trial court should not
have allowed Dr. Estrada to offer an opinion that A.T. was sexually abused. However,
while we agree that Dr. Estrada’s testimony was inappropriate, as in Turner and Dewey
Burton, Jr., we also conclude that the error was harmless. Turner, 30 S.W.3d at 360-61;
Dewey Burton, Jr., 2016 WL 3351316, at *9. The medical testimony presented in this
case against the Defendant was overwhelming. Every medical witness at trial testified
that A.T.’s injuries could not have been caused by constipation, a fingernail cut, or any
other accidental means. Rather, all the medical witnesses testified that A.T.’s injuries
were the result of penetrative trauma. Because this conclusion was so readily apparent
from the medical evidence, the erroneous admission of Dr. Estrada’s one isolated
statement was harmless. Under these circumstances, we cannot say that this one
statement more probably than not affected the judgment. The Defendant is not entitled to
relief.
C. Qualification and Testimony of Lori Littrell. Next, the Defendant contends
that Lori Littrell’s qualification as an expert in child sexual abuse was inappropriate
because it “automatically equate[d] the terminology Ms. Littrell used in her testimony to
describe the injury to A.T.’s bottom as constituting ‘child sexual abuse.’” Additionally,
the Defendant contends that Littrell’s testimony “was not helpful to the jury” and was
“unnecessarily cumulative because the State could have obtained any desired testimony
pertaining to the medical examination of A.T.’s bottom through the testimony of Dr.
Oothout, Dr. Estrada, and Dr. Lovvorn.” The State responds that Littrell was properly
qualified to testify as an expert witness and that “her opinion assisted the jury in
understanding the results of the victim’s forensic examination.” The State also points out
that Littrell “did not testify that the victim’s injuries constituted ‘child sexual abuse.’”
Regarding her qualifications, Littrell testified that she had a master’s degree in
nursing and was certified as both a nurse practitioner and a physician’s assistant. Littrell
testified that she received specialized training in and presented lectures on child sexual
abuse and that she was a member of various professional organizations. Littrell also
testified that her training at Our Kids Center included forty hours of classroom training
and observation or performance of one-hundred supervised examinations and that she had
performed over one-thousand forensic examinations. After an extensive voir dire, the
trial court found that, “based on her education, training, field of specialty, her prior
certifications,” Littrell was “imminently qualified.” The trial court granted the State’s
request to qualify Littrell in the field of “child sexual abuse, and specifically, in the area
of conducting and evaluating forensic examination[s] of alleged child abuse victims.”
Littrell subsequently testified that she performed a forensic examination of A.T. and
found that his anus was red, bruised, swollen, torn, and dilated. Based upon these
findings, Littrell opined that A.T.’s injuries were “consistent with penetrative trauma.”
Her testimony was clearly within the scope of her expertise and based on her personal
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observations, special education, training, and experience. Further, Littrell’s testimony
was not cumulative as it was based on her own independent forensic examination of A.T.,
which no other witness testified about at trial.
Further, although the Defendant contests Littrell’s qualification in the field of
“child sexual abuse,” Littrell did not testify that A.T. was sexually abused or mention
“sexual abuse” or “child sexual abuse” in any manner. Regardless, this court has
previously found on multiple occasions that an expert witness was properly qualified to
testify regarding “child sexual abuse.” See State v. Roy D. Wakefield, No. M2005-
01136-CCA-R3-CD, 2006 WL 1816323 (Tenn. Crim. App. June 29, 2006) (holding that
a nurse practitioner from Our Kids Center was qualified to testify as an expert witness in
child sexual abuse); State v. Walter Williams, No. W2009-02438-CCA-R3-CD, 2011 WL
2306246 (Tenn. Crim. App. June 7, 2011) (holding that a nurse practitioner was properly
qualified as an expert in child sexual abuse); State v. Mark Tracy Looney, No. M2014-
01168-CCA-R3-CD, 2016 WL 1399344 (Tenn. Crim. App. April 7, 2016) (holding that a
nurse practitioner from Our Kids Center was qualified to testify as an expert witness in
child sexual abuse). We also note that the Defendant made no argument at trial or on
appeal as to any alternative field Littrell should have been qualified in. The issue is
without merit.
D. Our Kids Center Records. Next, the Defendant argues that the medical records
from Our Kids Center constitute inadmissible hearsay “that would only be admissible if
introduced into evidence as a business record through Ms. Littrell’s testimony.” The
Defendant also contends that Littrell should never have been permitted to testify and,
thus, the Our Kids Center records should not have been allowed into evidence.
Alternatively, the Defendant argues that the trial court should have redacted seven
specific statements because they “violate the principles” established in Turner and Dewey
Burton, Jr. that an expert cannot testify “that the injuries sustained by a child constitute
‘child abuse’ or ‘child sexual abuse.’”
First, the Defendant provides no legal authority or supporting argument for his
hearsay argument. Accordingly, the issue is waived. See Tenn. Ct. Crim. App. R. 10(b);
see also Tenn. R. App. P. 27(a)(7). Additionally, we have already determined that Littrell
was properly qualified and that her testimony was admissible. Further, none of the
challenged statements in the Our Kids Center records even reference a “diagnosis of
‘child sexual abuse.’” Instead, the statements were that “[A.T.’s] injuries were not
accidental,” that there were “concerns of sexual abuse,” and that “[A.T.’s] injuries are
highly concerning for inflicted trauma.” The Defendant is not entitled to relief.
E. Hillside Hospital and Vanderbilt Children’s Hospital Records. Similarly, the
Defendant argues that the trial court erred by denying his motion to redact portions of the
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medical records from Hillside Hospital and Vanderbilt Children’s Hospital. Specifically,
the Defendant challenges four statements indicating a diagnosis of “child sexual abuse”
in the Hillside Hospital records by Dr. Oothout and two statements in the Vanderbilt
Children’s Hospital records that include “concerns of sexual abuse” and “a thorough
investigation is warranted due to the possibility of inflicted injury.”
The Defendant has again waived this argument by failing to support his claims
with sufficient legal authority. The Defendant simply lists six statements from the
medical records that he claims should have been redacted and then summarily asserts that
he “incorporates by reference as if fully recited in this sub-section the previous arguments
he has made as to why the trial court should have redacted these medical records to
preclude any mention of a diagnosis of ‘child sexual abuse.’” This is inappropriate. The
Defendant’s failure to comply with the basic rules of this court and to provide sufficient
analysis for this court’s review again constitutes waiver of the issue. See Tenn. Ct. Crim.
App. R. 10(b); see also Tenn. R. App. P. 27(a)(7). Waiver notwithstanding, as we have
previously found, any reference to a “diagnosis” of “child sexual abuse” by Dr. Oothout
was adequately explained at trial by the limitations of the electronic records system and
Dr. Oothout’s medical findings. The Defendant is not entitled to relief.
F. Cumulative Errors. The Defendant also argues that even if the aforementioned
errors were individually harmless, the cumulative effect of these errors violates his right
to a fair trial. See State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010) (“The cumulative error
doctrine is a judicial recognition that there may be multiple errors committed in trial
proceedings, each of which in isolation constitutes mere harmless error, but which when
aggregated, have a cumulative effect on the proceedings so great as to require reversal in
order to preserve a defendant’s right to a fair trial.”). We have already concluded that
there was only one error in the record, regarding Dr. Estrada’s testimony, and that the
error was insignificant in light of the overwhelming medical evidence in this case.
Because we have already determined that the Defendant is not entitled to relief on any of
the previous issues, we conclude that there is no cumulative error.
III. Sentencing. Finally, the Defendant argues that the trial court abused its
discretion by imposing a sentence of fifty years. Specifically, he claims that the court
“failed to consider the purposes and principles of sentencing,” improperly applied two
enhancement factors, and failed to impose the minimum sentence of forty years as “the
least severe measure of punishment necessary.”
We review the length and manner of service of a sentence imposed by the trial
court under an abuse of discretion standard with a presumption of reasonableness. State
v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Moreover, “a trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
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trial court wholly departed from the 1989 Act, as amended in 2005.” Id. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed by the trial court within the appropriate range
should be upheld.” Id. “If, however, the trial court applies inappropriate mitigating
and/or enhancement factors or otherwise fails to follow the Sentencing Act, the
presumption of correctness fails.” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008).
Upon imposing a sentence, a trial court must consider the following: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on the mitigating and enhancement factors set out in
sections 40-35-113 and 40-35-114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. T.C.A. § 40-35-210(b)(1)-(7). The defendant has the burden of
showing the impropriety of the sentence on appeal. Id. § 40-35-401(d), Sentencing
Comm’n Cmts. In determining the proper sentence, the trial court must consider the
defendant’s potential for rehabilitation or treatment. Id. § 40-35-102(3)(C) and 40-35-
103(5). In addition, the court must impose a sentence “no greater than that deserved for
the offense committed” and “the least severe measure necessary to achieve the purposes
for which the sentence is imposed.” Id. § 40-35-103(2), (4).
As an initial matter, pursuant to Tennessee Code Annotated section 39-13-531(b),
the Defendant was required to be sentenced as a Range III, Persistent Offender for the
aggravated rape of a child, a Class A felony. The Defendant was subject to a sentencing
range of forty to sixty years, thus, the trial court’s fifty-year sentence was within the
applicable statutory range and presumed reasonable. Id. § 40-35-112(c)(1). In
determining the appropriate length of the Defendant’s sentence, the trial court applied six
enhancement factors. On appeal, the Defendant does not challenge the trial court’s
application of enhancement factors (1), (8), (13), or (14), but asserts that factors (4) and
(5) were improperly applied. See id. § 40-35-114.
As to enhancement factor (4), that “[a] victim of the offense was particularly
vulnerable because of age or physical or mental disability,” the trial court found that “it
struggled with the applicability of that particular factor simply because the statute does
require three years of age or less. However, in this particular matter, we are dealing with
a four-month-old child.” See id. § 40-35-114(4). The trial court further noted that it “has
not given that significant weight as an enhancing factor, but I do find it to be applicable.”
The Defendant argues that age and “particular vulnerability” of the victim are both
essential elements of the offense and cannot be punishable by an enhancement factor.
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However, the Tennessee Supreme Court has held that this factor can be used in an
aggravated rape of a child case “if the circumstances show that the victim, because of his
age or physical or mental condition, was in fact ‘particularly vulnerable,’ i.e., incapable
of resisting, summoning help, or testifying against the perpetrator.” State v. Adams, 864
S.W.2d 31, 35 (Tenn. 1993), superseded on other grounds by statute as stated in State v.
Jackson, 60 S.W.3d 738, 741-42 (Tenn. 2001). Here, the victim was a four-month-old
infant who could not walk, talk, summon help, or defend himself. Accordingly, we find
the application of this enhancement factor appropriate in this case. See Adams, 864
S.W.2d at 35; see also State v. Collins, 986 S.W.2d 13, 23 (Tenn. Crim. App. 1998)
(holding that a newborn infant was particularly vulnerable and enhancement factor (4)
was properly applied).
The Defendant next contends that the trial court erred in its application of
enhancement factor (5), that the Defendant treated the victim with exceptional cruelty
during the commission of the offense, because “[t]his factor is usually applied in cases of
abuse or torture.” The Tennessee Supreme Court has held that evidence supporting the
application of the “exceptional cruelty” enhancement factor requires a finding of cruelty
“over and above” what is required for the offense itself. State v. Arnett, 49 S.W.3d 250,
258 (Tenn. 2001). In other words, “‘[e]xceptional cruelty,’ when used as an
enhancement factor, denotes the infliction of pain or suffering for its own sake or from
gratification derived therefrom, and not merely pain or suffering inflicted as the means of
accomplishing the crime charged.” State v. Reid, 91 S.W.3d 247, 311 (Tenn. 2002).
This factor is most often found in cases of abuse or torture, but it has been found
applicable in cases where traumatic and severe injuries were sustained by the victim.
State v. Gray, 960 S.W.2d 598, 611 (Tenn. Crim. App. 1997). When applying this factor,
a trial court should articulate the actions of the defendant, apart from the elements of the
offense, which constitute exceptional cruelty. State v. Goodwin, 909 S.W.2d 35, 45-46
(Tenn. Crim. App. 1995).
The trial court found that enhancement factor (5) was appropriate considering “the
testimony of the physicians,” and, specifically, the testimony of the pediatric surgeon
who stated that, “[i]n this particular case[,] the anal opening when [the doctor] saw and
examined this child . . . [sic] [was] four times the size of the normal stretched anal
opening of a four-month-old.” As the trial court noted, A.T.’s physical injuries in this
case were particularly significant, and the physical evidence is sufficient to show that
A.T. was abused beyond a penetration necessary to prove aggravated rape of a child. The
proof showed that A.T. suffered multiple tears and bruising in addition to the significant
dilation of his anus. Such bodily injury is not an essential element of the crime of
aggravated rape of a child, which requires no injury, and thus, can properly be applied as
an enhancement factor. See State v. James Lloyd Julian, II, No. 03C01-9511-CV-00371,
1997 WL 412539 (Tenn. Crim. App. July 24, 1997) (applying enhancement factor (5) in
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a rape of a child case where the victim suffered additional injuries); but see State v.
Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995) (finding that enhancement
factor (5) did not apply in a rape case where the injuries were included in the statutory
definition of bodily injury which elevated the offense to aggravated rape). We conclude
that the record supports the trial court’s application of enhancement factor (5).
In any event, the trial court also found that a number of other factors applied,
factors (1), (8), (13), and (14), and the record supports their application. See T.C.A. § 40-
35-114(1), -114(8), -114(13), -114(14). Indeed, this court has held that application of
even a single factor may be sufficient to justify an enhanced sentence. See, e.g., State v.
Eric D. Charles, No. W2007-0060-CCA-R3-CD, 2008 WL 246023, at *6 (Tenn. Crim.
App. Jan. 30, 2008); State v. Shawn McCobb and Marcus Walker, No. W2006-015-17-
CCA-R3-CD, 2007 WL 2822921, at *4 (Tenn. Crim. App. Sept. 26, 2007). The
Defendant’s four unchallenged enhancement factors carried enough weight to support his
mid-range sentence of fifty years, and the weight to be given the various factors is within
the broad discretion afforded our trial courts.
The Defendant’s argument that the trial court did not consider the purposes and
principles of the sentencing act is also without merit. After analyzing the applicable
enhancing and mitigating factors, the trial court thoroughly considered the evidence
presented at trial as well as the Defendant’s presentence report. Because the record
shows that the trial court carefully considered the evidence, the enhancement and
mitigating factors, and the purposes and principles of sentencing prior to imposing a
sentence of fifty years, the Defendant has failed “to either establish an abuse of discretion
or otherwise overcome the presumption of reasonableness afforded sentences which
reflect a proper application of the purposes and principles of our statutory scheme.”
Caudle, 388 S.W.3d at 280. Likewise, a trial court’s duty to impose the least severe
method of punishment does not entitle the Defendant to a presumptive minimum
sentence. “Presumptive sentences” were eliminated by the 2005 Amendments to the
Sentencing Act and trial courts now have the discretion “to select any sentence within the
applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. § 40-35-
210(d)). The record amply supports the fifty-year sentence imposed by the trial court.
The Defendant is not entitled to relief.
CONCLUSION
Upon review of the record and applicable law, we affirm the judgment of the Giles
County Circuit Court.
____________________________
CAMILLE R. McMULLEN, JUDGE
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