State of Tennessee v. Deborah Wen Yee Mark

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 21, 2015 Session
STATE OF TENNESSEE v. DEBORAH WEN YEE MARK
Appeal from the Criminal Court for Wilson County
No. 2010-CR-451 David E. Durham, Judge
No. M2014-00651-CCA-R3-CD – Filed August 10, 2015
Appellant, Deborah Wen Yee Mark, was convicted of one count of first degree murder
during the perpetration of aggravated child abuse, four counts of aggravated child abuse,
and four counts of child abuse. The trial court sentenced appellant to life for the murder
conviction, twenty years at 100% release eligibility for each of the aggravated child abuse
convictions, and three years as a Range I, standard offender for each of the child abuse
convictions. The trial court aligned each of the aggravated child abuse sentences
consecutively to each other and consecutively to the life sentence. The child abuse
sentences were aligned consecutively to the life sentence but concurrently with each other
and with the aggravated child abuse sentences for an effective sentence of life plus eighty
years. Following her unsuccessful motion for a new trial, appellant raises the following
issues on appeal: (1) whether appellant was in custody during her questioning, triggering
Miranda requirements; (2) whether her statement was coerced and involuntary; (3)
whether the trial court erred in admitting the victim‟s adoption video; (4) whether the
evidence is sufficient to support appellant‟s aggravated child abuse conviction in Count
III of the indictment vis-à-vis the finding of “serious bodily injury” based on the loss of
four primary teeth; and (5) whether the trial court erred in aligning appellant‟s aggravated
child abuse sentences consecutively. Following our extensive review, we affirm the
judgments of the trial court, but clerical errors in the judgment forms require remand for
correction as detailed fully below.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Remanded for Entry of Corrected Judgments
ROGER A. PAGE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.
James G. Thomas, Chandra N.T. Flint, and L. Wells Trompeter (on appeal), Nashville,
Tennessee; and B.F. (Jack) Lowery and Jack D. Lowery (at trial), Lebanon, Tennessee,
for the appellant, Deborah Wen Yee Mark.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Thomas
Harwell Swink and Jason Lee Lawson, Assistant District Attorneys General, for the
appellee, State of Tennessee.
OPINION
This case involves the death of a four-and-a-half-year-old victim who had been
adopted from China and relocated to the United States approximately ten weeks before
her death. The victim‟s adoptive parents, appellant and her husband, Steven Mark, were
charged individually with multiple crimes for their involvement in her death.
Appellant was charged in a nine-count indictment as follows: (I) felony murder
committed during the perpetration of aggravated child abuse; (II) aggravated child abuse,
injury to the victim‟s head and body; (III) aggravated child abuse, injury to the victim‟s
mouth; (IV) aggravated child abuse, injury to the victim‟s breast and nipples; (V)
aggravated child abuse, injury to the victim‟s skeletal system; (VI) child abuse, injury to
the victim‟s hands and fingers; (VII) child abuse, injury to the victim‟s face and eye;
(VIII) child abuse, injury to the victim‟s thighs; and (IX) child abuse, injury to the
victim‟s back.
I. Facts
Prior to trial, appellant filed a motion to suppress her statement, alleging that she
had not been fully apprised of her Miranda rights and that her statement had been
coerced.
A. Motion to Suppress
At the November 16, 2011 hearing on appellant‟s motion to suppress her
statement, the State‟s first witness was Detective Bonnie Harris with the Mt. Juliet Police
Department. Detective Harris had been in law enforcement for thirteen years and had
served as a detective for seven years. As a detective, her cases involved primarily
domestic abuse, child abuse, sexual assaults, and sex crimes in general. As part of her
training, Detective Harris had received “several, several hours of interview and
interrogation, child abuse investigation, homicide, a wide range of in-service training.”
She had attended the John Reid Interviewing Techniques School, which provided twenty-
four hours of specialized training, and the Regional Organized Crime Information Center,
which provided eight hours of interviewing and body language training. Detective Harris
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also received thirty-six hours of training in child abuse cases through the Office of
Juvenile Justice and Delinquency Prevention.
Detective Harris testified that on July 10, 2010, she received a call from a patrol
officer about a possible child abuse case at Summit Medical Center. She and Detective
David Stolinsky proceeded to that location, but while en route, she received notification
that the victim had been air-lifted to Vanderbilt Children‟s Hospital, so they changed
directions. Upon arrival at Vanderbilt, Detective Harris spoke with a social worker, who
informed her that the victim presented with several injuries and that the parents had not
seen the victim yet. Detective Harris then spoke with the emergency room physician, Dr.
Mark Meredith, who advised her of the nature of the injuries, showed her pictures of the
injuries, and opined that the injuries were severe and that the chance of survival was
“scarce.” She then entered the victim‟s room, viewed her injuries, and photographed
them herself.
Detective Harris could not recall at what time she first encountered appellant but
stated that their first encounter occurred after she had spoken with several other people.
When Detective Harris first saw appellant, she was seated in the waiting room of the
Intensive Care Unit (“ICU”) with her husband, Steven Mark, and Detective Harris
approached her and “asked if she would be willing to sit down . . . and discuss the reason
why [the victim] was here today.” Detective Harris, Detective Stolinsky, appellant, and a
case worker from the Department of Children‟s Services (“DCS”), Julie Vantrease,
walked to a nearby waiting room so they could sit down and discuss what had transpired.
Detective Harris confirmed that appellant accompanied her voluntarily, that appellant
was not “escorted,” that she did not have to be “encouraged” to enter the waiting room,
and that she did not indicate hesitance to accompany the group.
Detective Harris explained that the waiting room where appellant was interviewed
was approximately ten to fifteen feet away from the elevators. The elevators allowed free
access; there was no security, and one did not require a key or pass of any sort to access
that exit. The waiting room itself contained a round table with three chairs on the left
side of the room and a chair and table with a telephone on it in the right rear corner.
Detective Harris described that Ms. Vantrease sat in a chair at the back of the room while
the others sat at the table. Appellant sat facing the door, and Detective Stolinksy was the
closest to the door but did not block access to it.
Detective Harris recalled that she began the discussion with appellant by
informing her that her participation was “completely voluntary[] [and] that she was free
to leave at any time.” Detective Harris said, “I pointed to the door. I said, „[T]here‟s the
door.‟ I told her that the only reason why the door was shut was because of privacy
issues because it was a hallway.” The waiting room was right off the hallway, and there
was a lot of “foot traffic.” She further informed appellant that she was free to leave; that
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she was free to cease answering questions; that she was free to request an attorney, at
which time they would stop the interview; and that regardless of what appellant told her
in the interview, “she would be going home that night.” Both detectives were dressed in
plain clothes but were armed. Detective Harris described the tone of the discussion as
“conversational” and stated that neither she nor Detective Stolinsky raised their voices.
Detective Harris explained that they began the conversation by asking how
appellant adopted the victim, the victim‟s country of origin and background, information
about the family dynamic, and background information with regard to appellant‟s eight-
year-old daughter. Appellant answered the questions calmly and did not appear to be
upset. Appellant volunteered that there were “some frustrations” with the victim‟s
behavior, which changed shortly after they arrived in the United States after adopting her.
The victim did not perform “on par” with how the Marks believed a four-and-a-half-year-
old should with regard to her eating too slowly, not being toilet-trained, and being “very
tiny” for her age. Detective Harris questioned appellant about injuries that she observed
on the victim‟s nipples, and appellant “paused for a minute[,] and she kind of put her
head down[,] and she said, „[Y]eah.‟ She said, „I got frustrated and I did it.‟ . . . She said
that she would twist and pull [the victim‟s] nipples and it made scaring [sic].” Detective
Harris estimated that appellant made this admission “about an hour” into the interview.1
Maintaining the same “calm” and “conversational” tone, Detective Harris stated
that she then inquired into the bruises on the victim‟s legs. Appellant replied that she
would become frustrated with the victim and pinch the insides of her legs, leaving
bruises. Appellant then stated that on Father‟s Day, the victim was “acting up [and]
being defiant.” The victim fell and struck her forehead, and appellant attempted to treat
the bump with an icepack. The victim resisted the effort and kept squirming, and
appellant, who acknowledged that she was frustrated, took the icepack and “slammed it
in her facial area several times.” Detective Harris asked appellant about the bruising on
the victim‟s hands. Appellant explained that the victim would “pick” at her hands despite
appellant‟s requests for her to stop. When this would occur, appellant would force the
victim to hold out her hands, palms down, and appellant would strike the backs of her
hands with a wooden cane appellant used in martial arts.
Detective Harris recounted that during the interview, appellant recalled that on one
occasion, she and Mr. Mark were attempting to brush the victim‟s teeth, but the victim
resisted and began a “breath-holding spell” wherein the victim would hold her breath
until she lost consciousness. Viewing this as a defiant act, appellant forced the victim‟s
mouth open to brush her teeth and in doing so, knocked out two of her front teeth. With
1
Following this admission, Detective Stolinsky left the room to place a call to Detective Brian
Harbaugh with the Wilson County Sheriff‟s Department. He remained out of the room until a break was
taken.
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regard to bruising on the victim‟s back, appellant said that during one of the “breath-
holding spells,” it was possible that she might have struck the victim harder than she
realized, leaving a bruise.
At this time, another fifteen minutes had elapsed since the first admission by
appellant, and Detective Stolinksy re-entered the room and requested a break. Appellant
never requested to take a break. Detective Stolinsky asked appellant if she wanted to see
the victim, and she replied affirmatively. They exited the room, and Detective Harris
remained behind. The break lasted approximately fifteen minutes.
When the interview resumed, Detective Harbaugh participated but Detective
Stolinsky and Ms. Vantrease were not present. Detective Harbaugh produced a digital
recorder. Detective Harris introduced the detective to appellant and emphasized with
appellant the same admonitions as she had earlier. The tone of the interview remained
conversational, and Detective Harris told appellant that they needed to review with
Detective Harbaugh the information appellant had previously disclosed. This “second
segment”2 of the interview lasted approximately three and a half hours, during which
Detective Harris asked appellant if she needed to take a break. Appellant declined but
indicated that she was thirsty, so Detective Harris gave her a soda. Detective Harris
recounted, “Throughout the whole interview [appellant] was calm, conversational, you
know, it wasn‟t accusatory. It was just talking.”
Detective Harbaugh asked appellant if she wanted to discuss the victim‟s
condition with a doctor, and they took a break so he could locate one. Appellant declined
Detective Harris‟s offer of food, stating that she was unable to eat at that time, but
accepted another soda. During the break, appellant became concerned that she had lost
her cellular telephone in the parking garage, and Detective Harris summoned Vanderbilt
security to look for it. Appellant never indicated a desire to search for the telephone
herself and never asked to leave the room.
Detective Harris said that after the break, Dr. Paul Hain entered the room,
addressed appellant, and summarized the victim‟s medical condition. The discussion
lasted ten to fifteen minutes, during which no one raised his or her voice or became
confrontational. While they were speaking, both detectives stepped out of the room and
began placing telephone calls. Detective Harris telephoned Detective Stolinsky, who was
at appellant‟s and the victim‟s home. She advised Detective Stolinsky to look for a mark
on the wall where the victim could have struck her head. He told Detective Harris that he
had located a bloody “onesie,” i.e., an infant‟s one-piece body suit, in a sink and that he
needed to know from where it came.
2
The State refers to this portion of appellant‟s interview as the “second segment,” and for ease of
reference, we will incorporate the State‟s term for this portion.
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Detective Harris stated that when the break concluded, she and Detective
Harbaugh re-entered the room, and she asked appellant about the onesie. Appellant said
that they changed the victim‟s clothing the previous night around 11:30 p.m. or 12:00
a.m. because the garment was soiled with saliva that was tinged with blood. The victim
was not responsive, and they placed her in her bed and retired for the night. The
conversation essentially ended at that point when a nurse entered and announced that
appellant‟s pastor had arrived. Detective Harris observed appellant cry “for the first
time,” and the detectives exited the room, leaving appellant with her pastor. A DCS
worker was waiting to question appellant with regard to her older daughter. This last
segment of the interview was much shorter, lasting approximately thirty minutes.
Later that evening, the detectives spoke with appellant outside of her home.
Detective Harris confirmed that no one escorted appellant from the waiting room or the
hospital and that she was never in custody. Appellant left the hospital on her own accord.
When they arrived, appellant was outside, so they spoke with her beside her automobile.
Detective Harris again informed appellant that “she was free to walk away . . . at any time
and stop talking to [them].” Detective Harris stated that appellant understood that. She
then asked appellant about a “box”:
Mr. Mark admitted to Detective Stolinsky that during time[-]outs, at one
particular time he put [the victim] in a cardboard box with her sitting in her
like booster, high-chair seat, you know, the portable high-chair seats that
you can take off the chair, put it in a box in the garage and placed another
box over her for a time out session for discipline because she wouldn‟t eat
fast enough.
Appellant denied any knowledge of such a practice. Detective Harris said that this
exchange was “very brief.” Detective Harris did not speak with appellant again.
On cross-examination, Detective Harris acknowledged that when she, Detective
Stolinsky, and Ms. Vantrease first convened, they discussed their approach to the
investigation. At some point, Detective Stolinsky telephoned the District Attorney‟s
office because they had been given the impression that the victim was going to die. They
decided that they were going to escort appellant and Mr. Mark to different rooms and
interview them separately. They began by asking appellant to join them in a waiting
room for a discussion. Detective Harris denied that appellant requested on “multiple
occasions” to see the victim but agreed that she inquired as to the victim‟s condition.
Detective Harris was asked to draw a sketch of the room where they interviewed
appellant. She confirmed that there were no windows in the room or in the door leading
into the room. She denied that the only statements appellant gave were in direct response
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to questions asked and instead characterized the interview as a “conversation” wherein
they talked “back and forth.” Detective Harris also emphasized that appellant would
“bring up things” without being asked.
Detective Harris clarified that it was she, in fact, who requested the first break.
She asked appellant if appellant would like a refreshment, and Detective Stolinsky asked
if appellant wanted to see the victim. Appellant declined refreshments but accompanied
Detective Stolinksy to see the victim. Detective Harris did not recall whether Detective
Harbaugh joined Detective Stolinsky and appellant in the victim‟s room or whether
Detective Harbaugh escorted appellant back to the waiting room. Detective Harris did
not recall Detective Harbaugh‟s raising his voice to appellant and maintained that the
tone remained conversational, even when he implied to appellant that she was not being
honest. Detective Harris agreed that the introductory portion of the first interview
segment could have been shorter than one hour and that the “incriminatory” portion could
have lasted fifteen to thirty minutes. Detective Harris acknowledged that appellant was
sometimes emotional but characterized her as “quiet” rather than “meek.” She conceded
that appellant appeared to have difficulty remembering certain things but disagreed that
appellant was confused. She disagreed that appellant asked about the victim‟s condition
more than ten times but agreed it might have been “a couple” of times.
Detective Harris stated that they separated appellant and Mr. Mark because they
wanted to speak with them separately, not because they wanted to “isolate” them from
each other. She agreed that once Detective Harbaugh arrived and began recording the
conversation, appellant made no statements that were not recorded.
On re-direct examination, Detective Harris emphasized that nothing about
appellant‟s demeanor indicated that her statement was not voluntary. She also confirmed
that when she began the interview, appellant was not a suspect in the case. Detective
Harris opined that generally the primary caretaker would be the suspect, who in this case
was Steven Mark. Detective Harris‟s intent in separating the Marks was to obtain
background information and to learn whether appellant, as a pediatrician, had observed
any potential criminal behavior against the victim at the hands of Mr. Mark. She
confirmed that at all times during the interview, appellant was “freely speaking,” “clear
[about] what she was saying,” and neither evasive nor confused. Detective Harris stated
that she never made any threats against or promises to appellant during the interview.
On re-cross-examination, Detective Harris admitted that although appellant was
not a suspect at the beginning of the interview, she was soon developed as a suspect but
that Detective Harris did not stop and administer Miranda rights at any time. She also
confirmed that the door to the waiting room was unlocked during the interview.
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The State called Detective David Stolinksy, a five-year-veteran detective with the
Mt. Juliet Police Department, as its next witness. He testified that the only time he was
with appellant in Detective Harris‟s absence was when they went to visit the victim. At
some point during the first segment of the interview with appellant, Detective Stolinsky
asked appellant if she wanted to see the victim, and he accompanied her to the victim‟s
room. Prior to this, appellant had not expressed a desire to see the victim. They walked
approximately thirty to forty steps to the victim‟s room in silence; upon entering the
room, Detective Stolinsky stood on the left side of the victim‟s bed, and appellant stood
on the right side. The room was enclosed in glass and had a sliding glass door. Medical
personnel were either in the room the entire time or “were in and out constantly.” He
advised her that the detectives were “just trying to find out what happened” to the victim.
Appellant did not make any statements during the approximately fifteen-minute-long stay
in the victim‟s room. Detective Stolinsky never touched appellant or made any threats
toward her.
On cross-examination, Detective Stolinksy read from his report, “During a
conversation with [appellant] she became quiet and attempted to cry. This writer never
saw a tear come from [appellant]. During one of her quiet times writer asked [appellant]
to join him in [the victim‟s] room.” Detective Stolinsky disagreed that this was a
“direction” to appellant and characterized defense counsel‟s attempt to read it that way as
an “exaggeration.” He confirmed that he asked appellant to join him in checking on the
victim. Counsel questioned Detective Stolinsky, “Well, you took her out of this room
where she had been with you and Detective Bonnie Harris for over an hour and a half.”
Detective Stolinsky corrected counsel and stated, “Your time is off, I believe,” then
surmised that approximately one hour had elapsed. Detective Stolinsky reiterated that as
a police officer, his purpose for being at the hospital was to find out what happened to the
victim and conceded that he “paraphrased” his report:
This writer explained to Dr. Mark that our goal was to find out what
happened to [the victim], that she was a small innocent child who now [lay]
in the hospital room with tubes and wires attached to her and that is just not
right for a child to be in this position at her age at the hands of an adult.
Detective Stolinsky did not recall Detective Harbaugh‟s joining them in the victim‟s
hospital room.
Upon further cross-examination, Detective Stolinksy clarified that when Detective
Harbaugh arrived, he took Detective Stolinsky‟s place in the conference room where
appellant was being interviewed and that Detective Stolinsky then joined Mr. Mark in a
“quiet” room. He confirmed that when they first began interviewing appellant, she was
not a suspect. He stated that about an hour into the interview, appellant admitted that she
had injured the victim; he characterized those admissions as “shocking” to the detectives.
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He testified that when appellant implicated herself, no one stopped to Mirandize her
because she was not in custody.
The trial court asked Detective Stolinsky what time the interview started.
Although he could not state the time definitively, he estimated that the interview began
around 1:00 p.m. on July 1.
The State called Tennessee Bureau of Investigation Agent, formerly Detective,
Brian Harbaugh as its next witness.3 On July 1, 2010, Detective Stolinsky contacted the
criminal investigations bureau of the sheriff‟s department and requested Detective
Harbaugh‟s assistance at Vanderbilt Children‟s Hospital to investigate a case of possible
child abuse. Upon arrival, he spoke with Detectives Stolinsky and Harris, who updated
him on the investigation. He learned that a crime scene unit was searching appellant‟s
residence and that detectives had been interviewing appellant. Detective Harbaugh also
observed the victim. Collectively, the detectives decided that Detective Stolinsky would
focus his attention elsewhere while Detectives Harris and Harbaugh continued to
interview appellant. Detective Harbaugh had been at the hospital approximately fifteen
minutes when he first met appellant; he entered a room where she was seated. He
described the room as a rectangular room, approximately twenty feet long by twelve feet,
that was adjacent to the nurses‟ station. He characterized the room as “a quiet room,”
although he did not know exactly how the room was utilized. He did not have to pass
through security to access the room, and due to the room‟s location, the area immediately
outside of it was “right in the middle” of everything, with “at least a dozen” people
working in the area. He agreed that he was dressed in plain clothes but was clearly armed
and wearing a badge.
Detective Harbaugh recalled that when he entered the quiet room, Detective Harris
introduced him to appellant. Detective Harris then asked appellant to review some of the
information she had previously disclosed for the purpose of updating Detective
Harbaugh. He brought a digital audio recorder with him and turned it on prior to
speaking with appellant. He described that he chose a chair that placed his back to the
door, facing appellant. Detective Harris sat “off” to his right in a chair without a table so
that the three of them formed a “triangle.” He confirmed that there was space between
appellant and the door and that someone seated in her position could have exited the
room without his having to move out of the way. He said that the door was closed for
privacy as well as to reduce the noise generated by the several people at the nurses‟
station.
3
At the time of the investigation in this case, Agent Harbaugh was a detective with the Wilson
County Sheriff‟s Department. Because all of the testimony and documents refer to him as “Detective
Harbaugh,” we will refer to him as “Detective.” In doing so, we mean no disrespect.
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Detective Harbaugh testified that before he started the recorder, the only
conversation that took place involved typical cordial greetings. During that time neither
he nor anyone in his presence threatened or coerced appellant. He turned the recorder on,
and at the suppression hearing, the entire recording was played for the trial court.
Thereafter, Detective Harbaugh, in response to questioning by the court, stated that the
recorder was in a pocket of a black binder that was placed on the table at which he was
seated with appellant. He recalled that he left the room twice during the interview. One
time he left was after appellant indicated she had injured the victim with the icepack. He
left the room to inquire of a doctor if any of the victim‟s injuries were consistent with that
explanation.
Detective Harbaugh recalled that when the interview was completed, he left the
hospital. As he was leaving, a DCS case worker was waiting to speak with appellant, but
he did not stay for that interview. He and Detective Harris then drove to appellant‟s
residence. Later that evening, they returned and spoke with appellant about the victim‟s
being placed in a box for punishment. Appellant simply replied that she was tired and
could not speak with them at that time. The detectives honored her statements and left
her residence. They did not speak with her again.
On cross-examination, Detective Harbaugh indicated that he arrived at the hospital
around 3:00 or 4:00 p.m.; he remembered the time because it was close to the end of his
8:00-4:00 p.m. shift. He estimated that the last interview of the evening was attempted
around 9:00 p.m. Detective Harbaugh reviewed pictures of the hallway leading from the
elevator to the nurses‟ station and agreed that one had to press a button to gain access
through a set of double doors before reaching the nurses‟ station. He acknowledged that
separating two individuals who are suspected in criminal activity was a common
technique so that the individuals‟ explanations could be compared.
Detective Harbaugh conceded that he did not advise appellant that the interview
was being recorded and that the recorder was not visible to her. He explained, “Well,
I‟ve found in the past that . . . anytime somebody knows that they‟re being recorded[,]
they‟re . . . more apprehensive and they‟re just short on words and don‟t necessarily --
well, they just feel uncomfortable. It makes people feel uncomfortable.” As such, he
agreed that people were less likely to speak with him and answer questions.
Detective Harbaugh acknowledged that based on what Detective Harris reported to
him, appellant had made certain admissions that would have constituted child abuse.
Detective Harbaugh admitted that when he questioned appellant, he believed it was likely
that she would provide additional incriminatory information and that the detectives
discussed whether they should Mirandize her prior to beginning the second segment of
the interview. Collectively, they decided against it because Detective Harris had
previously explained to appellant that “she was free to leave and the whole non-custodial
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route.” He did not reiterate those points with appellant because he did not see any “sense
going over it twice.” He emphasized that he did not Mirandize appellant:
Again, because it just wasn‟t called for. It‟s . . . non-custodial and during
my conversation with her, we had talked about several things, about breaks
or people coming in to see her, her leaving, her wanting to take breaks, me
even offering to give her a ride. I mean, it never dawned on me that she felt
that possibly she could not leave. I mean, it seemed to be very clear through
our conversation that it was non-custodial.
Detective Harbaugh further agreed that he did not offer appellant a break until
“around” the two-hour, thirty-three minute mark in the recording. He conceded that
although the majority of the interview was conversational in tone, there were times when
he cut off appellant‟s answer because he believed that she was withholding the truth and
instead telling him a “story” that she thought he would believe. He recalled a point in the
interview wherein he told appellant that he believed she needed anger management
counseling. He agreed that appellant at one time indicated her fear that people would
believe she was a child abuser and that he told her he did not think she was a child
abuser. He explained, “[M]y job is to in a sense comfort her and get her to give me
truthful statements and . . . calling them a child abuser doesn‟t put them in the greatest of
mood.” Counsel attempted to characterize this tactic as “disarming” people, but
Detective Harbaugh characterized it as “building rapport.” Counsel also directed
Detective Harbaugh to two instances late in the interview: (1) appellant asked, “Can I get
somebody to go check for my cell phone, right?” and (2) appellant asked, “[W]hat
happens from here[?] I mean, I know that an investigator went with my husband to go to
the house. I mean, are we allowed to have people here to support us[?]” Based on those
statements by appellant, counsel asked Detective Harbaugh if the inference was that
appellant did not feel free to leave. The State objected, and the trial court sustained based
on speculation before he could answer.
Detective Harbaugh confirmed that when he and Detective Harris arrived at
appellant‟s home that evening, they met outside. Appellant was staying at a neighbor‟s
house because the crime scene unit was in her home and she was not allowed inside. Her
husband was inside the home, but officers were not intentionally keeping them separated
at that time.
Appellant testified at the suppression hearing. She stated that she had been a
pediatrician since 2000, first in New Jersey and then in Mt. Juliet, Tennessee. She
testified that she had never had any interaction with a law enforcement officer with the
exception of one speeding ticket. She had never interacted with an officer during the
course of her medical practice. She stated that she was taught as a child to respect
authority.
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Appellant recalled that on July 1, 2010, Mr. Mark informed her that the victim was
being treated at Summit Medical Center. She was then advised that the victim had been
air-lifted to Vanderbilt Children‟s Hospital. Based on her experience, she was aware that
if a child were air-lifted to another facility, “there‟s usually serious injury.” When she
arrived at the hospital, she met and briefly spoke with Mr. Mark in the emergency room,
which was on the first floor. Hospital personnel then escorted them to a private room
adjacent to the emergency room. There, a doctor entered and told them that the victim
was being treated, but he offered no information as to her condition.
Appellant stated that at some point, they were “led” from the private room
downstairs to the intensive care unit upstairs. She said that “once [they] entered the
intensive care unit,” she and Mr. Mark were separated. She asserted that she was “taken”
by detectives to a small waiting room within the ICU where she met with a female
detective, a male detective, and a DCS worker. When asked how she felt about meeting
with them, appellant responded, “I felt like I had to go with them, sir . . . . They were
police officers.” She said that she did not want to be in the room with them; she wanted
to be with her husband and the victim in her hospital room. She claimed that no one
informed her that she could go to the victim‟s room. Once questioning began, she said
she felt she had to stay there and that she did not have the right to get up and check on the
victim. She testified that had she known she had the right, she would have left the room
and checked on the victim.
Counsel asked appellant if she knew how long she was in the waiting room that
day. She answered only that she knew “it was a very long time.” Counsel posited, “If I
told you it was close to five hours would that sound somewhere about right?” to which
she responded, “I believe so, yes. I believe so, sir.” She maintained that during that time,
she needed to use the restroom but no one asked if she needed to take a break to do so.
When asked if anyone told her that she could leave the room, she stated that she
remembered that “one of the officers mentioned something about a door, but [she] didn‟t
feel [she] could leave.” She said she felt as though she had to stay because they were
police officers and she was trying to cooperate. She stated that during that time, there
was “no time” at which she was not concerned about the victim and that no one apprised
her of the victim‟s condition until toward the end of the interview. She reiterated that she
would have never gone into the waiting room with the officers if she had not felt she had
to.
On cross-examination, the State inquired into appellant‟s professional history as a
medical doctor and asked how many times she had been in a hospital. She eventually
acknowledged that she had been in a hospital more than 100 times. She recalled that she
drove herself to Vanderbilt on the day in question. She parked and walked in,
unescorted, then found Mr. Mark in the emergency room. Shortly thereafter, they were
-12-
directed to a waiting room where they stayed between twenty and thirty minutes before a
doctor entered and informed them that the victim was being transferred to the ICU.
Appellant clarified that upon arrival on the ICU floor, she was approached by
Detective Harris, separated from her husband, and “led” into a room. She recalled that
Detective Harris said that she had questions for appellant but did not remember Detective
Harris asking if appellant would be willing to speak with her. When questioned about
whether Detective Harris asked if appellant would be willing to talk with her, appellant
answered, “I don‟t remember the exact words that she used, sir. . . . I felt like she was
telling me to go with her to answer questions, sir.” She did not remember the detective
telling her that she did not have to answer questions. Likewise, appellant stated that she
recalled Detective Harris “saying something about the door, but [she] didn‟t feel like
[she] could leave.” In contrast, appellant admitted that she could remember the exact
parking place she occupied that day when she gave instructions to help security find her
missing cellular telephone.
Appellant confirmed that she told Detective Harbaugh that she wanted to hear
about the victim‟s medical condition from a doctor and that in response, he said he would
check on it. She acknowledged that he did so but added that it did not happen
“immediately after [she] asked.” She would not agree that Detective Harbaugh left the
room “very shortly” thereafter and based her position on the fact that “as we heard on the
tape yesterday, the doctor didn‟t come in until the very end of the interview.” Appellant
conceded that she was never verbally threatened but added that she was “raised up to
respect the police‟s authority.”
When the State questioned appellant about her needing to use the restroom during
the interview, the following exchange was had:
Q: Let me ask you this: You‟re a forty-year-old woman, well-educated,
medical doctor, did you need to go to the bathroom?
A: Yes, sir.
Q: Why didn‟t you ask?
A: Sir, I was in a room with police officers, sir.
Q: Ma‟am, is it your testimony you felt you couldn‟t even ask if you could
go to the bathroom?
A: Yes, sir.
-13-
In a similar manner, when asked if she ever requested to visit the victim‟s room,
appellant answered, “I asked if someone could give me information on what‟s going on
with [the victim].” The State repeated the question verbatim, and appellant responded, “I
did not ask, sir, because I did not feel I would be allowed to, sir.”
When asked how appellant left the hospital on the day in question, she answered
that she left with one of the pastors from her church. She said that she was not able to
talk with him until the time that she left with him. However, she also did not know when
he arrived at the hospital so she “couldn‟t have asked to see him because [she] wouldn‟t
have known that he was there.” She recalled, from listening to the tape, that toward the
end of the interview, she asked Detective Harbaugh “if [she] could have church people
there with [her], and he responded, “„[Y]es, you can have church people there.‟”
The trial court issued a thorough ruling:
[T]he first issue I must decide is whether . . . or not this was a
custodial interrogation or interview, because if it‟s noncustodial, Miranda
does not need to be applied. There are several factors, in fact, the test, and
this was very clearly given to us in State v. Anderson . . . . [T]he test is
rather simple. It‟s whether a reasonable person in the suspect‟s position
would consider themselves deprived of freedom of movement to a degree
associated with a formal arrest considering the totality of the circumstances
....
Well, the first factor they give us to be used in any case is the time of
the interview . . . . [I]t seems to indicate that the interview initially began by
Detective Harris somewhere on or about 1:00 o‟clock in the afternoon. It
was never hammered down exactly. Detective Harbaugh, now Special
Agent Harbaugh, testified he began his interviews somewhere around 4:00
o‟clock or later in the afternoon. But the point is, this was in the afternoon .
. . . And this interview did take place sometime between 1:00 and 4:00 in
the afternoon and lasted for four hours and fifty[-]six minutes. I feel that
works in favor of the State because we do know from later in the testimony
that sometime around 9:00 p.m. is when the detectives and special agent
went to her home . . . .
Let‟s talk about the location of the interview . . . . This interview
took place at a hospital. Now, Mrs. Mark is a pediatrician. She even
testified under oath, her answers were very evasive, and I‟m going to make
that notation now, all of her answers on direct and cross examination, very
evasive. But she finally testified that, yeah, she‟s probably been in a
-14-
hospital over a hundred times. In this particular hospital, at least three
times, and in this hospital at least enough that she recognizes her own
parking spot. So, this location is a familiar spot to Mrs. Mark. It‟s not an
inhospitable place. It‟s a familiar place . . . . [T]he law does require that
any trier of fact . . . . that when you decide whose testimony you believe in
a particular case, you‟re to rely on your own common sense and everyday
experience. And my common sense and everyday experience tells me that
a doctor in a hospital is like a bug in a rug. It‟s just not an unfamiliar place.
It‟s a place where they should feel relaxed, even under these conditions, but
a familiar place. So I think that works in favor of the State.
We next get down to the duration and character of the questioning. I
think we need to divide that particular element or that particular factor into
two parts. First the duration, now there‟s no question that this interview, it
seems to be, the evidence seems clear, somewhere around a total of four
hours and fifty[-]six minutes . . . . Now, the evidence in this case has been
rather clear and undisputed that during the first segment of the
investigation, perhaps even the first hour, that Mrs. Mark was not even a
suspect. That they were actually acquiring background information about
Mrs. Mark, her home life and her husband, [whom] we all recognize as a
co-defendant in this case. And the question was really directed as to
whether or not he might have caused these suspected injuries to this child.
It wasn‟t until after about an hour the evidence seems to indicate that Mrs.
Mark actually became a suspect when she started answering questions
admitting, in the words of Detective Harris, that -- and testified to that she
had actually caused some injuries which were witnessed to this young
child. And at that point, as everyone knows from the evidence, that‟s when
Detective, now Special Agent Harbaugh was called because he does, as has
been admitted and he admitted on the stand, this is what he does is child
abuse investigations.
So, that first hour, particularly, up until Harbaugh arrives, certainly
that portion of the statement and the admissions made in that statement, the
duration is not overly long. So then we get to the second point when the
tape is turned on . . . . So when you look at the first hour and a half, the
questioning between Detective Harris and Mrs. Mark, not long at all, one
and a half hours. And I particularly find in that part, the duration does meet
the requirements of Anderson. It was not of a nature that would make the
statement [in]admissible.
Then we go to the part where it began recording . . . . I‟ve got it
marked here, she would be asked [a] simple question and Mrs. Mark would
-15-
go into a long dialogue answer which would be more information than was
asked and she was just allowed to continue to talk . . . . I would also like to
note that during this, at least the initial part of the recorded interview as
well, she was very unemotional. Questions were asked, direct questions
were asked. There were very unemotional responses. Unlike her testimony
here on the stand today, the answers came out rather quickly. They were
responsive, and as stated, and I think one of the attorneys argued that if she
didn‟t understand a question she would simply say, I don‟t understand and
would you repeat. Which like I stated earlier, much different than her
testimony here today where most of her answers were totally unresponsive,
even after pauses for reflection they were unresponsive.
So, you get into the entire period of the duration when the recording
started, and it was some I think three plus hours. I think we took a break.
The first break on the recording was approximately two hours and thirty[-]
three minutes. Again, I think it was at that point, at least from the tape it
appeared that Mrs. Mark became emotional. But then when the questioning
began again she again began giving very responsive -- to the questions. I
think what‟s very noteworthy too, during a lot of the answers, I made a
notation, because this talks about the duration and it also goes to the general
demeanor, in many of her responses, particularly her colloquy about, you
know, when she‟d go beyond what the question asked, most of her answers
she was -- obviously seemed more exasperated about the nonperformance
of her child . . . . In fact, I even made myself a notation, in part of this
interview it actually sounded like a mother talking to their grandmother or
her mother about the granddaughter. It wasn‟t like talking to a detective . .
. . So, you know, as far as the duration and the character, I believe that
works in the State‟s favor, that there was nothing in the recorded interview
where I thought the duration was necessary -- or was longer than necessary,
particularly too, and I need to point this out because I made myself a note.
When Mrs. Mark initially became a suspect and started talking about the
visible injuries to this child, she started mentioning multiple incidents. It
wasn‟t a single incident . . . . But then during this interview she was talking
about various injuries on various dates which occurred in various ways.
Well, when you do that that, by necessity, it requires more questions,
lengthy questions because you‟re talking about different events, and that‟s
going to naturally extend the length of the interview than if we were talking
just one event and one particular injury.
So, we go down to the next factor listed by the Anderson court and
that‟s the officer‟s tone of voice and the general demeanor . . . . [T]he tape
speaks for itself. I listened to the tape . . . . During the times of the
-16-
questioning by Agent Harbaugh, this Court saw no occasion to where his
voice and his demeanor had got to the point that a reasonable person in a
suspect‟s position, as required by Anderson, would feel like they were
being pressured other than just the request, look, answer the question
honestly, don‟t guess or don‟t answer it at all . . . . As far as Detective
Harris‟s tone of voice and her demeanor, I think it‟s noteworthy that when
Mrs. Mark was on the stand at no point, at no point during the direct or the
cross examination did she ever dispute anything that Detective Harris
testified to . . . . [T]his Court does give credibility to Detective Harris‟s
testimony because there was just no contradictory testimony as to that.
You go down to the next factor, the suspect‟s method of
transportation to the place. . . . She drove herself to the Children‟s Hospital
. . . . [T]hat certainly works in the State‟s favor.
The next factor, the number of police officers present. Now, at any
one time there were at least two police officers in this room, but I think it‟s
important to point out, they were not uniformed police officers. They were
in plain clothes . . . . These officers were in plain clothes and they
introduced themselves to Mrs. Mark. Yes, they had a badge showing. Yes,
they had a gun showing. Well, you know, that‟s the way police are
everywhere. They don‟t do that to intimidate. They just do it because it‟s
part of their job. And particularly, people in Mrs. Mark‟s position, an
educated doctor, born in New York, has got to understand that . . . . So, I
think that works in the State‟s favor.
Any limitation, the next factor, any limitation on the movement or
other form of restraint imposed on a suspect during the interrogation. Well,
I think this goes back, Number 1, to the testimony of Detective Harris,
which was not controverted, when she did tell Mrs. Mark, no matter what
you say today, you‟re going home, and by God, at the end of the day she
went home. And, you know, there‟s been an issue raised, well, during the
break she remained in the room. The officers went out. The officers
escorted her down there to see her son (sic). True. I think the facts clearly
show that. But, again, Mrs. Mark, she‟s not – she‟s not in the police
station. She‟s in a hospital, in a hospital waiting room. There are doctors
going by all the time. In fact, you know, on the tape, I know at least on one
occasion, a doctor popped in to talk to her and her pastor popped in to talk
to her. The door was unlocked. Mrs. Mark testified she came in and out of
the hospital at will. Her testimony on the stand today is, well, I was scared.
I didn‟t feel like I could leave. I need the record to reflect, I just don‟t give
her testimony any credibility . . . . I am really bothered by the fact that, you
-17-
know, during this questioning, I do -- I do think the evidence shows clearly
that she never asked to go see her child. She asked about the condition.
She never asked to see her. I think it‟s also uncontroverted though that
during the break she was more concerned about her telephone and asked
about her telephone and not the child. I think that all goes to the credibility
at this point when she testifies today that the reason that she never walked
up and left was because she felt scared. Like I say, using my own common
sense and everyday experience in life, the Court doesn‟t buy that and that
works against the Defendant and in the favor of the State.
The next factor, any interactions between the officers and the
suspect, including the words spoken by the officer to the suspect, suspect‟s
verbal or nonverbal responses . . . . [T]he taped evidence speaks for itself. I
didn‟t see any interactions in that particular audio tape to where Special
Agent Harbaugh, for lack of a better term but, you know, at no point during
the interview did he browbeat the Defendant, or Mrs. Mark, or threaten her.
His questions were just low key and very direct. And at points during his
questioning, his voice might have been a different tone than other tones, but
it was at points where Mrs. Mark was evasive or unresponsive. But the
tone wasn‟t overly -- to a point to where I don‟t think any individual in
Mrs. Mark‟s position would feel like they couldn‟t at any moment just say,
look, I‟ve had it. I‟m tired. I want to see my child. I‟m done. Particularly
someone with her education and experience. I really believe from the
overall tone of this entire conversation, this recorded conversation that I
listened to for three and a half hours, Mrs. Mark really seemed like a
willing participant and sounded like someone that just wanted to try to
explain her side of the story and talk her way out of it. That‟s the
impression I got. I even made that particular note, that at no time was she
in any hurry to get up and leave, that she was more than willing to ask
questions and give answers which she felt were appropriate and she did that
by asking her own questions about, well, could the ice pack cause this,
could the fall on the mattress have caused this, could this have caused this.
So I don‟t feel like any of the interactions between the officer and the
suspect would violate the factors set forth in Anderson.
The next factor, the extent to which the suspect was confronted with
the law enforcement officers suspicions of guilt and evidence of guilt. They
clearly did that. You know, at several points during the interview, they
clearly told Mrs. Mark, look, we‟ve talked to the doctors, and your
explanation just doesn‟t fit what the doctors have told us, the extent of the
injuries. So there was no deception . . . . I think the officers did properly
tell Mrs. Mark their suspicions of guilt, what they felt the other evidence
-18-
would show, that they spoke to the doctors, and they wanted to give her an
opportunity to explain.
Finally we get to that extent to which the suspect is made aware that
he or she is free to refrain from answer[ing] questions or to end the
interview at will . . . . [T]he evidence is uncontroverted that Detective
Harris at the beginning of the interview did ask her, I‟d like to speak to you.
You are free to leave, and if you want to stop talking and get a lawyer and
questions will cease. And no matter what happens here today, you‟re going
home . . . . [T]hey do meet the requirements of that ninth factor that Mrs.
Mark was told that she was free to leave . . . . Mrs. Mark, like she did when
the officers went to the house, and she said, look, I‟m tired. I don‟t want to
talk to you anymore, and they broke it off. She could have just as easily
said that and knows she could have said during the interview. In fact, like I
say, when you listen to the interview itself, to the questions and her
responses, at that point her responses, even when she reflected on her
answers, they were clear, they were concise. There were no signs of stress
or duress. So, as far as a finding of custody, I find that Mrs. Mark was not
in custody during this particular interview, so therefore Miranda is not
required.
We next get to the voluntariness issue that even though she‟s not in
custody is it possible though, as stated in the motion, was there
psychological coercion because the fact that the interview lasted so long
and the fact that her daughter was in bad shape down at the end in the
hospital room.
Using the same set of rules and the same factors where I found that
she‟s not in custody, that same argument is that, no, there was no
involuntariness. In fact, like I say, from her -- many of her responses, Mrs.
Mark went far and beyond the question being asked and volunteered even
more information. And like I say, many parts of this audio tape it was more
of a dialogue in which Mrs. Mark actually did most of the discussion. So at
no point do I find during the interview or interrogation or questioning,
however you want to characterize it, it is what it is, but I don‟t feel like that
it was involuntary at any point that she was in there in that interview room.
So, motion to suppress the statement is respectfully overruled.
-19-
B. Facts from Trial4
Detective Bonnie Harris was the State‟s first witness. She stated that when she
and Detective Stolinsky were dispatched to Vanderbilt, she had received information
about “suspicious” marks on a little girl‟s body and “some admissions” made with regard
to the child‟s teeth having been knocked out. Upon arrival at the hospital, Detective
Harris spoke with social worker Alisa Lipton and emergency room doctor Mark
Meredith. She also visited the victim‟s room and observed that she had a black eye,
scarring on her nipples, and bruising on her inner thighs and back.
Detective Harris then described the facts surrounding her questioning of appellant,
and her testimony was consistent with that adduced at the hearing on the motion to
suppress. Appellant told her that she and her husband had adopted the victim from China
and had returned to the United States with her on April 9, 2010. Appellant was a
pediatrician with Cumberland Pediatrics in Lebanon, and Mr. Mark was a stay-at-home
parent and home-schooled the victim and their older daughter. Appellant told Detective
Harris that she found out that the victim “was not what they expected. She . . . was very
tiny for her age[,] and she was not potty trained . . . .” Because the victim did not speak
English, appellant was the only person who could communicate with her as they both
spoke Mandarin. Appellant found the victim‟s behavior “frustrating” because the victim
would not obey appellant but would, in appellant‟s opinion, use her “cuteness” to
manipulate Mr. Mark and avoid punishment.
Detective Harris recalled that appellant told her that the victim “changed” on
Father‟s Day, June 20, in part because her older daughter‟s birthday was June 19 and,
accordingly, received a great deal of attention that day. Detective Harris then detailed the
admissions appellant made with regard to her actions involving the victim‟s scarred
nipples, missing teeth, and bruising. Appellant described in detail the events surrounding
the victim‟s black eye. Detective Harris said:
She stated . . . it was on Father‟s Day that [the victim] was acting like she
couldn‟t walk and she fell and bumped her head, and she tried to place an
ice pack on [the victim‟s] head and [the victim] did not want it on her head,
so she . . . she held [the victim‟s] hands together with one hand and took the
ice pack in the other hand and slammed it in her face several times.
Appellant stated that the victim was screaming but not crying because “[the victim] never
cried.”
4
While the testimony adduced at trial encompasses other disciplinary tactics and behaviors
employed by appellant and Mr. Mark toward the victim, because sufficiency of the evidence is not at
issue, we will only highlight those portions of the testimony necessary to establish the elements of the
offenses.
-20-
Detective Harris explained that she called Detective Brian Harbaugh to assist with
the investigation. She said that the first segment of the interview was not recorded but
that Detective Harbaugh brought a recorder with him to memorialize the later segments.
During the second segment of the interview, in addition to “rehashing” the admissions
appellant had already made, she was asked about the bruising on the victim‟s back.
Appellant told them that it was “possible that it might have come from where her and her
husband would kick [the victim‟s] back to get her out of the breath holding spells.”
Appellant also described the sequence of events on the night preceding the victim‟s
hospitalization and death:
[We] [s]tarted talking about the night of the incident, which was June 30th,
that they did go to her daughter‟s karate class and they arrived back home
around 9:30, and [appellant] did go upstairs and wake up [the victim] to get
her to get something to eat because she hadn‟t eaten dinner, and when she
did she sat up and at that point she kind of bumped her head on the bed rail
of the bed. . . . [S]he was asked if there was any . . . reason that there [were]
any injuries or anything like that. She said, no, that she just got up and
walked out of the bedroom. They went to the stairs. They started walking
down the stairs. [The victim] tumbled down a couple of the stairs and
[appellant] said that she caught her and then she rolled -- not rolled, but
scooted down on her back a couple more steps. And at that time she looked
at her -- [the victim] looked at [appellant] and held her breath, and that
[appellant] picked her up and put her back in the bedroom.
When asked about whether appellant discussed interactions between herself and Mr.
Mark with regard to her treatment of the victim, Detective Harris testified, “[Appellant]
said that she knew what she was doing was wrong but she would lose control.”
In relation to the victim‟s head injury, “[appellant‟s] first explanation was that --
could it be the ice pack incident, and then on into the discussion, she mentioned the
bumping of her head on the bed rail, then she mentioned the bumping of her head on the
staircase where she tumbled down a couple of stairs.” Detective Harris testified that she
persisted in questioning appellant about the victim‟s head injury because she received
information from hospital staff and that she “believed that there was more to it.”
Appellant eventually offered that the victim‟s breath-holding spell on the stairs
“frustrated” her, so when the victim passed out, appellant picked her up “and walked her
up to the guest room and flung her in the bedroom onto the mattress. Before hitting the
mattress her head hit the wall.” Appellant said it was possible that the victim‟s head
struck the window sill before stating that her head had, indeed, hit the wall. Detective
Harris asked appellant what she did next:
-21-
She said that she walked over there and rolled her on her side so she
wouldn‟t vomit and swallow the vomit and choke. At that time, I asked her
was she making any noise, and she said, no. She said that she went
downstairs and watched a movie with her husband, came back a couple of
hours later, and checked on her. She was unresponsive.
She said that she rubbed on her chest to try to get her to wake up and
she was still unresponsive. She stated that there was some blood and saliva
coming out of her mouth so they cleaned it up with a shirt, and actually that
night they changed her, still unresponsive, into another shirt, and then they
went to bed.
....
She went -- the next morning she woke up. She took a shower. She
got her breakfast ready and then she went and checked on [the victim]. She
was still unresponsive and there was a little bit of blood and saliva mix
coming out of her mouth, so she wiped it again. She carried her
downstairs. That‟s when her husband, Steven, woke up, and she said that
she was still unresponsive, so she gave [the victim] to Steven and said, “I
have to go to work.” So she left him and went to work.
Detective Harris testified that when she left the hospital, a case worker from Child
Protective Services (“CPS”) was waiting to question appellant about her eight-year-old
daughter. Detective Harris then traveled to appellant‟s residence, where the crime scene
unit was collecting evidence. She described her conversation with appellant as she did
during the suppression hearing.
Detective Harris stated that evidence from appellant‟s home was seized and
forwarded to TBI for DNA analysis. She confirmed that appellant was not arrested until
several days later and that Mr. Mark, appellant‟s husband, was also charged with several
counts of aggravated child abuse.
Detective Harris emphasized that appellant chose in which chair she wanted to sit
during the interview and that the detectives did not direct her to a chair on the opposite
side of the table from the door.
The State called Detective Brian Harbaugh as its next witness. He stated that he
arrived at Vanderbilt Children‟s Hospital toward the end of his 8:00 a.m. to 4:00 p.m.
shift and estimated that it was around 5:00 p.m. He explained that he recorded the
interview with appellant without her knowledge because when one informs an individual
that they are being recorded, they become “apprehensive” about answering questions.
-22-
They “react differently,” become “short-worded,” and do not communicate well. The
recorded interview was then played for the jury. Detective Harbaugh confirmed that the
interview had lasted approximately two and a half hours when they took the first break.
Detective Harbaugh described for the jury appellant‟s demonstration of how she
“flung” the victim onto the bed. He said, “She raised both of her hands up here towards
her chest, and then we asked her just to go ahead and do exactly the same intensity and
force that she did, and she shoved her hands out like that.” The remainder of Detective
Harbaugh‟s testimony was consistent with that he gave at the hearing on the motion to
suppress.
On cross-examination, Detective Harbaugh acknowledged that appellant, in
describing the events of the night before the victim died, stated that as they were walking
down the stairs after karate, the victim struck her head when she was falling on the stairs.
He denied having spoken with a doctor prior to his interview with appellant but agreed
that he learned of the victim‟s condition from other detectives before beginning the
interview. He recalled that during the interview, appellant said that the victim was fine
and ate well at breakfast and lunch on June 30 but that she would not eat her dinner.
Appellant then told Detective Harbaugh that she then went to karate with her older
daughter and upon her return, the victim was in a different condition. Detective
Harbaugh stated that he was aware that appellant and/or Mr. Mark had placed a call to the
adoption agency and remarked that the victim was a “demon child” but did not recall that
it was placed the day before the victim died.
Detective Chris Melvin with the Lebanon Police Department was the State‟s next
witness. He testified that he was asked to assist the Mt. Juliet Police Department by
collecting and documenting evidence at appellant‟s home. Through him, crime scene
photographs and physical evidence, including a piece of drywall from appellant‟s guest
room, a crib mattress, and a shirt, were offered and admitted.
Special Agent Forensic Scientist Jennifer Shipman with the TBI crime laboratory
was accepted by the trial court as an expert in serology and DNA analysis. She examined
the piece of drywall, the crib mattress, and the shirt that Detective Melvin collected and
submitted to TBI and found blood and DNA on all three items that matched the victim‟s
DNA to the exclusion of the world‟s population. On cross-examination, Special Agent
Shipman acknowledged that her testing could not determine the date(s) on which the
blood stains were deposited on the items.
The State called Rebecca Allen as its next witness. Ms. Allen became acquainted
with appellant because both families had daughters the same age, and the daughters had
attended kindergarten and had been involved in other activities together. Ms. Allen had
adopted two children and shared with appellant some of the struggles they had with
-23-
adjusting. When appellant and her family returned from China, they attended a birthday
party for Ms. Allen‟s daughter the following day, April 9. Ms. Allen met the victim at
that time, whom she said was “smiling,” “very happy,” and interacting with the other
children to some degree.
Ms. Allen recalled that the next time she saw the victim was at a Girl Scout
meeting where Mr. Mark had taken the older daughter. Ms. Allen described the victim as
“very quiet” that day but remarked that the victim “hugged” Mr. Mark‟s legs and called
him “Papa,” so she thought that the victim was bonding and adjusting well. The next
time she saw the victim was at the karate studio. Ms. Allen noticed that she had several
bruises on her arm around her wrist and between her elbow and wrist, which she
described as “striped kind of bruises.”
Ms. Allen said that the next time she saw the victim was at the birthday party of
appellant‟s older daughter. Someone made the victim a plate of rice to eat. It was very
hot outside, so Ms. Allen fanned the victim while she ate. She noted that despite the heat,
the victim was dressed in long pants and a t-shirt. Ms. Allen opined that the victim took a
long time to eat and that “she seemed to chew on the same piece of food over and over
like she was having trouble swallowing.” Appellant was upset that the victim was taking
so long to eat “so she took the spoon and she started to feed her herself and [Ms. Allen]
noticed that [appellant] was pinching her wrist, squeezing her arm and telling her to
swallow, and [the victim] gagged a little bit but she managed to swallow the food.”
When appellant noticed that Ms. Allen was aware of her actions, she stopped pinching
the victim.
Ms. Allen testified that after seeing the victim at the karate studio, she was
concerned about the victim‟s welfare. Her concerns grew after the birthday party, and
she was worried that the family was not “transitioning well with the adoption process.”
She decided to schedule a play date on July 4 so she could talk with appellant and suggest
some resources that the Allen family had used. However, days before the play date, Ms.
Allen saw on the news that a child had been air-lifted to Vanderbilt Children‟s Hospital
from the Providence area, and although the child‟s name was not released, her “heart
sank” because she “just knew it was probably [the victim.]” She called Social Services
because she did not think it was safe for the victim to return home with appellant, but she
subsequently learned that the victim had died.
The State‟s next witness was Christine Kowal, who knew appellant from the
karate studio. She recalled that the first time she saw the victim was at the karate studio.
Ms. Kowal saw appellant and the victim, who were already seated, and she walked over
to say hello and congratulate appellant. She described, “[Appellant] raised her hand up to
me, and . . . in a little bit of a whisper voice she said, „[W]e‟re starting to find out that
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she has some manipulative behaviors so we want to try and control that, so . . . try not to
give any more attention to her.‟” Ms. Kowal assented and “ignored” the victim that day.
Ms. Kowal testified that at the first meeting, she did not know how old the victim
was but that she appeared “very tiny,” “shy,” and “very quiet.” She said that she initially
became concerned about the victim when she saw the victim and Mr. Mark at karate one
evening, and she “was taken back” by the bruise she saw on the victim‟s face. She asked
Mr. Mark what had happened to the victim. He explained,
[Appellant] was taking the girls and the dog out for a walk in the
neighborhood and [appellant] and the older daughter turned the corner and
[the victim] did not follow behind, she strayed away. And by the time
[appellant] realized that she was gone, [appellant] turned around, [the
victim] showed up and she was bruised.
Ms. Kowal said that “in [her] opinion, the bruises did not match a fall outside.” She
characterized them as “more extensive.” She recalled that the victim “had a huge bruise,
hematoma on her forehead. She had two huge bruises and some abrasions on both sides
of her cheeks, I do believe at the time. She had bruising on one side of her neck and she
also had some bruising on her forearm.” Upon arrival at her home, she discussed the
situation with her husband because she was concerned that the “story” Mr. Mark told her
“did not quite match up to what [she] could physically see on [the victim].”
Subsequently, when she saw the victim again, the victim “was bruised again and
[the bruises] were . . . more severe than the first time . . . . [T]he bruises were almost in
the exact same place from the first time except one abrasion was covered up with a
bandage.” Ms. Kowal stated that she saw appellant interact with the victim one time at
karate. Ms. Kowal was already seated, and she observed appellant walk in with the
victim, pick her up by her arms, “swing” her over the back of a chair, and “slam” her into
the seat. At the time, Ms. Kowal thought to herself that appellant had been a “bit rough”
with the victim.
The State called Dr. Alice Rothman, an assistant professor of general pediatrics, a
general pediatrician, and the medical director of the International Adoption Clinic, as its
next witness. Dr. Rothman was offered by the State and accepted by the trial court as an
expert in the field of pediatrics. Dr. Rothman examined the victim for a post-adoption
evaluation on April 12, 2010. She noted that the victim‟s height and weight placed her in
less than the third percentile of American children and that the victim suffered from
“failure to thrive.” As part of the evaluation, Dr. Rothman examined the victim‟s anal
area with respect to the surgery she had undergone to correct an imperforate anus.
Appellant reported that the victim was not toilet-trained, and Dr. Rothman believed that
she was wearing a diaper. Appellant also said that the victim did not seem to recognize
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when she needed to urinate or defecate and that the victim often complained of pain when
her “bottom area” was cleaned.
Dr. Rothman recalled that an echocardiogram of the victim‟s heart that was taken
in China showed a “buckled aortic arch.” She did not perceive such a condition when she
listened to the victim‟s heart, but she scheduled a referral for the victim to have an
additional echocardiogram performed. The cardiologist‟s report indicated that it was a
“borderline echocardiogram for age” but stated that it was not likely to be of clinical
significance. Further, Dr. Rothman noted a developmental delay related to the victim‟s
gait, which appeared to be unsteady. The records did not contain information with regard
to the age at which the victim began to walk.
Dr. Rothman testified that she reviewed medical records from China indicating
that the victim‟s IQ placed her in the range of mental retardation. Dr. Rothman noted in
her file that the victim appeared to be transitioning well and that she did not display any
unusual rocking or self-soothing behaviors.
Dr. Rothman stated that she performed a “regular” child‟s physical upon the
victim and that the victim had no bruising, scarring of the nipples, broken bones, or
missing teeth at the time. Other than during the examination of her anal area, the victim
did not appear uncomfortable. Dr. Rothman referred the victim to an occupational
therapist in the clinic, who assessed the victim‟s delays and determined that she was
within the normal range of delay of a child who had been in an orphanage.
The State called Tammy Bass, the director of the Nashville branch of Bethany
Christian Services, as its next witness. She testified that appellant and Mr. Mark
requested a special needs child and that the extent of the victim‟s special needs was
provided to them in their referral. Through Ms. Bass, the State introduced a videotape of
the victim that had been provided to appellant. Defense counsel objected to admission of
the videotape. Counsel asserted that it was made for the purpose of securing the victim‟s
adoption and that it was in a setting where the victim could be prompted and cued. The
trial court reviewed the tape in chambers and redacted certain portions that it deemed to
be cumulative. The remainder, however, was ruled to be relevant and probative.
Ms. Bass testified that China required post-placement adoptive visits at the six-
month and one year mark but that Bethany mandated a two-week visit. At the two-week
visit, appellant and Mr. Mark reported that the adjustment was going better than expected
and that the only concern they had was toilet-training. Ms. Bass noted that although the
first visit was two weeks after they returned from China, someone from Bethany is
always available twenty-four hours a day to respond to questions or concerns. When
someone voices a concern, Bethany immediately intervenes to provide support and
necessary services. She said that appellant and Mr. Mark were aware of their policy but
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that the first contact Bethany had from them indicating a problem was June 30 when Mr.
Mark called and said there was a problem. Ms. Bass encouraged Mr. Mark to contact
Bethany‟s post-adoption counselor, but he did not do so. Ms. Bass also spoke to the
counselor and suggested that he “reach out” to the Mark family.
On cross-examination, Ms. Bass denied that the video was produced for the
purpose of showing the “very best” of a child and encouraging families to adopt. Rather,
she explained that it was created “to show an accurate representation of the child because
nobody wants a family to get to China and say this isn‟t what we bargained for.” She
acknowledged that the victim‟s adoption file contained a notation that Mr. Mark had
contacted their case worker on June 30 and had referred to the victim as a “demon child.”
Mr. Mark had indicated that since Father‟s Day, the victim had been engaging in self-
destructive behavior such as head-banging, inducing vomiting, and holding her breath to
the point of unconsciousness.
Dr. David Lien, a board-certified emergency medicine physician at Summit
Medical Center, was offered by the State and accepted by the trial court as an expert in
his field. Dr. Lien was working on July 1, 2010, when the victim arrived at 9:44 a.m. The
hospital received a call from paramedics as they were en route with the victim advising
that they had a pediatric patient who was not breathing, was unresponsive, and did not
have a pulse. When the victim arrived, she was intubated, showed no signs of life, and
displayed bruises in various stages of healing. Dr. Lien administered epinephrine, which
restarted the victim‟s pulse. He continued resuscitative efforts and contacted life flight so
that the victim could be transported to Vanderbilt Children‟s Hospital by helicopter.
While they were waiting on the helicopter, Dr. Lien ordered blood work and other
diagnostic tests. Based upon the victim‟s body temperature of eighty-eight degrees, Dr.
Lien estimated that the victim had been without oxygen for approximately five to six
hours. The victim was also anemic, which could have been attributed to many different
factors, including blood loss. Dr. Lien stated that he and the staff developed suspicions
about the cause of the victim‟s injuries. He said, “[The victim] had multiple stages of
bruising in multiple places – one over the right eye, facial area, and some bruising on the
back, bruising on the upper extremity and more so on the lower extremities.” He noted
that “they appeared to be different phases of bruising and that suggests abuse.” He
concluded, “In my training, we‟re definitely told to look for stuff like that.” The victim
was transported from Summit at 10:25 a.m. on July 1.
On cross-examination, Dr. Lien acknowledged that the victim was underweight for
her age and that malnutrition could have contributed to her anemic condition.
The State‟s next witness was board-certified pediatric hospitalist Dr. Paul Hain
with Vanderbilt Children‟s Hospital, who was accepted by the trial court as an expert in
-27-
pediatric medicine. Dr. Hain was working when the victim arrived at Vanderbilt by
helicopter on July 1. He stated that upon arrival, the victim was in critical condition. The
intensive care doctor led the victim‟s care team, but Dr. Hain consulted to “help them
understand what [the] constellation of injuries meant and if they should be concerned that
they were a result of something nonaccidental.”
Dr. Hain testified that when he first saw the victim at 4:30 p.m. on July 1, she was
intubated, was being administered medication to keep her blood pressure elevated, and
was unresponsive. The victim also presented with “blown pupils,” which results when
one‟s brain swells from an injury, exerting pressure on the optic nerve and causing the
pupils to stop reacting. Dr. Hain reviewed all of the imaging studies that had been
conducted and noted multiple posterior and lateral rib fractures in various degrees of
healing. He noted that because the ribs are protected by muscles in the back or posterior
location, it is very difficult to “hit” a rib in the back and break it. He continued,
In fact, the only way we really know that you get these rib fractures in the
back [is] by squeezing them. So when you see posterior rib fractures in a
child, this is an extremely concerning event because what it means is that
someone with strength and coordination has placed their hands on this child
and squeezed so hard as to snap the ribs where they come around through
the back of the rib cage. And you can see these snapped ribs at the hands of
an adult in different stages of healing, which means this didn‟t happen
once, this happened on multiple occasions.
He said that the oldest fracture dated back approximately two months and that the newest
fracture was less than seven days old. He counted nine rib fractures in all.
Dr. Hain stated that the type of injuries the victim had “would obviously” cause
the intensive care staff to be “very suspicious that something had happened to this child
that was not accidental.” A skeletal survey, or an x-ray of every bone in the body, was
ordered to ascertain if there were any other fractures. The results indicated a widening in
the coronal sutures, the areas where the unfused bones of the skull were supposed to
meet, which indicated that the brain had swollen to such a degree that it was starting to
separate the bones of the skull. He noted a healing metacarpal, and the position of the
break indicated that the victim had her hand hit by something while it was “in an
outstretched position.” He characterized the break as “highly unusual.” Dr. Hain
described two healing fractures of the victim‟s left ulna, or forearm.
With regard to the victim‟s head injuries, Dr. Hain explained that the victim
suffered diffuse anoxic brain injury, which was an “all-over” injury involving lack of
oxygen. He said that one could not live longer than a day after suffering such an injury
but that life-sustaining functions could continue. However, soon after the injury
-28-
occurred, one would become “very obviously not functional.” The ICU doctor performed
a brain death examination on the victim that indicated no respiratory drive, no corneal
reflex, and no response to stimuli. The victim was essentially brain dead at that time.
Dr. Hain identified a photograph of the victim and noted her black eye, stating that
it was an unusual injury for a toddler to have sustained. When asked if a fall in which the
victim struck her head on a bedrail could have caused the brain injury, Dr. Hain answered
that it was enough to cause a bruise but that “we know . . . that children fall and they hit
their heads and they don‟t die of brain swelling with a traumatic head injury in an
intensive care unit . . . . Children just don‟t slip and bonk their head on something and
have their entire brain come apart and swell and die . . . .” He said that the sort of brain
injury the victim suffered required “more force than anyone would think,” such as a fall
from a second- or third-story window or involvement in a high-speed automobile
accident. When asked if throwing the victim into a wall could have caused the injury, Dr.
Hain stated, “So to be thrown into a wall, to have this cause your brain to swell up
catastrophically and for you to die, I mean, she was hurled into a wall if that was actually
the mechanism.”
Dr. Hain said that bruising on the victim was also noted. He clarified that one
might expect to see bruises on the forehead or forearm of a child but that bruising
between the shoulder blades, such as the victim had, could only be caused by “infliction”
of the bruises. He did not note any physical condition of the victim that would have
caused her to bruise easily. He opined that she did not suffer from brittle bone disease
and noted that her bones appeared to be normal when he viewed the films. Dr. Hain
explained that before a patient can be pronounced brain dead, there must be two separate
brain death exams, separated by time, performed by two different doctors. That was done
in the victim‟s case, and she was pronounced brain dead on July 2, 2010.
Dr. Hain testified that the victim died as a result of nonaccidental trauma. He
expounded,
This child was deliberately injured by someone with the strength and
coordination of an adult. And when you think about the number of
fractures, which is in the teens, and the bruising in places she shouldn‟t be
bruised, this child wasn‟t just abused once. This child was abused over the
course of time, multiple times, painful skin issue, painful broken bones,
never brought to medical attention. This child was tortured and then killed.
On cross-examination, Dr. Hain was asked if he thought the victim had been
malnourished. He opined that in malnourished children, the last body functions to be
preserved were bone growth and brain growth. That is, those are the last functions to be
affected by malnutrition. Based on the relative health of the victim‟s bones, he answered
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“actually pretty definitively” that even if the victim had been malnourished, that
condition did not affect her bones.
The State called Dr. Thomas Deering, a forensic pathologist, as its next witness.
He was tendered by the State and accepted by the trial court as an expert in his field. He
testified that the victim was pronounced dead on July 2, 2010, at 11:48 a.m. and that he
performed the autopsy on July 4 beginning at 10:00 a.m. The overall “heading” of his
autopsy report was that the victim suffered “multiple acute and chronic blunt trauma
injuries.” He further subdivided his report into several areas.
With regard to the victim‟s head, Dr. Deering noted a right periorbital
hemorrhage, or a black eye. He listed blunt trauma to the four lower incisors with a
“healing laceration of the gum line.” He described a subgaleal hemorrhage to the top of
the head, or a “scalp hemorrhage.” He also explained that there was a separation of the
sagittal and left coronal sutures of the skull. Those are places where multiple bones
would grow together and eventually seal, but the victim‟s brain expanded to such a
degree that it split the sutures, causing them to widen again. The victim had a large
subdural hemorrhage spanning both sides of the brain and along the spinal cord, which
Dr. Deering attributed to blunt force trauma. Dr. Deering found “extensive” brain edema,
or swelling. He opined that in this case, the blunt trauma not only damaged the dura, it
also damaged the victim‟s brain, causing it to swell. He noted bilateral optic nerve sheath
hemorrhages without retinal hemorrhages, which would rule out “shaken baby
syndrome” and would point toward an “impact” injury where either something struck the
victim‟s head or the victim‟s head struck an object.
Dr. Deering testified that the next category of injuries involved the victim‟s chest.
He noted several scars on the victim‟s chest, concentrated around her nipples. He
described multiple calloused rib fractures located in the victim‟s back and on both sides.
He stated,
It‟s very difficult to fracture a kid‟s ribs because they‟re just a lot more
flexible than an adult‟s are. In particular, when I see rib fractures that are
posteriorly located, that‟s very, very difficult to do from something
accidental. So I‟m concerned about these. The fact that there were
multiple rib fractures and that they were on both sides is concerning to me.
Further testing revealed that the some of the fractures were from different events ranging
from one week old to six weeks old and that some of the fractures were sustained at the
same time. He said that absent a “story” about an event such as a car wreck, he surmised
that the rib injuries could have been inflicted by an adult squeezing the victim with such
tremendous force as to fracture the ribs. Finally, he noted bruises on the right and left
side of the victim‟s middle back.
-30-
Dr. Deering described three linear healed round lesions on the back of the victim‟s
left thigh. He posited, “[They] may be healing abrasions or even healing burn marks.
And the reason I say that is because they‟re round . . . . I don‟t know what they were
originally. They‟re scars now and they‟re healed, and they‟re a little unexpected. I don‟t
know what they would be from.” Dr. Deering found bruising at the base of the victim‟s
right thumb and right third finger. Finally, he noted a healing fracture to the left ulna,
which he estimated to have occurred six to eight weeks earlier.
Dr. Deering opined that the cause of the victim‟s death was acute and chronic
blunt force trauma and that the manner of death was homicide. He added, “The pattern of
the chronic injuries with the now fatal acute injury to the brain suggests a pattern of
ongoing child abuse, battered child syndrome.” He stated that after examining the
victim‟s x-rays, he did not observe any disease such as brittle bone disease or vitamin
deficiency that could have accounted for the victim‟s broken bones. With regard to the
amount of force necessary to have inflicted the victim‟s fatal brain injury, Dr. Deering
testified:
In this particular case, to cause this amount of injury to a brain
requires a moderate amount . . . of force and probably a fairly severe
amount . . . . I think the impact site is over the back of the head. It may be
rather a broad impact site, and by broad, floor, wall, a seat . . . [N]ot an
object like a bat or a fist, but something where the striking force is spread
out over a broad area.
As this was experienced by the child, she would not be normal after
this. She would have some kind of neurologic defect. That doesn‟t mean
that she would be immediately unconscious. I can‟t predict that from the
injury, but she would not be normal anymore . . . .
[T]he measure of how severe this is, well, it killed her. I would
expect that this would progress rather rapidly and eventually she would
come to a point where she was no longer conscious. But that‟s not
necessarily immediately so, but she would not be normal at the point of
which this was inflicted.
On cross-examination, Dr. Deering confirmed that the victim‟s missing teeth had,
in fact, been “baby” teeth and that they had not been broken. He agreed with the
hypothetical in which the victim had been injured while appellant was at karate and
began to show neurological symptoms such as stumbling on the stairs when she returned.
On redirect examination, Dr. Deering agreed that with the severity of the victim‟s injury,
unconsciousness could have resulted immediately.
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Upon this evidence, the State rested its case-in-chief. The defense presented as its
first witness Dr. James Walker, a forensic neuropsychologist, who was accepted by the
trial court as an expert in neuropsychology. He testified with regard to “the
phenomenon” known as false confessions in which a person admits to a crime that they
did not actually commit. He stated that this was an area of “intense study and scrutiny”
for him. Relevant to false confessions is the personality trait of suggestibility, which can
be quantified using the Gudjonsson test. Dr. Walker testified that outside of one‟s
suggestibility, police tactics also precipitated false confessions. He said that police are
trained to elicit confessions by utilizing the following interrogation practices: isolating
the subject; keeping them in a room surrounded by symbols of authority such as badges
and guns; telling the subject that you know they are guilty and that this can all be over
when they finally admit their guilt; telling the subject that they are not a bad person and
that the officer understands they did not mean to do what they actually did; telling the
subject that if they will just confess to what they are accused of, then everything will go
much better for them. Dr. Walker said that some people falsely confess because of
deference to authority. Others confess falsely because of sleep deprivation, depression,
or anxiety. Still others do so to protect loved ones.
Dr. Walker recalled that when he met appellant, he found her to be “exceptionally
pleasant” and she seemed to be “a very kind, gentle person.” She was “incredibly
deferential” to Dr. Walker, was “alert, oriented,” “bright,” “articulate,” and “also very
eager to please.” He remarked that appellant was Asian-American and that an important
part of that culture was respect for elders and respect for those in positions of authority.
During his evaluation of appellant, Dr. Walker considered investigators‟ notes and
administered the Greens Word Memory Test. The Greens test assessed the individual‟s
truthfulness, and he said that appellant performed perfectly, indicating that she was trying
to do her best. He also administered a Mini Mental State Evaluation to determine
whether appellant‟s basic mental functions were intact. The test showed no mental
dysfunction. Appellant‟s scores on the Personality Assessment Inventory were mostly
within normal limits, but in some areas, her scores were elevated. On the Positive
Impression Management Scale section, she answered some items in a defensive way,
such as whether she would become angry when insulted or when someone forgot to
empty the trash. Dr. Walker said, “She tended to say that she didn‟t do things like that,
like a typical person would.” Appellant scored “low dominance” on the inventory, which
indicated that she was nonconfrontational, avoided conflicts, and felt she had lower self-
esteem than others. He opined that those characteristics would make a person more
likely to admit doing something she had not done. Dr. Walker administered an EQI to
obtain appellant‟s emotional rather than intelligence quotient. The results indicated that
appellant had low self-esteem, did not hold herself in high regard, and felt as though she
was never able to achieve as her family expected. He said appellant is empathetic,
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sympathetic, compassionate, deferential, and unlikely to assert herself. He described that
she had a great deal of social responsibility, was a rule-follower, and was not a good
problem solver. She does not think “well on her feet,” and it would take her longer and
require more effort for her to solve a challenge. Appellant described herself as “a rather
unhappy individual.”
Dr. Walker also utilized the Gudjonsson Compliance Scale and the Gudjonsson
Suggestibility Scale. The results of the compliance scale indicated that appellant
answered all twenty questions in the “compliant direction.” He said, “She described
herself as an extremely compliant individual, someone who never goes against
authority.” The suggestibility scale was “designed to get at the heart of this idea of
suggestibility. And it‟s done by directly measuring whether or not you can get the patient
to change their mind about something that they know is actually true.” When asked
leading questions about a passage that Dr. Walker read, appellant answered affirmatively
to those questions at a level that was “higher than average.” On the next part of the test
in which Dr. Walker challenged some of appellant‟s answers, she changed her answers
eight times, “which is a very high number.” He said,
She‟s a very suggestible person. She‟s very compliant. When I gave her
the false feedback that she had done very poorly on the test and we should
try to do better the next time, she appeared so crest fallen it was almost like
I had slapped her across the face. She was just so mortified that she had not
done a good job and she wanted to do better. I think that‟s why she
changed her answers on this test.
With regard to appellant‟s interrogation, Dr. Walker opined:
I think that her interrogation by the police was of course as it would be with
anybody, a very stressful time. But for [appellant] it was especially
stressful because she was confronted by people in authority who wanted her
to say things that she did not want to say, who wanted to get her to say that
she had done the things that she didn‟t want to say that she had done. This
was a tremendous dilemma for her.
He stated that based on Detective Harbaugh‟s interrogation techniques, the size of the
room, the number of people in the room, the lack of windows, and the location of the
exit, in conjunction with appellant‟s predispositions, she was “very susceptible” to
making a false confession on July 1, 2010.
On cross-examination, Dr. Walker stated that he interviewed and tested appellant
twelve days prior to the trial in this matter, and he confirmed that she had given a “very
damaging confession.” He admitted that he was unaware of the adoption paperwork
-33-
appellant and Mr. Mark had completed wherein they wrote that although they were
Chinese, they did not have a “strong grasp” of the Chinese culture. He acknowledged
that appellant had portrayed to him that she, in fact, had a strong tie with the Chinese
culture. Dr. Walker agreed that it was a fair assessment that appellant “thinks ahead”
when answering questions.
The State asked Dr. Walker whether he had an opinion about whether appellant‟s
statement to the police was true, to which he answered, “I do not.” He clarified, “Not
within a reasonable degree of scientific certainty.” He agreed that it was “very possible”
that she was telling the truth in her statement.
After the defense attempted to call Steven Mark, who exercised his Fifth
Amendment right to not testify, appellant called Detective Stolinsky as its next witness.
Detective Stolinsky testified with regard to his interview with Mr. Mark. He recalled that
at one point on July 1, they drove to the Mark residence, and Mr. Mark typed his own
statement for Detective Stolinsky. Mr. Mark wrote about an incident wherein he placed
the victim in a box in the garage as punishment and that he feared the victim might
suffocate. He would also place the victim in a dark closet as a form of punishment. He
recalled the victim‟s habit of holding her breath until she lost consciousness and said that
she would remain unconscious sometimes for one to two hours. During one of her
episodes, he attempted to pry her mouth open with a toothbrush, and in doing so, he
knocked out some of her baby teeth. Detective Stolinsky testified that Mr. Mark applied
heating pads to the victim‟s legs to assist with circulatory problems and that he burned
the victim‟s skin by doing so.
On cross-examination, the State elicited that none of the forms of punishment that
Mr. Mark mentioned involved bruising or broken bones.
Appellant also presented as character witnesses medical personnel with whom she
had worked, the parents of patients whom she had treated, and a fellow church member.
Upon this evidence, the jury deliberated and found appellant guilty of first degree
felony murder committed during the perpetration of aggravated child abuse, four counts
of aggravated child abuse, and four counts of child abuse. The trial court sentenced
appellant to life imprisonment for the felony murder conviction and conducted a
sentencing hearing on the remaining convictions.
C. Sentencing Hearing
At the sentencing hearing, the State called Cheryl Jackson with the Tennessee
Board of Probation and Parole as its first witness. Ms. Jackson prepared appellant‟s
presentence report. She noted that appellant had no criminal history.
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The trial court began its ruling by considering the mitigating factors advanced by
appellant, beginning with factor (7), that appellant was motivated by a desire to provide
necessities for her family or herself. Tenn. Code Ann. § 40-35-113(7). The trial court
concluded:
Under no set of circumstances can any person, particularly a parent,
repeatedly abuse a child, that abuse being to such an extent that after certain
repetitions it results in the child‟s death. That cannot ever be considered a
desire to provide a necessity for . . . for the Defendant‟s family or the
Defendant‟s self.
It‟s an absurdity to think that any person, particularly a parent, can
abuse a child, . . . to cause cracked ribs, serious bodily injuries which
ultimately resulted in the child‟s death, and these were intentional acts to
provide for the necessity of the family. So I specifically find that that
mitigating factor, Number 7, does not apply.
With regard to the mitigating factor that appellant assisted the authorities in
uncovering offenses committed by Mr. Mark or in detecting or apprehending other
persons that committed the offenses as contemplated by Tennessee Code Annotated
section 40-35-113(9), the trial court reasoned:
She was not interested at all in helping the State of Tennessee
uncover criminal activity. Her only desire, her only motivation in giving
these statements and doing any participation was to help herself. That‟s
very clear from the motions, from the testimony at the suppression hearing
and the testimony at trial.
So, the fact that the police officers were very adept and very trained
and very good at developing this information, she doesn‟t get credit for that
because that was never her motivation. That was never her intent. That
was never her desire. So, I do find that that particular mitigating factor,
which is a statutory factor, going back, Number 9, has absolutely no
application.
Appellant advanced factor (11) but modified it to simply read that she although
guilty of the crime was acting under such unusual circumstances that it is unlikely that a
sustained intent to violate the law motivated the criminal conduct. Id. § 40-35-113(11).
The trial court stated:
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I also find that that mitigating factor does not apply because in this
particular case the proof is clear, we had a sustained intent. We had, as I
recall from the proof, eighty three plus or minus days of continual constant
abuse, and they were intentional acts. I remember the proof. I made notes
of the proof, the twisting of the nipples, the slapping of the hands, the
throwing of the child against the wall.
The proof is there was sustained intent to abuse this child until what
happened ultimately happened, the death of a child. I mean, there was no
other end coming. It was the only logical resolution of what was going on
in that household. So, I do find that that mitigating factor does not apply.
Under the “catch-all” provision, see Tenn. Code. Ann. § 40-35-113(13), appellant
advanced that her social and ethnic background greatly contributed to her actions. The
trial court declined to apply this factor, concluding that “there was absolutely no proof
that her social and ethnic background contributed to her actions because there was
absolutely no proof that people of her culture and background abuse children until they
die.”
The State relied upon Tennessee Code Annotated section 40-35-114(5), that
appellant treated, or allowed the victim to be treated, with exceptional cruelty during the
commission of the offense. Finding this enhancing factor applicable, the trial court
surmised:
So how do you define exceptional cruelty. Well, the only thing I‟ve got left
is to look back at the proof at trial. As Mr. Lowery correctly stated, I
cannot use the event itself to establish exceptional cruelty. I must go
beyond that.
There‟s proof in this case that goes beyond that. See, this child
suffered not only at the time the injury was committed but she suffered
twenty[-]four hours a day, seven days a week. Mr. Lowery did bring up the
emotional cruelty part, that I can take a further step. I can find this if I look
at emotional cruelty.
Like I said, the only person that can testify to that, she‟s not with us
anymore. But, given the facts of this case, the nature of the injuries, the
scarring, the bones that were trying to heal, what‟s going through that little
girl‟s mind everyday, that her own adoptive mother has broken her bones,
crushed her body.
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Do we not know as being parents, all of us in this room, knowing the
human body, that there is a large degree of emotional pain that goes along
with that, with that constant pain. I think we can. I think certainly we must
do that. So I do find that enhancement factor Number 5 applies.
The State asserted that factor (6), that the personal injuries inflicted upon the
victim were particularly great, applied to the case. Id. § 40-35-114(6). The trial court
considered this factor and in concluding that it applied, stated, “I cannot use the injury
itself . . . to enhance within the range. But it does use the term, particularly great, and in
this case it goes beyond particularly great. In this case it ends in death. . . . There is no
greater injury.”
The trial court also found that appellant abused a position of private trust in
committing the offenses. Id. § 40-35-114(14). The court determined that appellant
should be sentenced to the middle of the applicable range for all of her convictions and
imposed sentences of twenty years each as a Range I, standard offender at one hundred
percent release eligibility for the four convictions for aggravated child abuse and three
years each as a Range I, standard offender for the four convictions for child abuse.
In considering appellant‟s sentence alignment, the trial court stated:
Using that application that consecutive sentencing would be proper,
of course, that statute specifically says, the Defendant is a dangerous
offender whose behavior indicates little or no regard for human life and no
hesitation about committing a crime when the risk to human life is high.
Of course, I have looked at the standard and I think the defense did
an excellent brief on this point because, you know, it is always a good
reminder to the Court as to how that standard is to be applied, and it tells
this Court what is necessary above and beyond the particular events which
will require consecutive sentencing.
I think I was sort of looking at the last term we had, exceptional
cruelty. You know, dangerous offender, is also I think a term of art. You
know, it‟s always constant to interpretation, definition as the circumstances
change. And so we ask ourself, what is a dangerous offender. And I think
I stated earlier, you know, what can be more dangerous to society, what can
be more dangerous to civilization than a failure to protect those that we‟re
given a duty to protect, particularly our children.
A parent who would kill their child is the poster child for a
dangerous offender. Their picture should be in Webster‟s Dictionary
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beside the words, dangerous offender. So there‟s no question in this
Court‟s mind that Mrs. Mark does meet the definition of a dangerous
offender.
The second part of that test though is, is even though she‟s found to
be a dangerous offender, does consecutive sentencing serve any valid state
purpose, particularly in this particular case for which she‟s serving a life
sentence. I think certainly it does because, you see, children are part of the
state and children need to know, as well as their parents and everyone else,
that they will be protected, and that crimes against our children are the most
serious of all crimes.
In fact, there‟s a statute we have on aggravated child sexual abuse
which specifically calls for consecutive sentencing in those appropriate
situations. Our legislature in making a notation that this is a one hundred
percent offender has made a determination that this is one of the most
serious, if not the most serious, of all offenses. The legislature has decided
that.
So I think that consecutive sentencing in this particular instance does
serve a valid state purpose and does meet the requirements of the statute.
Accordingly, the trial court aligned each of appellant‟s twenty-year sentences
consecutively to each other (Counts II, III, IV, and V) and consecutively to her life
sentence (Count I). It aligned her three-year sentences (Counts VI, VII, VIII, and IX)
concurrently with each other and concurrently with Count II but consecutively to Count I,
for an effective sentence of life plus eighty years.
It is from these judgments that appellant now appeals.
II. Analysis
Appellant raises five issues for our review: (1) whether she was in custody when
she was questioned by law enforcement officers, thereby necessitating an advice of rights
pursuant to Miranda v. Arizona; (2) whether her statement was coerced and involuntary;
(3) whether the trial court erred in admitting into evidence a videotape of the victim that
was prepared by the victim‟s adoption agency to show to prospective adoptive families;
(4) whether the evidence was sufficient to sustain appellant‟s conviction for Count III of
the indictment, aggravated child abuse, based on appellant‟s knocking out four of the
victim‟s primary teeth; and (5) whether the trial court erred in imposing partial
consecutive sentences.
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A. Custodial Interrogation
Appellant challenges the admission of an audio-recorded interview obtained by
Detective Harbaugh. As an initial matter, we must determine the appropriate standard of
appellate review. Relying on State v. Dailey, 273 S.W.3d 94, 100 (Tenn. 2009), appellant
urges this court to conduct a de novo review of the trial court‟s findings of fact with no
presumption of correctness attending the court‟s legal conclusions.
When reviewing a trial court‟s ruling on a motion to suppress, we will uphold the
trial court‟s findings of fact unless the evidence preponderates to the contrary. State v.
Hanning, 296 S.W.3d 44, 48 (Tenn. 2009). “Questions of credibility of the witnesses, the
weight and value of the evidence, and resolution of conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). “But when a court‟s findings of fact at a suppression hearing are based solely on
evidence that does not involve issues of credibility, such as . . . videotape evidence . . . ,
the rationale underlying a more deferential standard of review is not implicated.” State v.
Binette, 33 S.W.3d 215, 217 (Tenn. 2000). When a trial court bases its findings of fact
solely on evidence that does not involve issues of credibility, appellate courts are equally
as capable to review the evidence and draw its own conclusions. Id. In such a case, the
appellate court must conduct a de novo review and attach no presumption of correctness
to the trial court‟s findings of fact. Id.
As appellant points out, this court was provided the audio-recorded statement as
an exhibit in the appellate record, and we are equally as capable as the trial court of
forming our own conclusions. However, appellant overlooks the fact that Detective
Harris testified that she advised appellant, both before the initial unrecorded interview
and before the recorded interview, that her participation was “completely voluntary[]
[and] that she was free to leave at any time.” Detective Harris said, “I pointed to the
door. I said, „[T]here‟s the door.‟ I told her that the only reason why the door was shut
was because of privacy issues because it was a hallway. The waiting room was right off
the hallway and there was a lot of foot traffic.” She further informed appellant that she
was free to leave; that she was free to cease answering questions; that she was free to
request an attorney, at which time they would stop the interview; and that regardless of
what appellant told her in the interview, “she would be going home that night.” These
statements by Detective Harris were not recorded by Detective Harbaugh‟s tape;
however, they were relevant to the trial court‟s determination of whether Miranda
warnings were required. Because the trial court relied on Detective Harris‟s testimony
and credited it, we must apply the more deferential standard of review to this case. We
also note that the party who prevails at the suppression hearing is entitled to the strongest
legitimate view of the evidence as well as all reasonable and legitimate inferences that
may be drawn from that evidence. State v. Bishop, 431 S.W.3d 22, 35 (Tenn. 2014).
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For the merits of this claim, relying on State v. Anderson, 937 S.W.2d 851, 855
(Tenn. 1996), appellant argues that she was in custody when the officers extracted the
statement from her because “under the totality of the circumstances, a reasonable person
in [her] position would consider himself or herself deprived of freedom of movement to a
degree associated with a formal arrest.” The State asserts that the trial court‟s ruling on
appellant‟s motion to suppress was correct.
The United States and Tennessee Constitutions protect a suspect from “being
compelled to give evidence against himself [or herself].” State v. Berry, 141 S.W.3d 549,
576 (Tenn. 2004) (citing U.S. Const. amend. V; Tenn. Const. art. I, § 9). If a suspect is in
custody, that is, he has been taken into police custody “or otherwise [has been] deprived
of his freedom of action in any significant way,” the police must first inform him of his
Fifth Amendment rights for any subsequent confession to be admissible as substantive
evidence against him in the trial of the matter. See Miranda v. Arizona, 384 U.S. 436,
444 (1966). The United States Supreme Court made clear: “Prior to any questioning, the
person must be warned that he has a right to remain silent, that any statement he does
make may be used as evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed.” Id. A suspect may affect a voluntary, knowing,
and intelligent waiver of his or her rights. Id.
The requirements of Miranda “must be strictly enforced, but only in those
situations in which the concerns that motivated the decision are implicated.” State v.
Goss, 995 S.W.2d 617, 629 (Tenn. Crim. App. 1998) (citing Illinois v. Perkins, 496 U.S.
292, 296 (1990)). However, Miranda warnings are not required in every situation in
which police-citizen contact occurs. State v. Walton, 41 S.W.3d 75, 83 (Tenn. 2001).
Rather, because the purpose of Miranda is to “„dissipate the compulsion inherent in
custodial interrogations, to prevent coerced self-incrimination, and to prevent relevant
defendant ignorance,‟” see State v. Callahan, 979 S.W.2d 577, 582 (Tenn. 1998),
Miranda warnings are only required when a suspect is in custody and is subjected to
questioning or its functional equivalent, see Rhode Island v. Innis, 446 U.S. 291 (1980).
Walton, 41 S.W.3d at 83. “Absent either one of these prerequisites, the requirements of
Miranda are not implicated.” Id.
While the inquiry of whether one is in police custody is somewhat objective, the
question of whether one has been “deprived of his freedom of action in any significant
way” is rather amorphous. As such, our supreme court has emphasized that the proper
test is “whether, under the totality of the circumstances, a reasonable person in the
suspect‟s position would consider himself or herself deprived of freedom of movement to
a degree associated with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn.
1996). The Anderson court listed the following non-exhaustive objective factors to be
considered assessing the totality of the circumstances:
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 the time and location of the interrogation;
 the duration and character of the questioning;
 the officer‟s tone of voice and general demeanor;
 the suspect‟s method of transportation to the place of questioning;
 the number of police officers present;
 any limitation on movement or other form of restraint imposed on
the suspect during the interrogation;
 any interactions between the officer and the suspect, including the
words spoken by the officer to the suspect, and the suspect‟s verbal
or nonverbal responses;
 the extent to which the suspect is confronted with the law
enforcement officer‟s suspicions of guilt or evidence of guilt;
 and finally, the extent to which the suspect is made aware that he or
she is free to refrain from answering questions or to end the
interview at will.
Id. The court reaffirmed the discretion given to the trial courts in ruling on this issue,
noting that the trial courts are “especially suited” to applying the appropriate factors to
the facts of a particular case. Id. Moreover, “[t]he test is objective from the viewpoint of
the suspect, and the unarticulated, subjective view of law enforcement officials that the
individual being questioned is or is not a suspect does not bear upon the question.” Id.
We will address each Anderson factor in turn.
Time and Location of Interrogation
Appellant‟s interview took place in the afternoon hours in a hospital waiting room.
As a physician, the hospital was certainly a familiar place to her. In fact, when she
discovered that her cellular telephone was missing, she easily described her assigned
parking place to Detective Harbaugh. The trial court found that “common sense and
everyday experience tells me that a doctor in a hospital” would be comfortable, even
under such circumstances, and that it would be a hospitable and familiar place. The
evidence does not preponderate against these findings. This factor enures to the State‟s
benefit.
Notably, all of the cases upon which appellant relies found a custodial
interrogation when the questioning took place at a police station or detective‟s office. See
Anderson, 937 S.W.2d at 852; Dailey, 273 S.W.3d at 97; State v. Chadwick, No. M2009-
01205-CCA-R3-CD, 2010 WL 933640, at *1 (Tenn. Crim. App. Mar. 16, 2010). She
cites no authority in which this court or our supreme court has found deprivation of
freedom associated with a formal arrest in a location other than a police department.
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Duration and Character of the Questioning
To fully comprehend the nature and duration of appellant‟s interview, a timeline
of the events of July 1, 2010, is helpful:
1:00 p.m.(approximately): Appellant‟s first (unrecorded) interview begins
(Detective Stolinsky‟s testimony at suppression hearing)
2:00: Appellant makes first admission/Detective Stolinsky leaves
the interview room
(Detective Harris‟s testimony at suppression hearing)
2:15: Detective Stolinsky returns, requests a break
(Detective Harris‟s testimony at suppression hearing)
Detective Stolinsky asks appellant to visit the victim with him
(Detective Stolinsky‟s testimony at suppression hearing)
3:00 (approximately): Detective Harbaugh arrives5
Interview resumes
3:12: (twelve minutes into the interview) appellant asks about the
victim‟s condition
3:16: (sixteen minutes into the interview) Detective Harbaugh
leaves the room to obtain information about the victim‟s
condition
5:33: (two hours, thirty-three minutes into the interview) Detective
Harbaugh suggests a break, offers appellant water, a cup and
ice for her soda, a sandwich; says he will try to find a doctor
to speak with her
5:36: (two hours, thirty-six minutes into the interview) appellant
asks if someone could look for her cellular telephone in the
parking garage
6:01: questioning resumes
5
Detective Harbaugh testified at the suppression hearing that he arrived at the hospital between
3:00 and 4:00 p.m. Considering his estimation in conjunction with the approximations provided by other
detectives, it is more likely that he arrived earlier rather than later.
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6:15: appellant asks if she can have people in the room to offer her
support, and Detective Harbaugh says that she can
6:19: Dr. Hain enters the room and reports that the victim was
nonresponsive to the first brain death test
6:20: Detective Harbaugh offers to summon appellant‟s pastor from
the waiting room
6:26: Detective Harbaugh leaves, brings CPS worker in to speak
with appellant
The trial court concluded that the duration of appellant‟s interview was four hours
and fifty-six minutes, including breaks, based on a statement by Detective Harris that the
first segment of the interview lasted around one hour, fifteen minutes to an hour and a
half. The second interview was clearly three hours and twenty-six minutes, including
breaks. Considering the break between the first interview and the second interview, we
conclude that the evidence does not preponderate against this finding of fact. Any error
in the estimated arrival time of the officers or the beginning of interview times is
immaterial; the trial court credited Detective Harris‟s testimony regarding the length of
the initial interview, and the recorded interview is uncontroverted. However, we note
that in reviewing the timeline, it is clear that at least an hour represents breaks in
questioning, reducing the time of active involvement with law enforcement officers to
approximately four hours. Appellant herself agrees that what she characterizes as a
“leading „manual‟ on police interrogation techniques” would find that “[a] properly
conducted interrogation that lasts 3 or 4 hours, for the ordinary suspect, is certainly not so
long as to cause the levels of emotional or physical distress that constitute duress.” The
record belies appellant‟s contention that she had been interviewed for four hours prior to
Detective Harbaugh‟s recorded interview. Indeed, appellant‟s own testimony at the
hearing on the motion to suppress contradicts this interpretation; when asked at the
hearing if she knew how long she was in the interview room that day, counsel prompted,
“If I told you it was close to five hours would that sound somewhere about right?” to
which she responded, “I believe so, yes. I believe so, sir.” That is consistent with the trial
court‟s finding that the entire interview was four hours and fifty-six minutes, from
Detective Harris‟s first question until the culmination of the last interview, and is far
afield from appellant‟s contention in her brief that she was interviewed for over four
hours before Detective Harbaugh began his interview.
As to the character of the questioning, this court has listened to the recording and
agrees that the tone was not accusatory at all. During the interview, Detective Harbaugh
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stated that some of appellant‟s actions toward the victim were clearly wrong and
suggested that she receive counseling or anger management, but he never accused her of
child abuse or intentionally injuring the victim. It should also be recognized, as the trial
court did, that the first hour of Detective Harris‟s interview with appellant focused on
obtaining background information; appellant was not even a suspect at that time.
Appellant did not make the first admission to Detective Harris until the first hour had
elapsed. It was at this time that Detective Stolinsky left to call Detective Harbaugh for
assistance. The interview did not turn “interrogative” until after that point. This factor
favors the State.
Appellant makes much of the fact that the officers were armed, asserting that it
was an “entirely avoidable show of force.” However, our supreme court, in simply
noting that an officer was armed during an interview, stated that it was to be expected,
“of course,” that on-duty officers would be armed. Dailey, 273 S.W.3d at 103. We
would add that the officers traveled from their home duty stations to downtown
Nashville. Without question, they should be armed as they traverse from one place to the
next, and to leave their weapons in a vehicle would not have been advisable as a practical
matter.
Officer’s Tone of Voice and General Demeanor
The officers all described the tone of the interview as pleasant and
“conversational.” The trial court agreed, as does this court after having reviewed the
recording. This factor weighs in favor of the State.
Appellant’s Method of Transportation
Appellant was already at the hospital when questioned by law enforcement
officers, and despite officers‟ offer to drive her home, she either drove herself home or
was driven by someone else. This works to the State‟s benefit.
Number of Officers Present
Although two officers were present in the room, Detective Harbaugh was the
primary examiner; Detective Harris questioned appellant during a short time when
Detective Harbaugh left the room, and she occasionally asked follow-up questions. This
was not a situation where officers “tag-teamed” appellant.
The officers‟ questioning of appellant in this case is in stark contrast of the
interrogation that transpired in Dailey, wherein officers took turns peppering the
defendant with questions until he ultimately relented and confessed. Such was not the
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tone in appellant‟s interview. Dailey, 273 S.W.3d at 98-99. This factor does not benefit
appellant.
Limitation on Movement or Restraint Imposed on Appellant
A diagram of the waiting room where appellant was questioned was entered into
evidence at trial. Detective Harbaugh sat at a table with his back to the door, Detective
Harris sat at the end of the table, and appellant sat on the far side of the table facing the
door. Although counsel made much of the fact that appellant would have to pass by both
detectives to exit the room, it was established that she chose the seat herself; she was not
directed to a particular chair in the room. Moreover, she was told by Detective Harris
prior to both interviews that she was free to leave any time.
Appellant stresses that the interview room was small and windowless and that the
door was closed and that the room was “dominated” by police presence the entire time.
Detective Harris very clearly explained to appellant that the reason they closed the door
was for privacy; the area outside housed the nurses‟ station and encountered a great deal
of foot traffic. Because of the noise, they closed the door to be able to speak privately.
This factor does not adversely affect the State.
Interactions between Officers and Appellant
The content of the interviews is fairly straightforward. However, appellant seeks
to argue the negative implication that if Detective Harris twice informed appellant that
she was free to leave and free to cease answering questions but that Detective Harbaugh
did not give such admonitions, then the natural and probable conclusion was that she was
no longer free to leave.
We decline to adopt this position. Detective Harris testified that she again
informed appellant of her right to stop the interview prior to the second segment‟s
beginning. The second segment began immediately thereafter. Hence, there was no
lapse in time during which appellant could have formed this “negative implication.”
Despite appellant‟s argument, this factor weighs in favor of the State.
Extent to Which Appellant Was Confronted with Evidence of Guilt
The trial court found that at several points during the interview, officers “clearly”
informed appellant that they had spoken with the treating physicians and that appellant‟s
explanations for the victim‟s injuries “didn‟t fit” the extent of the injuries. The court
concluded that there was no deception on the part of the officers and that they properly
conveyed their suspicions of guilt and the information that they had received from the
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doctors. Officers also gave her an opportunity to explain the victim‟s injuries. The
evidence does not preponderate against these findings.
Extent to Which Appellant Was Informed that She was Free to
Refrain from Answering Questions or to End the Interview
The trial court credited Detective Harris‟s testimony at the hearing on the motion
to suppress and found that appellant was advised that she was free to leave, that she could
stop talking, and that if she wanted to consult with an attorney, then questioning would
cease. It further credited Detective Harris‟s testimony that she advised appellant that “no
matter what happens here today, you‟re going home . . . .” Accordingly, the trial court
found that the ninth Anderson factor had been met, and we conclude that the evidence
does not preponderate against this finding. This factor weighs in favor of the State.
Based on our consideration of all of the above factors, we conclude that Miranda
warnings were not required because appellant was neither in custody nor would a
reasonable person in her position have considered herself deprived of freedom of
movement to a degree associated with a formal arrest. Appellant is not entitled to relief
under this theory.
B. Voluntariness of Statement
However, our inquiry does not end there. Appellant also contends that her will
was overborne by Detective Harbaugh‟s questioning of her, rendering her statement
involuntary. We note that while Miranda questions whether an in-custody suspect
received the requisite warnings and knowingly and voluntarily waived certain
constitutional rights, the voluntariness test remains distinct from Miranda. State v.
Climer, 400 S.W.3d 537, 568 (Tenn. 2013) (citing Dickerson v. United States, 530 U.S.
428, 434-35 (2000); Mincey v. Arizona, 437 U.S. 385, 397-98 (1978)).
The voluntariness of a confession is a question of fact. State v. Sanders, 452
S.W.3d 300, 306 (Tenn. 2014) (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
State v. Morris, 24 S.W.3d 788, 805 (Tenn. 2000); State v. Smith, 933 S.W.2d 450, 455
(Tenn. 1996); Self v. State, 65 Tenn. (6 Baxt.) 244, 253 (1873)). The State has the burden
of proving the voluntariness of a confession by a preponderance of the evidence. Id.
(citing State v. Stamper, 863 S.W.2d 404, 405 (Tenn. 1993)). The party who prevails at
the suppression hearing is entitled to the strongest legitimate view of the evidence as well
as all reasonable and legitimate inferences that may be drawn from that evidence. State
v. Bishop, 431 S.W.3d 22, 35 (Tenn. 2014).
In evaluating whether a statement was given voluntarily, “the essential inquiry . . .
is whether a suspect‟s will was overborne so as to render the confession a product of
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coercion.” Climer, 400 S.W.3d at 568 (citing Dickerson, 530 U.S. 428 at 433-35; State v.
Smith, 933 S.W.2d 450, 455 (Tenn. 1996)). The test for voluntariness of a statement is
grounded in both the Fifth Amendment and the Due Process Clause of the Fourteenth
Amendment and recognizes that coerced confessions are “inherently unreliable.” Id. at
567-68 (citations omitted). Prior to Miranda, courts relied solely upon the voluntariness
test to determine the admissibility of statements. Id. at 567 (citations omitted).
A suspect‟s subjective perception alone is insufficient to support a conclusion of
involuntariness of a confession. State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (citing
State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)). “Rather, „coercive police activity is
a necessary predicate to finding that a confession is not voluntary . . . .‟” Id. (quoting
Brimmer, id.); State v. Branam, 855 S.W.2d 563, 568 (Tenn. 1993).
In determining the voluntariness of a statement, courts must examine the totality
of the circumstances surrounding the confession, including “„both the characteristics of
the accused and the details of the interrogation.‟” Climer, 400 S.W.3d at 568 (quoting
Dickerson, 530 U.S. at 434). Relevant circumstances include:
 [T]he age of the accused;
 his lack of education or his intelligence level;
 the extent of his previous experience with the police;
 the repeated and prolonged nature of the questioning;
 the length of the detention of the accused before he gave the
statement in question;
 the lack of any advice to the accused of his constitutional rights;
 whether there was an unnecessary delay in bringing him before a
magistrate before he gave the confession;
 whether the accused was injured[,] intoxicated[,] or drugged, or in ill
health when he gave the statement;
 whether the accused was deprived of food, sleep[,] or medical
attention;
 whether the accused was physically abused;
 and whether the suspect was threatened with abuse.
Id. (quoting State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (alteration in
original) (emphasis omitted).
Appellant contends that her will was overborne because: (1) she had been
questioned for four hours before Detective Harbaugh began the recorded segment of the
interview; (2) Detective Stolinksy took her to see the victim and spoke to her about the
“injustice” of the injuries immediately before Detective Harbaugh‟s interview; (3)
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appellant had already made admissions to Detective Harris; (4) she inferred that she was
no longer free to leave; (5) officers did the majority of the talking; and (6) her personal
characteristics rendered her vulnerable to police questioning. We will apply each of
appellant‟s contentions in the context of the relevant circumstances set forth in
Dickerson.
Repeated and Prolonged Nature of Questioning
We refer to the timeline established supra in the context of the Miranda issue.
Again, we note that using the longest possible estimates, the entirety of appellant‟s
involvement with law enforcement officials was four hours and fifty-six minutes.
Officers did not question her for four hours prior to Detective Harbaugh‟s interview with
her. Eliminating the one-hour period during which Detective Harris was obtaining
background information and another approximate hour that accounted for breaks, the
actual “interrogation” of appellant lasted around three hours. By appellant‟s own
concession, set forth fully above, an interview of three to four hours is not, by its very
nature, coercive.
We ascertain that appellant‟s contention that officers did most of the talking is
another implication of the repeated and prolonged nature of questioning. We have
listened to the recording in question and do not conclude the conversation to be onerous
or one-sided. Rather, as the trial court found, we note that appellant often provided more
information than called for by the question, she posited questions of her own, and she
engaged in a conversation with officers. The evidence does not preponderate against the
trial court‟s findings in this regard.
Detective Stolinsky’s Taking Appellant to See the Victim
Detective Stolinsky testified that during the first break, he asked appellant if she
wanted to see the victim, and he accompanied her to the victim‟s room. Prior to this,
appellant had not expressed a desire to see the victim. They stood on opposite sides of
the bed, and medical personnel “were in and out constantly.” He advised her that the
detectives were “just trying to find out what happened” to the victim. Appellant did not
make any statements during the approximately fifteen-minute-long stay in the victim‟s
room. Detective Stolinsky never touched appellant or made any threats toward her.
At the hearing on the motion to suppress, both the State and trial counsel
questioned Detective Stolinsky with regard to his actions in escorting appellant to the
victim‟s room. Appellant had been in the interview room for over an hour without seeing
the victim. Appellant infers nefarious intent on the detective‟s behalf, implying that he
was utilizing a coercive tactic in taking her to see the victim in her ICU room. However,
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no such testimony was elicited, and we will not make such a determination. This factor
does not work against the State.
Appellant’s Previous Admissions to Detective Harris
Appellant cites State v. Miller for the proposition that “after an accused has once
let the cat out of the bag by confessing, no matter what the inducement, he is never
thereafter free of the psychological and practical disadvantages of having confessed. He
can never get the cat back in the bag. The secret is out for good.” 674 S.W.2d 279, 289
(Tenn. 1984) (Fones, J., dissenting). First, this factor does not fall within the list of
circumstances to be considered under a Dickerson voluntariness analysis. Second, the
Miller case deals with admissibility of subsequent confessions to law enforcement
officers following a confession that has been held inadmissible. This factor does not
buttress appellant‟s position.
Inference that Appellant Was No Longer Free to Leave
Appellant again seeks to rely upon the negative implication that if Detective Harris
twice informed appellant that she was free to leave and free to cease answering questions
but that Detective Harbaugh did not give such admonitions, then the natural and probable
conclusion was that she was no longer free to leave. We again decline to adopt this
position for the reasons stated herein, supra.
Appellant’s Personal Characteristics
Finally, appellant argues that her personal characteristics rendered her vulnerable
to police questioning. She argues that her intelligence actually worked to her
disadvantage because it made the situation even more alien to her.
The trial court concluded, based on appellant‟s testimony at the hearing on the
motion to suppress and the recorded statement, that appellant was a willing participant
and that there was no indication of involuntariness. In doing so, the trial court made
findings with regard to the credibility of the witnesses, weighing the evidence, and
resolving conflicts in the evidence, which we will not second-guess. State v. Echols, 382
S.W.3d 266, 277 (Tenn. 2012). However, we are mindful that when reviewing a trial
court‟s ruling on a motion to suppress, we are to consider the entire record, including the
evidence adduced at trial. Sanders, 452 S.W.3d at 306.
Dr. Walker testified at trial that appellant was Asian-American and that an
important part of that culture was respect for elders and respect for those in positions of
authority. However, he admitted that he was unaware of the adoption paperwork
appellant and Mr. Mark had completed wherein they wrote that although they were
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Chinese, they did not have a “strong grasp” with the Chinese culture. He acknowledged
that appellant had portrayed to him that she, in fact, had a strong tie with the Chinese
culture. Dr. Walker agreed that it was a fair assessment that appellant “thinks ahead”
when answering questions.
Dr. Walker‟s assessment was that appellant was nonconfrontational, avoided
conflicts, and felt she had lower self-esteem than others. He opined that those
characteristics would make a person more likely to admit doing something they had not
done. Dr. Walker administered an EQI to obtain appellant‟s emotional rather than
intelligence quotient. The results indicated that appellant had low self-esteem, did not
hold herself in high regard, and felt as though she was never able to achieve as her family
expected. He said that appellant is empathetic, sympathetic, compassionate, deferential,
and unlikely to assert herself. He described that she had a great deal of social
responsibility, was a rule-follower, and was not a good problem solver. He said, “She‟s a
very suggestible person. She‟s very compliant.”
Even so, on cross-examination, when the State asked Dr. Walker whether he had
an opinion about whether appellant‟s statement to the police was true, he acknowledged
that it was “very possible ” that she was telling the truth in her statement.
We conclude that appellant‟s statement was freely and voluntarily given and was
not the product of coercive action. Appellant is not entitled to relief.
C. Videotape of the Victim
Appellant argues that the trial court erred by admitting a videotape of the victim
that was prepared by the adoption agency. As grounds, appellant states that the video
was irrelevant and prejudicial. The State maintains that it was relevant to rebut an issue
interjected by the defense. We agree with the State.
The determination of whether evidence is relevant and admissible at trial is a
matter left to the sound discretion of the trial court and will not be reversed absent an
abuse of that discretion. State v. Dellinger, 79 S.W.3d 458, 485 (Tenn. 2002); State v.
McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). “Relevant evidence” is “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. All relevant evidence is admissible unless specifically
excepted by constitution, statute, rules of evidence, or rules of general application. Tenn.
R. Evid. 402. One such exception is that relevant evidence may be excluded “if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. “Unfair prejudice”
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is “„[a]n undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.‟” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978)
(quoting Tenn. R. Evid. 403, Adv. Comm. Note).
The video in question was prepared by the adoption agency and was introduced
through Ms. Banks, the representative from Bethany Christian Services. She testified
that the video was not produced in a situation where the victim was prompted and
presented in the best possible light; rather, it was produced to show the most accurate
representation of the child to prospective adoptive parents. She said that no one wanted
the family to return home from China and be disappointed because they had been misled.
As to the relevance, appellant began weaving her theory of the case during
opening statements when counsel assured the jury that they would show that the victim
was underweight, suffered from severe malnutrition, had brittle bones, bruised easily, and
likely suffered from cerebral palsy. In fact, counsel continued with that theory
throughout his questioning of the witnesses. He elicited from Dr. Lien that malnutrition
could have contributed to the victim‟s anemic condition. Counsel attempted, albeit
unsuccessfully, to interject malnutrition into Dr. Hain‟s testimony, but Dr. Hain clarified
that even if the victim were malnourished, the bones and brain would be the last systems
to be affected, so “definitively,” malnutrition did not contribute to her skeletal or brain
injuries.
In light of appellant‟s continued attempts to mitigate her actions vis-à-vis the
severity of the victim‟s injuries, the video depicting the victim in life, showing that she
did not suffer from the maladies claimed by appellant, was relevant to rebut appellant‟s
theory of the case. Moreover, the relevance of the video was not substantially
outweighed by its prejudicial effect. The trial court did not abuse its discretion in
admitting the video. Appellant is not entitled to relief.
D. Sufficiency of the Evidence Underlying Count III of the Indictment
Appellant contends that the evidence is insufficient to sustain the conviction for
aggravated child abuse in Count III of the indictment based upon the loss of four of the
victim‟s primary teeth. The State answers that because the statute regarding serious
bodily injury in child abuse cases is not limited to those injuries specifically enumerated,
loss of primary teeth qualifies as a serious bodily injury.
As applicable to this count of the indictment, “„[s]erious bodily injury to the child‟
includes, but is not limited to, second- or third-degree burns, a fracture of any bone, a
concussion, subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema, brain
contusion, injuries to the skin that involve severe bruising or the likelihood of permanent
or protracted disfigurement . . . .” Tenn. Code Ann. § 39-15-402(d). Although the loss of
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primary teeth is not specifically listed in the statute, we begin with “„the ejusdem generis
canon of statutory construction, stating that „the enumerated portions of the definition of
serious bodily injury should be read as coming from the same class of injuries.‟” State v.
Farmer, 380 S.W.3d 96, 101 (Tenn. 2012) (quoting State v. Sims, 909 S.W.2d 46, 49
(Tenn. Crim. App. 1995)).
The applicable definition in this case, “serious bodily injury to the child,” is
different from the statutory definition of “serious bodily injury” in the criminal code.
Tenn. Code Ann. §§ 39-11-106(34), 39-15-402(d). “[S]erious bodily injury” includes
bodily injury that involves: “(A) A substantial risk of death; (B) Protracted
unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement;
(E) Protracted loss or substantial impairment of a function of a bodily member, organ or
mental faculty . . . .” Tenn. Code Ann. § 39-11-106(34). This definition is exhaustive;
there is no provision for consideration of injuries that are not specifically enumerated. In
contrast, the statute defining “serious bodily injury to the child,” Tennessee Code
Annotated section 39-15-402(d), is not exhaustive. The list of injuries includes, “but is
not limited to,” the named injuries. Id. (emphasis added). The general definition of
serious bodily injury has been construed by our supreme court in Farmer using the
ejusdem generis canon of statutory construction to conclude that a “clean” gunshot
wound that was treated within an hour and that required only pain relievers as treatment
did not meet the statutory definition of serious bodily injury. Farmer, 380 S.W.3d at 101.
Likewise, the Sims court concluded that the pain commonly associated with a broken
nose was not extreme enough to be included among the injuries that constituted serious
bodily injury. Sims, 909 S.W.2d at 49. In contrast, prior to the 2009 amendment to the
serious bodily injury to a child statute that provided a definition for serious bodily injury,
this court held that a cigarette burn on a child‟s palm was sufficient to meet the threshold
of serious bodily injury. See State v. Wanda Elaine Brock, No. E2009-00785-CCA-R3-
CD, 2011 WL 900053, at *7 (Tenn. Crim. App. Mar. 16, 2011) (finding serious bodily
injury although burns such as the one inflicted upon the victim were generally treated
with antibiotic ointment).
When a statute is ambiguous or does not address a precise issue, courts may
reference the broader statutory scheme, the history of the legislation, the “objective and
spirit behind the legislation,” or other sources in ascertaining its intent. Wlodarz v. State,
361 S.W.3d 490, 496 (Tenn. 2012) (citing Parks v. Tenn. Mun. League Risk Mgmt. Pool,
974 S.W.2d 677, 679 (Tenn. 1998); Lipscomb v. Doe, 32 S.W.3d 840, 845 (Tenn. 2000)).
Because the statute at issue is non-exhaustive and is, thus, arguably ambiguous, a review
of the pre-2009 amended statute is helpful. Effective July 1, 2005, Tennessee Code
Annotated section 39-15-402(a) read:
A person commits the offense of aggravated child abuse or
aggravated child neglect or endangerment who commits the offense of child
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abuse . . . or who commits the offense of child neglect or endangerment . . .
and:
(1) The act of abuse or neglect results in serious bodily injury to
the child; or
(2) The act of neglect or endangerment results in serious bodily
injury to the child; or
(3) A deadly weapon, dangerous instrumentality or controlled
substance is used to accomplish the act of abuse, neglect or
endangerment; or
(4) The act of abuse, neglect or endangerment was especially
heinous, atrocious or cruel, or involved the infliction of
torture to the victim.
Reviewing the history of this statute, it is clear that the legislature intended to punish acts
that could be considered “torturous” to the victim, precipitating a non-exhaustive list of
qualifying injuries in the 2009 amendment. Examining the list of injuries enumerated by
each statute, the legislature intended the threshold of injury necessary to establish
“serious bodily injury to the child” would be less than that required to establish “serious
bodily injury” under the general definition of the criminal code.
In this case, based on the medical testimony, the evidence is uncontroverted that
the victim was systematically tortured over time. Having four primary teeth forcibly
knocked out is just one of the means by which appellant accomplished her torturous
treatment of the victim. We conclude that the pain associated with the forcible loss of
primary teeth is commensurate with the class of injuries encompassed by the statute.
Appellant is not entitled to relief.
E. Partial Consecutive Sentencing
In determining an appropriate sentence, a trial court must consider the following
factors: (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 mitigating and enhancement factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
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should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” Tenn. Code Ann. § 40-35-103(4).
Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See
Tenn. Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain
“advisory sentencing guidelines” that are not binding on the trial court; however, the trial
court must nonetheless consider them. See id. § 40-35-210(c). Although the application
of the factors is advisory, a court shall consider “[e]vidence and information offered by
the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-
114.” Id. § 40-35-210(b)(5). The trial court must also place on the record “what
enhancement or mitigating factors were considered, if any, as well as the reasons for the
sentence, in order to ensure fair and consistent sentencing.” Id. § 40-35-210(e). The
weighing of mitigating and enhancing factors is left to the sound discretion of the trial
court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The burden of proving
applicable mitigating factors rests upon appellant. State v. Mark Moore, No. 03C01-
9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial
court‟s weighing of the various enhancement and mitigating factors is not grounds for
reversal under the revised Sentencing Act. Carter, 254 S.W.3d at 345 (citing State v.
Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim.
App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).
When an accused challenges the length and manner of service of a sentence, this
court reviews the trial court‟s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor in
passing sentence, said error will not remove the presumption of reasonableness from its
sentencing determination. Bise, 380 S.W.3d at 709. This court will uphold the trial
court‟s sentencing decision “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 709-10. Moreover, under such circumstances,
appellate courts may not disturb the sentence even if we had preferred a different result.
See Carter, 254 S.W.3d at 346. The party challenging the sentence imposed by the trial
court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. §
40-35-401, Sentencing Comm‟n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).
Prior to 2013, on appellate review of sentence alignment issues, courts employed
the abuse of discretion standard of review. See State v. Hastings, 25 S.W.3d 178, 181
(Tenn. Crim. App. 1999). Our supreme court has since extended the standard of review
enunciated in Bise to consecutive sentencing determinations. State v. Pollard, 432
S.W.3d 851, 860 (Tenn. 2013); Bise, 380 S.W.3d at 707; see also State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012) (applying abuse of discretion with a presumption of
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reasonableness to review of alternative sentencing determinations by the trial court).
Thus, the presumption of reasonableness gives “deference 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) . . . .” Pollard, 432 S.W.3d at 861.
The procedure used by the trial courts in deciding sentence alignment is governed
by Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant
to a trial court‟s sentencing decision. Imposition of consecutive sentences must be “justly
deserved in relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1).
The length of the resulting consecutive sentence must be “no greater than that deserved
for the offense committed.” Id. § 40-35-103(2). The court may order consecutive
sentences if it finds by a preponderance of the evidence that one or more of the following
seven statutory criteria exists:
(1) The defendant is a professional criminal who has knowingly devoted
the defendant‟s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so declared
by a competent psychiatrist who concludes as a result of an
investigation prior to sentencing that the defendant‟s criminal
conduct has been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates
little or no regard for human life and no hesitation about committing
a crime in which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between the
defendant and victim or victims, the time span of defendant‟s
undetected sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental damage to the
victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
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(7) The defendant is sentenced for criminal contempt.
Id. § 40-35-115(b).
The Pollard court reiterated that “[a]ny one of these grounds is a sufficient basis
for the imposition of consecutive sentences.” Pollard, 432 S.W.3d at 862 (citing State v.
Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So 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.
Of the seven statutory factors, the trial court in this case found the following to
apply: the defendant is a dangerous offender whose behavior indicates little or no regard
for human life and no hesitation about committing a crime in which the risk to human life
is high. Tenn. Code Ann. § 40-35-115(b)(4). The trial court stated:
Using that application that consecutive sentencing would be proper,
of course, that statute specifically says, the Defendant is a dangerous
offender whose behavior indicates little or no regard for human life and no
hesitation about committing a crime when the risk to human life is high.
....
A parent who would kill their child is the poster child for a
dangerous offender. Their picture should be in Webster‟s Dictionary beside
the words, dangerous offender. So there‟s no question in this Court‟s mind
that Mrs. Mark does meet the definition of a dangerous offender.
The second part of that test though is, is even though she‟s found to
be a dangerous offender, does consecutive sentencing serve any valid state
purpose, particularly in this particular case for which she‟s serving a life
sentence. I think certainly it does because, you see, children are part of the
state and children need to know, as well as their parents and everyone else,
that they will be protected, and that crimes against our children are the most
serious of all crimes.
In fact, there‟s a statute we have on aggravated child sexual abuse
which specifically calls for consecutive sentencing in those appropriate
situations. Our legislature in making a notation that this is a one hundred
percent offender has made a determination that this is one of the most
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serious, if not the most serious, of all offenses. The legislature has decided
that.
So I think that consecutive sentencing in this particular instance does
serve a valid state purpose and does meet the requirements of the statute.
When a trial court relies upon the “dangerous offender” factor in imposing
consecutive sentences, it must make certain factual findings pursuant to State v.
Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Under Wilkerson, before imposing
consecutive sentences based upon the defendant‟s status as a dangerous offender, the trial
court “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). The Pollard court declined to eliminate this requirement in applying the
abuse of discretion with a presumption of reasonableness standard of review to
consecutive sentencing. Id.
Although the trial court stated that appellant is a dangerous offender, it did not
make requisite Wilkerson findings. However, the Pollard court offered guidance for how
to address a situation wherein the trial court applied factor (4) without making the
Wilkerson findings. Our supreme court stated:
Where, as here, the trial court fails to provide adequate reasons on
the record for imposing consecutive sentences, the appellate court should
neither presume that the consecutive sentences are reasonable nor defer to
the trial court‟s exercise of its discretionary authority. Faced with this
situation, the appellate court has two options: (1) conduct a de novo review
to determine whether there is an adequate basis for imposing consecutive
sentences; or (2) remand for the trial court to consider the requisite factors
in determining whether to impose consecutive sentences. See Bise, 380
S.W.3d at 705 & n.41.
Id. at 863-64. Based on the record before us, we are satisfied that the proof at trial
established that the aggregate sentence is “reasonably related to the severity of the
offenses.” Pollard, 432 S.W.3d at 863 (citation omitted). In sum, the medical testimony
revealed that prior to receiving the fatal blow, the victim had healing rib fractures that
were inflicted between one and six weeks prior to her death and an ulnar fracture that was
inflicted six to eight weeks prior to her death. She had also endured having her teeth
knocked out, having fingers broken, having her nipples pinched to the point of scarring,
and having some sort of injury, possibly a burn, inflicted to the back of one of her thighs
that resulted in scarring. Dr. Hain opined that the victim had been “tortured” and then
killed.
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We also conclude that the aggregate sentence is “necessary in order to protect the
public from further criminal acts.” Id. (citation omitted). Considering the callous
disregard with which appellant treated the victim, it is unconscionable that she should
ever be in the presence of another child, and her remaining daughter and others should be
protected from further criminal acts by this appellant.
Finally, we agree with the State that as a physician, appellant was in a position to
know that her actions and behavior constituted a high risk to human life. Nonetheless,
appellant treated the victim in a manner that displayed little or no regard for human life
for an extended period until the abuse ended in the victim‟s death. Appellant is not
entitled to relief on this claim.
F. Clerical Errors in Judgment Forms
Several errors exist in the judgment forms that require correction on remand. The
parties agreed that appellant should be sentenced as a Range I, standard offender, but
many of the judgment forms do not reflect this classification. Although the trial court
marked “100% Violent,” it is nonetheless necessary to select an offender status on the
judgment form. In addition, the judgment form for Count IX indicates that it is to be
served consecutively to Counts I through IV. This is in direct contravention of the trial
court‟s intent as reflected in the transcript of the sentencing hearing. The trial court, at
the sentencing, aligned each of appellant‟s twenty-year sentences consecutively to each
other (Counts II, III, IV, and V) and consecutively to her life sentence (Count I). It
aligned her three-year sentences (Counts VI, VII, VIII, and IX) concurrently with each
other and concurrently with Count II but consecutively to Count I. The court stated, “It‟s
my intention . . . that the total effective sentence will be life plus eighty years without
parole.” When there is a conflict between the transcript and the judgment form, the
transcript controls. See State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991).
Accordingly, the judgment forms must be corrected as follows:
Counts I - IV: Corrected to reflect appellant is a Range I, standard offender
Count IX: Corrected to reflect appellant is a Range I, standard offender and
to reflect that the sentence is to be aligned consecutively to
Count I but concurrently with Counts II, VI, VII, and VIII.
CONCLUSION
Based on our thorough review of the entire record, the briefs of the parties, the
applicable legal authorities, and the arguments of counsel, we affirm appellant‟s
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convictions and sentences. However, we remand for entry of corrected judgments
consistent with this opinion.
_________________________________
ROGER A. PAGE, JUDGE
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