State of Tennessee v. Monica Dawn Hammers ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 21, 2016
STATE OF TENNESSEE v. MONICA DAWN HAMMERS
Appeal from the Criminal Court for Hamilton County
No. 280694 Barry A. Steelman, Judge
No. E2015-00464-CCA-R3-CD – Filed July 26, 2016
_____________________________
A Hamilton County jury found the Defendant, Monica Dawn Hammers, guilty of
attempted aggravated child abuse. Pursuant to an agreement between the parties, the trial
court sentenced the Defendant as a Range I offender to serve a nine year sentence
through supervised probation. On appeal, the Defendant asserts that: (1) the evidence
presented at trial is insufficient to support her conviction; (2) the trial court erred in
allowing the State to present evidence of the Defendant‟s prior bad acts; and (3) the trial
court failed to instruct the jury on lesser-included offenses. After a thorough review of
the record and applicable law, we affirm the trial court‟s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.
Donna Miller, Chattanooga, Tennessee, for the appellant, Monica Dawn Hammers.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Neal Pinkston, District Attorney General; and Charles D. Minor, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
A. Background and Procedural History
This case arises out of an interaction between the Defendant and her child while
the child was a patient at Erlanger hospital in Chattanooga, Tennessee. A Hamilton
County grand jury indicted the Defendant for attempted first degree premeditated murder
and aggravated child abuse for placing a small pillow over her four-year old son‟s (“the
victim”) face.
At trial, the State presented the following proof: Jeremy Harrison, a pediatrician
who practiced in Murfreesboro, Tennessee, testified that he treated the victim from the
time he was four months old. Dr. Harrison stated that initially his interaction with the
Defendant and victim was for routine health maintenance exams, but, as time progressed,
the Defendant had “concerns about specific medical things” involving the victim that Dr.
Harrison would do his “best to address.” One of the concerns, raised when the victim
was six months old, was regarding the victim‟s circumcision. When the Defendant was
not satisfied with Dr. Harrison‟s explanation as to her concerns, he referred her to a
specialist at Vanderbilt hospital, John Brock, who agreed with Dr. Harrison‟s assessment
and attempted to reassure the Defendant that the procedure had been done correctly. The
Defendant made another appointment eight or nine months later with the specialist
related to the same concern.
Dr. Harrison testified that, at some point, the Defendant reported the victim
developing difficulty with urinating. The victim was having “urinary accidents” after he
had been dry for an extended period of time, and Dr. Harrison confirmed through an
examination that the victim‟s meatus, the hole in the opening of the penis, was too small.
Dr. Harrison referred the victim to a urologist in Chattanooga, Tennessee. Ultimately, a
surgical procedure was performed to fix the meatal stenosis.
Dr. Harrison testified that in “those early months” the victim had “some problems”
with upper respiratory infections, cold viruses, stomach viruses, “typical childhood
illnesses,” but there appeared to be a continuing complaint regarding abnormal bowel
movements. From age four months through his one-year visit, the Defendant reported
that the victim had loose bowel movements and was concerned that the victim was
allergic to several food items. In January 2008, shortly before the victim‟s first birthday,
the Defendant reported that the victim had suffered an allergic reaction to eggs. Based
upon the Defendant‟s concerns, Dr. Harrison ordered blood allergy testing for concerns
about lactose and eggs. The laboratory data showed no sensitivity to eggs. The
Defendant continued to report the victim‟s sensitivity to lactose, citric acid, eggs, soy,
anything canned, soup, and vegetables. Dr. Harrison referred the victim to an allergist for
further allergy testing.
Dr. Harrison testified that the allergist conducted “skin testing,” and the victim
showed no sensitivity to apple, beef, crab, egg, lobster, milk, orange, peanuts, soybeans,
strawberry, and yeast. In addition to the skin issues, the Defendant reported vomiting and
diarrhea as recurrent problems for the victim, along with abdominal pain. Because these
issues had been chronic, Dr. Harrison referred the victim to a gastroenterologist, Brian
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Riedel, at Vanderbilt hospital. Dr. Harrison said that the gastroenterologist‟s assessment
indicated that the victim had “chronic diarrhea with rash and failure to thrive, multiple
perceived food triggers by history, and an inadequate, restricted and inappropriate diet.”
Several days after meeting with the gastroenterologist, the Defendant met with Dr.
Harrison at his office to discuss the laboratory findings which she had retrieved through
the Vanderbilt hospital computer system. The victim‟s lab results were all within the
normal range except for “a slight elevation in some thyroid function,” so Dr. Harrison
referred the victim to an endocrinologist. The subsequent laboratory findings regarding
the victim‟s thyroid were all in “the normal range.”
Dr. Harrison testified that the Defendant took the victim for a follow-up visit with
the gastroenterologist at Vanderbilt hospital for continued abnormal stools. The
Defendant reported that the victim only drank organic tea because “he wouldn‟t drink
anything else.” The assessment again indicated that the victim was having “some erratic
stools” and genetic testing related to a possible fructose transport defect came back
normal.
Dr. Harrison testified that, at the Defendant‟s request, he referred the victim to a
gastroenterologist, Douglas Laman, at T.C. Thompson Children‟s Hospital in
Chattanooga, Tennessee. Dr. Laman conducted his own evaluation and also did not find
any significant allergens related to the reported problems. Due to conflicting reports
from the Defendant and the victim‟s father about the victim‟s diet and stool, the victim
was admitted to the hospital for observation. The victim‟s father told Dr. Harrison that,
when the victim was with him, the victim ate what he wanted, other than dairy, “and did
fine with that.” Dr. Harrison confirmed that he had been aware since December 2008
that there was an ongoing custody dispute between the Defendant and the victim‟s father.
In addition to the other physicians, Dr. Harrison referred the victim to a podiatrist
for foot pain related to plantar fasciitis in 2010. After meeting with the podiatrist, the
Defendant called Dr. Harrison‟s office requesting a referral to an orthopedist for a second
opinion. Dr. Harrison stated that his last office visit with the victim was in November
2010.
Douglas Laman testified as an expert witness in the field of pediatric
gastroenterology. Dr. Laman said that he began seeing the victim in September 2009,
when he was about two and a half years old. He stated that he reviewed the records from
Vanderbilt hospital and then conducted his own testing, some of which was duplicative.
He performed an upper endoscopy, which included biopsies of lactose and sucrose
intolerance. The results showed a mild lactase deficiency but otherwise “everything
came back normal.” The victim also underwent a flexible sigmoidoscopy. The results
for that test were normal as well.
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Dr. Laman testified that the victim‟s father was not present initially but became
more so “toward the end.” Dr. Laman described the relationship between the Defendant
and the victim‟s father as contentious with a “confrontation” occurring one time in the
waiting room that required security. Dr. Laman said that the Defendant and the victim‟s
father contradicted one another in terms of their reports on the victim‟s health and diet.
Dr. Laman confirmed that he was aware of ongoing custody issues between the
Defendant and the victim‟s father.
Dr. Laman testified that the victim‟s symptoms, diarrhea and intolerance to
sucrose and lactose, were reported by the Defendant. Dr. Laman recommended Sucraid,
a replacement enzyme, to help with sucrose. He noted that there was clinical evidence
that the Sucraid may have helped “a little bit,” but because the victim‟s sucrose level was
within the normal range, he did not think the Sucraid should have “made a whole lot of
difference.” Other than the mild lactose intolerance, Dr. Laman said he did not find any
issues related to the symptoms presented. He stated that the victim‟s lactase level was
11.6 with the normal range being 16.5 and above. Generally speaking, a person with a
level of ten or twelve could have two glasses of milk but any more than that would likely
cause abdominal pain, cramps, and diarrhea.
Dr. Laman testified that the victim‟s father maintained that the victim ate what he
wanted to while at his house and did not have diarrhea. The Defendant stated that the
victim‟s father did not follow the victim‟s diet, did not give the victim his medications,
and then the victim would return home with diarrhea. Because the parents had such
differing accounts, Dr. Laman decided to admit the victim to the hospital for a week with
a “regular diet” and no medications. Dr. Laman also decided that there would be a sitter
in the room with the victim the entire time to ensure that nothing was being “given to the
child” to alter the results of the observation.
Dr. Laman testified that the victim was admitted to the hospital on May 2, 2011.
The admitting order read, “diagnosis, chronic diarrhea, custody issues, suspected abuse or
neglect, stable condition, regular diet, activity, 24-hour sitter observation, strict eyes,
nose and daily weights.” The victim had presented with diarrhea and poor growth. Dr.
Laman recalled that, while in the hospital, the victim was on a regular diet, no lactose
restrictions, no lactase supplementation with “no issues presenting.” Specifically, the
victim went two or three days without a bowel movement.
Dr. Laman testified that one night, at approximately 9:30 p.m., a resident at the
hospital called Dr. Laman and told him that the Defendant “had put a pillow over [the
victim‟s] face.” Dr. Laman instructed the resident to contact security “and have [the
Defendant] removed.” Dr. Laman said that “the plan” originally was to discharge the
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victim on May 6, but due to “social issues,” the victim remained in the hospital. The
victim was later discharged to his father‟s custody on a regular diet.
Dr. Laman testified that, before the “pillow incident,” DCS was contacted
regarding the Defendant on May 5, 2011. The contact or complaint was related to the
victim‟s medical issues being unfounded. Dr. Laman acknowledged that the Defendant
appeared to experience some “increased anxiety” during her three-day stay at the
hospital. Dr. Laman attributed this anxiety to the fact that the victim was experiencing no
diarrhea. Dr. Laman read a hospital note that stated, “sitter noted that patient is eating
more of his meals than mother reports.” Another note indicated that the Defendant “took
[the victim] by the arm, shook him, and after letting him go, his balance was off and he
fell and hit his head on the side rail.”
Dr. Laman read the following hospital note aloud:
About 18:35, [the victim] started whining. . . . [The Defendant] went to the
bathroom, came back out and he was still whining. At that time, according
to Ms. Omega, [the Defendant] states, „[victim], I‟m not having this
whining, stop whining,‟ then she grabbed a pillow that was in the bed,
placed it over his head for one to two seconds, . . . patient was lying in the
bed, [the Defendant] was standing beside the bed. [The Defendant] then
looked up and saw Ms. Omega watching her, so she dropped the pillow and
ran to the bathroom. [The Defendant] stayed in the bathroom for five
minutes. Patient was laying in bed quietly looking at the DVD player, then
[the Defendant] came out of the bathroom, picked child up, sat down on the
couch loving on him, saying, „Mommy loves you, you can‟t whine, you‟re
Mommy‟s world.‟ At this point Ms. Omega went to the door, . . . motioned
for Brandy to come . . . to the door. She told Brandy to tell the patient‟s
nurse that the [Defendant] had tried to smother [the victim].
Dr. Laman identified records of nurse observations during the victim‟s stay in the
hospital. Dr. Laman agreed that the nursing notes indicated that the Defendant told a
nurse on two occasions during the same day that the victim had diarrhea; however, there
was no medical documentation that the victim experienced diarrhea at any time during
his hospital stay. The notes described the Defendant, from May 2 through May 5, 2011,
as “anxious, restless, [and] inappropriate.” Following the Defendant‟s removal from the
room, the nursing notes indicated that the victim was “playful and alert.”
Dr. Laman testified that he had worked with Omega Harkless, the sitter, for eleven
and a half years and never received any complaints regarding her work. He further stated
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that he had never known Ms. Harkless to “blow[ ] something out of proportion.” Dr.
Laman explained his concern related to the incident as follows:
[T]he whole problem here was that there seemed to be the diarrhea. As this
played out and I continued to see the child, seemed to be that the diarrhea
issue was a way of kind of limiting visitation to the father. And then as we
got different stories from the two, from the [Defendant] saying [the victim]
has diarrhea, the dad saying [the victim] doesn‟t, which prompted this
whole in-house observation with food and seeing if he truly had diarrhea or
not, which turns out he did not, so that was to check and see, you know,
what was actually happening.
As a result of these claims, I mean, he‟s undergone, he underwent
two upper endoscopies, two scoped from above; a colonoscopy from me;
and then numerous lab tests and stool studies, which probably, if I‟d been a
little quicker and done this earlier, we could have avoided some of that.
But we got - - we kind of figured it out, and, you know, putting a
pillow over somebody‟s face, to me, I mean, I‟ve never done that, don‟t
intend to, but it‟s not a normal behavior, and my thought on the whole
process is that this seemed to happen the evening after we consulted
Department of Human Services or Child Protective Services to - - because
we were getting ready to discharge him, so at that time everything had kind
of unfolded, we knew this kid was not having diarrhea, and then this event
happens that following night.
On cross-examination Dr. Laman agreed that in February 2010, he was deposed
related to custody issues involving the victim. Dr. Laman agreed that, during the
deposition, he stated the victim “probably had a sucrose intolerance,” and that he
believed the Defendant was “truthful” with him. He explained that the depositions were
taken a year and a half before the victim was admitted to the hospital and before the
victim‟s father became involved in the treatment. Dr. Laman agreed that a nurse note on
May 4 indicated “Bristol type 5” but within the same sentence said “soft.” The doctor
agreed that Bristol type 5 is consistent with diarrhea. Dr. Laman explained that the notes
were unclear about whether it was a nurse observation or the Defendant reporting to the
nurse. The resident note for May 4 indicated that the victim‟s stool was normal.
Omega Harkless testified that she worked as a unit clerk and sitter at T.C.
Thompson Children‟s Hospital. Ms. Harkless stated that she had worked in medical care
for approximately twenty-five years. She confirmed that, prior to this incident, she had
worked as a sitter for children when there was an allegation of abuse. She said that this
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was the first time she had ever had occasion to report an incident of this nature while
acting as a sitter. Ms. Harkless stated that she had not met the Defendant or the victim
prior to May 5, 2011.
Ms. Harkless testified that she was assigned to the victim from 7:00 a.m. until 7:00
p.m. on May 5, 2011. When Ms. Harkless arrived at work, the Defendant and the victim
were sleeping. The Defendant and the victim woke up around 7:15 a.m. when the
breakfast food trays were delivered. The Defendant got up, went to the bathroom, and
then returned to set up the food tray for the victim. Ms. Harkless recalled that the victim
ate “pretty good,” but that the Defendant took his tray before he was finished. The victim
whined, indicating he wanted more food, and the Defendant responded that he had “had
enough.” Ms. Harkless estimated that the victim had eaten less than half of the food on
the tray.
Ms. Harkless testified that the victim continued to whine, and the Defendant
became frustrated with him. The Defendant made a phone call and told the victim to be
quiet while she was talking with an attorney. Ms. Harkless stated that she thought this
was an odd comment to make to the victim based upon his age. The victim watched
television while the Defendant stepped outside to smoke. When she returned, she sat in a
chair while he continued to watch television. At some point, the Defendant began
“fussing” at the victim because he was whining, and she grabbed the victim by both arms,
shook him, and said, “I don‟t want to hear this noise, [victim],” before “plop[ping]” him
down on the bed “real hard.” The victim fell over and hit his head on the side rail of the
hospital bed and began crying. Ms. Harkless notified the nursing staff who checked the
victim‟s head for injury.
Ms. Harkless testified that she recommended that they go to the playroom because
the Defendant was frustrated with the victim. In the playroom, Ms. Harkless and the
Defendant were seated at a small table while the victim was nearby playing with trains.
The Defendant repeatedly called the victim to come over to her, and he continued to play
with the trains. At some point, he acquiesced and went over to the Defendant, and she
“shook him real close.” Ms. Harkless was concerned because this was the second time
she had seen the Defendant “grab” the victim, so she left the playroom and notified
nurses. When they returned from the playroom, the lunch trays were in the room.
Ms. Harkless testified that the victim did not want to eat when they returned to the
room after visiting the playroom, so the Defendant and the victim took a nap for an hour
or an hour and a half. The Defendant woke up first, at around 5:30 p.m., and walked
around the victim‟s bed stretching. The victim then woke up and began whining, and the
Defendant “grabbed the pillow, shoved it over his face.” While doing so, the Defendant
said, “I‟m not going through this, [victim] . . . I‟m not hearing this.” Ms. Harkless
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described the Defendant‟s actions as “trying to smother” the victim. She said the
Defendant looked up, threw the pillow down, and ran into the bathroom. The Defendant
was in the bathroom briefly before returning to the victim‟s bed, picking him up, and
telling him “I love you, mama‟s heart.” Ms. Harkless immediately requested a break, and
she reported the incident to the nurses.
Ms. Harkless testified that she was “in total shock” when observing the interaction
between the Defendant and the victim. Ms. Harkless confirmed that, as she watched the
Defendant, it was her belief that the Defendant was harming the child. She stated that she
did not hear the Defendant say “peekaboo” at any time. Ms. Harkless recalled that the
victim continued to whimper when the Defendant placed the pillow on his face. After the
Defendant removed the pillow, he “stiffened up.”
Kimberly Brown, a nurse, testified that she had worked at T.C. Thompson
Children‟s Hospital for twenty-one years. She recalled working on May 5, 2011, and
receiving a phone call to notify security of an issue. After requesting security, Ms.
Brown went to the victim‟s room where she met with Ms. Harkless. She said Ms.
Harkless was normally very calm but appeared upset at what she had witnessed. Ms.
Brown explained that Ms. Harkless normally worked as the unit clerk. Ms. Brown
described this job as “difficult” and said that Ms. Harkless was good at her job and
remained calm regardless of the circumstances.
Ms. Brown testified that physicians ordered sitters for a patient when there was
suspicion of physical, social, or mental danger to a child. A sitter was to observe the
child continuously during the child‟s stay in the hospital.
On cross-examination, Ms. Brown testified that the floor nurse was the person
responsible for documenting notes in a patient‟s records. The floor nurse and not Ms.
Harkless would have recorded the notes about the incident in the victim‟s chart. Ms.
Brown agreed that a physician may also order a sitter if a patient had an eating disorder
or posed a threat to his or herself.
William Gregory, a Walden Security employee, testified that he worked at
Erlanger. He stated that he spoke with Ms. Harkless about the incident involving the
pillow. He recalled that Ms. Harkless was “adamant and extremely upset” about the
Defendant‟s treatment of the victim. Mr. Gregory confirmed that, after the pillow
incident, the Defendant was removed from the hospital, and the victim was relocated to
an undisclosed location in the hospital as a safety precaution.
Annamaria Church, a pediatrician, testified as an expert witness in the field of
pediatric medicine. She stated that she was the Division Chief of general pediatrics and
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served as the Medical Director of the Child Protection Team at Erlanger. Dr. Church
stated that the victim was admitted on May 2, 2011, with a history of chronic diarrhea
beginning when he was six months old. The treating physician found no etiology for the
diarrhea so admitted the victim for observation. Dr. Church explained that sitters are
placed in patient rooms to “ensure the safety of the child.” She stated that sitters are to sit
and observe while in the patient room. If they have any concerns, they are to notify the
physician or a nurse. Dr. Church confirmed that she had worked with Ms. Harkless
before and not had “any issues” with her as a sitter.
Dr. Church testified that she was notified on May 5 that there had been a couple of
incidents that caused concern, the latest incident being the Defendant‟s placing a pillow
over the victim‟s head. Dr. Church was not treating the victim, but she was notified due
to her position as Medical Director of the Child Protection Team. Dr. Church advised the
resident to notify Child Protective Services (“CPS”) and remove everyone from the room
other than the sitter.
Dr. Church testified that suffocation with a pillow is “difficult” but “possible.”
She said that suffocation is the act of cutting off a person‟s oxygen supply and placing
something over the child‟s mouth and nose in an attempt to diminish or stop oxygen flow.
She said that the eventual effect of suffocation is death but that oxygen deprivation can
damage organs. Dr. Church explained that the Defendant‟s placing a pillow over the
victim‟s face caused concern because it indicated “an escalation of activity” or
“detrimental behavior” toward the victim. She stated that although the event did not
physically harm the victim, it would be a scary event for a child.
Dr. Church confirmed that the victim was hospitalized for gastric issues but there
was no medical evidence to support there was a problem during his hospital admission.
The State concluded its case-in-chief, and the Defendant presented the following
proof: Galen Fugh, a Chattanooga Police Department officer, testified that he would not
have pursued prosecution if he had been made aware that the alleged attack lasted one or
two seconds and that the Defendant was “playing peekaboo.”
On cross-examination, Officer Fugh agreed that no witness he spoke with related
to this case ever referred to the incident as anything other than “smothering.”
Based upon this evidence the jury convicted the Defendant of attempted
aggravated child abuse, a Class B felony. The parties agreed on a sentence, the
Defendant waived a sentencing hearing, and the trial court ordered a sentence of nine
years to be served through supervised probation. It is from this judgment that the
Defendant now appeals.
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II. Analysis
On appeal, the Petitioner asserts that: (1) the evidence presented at trial is
insufficient to support her conviction; (2) the trial court erred in allowing the State to
present evidence of the Defendant‟s prior bad acts; and (3) the trial court failed to instruct
the jury on lesser-included offenses.
A. Sufficiency of the Evidence
The Defendant asserts that “there was absolutely no evidence that the child‟s
breathing was in any way interrupted” and, therefore, the evidence is insufficient to
sustain her conviction. The State responds that the Defendant‟s act of “grabbing a pillow
and placing it over her child‟s face was a substantial step towards the commission of
aggravated child abuse.” As such, the State asks us to affirm the conviction.
When an accused challenges the sufficiency of the evidence, this Court‟s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and „[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.‟” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] „is the same
whether the conviction is based upon direct or circumstantial evidence.‟” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
10
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978), superseded by statute
on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218 (Tenn.1993))
(quotations omitted). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “„strongest
legitimate view of the evidence‟” contained in the record, as well as “„all reasonable and
legitimate inferences‟” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).
Aggravated child abuse occurs when a person commits child abuse, as defined in
Tennessee Code Annotated section 39-15-401(a), and the “act of abuse . . . results in
serious bodily injury to the child[.]” T.C.A § 39-15-402(a)(1). Child abuse occurs when
a person knowingly treats a child under eighteen years of age “in such a manner as to
inflict injury[.]” Id. § 39-15-401(a).
Our Supreme Court has held that child abuse is a “nature-of-conduct” offense and
that, “[a]s such, the prosecution need not prove that the defendant „intended‟ to cause
injury to the child.” State v. Toliver, 117 S.W.3d 216, 230 (Tenn. 2003). The State,
however, must show that the defendant was “aware of the nature of the conduct” when he
treated the victim “in such a manner as to inflict injury.” T.C.A. §§ 39-11-302(b), 39-15-
401(a); State v. Hanson, 279 S.W.3d 265, 277 (Tenn. 2009). Finally, because the
Defendant herein was convicted of attempted aggravated child abuse, we note that our
criminal attempt statute states as follows:
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(a) A person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense:
(1) Intentionally engages in action or causes a result that
would constitute an offense, if the circumstances surrounding
the conduct were as the person believes them to be;
(2) Acts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without
further conduct on the person‟s part; or
(3) Acts with intent to complete a course of action or cause a
result that would constitute the offense, under the
circumstances surrounding the conduct as the person believes
them to be, and the conduct constitutes a substantial step
toward the commission of the offense.
(b) Conduct does not constitute a substantial step under subdivision (a)(3),
unless the person‟s entire course of action is corroborative of the intent to
commit the offense.
(c) It is no defense to prosecution for criminal attempt that the offense
attempted was actually committed.
T.C.A. § 39-12-101.
The evidence, viewed in the light most favorable to the State, showed that the
Defendant had repeatedly presented the victim to physicians, from the time he was six
months old, with the complaint of chronic diarrhea. When extensive testing and
evaluation by multiple specialists revealed no cause, and the current treating physician
received conflicting stories from each of the victim‟s parents, the victim was admitted to
the hospital for observation. While hospitalized, the victim exhibited none of the
symptoms the Defendant had insisted he suffered from. Further, the Defendant became
aware of a DCS complaint against her. After learning of the DCS complaint and multiple
days with no indication of the victim having diarrhea, the Defendant exhibited “increased
anxiety.” On the day of the incident, the Defendant exhibited frustration with the victim,
who had been whining throughout the day. The Defendant and the victim took a nap
mid-day and upon both of them waking, the victim began whining again. The Defendant
responded by placing a pillow over the victim‟s face while admonishing him, “I‟m not
going to hear this.” The Defendant looked up to see the sitter watching her, dropped the
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pillow, and fled to the bathroom. The victim stiffened in response to the Defendant‟s
conduct and stayed quietly in the bed until his mother returned, picked him up and
affectionately addressed him. The sitter observing the victim said she was shocked by
the Defendant‟s conduct, immediately reported the act, and the Defendant was escorted
from the hospital.
From these facts, we determine that a rational jury could conclude that the
Defendant was acting with the intent to cause serious bodily injury to the victim. By
grabbing a pillow and covering the victim‟s face, the Defendant took a substantial step
toward inflicting serious bodily injury and satisfied the requirements of attempted
aggravated child abuse. Accordingly, we conclude that the evidence is sufficient to
support the Defendant‟s conviction for attempted aggravated child abuse. The Defendant
is not entitled to relief as to this issue.
B. Prior Bad Acts
The Defendant argues that the trial court erred when it allowed testimony
regarding the victim‟s prior treatment and Ms. Harkless‟s observations of other
interactions between the Defendant and the victim on May 5, 2011. The State responds
that the trial court properly admitted evidence of the victim‟s prior medical treatment to
explain his admission to the hospital for observation and not as propensity evidence. As
to Ms. Harkless‟s other observations on May 5, the State contends that the Defendant has
waived review for failure to object at the time of the testimony.
The Tennessee Rules of Evidence provide that all “relevant evidence is
admissible,” unless excluded by other evidentiary rules or applicable authority. Tenn. R.
Evid. 402. Of course, “[e]vidence which is not relevant is not admissible.” Id. Relevant
evidence is defined as 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.” Id. at 401. Even relevant evidence, however,
“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.” Id. at 403.
Evidence of other crimes, wrongs, or bad acts is not admissible to prove the
character of a person to show action in conformity with that character. Id. at 404(b).
Such evidence may be admissible, however, for “other purposes.” Id. Such evidence is
admissible for other purposes, provided that the trial court: (1) upon request, holds a
hearing outside the jury‟s presence; (2) determines that a material issue exists other than
conduct conforming with a character trait and, upon request, states the basis for its
determination; (3) finds proof of the other crime, wrong, or act to be clear and
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convincing; and (4) determines that the probative value of the evidence is not outweighed
by the danger of unfair prejudice. Tenn. R. Evid. 404(b). The safeguards in Rule 404(b)
ensure that defendants are not convicted for charged offenses based on evidence of prior
crimes, wrongs, or acts. State v. James, 81 S.W.3d 751, 758 (Tenn. 2002). When a trial
court substantially complies with the procedural requirements of Rule 404(b), the
standard of appellate review of the trial court‟s decision is abuse of discretion. See State
v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003); James, 81 S.W.3d at 759. If the strict
requirements of the rule are not substantially observed, the reviewing court gives the trial
court‟s decision no deference. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
The State filed a motion to admit evidence pursuant to Tennessee Rule of
Evidence 404(b) to prove intent and motive. The Defendant filed a related motion
seeking to exclude evidence of alleged “medical abuse.” The State asserted that the
Defendant had sought unnecessary medical treatment for the victim causing the victim‟s
father and physicians to become suspicious that the symptoms were fabricated. After a
hearing, the trial court stated that there was not clear and convincing evidence of medical
abuse. It further expressed concern that the jury might be confused about what was
charged in the indictment and what was testified to in regard to medical abuse. The trial
court ruled that the State would be allowed to question witnesses about the history of
medical treatment and complaints but not “medical abuse.” The trial court expressed the
importance of the jury understanding that “the only abuse that is at question here is the,
the act with the pillow.”
Consistent with this ruling, Dr. Harrison and Dr. Laman testified regarding the
victim‟s medical history leading up to his hospitalization. The State was restricted to
eliciting only testimony regarding the victim‟s medical history and treatment and
precluded from eliciting testimony about medical abuse. The victim‟s medical history
and treatment were relevant to this case to help explain why the victim was hospitalized
with a sitter at the time of the incident. Neither the Defendant‟s involvement in a custody
battle nor her act of seeking medical treatment for her child show a propensity toward
smothering her child. Even assuming this constituted a bad act, the evidence would have
been admissible to show motive and intent pursuant to 404(b). Therefore, we conclude
that the trial court did not err in admitting Dr. Harrison‟s and Dr. Laman‟s testimony
about the victim‟s medical history and treatment.
Further, the trial court properly instructed the jury on the manner in which it
should consider the victim‟s medical history and treatment, and this Court must presume
that a jury followed the trial court‟s instructions. State v. Odom, 336 S.W.3d 541, 562
(Tenn. 2011). The Defendant is not entitled to relief.
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As to the issue of testimony regarding other incidents occurring on May 5, 2011,
the only reference to this issue in the Defendant‟s brief is “In further permitting the State
to introduce evidence of other alleged prior bad acts by Defendant on May 5, 2011, while
her child was in the hospital, the Trial Court further prejudiced Defendant.” The
Defendant makes no argument beyond this statement. Further, there is no reference to
which testimony in the record she refers, and she does not cite to any specific authority to
support this allegation regarding Ms. Harkless‟s testimony. Therefore, the Defendant has
waived our review of this issue. See Tenn. R. Ct. Crim. App. 10(b).
C. Jury Instruction
In her final issue on appeal, the Defendant contends that the trial court failed to
instruct the jury on the lesser-included offenses of assault by offensive touching,
attempted aggravated assault, reckless endangerment, and attempted reckless aggravated
assault. At trial, the trial court charged the jury only as to the lesser-included offenses of
attempted child abuse and attempted assault. The State responds that the Defendant has
waived this issue for failure to make a written request pursuant to Tennessee Code
Annotated section 40-18-110(c).
In support of this issue it appears the Defendant relies on law that is no longer
applicable; therefore, we discuss the transition of this law briefly. In 2001, the Tennessee
Legislature amended section 40-18-110 to provide that an instruction as to a lesser
included offense is waived unless the defendant requests in writing, prior to the trial
court‟s charge to the jury, that such an instruction be provided to the jury. T.C.A. § 40-
18-110(c). This amendment to Tennessee Code Annotated section 40-18-110 governs all
trials on or after January 1, 2002, as is present in this case. 2001 Tenn. Pub. Acts 338, §
2. Because the Defendant did not request in writing an instruction on the lesser included
offenses she now asserts should have been included in the trial court‟s charge to the jury,
the Defendant has not presented a ground upon which relief may be granted. T.C.A. §
40-18-110(c). Therefore this issue is without merit.
The Defendant failed to make a written request for this jury instruction and made
no objection to the trial court‟s proposed instructions, but she did raise it in her second
amended motion for new trial. The trial court denied the motion for new trial, ruling that
it properly charged the jury; however, failure to instruct on a lesser included offense was
not a proper issue for a motion for new trial due to the lack of a written request, nor is it a
proper issue for appeal. “Absent a written request, the failure of a trial judge to instruct
the jury on any lesser included offense may not be presented as a ground for relief either
in a motion for new trial or on appeal.” T.C.A. § 40-18-110(c). The Tennessee Supreme
Court has held that “if a defendant fails to request an instruction on a lesser-included
offense in writing at trial, the issue will be waived for purposes of plenary appellate
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review and cannot be cited as error in a motion for new trial or on appeal.” State v. Page,
184 S.W.3d 223, 229 (Tenn. 2006). Our Supreme Court also made clear, however, that
when a defendant waives a jury instruction for failure to request it in writing, an appellate
court may still review the issue for plain error. Id. at 230.
It is the Defendant‟s burden to persuade an appellate court that there was plain
error in the trial proceeding. State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007). The
Defendant does not acknowledge that she failed to submit a request for lesser-included
offenses to be charged at trial nor does she address plain error review. The Advisory
Commission Comments to Tennessee Rule of Appellate Procedure 13(b) suggest that the
discretionary authority for the declaration of plain error “be sparingly exercised.”
T.R.A.P. 13(b), Advisory Comm‟n Comments. Our review of the record reveals that this
issue was not properly preserved and the Defendant has not shown that she is entitled to
plain error review.
III. Conclusion
After a thorough review of the record and relevant authorities, we affirm the trial
court‟s judgment.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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