State v. Pendergrass ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1997 December 11, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CC-00310
)
Appellee, )
) BLEDSOE COUNTY
)
V. )
) HON. J. CURTIS SMITH, JUDGE
TRACEY PENDERGRASS, )
)
Appe llant. ) (AGGRAVATED CHILD ABUSE)
FOR THE APPELLANT: FOR THE APPELLEE:
L. THO MAS AU STIN JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
P.O. Box 666
Dunlap, TN 37327 SANDY R. COPOUS
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Building
Nashville, TN 37243
JAMES MICHAEL TAYLOR
District Attorney General
WILL DUNN
Assistant District Attorney General
265 Third Avenue, Suite 300
Dayton, TN 37321
OPINION FILED ________________________
REMANDED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Tracey Pendergrass, appeals as of right pursuant to Rule
3 of the Tennessee Rules of Appellate Procedure. The Defendant was convicted
of aggravated child abuse following a jury trial in the Circuit Court of Bledsoe
County. She was sentenced to ten years as a Range I offender. The Defendant
argues the following five issues in her appeal: (1) Whether the trial court abused
its discretion when it allowed family members to testify as to statements made by
the minor child several hours after he was injured; (2) whethe r the trial court
abused its discretion when it allowed th e attend ing nurse to testify as to
statem ents made by the child which identified the Defendant as the cause of the
injury; (3) whether the trial court erred when it neglected to include a lesser
included offens e in its ch arge to the jury; (4) whether the trial c ourt abu sed its
discretion when it refused to grant the Defendant’s motion for a mistrial after four
jurors were allowed to use the telephon e after the c ase wa s subm itted to the jury;
and (5) whether the trial court erred when it imposed a se ntence of ten (1 0) years
upon the Defendant. For the reasons stated below, we remand this case to the
trial court for a hearing on the iss ue of jury se paration .
The victim in the case sub judice was the Defendant’s three year-old step-
son. He wa s broug ht to the Bled soe Co unty General Hospital with severe burns
from his waist down to his toes. The burns were consistent with an “immersion
burn,” which is where a person is held down in a substance which results in a
burn. In the case sub judice, the ch ild was burne d by sc alding hot w ater in a
bathtub. The Defendant contended that the child fell into the water on his own,
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while she was not in the room . There was proof at trial that the burn was not
consistent with this explanation as there was a definite line aro und th e child ’s
waist that was the demarcation for the burn. There were no splatter-type burns
as would be expected if he had fallen into the tub.
After being broug ht to the Bleds oe Co unty G enera l Hosp ital, the child was
then taken to T.C. Thompson Children’s Hospital in Chattanooga by helicopter.
He was treated for his burns at the hospital and had to be kept for twenty-one
(21) days. He was given whirlpool treatments after which the boy’s sk in wou ld
peel and blee d. His trea tment w as very pa inful. He has permanent scarring from
his waist down a s a result o f the burn s. After b eing re lease d from the ho spital,
physical custody of the ch ild was grante d to his paternal grandparents. He was
unde rgoing therap y at the tim e of trial.
I.
The Defe ndan t’s first issue is that the trial court abused its discretion when
it allowed the State’s witnesses to testify as to statements made by the minor
child severa l hours after he was in jured. A t trial, the victim’s grandmother, Carol
Pendergrass, testified that while they were at the hospital in Chattanooga several
peop le were in the victim’s roo m. She was stan ding ne xt to her son, Bruce
Pendergrass, who is also the victim’s father. When he asked the victim how he
got in the bathtub, the victim replied, “Mommy put me in the water.” Brad
Pendergrass, the victim’s uncle also testified that he was in the hospita l room.
He heard the victim re ply to B ruce P ende rgrass ’s question as to how the accident
occurred. He also heard the victim respond that his mother had put him in the
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water. There was pro of at trial that the victim called his step-m other, the
Defen dant, “Mo mm y.”
The Defendant argues that the trial c ourt er red in overruling his objections
to the admission of these statements. The trial court allow ed thes e statem ents
into evidenc e unde r the excited utteranc e excep tion to the hearsay rule pursuant
to Rule 803(2) of the Tennessee Rules of Evidenc e. Rule 803(2) states that an
excited utterance is, “[a] statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition .” The Defendant argues that these statements should not have been
allowed into evidence because the statements were too remote in time from the
incident. Several hours had passed since the child was initially burned. He had
been taken to th e Bleds oe Co unty General Hospital and treated and then airlifted
to Chattan ooga fo r treatm ent. The Defendant also argues that the child was
given pain medication, Tylenol with codeine and three (3) milligrams of morphine,
and this medication would preclude the statements from being made
spontaneously or when the child was in an excited state.
The decision to apply the exception is left to the discretion of the trial judge.
State v. Payton, 782 S.W.2d 490, 494 (Ten n. Crim. App . 1989). “[T]he primary
consideration [is] whethe r the com ments are, bec ause o f the circumstances,
reliable.” Payton, 782 S.W.2d at 494 (citing McCormick’s Law of Evidence, § 297
at 854-55 ; Shelton v. State, 460 S.W.2d 869 (T enn. Crim. App. 1970)). Our
supreme court has addressed what is necessary for a statement to meet the
excited utterance exc eption. In State v. S mith, 857 S.W .2d 1 (T enn.), cert.
denied, 510 U.S. 996 (1993), the Tennessee Supreme Court stated:
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The ultimate test is spontaneity and lo gical re lation to the m ain
event and where an act or declaration springs out of the transaction
while the parties are still laboring under the excitement and strain of
the circumstances and at a time so near it as to preclude the idea of
deliberation and fabrication . See Garrision v. State, 163 Tenn. 108,
116, 40 S.W .2d 100 9, 1011 (1931); P aine, Tennessee Law of
Evidence, (1974), Part F. Excited utterance, § 69.
Smith , 857 S.W.2d at 9. Also, a statement, even if it is elicited by ano ther, is
admis sible as a n excited u tterance declaratio n. Smith , 857 S.W.2d at 9.
In his ruling in response to the Defendant’s objection to the entry of these
statements as excited utterances, the trial court stated:
I believe in the situation before the Court now there has been some
several hours between the event the child was treated at the
Bledsoe County Nursing Home [sic] and then transported by
helicopter [to] T.C. Thompson’s Children’s Hospital in Chattanooga.
So we have a s everal hours time lapse, but the circumstances which
shou ld be considered are the nature and the seriousness of the
event or condition, the appearance of the declarant, the behavior of
the declarant, the outlook of the declarant, and other circumstances.
What we have here is a th ree year o ld child adm ittedly severely
burned over the lower portion of the child’s bo dy. W e wou ld
obviou sly have pain associated with what’s been said to be first and
second degree burns over the lower portion of the body. We have
an attemp ted catheterization apparently unsuccessful at the Bledsoe
County Hospital. We have an IV started at the Bled soe Co unty
Hosp ital. We have a child, a young child, wrapped in bandages.
W e have a young child in a strange and probably frightening
environment at the Bledsoe County ER room, e merge ncy room . W e
have a child transported by helicopter to another hospital, which
would be a new series of strangers. I think under these
circumstances that this child still was under the stress of excitem ent.
I think the offered evidence is an excited utterance under the
hearsay exception and I’m going to allow Mrs . Pende rgrass to testify
in the matter as offered.
The trial court also stated tha t this ruling applied to Brad Pendergrass, the
victim’s uncle.
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W e do not find that the trial court ab used its discre tion. Th e child would
obviou sly have been under a great deal of stress from the time he was burned
in the bathtub throu ghout his treatment by many strangers at two different
hospitals. The re is als o little da nger o f fabrica tion by a child so young in so much
pain and distress. We do not find that the fact the child was given p ain
medication precludes the trauma and distress of the event for the child. We find
that the ruling of the trial court is correct under the circumstances in the case sub
judice.
Even if error, we feel it would be harmless beyond a reaso nable d oubt. W e
note from th e record that several witnesses, who were called to testify by the
Defen dant, testified that the child stated that he had fallen into the bathtub, and
not that his “Mommy” had put him into the tub. In addition, there was
overwhelming proof that the child had been forcibly placed into the scalding hot
water, and that Defendant was the only adult in the house at the time of the
incident.
There fore, this issu e is withou t merit.
II.
In Defendant’s second issue, she contends that the trial court erred by
allowing testimony of the flight nurse regarding statements made by th e victim
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that, “My Mo mm y did it,” when inquiry was made by the nu rse as to, “W ho did this
to you?” The trial court admitted the tes timony under Rule 803(2), excited
utterance, and Rule 803(4), statements for purposes of medical diagnosis and
treatme nt. The life flight nurse, K athleen Corne tt, testified at trial that before they
lifted off she repeatedly asked the ch ild wha t had h appe ned to him. S he fina lly
asked him who had done th at to him, a nd he s tated that h is mom my had done it.
She testified that the child had been given Tylenol with codeine about an hour
prior to their arrival, bu t it had no a ffect on the child. He w as unre spons ive to
their ques tions. The victim was given three (3) milligrams of morphine, and
subsequently became responsive.
The trial court stated these reasons for allowing Ms. Cornett’s testimony
of the child ’s statem ents into e vidence :
This statement of the child was actually made prior in time to
the statement that was made in the presence of the grandmother
later on at T.C . Tho mps on’s H ospita l. I think that the statement of
the child is proper under the excited utterances exception for the
same reasons that I’ve already outlined as relates to, I believe Mrs.
Carol Pendergrass’ testimon y. I think under the three criteria set out
in the Ruc ker case that it is also an excep tion to th e hea rsay ru le
based on the medical diagn osis an d treatm ent in that the statement
was made for the p urpos e of m edica l diagn osis an d treatm ent, tha t’s
the first criteria.
Number two, the med ical history of the declarant past or
present symptoms, pain sensation and the general character of the
cause or source there of, and it was reason ably pertine nt to
diagn osis and trea tment. T he State ’s arguing that as part of the
diagn osis and treatment essentially the identification of child abuse
is part of the d iagnos is and trea tment, a nd that is in fact wh at this
witness has testified to.
Using the law set out above, we conclude that the trial court did not abuse
its discre tion in allowin g Ms. C ornett to testify to th e child ’s statement under the
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excited utterance exception to the hearsay rule. The trial court’s response to the
Defendant’s objection is correct concerning the excited utterance exception.
W e now turn to whether the statement should have be en allowe d into
evidence under the exception for statements made for medical diagnosis and
treatme nt. The Defendant argues that the trial court abused its discretion by
allowing this statement in under the medical diagnosis and treatment exception
because of the child’s young age, the persistent questioning by Ms. Cornett and
the influence of narco tics. The p roper issu e is wheth er the state ment m eets the
criteria set out in Rule 803(4), “[s]tatements made for purposes of medical
diagnosis and treatment de scribing med ical history; past or present symptoms,
pain, or sensations; or the inception or general character of the cause or external
source thereof inso far as rea sonab ly pertinent to diagno sis and tre atmen t.”
Tenn. R . Evid. 803(4).
Trial courts have broad discretion in determining the admissibility of
evidence, and their rulings will not be reversed absent an abuse of discretion.
State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989). In State v.
Rucker, 847 S.W.2d 512 (Tenn. Crim. App. 1992 ), this court stated, “[t]his Court
is of the opinion that ‘[s]tatements made by a child abuse victim to a physician
during an examination that the abuser is a membe r of the victim ’s imme diate
hous ehold are reasona bly pertinent to treatm ent.’” Rucker, 847 S.W.2d at 519-20
(quoting United States v. Ren ville, 779 F .2d 43 0, 436 (8th C ir. 1985 )). It is
thought that the nam e or ide ntity of a p erpetr ator is pertinent in the diagnosis and
treatment of a ch ild abus e victim because “‘there is a direct correlation between
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identity and rec urrence ’” which ofte n reveals a pattern of abuse . Rucker, 847
S.W.2d at 519 (quoting State v. Maldonado, 536 A.2d 60 0, 603 (Con n. 1988)).
Our supreme court recen tly addr esse d the is sue o f child abuse cases and
the admis sibility of statem ents made by children which are allowed into evidence
through Tennessee Rules of Evidence Rule 803(4) in State v. McLeod, 937
S.W.2d 867 (Tenn. 1996). In McLeod our supreme court stated:
In making the determination under Rule 803(4), trial courts must
consider criteria such as the circumstances surrounding the making
of the statem ent, which would inc lude the tim ing of the s tatement
and its contents. If the trial court finds that the statement was
inapp ropria tely influen ced b y anoth er, the c ourt sh ould exclude it as
not having been made for the purpose of diagno sis and tre atmen t.
The inquiry, however, will vary depending on the facts of each case.
To illustrate : (1) the trial cou rt may cons ider wh ether th e child ’s
statement was in response to suggestive or leading questions;
and/or (2) the trial court may consider any other factor that may
affect trustworthiness, such as a bitter custody battle or family feud.
McLeod, 937 S.W.2d at 871.
In the case sub judice, the trial court held a jury out hearing on the
admis sibility of the statement. The trial judge decided to allow the statement
because, “the identification of child abuse is part of the diagnosis and treatme nt,
and that is in fact what this witness has testified to.” We do not find that the trial
judge abused h is discr etion. H e had a jury ou t hearin g, and his rea sonin g is
based on the same principles on which Rucker and McLeod are based.
This statem ent was admis sible und er both th e excited utterance and
medical diagno sis and tre atmen t exception s to the he arsay rule . See State v.
Mau rice Gordon, ___ S.W.2d ___ (Tenn. Sept. 29, 1997) (three-year-old sex
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abuse victim’s complaint of pain and statement of who caused the pain w ere
adm issible as both excited utterance and statement for the purpose of medical
diagno sis and tre atmen t).
There fore, this issu e has n o merit.
III.
The Defendant’s next issue is whether the trial c ourt er red wh en it
neglected to include the lesser included offense of child abuse in its charge to the
jury. The jury was given an instruction for the charge of aggravated child abuse.
The Defendant argues that the crime of child abuse is a lesser included offense
of aggra vated ch ild abuse and sh ould ha ve been charge d in this cas e.
W e agree that ch ild abu se is a lesser included offense of agg ravate d child
abuse. The Defendant re lies upon State v. Howa rd, 926 S.W.2d 579 (Tenn.
Crim. App. 1996), in support of her argument that the trial court committed
revers ible error by failing to charge the jury on the les ser inc luded offens e of ch ild
abuse. However, in Howard , this court recognized the established law that when
the proof shows that either the indicted offense occurred or no offense occurred,
then the trial cour t is not requ ired to charge the lesse r included offense. Howard ,
926 S.W.2d at 586.
At the time of the offense, aggravated child abus e was define d in
Tennessee Code Annotated section 39-15-402 as follows: “(a) A perso n is guilty
of the offense of aggravated child abuse who commits the offense of child abuse
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as defined in § 39-15-401 and: (1) the act of abuse res ults in serious bod ily injury
to the child ;. . . .”
Also at the time of the offense, Tennessee Code Annotated section 39-15-
401 defines child abuse as, “(a) Any person who knowingly, other than by
accidental means , treats a c hild under eighteen (18) years of age in such a
manner as to inflict injury or n eglects s uch a ch ild so as to a dversely a ffect the
child’s hea lth and we lfare is guilty of a Class A misde mean or.”
The indictment in Defendant’s case charged that she did “. . .unlawfully,
knowingly, and other than by ac cidental mea ns, inflict injury upon [victim], a child
under eighte en (18 ) years of age , such act res ulting in seriou s bod ily injury, in
violation of T.C.A. § 3 9-15-402. . . .”
It is clear from both th e alleg ations in the ind ictme nt, and the pro of at trial,
that wh at ma de this particular offense aggravated child abuse, was the serious
bodily injury in flicted upo n the victim .
Tennessee Code Annotated section 39-11-106(a)(33) defines serious
bodily injury as follows:
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(33) “Serious bodily injury” means bodily injury which involves:
(A) A substantial risk of death;
(B) Protracte d unco nscious ness;
(C) Extreme physical pain;
(D) Protracted or obvious disfigurement; or
(E) Protracted loss or substantial impairment
of a function of a bodily member, organ,
or mental facu lty;
The Defendant’s theory at trial, including her testimony, was that the
injuries suffered by the victim were as a result of th e victim ac cidentally fa lling into
the scalding water. As observed in the statute defining aggravated child abuse,
which incorporates the definition of child abuse, an accidental injury is a defense
to the criminal cha rge. There was uncontradicted and uncontested proof at trial
that the victim had a protracted and obvious disfigurement as a result of scarring
from his waist down, that he suffered extreme physical pain, and that the injury
posed a substantial risk of death. While Defendant offered proof to contradict
evidence of how well the victim had recovered, this proof did not contradict the
proof of serious b odily injury.
The Defendant a rgues that proof of bruises on the victim’s chest, back,
face, and whip m arks across h is buttocks requ ired the trial court to charg e the
lesse r includ ed offe nse o f child abuse. She bases this argument on the theory
that the jury c ould b elieve th e burn s were caus ed by a ccide ntal m eans , but co uld
still convict the Defen dant on the lesser included offense of child abuse based
upon the proof of the bruises.
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Howeve r, our rev iew of th e reco rd requ ires us to rejec t Defe ndan t’s
argum ent. Dr. William Belknap, a pediatrician who examined the victim at the
Chattanooga hospital on the night of the incident testified that bruising on the
child was consistent with the restraining type of h old that the medical personnel
thought had o ccurre d durin g the vic tim’s im mers ion into the scalding water.
Specifically, the doctor testified:
An imme rsion injury a ppeara nce taken together with bruising and
also in addition noting that the knees were flexed, the legs were
flexed at the knees indicated to us that an individually clearly had
held the child som ewhere about the trunk and actually had dipped
the child in the scalding water to achieve this kind of an inju ry and
we felt most compelled to make that conclusion based on the
observation of the bruising.
Also, Dr. Belknap noted that the bruising about the victim’s face was most
consistent with a restraining type of hold necessary to immerse som eone in to
scalding water. The sm aller bruises were approxim ately the siz e of fingertip s.
W hile it is not clear from the record how the whip marks across the victim’s
buttocks would have been caused by the immersion of the victim into the bathtub,
we note there was no proof in the record by circumstantial or direct evidence that
Defendant had caused the whip mark bruising on the victim’s buttoc ks. Th e only
proof in the re cord re gardin g the c ause of the w hip mark bruising on the buttocks,
including the Defend ant’s testimony, was that her husband had whipped the child
with a belt a day or tw o before the child w as burn ed in the w ater. The Defendant
also offered proof that the other bruisin g on th e child was a s a res ult of the child
accid entally falling in the bathroom on an earlier occasion and from the child
poss ibly being struck by ano ther ch ild at an ove rnight chu rch related “lock-in.”
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The Defendant concluded her direct testimon y by stating the entire incident was
an acc ident, and she wo uld do no thing to hu rt any of he r children.
In her argument on this issue, the Defendant wants to focus on some
injuries, the bruises, and separate them for consideration from the burn injuries.
The State’s proof was that all the bruises, except for the whip marks on the
buttocks, were consistent with a restraining hold by the perpetrator who
immersed the child into the hot water. There is no proof that the Defendant
herse lf inflicted the whip marks on the buttocks area. The Defendant’s proof was
that bruising on the buttocks was caus ed by th e Def enda nt’s husband, and other
bruises w ere not c aused by the De fendan t, but by acc idental m eans.
In the case sub judice under the proof presented at trial, the Defendant
could be guilty of the greater offense of aggravated child abuse, or no offense at
all. In such s ituations, it is no t error for the trial court to refuse to charge the
lesser offense. Wh itwell v. State, 520 S.W .2d 338 , 344 (T enn. 19 75); State v.
Atkins, 681 S.W.2d 571, 577 (T enn. C rim. App . 1984), cert. denied, 470 U.S.
1028 (1 985).
Accord ingly, this issu e is withou t merit.
IV.
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The Defe ndan t’s fourth issue is whether the trial court abused its discretion
when it refused to grant D efendant’s m otion for a mistrial after four jurors w ere
allowed to use the telephone during the course of the jury’s deliberations. The
jury began deliberations at approximately 3:30 p.m. During the supper break, at
around 7:50 p.m., a few of the jurors w anted to make calls to m ake arra ngem ents
for staying over another night. The jury was sequestered.
In Gonz ales v. Sta te, 593 S.W.2d 288 (Tenn. 1980), our supreme court
stated:
In Hines v. State, 27 Tenn. 597 (1848), the “settled law”
applicable to jury separations was stated as follows:
“The princip les laid down in these cases are, 1st, that
the fact of separation having been established by the
prisoner, the possibility that the juror has been
tampered with, and has received other impressions
than those derived from the testimony in court, exists,
and prima facie the ver dict is vic ious; but, 2d , this
separation may be explained by the prosecution,
showing that the juror ha d no co mm unication with other
persons, or that such communication was upon
subjects foreign to the trial, and that, in fact, no
impressions other than those drawn from the
testimony, were made upon his mind. But, 3d, in the
absence of such explanation, the mere fact of
separation is sufficient ground for a new trial.” 27
Tenn. at 602.
Gonzales, 593 S.W .2d at 291 . This passag e of Gonzales was also cited with
approval in State v. Furlough, 797 S.W.2 d 631, 645 (Tenn. Crim . App. 1990 ).
After the State meets its affirmative burden that no pre judice oc curred, a
harmless error ana lysis is perm itted. Furlough, 797 S.W .2d at 645 ; Gonzales,
593 S.W.2d at 293.
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The Defenda nt orally moved for a mistrial imm ediately after the jury
returned with the ver dict, at about 8:10 p.m., and a hearing on the matter was
held immediately. The officers who had taken the jurors to make their phone
calls testified. Deputy Sheriff Mel Matthe ws testified that the juro rs wante d to
make phon e calls to make arrangements for the night. He was in the room while
they were calling, but did not hear any portions of the conversations. One of the
court officers, Tammy Turner, also testified at the hearing. The phone the jurors
used was at her desk. On direct examination by the Defendant, she stated that
two women and two men made the calls. During cross-examination by the State,
she testified that she heard the whole conversations, and “Everyone said I need
you to bring clothes, put ‘em in my car, I don’t know when I’ll be home, bye.” On
redirect, the officer stated that she did not know what was b eing s aid on the other
end of the te lepho ne co nvers ations . Sheila Johnson, another court officer, stated
that what the previous two witnesses had testified to was the same as her
recollection of the events. On cross-examination by the State, she stated that the
conversations were very short, and she did n ot see the jurors arg uing with
anyone. The trial court ruled, “I do not find that there’s been anything impro per.
I don’t find any prejudice to the defendant as far as th e activitie s of the jury. I’ll
overrule th e motio n.”
In making its ruling, the trial court use d an erro neous test to consider the
Defe ndan t’s motio n for mistrial. As stated above in Gonzales, once there has
been a jury separation during sequestration, and in this case during the jury’s
deliberations, the possibility that the juror has been tampered with and received
impressions other than those derived from the testimony exists and the verdict
is prima facie “vicious.” However, the prosecution should be allowed the
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opportu nity to show that all of the communications to each juror were upon
subjects not involving the trial and that no impressions other than those drawn
from the tes timon y were mad e upo n the ju ror’s mind. If there is an absence of
such explanation, the mere fact of the separation is sufficient grounds for granting
the motion for a new trial. Gonzales, 593 S.W.2d at 291 (quoting Hines v. State,
27 Te nn. 597 , 602 (18 48)).
In this case the jury separation occurred only a few moments before the
jury returned with its verdict. After the jury reported its verd ict, the trial court
dismissed the jury. Defendant’s counsel prom ptly ma de the motio n for m istrial,
indicating that he had brough t the poss ibility of jury separation to the attention of
the court a few moments before and had intended to have a hearing on the
record p rior to the jury re turning its ve rdict.
The trial court, as stated above, issued its ruling after the Defendant had
put on her proof showing a separation of the jury, but based its ruling upon an
improper standard. The State is entitled to offer whatever proof which may be
availab le to show that an y comm unications m ade to the jurors during the phone
conversations were u pon m atters n ot perta ining to the trial, a nd tha t the juro rs did
not obtain any im pressions oth er than those d rawn from the testimony. Even if
we suspe ct that thos e peop le who sp oke with the jurors did not speak of matters
pertaining to the trial, or make any impressions upon the jurors which affected the
verdict, we are unable to make such an assumption under the mandates of
Gonzales.
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Therefore, it is necessary for the judgment to be vacated and this matter
remanded to the tria l court s olely for an evidentiary hearing and decision by the
trial court on the issue of jury separation in a manner consistent with this opinion.
If the trial court finds that all of the jurors’ communications were on su bjects
foreign or upon subjects not pertaining to the trial and that no impressions were
made upon the jurors in reaching the verdict other than the proof heard at trial,
and after making this determination that no prejudice occurred to the Defen dant,
the judgment shall be reinstated. Absent such a finding by the trial court, the trial
court shall gran t the Defe ndant a new trial. The Defendant can appeal from an
adverse decision on this issu e.
V.
The Defe ndan t’s final issue is whether the trial court erred by imposing a
senten ce of ten (1 0) years. When an accused challenges the length, range, or
the manner of service of a sentence, this court has a duty to conduct a de novo
review of the sentence with a presumption that the determinations made by the
trial court are corre ct. Ten n. Co de An n. § 40 -35-4 01(d) . This p resum ption is
"conditioned upon the affirm ative showing in the record that the trial court
considered the sente ncing princip les an d all relevant fac ts and circ umsta nces."
State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the
presentence report; (c) the princip les of sen tencing a nd argu ments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
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involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement
that the defenda nt made o n his own be half; and (g) the pote ntial or lack of
potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,
and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and principals set out under the sentencing law, and
that the trial court's findings of fact are adequately supported by the record, then
we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
A.
The Defendant first argues that the trial court erred when it used essential
eleme nts of the crime as enhancing factors. The Defendant argues that
enhancement factor (4 ), the victim was p articula rly vulnerable because of age or
physical or mental disability, factor (5), the defendant treated or allow ed the victim
to be treated with exceptional cruelty, and factor (6), personal injuries inflicted
upon the victim were p articula rly great, are all inherent in the offense, and cannot
be used to enhance the Defendant’s sentence. Tenn. Code Ann. § 40-35-114(4), (5) & (6) .
The statute under which the Defendant was convicted provides that, “[a]
person is guilty of the offense of aggravated child abuse who commits the offense
of child abuse as defined in § 39 -15-4 01 an d :(1) T he ac t of abu se res ults in
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serious bodily injury to the child.” T enn. C ode Ann. § 39-15-402. Tennessee
Code Annotated section 39-15-401 states that child abuse is “[a]ny person who
knowingly, other than by accidental means, treats a child under eighteen (18)
years of age in such a manner as to in flict injury or neglects such a child so as
to advers ely affect the child’s hea lth and we lfare.”
W e first add ress e nhan cem ent fac tor (4), th e victim was p articula rly
vulner able because of age or physical or mental disab ility. Our supreme c ourt
has stated that this enhancement factor, “relate[s] more to the natural physical
and men tal limita tions o f the victim than merely to the victim’s age.” State v.
Adams, 864 S.W.2d 31, 35 (Tenn. 1993 ). The refore , factor (4 ) is not in heren t in
an offense based on the age of a victim. In State v. A ndrew J ohnso n, III, No.
02C01-9304-CR-00050, Shelby County (Tenn. Crim. App, Jackson, filed April,
20, 1994), perm. to appeal denied, (Tenn. 1994), the defendant was convicted
of the ag grava ted rap e of his four-year-o ld daug hter. This court held that factor
(4) applied because the four-year-old was home alone and in the sole care of the
defendant when the crime occurred. The court went on to say, “[i]t would be
ludicrous to say that she was capable of res isting the assault of he r adult father.
There was no one in the house or oth erwise available to h elp her.” Johnson, slip.
op. at 4. Th e victim did testify in Johnson, but this cou rt stated tha t it was with
extreme difficulty.
The Supr eme Cour t of Te nnes see re cently a ddres sed th is issue a gain in
State v. Poole , 945 S.W .2d 93 (Ten n 1997). The court reiterated the requirement
that the State has the burde n of pro ving a v ictim’s lim itations caus ing the victim
to be particu larly vulnerable and cited Adams in support thereof. The supreme
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court also held the trial court m ust make factual findings whe ther the evidence
with regard to the victim’s age demonstrated an ability to resist the crime,
summ on help , or testify at a late r date. Poole , 945 S.W .2d at 96.
In Defendant’s case, the trial court noted that the victim was three (3 ) years
old at the time of the offense and discussed case law in Tennessee which speaks
in terms of youthful age precluding a victim from resisting or calling for help or
being capa ble of testifying. The trial court specifically referred to Adams among
other cases in determ ining that this enhan cemen t factor applied. The record
reflects that the victim was left alone with the Defendant, his step-mother, and
that the offense occurred during a time period when the victim’s father was away
from the home at work. There was no one present to help the victim and the
victim was u nable to resis t the ab use in flicted u pon h im by the Defen dant. W e
find that this enhancement factor was appropriately applied by the trial court and
that the trial court made sufficient findings in the record to support application of
this enha ncem ent factor.
Regarding factor (5), that the Defendant treated or allowed the victim to be
treated with exc eption al cruelty during the commission of the offense, the trial
court relied upon the fact that the victim was forcibly held in extremely hot water
to suppo rt application of this enh ancem ent factor. On appeal, the State relies
upon evidence of bruises on the victim’s face and bottom, and well as the burn
injuries in support of application of this enhancement factor. However, when the
very facts which caused the crime to be aggravated under the law are also used
to supp ort the fin ding of “exceptional cruelty,” our court has held that the
enhancement factor cou ld not be a pplied. Mann ing v. State, 883 S.W.2d 635,
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639 (Tenn. Crim. App. 1994). Therefore, we agree with Defendant that
enhancement factor (5) is not applicable. Likew ise, proof of serious b odily injury
also constitutes proof of particularly great injury and enhancement factor (6)
shou ld not have been applied. State v. Jones, 883 S.W.2d 597, 602 (Tenn.
1994); State v. Crowe, 914 S.W .2d 933 , 939-40 (Tenn . Crim. A pp. 199 5).
The State arg ues tha t application of enha ncem ent factor (10), that the
Defendant had no hesitation about committing a crime when the risk to human
life was high, is applicable in this case. We respectfully disagree. There was
proof in the record from a physician who treated the child that extensive burns on
the victim’s body were potentially fatal. However, “a substantial risk of death ” is
one of the definitions of “serious bodily injury.” Tenn. Code Ann. § 39-11-
106(a)(33). A fair review of the record clearly shows that proof of “a substantial
risk of death” was one of the factors relied upon by the State in proving “serious
bodily injury” to sustain a conviction of aggravated child abuse. We therefore
conclude that factor (10) is an essential element of the offense as charged in the
indictment and should not be included as an enhancement factor. We find that
only enh ancem ent factor (4 ) applies to the Defe ndant’s s entenc e.
B.
Defendant argues that the trial court erred by failing to apply the following
mitigating factors from Tennessee Code Annotated section 40-35-113:
(3) Substantial grounds exist tending to excuse or justify
the defendant’s criminal cond uct, thoug h failing to
establish a defen se.
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(8) The defendant was suffering from a mental or physical
condition that significantly reduced his culpability for
the offense; however, the voluntary us e of intoxica nts
does not fall within the p urview of this factor;
(11) The defendant, although guilty of the crime, committed
the offense unde r such unus ual circ ums tance s that it is
unlike ly that a sustained intent to violate the law
motivate d his con duct;
(12) The defendant acted under duress or under the
domination of another person, even though the duress
or the domination of another person is not sufficien t to
constitute a defense to the crime;
(13) Any other fa ctor co nsiste nt with th e purp oses of this
chapte r.
[Defendant urges her lack of a prior criminal record,
attendance at church, and other “good character
evidence” subm itted at th e sen tencin g hea ring wo uld
make this mitigatin g factor ap plicable.]
W e agree with the State and the trial court that factors (3), (8), (11), and
(12) do not apply in this case. Actually, the record is devoid of any proof
whatsoever to support any of these mitigating factors. The trial court heard the
testimony of all of the witnesses and found that the only “catch-all” mitigating
factor under (13) which might be applic able w ould be the fact that the Defendant
does not have a prior criminal record. How ever, in this particular case, the trial
court h eld tha t this fac tor sho uld be given little weight in senten cing De fendan t,
and we agree.
The trial court specifically found that any one of the enhan cemen t factors
it believe d were applic able would support a sentence above the minimum
presum ptive sentence of eight (8) years, in light of the fact that the one mitigating
factor wh ich was a pplicable should b e given ve ry little weight.
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Having found that one (1) enhancement factor is applicable, and that one
(1) mitigating factor is ap plicable, bu t that the mitigating factor should be given
very little weight, and being in agreement with the trial court that any one of the
enhancement factors found by that court shou ld be a fforded great w eight in this
particular case, we conclude that the record supports the sentence imposed by
the trial cou rt. Therefo re, this issue is without m erit.
CONCLUSION
W e vacate the judgment and remand this case to the trial court solely for
an evidentiary hearing and decision by th e trial court on the issue of jury
separation in accordance with this opinion. All other issues raised by the
Defen dant are overruled .
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOSEPH M. TIPTON, Judge
___________________________________
JERRY L. SMITH, Judge
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