IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 20, 2019 Session

STATE OF TENNESSEE v. STEPHANIE BROWN

Appeal from the Circuit Court for Sevier County

No. 21718 Rex H. Ogle, Judge

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No. E2019-00223-CCA-R3-CD

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A Sevier County Jury found Defendant, Stephanie Brown, guilty of reckless homicide. 

The trial court imposed a sentence of four years to be served in confinement. On appeal, 

Defendant raises the following issues: (1) whether the trial court properly admitted 

testimony about the hydrostatic or float test performed on the baby’s lungs; (2) whether 

the trial court properly admitted Defendant’s confession and denied her motion to dismiss 

the indictment; (3) whether the evidence was sufficient to support Defendant’s conviction 

for reckless homicide; and (4) whether the trial court properly sentenced Defendant. 

Upon reviewing the record and the applicable law, we affirm the judgment of the trial 

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD 

WITT, JR., and D. KELLY THOMAS, JJ., joined.

Edward C. Miller, District Public Defender, Dandridge, Tennessee, for the appellant, 

Stephanie Marie Brown.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant 

Attorney General; James B. (Jimmy) Dunn, District Attorney General; and Tim Norris, 

Assistant District Attorney General, for the appellee, State of Tennessee.

06/25/2020
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OPINION

BACKGROUND

Pretrial Daubert Hearing

Defendant filed a pretrial “MOTION REQUESTING DAUBERT HEARING” 

seeking to exclude Dr. Amy Hawes’ testimony concerning the “float” test that was 

performed on the victim’s lungs and to hold a hearing pursuant to Daubert v. Merrell 

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to determine the relevance and 

reliability of Dr. Hawes’ testimony.

At the pretrial hearing, Dr. Hawes testified as an expert in forensic pathology. She 

explained that one of the tests that forensic pathologists are trained to conduct to 

determine whether a child is stillborn or born alive is called the flotation (float) or 

hydrostatic test. She said that the float test is a very simple test during which the lungs 

are removed and placed in a bucket or container of water. If the lungs float, it can be an 

“indicator in certain circumstances of live birth.” If the lungs do not float, “it can be an 

indicator that the child was potentially stillborn.” Dr. Hawes further testified: “There are 

some caveats to the interpretation of the hydrostatic test, but in the simplest of terms, 

that’s what it means.” Dr. Hawes performed the float test in this case, and her autopsy 

findings on the baby girl were indicative of a live birth and that the baby died of 

asphyxia. In determining that the baby was born alive, Dr. Hawes found that her lungs 

were fully inflated and floated in water. 

Dr. Hawes agreed that there are circumstances when the float test is less reliable 

than other tests, such as when a child is decomposed. In that circumstance, the gas 

produced causes the lungs to float which in turn causes a potential false positive result. 

Dr. Hawes noted that mouth-to-mouth resuscitation may also cause a false positive. She 

testified that there are also false negatives with the float test where a child is documented 

to have been born alive but their lungs sink during the float test. Dr. Hawes testified that 

she did not find any type of decomposition present in the baby in this case, and to her 

knowledge no mouth-to-mouth resuscitation was performed on the child. As far as she 

knew, chest compressions would not affect the validity of the float test. Dr. Hawes 

explained that a false positive means that the lungs float on a child that was actually 

stillborn. A false negative means that the lungs sink on a child that was live born.

Dr. Hawes testified that the float test has been around for “a long, long time.” She 

noted that in medical literature “there are multiple articles about discussing its usefulness 

and its limits and in what context it must be interpreted.” Dr. Hawes was familiar with a 

study from the International Journal of Legal Medicine published in 2013 titled, “Is the 

lung floating test a valuable tool or obsolete? A prospective autopsy study.” She 
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testified that the study was done on infants who were autopsied in which the float test 

was performed. The findings of the study were summarized as follows:

The study proves that for contemporary medicine, the lung floating test 

is still a reliable indicator of a newborn’s breathing. As there was no 

false-positive result, [. . .] a wrongful conviction for killing a newborn 

just on behalf of the floating test cannot be expected. On the other hand, 

the study shows a negative floating test result is not proof for a stillbirth. 

Summing up the study allows the advice to still perform the lung floating 

test in every medicolegal investigation with the uncertainty, if a newborn 

has breathed or has not. The known restrictions, as well as study’s 

findings, must be taken into account, however.

Dr. Hawes noted that 194 stillborn babies were tested in the study, and none of the lungs 

floated indicating a false positive result. Fourteen additional babies in the study were 

verified to have been born alive and lived for two days up to ten months. The lung 

floating test was positive in ten of fourteen cases. Dr. Hawes testified: 

Four times it showed a negative result, although life and breathing had 

been reported by medical staff. In all of these four cases, the whole lung, 

as well as the separated left lung and right lung and single pieces from 

both sides sank; no piece was able to swim. These four newborns were 

born prematurely between the 27th and 35th week of pregnancy.

Dr. Hawes agreed that the four cases indicated a false negative result, a twenty-nine 

percent rate of error. She asserted that false negatives are not an issue in Defendant’s 

case. 

Dr. Hawes testified that she has been employed by three different medical 

examiner’s offices during her career, and they all employed the float test to determine 

whether an infant was born alive or stillborn. Dr. Hawes also identified the “Handbook 

of Forensic Pathology” produced by the College of American Pathologists. She noted 

that the book also discussed the float test as one test used in the context of an overall 

investigation to determine live birth versus stillborn. Dr. Hawes testified that she had not 

performed the float test very often because she does not often investigate whether a live 

birth occurred. 

On cross-examination, Dr. Hawes agreed that the float test has caused controversy 

and discussion. She further agreed that the float test is not perfect and that it has 

limitations and must be interpreted in the appropriate context. Dr. Hawes acknowledged 

that the float test is a simple test, “[b]ut just because the lung floats doesn’t mean that I’m 

going to state to a medical certainty that the child was born alive.” Likewise, Dr. Hawes 
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testified that she would not say that a child was stillborn solely because the lungs sank. 

She reiterated that “it has to be taken in the context of all the other findings.” 

Dr. Hawes acknowledged that she did not follow the steps recommended by Chris 

Milroy, a forensic pathologist. in his publication for conducting the float test. Rather, she 

relied on the “Handbook of Pathology, Second Edition.” Dr. Hawes testified that she 

performed the test the way that she was trained at Vanderbilt University which was the 

current recommended way. Dr. Hawes was also familiar with a book titled “Knight’s 

Forensic Pathology.” She acknowledged that an article in the textbook indicates that 

there are too many false positive and false negative results to allow the float test to be 

used in a criminal trial. The article concluded that is it “pointless to apply the hydrostatic 

[float] test, which will impair the material for other and more important investigations.” 

Dr. Hawes acknowledged that the article also indicated that attempts at 

resuscitation such as mouth-to-mouth, external cardiac massage, and the administration 

of oxygen “completely negate any of the already fragile tests for respiration in a newborn 

infant.” Dr. Hawes pointed out that chest compressions were done in the present case, 

and she did not consider that to be external cardiac massage because artificial respiration 

was not given. She again stated: “[D]espite its limitations, in my training and experience 

and based on my reading of the medical literature, is that you still do the [float] test, but 

you interpret the findings in context of everything else you know about the scene 

investigation and autopsy.” Dr. Hawes agreed that movement of the baby’s body by 

others could potentially cause air to enter the baby’s lungs. Dr. Hawes also 

acknowledged a case report by Greg Davis, a forensic pathologist, in which Dr Davis 

stated that the float test was unreliable in unattended births. She interpreted Dr. Davis’

statement to mean that there are restrictions to the interpretation of the float test and that 

he was discussing the results of the test as applied to his particular case. 

Anna Mooney testified that she never heard the baby cry before learning that 

Defendant had given birth in the bathroom. She said that the baby was in a plastic bag 

with towels on top. She removed the towels and performed chest compressions with two 

fingers on the baby for approximately thirty seconds. Ms. Mooney testified that Matthew 

Mooney then took the baby, who was still in the bag, and placed her in a box.

Dr. Thomas A. Andrew, a forensic pathologist at White Mountain Forensic 

Consulting Services, testified as an expert in forensic pathology. He is also a boardcertified pediatrician. He reviewed the autopsy performed in this case, the preliminary 

hearing testimony, an interview, and pictures and microscopic slides of the baby’s lungs. 

He disagreed with Dr. Hawes’ findings that the baby was born alive. He found the float 

test particularly troubling and that it should not be relied upon. He testified that the float 

test has been used regularly since the 15th century, and “[i]t is a staple in everybody’s 

training. It is almost expected in the conduction of these autopsies.” Dr. Andrew 

asserted that the float test has yielded both documented false positive and false negative 
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results when the test is applied. He testified that the test is not as widely accepted in 

Anglo-Saxon countries as it is in Germany and that it “doesn’t have a scientific evidence 

base to back up its reliability.” 

It was Dr. Andrew’s opinion that the chest compressions performed by Anna 

Mooney negated the results of the float test in this case. He noted that the more a body is 

handled, the more air can be introduced into the lungs. Dr. Andrew testified that the 

slides of the baby’s lungs showed that the lower corner of the lungs was not as well 

expanded which to him represented patchy aeration. He also testified that what Dr. 

Hawes referred to as hemoaspiration in the lungs, he would have interpreted as petechiae, 

which can occur in the lungs or under the scalp for any number of reasons including 

birth. Dr. Hawes testified that there was nothing specific in the slides that would “allow 

[him] to opine that the child was born alive without any other possibility[.]” He noted 

that the baby’s lungs looked mottled to him as opposed to fully expanded pink lungs. 

Dr. Andrew testified concerning a British technique used to perform the float test 

where the “pluck,” which consisted of the lungs and heart with the neck organs attached, 

is floated. He said that Dr. Hawes did not use the whole pluck but only used the baby’s 

lungs and air passages. Dr. Hawes testified that the literature is “all over the place” about 

how to float the pluck. He agreed that the pictures of the baby’s lungs in this case 

showed the lungs floating. Dr. Andrew testified that the theory behind the float test is 

that “air is lighter than blood or tissue, and, therefore, the air in the lungs would provide 

the buoyancy . . . to keep those lungs up on the surface. A non-inflated lung would sink 

because it’s heavier. It’s not made buoyant by air.” Dr. Andrew agreed that it is possible 

for an infant to breathe during the birthing process and that petechiae in and of itself is 

not indicative of a live birth. 

On cross-examination, Dr. Andrew clarified that the float test is also generally 

accepted in Anglo-Saxon countries, but it is “hugely controversial” and has been debated 

for many years. Dr. Andrew further testified that the float test is commonly performed 

but “there are a myriad of caveats involved with it that makes it, in the minds of some 

forensic pathologists, relatively unreliable.” He admitted that he had been trained to 

conduct the test. Dr. Andrew noted that Dr. Hawes was correct in pointing out that the 

test must be interpreted against the background of other data, which he agreed is true of 

most tests conducted in forensic pathology. He testified: “It’s a matter of how much 

weight to give it in terms of interpreting what it means in the context of your individual 

case. And I have found and agree with most authors who find it so larded with caveats 

that it is hardly worth the effort.” Dr. Andrew testified as to how he was trained to 

conduct the float test, and he agreed that it was fair to say that forensic scientists are 

trained differently in different schools and in different areas in how to perform the test. 

He agreed that false positive results were at issue in this case. He also agreed that he did 

not find any evidence of putrefaction in this case. 
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Dr. Andrew testified that he was not given Defendant’s statement in which she 

said that she had placed her hand over the baby’s mouth and nose. Dr. Andrew said that 

he did not make any findings concerning that baby’s death and that it was “entirely 

undetermined as to whether or not this baby was live born or still born.” When asked if 

the admission of the float test would substantially assist the jury in this case, Dr. Andrew 

replied: “I think given the unreliability of the [float] test, I think a confused jury would 

not find it very helpful at all.” 

The trial court denied Defendant’s motion and allowed Dr. Hawes to testify 

finding that the testimony concerning the float test met the standards of admissibility 

under Daubert and that if the jury accepted the test as true, accurate, or helpful that it 

“would very much substantially assist the trier of fact.” 

State’s Proof at Trial

Bobby H. Laws, Jr. testified that he and Defendant became romantically involved 

while the two were working together, and Defendant eventually began staying with him 

in the home that he shared with his mother Lisa Mooney, brother Matthew Mooney, and 

sister-in-law Anna Mooney in Kodak. 

On January 13, 2016, Defendant woke up and complained that her stomach was 

hurting, but she refused to see a doctor. Later than night, sometime between 10:00 and 

11:00 p.m., Defendant told Mr. Laws that she was going to take a shower. Mr. Laws fell 

asleep and woke up at 12:30 a.m. because the dog was barking. He did not see 

Defendant, and he got up to look for her. Mr. Laws walked through the house and did 

not see Defendant. Although the bathroom door was shut, Mr. Laws saw a light under 

the door and assumed that Defendant was still in the bathroom. Mr. Laws testified that 

he laid back down in the bed, and Defendant walked out of the bathroom and into the 

bedroom. He said that Defendant told him that she had just given birth to a stillborn 

baby, later determined to be a girl. Mr. Laws testified that he asked Defendant where the 

baby was located, and she said that the baby was still in the bathroom. Mr. Laws testified 

that he got dressed and started his truck while the Defendant walked back into the 

bathroom. 

Mr. Laws said that Defendant eventually walked back into the bedroom and stood 

at the end of the bed. He testified:

And I said, “We need to go to the hospital.” And she kind of just stood 

there. I don’t know if she was in shock or what. She had this, like, 

vague look on her face like she was there physically but not, like, 

mentally there. And I was like - - I said, “We need to go. We need to go 

to the hospital now.” And I said, “Get some clothes on.” And she starts 

- - like, she slowly starts getting her clothes, and I guess she was - - must 
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have been still in shock or something. And after that, it’s kind of a little 

blurry. 

Mr. Laws said that he told Defendant to swaddle the baby in some towels, and he also 

grabbed a box. Mr. Laws testified that he, Defendant, and Matthew and Anna Mooney 

got into the truck with the baby, and Mr. Laws drove them to the LeConte Medical 

Center in Sevierville. Defendant testified that he did not see Defendant again until the 

following day in her hospital room. He did not see his baby daughter again until the 

funeral. Mr. Laws denied that he looked into the bathroom the night that Defendant gave 

birth or that he cleaned the bathroom. He said that Defendant did not need help getting 

dressed after she gave birth or help getting in or out of the truck when they went to the 

hospital. Mr. Laws testified that approximately one to one and a half months before 

Defendant gave birth, he “jokingly” asked her if she was pregnant, and she said no. He 

noticed that Defendant had gained a little weight, and she told him that she thought she 

had a hernia. 

On cross-examination, Mr. Laws testified he was aware that Defendant had 

discussed with her mother whether she might have a hernia. There was also a discussion 

on the day that Defendant gave birth that she did not feel well because she thought that 

she had food poisoning from eating at a restaurant. 

Matthew Mooney testified that he and Anna Mooney were sitting on the couch

watching television late at night on January 13 when Defendant went into the bathroom 

and remained for a long time. At some point, Mr. Laws walked out of his bedroom and 

used the remote to start his truck. Mr. Mooney asked Mr. Laws what was going on, and 

Mr. Laws eventually told him that Defendant had given birth in the bathroom and that the 

baby was dead. Anna Mooney then went into the bathroom to determine what had 

happened. Mr. Mooney later looked into the bathroom and saw the baby on the counter 

in a trash bag. He said that they considered whether to drive the baby to the hospital or 

wait for an ambulance but they chose to drive her to the hospital. Mr. Mooney noted that 

they decided to place the baby in a box so that no one else would see her when they took 

her into the hospital. Mr. Mooney testified that the bathroom was “very, very clean.” 

On cross-examination, Mr. Mooney noted that Defendant did not appear to be 

pregnant, and he had no “clue” that she was pregnant. He agreed that Defendant was a 

quiet person who did not talk to a lot of people. He said that she was normally in Mr. 

Laws’ room when she was in the house. Mr. Mooney testified that everyone was 

thinking “erratically” after learning that Defendant gave birth. 

Anna Mooney testified that she knocked on the door while Defendant was in the 

bathroom and asked to come in, and Defendant said yes. Mrs. Mooney looked down and 

noticed two garbage bags in front of Defendant. She asked Defendant if everything was 

alright, and Defendant told her that she had delivered a stillborn baby. Defendant 
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appeared to be in shock and pointed at the garbage bag. Mrs. Mooney opened the bag 

and found the baby underneath some towels. She attempted to resuscitate the baby by 

doing chest compressions with her two fingers but she stopped after the baby did not 

respond. Mrs. Mooney testified that she then hugged Defendant. She said that Mr. 

Mooney came into the bathroom and took the baby and the other trash bag containing the 

placenta and placed them in a box. Defendant and the baby were then taken to the 

hospital. Once they arrived at the hospital, Mrs. Mooney gave the baby girl, who was 

still in the box, to a nurse who began crying when she looked inside, and the nurse gave

the baby to another nurse. Defendant and the baby were taken to the back, and Mrs. 

Mooney did not see Defendant again at the hospital. Mrs. Mooney admitted that no one 

at the house called 911 after discovering the baby. 

On cross-examination, Mrs. Mooney testified that she had no idea Defendant was 

pregnant. Mrs. Mooney described Defendant as “a really anxious person.” She also said: 

“[Defendant] was really quiet, wouldn’t really talk, and I know she hated big crowds. 

Driving made her nervous.” 

On re-direct examination, Mrs. Mooney testified that Defendant told her at the 

hospital that she was nervous about her cell phone because she had looked up “baby 

stuff.” She said that Defendant was nervous about going to jail because of the phone. 

Dana McIlwain was working as a registered nurse at the LeConte Medical Center 

during the early morning hours of January 14, 2016, when Defendant came into the 

emergency room. She described Defendant as having a “flat effect,” which meant that 

she showed no emotion. 

Detective Maria Cutshaw of the Sevier County Sheriff’s Office was assigned to 

investigate the present offense. She spoke by phone to a nurse at the LeConte Medical 

Center and then drove to the hospital arriving at approximately 3:00 a.m. Detective 

Cutshaw spoke with a nurse at the hospital who briefed her on what happened. Detective 

Cutshaw then spoke to Defendant who was waiting in a room within the emergency 

room. Detective Cutshaw testified that she saw the newborn baby in an adjacent room in 

an Amazon Prime box. She noted that there were two different bags in the box with one 

containing the baby. The placenta was in the other bag. Detective Cutshaw spoke with 

someone from the medical examiner’s office, and it was determined that an autopsy 

needed to be performed on the baby. Detective Cutshaw later went to the Mooney 

residence and spoke with Lisa Mooney. She allowed Detective Cutshaw inside to look 

around and take photographs. 

Detective Cutshaw testified that after reviewing findings from the autopsy report, 

she re-interviewed Defendant on March 22, 2016, at the sheriff’s office. Defendant 

initially denied knowing that she was pregnant before giving birth, and she claimed that 

the baby was not breathing and did not have a pulse when she was born. Defendant 
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eventually admitted that she realized her pregnancy a few weeks before giving birth. She 

then admitted that she killed her newborn baby by placing her hand over the baby’s 

mouth and nose a few minutes after she was born. Defendant said that the baby had 

moved a little and had moved her arm. She told Detective Cutshaw that she did not know 

why she stopped covering the baby’s mouth, but after a few minutes she checked the 

baby’s pulse and found none. She then realized that the baby was dead. Defendant said 

that she placed the baby in one bag and put the placenta in another. She also put the bath 

mat in one of the bags. Defendant said that she sat in the bathroom for a long time and 

then cleaned the room. She asserted that she was in shock. Detective Cutshaw testified 

that a search warrant was executed on Defendant’s cell phone but they were unable to 

obtain any internet browsing history from the phone.

Dr. Amy Hawes is a forensic pathologist at the Knox County Regional Forensic 

Center. She performed an autopsy on the baby girl in this case. Dr. Hawes determined 

that the baby was born at term or near term. She noticed a faint blue contusion around 

the baby’s left eye. Dr. Hawes testified:

So there were several findings of note that taken together, in total, the 

findings led me to believe that this was a live-born infant, and those 

findings included inflated lungs. So the lungs contained air. There was 

petechiae, which is the term for tiny busted blood vessels, and those 

were found beneath the scalp. The term for that is subgaleal. It just 

means beneath the scalp. And there were also petechiae, or little tiny 

busted blood vessels, on the lining of the lung.

When asked how she determined that the baby’s lungs were inflated, Dr. Hawes 

further testified that she relied on direct visual inspection of the lungs, and from sixteen 

years of performing autopsies, she had learned what inflated lungs looked like. Dr. 

Hawes also relied on a microscopic examination of the baby’s lungs. She said that under 

the microscope, the baby’s lungs appeared uniformly inflated and the lungs of a stillborn 

will not appear uniformly inflated. Dr. Hawes testified that the baby had blood in her 

lungs which indicated that she had breathed or had air in her lungs. Additionally, Dr. 

Hawes performed a float test. 

Dr. Hawes summarized her findings in the autopsy report as follows:

[T]he term infant was live-born. There were no blunt trauma injuries, no 

congenital anomalies, which means the body was normally developed, 

and there were no other histologic or microscopic findings to explain 

death. Given the infant was placed in a plastic bag after birth, 

suffocation is the most likely cause of death. Other forms of asphyxia, 

such as smothering, cannot be excluded. 
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Dr. Hawes testified that she was later advised that Defendant admitted to placing her 

hand over the baby’s mouth and nose after birth, which was consistent with her findings 

in the autopsy report. 

On cross-examination, Dr. Hawes testified that the float test is a very simple test 

that “has been around for hundreds of years.” She described the test as follows:

But, in summary, the way I was trained to do it, is when the lungs are 

removed, you place the lungs in a container of water. Some people do it 

both lungs in the same container. Some people separate them. Some 

people do it with the heart still attached. Some people do them 

separately. But you put it in water, or some other liquid, like formalin, 

which is a liquid preservative. And if they float, the lungs float, it could 

be an indicator of a live birth; and if they sink, it can be an indicator of a 

stillbirth.

Dr. Hawes noted that the float test was not a perfect test and could produce both false 

negative and false positive findings. She also testified that “modern medicine agrees that 

we don’t rely on that one test to absolutely decide whether an infant is live-born or 

stillborn. It’s just one test that we are trained to do and one piece of information that we 

use in the context of the overall findings.” Dr. Hawes testified that she based her autopsy 

findings on the totality of “[t]he history, the confession, or purported confession, the 

autopsy findings, and all the other studies.” It was Dr. Hawes’ opinion that the manner of 

death of the baby was homicide.

Defense Proof

Dr. Thomas Andrew, a forensic pathologist, testified that he reviewed Dr. Hawes’

findings but not to determine the baby’s cause of death. He said: “My charge in this case 

was to look at the medical evidence as presented by the autopsy to reach some sort of 

opinion, if possible, as to whether or not the infant was live-born or stillborn.” Dr. 

Andrew noted that a lack of prenatal care and an unattended delivery all increase the 

possibility of stillbirth in a pregnancy. 

Dr. Andrew disagreed with Dr. Hawes’ findings that the baby was born alive. He 

did not believe that the petechiae he observed in the baby rose to “the level of allowing a 

determination of live birth.” He noted that the petechia, which was mainly on the surface 

of the baby’s lungs, could appear passively “just as a matter of pressure passing through 

the birth canal, and underneath the scalp, may well be caused some - - in some cases by 

simply reflecting the scalp during autopsy.” Dr. Andrew reviewed the images of the 

baby’s lungs and noted that the lungs were “relatively mottled” which meant that there 

were alternating areas of red and pink. To Dr. Andrew this meant that the lungs were 

incompletely or irregularly aerated or not fully inflated, and “[t]he infant had not taken 
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robust breaths or anything of that nature.” Dr. Andrew testified that partial inflation of 

the baby’s lungs could have been caused by “decomposition or postmortem putrefaction 

of tissue” or some attempt to resuscitate the baby by mouth-to-mouth resuscitation or 

chest compressions. He also noted that “handling of the body of an infant after birth can 

artificially introduce various amounts - - or varying, I should say, amounts of air into the 

respiratory tract.” Dr. Andrew noted that approximately ten people handled the baby’s 

body prior to the autopsy.

From the photographs of the baby’s lungs, Dr. Andrew disagreed with Dr. Hawes’

finding that the victim’s lung was a well-inflated lung. Dr. Andrew further opined: “I 

have no reason to doubt that there was hemoaspiration, but on the basis of that image, 

from that part of that lung against the whole, does not allow me to reach a conclusion that 

this was a live birth.” Dr. Andrew testified that he had training in conducting the float 

test. He noted that the test was a very old one which dated back to the 15th century. Dr. 

Andrew noted that there have been many modifications of the test to overcome known 

deficiencies of the test which led to false negatives and false positives. According to Dr. 

Andrew, the float test should be “used with great caution, and as Dr. Hawes has pointed 

out, in conjunction with a lot of other information. In and of itself, it is not a reliable 

guide as to live-birth versus stillbirth.” 

On cross-examination, Dr. Andrew testified that he reviewed the autopsy report, 

the slides, and the ancillary studies in this case. He agreed that in conducting an autopsy, 

it is important to rely on case histories and witness statements, not solely on medical 

findings. He acknowledged that a mother’s statement indicating that she had seen her 

baby’s arms move and then placed her hand over the baby’s nose and mouth would 

“certainly have to be considered.” Dr. Andrew agreed that he was not saying that the 

baby was stillborn. He further testified: “I think the medicine as presented by this 

autopsy is insufficient to explain live birth versus stillbirth regardless of the placement of 

either the body or a breathing, albeit depressed infant in a plastic bag. The medicine 

can’t overcome the ambiguities of the findings here.” 

Donnie Brooks testified that Defendant worked for him for approximately one 

year when he was an assistant manager at Cracker Barrel. He said that Defendant had 

some issues with anxiety, and “large crowds would bother her somewhat” and cause her 

to have shortness of breath. Cheryl Eakin also worked with Defendant at Cracker Barrel 

for approximately one year, and they later worked at Pottery House together. She last 

saw Defendant approximately one month before Defendant gave birth, and she had no 

suspicions that Defendant was pregnant. Ms. Eakin testified that Defendant was a 

friendly person but very anxious. 

April Martin, Defendant’s grandmother, testified that Defendant was an introvert, 

and she had anxiety but did not take medication for it. She noted that Defendant had 

always maintained employment and was not a troublemaker. On cross-examination, Ms. 
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Martin was not certain that Defendant had been diagnosed with anxiety, “[s]he just 

exhibited all of the symptoms.” 

Dr. Laura Berardi is an OB-GYN at LeConte Medical Center who treated 

Defendant on January 14, 2016. Defendant told Dr. Berardi that she delivered a stillborn 

baby and had only thought that she had a hernia. Dr. Berardi noticed that Defendant had 

a “very flat effect” and a “kind of vacant appearance.” Her notes indicated that 

Defendant was very pale when she first arrived at the emergency room and could not give 

her name. Dr. Berardi said that Defendant was able to answer some of her questions but 

was not very detailed. She was concerned about Defendant’s mental status and consulted 

with a social worker due to Defendant’s lack of any emotion. Dr. Berardi further asserted 

that “you don’t see that after you deliver a dead baby.” On cross-examination, Dr. 

Berardi described Defendant as “[n]ot very forthcoming and no emotion” when she 

responded to Dr. Berardi’s questions. 

Samantha Brown, Defendant’s mother, testified that Defendant was an introvert, 

and she began complaining that she felt anxious and stressed at work. Defendant told her 

that she would start sweating and “freak out.” Ms. Brown testified that she received a 

text message from Defendant at approximately 11:00 a.m. on January 14, 2016, that read: 

“Mom, I’m at the hospital. The strangest thing happened last night. I delivered a dead 

baby.” Ms. Brown testified that Defendant never told her that she was pregnant, and 

Defendant did not appear to be pregnant. She said that Defendant was wearing the same 

size clothing at the time that she gave birth as she always wore.

Ms. Brown testified that she and Defendant had both discussed that Defendant had 

a hernia, and Defendant told her that she aggravated the hernia at work. The day before 

Defendant gave birth, Ms. Brown had decided that she was going to take Defendant to 

the emergency room. She called Defendant at approximately 4:00 p.m. about going to 

the hospital, and Defendant said that she was very sick due to food poisoning. Ms. 

Brown testified that she visited Defendant in the hospital after she gave birth, and 

Defendant was in shock. She admitted that she told police that Defendant had no 

emotion, and that “[i]t was just as if she was telling us what she had made for dinner the 

night before.” 

Dr. Bruce Frumpkin, a clinical and forensic psychologist, testified that he 

evaluated Defendant’s “psychological vulnerabilities as it relates to other people to see 

whether she is at a higher risk than the average person of giving a false confession.” He 

clarified that he would not be offering an opinion as to whether or not Defendant gave a 

false confession. Dr. Frumpkin testified as to the five reasons why someone would 

falsely confess to a crime that they did not commit. He noted that false confessions are 

based upon individual psychological vulnerabilities and interrogation tactics, and “the 

combination of both acting together.” On March 17, 2017, Dr. Frumpkin conducted an 

evaluation of Defendant in his office in Philadelphia. He also reviewed the audio and 
- 13 -

video recordings of Defendant’s interrogation with law enforcement and the transcripts of 

the recordings, various court-related filings and motions, Defendant’s school and 

employment records, and information from another forensic psychologist hired by 

defense counsel to evaluate Defendant. He also reviewed Defendant’s medical records. 

Dr. Frumpkin testified that he saw Defendant for a total of six hours during her 

evaluation, which included some self-administered testing time. He stated that Defendant 

is more vulnerable than the average person to give a false confession. Dr. Frumpkin 

testified that testing showed Defendant “functions at the low average to average range of 

intelligence overall. So her intellectual functioning in particular is not necessarily a risk 

factor, but what is a risk factor is her concentration and memory.” Dr. Frumpkin testified 

that Defendant is very anxious, depressed, socially avoidant, and hypersensitive to 

sounds. He noted that a very anxious person is going to have a harder time with memory 

and concentration. Dr. Frumpkin pointed out that Defendant was in a state of shock at 

the emergency room, and she asserted to law enforcement that her memory as to what 

happened was not good because she was upset. He said: “So that becomes a major risk 

factor for someone succumbing to suggestions from law enforcement, you know, that the 

events did not happen the way you say they happened.” Dr. Frumpkin testified that at 

some point, Defendant began to doubt her own memory as to what happened and began 

to “incorporate into her memory what law enforcement is telling her is what really 

happened.”

Dr. Frumpkin diagnosed Defendant as having a generalized anxiety disorder and 

avoidant personality disorder. He agreed that she was also having acute stress disorder at 

the time that she gave birth, and it “would have been very hard for her to be able to 

encode information in her memory at the time she was having this acute stress 

disorder[.]” Dr. Frumpkin testified that this would have caused Defendant to have 

“patchy memory” of what really happened at the time of the baby’s birth. 

On cross-examination, Dr. Frumpkin testified that Defendant was the first to 

mention suffocation during her interview with Detective Cutshaw. That was after 

Detective Cutshaw told Defendant that the baby was born alive and then died of 

asphyxiation. Dr. Frumpkin testified that “after a number of denials, eventually 

[Defendant] gave an explanation of how the baby could have died, but initially she 

rejected having anything to do with the baby’s death, saying it was born already dead.” 

Dr. Frumpkin admitted that Defendant told the nurses at the hospital that she cleaned the 

bathroom after giving birth because it “looked like a crime scene.” He agreed that 

Defendant’s judgment and common sense were poor. 
- 14 -

ANALYSIS

I. Admission of Testimony about the Hydrostatic, a/k/a Float, Test

Defendant argues that the trial court erred by admitting testimony concerning the 

hydrostatic, a/k/a float test which was used in part to determine whether the baby was 

born alive or stillborn. She contends that the float test is not reliable or scientifically 

valid. We disagree.

Expert testimony, like other evidence, must be relevant in order to be admissible.

See Tenn. R. Evid. 402 (“Evidence which is not relevant is not admissible.”). Relevant 

evidence is defined as any 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. This court reviews 

a trial court’s decisions concerning the admissibility of expert evidence under an abuse of 

discretion standard, and will reverse a decision only “‘when the trial court applied 

incorrect legal standards, reached an illogical conclusion, based its decision on a clearly 

erroneous assessment of the evidence, or employed reasoning that causes an injustice to 

the complaining party.’” State v. Parker, 350 S.W.3d 883, 897 (Tenn. 2011) 

(quoting State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)).

The admission of expert testimony is governed by Tennessee Rule 

of Evidence 702, which provides that “[i]f scientific, technical, or other specialized 

knowledge will substantially assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 

702. “The witness may acquire the necessary expertise through formal education or life 

experiences.” State v. Reid, 91 S.W.3d 247, 302 (Tenn. 2002) (citing Neil P. Cohen et 

al., Tennessee Law of Evidence § 7.02[4] (4th ed.2000)). “However, the witness must 

have such superior skill, experience, training, education, or knowledge within the 

particular area that his or her degree of expertise is beyond the scope of common 

knowledge and experience of the average person.” Id. The determining factor is 

“whether the witness’s qualifications authorize him or her to give an informed opinion on 

the subject at issue.” State v. Stevens, 78 S.W.3d 817, 834 (Tenn. 2002) (emphasis 

omitted).

In McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997), our 

supreme court recited several nonexclusive factors that a court may consider in 

determining the reliability of scientific testimony, including:

(1) whether scientific evidence has been tested and the methodology 

with which it has been tested; (2) whether the evidence has been 

subjected to peer review or publication; (3) whether a potential rate of 
- 15 -

error is known; (4) whether . . . the evidence is generally accepted in 

the scientific community; and (5) whether the expert’s research in the 

field has been conducted independent of litigation.

Brown v. Crown Equipment Corp., 181 S.W.3d 268, 274 (Tenn. 2005) (quoting 

McDaniel, 955 S.W.2d at 265). Not all expert testimony will “fit” with these factors, 

thus the exact considerations that may be appropriate will vary depending upon “the 

nature of the issue, the witness’s particular expertise, and the subject of the expert’s 

testimony.” Brown, 181 S.W.3d at 277. Our supreme court has stated, “Where the 

expert’s testimony is otherwise reliable and experts in the field would reasonably rely 

upon such evidence, concerns are more properly addressed through vigorous crossexamination rather than exclusion of the testimony.” State v. Scott, 275 S.W.3d 395, 409 

(Tenn. 2009).

The trial court, in determining that testimony concerning the float test was 

admissible, noted that the testimony was troublesome. The trial court concluded:

And as we sit here, I certainly wish there was a better test. Now, 

granted, this test is not conclusive of anything. The Court is not here - -

and everybody gets their hackles up - - but I’m not here to determine 

what was true and what was not true. That’s for the jury to determine. 

This is a classic case of experts in disagreement, and I understand that. 

And, you know, we’ll see what happens. But this is a classic case of the 

weight as opposed to the admissibility, because I do think that based 

upon the testimony that this Court has heard that the test meets the 

standards of admissibility under Daubert and under McDaniel. And 

specifically - - I mean, you know, would it substantially aid the trier of 

fact? It would appear to me that if they accept it as true, the test as 

accurate, or the test as helpful, that it would very much substantially 

assist the trier of fact. 

And, you know, I can understand and I can see where there is a great 

debate on this and there’s a lot to be said about it, and the question - - but 

based upon what I’ve heard, this test is used. It’s been debated, heavily 

debated. Some say it’s the greatest thing since sliced bread, and the 

other one says it’s junk science. I mean, that’s - - you know, so that’s 

why you have experts who testify and give their opinions, and that’s why 

the jury has to decide if they rely upon those expert opinions and what 

weight, if any, they choose to give it.

And so for those reasons, the Court finds that the evidence as it relates to 

the test is admissible and may be considered by the jury. 
- 16 -

The trial court did not abuse its discretion in admitting testimony concerning the 

float test. Both Dr. Hawes and Dr. Andrew agreed that the float test is a very simple test 

that has been used regularly since the 15th century, and it is generally accepted. The test 

is based on the fundamental principle that air is lighter than blood or tissue. Therefore, 

lungs inflated with air will float when placed in water, and Defendant does not challenge 

this principle. In fact, Dr. Andrew testified that the float test “is a staple in everybody’s 

training. It is almost expected in the conduction of these autopsies.” Both Dr. Hawes 

and Dr. Andrew were trained to conduct the float test, and there is a variety of techniques 

used to conduct the test. Dr. Hawes testified that the float test was used in all three 

medical examiner’s offices in which she has been employed. Dr. Hawes testified that she 

conducted the test in this case in the manner in which she was trained at Vanderbilt 

University. Defendant argues that the variety of techniques used to conduct the test 

render it “subject to scrutiny.” However, questions about the reliability of the technique 

go to the weight rather than the reliability of the test. See State v. Reid, 164 S.W.3d 286, 

336 (Tenn. 2005). 

The float test has been subjected to peer review and publication. Dr. Hawes 

testified that there are multiple articles discussing the usefulness of the float test, its 

limits, and in what context it must be interpreted. She further testified concerning a study 

from the International Journal of Legal Medicine published in 2013 which involved 

infants who were autopsied and on whose lungs the float test was performed. The study 

concluded that the lung floating test “is still a reliable indicator of a newborn’s 

breathing.” Defendant argues that the study showed a 29 percent rate of error. However, 

that rate of error is for false negatives, which is not at issue in this case. In the same 

study there were no false positive results. The study found that “a wrongful conviction 

for killing a newborn just on behalf of the float test cannot be expected.” Dr. Hawes also 

identified the “Handbook of Forensic Pathology” produced by the College of American 

Pathologists, which discusses the float test as one used in the context of overall 

investigation to determine live birth versus stillborn.

Dr. Hawes and Dr. Andrew testified concerning the known factors that 

pathologists are trained to consider which could affect the interpretation of the float test. 

Such factors include whether air was introduced into a stillborn child’s lungs by 

decomposition, mouth-to-mouth resuscitation, post-mortem handling of the body, or by 

some other means that could be indicated by the degree to which the lungs are inflated. 

As pointed out by the State, Defendant does not challenge the reliability of the float test 

when these factors are considered, and they were considered in this case. Defendant 

asserts that the scientific community does not deem the float test reliable or useful. 

Defendant bases this conclusion on articles and reports introduced at the Daubert hearing 

that disagreed with the use of the float test to determine live birth versus stillborn and that 

were critical of the test. However, these criticisms center around whether the pathologist 

sufficiently identifies and takes into consideration the known factors discussed above 

when interpreting the results of the float test. The disagreements and criticisms in the 
- 17 -

scientific community surrounding the float test can be addressed at trial on crossexamination and goes to the weight and not admissibility of the test. Our supreme court

has stated:

The party proffering expert testimony need not establish that the expert 

testimony is correct, only that the expert testimony “rests upon ‘good 

grounds.’” Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 

85 (1st Cir. 1998) (quoting Daubert, 509 U.S. at 590); see also In re 

Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994); Burley v. 

Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397, 406 (S.D. 2007). 

Where such a foundation exists, even if the trial court is of the view that 

there are better grounds for an alternative conclusion, the proffered 

expert testimony “should be tested by the adversary process - competing 

expert testimony and active cross-examination - rather than excluded 

from jurors’ scrutiny for fear that they will not grasp its complexities or 

satisfactorily weigh its inadequacies.” Ruiz-Troche, 161 F.3d at 85.

State v. Scott, 275 S.W.3d 395, 404 (Tenn. 2009); See also Coe v. State, 17 S.W.3d, 193, 

227 (Tenn. 2000)(resolution of scientific views goes to the weight to be given an expert’s 

testimony, not the admissibility of the testimony).

Accordingly, we conclude that the trial court properly exercised its discretion in 

allowing Dr. Hawes to testify as an expert concerning the float test that was used in part 

to determine whether the baby was born alive or stillborn in this case. Defendant is not 

entitled to relief on this issue. 

II. Admission of Defendant’s Confession and Denial of Motion to Dismiss the 

Indictment

Defendant contends that the trial court erred in admitting her confession and by 

denying her motion to dismiss the indictment because the evidence of corpus delicti was 

insufficient. 

A criminal conviction cannot be based solely on a defendant’s uncorroborated 

confession. State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012). The Tennessee 

Supreme Court has adopted the “modified trustworthiness standard” in determining 

whether a confession is sufficiently corroborated. State v. Bishop, 431 S.W.3d 22, 58 

(Tenn. 2014). In State v. Clark, 452 S.W.3d 268 (Tenn. 2014), the Supreme Court stated:

In State v. Bishop, 431 S.W.3d 22 (Tenn. 2014), we recently clarified the 

corroboration rule in Tennessee. Tennessee follows the “modified 

trustworthiness standard” rather than the traditional corpus delicti rule.
- 18 -

State v. Bishop, 431 S.W.3d at 59-60. We explained that under this 

standard:

When a defendant challenges the admission of his 

extrajudicial confession on lack-of-corroboration grounds, the trial 

court should begin by asking whether the charged offense is one 

that involves a tangible injury. If the answer is yes, then the State 

must provide substantial independent evidence tending to show that 

the defendant’s statement is trustworthy, plus independent prima 

facie evidence that the injury actually occurred. If the answer is 

no, then the State must provide substantial independent evidence 

tending to show that the defendant’s statement is trustworthy, and 

the evidence must link the defendant to the crime.

State v. Bishop, 431 S.W.3d at 60. “Prima facie” evidence is “[e]vidence 

that will establish a fact or sustain a judgment unless contradictory 

evidence is produced.” Black’s Law Dictionary 638-39 (9th ed. 2009). 

“Substantial evidence” is “[e]vidence that a reasonable mind could 

accept as adequate to support a conclusion; evidence beyond a scintilla.” 

Black’s Law Dictionary 640 (9th ed. 2009).

“The corroboration requirement is a low threshold. Its purpose is 

twofold: to weed out false confessions to nonexistent crimes (by 

requiring some independent evidence that the injury occurred) and to 

weed out false confessions to actual crimes (by requiring some 

independent evidence that implicates the accused). State v. Bishop, 431 

S.W.3d at 59-60. The standard of proof required to clear this hurdle is 

even lower than the “preponderance of the evidence” standard. State v. 

Bishop, 431 S.W.3d at 60 n. 33 (quoting Smith v. United States, 348 U.S. 

at 156, 75 S.Ct. 194).

Clark, 452 S.W.3d at 279-80.

In this case, the trial court properly admitted Defendant’s confession and denied 

her motion to dismiss the indictment. Defendant’s confession was corroborated by 

sufficient independent evidence. Dr Hawes testified that the baby was alive at birth 

establishing that an injury occurred to cause her death. Defendant told police that she 

smothered the baby by holding her hand over the child’s mouth and nose after birth. This 

was corroborated by Dr. Hawes’ testimony that the baby died of asphyxiation, and 

smothering was consistent with her autopsy findings. In her confession, Defendant said 

that she cleaned the bathroom after smothering the baby. Both Anna and Matthew 

Mooney testified that the bathroom was very clean after Defendant told them that she 

gave birth. Defendant told police that she placed the baby in one bag, the placenta in a 

bag, and a bath mat in one of the bags. These details of Defendant’s confession were 
- 19 -

corroborated by Detective Cutshaw and Anna and Matthew Mooney. Furthermore, there 

were photographs to corroborate those details. “The corroboration requirement is a low 

threshold.” Clark, 452 S.W.3d at 280. We conclude that Defendant’s confession was

sufficiently corroborated. Defendant also asserts that the trial court properly denied her 

pretrial motion to dismiss the indictment. However, “[w]hether the [S]tate has 

sufficiently established the corpus delicti is primarily a jury question.” State v. Jones, 15 

S.W.3d 880, 891 (Tenn. Crim. App. 1999); State v. Jeremy Lynden Myrick, No. E2017-

00588-CCA-R3-CD, 2018 WL 3430337, at *22 (Tenn. Crim. App. July 16, 2018). 

Therefore, the trial court properly denied the motion to dismiss the indictment. Defendant 

is not entitled to relief on this issue. 

III. Sufficiency of the Evidence

Defendant argues the evidence was not sufficient to support her conviction for 

reckless homicide. “Because a verdict of guilt removes the presumption of innocence 

and raises a presumption of guilt, the criminal defendant bears the burden on appeal of 

showing that the evidence was legally insufficient to sustain a guilty verdict.” State v. 

Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191

(Tenn. 1992)). “Appellate courts evaluating the sufficiency of the convicting evidence 

must determine ‘whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e).

When this court evaluates the sufficiency of the evidence on appeal, the State is entitled 

to the strongest legitimate view of the evidence and all reasonable inferences that may be 

drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) 

(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence, 

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 

691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of 

review for sufficiency of the evidence “‘is the same whether the conviction is based upon 

direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) 

(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the 

credibility of the witnesses, determine the weight given to witnesses’ testimony, and 

reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 

2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, 

the jury determines the weight to be given to circumstantial evidence, the inferences to be 

drawn from this evidence, and the extent to which the circumstances are consistent with 

guilt and inconsistent with innocence. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 

184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, 

this court “neither re-weighs the evidence nor substitutes its inferences for those drawn 
- 20 -

by the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659 

(Tenn. 1997)).

Reckless homicide is defined as the “reckless killing of another.” T.C.A. § 39-13-

215(a).

“Reckless” refers to a person who acts recklessly with respect to 

circumstances surrounding the conduct or the result of the conduct when 

the person is aware of but consciously disregards a substantial and 

unjustifiable risk that the circumstances exist or the result will occur. 

The risk must be of such a nature and degree that its disregard constitutes 

a gross deviation from the standard of care that an ordinary person would 

exercise under all the circumstances as viewed from the accused 

person’s standpoint.

Tenn. Code Ann. § 39-11-106(a)(31). In this case, viewing the evidence in a light most 

favorable to the State, a reasonable juror could have concluded that the evidence was 

sufficient to support Defendant’s conviction for reckless homicide.

Defendant in this case gave birth to a baby girl in the bathroom of her boyfriend’s 

house. In her confession to Detective Cutshaw, which we have found was sufficiently 

corroborated, Defendant initially denied knowing that she was pregnant before she gave

birth, and she said that the baby was stillborn. Defendant eventually admitted that she 

realized her pregnancy a few weeks before giving birth. She said that the baby was born 

alive and had moved a little bit before she placed her hand over the baby’s mouth and 

nose. After a few minutes, Defendant checked the baby’s pulse and found none. At no 

point did Defendant seek help for the child. Instead, she placed the baby in a plastic bag 

with some towels, and she placed the placenta in another bag and cleaned the bathroom 

before notifying anyone in the house that she had given birth and claiming that the baby 

was stillborn.

Dr. Hawes testified that her findings in total, which included inflated lungs, led her 

to believe that the baby was born alive and died of asphyxiation. Dr. Hawes further 

testified that Defendant’s admission of placing her hand over the baby’s mouth and nose 

after birth was consistent with her findings. It was her opinion that the manner of death 

of the baby was homicide. Defendant points to Dr Andrew’s testimony and studies that 

disagree with the use of the float test to challenge Dr. Hawes’ autopsy findings and her 

reliance on the float test to determine that the baby was born alive. However, the jury 

resolved any conflicts in the testimony in favor of the State, as was its prerogative. 

See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

Defendant contends that she was in shock and could not form the “proper 

culpability needed for reckless homicide because she was not aware of or did not 

consciously disregard a substantial and unjustifiable risk that the circumstances existed or 
- 21 -

that the particular result would occur.” However, there was no testimony that Defendant 

was in such a state shock after giving birth that she could not appreciate that holding her 

hand over the baby’s mouth and nose immediately after birth would suffocate the child

and cause death. Although there was some testimony that Defendant appeared to be in 

shock after the baby’s death, this did not prevent her from cleaning the bathroom after 

giving birth, telling everyone that the baby was stillborn, and expressing fear that she 

would be going to jail because of searches that she had performed on her cell phone. 

Again, this was for the jury to decide. 

We conclude that the evidence was sufficient beyond a reasonable doubt to 

support Defendant’s conviction for reckless homicide. Defendant consciously 

disregarded a substantial and justifiable risk that the baby would suffocate by placing her 

hand over the baby’s mouth and nose after birth, and the risk was of such a nature and 

degree that its disregard constituted a gross deviation from the ordinary standard of care. 

Defendant is not entitled to relief on this issue. 

IV. Sentencing

Defendant contends that the trial court erred by imposing the maximum sentence 

of four years for her reckless homicide conviction and by rejecting her request for 

probation and judicial diversion. 

Our standard of review of the trial court’s sentencing determinations is whether 

the trial court abused its discretion, and we apply a “presumption of reasonableness to 

within-range sentencing decisions that reflect a proper application of the purposes and 

principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The 

party challenging the sentence on appeal bears the burden of establishing that the 

sentence was improper. T.C.A. § 40-35-401 (2017), Sentencing Comm’n Cmts. In 

determining the proper sentence, the trial court must consider: (1) the evidence, if any, 

received at the trial and the sentencing hearing; (2) the presentence report; (3) the 

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and 

characteristics of the criminal conduct involved; (5) evidence and information offered by 

the parties on the mitigating and enhancement factors set out in Tennessee Code 

Annotated sections 40-35-113 and -114; (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 made in the defendant’s own behalf about 

sentencing; and (8) the result of the validated risk and needs assessment conducted by the 

department and contained in the presentence report. See T.C.A. § 40-35-210; State v. 

Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also consider 

the potential or lack of potential for rehabilitation or treatment of the defendant in 

determining the sentence alternative or length of a term to be imposed. T.C.A. § 40-35-

103 (2017).
- 22 -

The trial court in this case made the following findings concerning sentencing:

First of all, let me deal with the mitigating factors that have been filed 

and then the Court will deal with the aggravating factors that have been 

filed, which now I cannot but I will find momentarily. 

But there is absolutely, in the record, nothing upon which a Court could 

excuse or justify the actions of this defendant in this case. There is 

absolutely no reason to excuse the defendant based upon her age alone. 

People much younger than this defendant bear[] children to live birth. 

And therefore, there is no reason to excuse her or to find any basis of 

leniency based upon her age as it relates to the facts of this case.

Likewise, at the trial, there was absolutely no medical evidence, no 

medical evidence, of any significant mental health issues that likewise 

could be determined to have a bearing upon this case. 

Now, the mitigating factor about the facts - - it is alleged that the facts do 

not show a sustained intent to violate the law. The Court would hold just 

the opposite based upon the uncontradicted testimony in this record that 

this defendant admitted smothering this child and then placing this child 

in gar[b]age bags or covering the child up with garbage bags. And so 

that would indicate to the Court a sustained intent to violate the law and 

to cause and to cover up this death.

Now, the jury did, in its discretion - - and the Court is in no way 

criticizing the jury. They are the people that have to make that decision. 

And this Court is very respectful of a jury for doing the very best that 

they can, and this jury considered the facts and applied the law as they 

saw it. And they chose to convict her of reckless homicide which carries

a range of penalties of from two to four years. 

The Court would note that the affect of this defendant is much different 

here today than it was during the trial of this case. The Court would just 

note its observations. The conclusions of the Court’s observations [are] 

that this defendant appeared that she did not understand what was going 

on here. That was the way she acted at trial. And the way she acts today 

is much different. That was the Court’s impression, and that is a factor 

for this Court to consider. The Court must also consider as it relates to 

probation and as it relates to judicial deferral what the attitude of the 

defendant is at sentencing. And the Court would note that there is 

absolutely no evidence of any remorse by this defendant in this case. 

This defendant is sorry it happened. Being sorry that it happened is not 
- 23 -

sorry for what you’ve done. This child was killed at birth. [. . .] There 

was no opportunity for this child because of its recent birth for it to have 

any opportunity to defend itself, and being placed in a trash bag or 

covered up by a trash bag is a very troubling event. And the Court, 

again, is troubled by the fact that there is absolutely world without end 

no remorse shown by this defendant, which the Court thinks is a factor 

which should be considered in granting or denial of probation or, in fact 

judicial deferral. As I say, there’s not been any - - this defendant has 

expressed no remorse for the death, what she did to cause the death of 

this child. And she admitted placing her hand - - her testimony was 

different - - or her statement. I’m sorry. She did not testify, and the 

Court is not holding that against her. She has the right not to testify. 

And the jury did not punish her for that, by the way. The Court is 

satisfied that the jury didn’t. But there’s not been a lot said except by the 

Court about this baby. About this baby. A child who will never walk 

this earth, the most defenseless of human beings, that will never, never 

get to enjoy playing, growing up. A serious matter. A very serious 

matter. And again, no remorse. 

Now, [defense counsel] is exactly right. This is a case that does, under 

the law, qualify in the appropriate circumstance for probation and 

judicial deferral. But - - and the fact that a death occurred, under the 

law, does not preclude either of those. The Court is well aware of that. 

And the Court in no way as to its - - the granting or denial of probation 

or judicial deferral is considering just the fact that someone died. But 

you must look to the totality of the circumstances of every case in 

deciding whether to grant probation or to deny probation or to grant 

judicial deferral or to deny judicial deferral. 

Now - - and in addition to the extreme age and physical capabilities of 

this deceased in this case and the - - the Court finds - - I mean, it 

happened very, very quickly. The acts of this defendant show that she 

had no hesitation about committing an offense like this.

And for those reasons, the Court findings that the enhancement factors 

outweigh the mitigating factors, the Court does again find that they 

outweigh the mitigating factors, and the Court feels like that based upon 

the facts and circumstances of this case, that the maximum four years is 

justified and hereby orders the sentence to be served in the Department 

of Correction. 
- 24 -

Length of Sentence

Trial courts are “required under the 2005 amendments to ‘place on the record, 

either orally or in writing, 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.’” Bise, 380 S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). Under the 

holding in Bise, “[a] sentence should be upheld 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. Although the trial court should 

consider enhancement and mitigating factors, the statutory enhancement factors are 

advisory only. See Tenn. Code Ann. § 40-35-114; see also Bise, 380 S.W.3d at 701. 

Moreover, a trial court is “guided by - but not bound by - any applicable enhancement 

factors when adjusting the length of a sentence[,]” and its “misapplication of an 

enhancement or mitigating factor does not invalidate the sentence imposed unless the trial 

court wholly departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706.

In this case, Defendant faced a sentencing range of two to four years as a Range I,

standard offender for her conviction of reckless homicide, a Class D felony. The trial 

court imposed the maximum sentence of four years to be served in confinement. 

Defendant does not challenge the court’s findings on enhancement and mitigating factors. 

Rather, she argues that the imposition of the maximum sentence is unfair when taken into 

consideration with the purposes and intent of sentencing and that her sentence was 

greater than deserved.

The record reflects that the trial court considered the enhancement and mitigating 

factors and appears to have found that the victim in this case was particularly vulnerable 

because of age or physical or mental disability. T.C.A. § 40-35-114(4). Application of 

this factor is supported by the record. As found by the trial court, the baby in this case 

was unable to defend herself because of her recent birth. Additionally, the record shows 

that Defendant abused a position of private trust in a manner that significantly facilitated 

the commission of the offense. T.C.A. § 40-35-114(14). Defendant was the victim’s 

mother and did not disclose her pregnancy to the victim’s father or anyone else until after 

she gave birth and had killed the victim. The trial court did not find any applicable 

mitigating factors. 

Having reviewed the record before us, we conclude that the trial court clearly 

stated on the record its reasons for the sentence imposed, and Defendant’s sentence is

within the appropriate range and “justly deserved in relation to the seriousness of the 

offense.” T.C.A. §40-35-102(1). The record reflects that the trial court considered the 

purposes and principles of the Sentencing Act. Therefore, the trial court’s imposition of 

the maximum sentence of four years for reckless homicide is presumed reasonable.
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Probation

As for the denial of full probation, “the abuse of discretion standard, accompanied 

by a presumption of reasonableness, applies to . . . questions related to probation or any 

other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A 

defendant “who is an especially mitigated or standard offender convicted of a Class C, D, 

or E felony should be considered as a favorable candidate for alternative sentencing 

options in the absence of evidence to the contrary[.]” T.C.A. § 40-35-102(6). In 

determining whether to grant or deny probation, a trial court should consider the 

circumstances of the offense, the defendant’s criminal record, the defendant’s social 

history and present condition, the need for deterrence, and the best interest of the

defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). “[T]he 

burden of establishing suitability for probation rests with the defendant.” T.C.A. § 40-

35-303(b). “This burden includes demonstrating that probation will ‘subserve the ends of 

justice and the best interest of both the public and the defendant.’” State v. Carter, 254 

S.W.3d 335, 346 (Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d 354, 357 

(Tenn. Crim. App. 1997)). A trial judge must consider the following factors before 

imposing a sentence of incarceration:

(A) Confinement is necessary to protect society by restraining a 

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of 

the offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or 

recently been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103(1). Additionally, the sentence imposed should be the least severe 

measure necessary to achieve its purpose, and the defendant’s potential for rehabilitation, 

or lack thereof, should be considered when determining whether to grant alternative 

sentencing. T.C.A. 40-35-103(4) and (5). Trial judges are encouraged to use alternative 

sentencing when appropriate. T.C.A. 40-35-103(6). 

The trial court’s findings of fact in this case support a basis to conclude that 

Defendant was not a suitable candidate for probation and that incarceration is necessary 

to avoid depreciating the seriousness of the offense and to deter others from committing a 

similar offense. T.C.A. § 40-35-103(1)(B); State v. Sihapanya, 516 S.W.3d 473, 476 

(Tenn. 2014) (deferring to the trial court’s decision to deny probation where the court 

“combined the need to avoid depreciating the seriousness of the offense with the need for 

deterrence and the nature and circumstances of the offense”). The trial court noted the 

“very serious” nature of the offense in this case where Defendant smothered her newborn 

baby, the “most defenseless of human beings,” by placing her hand over the baby’s 

mouth and nose after she was born. The trial court also considered the particular 
- 26 -

circumstances of the killing which included the “extreme age and physical capabilities” 

of the baby and that Defendant killed her very quickly indicating no hesitation about 

committing the offense and then placed the baby in a garbage bag. The trial court further 

found that Defendant showed no remorse for her actions. The court noted that “there is 

absolutely world without end no remorse shown by this defendant.” A lack of remorse 

can be utilized by a trial court during the consideration of probation. State v. Dowdy, 894 

S.W.2d 301, 306 (Tenn. Crim. App. 1994); State v. Celeste Hall, No. M2005-00715-

CCA-R3-CD, 2005 WL 3543416, at *5 (Tenn. Crim. App. Dec. 27, 2005); and State v. 

Brian Goodrich, No. M2002-03017-CCA-R3-CD, 2004 WL 367719, at *3 (Tenn. Crim. 

App. Feb. 27, 2004). 

The trial court did not abuse its discretion in denying probation in this case given 

Defendant’s lack of remorse, combined with the need to avoid depreciating the 

seriousness of the offense. 

Judicial Diversion

The standard of review in Bise extends to decisions involving judicial diversion as 

well. Caudle, 388 S.W.3d at 278-79. (“[T]he abuse of discretion standard, accompanied 

by a presumption of reasonableness, applies to within-range sentences that reflect a 

decision based upon the purposes and principles of sentencing, including the questions 

related to probation or any other alternative sentence.”); State v. King, 432 S.W.3d 316, 

324 (Tenn. 2014)(“the abuse of discretion standard accompanied by a presumption of 

reasonableness applies to all sentencing decisions, including the grant or denial 

of judicial diversion, when the trial court properly supports its decision on the record in 

accordance with the purposes and principles of sentencing”). 

Tennessee Code Annotated section 40-35-313 outlines the requirements 

for judicial diversion. After a qualified defendant is either found guilty or pleads guilty

to a misdemeanor or a class C, D, or E felony, a trial court has the discretion to defer 

further proceedings and place that defendant on probation without entering a judgment of 

guilt. T.C.A. § 40-35-313(a)(1)(A). Eligibility for judicial diversion does not entitle the 

defendant to judicial diversion as a matter of right. State v. Parker, 932 S.W.2d 945, 958 

(Tenn. Crim. App. 1996). Rather, the statute states that a trial court “may” 

grant judicial diversion in appropriate cases. See T.C.A. § 40-35-313(a)(1)(A). When 

making a determination regarding judicial diversion, the trial court must consider the 

following factors: (1) the defendant’s amenability to correction, (2) the circumstances of 

the offense, (3) the defendant’s criminal record, (4) the defendant’s social history, (5) the 

defendant’s mental and physical health, (6) the deterrent effect of the sentencing decision 

to both the defendant and other similarly situated defendants, and (7) 

whether judicial diversion will serve the interests of the public as well as the defendant.

State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998) 

(citing Parker, 932 S.W.2d at 958). The record must reflect that the trial court 
- 27 -

considered and weighed all these factors in arriving at its decision. Electroplating, Inc., 

990 S.W.2d at 229 (citing State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 

1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000)).

As noted above, our supreme court in King has concluded that the proper standard 

of review for judicial diversion decisions is that established in Bise. The King Court 

explained,

[W]hen the trial court considers the Parker and Electroplating factors, 

specifically identifies the relevant factors, and places on the record its 

reasons for granting or denying judicial diversion, the appellate court 

must apply a presumption of reasonableness and uphold the grant or 

denial so long as there is any substantial evidence to support the trial 

court’s decision. Although the trial court is not required to recite all of 

the Parker and Electroplating factors in order to obtain the presumption 

of reasonableness, the record should reflect that the trial court considered 

the Parker and Electroplating factors in rendering its decision and that it 

identified the specific factors applicable to the case before it. Thereafter, 

the trial court may proceed to solely address the relevant factors.

If, however, the trial court fails to consider and weigh the applicable 

common law factors, the presumption of reasonableness does not apply 

and the abuse of discretion standard, which merely looks for “any 

substantial evidence” to support the trial court’s decision, is not 

appropriate. . . . In those instances, appellate courts may either conduct a 

de novo review or, if more appropriate under the circumstances, remand 

the issue for reconsideration.

King, 432 S.W.3d at 327-28 (internal citations omitted) (footnote omitted).

We have set forth in detail the trial court’s findings of fact regarding whether to 

grant judicial diversion. Here, the trial court considered the Parker and Electroplating

factors as argued by Defendant at the sentencing hearing, and the trial court identified 

those factors that it found applicable to this case. It is not necessary that a trial court 

recite all of the Parker and Electroplating factors when justifying its decision on the 

record in order to obtain the presumption of reasonableness. King, 432 S.W.3d at 323. 

As noted above, the trial court was particularly concerned with Defendant’s lack of 

remorse, which the trial court obviously believed militated against Defendant’s potential 

for rehabilitation. Lack of remorse relates to Defendant’s amenability to correction.

State v. Kristi Dance Oakes, No. E2006-01795-CA-R3-CD, 2007 WL 2792934, at *9 

(Tenn. Crim. App. Sept. 27, 2007)(citing State v. Edward Arnold Rivera, No. W2001-

00857-CCA-R9-CD, 2002 WL 1482655, at *3)(Tenn. Crim. App. Feb. 4, 2002)(“Lack of 

remorse is an appropriate factor for a trial court to consider in deciding whether to grant 
- 28 -

judicial diversion.”)). There is substantial evidence in the record to support the trial 

court’s decision, and applying a presumption of reasonableness, we affirm the decision to 

deny judicial diversion.

Having reviewed the record and applied the applicable law to the trial court’s 

sentencing determinations, we find no error by the trial court in sentencing Defendant to 

four years in confinement for her reckless homicide conviction. Defendant is not entitled 

to relief in this appeal.

CONCLUSION

Based on foregoing analysis, we affirm the judgment of the trial court. 

____________________________________________

THOMAS T. WOODALL, JUDGE