### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs Marc h 1 8, 2 00 9

STATE OF TENNESS EE v . DONALD KNIG HT

Appeal f rom the Circ uit Court for Rutherford Coun ty No. F -58588 Don R. Ash, Jud ge

No. M2008- 01023-CCA -R3-C D - F iled Augu st 17, 2009

Appellant, Donald Knig ht, was indicted by the Rutherford County Gra nd J ury for felony murder and
ag g rava ted child abuse afte r the death of five-month-old T.J

. Appellant was convicted by a jury of 1 the lesser included offe nse of voluntary manslaug hter and ag g rava ted child abuse. He was sentenc ed

as a Rang e I standard offe nder to five y ear s at 30% for the voluntary manslaug hter convicti o n

. Appellant rec eived a sentenc e of twenty y ear s for the ag g rava ted child abuse conviction, to be serve d
at 100% in incar cer ation. The sentenc es wer e order ed to run concur rently

. Appellant filed a motion for new trial that was denied by the trial court. On appea l, Appellant arg ues that the trial court improperly denied a continuance and that the evidenc e is insufficient to support the convictions. We deter mine that Appellant failed to show actua l prejudice resulting from the denial of the continuance and that the evidenc e was sufficie nt to support the convictions. Acc ording ly
, the judgme nts of the trial court a

re a ffirme d.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court are Aff irm ed.

J E R R Y L

. S M I T H , J
., delivere d the opinion of the court, in which T H O M A S T. W O O D A L L and R O B E R T W. W E D E M E Y E R , J J ., joined.

J ohn Driver
, Assistant Public Def ender
, Murfre esboro, Tenne ssee, for the appellant, Donald Knig ht.

Robert E. Co o per, J r., Attorney Gene ral and Reporter ; Melissa Roberg e, Assistant Attorney Gene ral; Wil liam Whit sell, District Attorney Gene ral, and L aure l Hemming way , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

I t i s t h e p o l i c y o f t h i s C o u r t t o r e f e r t o m i n o r v i c t i m ’ s b y t h e i r i n i t i a l s

. 1OP INION

On Marc h 7, 2006, a 911 ca ll was place d from 411 R oss Drive, in Smy rna, Te nnessee , the home of J ennife r J ones. Acc ording to the caller
, T

. J

. , M s

. J ones’ five month-old son, was not brea thing. The child died af ter be ing tr ansported to the hospital.

I nitially
, medical personne l deter mined that T.J

. had died of sudden infant death sy ndrome, or S I DS. T h e p re l iminary autopsy repor t, howeve r, i ndicated that the child had been s haken. An investiga tion was conducte d by Detec tive J eff rey Duke of the Smy

rna Police Depa

rtment. Detec tive Duke interviewe d the occupa nts of the residenc e, including Ms. J ones and her mother Kathy J ones. Detec tive Duke a lso interview Ka thy J ones’s boy friend Steve Camp, who frequently stay ed at the residenc e, and Appellant, Ms. J ones’ boy friend. At the time of T.J .’s death, Appellant was often the

car e g iver for

the child while Ms. J ones wa s participating in an educ ational internship.

When Appellant was inter viewed in c onnection with the investiga tion, he admitted that he had shaken the baby but stated that it “wa sn’t that hard” an d o nly occur red “a couple of times.” Appellant stated t h at he “didn’t think that that would ever kill him.” Appellant rec alled the baby
g asped for air but did not tell Ms. J ones beca use he was worrie d that she would “fly off the hinge s.”

Appellant wa s indicted in May of 2006 by the Rutherford County Gra nd J ury for felony murder and ag g rava ted child abuse. The trial was set to beg in in Dec ember of 2006. Prior to trial, Appellant requ es t ed a co n tinuance in order to find an expert witness. The trial court g rante d Appellant’s first reque st and resc heduled the trial for Fe bruar y of 2007. Appellant soug ht a second continuance on the basis that his expert was not under contra ct and would not be able to testify in Fe bruar y

. The trial court complied with this reque st a nd, afte r consulting with the expert, the case

was re set for Ma

y 2007.

Approxim ately one month prior to the trial d at e, Ap p ellant soug ht a third continuance

. Appar ently
, the expert witness had been g iven the dates of trial and had ag ree d to be prese nt for the trial but had forgo t t en t o m ark a “per sonal matter” on his cale ndar. Be cause of this mistake, Appellant’s expert would not be available for all of the trial dates but could attend about three to four hours on one of the schedule d trial dates. Appellant thought that a continuance would be benef icial to ensure tha t his ex pert would be available for the e ntire trial.

The trial court denied the motion. Howe ver, the trial court expressed that it wa s willing to be flexibl e to a cer

tain extent. Appellant rene wed the motion to continue on April 30, 2007, ag ain stating that the expert’s absenc e during the entire trial would serve to diminis h his te stimony

. The trial court denied the motion. As a result, Appellant’s expert did not testify at trial. His repor t was admitted throug h the testimony of the State’s e x pert witness, Dr . Br uce L evy

.

The trial b ega n as schedule d. At trial, Ms. J ones testified that Marc h 7, 2006, beg an as a normal day

. She arose that morning around 6:30 a.m. with her son. Kathy J ones helped Ms. J ones g et T.J

. rea dy for the day and fee d him while Ms. J ones was showering and g etting rea dy for work.

-2-Ms. J ones left the house at around 8:00 a.m. for work. Kathy J ones watche d T.J

. for part of the day

.

Kathy descr ibed T.J

. as restless that day but thoug ht that it might be due to te ething

. Acc ording to Kathy , T.J . ate a

nd drank nor

mally and took a na

p.
Appellant came to pick up the child around 2:00 p

. m

. Ap p el lant and Ms. J ones had been dating for sever al months

. Appellant often watche d T.J

. Ms. J ones felt like she could trust Appellant with her

child.

Ms. J ones picked up T.J

. at around 5:15 p.m. that day at Appellant’s pare nt’s house. T.J

. was sleeping but crie d when he was awa kened. Ms. J ones thought that he was hung ry but when she tried
to fee d him he ref

used to eat. M s

. J o n es t o o k h i m home and T.J

. was fussy for the rest of the evening

. Around 9:00 p.m., Ms. Jones g ot a telephone call from her mother and had to ste p out of the room so that she cou l d h ear her mother over T.J .’s cry ing. She handed the baby to Appellant when she stepped out of the room. When Ms. J ones returne d to the room, T.J . had stopped c ry ing and appe are d to be aslee p.

At that time, Ms. J ones and Appellant g ot the baby rea dy for bed. Appellant laid him down in the crib, and Ms. Jones kissed the child g oodnight. Ms. Jones made sure that the volume on the baby monitor was on hig h beca use she e x pecte d T.J . to wake up hung ry

.

Ms. J o n es we n t t o b ed around 9:30 p.m. Appellant was still there at the time. At around 10:30 p.m., Steve Camp arr ived at the house. Appellant came outside as Mr. Camp was enter ing the residenc e. Appellant repor ted that T.J

. was sleeping “g ood.” Mr. Camp went inside, ate something, then went to Kathy J ones’s room and waited for her to c ome home. Mr. Camp did not enter T.J .’s room that eve ning.

Kathy J ones returne d home around 11:15 p.m. She immediately went to T.J .’s room to chec k on him, like she did every night. She immediately

noticed that he w as pale and found the child to be cold and li mp when she picked him up. Ka t h y J ones ran scre aming throug h the hous e for Ms. J ones. Mr. Camp ca lled 911 and re ported that the c hild was lifeless and pa le.

The family attempted CP R on the child until the Smy rna Police arr ived and took over. Rutherford County Emerg ency M e d ic a l Service s arr ived at the residenc e at 11:36 p.m. and continued
to administer CPR to the child. They n o t ed no visible marks or bruises on the child as they transporte d him to S tonecr est Medica l Center.

When the child arr ived at the hospital, his hear t was not beating
, and he was unable to brea the independe ntly

. He was trea ted by Dr. L ori L y nch. When T.J

. arr ived at the hospital, he had no pulse and no re sponsive function. There was no visible tra uma noted by

the emer g ency

room personne l

or the emer g ency medical personne l. He was trea ted for approximately thirty minutes befor e being
pronounce d dead.

-3-An autopsy was perf ormed by Dr. L evy , the Chief Medica l Ex aminer for Rutherford County

. The ex t er n al ex am of the body was “unremar kable.” The child prese nted wit h two small bruises,

one on his head and one on his rig ht buttocks. Acc ording to the doctor, the child appea red to be well

car ed for and a ty

pical siz e and weig ht for his ag e. The autopsy reve aled a signi fi ca n t am o unt of bleeding in the brain, approximately fou r o u n ces of blood. This amount of blood in the subdural
space would be lethal to an adult. The brain display ed evidenc e of acute subdural and subara chnoid hemorrha g es, retinal hemorrha g ing, and shear ing injuries to the axons. Dr. L evy explained that the injuries wer e indicative of a “shake n” baby

. There was also evidenc e of a prior subdural hemorrha g e that was a pproxi mately

one month old.

The conclusion of the autopsy was that T.J

. died as a result of trauma at the hands of another
person. The trauma was most likely blunt forc e trauma that occur red within minutes to hours of the child’s death. The cause of death was brain hemorrha g ing as a result of trauma. Acc ording to D r. L evy , at the time the trauma was inflicted, the child would have immediately become sy mptomatic,

even c omatose, with cha

ng es in skin color and br eathing difficulties.

Appellant contende d throug h the written opinion of Dr. Elias G. Chalhub, that T.J .’s death

was ca u s ed by a “re -blee d” of the old injury

. The “re -blee d” theory contends that as the body is healing an injury
, it is more vulnera ble in that are a, making it more susceptible to repe at injury at that time. Dr. Chalhub opined t hat t he subarachnoid hemorrhag e could be a result of a re- bleed of

the older injury that the child had suffe red. Dr. L evy reje cted that conclusion. Acc ording to Dr. L evy , the t heory d o es not make sense. He ex plained that the t issue that has healed or healing is not any

m o re likely to bleed than other tissue. Secondly
, Dr. L evy explained that a re- bleed would n o t

acc ount for injuries as signific ant as T.J .’s. A re- bleed would not cause the amount of blood loss that the child suffe red, and the old injury was only on one side of the brain. At the time of the autopsy , there wer e injuries on both sides of the br ain.

Dr. Mar k Be cher , the direc tor of neuropatholog y at Vanderbilt, concur red with Dr. L evy ’s
assessment. Dr. Be cher opined that the injuries to T.J
., which ultimately led to his death, occur red within three hours o f his death. Dr. Be cher ag ree d that upon infliction of the fata l injuries, T.J

. would have be come sy

mptomatic. D r. Be cher also reje cted the re- bleed theory and explained that even if the child’s injuries had oc curr ed in the eme rg ency room, he would not have survived.

Appellant called Smy

rna Police Offic er J ason Ander son to testify in his behalf

. Acc ording
to Offic er Ander son, he respon d ed to the emer g ency call on Marc h 7, 2006. Acc ording to his “che cklist,” Ms. J ones wa s the l ast person to be with or see the child prior to the emerg ency call. Fur ther, Mr. Camp had a noticea ble odor of alcohol about his pe rson at the time O ffice r Ander son responde d to the call.

After hear ing the evidenc e, the jury convicted Appellant of voluntary manslaug hter and
ag g rava ted child abuse. As a result of the convictions, he was sentenc ed to an eff ective sentenc e of twenty y ear s. After

the denial of

a motion for new

trial, Appellant a

ppeale d his convictions.

-4-Analysis Denial of Continuance

On appea l
, Ap p el lant arg ues that the trial court improperly denied a continuance

. Specifica lly
, Appellant arg ues that du e to the “complex medical issues” he “wa s at a sever e disadvantag e proce eding at trial without assistance of a medical expert.” Appellant arg ues that his expert’s testimony about a re- bleed theor y coupled with the fac t tha t the re was no proof Appellant did any thing to cause the child’s injuries would “mee t the standard f or re versa l” i n this case

. The State arg ues that the trial court did n o t ab u s e its discretion and Appellant has failed to establish prejudice by the denial of the continuance
, espec ially in light of the fac t that his expert’s repor t was submitt ed to the jury

for c onsideration.

The g ranting o f a co n t i n u an ce rests within the sound discretion of the trial court. State v. Thomas , 158 S.W .3d 361, 392 (Tenn. 2005) ; State v. Odom , 137 S.W .3d 572, 589 (Tenn. 2004)

. We will reve rse the denial of a conti n u an ce o nly if the trial court abused its discretion and the defe ndant was prejudice d by the denial. State v. Hines
, 919 S.W .2d 573, 579 (Tenn. 1995). I n order
to show prejudice
, the defe ndant must demonstrate that a differ ent result might rea sonably have been

rea ched if the trial court had g rante d the continuance or that the denial of the continuance denied the defe ndant a fair trial. Id

. “Moreover, a defe ndant who asser ts that the denial of a continuance constitutes a denial of due proce ss or the rig ht to counsel must establish actua l prejudice .” Odom
, 137 S.W .3d at 589. This Court has rec og nized that a continuance might be appropr iate in or der to aff ord a defe ndant a “re asonable opportunity ” to locate a witness. State v. Morgan
, 825 S.W .2d 113, 117-18 (Tenn. Crim. App. 19 9 1 ). However, the burden rests with the defe ndant to show that a continuance might have rea sonably resulted in locating the witness. Id. ; see also Brown v. State
, 489 S.W .2d 855, 857 (Tenn. Crim. App. 1972)

.

Acc ording to the rec ord in the case here in, the case was orig inally set for trial in Dec ember of 2006. Counsel for Appellant reque sted a continuance to obtain an expert witness in ear ly Dec ember

. The trial court g rante d this reque st and set the case for trial in F ebrua ry of 2007. Prior
to trial, Appellant soug ht a second continuance in order to finalize the contra ct with the expert. The trial court g rante d the second reque st for continuance and rese t the case for trial in May

. Prior to the May 2007 trial d at e, Appellant soug ht a third continuance beca use his reta ined expert could not attend the entire tri al an d co u l d only be available for three to four hours on one day of the trial. Appar ently , the expert forg ot to note a persona l matter on his cale ndar when he ag ree d to become

an expert at Appellant’s trial. The trial court denied this motion to continue but assure d Appellant that there would be flexibi lity with reg ard to the prese ntation of th e p ro o f at trial. The trial court expressed its desire to ac commodate Appe llant’s schedule in any way possible.

Appellant rene wed his motion to conti nue, offe ring to rema in incar cer ated and waive any future claims for speedy trial violations. The trial court ref used to g rant t h e conti nuance

. We d et er mine that the trial court has not abused its discretion. The trial court offe red a g rea t deal o f flexibi lity in the trial proce ss and had alre ady g rante d two continuance s. Fur ther, Appellant did not prese nt the testimony of the expert or any additional evidenc e at the hear ing on the motion for new

-5-trial to support a showing of actua l prejudice

. The defe nse expert’s repor t was ultimately introduced
at t ri al and was available for the jury to consider. The trial court did not abuse its discretion i n deny ing the third continuance . Appellant is not entitled to relief on this issue.

Sufficiency of the E

videnc e

Next, Appellant challeng es the sufficie ncy of the evidenc e. Specifica l l y , Ap pellant complains that there is no proof that Appellant knowing ly cause d injury to T.J

. Fur ther, Appellant
arg ues that the State failed to prove the elements of voluntary manslaug hter or criminal homicide. The State disag ree s, arg uing that “the jury reje cted the theory that [T.J .’s] death was cause d by a rebleed and acc redited the State’s theory that [Appellant]
, afte r dealing with a cry ing, fussy baby for hours, violently

shook T.J . causing profuse bleeding in his brain that led to his death.”

When a defe ndant challeng es the sufficie ncy of the evidenc e, this Court is oblige d to revie w that claim accordin g t o certain well-settled principles. A verdict of guilty
, rende red by a jury and “a p p roved by the trial judge
, acc redits the testimony of the” State’s witnesses and resolv es al l conflicts in the testimony in favor of the State. State v. Cazes
, 875 S.W .2d 253, 259 (Tenn. 1994); State v. Harris
, 839 S.W .2d 54, 75 (Tenn. 1992). Thus, althoug h the acc used is orig inally cloake d with a presumption of innocenc e, the jury verdic t of g uilty remove s this presumption “and repla ces it with one of g uilt.” State v. Tuggle
, 639 S.W .2d 913, 914 (Tenn. 1982). Henc e, on appea l, the burden of proof rests with the defe ndant to demonstrate the insufficienc y of the convicting evidenc e. Id. The rele vant question the revie wing court must answe r is whether any rational trier of fac t could have found the acc used g uilty of ever y element of the offe nse bey ond a rea sonable doubt. See Tenn. R. App. P. 13(e) ; Harris
, 839 S .W.2d at 75. I n making this decision, we are to acc ord the State “the strong est leg itimate view of the evidenc e as well as all rea sonable and leg itimate infere nces that may be draw n there from.” See Tuggle
, 639 S.W .2d at 914. As su ch
, t h i s C o u rt is prec luded from

rew eig hing or

ree valuating the evidenc e whe n considering the convicting proof. State v. Morgan
, 929 S.W .2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews
, 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990). Moreove r, we may not substitut e our own “infe renc es for those draw n by the trier of fac t from circ umstantial evidenc e.” Matthews
, 805 S.W .2d at 779. Fur ther, questions conce rning the cre dibilit y of the witnesses and the weig ht and value to be g iven to evidenc e, as well as all fac tual issues raised by such evidence, are resolved by the t rier of fac t and not the appellate courts. State

v. P r u ett , 788 S.W .2d 559, 561 (Tenn. 1990). Of course , a criminal offe nse may be establi s h ed exclusively by circ umstantial evidenc e. State v. Tharpe
, 726 S.W .2d 896, 900 (Tenn. 1987); State

v. Jones
, 901 S.W .2d 393, 396 (Tenn. Crim. App. 1995). Howeve r, the trier of fac t must be able to “dete rmine from the proof that all other rea sonable theories except that of g uilt are excluded

. . . .” Jones , 901 S.W .2d at 396; see also, e.g., Tharpe , 726 S.W .2d at 900.

Voluntary manslaug hter require s proof that the defe ndant intentionally or knowing ly killed another “in a state of passion produce d by adequate provoca tion sufficie nt to lead a rea sonable
person to act in an irrational manner .” T.C.A. § 39-13-211( a). The jury is responsible for revie wing the evidenc e to a scer

tain whether it supports a finding of adequa te provoca tion. State v. W illiams
, 38 S.W .3d 532, 539 (Tenn. 2001)

.

-6-Fur ther, to convict Appellant of ag g rava ted child abuse, the State was require d to prove: (1) that Appellant knowing ly
, other than by acc idental means trea ted T.J

. in such a manner as to inflict injury ; and (2) that the act of ab u s e resulted in serious bodi ly injury

. See T.C.A. §§ 39-15-401( a) & -402(a )(1)

. Serious bodily injury includes bodily injury which involves: “(A ) A substantial r isk of death; (B ) Protracte d unconsciousness; (C) Ex treme phy sical pain; (D) Pr o t rac ted or obvious disfigur ement; or (E) Protracte d loss or substantial impairment of a function of a bodily member,
org an or mental fac ulty .” T.C.A. § 39-11-106( a)( 34). A person acts knowing ly with respe ct to a result of the person’ s conduct when the person is awa re that the conduct is rea sonabl y ce rt ai n t o

cause the result. T.C.A. § 39-11-106( a)( 20). To convict Appellant of felony murder, the State had
to prove that T.J

. was killed “in the perpe tration of or attempt to perpe trate any

. . . ag g rava ted child abuse.” T.C.A. § 39-12-202( a)( 2). The State was not require d to prove a culpable mental state, other than “the intent to commit the enumer ated of fense .” T.C.A. § 39-12- 202(b).

After a revie w of the evidenc e, we conclude that there was sufficie nt e vidence prese nted at trial for a rational trier of fac t to find Appellant g uilty of ag g rava ted child abuse and felony murder. There was testimony from Ms. J ones that T.J

. was cry ing and fussy when she left the room to take

a telephone call fr o m h er m o t her and that the child had stopped cry ing and appea

red to be aslee p when she came back into the room a few minutes later. Appellant was the only person in the room with T.J

. at that t i m e. Ms. J ones testified that she then helped Appellant put the child in bed and kissed the child g oodnight. Dr. L evy testified that afte r suffe ring the t y p e of injuries that T.J

. suffe red the child would likely have been in a comatose state. Fur ther, T.J

. had injuries consistent with those th at would be sustained by a “shake n baby .” Dr. L evy stated that there was a larg e amount of blood in the child’s brain and that an adult suffe ring injuries of this mag nitude would have likely died. He opined that the victim died as a result of blunt head tr au m a. Appellant himself admitted in his statement to police that he shook the child and that he did not tell Ms. J ones beca use she wa s under a

lot of stress.

After revie wing the evidenc e, we conclude th at the evidenc e prese nted was sufficie nt to support a conviction of Appellant’s indicted crime of felony murder. See T.C.A. § 39-12-202( a)( 2). A rea sonable jury could have deter mined that Appellant shook the child violently in or der to quie t him while his mother stepped out of t h e ro o m t o take a telephone call. Acc ording ly
, beca use the evidenc e was sufficie nt to support a felony murder con v i ct i o n , i t was also sufficie nt to support a conviction for the lesser included offe nse of voluntary manslaug hter. See State v. Dominy
, 6 S.W .3d 472, 477 n.9 (Tenn. 1999) (noting that “voluntary manslaug hter is a lesser- included offe nse of first and second deg ree murder” ). Fu rt hermore
, when “the evidenc e [i s] sufficie nt to support [a]

co nviction for the g rea ter offense char g ed, the defe ndant cannot complain of the j ury find i n g h i m g uilty of the lesser offe nse.” McD onald v. State
, 512 S.W .2d 636, 640 (Tenn. Crim. App. 1974); see also State v. Carrie Ann Brewster
, No. E2004-00533-CCA-R3-CD, 2005 WL 762604, at *3 (Tenn. Crim. App., at Knoxvi lle, Apr. 5, 2005) (citing McD onald for the same proposition). Acc ording ly
, this iss ue is without merit.

-7-Conclusion

For the fore g oing r easons, the judg ment of the trial c ourt is affir med.

___________________________________ J ERRY L . SMI TH, JUDGE

-8-