# FILED
July 20, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9707-CR-00276 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, REBECCA CUREVICH, ) JUDGE ) Appellant. ) (AggravatedChild Abuse, C hild ) Neglect)

FOR THE APPELLANT : THE ODO RA A. PAP PAS Washington Square Building 222 Second Avenue North Suite 360M Nashville, TN 37201 (Appe al On ly) JACK A . BUTLER First American Buildin g Suite 2395 315 Deaderick Street Nashville, TN 37238-2395 (Tri al On ly) FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter KAREN M. YACUZZO Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General DIANE S. LANCE WILLIAM R. R EED Asst. District Attor

neys General Washington Square Building 222 Second Avenue North Nashville, TN 37201-1649

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION
The defendant, Rebecca Curevich, appeals her Davidson Coun ty jury convictions for aggr

avated child abuse and chil d neglect. The defendant contends on appeal that:

(1) she was unfairly prejudiced by the trial court’s refusal to allow the opinion testimony of a police officer; (2) the evidence presente d at trial was insuffici ent to support her conviction for aggravated child abuse; (3) she was unfairly prejudiced by the state’s improper cross-examina tion; and (4) the trial court i mposed an excessive sente nce.
After a careful review of the record, we AFFIRM the judgment of the trial cour t.

I.
The defendant gave birth to the v ictim while incarc

erated. The defendant and her mother, Paulette Nichol son, agreed that Nicholso n should have custody of the child. This informal custody arrangement continued after the defendant was released from her inca rceration.

The defend ant admitted to having a ten (10) yea r addiction to th e drug, Dilaudid. This addiction c ontinued after the victim w as born. The defendant subsequently enrolled in a Methadone treatment progr am. Part of the treatment program allowed the defendant t o take Methadone home for self-medicati on. The defendant’s dosage at the time the offenses oc curred was fifty (50) milligrams.
In June 1994, Nicholson left the v ictim in the defendant’s care at approximately 4:00 p.m. i n order to visit Ni cholson’s husband in the hospital. The child was approxi mately six (6) months old. The defendant’s aunt, Brenda3

Gower, called to check on the defendant between 10:00 and 10:15 p.m. The defendant did not indicate to her aunt that anything was w rong with the child

.
When Nicholson returned at approximately 10:40 p.m., the defendant was sitting at the kitchen t

able working a puz

zle. When Nicholson went into the o ther room to check on the child, sh e noticed the child was having trouble breathi ng. When she picked the child up, Nicholson st ated the child turned blue and became limp. Nicholson instructed the defenda nt to call 911. When the child arrived at the hospital , he was unable to breathe on h is own and a tube had to be inserted in his throat. There is no question that the child would have died if he had not received emergenc y medical care.

The defendant testified that after her mother l eft, she drank the fifty (50) milligram dose of M ethadon e and pla yed with the child fo r approxim ately for tyfive (45) minutes. She stat ed that on the floor where they played was a can of soda, a pack of cigarettes, an ashtray, a lighter,and her empty Methadone bottle. The defendant testified she cannot r emember her aunt calling that night. When she awoke, the defendant said she noticed the chi ld’s labored breathing and decided t

o call 911. The defendant st ated that Ni cholson arr ived home immediately after she decided t o call 911.
When the child did not respon d to conventional treatment at the hospital, the attending physicians administered Narcan, w hich counters the effects of narcotic s. The ch ild immed iately rea cted to th e Narcan a nd began to have seizures. The child sub sequently tested positi

ve for Methadone. Dr. Jay ant Deshpande, one of the doctors who treated the child, testified th at a child the weight of the victi m would have to inges t at least twenty-ei ght (28) milligr ams of Methadone to cause breathing t o cease.4 II.
The defendant’s first assignment of err or is the trial court erred in refusing to allow Detectiv

e Steve Cleek to giv

e his opinion as to whether he thought the child’s ingestion of Methadone was accidental.

The trial court conducted a hear ing outside the presence of the j ury to determine the admissibility of Detective Cleek’s testimony. The trial court concluded the detective’s opinion was inadmissibl e and asked the parties if they agreed. Neither side obj ected to the court’s ruli ng. The defendant, therefore, has waived this is

sue. See

Tenn. R. App. P. 36(b).
Regardless of the waiv er, the trial court w

as within its discretion to exclude the testimony. The defendant wanted the detective to state his opinion based upon his investigati on of the facts of the case. Witnesses are allowed , with limitations, to testify as to their opinion regarding the ultimate issue. Tenn. R. Evid. 704; State v. Shuck , 953 S.W.2d 662, 66 8 (Tenn. 1997). However, this rule is tempered by the l imitation that no opinion testi mony on the ultimate issue is allowed when a jury could readily draw its own conclusions on the matter, unaided by the witness’ opinion. Cohen et al. , Tennessee Law of Evidence , § 704.2 (3d ed. 1995); Blackburn v. Murphy, 737 S.W.2d 529, 533 (Tenn. 1987). Furthermore, the admission of expert opinion testimon y must “substantially assist the trier of fact to understand the evidence or determ ine a fact in issue . . .” Tenn. R. Evid. 702; McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257, 264 (Tenn. 1997).
The detective’s experience investigating child abuse cases and his investigation in thi s case did not allow hi m to formulate a more informed conclusion than the jury. The jury was apprised of the relevant facts and were fully capable of drawing their own inferences and c onclusions without the opi nion5

of Detective Cleek. The detec tive’s opinion woul d not substantially assist the jury in determining

this issue.

The trial court did not abuse i ts discretion in excluding this evidence. See State v. Shuck , 953 S.W.2d at 669 (holding appellate rev iew is limited to an abuse of discretion standard). This issue is without merit.

III.

The defendant further contends the evidenc e presented at trial was insufficient to sustain her conv iction for aggravate

d child abuse. Aggrav

ated child abuse requires the defendant knowingly, other than by accidental means, treat a ch ild under eighteen (18) years o f age in su ch a mann er as to in flict inj ury, or neglect such a child

so as to adversely affect the child’s health and we lfare; and the act of abuse result in ser ious bodily injury

to the child. Tenn. Code Ann. §§ 39-15-401, 39-15-402(a)(1).

A.
When an appellant challenges the sufficiency o f the evidence, the standard of review is whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could ha ve found the essential elements of the crime beyond a rea sonable doubt. Jackson v. Virginia , 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Evans , 838 S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P. 13(e).On appeal, the state is entitled to the strong est legitimate view of the evidence and all reason able or legitimate inferences w hich may be drawn there from. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). This Court wil l not reweigh the ev idence, reevaluate the evidence, or substitute its evidentiary inferences for those reached by the jury. State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).6

Furthermore, in a criminal trial, great w eight is given to the result reached by the jury. State v. Johnson , 910 S.W.2d 897, 89 9 (Tenn. Crim. App. 1995).
Once approved by the tri al court, a jury v erdict accredits the w

itnesses presented by the state and res olves all conflicts i n favor of the state. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). The credibility of witnesses, the weight to be giv

en their testimony, and the r econciliation of conflicts i n the proof are matters entrusted excl usively to the jur y as trier of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984). A jury's g uilty verdict r emoves the presumption of innocence enjoyed by the defe ndant at trial and raises a presumption of guilt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the burden of overc oming this presumption of gui lt on appeal. State v. Black , 815 S.W.2d 166, 17 5 (Tenn. 1991).

B.

The state contended the defendant intentionall y administered the Methadone to the child. The defendant ass erted, inter alia , that while she was asleep, the child crawled to her bottle of Methadone, put th e bottle in his mouth, and drank the remainder of its contents. She stated, “there mig ht have been residue in it.” The defendant als o referred to “other members” o f her family who used and had access to Methadone. I n her testimony at trial , the defendant accused her mother, Paulette Ni cholson, of sneaking into the ho use while she was asleep and administeri ng Methadone to the child.
The jury obviously

discredited the testimony of the defendant. The defendant admitted to possessing fif ty (50) milligrams of Methadone before Nichol son left

the chi ld in he r custo

dy. The defendant

testifi ed she, h erself, consumed the entire contents of her bot tle of Methadone, yet an exper t testified the child would have h ad to ingest at least tw enty-eight (28) mil ligrams of the7

drug. The defend ant’s vari ous expla nations of how the victim cou ld have ingested the Methadone strain credulity. Looking at the evidence in a light most favorable to the state, the ev idence is sufficient to support the conviction for aggravated child abus

e.

This issue is without merit.

IV.

The defendant also contends that she wa s unfairly prejudiced by questions asked by the as sistant district attor

ney which assumed facts nev er introduced into evidence. The state contends the questions were proper under the prior inconsistent s tatement rule. See

Tenn. R. Evid. 613.

The defendant was asked on cross-examination whether she told Dr. Ed Dotson that she was taki ng one (1) Dilaudid per day in July and Aug ust 1994. The defendant replied, “If I told him that , then, yes ma’am, it is.” The defendant subsequently testified tha t she was “clean” from M arch 22, 1994, until the date of the trial. The state countered by asking the defendant, “Okay. But you just told me that Ed Dotson -- you told Ed Dotson you were taking one Dilaudid a day in July and August of 1994.” The defendant respo nded, “Well then, I honest ly don’t know the answer.” The state never introduced ev idence from Dr. Dotson or any other witness that the defendant actually made this admissi on.
When a witness is examined regar ding a prior inconsis

tent statement, counsel is not require

d at that time to show the st atement or disclose its cont ents to the witness, but on req uest must show or discl ose it to opposing counsel. Tenn. R. Evid. 613(a). To us e a prior inconsistent s tatement to impeach a witness, counsel must hav e a good faith belief the inconsis tent statement was actually made. Cohen et al ., Tennessee Law of Evidence § 613.1 (3d ed. 1995).8

There is no requirement that counsel introduce the prior statement into evidence.
The testimony of the defendant on her direct and cross-examinatio n was difficult to follow as to ex actly when she w

as in various treatment p rograms and when she was drug-

free. Prior to the prosecutor ’s first question concer

ning her prior statement to Dr. Dot son, it is conceded by the state that it is unclear whether she had testified that she had been drug-free in July and August 1994. Thus, it could have been inappr opriate at that time to have a sked about the prior statement to Dr. Dotson. How ever, the defendant did testify subsequently that she was drug-free duri ng this time. Clearly, the prior inconsistent statement was proper at that time. Any pos sible error as to the ti ming of the first question w as harmless. Tenn. R. App. P. 36(b).

The defendant’s contention tha t the questions were improper because they “assumed facts that w ere not introduced into ev idence” is without mer

it. There is no legal requi rement that a prior inconsi stent statement be introduced into evidence. Although there must be a factual basis for the question, the defendant has not shown the prosecutor lacked tha t basis.

Furthermore, there was no objection to either ques tion. The failure to object deprived the tri al court and this Court of any opportunity to ascertai n the factual basis of the question. The issue is waived. Tenn. R. App. P. 36(a ).

This issue is without merit.

V.
The defendant’s final assignment of error is that the trial court

erred by imposing a maximum sentence of twelve (12) years for the aggravated child1 This offense was committed on June 26, 1994, when all forms of

aggravated child abuse were Class B felonies. Effective July 1, 1994, aggravated child abuse of a child six (6) years of age or less was eleva ted to a Class A felony. 1994 Public Acts, Chapter 978. The defendant was, therefore, properly sentenced for a Cl ass B fel ony. 9 abuse conviction. 1

A. Standard o f Review
This Court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35 -401(d). This presumption is conditioned upon an affirmative showing i n the record that the trial judge considered

the sentencing principl es and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply w

ith the statutory direc

tives, there is no pre

sumption of correctness and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997).
If no mitigating or enhancement factors for sentencing are pr esent, Tenn. Code Ann. § 40-35-210(c) pro vides that the presumptiv e sentence shall be the minimum sentence within the app licable range. See State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). Howev er, if such factors do exis t, a trial court should start at the minimum sentence, enhan ce the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-3 5-210(e). No particular weight

for each factor is prescribed by the statute, as the w eight given to each factor is left to the discretion of the trial court as long as the trial cou rt complies with the purposes and p rinciples of th e sentencing act and its findings are supported by the recor d. State v. Moss , 727 S.W.2d 229, 23 8 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn. Code Ann. § 40-35- 210 Sentencing Commission Comment s. Nevertheless, shoul d there be no10

mitigating factors, but en hancement factors are present, a tr ial court may set the sentence above the minimum wi thin the range. Tenn. Code Ann. § 40-35- 210(d); see Manning v. State , 883 S.W.2d 635, 63 8 (Tenn. Crim. App. 1994).
B. Length of Sentence
The trial court imposed the max imum sentence after finding five ( 5) enhancement factors and no mitigati ng factors. The enhancement factors found applicable by the trial court are as follows:

(1) The defendant has a previous h istory of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range, Tenn. Code Ann. § 40-35-114(1); (2) The victim of the offense was particularly vulnerable because of age, Tenn. Code Ann. § 40-35- 114(4); (3) The defendant had no hesitation about c ommitting a crime when the risk to human life was high, Tenn. Code Ann. § 40-35-114(10); (4) The felony was committe d while the defendant was on parole, Tenn. Code Ann. § 40-35-114(13); and (5) The defendant abused a position of pri vate trust, Tenn. Code Ann. § 40-35-114(15).

The trial court properly noted that the defendant had previousl y been convicted of forgery and attempted tampering with ev idence. The trial court, therefore, properly appli ed enhancement factor (1). Additio nally, the defendant admitted she was on parole for these crimes at the time the in stant offenses were committed. Therefore, the tr ial court properly applied enhancement factor (13).
The court further found the six-month old victim was particularly vulnerable due to his age. Tenn. Code Ann. § 40-35-114(4).The age of the victim, standing alon e, does not justify application of this enhancing factor. State11

v. Poole , 945 S.W.2d at 96. Although the age of the vic tim is an element of the offense of aggravated child abuse , this does not necessaril y preclude the application of this factor. State v. Walton , 958 S.W.2d 724, 728 (Tenn. 1997). Rather, the trial court should consider: (1) whether, because of age, the victim was particularly

unable to resist the cri me, summon help, or testify at a l ater date; (2) whether the v ictim’s age (extr

emely young or old)

is entitled to additional weight; and (3) whether the vulnerability of the victim made the victim more of a target for the offense or, conv ersely, whether the offense was committed in such a manner as to r ender the vulnerability

of the victim irrelev

ant. Id. ; Poole , 945 S.W.2d at 96-97. The victim was compl etely unable to resist the lethal dose of narcotics administered by the defen dant. Also, because of his age, the six-month old c hild was unable to call

for help and was spared death only by the fortuitous return of his grandmother. The victim’s age was properly considered in enhancing the sentence.
The state concedes that Tenn. Code Ann. § 4 0-35-114(10), that the defendant had no hesitation about committing a crime when the risk

to human life was high, wa

s inappropriately appl ied. Serious bodily i njury is an essential element of aggravated chil d abuse.
Finally, the court found the defendant had abused a position of priv ate trust. Tenn. Code Ann. § 40-35-114 (15). The determination that a pos ition of trust exists depends on the nature of the relationship, not on its length or formality. State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). The parentchild relationship is an obvious example of a position of trust. Id. According to the defendant’s testimony, the g randmother did not want to l eave the child with the defendant, but did so only after the defendant argued with her. Therefore, the child was entrusted to the care of the defendan t who abused this trust. This enhancement factor was properl y applied.12 The record supports the application of enhan cement factors (1), (4), (13), and (15) to the defendant’s sentence. The erroneous application of an enhancement factor by the trial court does not necessa rily lead to a reduction in sentence. State v. Lavender, ___S.W.2d___ (Tenn. 1998). The sentence imposed by the trial court was proper.

This issue is without merit.

C. Alternative Sentencing

The defendant contends that due to her chroni c substance abuse, the trial court erred in not considering her for community corrections.

The Comm unity Corre ctions Ac t establi shes a pro gram of co mmunitybased alternatives to inc arceration for certain eli gible offenders. See Tenn. Code Ann. § 40-36-103. A defendant is eligible for participa tion in a community corrections program if the defendant satisfies several minim um eligibility criteria set forth at Tenn. Code Ann. § 40-36-106( a)(1)-(7). The defendant does not meet the minimum criteria sinc e aggravated child abuse is not a non-violent felony. See

Tenn. Code Ann. §§ 40-36-106(a)(3), 102(12).

An offender who does not meet the minimum cr iteria under Tenn. Code Ann. § 40-36-106(a) and is considered unfit for probation due to substance abuse or mental problems may s till be eligible for c

ommunity corrections under the special needs provis ion of Tenn. Code Ann. § 40-36-106(c)

. See State v. Grigsby , 957 S.W.2d 541, 546 (Tenn. Crim. App. 1997). How ever, before a defendant may be sentenced pursuant to Tenn. Code Ann. § 40-36-106(c), he or she must be found statutorily el igible for probation. State v. Grigsby , 957 S.W.2d at 546; State v. Staten , 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).13 A defendant is eligible for pr obation if the sentence receiv ed by the defendant is eight years or less. Tenn. Code Ann. § 40-35-30 3(a). The defendant, due to the length of her sentenc e, is not eligible for pr

obation. Furthermore, a person conv icted of aggravated chi ld abuse is precluded from receiving probation.Tenn. Code Ann. 40-35-303(a). Thus , since the defendant is ineligible for prob

ation, she is precluded from communi ty corrections under the special needs provisi on.

This issue is without merit.
Accordingly, the decision of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE

CONCUR:

________________________________ CURWOOD WITT, JUDGE

________________________________ R. LEE MOORE, JR., SPEC IAL JUDGE