### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs O ctober 29, 2002
STATE OF TENNESSEE v. SCOTT B ENN
Appeal from the Criminal Court for Hamilton County No. 231366 Stephen M. Bevil, Judge

No. E2001-01958-CCA-R3-CD March 10, 2003

The defenda

nt, Scott B enn, who w as orig inally charg ed wit

h felony mur

der and a ggra vated ch ild abuse, was convicted of one count of agg ravated child abuse. The trial court imposed a sentence of twenty-five

ye ars. In this ap peal, the defenda nt asser ts (1) tha t the tria l court e rred by failing to instruct the jury on the lesser

included offenses of felony murder and aggra

vated child abuse; (2) that the trial court erred by

admitting certain evidence; and (3) th at the sente nce is exces sive. Alth ough the trial court erred

by failing to instruct on the le sser includedoffenses, the error can be c lassified as harmless bey ond a reasonable doubt. The judgment is, therefor e, affirmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., deliv ered t he opinion of the court, in which J OE G. R ILEY and R OBER T W. W EDEMEYER , JJ., joined.

Donna Robinson Miller (on a

ppeal) a nd Christia

n J. Coder (a

t trial), Assistant

District Pu

blic Defenders, for the appellant, Scott Benn.

Paul G. Summers, Attorney Ge neral & Reporter; Kathy D . Aslinger, Assistant Attorney General; and Christopher

David Pool e and Ba

rry A. Steelma

n, Assista

nt Distric t Atto rne ys Gener al, for the appellee, State of Tennessee.

OPINION

On September 23, 1999, Sherry Benn, the wife of the def endant, arrived at the emergenc y roomof T.C. Thompson Children's Hospital in Hamilton County. She was car rying the v

ictim, her
seven-m onth-old daughter, Alana Benn. Ms . Benn reported that the victim could not breathe and askedfor help. According to Dr. Donna L ett, the pediatrician on duty, the victim had turned blue
an d appeared to have been dead f or some time. After administering life saving mea sures for approximately thirty

minutes, Dr. Lett declared the victim dead.

At trial, Dr. Lett testifi ed that t he victim had bruises to both the right and left sides of her head and a large, raised

bruise in the center of her forehea d. X-ray s revealed that the victim had a-2-

number of fractured ribs. Some of the rib fracture s were more than one week old and others were
a s little as twenty-four hours old. I n addition, the femur of each leg and the tibia of one leg we r e broken. It was Dr. L

ett's opi nion that the injuries to the victim's legs were less than twenty-four hours old. She made a diagnosis of child abuse, explainingthat the victim, who was not yet walking
or crawling, could not have rece ived the injuries any other way. Dr. L

ett believed that

the injuries could not h ave bee

n caused by a fall of le ss than ei ght fee t.

Further examinatio n of the vi cti m r evealed retinal hemorrhaging , which is indicative of Shaken Baby Sy

ndrome. According to Dr

. Lett, Shaken B aby Synd rome occ urs when a baby is shaken so violently that the brain collides with the inside of the skull, causing severe injury and often death. She state d that whil e great force w ould

not be required to inflict the type of injuries suffered by the victim, a large armspan would be. It wa s her opin ion that a five-ye ar-old child could not have inflicte d the injur

ies.

Isaac Morton, the defendant's eleven-y ear-old stepson, testified that the defendant was alone in his bedro om with the

victim for

most of the

day on the dat

e she died. He stated that

the defendant cared for him and his sibling s, including the victim, while their mother worked. The boy reca lled that he heard the victim cry

ing after his mother left but he did not suspect that someone was hurting her. He reme

mbered h earing the defe ndant re peat to the victim, "Why y ou crying ? Why you c

rying like that?" According to Morton, the victim stopped c

rying aft er appr oximately one-half hour. He didnot hear her again that night. Morton testified tha t the defendant left, taking the family 's only car, shortly a

fter his mother returned from work. At that time, the victim was ly ing on the bed.

Morton remembe

red that his mother

checke d on the victim, dis covered t hat she was not breathing, and

asked, " Has any

thing be en wrong

withAlana?" Mo

rton testi fied tha

t he helpe d his mother dress the baby

while they waited f

or the defendant to return with the car. Morton recalled that as soon a s the d efenda nt ret urned , he an d his moth er tran sport ed the victi m to t he emer ge nc y room. Morton testified that he had not seen any one, incl

uding the defenda nt, hit, dr op, or othe

rwise harm the victim that night. He descri bed the de fendant as a good stepfather, one who would not harm the children. Morton conceded, however, that on one occasion, whenhe was trying to break up a fight between the defenda nt and his mother, the defendant struck him in the face.
Sherry Benn, who had been married to the def endant for approximately e ight yea rs at the time of the victim's death, testified that the defendant was re sponsible for the care of thei r six childre n while she was a t work. On

the nigh t of the of fense, s he worke d untilapproxima tely 11:00 p.m. and had planned to do laundry when she got home. According to Ms. Benn, the defenda nt left in t heir
car shortly after her retu

rn, as wa s his custom. As she began gathering clothes to wash, she leaned
over to kiss the v

ictim and n oticed th at she wa s not brea thing. Whe

n the def endant r eturned with the car, she left immediately for the emergency

room. Ms. Benn testified that she had never seen the defendant use drugs and that he did not appea r to be intoxicated on the night of the victim's death.

Ms. Benn te stified th at the vic tim was bor n premat urely and had s tay ed in

the intensive care unit for some time after her birth. According to Ms. Benn, the victim needed oxygen at all times and-3-

was on a heart monitor. She stated that her six-yea r-old daughter Amber, who liked to play mother, often tried to pick up the victim but was not permitted to do so.

Darrell Whitfield, a member of the crime scene investigation unit of the Chattanooga Police Departm ent, was assigned to collect evidence at the de fendant's residence. He

stated that there was no evidence of any

illegal drugs or drug pa

raphernalia.

Detective Bill Phillips of the Chattanooga Police Department, who questioned the defendant about the victim's death, recorded the defe ndant's statement. The defendant admitted striking the victim on the front and sides of her head when she would not stop cry ing. When he realized that the victim had stopped breathing, the defendant administere d rapid chest compressions, hoping her heartbeat would "catch. " H is ef

forts were unsuccessful, however, a nd he placed the victim on a pillow so that it would appear that she was sleeping. The defendant informed De tective Phillips that he had considered attempting to flee, but realized that he ha

d nowher e to go. During the interview, he assured the detective that he was not try ing to protect his wife or their other children by acc epting responsi bility for the in cident.

Dr. Frank King, who performed the autopsy of the victim, documented a number of

injuries consistent with child abuse, including blunt trauma to the victi m's hea d, ret inal h emorr haging, and bleeding in the brain. It was his opinion that the injuries could not have been caused by accidental
means. He stated that dramatic force would be required to cause the degr ee of retinal hemorrhaging present in th e vict im. D r. Kin g testi fied t hat br uisi ng to t he vic tim's fa ce and head was caused by blows administered less than twenty- four hours prior to her death. It wa s his view that death was caused by a combination of blunt trauma, br ain s wellin g, brain hemorrhaging , and retinal hemor rhagin g.

Dr. King found that the victim had suffered fractures of ribs five through nine on her left side, withthe fracture in rib nine being the most rec ent. He described the injuri es to the victim's ribs as the re sult of "s queezing ." I t was his op inion that a

child could not have

been pow erful e

nough t o cause the injuries. Dr. King also found "a comp lete tra

nsverse fracture of the distal right femur a nd

. . . a complete transverse fracture of the distal left femur," explaining that a compl ete tran sv erse fracturegoes "through the entire thickne ss of the bone. " The hemorrhaging at the leg fractures indicatedthat the in

juries occurred at about the same time, less than twenty -four hours before the victi m's death. Dr. King described the injurie s as extremely painful. I t was his opinion that the victi m's host

of medical problems, which were related to her premature birth, did not cause her death.

At trial, the defendant testified that it was his responsibility to c a re for the children on the night of the victim 's dea

th. He cla

imed that h

e left on ly once, when he went to pick up dinner. The defendant contended that

after dinner, t he older childre n went into

the living room to list

en to music while he s tay ed in the b edroom w ith the victim . He stated that af ter he we nt into the b athroom to smoke crack cocaine, his oldest daughte r knocked on the door, inf orming h imthat something was wrong with the baby . The defendant testified that he told her to go awa y and later, when

he heard the victim cr

yin g, he le

ft the ba throom to c heck on her. He contended that the victim was alive,-4-

lying on the floor next to an oxygen tank whe n he entered the bedroom. He claimed that he gave the victim a bottle a

nd she we

nt to sleep . The def

endant in sisted tha

t the victim

w as alive when he placed her on a pillow.

The de fendantrecanted the statement he made to Detective Phillips, claiming that he had confessed his guilt only to protect his oldest daug hter, Amber. He stated that Amber had an anger
ma nagement

problem and had injured her y ounger brother on at least one prior oc casion. The defendant claimed that Amber, who had been warned not to carry the victim, had dropped her before. He explained that he chose to be truthful w hen he le arned th at beca

use of he r age, Amber co

uldnot receivea harsh punishment for harming the victim. He claimed that he fabricated the statement he made to police, utilizing the injuries he had observed on the victim at the hospital as a guide.

I The defendant

first asserts that the trial court erred by failing to instruct

the jury on reckl ess homicide and criminally negligent homicide as lesser included offenses of felony murder. The state concedes that

reckless homicide and

criminally neg ligent homicide are lesser included offe nses of felony murder, but argues that the issue is moot because the de fendant was acqui tted of felony murder. The defendant also asserts that the trial court erred by

failing to instruct

the jury on reckl ess aggravated

assault as a lesser included offense of ag gravated child ab use. The issue was not present ed in the m

otion for new tria l.

Ge ne ra ll y, the failure to present an issue in a motion for

new trial results in waiver. Rule 3(e) of the Tennessee Rules of Appellate Procedure pr ovides that

for appeals “in all cases tried by a ju ry, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions gra nted or refuse d, . . . or o ther gr

ound upon w

hich a new trial is s ought, unless the same was specifical ly s tated in a motion for a new trial; otherwise such issues will be treated as waived.” See also State v. Ma rtin , 940 S.W.2d 5 67, 569 (T enn. 1997 ) (holdin g that a defendant relinquishes the right to argue on appeal any

issues that should have been presented in a mot ion for new trial). Whether properly assigned or not, however, this court may cons ider plai n error upon the record under Rule 52(b) of the Tennessee Rules of Criminal Procedure. State v. O gle , 666 S.W.2d 58 (Tenn. 1984).

Before an error may

be so rec ognized, it must be “ plain” a nd must af

fect a “substan tial rig ht” of the accused. The word “plain” is sy nonymous with “clear

” or equivalently “ obvious.” United States v. Olano , 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous, but especia lly egregious err

or that st rikes at the fairness, integrity , or public reputation of judicial procee dings. See Stat e v . Wooden , 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v. Adkisson , 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined “substantial right” as
a right of “fundamental proportions in the indictment process, a right to the proof of every element of the offense and . . . constitutional in nature.” I n that case, this court established five factors to be applied i n determ

ining whether a

n error is plain:
(a) The record must clea

rly establish what occ urred in the trial court;1 The legi slat ure has amended secti on 40-18-110 to provi de that for al l trials conducted on or af ter January 1, 2002, the failure o f the defe nda nt to req uest, in wri tin g, an inst ructi on on any l esser incl uded offen se shal l const itu te a waiver of that

instruct ion.

-5- (b) a cl ear and

unequivo cal rule

of law mus t have be en brea ched; (c) a su bstantial right of the accused must h ave bee n advers ely

affec ted; (d) the accused [must not have waived] the issue for tactical rea sons; and (e) consideration of the error must be " necessary to do substantial justice.

Id. at 641-42. Our supreme court charac teri zed the Adkiss on test as a “clear and meaningf ul standard” and emphasized that each of the five factors must be present before an error qua lifies as plain error. State v. Smith , 24 S.W.3d 274, 282-83 (Tenn. 2000). The right to jury instructions on lesser included offenses is based, in large mea sure, upon the constitutional right to trial by jury

. See Tenn. Const. art . I, § 6; State v. Bowles , 52 S.W.3d 69, 77 (Te nn. 2001) . The er

roneous f ailure to charge the appropriate lesser included offenses will qualify as "plain" wh en th e error cannot be classifiedas harmle ss bey ond a rea sonable doubt. Cf. State v. B en Mills , No. W1999-01175-CCAR3-CD (Tenn. Crim. App., at Jackson, May 3, 2002) (erroneous failure to provide jury instructions
on lesser inclu ded off

enses did not qualify as plain e rror where the error could be classified as harmless beyond a

reasonable doubt).

The question of

whether a given offense should be s ubmitted to

the jury as a lesser included offense is a mixed question of law and fact. State v. Ru sh , 50 S.W.3d 424, 427 (Tenn. 2001) (citing Statev. Smiley , 38 S.W.3d 521 (Tenn. 2001)). The standard of review for mixed questions of law and fact is de novo with no presumption of correctness. Id. ; see also State v. Burns , 6 S.W.3d 453, 461 (Tenn . 1999 ). The trial court has a d uty "to giv e a comp lete c harge of the law applicable to the facts of a case." Statev. Harbison , 704 S.W.2d 314, 319 (Ten n. 1986); see also

Tenn. R. Cr

im. P. 30

. In addition, the trial court has a statutory duty to instruct the jury on all applica

ble lesse r included offenses. See Tenn. Code Ann. § 40-18-110 (1997). 1

In Burns , our

supreme court ad opted a mo dified ve

rsion of th

e Model Pe

nal Code in

order to determine what constitutes a lesser included offense:

An offense is a lesser included offense if:
(a) all of its s tatu to ry elements are included within the statutory elements of the offense charged; or (b) it fa ils to meet the definition in part (a) only in the r espect that it contai ns a statutory element or e

lements establishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less se

rious har m or risk of harm to

the same person, p roperty or public interest , or (c) it consists of-6-

(1) facilit ation of th

e offen se char

ged or of an off

ense tha t otherwi se meets t

h e definition of lesser included offense in part (a) or (b); or (2) an attempt to commit

the offe nse char ged or an offe nse that o therwise

meets the definition of lesser included offense in part (a) or (b); or (3) solicitation to commit the offense charged or an offense that othe rwise meets the definition of lesser included offense in part (a) or (b).

6 S.W.3d at 466-67. Utilizing this analysis, reckless homicide a nd criminally neg ligent homicide
ar e lesser included offenses of felony murder. See id. ; see also State v. El y , 48 S.W.3d 710, 72 7 (Tenn. 2001)(stating that reckless homicide is a lesser included offense of first deg ree murder) ; State v. Sims , 45 S.W.3d 1, 21 (Tenn. 2001). In addition, reckless ag gravated assault would be a lesser included offense of aggr

avated child abuse. See Statev. Honeycut t , 54 S.W.3d 762, 771 (Tenn. 2001) (holding that re ckl ess agg ravate d assault

is a lesse

r include d offens e of ag grava ted child abuse).

The trial cou

rt has a duty to instruct the jury

as to a lesser

included offense if: (1) r easonab le minds could accept the offense as lesser inc luded; and (2) the evidence is legally sufficient to support
a conviction for the lesser included offense. Burns , 6 S.W.3d at 469; see also State v. Langford , 994 S.W.2d 126, 128 (Tenn. 1999). This duty applies w hether or not a defendant requests such an instruction. Tenn. Code Ann. § 40- 18-110(c) (1997). Moreover, our supreme court has he ld that trial courts “must provide an instruction on a lesser-included offense supported by the evidence even if such instruction is not consistent with the theory of the State or of the defense. The evidence, not the parties, controls whether an instruction is required.” State v. Allen , 69 S.W.3d 181, 188 (Tenn. 2002). Our high court ob served t hat the “ jury is not req uired to believe any evidenc e offered by the State,” and held that the authority of the jury to convict on a lesser-included offense may not be taken
aw ay, even when proof supporting the element distinguishing the greater

offense from the lesser offense is uncontroverted. Id. at 189.

In h is initial statement to police, the defendant admitted that he struck the victim sever a l times in an eff

ort to stop her from cry

ing, but claimed that he never intended to harm the victim and didnot realize that the

blows he a

dminister ed could r esult in her death. Shortly a

fter the crime, he told police th at the vic tim's de ath was th e result o f his reck lessness or neg ligenc e rathe r than his willful intent to cause injury. I n our view, this evidence warranted instructions on rec kless homicide and criminally neg ligent homicide as lesser inc luded offe nses of felony murde r. In addition, the evidence justified an instruction on reckless aggra vated assault as a lesser included offense of aggravated child abuse

.
Becau se the proof offered at trial justified an instruction on reckl ess homic ide, cri minally negligent homicide , and rec

kless aggravated assa

ult, the trial court erred by

failing to instruct the jury as to t hose offe nses . Our

next inquiry is whether the error was harmless. I n Allen
, our high court concluded

that when

the trial court improper

lyfails to instruct on a lesser included offense, the harmlesserror in

quiry is the same

as for ot her cons titu tional error s: whether it appears beyond a
reasona ble doubt that the error did not affect the outcome of the trial. Id. at 1 91. In mak ing this-7-

determination, “a reviewing court should conduct a thoroug h examination of the record, including the evidenc e prese

nted at tria l, the defendant’s theory of defense, and the verdict returne d by the jury.” Id.

In this instance, the defendant was acquitted of the char ge of felony

murder but argues that he would not have been convicted of agg ravated child abuse if the jury had been instructed on all of the lesser included offenses of felony murder. The defenda

nt cites no

authority for this a rgumen t. The failure

to provide

citation t o authorities ge

nerally results in a waiver of the issue. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). In t his i nstance, the claim is simply too speculative. While the tr ia l cour t had the duty to charg e the lesser included offenses of felony murder, that err

or was ha rmless be yond any reasona ble doubt b ecause

no conviction at all resulted from that count in the indictme nt. An ac quittal on t

he gre ater ch arge s erves a s an acqu itta l on al l lesser included offenses. See ge nerally Ray

v. State , 563 S.W.2d 218, 220 (Tenn. Crim. App. 1977). An instruction on the lesser included offenses of a count which re sulted in an acqui ttal w ould not likely have af

fected the outco me of the

trial with regar d to the re maining counts in t

he indict ment.

As to the sec ond count , aggravated child abu se, the tr

ial cour t provide d instruc tions on onl y one lesser included of

fense, c hild abuse. To convict a defendant of agg ravate d child abuse, the s tate must prove that

the defendant "knowingly , other than by ac cidental means," treated the victim

"in such a manner

as to inflict injury" and tha tthe act of abuse resulted in "serious bodily injury to the child." Tenn. Cod

e Ann. §§ 3 9-15-401 (a), -4 02(a)( 1). A con viction fo r child a buse req uires a showing that the defendant "knowingly , other than by a ccident al means ," trea

ted the vi ctim

"in such
a manner as to inflict injury." Te

nn. Code Ann. § 39-15-401(a). Both offenses requi re a "kno wing" state of mind and differ only

in that aggravated child abuse requires a showing that the abuse caused serious bodily injury

rather thaninjury. Reckless aggravate d assault, as the name implies, requires only a "r eckless" mental state.

In Honey cutt , our supreme cour

t rul ed that the failure to instruct on reckless agg ravated assault as a less er inclu ded offe nse of ag grava

ted child abuse wa s error . It di d not eng age in harmlesserror analy sis with regard to the trial court's failure to pr ov ide the instruction, however, having determined that other err or in that case warranted reversa l. In State v. Cornelius Michael Hyde , No. E2001-02708-CCA-RMCD (Tenn. Cri m. App., a t Knoxville, Jan. 15, 200 2), our su preme court remanded the case to this court to specifically consider the impact of its holding in Honey cutt that reckless aggra

vated assault is a lesser included offense of ag gravated child abuse. I n Hyde , the defendant was charged with ag gravated child abu se of his g

irlfrie nd's son , who exhibited bruis es "all
over his body." Id. The defendant admitted "whipping" the victim with a belt and concede d that the punishmentcould have ca used s ome br uisi ng, but denie d caus ing bru ises t o the v icti m's face, head, groin, or arms. The tria l court ins tructed

the jury as to child

abuse, b ut failed

to provide a n instruction on reckless aggra vatedassault a s a lesse

r include d offens e of ag grava ted child abuse. On remand, this court held that the failure to provide

an instru ction on r

eckless aggravated assa

ult was
error a nd that the

error c ould not be

classifi ed as har

mless bey ond a rea sonable d

oubt.-8-

In our view, this case is distinguishable from Hyde . First, the injuries that the victim suffered in this case were extreme, as they resulted in her death. In Hyde , the vict im's injur ies, while painful, consisted only of bruising to var ious parts of his body. Moreover, the record demonstrates that the defendant received a more favorable verdict than the def

endant in Hyde . Hyde wa s convicted of aggravated

c hild abuse, the highest crime with which he was char ged. Here, the defenda

nt wa s charged with felony murder f

or the death of his daughter, but was acquitted of that offe nse despi te the compelling proof offered by the state. Had the jury found the def endant guilty of fe

lony murder, the evide nce woul d have been lega lly s ufficie

nt to suppor

t that ver dict.

As stated by Chief Justice Rehnquist in his concurring opinion in Sullivan v. Louisiana , 508 U.S. 275, 283 (1993), "[a]ny time an ap

pellate c ourt cond

ucts har mless-er ror review it

necessa rily engages in some speculation as to the ju

ry 's dec ision makin g proc ess; forin the end no judge can know for certain what factors led to the j ury 's verd ict. " The re al questio n when the re is a constitutional violation i s whethe r th ere is "a reasonable probability " that error might have
co ntri buted to the conviction. Fahy v. Connecticut , 375 U.S. 85, 86-87 (1963). Because the evidence of agg

ravate d child abuse was so sub stantial i n this cas e, it is our view that no "rea sonable pr ob ab il it y" exists that the jury would have convicted the defendant of

reckle ss agg

ravate d assault

. Ther efore, the trial

court' s failure

to instruc t the jury

as to the le sser inc luded off ense of r eckless aggravated

assault would be harmless bey ond a reasonable doubt. See Allen , 69 S.W.3d a t 191; cf. Statev. Williams , 97 7 S.W.2d 101, 106 (Tenn. 1998) (the failure to instruct on lesser included offenses may

be considered harmless bey ond a reasonable doubt

when the jury "nece ssarily " reje cts the lesser included offense by declining to convict on an intermediate offense)

.
Becau se the trial

court’s failure

to instruc t the ju ry

on th ese lesser included offenses was harmlessbeyond

a reasonable doubt, no substantial rights of the defendant were affected. Thus, the error does not qualify

as “plain.” See Adkisson , 899 S.W.2d 641-42.

II The de fe nd an t n ex t c on te nd s t ha t t he tr ia l c ou rt er re d b y p ermitti ng evidence that he had struck Isaa c Morton a

nd that the

victim had

suffer ed broke n ribs more

than a week befor

e her de ath in violation of Tennessee Rule of Eviden ce 4 04(b). T he state submits tha

t evidenc e of the r

ib fractures was properly

admitted to rebut the defendant's claim that the victim was injured accide ntly and that proo f that the

defenda nt had pre viously struck Isaac Morton wa s properly admitted to re but the defendant's claim that he was a loving father who would not strike any of his children.

Rule 404 of

the Tenn essee Rules of Evi dence p rovides i n pertine

nt part a s follows:

Other Crimes, Wrongs, or Acts. Evidenc e of othe r crimes , wrong s, or act s is no t admissibl e to prove the char acter o f a pers on in orde r to show a

cti on i n conform ity with the character trai t. I t may, however , be admissible for other purpos es. The conditions which must be satisfied before allowing inquiry on cross-examination about specific instances of conduct are: (1) The court upon request must hold a hearing outside the jur y's pr esence;-9- (2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon reque st state on the record the material issue, the ruling, and the reasons for a dmitting the evidence; and (3) The court must exclude the evide nce if its probative value is outweighed by the dang er of unfair prejudice.

Tenn. R. Evid. 404(b). A fourth p rerequ isite to admissibility is that the trial court find by clear and convincing evidence that the defendant committed the other crimes or bad acts. State v. D uBose , 953 S.W.2d 649, 654 (Tenn. 1997). Rule 404 wa s pattern ed in great measure on State v. Parton , 694 S.W.2d 299 (Tenn. 1985), wherein our supreme court ruled tha t evidenc e of othe

r crimesis gene

rally inadmissible. The terms of this rule establish that character evidenc e cannot be used to prove that
a person has a propensity

to commit a crime. Tenn. R. Evid. 404(b); Adkisson , 899 S.W.2d at 646. Most authoriti es sugg est that tr ial cour ts take a “restri c tive app roach of 404(b) . . . because ‘other act’ evidence carries a signific ant potential for unfairly influencing a j ury.” Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[8][e] (4th ed. 2000). That perhaps best explains the traditional posture o f the cou

rts that a ny t estimony of prior bad actsby a

defenda nt is not usu ally

admis sibl e when used as su

bstantive evidenc e of guilt of the c rimeon trial. Parton , 694 S. W. 2d a t 3 02- 03. In those instances where the prior conduct or acts are similar to the c rimes on tri al, the potential for such a result increases. State v. B ordis , 905 S.W.2d 214, 232 (Tenn. Crim. App. 1995).
Exceptions to the rule

may occur w hen the ot her cri me is relevant to an issue other than the
accuse d's character such as identity, motive, common scheme or plan, intent, or absence of mistake. If, however, unfair prejudice outweig hs the probative value of the other crime evidence, courts are required to exclude the evidence. Statev. Howell , 868 S.W.2d 238, 254 (Tenn. 1993); see also State
v. Zagorski , 701 S.W.2d 808 (Te nn . 1985); State v. Taylor , 669 S.W.2d 694 (Tenn. Crim. App. 1983). When the tr

ial cour t substanti ally

complies with the re quireme nts of Rule

404(b), t his court will review the trial court’s determination for an abuse of discretion. DuBose , 953 S.W.2d at 652.
Here, Drs. Lett and King testified that upon examining the victim, they discovere d that the victim had suffered fractures to sever al of her ribs and that all but one of the fracture s had occurred more tha n twenty-four hours but le ss than one week pr ior to her dea

th. In our view , this evidence is probative to sho w that the injuries to the victim were not the result of an accident, an e ssential element of aggravated c

hild abuse. See Tenn. Code Ann. § 39-15-402(a)(1). Further, proving the absence of mistake or accident is one of the purposes for which pr ior bad act evidence may be admitted. See Tenn. R. E vid. 404(b ); Howell , 868 S.W.2d at 254. Finally, the probative value of this evidence outweighed the dang er of unfair prejudice to the defendant. The evidence was properl y admitted.
During the cros s-examina tion of I saac Mor

ton, the de

fense elicited te stimony

that t h e defendant was a good father whose para mount objective was the care and protection of his children. The state sought to introduc e evidence that th e defendant had s truck I saac Mor ton in the face to rebut his claim that he would not do anything to harmhis children. When an accused places his charac ter at issue, the prosecution may the n offer evidence to rebut the defend ant's claims. See Tenn. R. Evid.2 Effective July 4, 2002, the l egisla ture h as amended Tenn. Code Ann. § 40- 35-114 by renumberi ng origi nal

enhancement factors (1) t hru (20) and including as enhan cemen t factor (1) that "the offense was a n act of t error ism, or
was re lated to an act o f terrorism ."
-10- 404(a) (1). Here, the defendant placed his g ood character at issue, opening the door for the prosecution to re but the same. See State v. We st , 844 S.W.2d 1 44, 149 (T enn. 1992 ); State v. Phipps , 883 S.W.2d 13 8, 152-53 (Tenn. Cr im . A pp. 1994) . Furthe

r, the pr obative v alue of t

his evidence was not outweighed by the danger of unfai

r prejudice. See Tenn. R. Evid. 403. Under these circumstances, the trial court did not abuse its discretion by admitting this evidence.

III Fi na ll y, the defendant asserts that his sentence is excessive, complaining that the trial court erred by the application of e

nhancement factors (4), (5), (6), and (10). See Tenn. Code Ann. § 40- 35-114 (1997). 2 When there i s a chal lenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court a re correct. Tenn. Code Ann. § 40-35-401(d) . T his presumption is "conditioned

upon the a

ffirmat ive showing in

the record that

the trial court considered the sentencing principles and all relev ant facts and c ircumstanc es." Statev. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). " If th e trial c ourt appl

ies inapp ropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." Statev. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The S entencing Commission Comments provide that the burden is on the de fendant to s how the impropriety of the se ntence. Tenn. Cod

e Ann. § 40 -35-401, Sentencing Commiss ion Comment s.
Our review requires an analy sis of (1) the evidence, if any , received at the trial and sentencing hearin g; (2) the presentence report; (3) the pri nciples of s entencing and the argume nts of counsel relative to sentencing alternatives; (4) the nature a nd characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or treatmen t. T enn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In calculating the sentence for a Class A felony conviction, the presumptive sentence is the midpoint within the range if there are no enha ncement or mitigating factors. Tenn. Code A nn. § 40-35-210(c). If there ar

e enhancement factors but nomitigating factors, the trial court shall set the sentence at

or above the midpoint. Tenn. Code Ann. § 40-35-210(d). I f there are mitigating fa

ctors butno enhancement f

actors, the trial

court sha ll se t the sentence at

or below the midpoint. Id. A sentence involving

both enha

ncement and mitig ati ng factors requires an assignment of r elative weight for the e nhance ment fac tors a s a means of i ncreasing the sentence. Te nn. Code Ann. § 40-35-210(e). The sente

nce must th

en be re duced within the ra nge by any weight a ssigned t o the mitigating factors present. Id.

In arriving at

a sentence of

twenty-five y

ears, the maximum within the range, the trial court applied t he follow ing enh anceme

nt facto rs:-11-

(1) that the defe

ndant hasa previous history of crimin al convictions or crimin a l behavior in addition to those necessary to establish the appropriate range; (4) that the victim was particularly vulnerable because of ag e; (5) that the defendant treated the victim with exceptional cruelty during the commission of the offense; (6) that t he perso nal injuri es inflic ted upon th e victim w ere par

ticularl y g reat; (10) that the defendant had no hesitation about com

mitting a crime wh en the ri sk to human life was high; (15) that the defendant abused a position of private trust in a manner that significantly f

acilitated the commission of the offense; and (18) that the victim, under § 39-15-402, suffered permanent impairment of eith er physical or mental functions as a result of the abuse inflicted.

See Tenn. Code Ann. § 40-35-114(1), (4), (5), (6), (10), (15) , and (18) (1997). The trial court found the following mitigating factors applica ble:
(11) The defendant, although guilty of a crime, committed the of fense under such unusual circumstances that it is unlikely that a sustaine d intent to violate the law motivated the criminal condu ct; (1 3) th e d ef

en da nt ha d t he su pp or t o f h is fa mi ly; (13) the defenda nt had no p

rior fel ony

convicti ons; (13) the defendant is knownto be kindh earted , very

respec tful, and well mannered; and (13) the defendant had not had any disciplinary problems while inca rcerated.

See Tenn. Cod

e Ann. § 40 -35-113( 11), (13) ["any other fa ctor con sistent wit

h the purp oses of th

is chap ter" ].

The defendant asserts that the trial court erred by applying e

nhancement factor (4), that the victim was particularly

vulnerable because of ag e, because proof tha t the victim is less than six years oldis an essential element of aggra vated child abuse. The state submits that enhancement factor (4) is ap plicable b ecause

the victim , only

seven mon

ths old at th

e time of t

he offe nse, wasunable to summon help or resist the attack because of her y oung age.
Our supreme court has conc lu ded that enhancement factor (4) " relates more to the natural physical and mental limitations of the victim than merely to the vi ctim's age." State v. A dams , 864 S.W.2d 31, 35 (Tenn. 1993). Thus, the high court found that factor ( 4) could be u se d in an aggravated

rape case of a child un der the age of thi rteen, even though the age of the child is an essential element of the crime, "if the circumstance s show that the victim, because of his age or physical or ment al condi tion , was i n fact 'p artic ularl y vulnerab le,' i. e., in capabl e of res isti ng, summoning help, or tes tifying against the perp etrator." Id. Here, the victim's very young age and physical condition rendered her incapable of resisting the attack or summoning help. The medical-12-

issues associated with her premature birth sugg est that she was complete

ly d epende nt upon othe

rs, making her particularly

vulnerable to abuse. In consequence , enhancement factor (4) is applicable.

The defendant next contends that the application of en hancement factor (5), that the defendant treated the

victim with exceptional cruelty, is not supported by the record. Application of this fact or requi res a finding of c

ruelty over and above tha

t inhere ntly attenda nt to the crime for which the defendant

is convicted. State v. Embry , 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995). In other words, such evidence must “denote[] the infliction of pain or suffering for its own sake or from the gratification derived

theref rom, and not merely pa

in or suffering inflicted as the means of accomplishing the crime

charged.” State v. Kelly Hay nes , No. W1999-01485-CCA-R3-CD (Tenn. Crim. App., at Jackson, Mar. 14, 2000). Enhancement fac tor (5 ) has ty pically been ap plied in situations where the victim was tortured or abused. See State v. D avis , 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991). This cour t has uphe

ld the application of this factor based on proof of extensive physical abuse or torture, see State v. Will iams , 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995), as well as proof

of psychological abuse or torture, see State v. Thomas L ebron Mil ls and Car

l Frankl in Mills , No. 936 (Tenn. Crim. App., at Knoxville, Dec. 19 , 1 98 5) (h ol di ng th at ac ts of me nt al cr ue lt y, by themselves, ca

n be as vicious and scarring as acts of physical crue lty).

The record e stablishes that the victim suffered both blunt trauma to her head and fac e, a s evidenced

by t he bruisi ng, and

a shaking injury to her brain, which combined to cause her dea th. In addition, she had suffered several broke n ribs in the hours and day s leading up to her d

eath. She also suffered severely broken bones in both her legs within twenty -four hours of her death. Both Drs. L ett and King te stified th at these injuries would have caused excruciating pain. I n our view, the trial court did not err by a

pplying enha

ncement factor (5).

The defendant also complains that enhancement fac tor (6), that the injuries to the victim were particularly

great, should not have been applied bec ause serious bodily injury is an essential element of aggravated child abuse . The state concedes that this factor is inapplicabl e. Tennessee Code Annotatedsection 4 0-35-114 specific ally

prohibits u sing fa

ctors tha t are ele ments of the of

fense to enhance a defendant's sentence. Our supreme court

has held that "proof of

serious b odily

injury will al wa ys constitu te proof of par ticularly great inju ry." State v. Jones , 883 S.W.2d 597, 602 (Tenn. 1994). Thus, bec ause ser

ious bodily

injury is an element of a

ggravated child abuse a s charged in the indictmentin this case, it was error for the trial court to apply enhancement

factor (6) to the defendant's sentence.

Fina ll y, the defendant argues that the trial c ourt erred by finding enhancement factor ( 10) , that the defe ndant had no hesita tion about committing

a crime w here the risk to human life was high, applicable. Enhancement factor (10) is properly applied on ly when a defendant ex hibits "a culpability

distinct from and apprec iably greater than that incident to the offense for which he was
co nvicted." Id. at 603. Here, the proof adduced at trial e stablished that the defendant struck th e victim repeat edly in the head with his fist, causing swelling and bleeding in her brain. The defendant
was aware that

extra care should hav e been ta ken with th

e victim because of

the medic al proble

ms associated

with her prema ture birt h. Finall y, t he damag es adminis tered to the victim

were so-13-

extreme as to cause her death. U nder the se circumstances, it is our view that the application of enhancement factor (10) was not er ror.
The defend ant al so con tends that t he tri al cou rt erre d by refusi ng to find in mitigation that he was remo

rseful a nd that he didnot conte

mplate tha

t his condu ct would

cause or threaten serious bodily injury . The tria

l court re fused to a pply these factors, observing that an award of credit for the grief the defe ndant suf fered " would

seem to be

like a pe rson setting fire

to his house

and burn ing it to the ground and then claiming as a mitiga ting factor that

he's homeless." That

is a fair assessme nt. Moreover, the defendant's assertion that he did not contempl ate that striking an infant in the head withhis fist would cause serious bodily injury is not credible. In our view, the trial court did not err by r ejecting these miti gating

factor s.

In summary, the trial cour t improperly applied enha ncement factor (6) and

properly a

pplied enhancement

factors (1), (4), (5), (10 ) , (15), and (18). The trial court determined that the enhancement

factors outweighed the mitigating f actors and imposed a

sentenc e of twen

ty- five y ears, the maximum within the range. In our view, the appli cation of the six enhanc ement fa

ctors wou ld warrant the imposition of the maximum sentence.
Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE