# FILED
March 25, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY SESSION,

1998

STATE OF TENN ESSEE, ) ) No. 01C01-9704-CC-00143 Appellee ) ) WARREN COUNTY vs. ) ) Hon. Charles Haston, Judge JENNIE BAIN DUCKER, ) ) (Aggrava

ted Child Ab use, Appellant ) Two Counts)

For the Appellant : For the Appellee : David L. Ray

bin John Knox Walkup Hollins, W agster & Yarbrough Attorney General and Repor ter 2210 SunTrust Center 424 Church Street Sandy C. Patrick Nashville, TN 37219 Assistant Attorney Gener al Criminal Justice Div

ision and 450 James Robertson Parkwa y Nashville, TN 37243-0493 Michael D. Galligan 308 West Main Street P. O. Box 289 William M. Locke McMinnville, TN 37 110-0289 District Attorney General P. O. Box 410, Prof essional Bldg. McMinnville, TN 37 110

OPINION FILED: AFFIRMED

David G. Hay

es Judge2 OPINION

The appellant, Jennie Bain Ducker, was indicted in June, 1995, on two counts of first degree murder resulting from the aggrava ted child abuse of her two ch ildren, ages 13 months and 23 months. A Warren County jury, on October 3, 1995, found the appellant guilty of two counts of the lesser charged offen se of aggravated child abuse. Concurrent sentences of eighteen years were imposed for each of the class A felony convictions. In this appeal as of right, the appellant raises the follow ing issues: I. Whether the trial court erred in deny ing the appellant’s motions to suppress: (1) her statement to law enforcement officials, ( 2) the results of her blood alcohol test, and (3) the results of the search of her vehicle (appellant’s issues VI, VII, VIII, IX); II. Whether the crimes of Child Abuse, Tenn. Code Ann. § 39-15- 401(1994 Supp.) and Aggrav ated Child Abuse, Tenn. Code Ann. § 3 9- 15-402 (1994 Supp.), are unconstitutionally void for vagueness (appellant’s issue V); III. W hether t he eviden ce is insuf ficient to suppo rt convict ions for two counts of aggravated chi ld abuse because the trial co urt failed to properly instruct the jury as to the definition of “knowingly” (appellant’s issues I & IV); IV. Whether aggravated child abuse i s a lesser included offense of first degree murder (appellant’s issue II); V. Whether the trial court erred in admitting evidence that Mi cah Majors had previousl

y engaged in sexual

relations with the appel lant (appellant’s issue X); VI. Whether the trial court erred by permitting the prosecuti on to erroneously argue facts that were not in evi dence (appellant’s issue XI); VII. Whether the trial court erred by permitting the prosecuti on to cross-examine the appell ant regarding prior bad acts, and, subsequently, by per

mitting the prosecution to introduce rebuttal testimony concerning these prior bad acts (appellant’s issue XII); VIII. Whether the introduction of testimony and the State’s argument regarding the appellant’ s sexual relationship with Mr. Majors

and prior bad acts of the appellant constituted cumu lative error (appellant’s issue XIII); and IX. Whether the trial court erred by imposing class A felony sentences for the appellant’s convictions for aggravated child abuse since the jury was only instructed as to the class B version of the offense (appellant’s issue III).3 After a review of the rec ord and the applicable law , we affirm the judgment of the trial court.

Background

The events leading to the tr agic deaths of thirteen month old Dustin Ducker and twenty-three month ol d Devin Ducker began in the early evening hours of June 5, 1995. At around 6:30 p.m., the appel lant, the twenty y ear old mother of the victims, arriv

ed with her two chi ldren at the home of her boyfriend, Jimmy Turner. Although married, the appell ant was estranged from her husband. She spent the evening cleaning Turne r’s home and playing w ith her two children.Around 10:30 p.m., Turner retired to his bedroom accompanied by his ow n small child, whil e the appellant and her two chil dren continued to play v ideo games. Sometime during the early morning hours,the appellant and her childr en left Turner’s residence.

McMinnville Poli ce Officer Alan Dalton testified that he was on duty duri ng the early morning

hours of June 6, 1 995. He s

tated th at it had

been rai ning “o n and off” throughout the night and it was “real foggy.” Around 3:30 a.m., Officer Dalton, while patrolli ng Old Smi thville High way, observe d a white veh icle with da rk tinted windows traveling in the northbound lane. The white vehicle pulled into the Pioneer Service Station, made

a U-turn, a nd headed sout hbound towar d town. Bec

ause of the tim e of night, Officer Dalton follow ed the vehicle. The vehi cle pulled into a driv eway in a residential area. The resi dence was later determined to be a vacant house owned by the appellant’s gr

andmother. The appellant got out of her vehicle and began waving something at Officer Dalton. Dalton park ed his patrol car and w as confronted by the appellant. She asked him if he had stopped her because of her tinted windows. The appel lant explained that she had been cited earlier for tinted windows and speeding . After discussing the appel lant’s particular conc erns about these violations, Officer Dalton asked her what she w as doing out so late at nig ht.1 The appellant met the four y

oung men while she was employe d at Calsoni c. The men worked second shift , 3:00 p. m. to midnight, and were accustomed to soci aliz ing after work. The appellant

was terminated f rom Calsonic on February 20, 1995, af

ter being late for

work on several occas ions. W hile em ployed at C alsonic, s he also w orked secon d shift. 4 The appellant answered that she and her boyfriend were hav ing problems. The appellant did not appear intox icated and spoke “intelli gently.” Officer Dalt on testified that he could not see whether other persons were in the appellant’s vehicle due to the tinted windows.

At approximately 3:45 a.m. , the appellant arrived at Room 222 of the Holiday Inn in McMinnvill e. This was the temporary residence of Micah Majors , another boyfriend of the appellant. With the children s ecurely strapped in thei r car seats, the appellant closed the windo ws and locked the doors. Brad Pepper, Matt Holder,and Buddy Majors were already in the room with Micah when the appell ant arrived. 1 The four men were playing a Sega video golf game and drinking alcoholic be verages. The men continued to play their video game, paying little or no attention to the appellant. They did notice, however, that the appell ant poured herself a glass of wine. Additionally , they observed her l eave the room on two occas ions, once to get ice and once to get BC pow ders from Micah’s car. The ap pellant never mentioned that her children were in her car or that she needed to check on the children. All four men testified that, despite her us ual “dingy” attitu de, the appellant did not appear intoxicated.

Pepper, Holder, and Buddy M ajors left Micah’s room ar ound 5:00 a.m. The appellant followed the three men to the parking lot, but nev er checked on her children. As they w

ere pulling out of the parki ng lot, Pepper noticed that the appellant was already

back on the second floor balcony near Micah’s room.

When the others left his room, Micah had changed into boxer shorts and gotten into bed. The appellant kno cked on his door and he let her back in the room. Micah testified that he was trying to go to s leep, but the appellant sat nex t to him on5

the bed trying to talk

to him about a “commitment” in thei r relationship. Mica h then fell asleep. When his alarm went off the next after noon around twelve or on e o’clock, the appellant w as still there. She patted Micah on the side of the leg an d said, “I have to go.”

She never mentioned her chi ldren.

At 1:03 p.m., the appellant arrived at the emergency room of the River Park Hospital in McMinnville. While she was attempting to get one child out of the car, David Smit h, a bysta nder, he ard her sa y, “Someb ody help m e. My babie s have been in the car for four hours.” He responded to her plea for ass istance. When he reached the appellant, he observ ed that the child she was carrying appeared lifeless. The appellant told Smith that she had been shopping. Susan Smith, David Smith’s wife, tried to c

omfort the appellant, who wa s not crying at that time. The appellant informed Lois Argo, a nurse’s assistant, that she tho ught that the child was dehydrated. Geral dine Fults, a register ed nurse, also met the appellant a s she entered the emergency room. Fults noticed that both chil dren were not exhibiting any signs of life. The appell ant told Fults that the chil dren had been left in a car for three hours with the w

indows closed. She ex plained that she had fallen asleep at a friend’s house on Lucky Road.At this point, the appellant became frantic, “she was pacing the floor,” “wringing her hands,” “running her hands throug h her hair.”

Alan Cleek, the Director of Psychiatric Serv

ices, was directed to

the emergency room where he met the appellant, who w as sitting in the w

aiting area sobbing and wringing her hands. Cleek escorted the appellant to the physicians’ lounge, where she could have some privacy . Cleek asked the appellant w hat had happened and she responded that she had fall en asleep. Cleek then asked her how he could get in touch with her family. The appellant would not respond and just shook her head. Jeanine Ritc hey, a registered nur

se, was also in the loun ge when Doctors Bigbee and Snyd er entered and informed the appellant that the two children were dead. Ritchey testified that the appellant w as in a “balled position,” her eyes6

were not focuse d and her hair was dis heveled. The ap pellant starte d moaning, stating “This can’t be happening.” Shortly thereafter, law enforcement investigators arrived. Cleek infor

med the officers that the appellant w as too upset to talk and that she needed sedation. He testified that, although he did not remain in the lounge for the duration of the questioning , he felt that the appellant did not w ish to speak with law enforcement officials.

After being advised of the situation, TBI Special Agent Ma rk Gwyn was requeste d to accom pany the d istrict at torney to the hosp ital. W hen Agen t Gwyn arrived at the hospital , he noticed the appellant’s w hite Cutlass parked in front of the emergency room. As he entered the emergency room, Chief Investigator Herb Rowland informed him that the appel lant had brought the childr en to the hospital. Rowland also informed him that the appellant was in the ph ysicians’ lounge. Gwyn, accompanied by Assistant District Attorney Larry Ross, interviewed the appellant in the lounge. Gwyn tes

tified that, at this point, all questioning was j ust of an investigatory nature, because it was unknow n as to whether a crime had been committed. He explained to the appellant that she was not under arrest and that she was free to go at any time. He informed the appellant tha t he was just tryi ng to find out the fac

ts surround ing the death of the child ren. Gwy n stated that

at no time was the appellant threatened or coerced into provi ding a statement. The appellant agreed to talk with Gwyn and she appeared to compr ehend what was being s aid. She also instructed Gwy n that she did not want any of her family members in the
room.
Although the appellant appeared di straught, when posed a q uestion by Gwyn, the appellant w

ould reflect upon her answer before responding. The appellant to ld Agent Gw yn that she had spent the n ight with her boyfri end, Jimmy Turner. She had been up until around 3:00 or 4:00 a.m. playing Nintendo. During this time, the appellant had one g lass of wine. Around 4:00 a.m. , she went to bed7

and slept a couple of hours. At 8:0 0 a.m., the appellant awoke, got the children up, and went to Tiegen’s CB w here she bought a coke out of the cok e machine. She then “proceeded over to Micah Majors’, who lived behind the Ford dealership.” Officer Gwyn, who w

as aware that no residenc es were behind the Ford dea lership, further questioned the appellant concerning the location of Micah Majors’ home. The appellant explained that “he lived out past Eva’s Dairy Chef at [the] Scottish Inn.” She stated that she arr ived at Micah’s around

10:00 a.m. and she fell asleep. At 1:00 p.m., she awoke and w ent to the hospital.

During the intervi ew, Agent Gwyn noticed the odor of alcohol on the appellant. He requested that a sample of her blood be taken. The appel lant agreed to the sample as long as only one tube of blood was taken and as long as she was only “stuck” one time. These conditions were complied with and the blood sample was drawn at 2:00 p.m.
After talking with the appellant, Agent Gwyn determined that the appellant’s car constituted a crime sc ene. The car was parked immedi ately outside the emergency room entrance and was unlocked with the windows rolled down. As such, Agent Gwyn felt that the car could have easi ly been tampered with or moved. He ordered that crime scene tape be placed around the vehicle. Moreover, becau se a crowd of people was gathering around the car, h e made arrangements to transport the vehicle t

o the McMinnville Police Department impound lot. The subsequent search of the vehi cle, conducted several da ys after the incident, revealed three baby bottles on the back floorboard and a 750 milliliter bottle of Crown Royal Blended Canadian Whiskey, which was approximately one-third full, under the driver’s se

at.
Raymond Siler, Jr., a forensic scientist employ ed by the Tennessee Bureau of Investigation, conducted the analysis of the appellant’ s blood sample and8

determined that the appellant’s bl ood alcohol content at 2:00 p.m. on J une 6, 1995, was “.06 gram percent.” In rebuttal of this testimony, the defense introd uced Dr. Johnathan Cowan and Dr. Terr y Holmes, who testified that the appellant had a fungal infection on her arm and that such infection could skew the results of a blood alcohol test. Despite the te stimony of the defense experts, Siler testified that he had never heard that contaminatio n could occur in a preser ved blood sample.

Dr. Charles Harlan, the medical examiner, testified that, through the process of extrapolation, the appellant would have had a blood al cohol content of around .1925 at five in the morning,if she had stopped drinking at that time. Otherwise, he stated, in order to reach a b lood alcohol level of .06 per cent, an individual w

ould be required to consume three uni ts of alcohol in one hour. The autops ies performed by Dr. Harlan revealed

that the two young boy s died of systemic hyper thermia, a condition where the entir e body is overheated and un able to cool itself, as a res ult of being locked in the appell ant’s vehicle. Based upon established studies of ambient temperatures, Dr. Harlan testified that the temperature in the vehicle was approximately 120 degr ees at noon on June 6, 1995. He further testified that Whenever the body temperatu re rises so that the body temperature is around o ne hundr ed and six ( 106) degr ees Fahre nheit or a bout fo rtyone (41) degrees Centig rade, then, a person may hav e what is called heat stroke, and they may die as a result of systemi c hyperthermia - that is, increased body t emperature. A person would usually become unconscious when the body temperature is at a level of one hundred six degrees Fahrenheit . . . . When you reach a temperature of about one hundred and sev en point five deg rees or

higher , you st

art to c oagulat e the bod

y prote in itse lf. Dr. Harlan opined that the t wo children died at some time between 6:00 a.m. and 12:00 noon on June 6th, 1995.

In her defense, the appellant introd uced proof to establish that she s uffered from Bipolar Disorder/manic depression and that the deaths of her children were an accident. Eddie and Janie Bain,the appellant’s parents, tes tified that the appellant2 On cross-examination of Mrs. Bain, the State producedevidence th at the appel lant had consistent ly score d well within her expected level of performance throu ghout her schoolyears. 9 had both academic and social probl ems in school and did not w ant to associate with other people. 2 Her mother testified that the appellant, at age six, began experiencing sleep disorders where she would not sleep for two to three days, ultimately going i nto such a deep sleep that she coul d not be awakened. The appellant also complained of visual and auditory hallucinations. Despite these occurrences, neither Mr. nor Mrs. Bain sought medical or psychologi cal treatment for their daughter. Mrs. Bain confirmed that the appellant “self-medicated” herself with an over-the-counter stimulant, MaxAlert. Both parents admitted that they would have gladly wa

tched the appellant’s childr en had the appellant asked. Despi te the appellant’s problems as a teenager, Mrs. Bain thought that the app ellant was fully capable of taking care of her chi ldren. After the death of her chil dren, the appellant attempted suicide. Mr. and M rs. Bain placed their daug hter under a “suicide w atch,” where they tried to watch her at all times.However, Mrs.Bain admitted that the appellant had recently le ft the house at three o’clock i n the morning to visit Micah Majors. Soon thereafter, her mother took her daughter to s ee Dr. Terry Holmes, a psychiatrist in McMinnville.

Dr. Holmes testified that, based upon his evaluation of the appellant in August, 1995, she suffered from “Bipol ar Disorder,” marked by periods of depression and mania, whic h in her case included a sl eep disorder. He stated that Bipolar mania are very

uncomfortable people. They have lots and lots of agitation, and they tend to s ay, ‘Doctor, my ner

ves are killing me.’ You can have several kinds of manifestations of psychosis which is loosely defined as loss of cont act with reality ; hallucinations. . . . Al so, there is a disturbance w ith the efficiency of thought. . .. Logic and reasoning are compromised t o a great extent. People don’t think before they act. . . . During cross-ex

amination, Dr. Holmes, in r ejecting the contention that the appellant was insane, stat ed,10 This lady definitely knows the difference between right and wrong. My point is she simply didn’t think.

. . . I think she thought [that leaving her children in the locked car] was a reasonable thing to do at the time, if she thought at all. And I do n’t think she thought about it . .. she has remarkable impair ments in [her concentration].

. . . [S]he may have, from time to ti me, thought about it, but her mind went quickly on to other things. This is a woman who is pretty dri ven to do whatever it was she was doing upstairs.

The appellant, taking the stand o n her own behalf, testified that she would not make any excuses for what had happened to her children. Despite making this statement, the appellant testified th at she did not see any danger in leaving her thirteen month old and twenty -three month old sons in her l ocked car for over nine hours while she vi sited with Micah M ajors in his motel room. D espite the previous testimony of the four young men that were in the motel room that night, the appellant claimed that “[she] checked on the kids four to fiv e times.” However, she could not explain why

she did not tell the others that her children wer e in her car or that she needed to check on them.

The State called, as a rebuttal w itness, Pam Rhea, who had baby sat the appellant’s children from Aug ust 1994 until March 1995. M s. Rhea testified that, during the period that she w atched the appellant’s childr en, the appellant worked second shift at Calsonic. The appe llant would drop off the chil dren at 2:30 p.m. and would pick them up at 1:00 a.m. On February 20, 1995, the appellan t advised Ms. Rhea that she had been terminated from Calsonic. Despite the appellant’s unemployment, Ms. Rhea contin ued to care for the appellant’s c hildren throughout March 1995. Ms. Rhea rec alled one incident, on Marc h 22, where the appellant dropped her children off at 1:00 a.m. and did not return for them until the following morning at 2:00 a.m. (approximately twenty-five hours). During the appellant’s unexplained absence, she nev er called Ms. Rhea to chec k on her children. When the appellant finally retur ned for her children, she informed Ms. Rhea that she had3 The appellant ’s clai m arises from the presumption that “t he factual and legal f indings on suppression m otions are virtually conclusive on appeal unless the defen se can show that there was no evidence t

o support the finding s of the trial cour t.” Appel lant’ s Brief, at 60 (ci ting State v. Stearns , 620 S.W .2d 92 (T enn. Cr im. Ap p. 1981) ). Our standard of appel late rev iew on suppressi on issues was fi rmly establ ished in State v. Odom , 928 S.W .2d 18,23 (Tenn . 1996), w hich held that:
11 been out with some friends and tha t she needed to go somewhere a nd sober up before picking up the childr en.

Based upon this evidence, the jury returned guil ty verdicts as to two counts of aggravated child abus

e.

I. Motion to Supp ress

The appellant contends that the tri al court erred by admitting into evidence (1) the appellant’s statement to Ag ent Gwyn, (2) the se izure of a blood sample from the appellant’s person and the subs equent results of the blood alc ohol test, and (3) the seizure of her vehicl e and its contents. Additional ly, the appellant assert s that, because the trial court fail ed to enter sufficient findings of facts upon denying her motion to suppress, this cour t must exercise an independent de novo review of the constitutional questions presented.

A. Standard o

f Appellate R

eview

The evidence presented in support of motions to suppress are generally determined by the facts and cir cumstances surrounding the challenged event. In other words, such issues are factually driven. Where resolution of factual issues are central to the determinations made by the trial court, Tenn. R. Crim. P. 12(e) requires the trial court to state its essential findings on the record. In the case before us, the trial court made no specific oral or wr

itten findings of fact. 3[t]he par ty prev aili ng in the t rial co urt is entitl ed to the st rongest leg iti mate view of the evidence adduced at the suppr ession heari ng as well as all re asonable and legit imate infer

ences that may be dr awn from it. So long as the gr eater weight

of the evidence supports the t rial co urt’s f indings, those fin dings shall be upheld.

4 We note, however, that had the record n ot been suffi cient regar ding the const ituti onal issues before us,it woul d be necessary t o remand the case to th e trial level for completi on of the record

. See Hous e v. State , 592 S.W .2d 902, 9 04 (Te nn. Crim . App.), perm. to appeal de nied , (Tenn. 1979). 12 Because of the trial court’s failure to articulate its findings on the record, the appella nt asks th is court to become t he finde rs of fac t, the arb itrators of credib ility, and the assessors of the eviden ce. However, this court lacks the juris

diction to do so. Tenn. Code Ann. § 16-5-108 (1994 ). Thus, we are constra ined in reviewing , de
novo , the application of the law to the facts, while we accredit the ruling of the trial court, if such ruling i s supported by the evid ence. See State v. Bridges , 963 S.W.2d 487, 490 (Tenn. 1997). See also Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 1663 (1996) ( “a reviewing c

ourt should take care both to review findings of hi storical fact only for clear error and to give due wei ght to inferences drawn from those facts by resident judges . . . .”). If the trial court’s findings of fact are not precise a nd cannot be substantially supplemented by the record, an appellate court i s prevented from completing any meaningful review of the law applicable to those pertinent facts. However, we find that the evidence introduced at the suppression hearings, relative to the issues now before us,was sufficiently developed. 4 Accordingly, w e proceed with a de novo review of the law applicable to the facts view ed in the light most favor able to the State.

B. App ella nt’s Stat eme nt to Agent Gwyn

The appellant contends that her stateme nt to Agent Gwyn was obtained in violation of her state and federal constitutional rights . Specifically, she ass erts that she was never provided her Miranda warnings and that her

statement resulted from an unlawful detention. See generally Miranda v. Arizo na , 384 U.S. 436, 444, 8613

S.Ct. 1602, 1612 (1966); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319 (199 3).

The Fifth Amendment protection against self-incrimination “ privileges a person not to answer official questions put to him in any proceeding, civil or criminal, where the answers might incriminate him in future criminal proceedings.” Minnesota v. Murphy , 465 U.S. 420, 426, 104 S.Ct. 1136, 1141 (1984). In fact, the statements of an accused made during the cours e of custodial interrogati on are inadmissible as evidence unless the State establishes that the accused was advised of certa in constitutional rights

and waived those rig hts. State v. Anderson , 937 S.W.2d 851, 853 (Tenn. 1996). Although w e acknowledge an indiv idual’s constitutional r

ight against self-incrimination and right to be forewarned of these rights, we likewise recognize that vol untary statements, even i f incriminating, are not bar red by the Fifth Amendment. See Miranda v. Arizo na , 384 U.S. at 436, 86 S.Ct. at 1602; see also California v. Beheler , 463 U.S. 1121, 103 S.Ct. 3517 (1983); Oregon v. Mathiason , 429 U.S. 492, 97 S.Ct. 711 (1977) ; Beckwith v. Unite d States , 425 U.S. 341, 96 S.Ct. 1612 (1976). It is only “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any si gnificant way and is subjected to questioning [that] the pr ivilege against self-incrimination is j eopardized” requir ing the authorities to adequately advise the individu al of his constitutional prot ections. Miranda , 384 U.S. at 444, 86 S.Ct. at 1612.In other words, before Miranda warnings are req uired, the accused must be the sub ject of custodial interrogation. Miranda , 384 U.S. at 444, 86 S.Ct. at 1612.

In determining whether an individual is “i n custody” as contemplated by Miranda , it is incumbent upon the rev iewing court to deci de whether, “under the totality of circumstances, a reasonable person in the suspect’s positio n would consider himself or herself depr ived of freedom of movement to a degree associated with formal arrest.” Anderson , 937 S.W.2d at 855. Facto rs relevant to this determinatio n include, but a re not limited to the following:14 # the time and location of the interr ogation # the duration and character of the questioning # the officer’s tone of voice and g eneral demeanor # the suspect’s m ethod of tran sportation to t he place of quest ioning; # the number of police officers present # any limitation on movement or other form of restraint impos ed on the suspect during the inte rrogation; # any interactions between the officer and the suspect # the suspect’s verbal o r nonverbal responses # the exten t to which t he suspe ct is conf ronted wit h the law enforcement officer’s suspicions or evidence of guilt # the extent to which the suspect is made aware that he or she is free to refrain from answering questions or to end the int erview at will.
Anderson , 937 S.W.2d at 855 (citations omitted).

Considering the totalit

y of the circumstances now before us, we hold that the evidence, taken in the li ght most favorable to the State , supports a conclusion that the appellant was not in custody when she gav e her statement to Agent Gw yn. The appellant was already

sitting in the phys icians’ lounge when approached by Agent Gwyn and she made no attempt to leave. Agent Gwy n repeatedly told the appell ant that she was not under arr est and that she was free to l eave at any time. Indeed, at the time of the interview , Agent Gwyn wa s not certain that the deaths of the children were the result of crimi nal conduct. At no time did Gw yn threaten or coerce the appellant into providing a statement. In fact, the appellant ag reed to talk with Gw yn, and was responsive to

the questions posed to her. Although defense witnesses testified that they wer

e prevented from entering the physicians’ lounge b y deputies during the interview, they were only prevented from entering pur suant to the appellant’s request that she did not wish to see any family members. Under these circumst ances, a reasona ble perso n in the ap pellant ’s positio n would no t have considered himself or herself deprived of freedom of movement to a degr ee associated with formal arrest. Therefore, the appellan t’s statement did not arise from a custodial environment w ith the attendant entitlement to Miranda warnings. Moreover, despite the appar ent emotional state of the appellant at the time of the interview, the evidence at the suppression hearing indicates that the appellant’s15

responses were vol untary. This issue is without merit.

C. Seizure of the Bl ood Sample

The appellant also contests the s eizure of the blood sample taken from her person and the ensuing results of the blood alcohol tests per formed on that sample. The appellant’s argument is twofold. First, the appel lant contends that the blood sample was seized as a result of her unlawfully obtained statement, and thu s, should h ave been e xcluded u nder the “fruit of the poiso nous tree doctrine .” As we have concluded that the appell ant’s statement was not obtai ned in violation of any of her constitutional rig hts, this claim is w ithout merit. Second, the appell ant contend s that the blood sam ple was tak en withou t her cons ent and wa s the eff ective result of coercive poli ce tactics. We disagree.

The withdrawal of blood from a subject for purposes of serolog ical testing for the presence of alcohol or drugs constitutes a search w ithin the constraints of the Fourth Amendment and, therefore, a searc h warrant is genera lly required. See Schmerber v. California , 384 U.S. 757, 767-72, 86 S.Ct. 1826, 1833-37 (1966); see also State v. Jackson , 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993), perm. to appeal denied , (Tenn. 1994). Unless it fall s within a specificall y established and well-delineated exception, a search conducted without a warrant is per se unreasonable. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 2043 (1973) (citations omitted) . “One of the specifically established exceptions t o both a warrant and probable cause is a search that is conducted pursuant to a voluntarily given consent.” Id . at 219, 93 S.Ct. at 2043-2044 (c itations omitted); see also State v. Bartram , 925 S.W.2d 227, 230 (Tenn. 1996). The burden of proof rests upon the State to show, by a prep onderance of the evidence, that the consent to a warrantless search was given freely and voluntarily. Schneckloth , 412 U.S. at 248- 49, 93 S.Ct. at 2059; Bumper v. North Caroli na , 391 U.S. 543, 548, 88 S.Ct. 1788,16

1792 (1968); Bartram , 925 S.W.2d at 230. The question of whether the appel lant voluntarily consent

ed to the search is a question of fact which focuses upon the totality of the circumstanc es. Schneckloth , 412 U.S. at 248-249, 93 S.Ct. a t 2059.

In the present case, the testimony revealed that, upon observ ing an odor of alcohol on the appellant, Agent Gwyn requested that

the appellant provide a bl ood sample. The appellant agreed on the condition tha t “you stick me one time and take one vial of blood.” The appella nt “put her arm out there; she voluntarily gav e it. And, when the nurse stuck the needle in there, she show ed no signs that it hurt or anything.” A trial

court’s finding that a sear ch is consensual is pres umed correct and is conclusive on appeal unless the evidence preponder ates against the ruling

. State v. Woods , 806 S.W.2d 205, 208 (Tenn. Crim. App. 1990), perm. to appeal denied , (Tenn. 1991), cert. denied , 502 U.S. 1079, 112 S.Ct. 986 (199 2); see also State v. Dougherty , 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996). We conclude that the evidence in the record s upports the trial court’ s finding. This issue is without merit.

D. Search of the A

ppellant’s Vehicle

In her final suppression issue, the appellant asserts that th e warrantless seizure of her vehicle and the subsequent search and seizure of its contents were unlawful. Specifically , the appellant adopts her arg ument previously rel ied upon for suppression of the blood sample: that the sea rch was the product of illegally obtained statements. Again, thi s claim is without mer it as we have determin ed the appellant’s statement to be v oluntarily giv

en. The appellant also asserts that the search was unlawful bec ause the search was conduct ed without a warrant

and no warrant exception w

as presented by the State to j ustify the search.17 The record before this court reveals that, after obtaining the appellant’s statement, probable cause exi sted for Agent Gwyn to search the vehicle for “property that constitutes evidence of the commission of a crimin al offense.” See Tenn.R.Crim.P. 41(b)(1). At that time, the appellant’s vehicle was parked outside the emergency room entrance to the hospital. The vehicl e was unlocked and the windows were rolled down. Agent Gwyn instructed officers to secure the vehicle with crime scene tape. However, because a cr owd of people were gather ing around the vehicle and because the v ehicle was blocking

the emergency entrance, he later made arrangements for the vehicle to be moved to the McMinnville Police Department impound lot. The actual s earch of the vehicle was conducted one or two days later w

ithout a warrant, rev

ealing a one-third full 750 milliliter bottle of whiskey. At the conc

lusion of the appellant’s motion t o reconsider the search of the vehicl e, the tr

ial cou rt concluded th at “the e xigen cies di d, based

upon the

proof I heard, permit [the vehicle] to be searched in the fashion an d way it was.”

As previously stated, the analysis of any warrantless search and seizure begins with the propos ition that such searches ar e per se unreasonable under the Fourth Amendment, unless it falls within a specificall

y delineated exception. Schneckloth , 412 U.S. at 219, 93 S.Ct.at 2043 (citations omit ted). Our s upreme court has recognized that a warrantless sear ch of a vehicle in a public place, in the aftermath of a crime, and when there is probable cau se to believe the vehicle contains items that are subjec t to seizure, is entitled to a conclusive pr esumption of exigency, permitting the warrantless search, even absent actual likelihood of risk of delay in obtaining a w

arrant. State v. L eveye , 796 S.W.2d 948, 952 (Tenn. 1990) (adopti ng the r

ule of California v. Carney , 471 U.S . 386, 10 5 S.Ct. 2066 (1985)). I f a warrantless search at the scene is permissible, then the police may seize the vehicle and later conduct the search at the station. See Florida v. Myers , 466 U.S. 380, 182, 104 S.Ct. 1852, 1853 (1984); Michigan v. Thomas , 458 U.S. 259, 261, 102 S.Ct. 3079, 3080 (1982). In the pr esent case, Agent Gwy n was aware that the18

appellant had brought her tw o children to the emergency room in her vehicle. After interviewing the appellant, he determined that the v ehicle was the scene of the crime and probable cause ex isted to believe that the v ehicle contained evidence of that crime. Thus, a warrantless search of the vehicle was permissible. Moreover, due to the location of the vehicle and the crowd of people ga thering around it, Agent Gwyn was justi

fied in securing and transpo rting the vehicle t o the impound lot.

The appellant additionally ar gues that the delay in c onducting the search of the vehicle is per se

unreasonable. We disagree. There is no r equirement that the warrantless search of the vehicle occur contempor aneously with its lawful seizure. United States v. Johns , 469 U.S. 478, 484, 105 S.Ct. 881, 885 (1985 ) (citing Texas v. White , 423 U.S. 67, 68, 96 S.Ct. 304, 305 (1975) ( per curium ); Chamber s v. Maroney , 399 U.S. 42, 52, 90 S.Ct. 1975, 1981 (1970)). The “justificati on to conduct such a warrantl ess search does notvanish once the car has been immobilized.” Thomas , 458 U.S. at 261, 102 S.Ct. at 3081. A vehicle lawfully in police custody may be searched on the basis of probable cause to be lieve that it contain s contr

aband, an d there i s no req uirement of exi gent ci rcumsta nces to j ustify such a warrantless s

earch. United States v. Johns , 469 U.S. at 484, 105 S.Ct. at 885 (citations omitted). Although police officers may not indef initely retain possessi on of a veh icle and i ts conten ts befor e they com plete a ve hicle sea rch, we conclude that a search conducted within two days of the lawful seizure i s not unreasonable and is consistent with precedent invol

ving searches of impounded vehicles. See Tenn. Code Ann. § 40-6-107 (1990) ( “[a] search warrant shall be executed and retur ned to th e magistra te by whom it was issued within five (5) days after its date, after which time, unless executed, it i s void.”) This iss ue is without merit.19 II. Constitutiona lity of Tenn . Code Ann. § 39-15-401 and § 39-15-402

The appellant contends that “Tenn. Code Ann. § 39-15-401 (child abuse) and Tenn. Code Ann. § 39-15-402 (agg ravated child abuse) ar e unconstitutionally v

ague on their face.” Specifically, she asserts that “the phr ases ‘inflict injury

’ and ‘adversely affect the chi ld’s health and welfare’ in Tenn. Code Ann. § 39-15-401 and ‘act of abuse’ in Tenn. Code Ann. § 39- 15-402 are so vague that per sons of common intelligence must necessarily guess at their meaning and diff er as to their application.” Alternati

vely, she argues that, even if the statutes are constitutional on their face, they have been unc onstitutionally applie

d under the facts of the present
case.
A basic principle of due process is that an enactment whose prohibition s are not sufficiently or clearl y defined is void for v

agueness. See State v. Malady , No. 02C01-9506-CR-00166 (Tenn. Cr im. App. at Jackson, Jul. 26, 1996). However, due process does not requir e that a statute be drafted with unequivocal certainty

. State v. McDonald , 534 S.W.2d 650, 651 (Tenn. 1976), cert. denied , 425 U.S. 955, 96 S.Ct. 1733 (1976). All that is required is that the law give suffici ent warning so that men may conduct themselves s o as to avoid that whi ch is forbidden. See State v. Baghdadi , No. 03C01-9403-CR-00112 ( Tenn. Crim. App. at Knoxvi lle, Nov. 27, 1995), perm. to appeal denied , (Tenn. May 13, 1 996) (citing Rose v. Locke , 423 U.S. 48, 50, 96 S.Ct. 243, 244 (1 976)).

When reviewing a statute for a possible constitution al infirmity, we are required to indulge ev

ery presumption and resol ve every doubt in fav

or of the constitutionality of the s tatute. Petition of Burson , 909 S.W.2d 768, 775 (Tenn. 1995) (citation omitted). Nevertheless, to surv ive a constitutional c

hallenge for vagueness, “[a penal] s tatute must ‘give the per son of ordinary intelli gence a reasonable opportunity to know what is prohibited, so that he may act accordingly.’”20

State v. Lakatos , 900 S.W.2d 699, 701 (Tenn. Crim. App. 1994), perm. to appeal denied , (Tenn. 1995 ) (citing Grayned v. City of Rockford , 408 U.S. 104, 108, 92 S.Ct. 2294, 2298 (1972)). See also Kolender v. Lawson , 461 U.S. 352, 357, 103 S.Ct. 1855, 1858 (1983); Davis-Kidd Booksell ers, Inc. v. McWherter , 866 S.W.2d 520, 532 (Tenn. 1993); State v. Lyons , 802 S.W.2d 590, 591 (Tenn. 1990). “No one may be required at peri l of life, liberty, or pr operty to speculate as to the meaning of penal statutes. All are enti tled to be informed as to what the state commands or forbids.” Lanzetta v. State of New Jersey , 306 U.S. 451, 453, 59 S.Ct. 618, 6 19 (1939). Moreover, the statute should not encourage arbitrary or discriminatory enforcement. Lakatos , 900 S.W.2d at 701. See also Kolender , 461 U.S. at 357, 103 S.Ct. at 1858; Davis-Kidd , 866 S.W.2d at 532; Lyons , 802 S.W.2d at 591. Finally, the standard of certainty required in criminal statutes is generally more exacting than in noncri minal statutes. Leech v. American Booksellers Ass’n, Inc. , 582 S.W.2d 738, 74 6 (Tenn. 1979) (citation omitted).

The challenged statutes read, i n pertinent part: Tenn. Code Ann. § 39-15-401. Child Abuse and neglect. -- (a) Any person who knowingly other than by accidental means, treats a child under eighteen (18) year s of age in such a manner as to inflict injuryor neglects such a child s o as to adversely affect the chil d’s health and welfare is guilty of a Clas s A misdemeanor provided, tha t if the abused child is si x (6) years of age or less , the pen alty is a cla ss D felon y. Tenn. Code Ann. § 39-15-402. A ggravated child ab use. -- (a) A person is guilty of the

offense of aggravated child abus e who commits the offense of child abuse as defined in § 39-15- 401 and; (1) The act of abuse results in serious bodi ly injury to the c hild. (emphasis added).

Again, the appellant challe nges Tennessee’s child abuse statute on the grounds that the phrases “i nflict injury” and “a dversely affect the child ’s health and welfare” are unconstituti onally void for vag ueness. Specifically, s he asserts that the term “injury” “c

ould include physical,emotional or pecuniary i njury. . . . Thus, the phrase ‘inflict injury

’ is entirely subj ective and does not giv e a person of common21

intelligence fair warning or reasonable notice of what conduct is prohibited.” This same argument was reject ed by a panel of this court i n State v. Baghdadi , No. 03C01-9403-CR-00112. In Baghdadi , Judge Tipton, writi ng on beh alf of a unanimou s panel o

f this co urt, hel d that “[

w]e do n ot judg e the con stituti onality of a statute by theorizing

all of its possible appli cations to determine if any appl ication of the statute could be unconstitutional.” Moreover, because “a statut e may prohibit some conduct with sufficient cl arity, although it may be vague if applied to other conduct, . . . a defendant may be li mited to challenging onl y his own conduct under the statute.” Baghdadi , No. 03C01-9403-CR-00112. “Injury” as contemplated within the meaning of Tenn. Code Ann. § 39-15-4 01(a), encompasses “any reasonable definition of the term.” Id . Clearly, bodily injury resulting in death is necessarily included within this definition. This challenge i s without merit.

The appellant also contends that the challenged statute fails to de fine what conduct may “adversel y affect the child’s health and welfare.” Again, w e find her claim to be without merit . In State v. Smith , C.C.A. No. 1153 (Tenn. Cri m. App. at Knoxville, Sept. 20, 1990), a panel of this court held that “[t]he neglect of ‘a child so as to adversely affect its health and welfare’ present s a plain and certain meaning

. The warning of the prohibited conduct is . . . sufficiently clear.” W e are in accord with the previous r

ulings of this court. This issue is likewi se without merit.

Finally, the appellant claims that Tenn. Code Ann. § 39-15- 402(a)(1) and (2) only defines as an offense an “act of abuse, ” whereas, Tenn. Code Ann. § 3 9-15- 401 refers to both “abuse” and “n eglect.” According ly, she argues that “ it is unclear whether the neglect that adversely affects the chil d’s health and welfare that r esults in serious bodily i njury constitutes ag gravated child abuse unde r Tenn. Code Ann. § 39-15-402(a)(1).” In other words, the appellant argues that “[l]eaving a child unattended in a car is possib ly child neglect but it may not be an affirmative ‘act of abuse.’”22 This cou rt’s prima ry goal in int erpretin g statute s is to det ermine th e legislat ive intent behind the statute. State v. Smith , 893 S.W.2d 908, 917 (Tenn. 1994), reh’g denied , (Tenn. 1995), cert. denied , 516 U.S. 829, 116 S.Ct. 99 (1995) . In doing so, we look first to the statute itself and rely upon the pl ain meaning of the language and terms used. Id . The challenged statute clear ly, from its plain lang uage, includes as acts of aggravated chil d abuse any offense defined under Tenn. Code Ann. § 39-15- 401(a) which results

in serious bodily i njury, as in the present case, or is committed with a deadly weap

on. Cf. Comments, Tennessee Attorneys Memo Leg islation Service, p.25 (June 16, 1998). Tenn. Code Ann. § 39-15-40 1 includes both child abuse and child neglect. Al though this statute could hav e been drafted with greater precision, this alone does not invalidate the statute u nder the vagueness doctr ine. Lyons , 802 S.W.2d at 592. See also State v. Lunati , 665 S.W.2d 739 (Tenn . Crim. App.), perm. to appeal denied , (Tenn. 1983), cert. denied , 466 U.S. 938, 104 S.Ct. 1913 (1984). The appellant is correct in her assertion that “this is not an acad emic debate.” The statute in questi on is clear and unambiguous an d it is our duty to construe it as it was

written by the Gener

al Assembly, and not as the ap pellant desires. Gabel v. Le rma , 812 S.W.2d 580, 583 (Tenn. App.), perm. to appeal denied , (Tenn. 1990 ) (citing Jackson v. Jackson , 2 10 S. W.2 d 3 32(1 94 8) ). We remain mindful that penal statutes ar e to be construed according to the fair import of their terms, to promote justi ce, and to effect the objective of the criminal code. Tenn. Code Ann. § 39-11-104 (1991). Accordingly, w e conclude that a common sense reading of the challeng ed provision fails to sup port the appellant’s argument

. This issue is without merit.

III. Aggrav

ated Child Abuse as Lesser Included Of fense

The appellant was indicted an d charged with tw o counts of first degree murder under Tenn. Code Ann. § 39-13-202(a)(4) (1994 Supp.), which defines first5 In addressi ng the offense of first degree murder by aggr avated chil d abuse, a panel of this court

recently

held that

“[t] here is not hing inconsi stent about a reckless kil ling bei ng comm itted in the course of a knowing child abuse.” State v. Roberson , No. 02C01- 9702- CC00083 (Tenn. Crim. App. at Jackson, Jan. 23, 1998)(comparing§ 39-13-202(a) (4) wit h the concept of felony murder, § 39-13 -202(a)(2)).

6 Tenn. Code Ann. § 39-15-4 01(d) provi des, in par t: “[a] viol ation of [39-15-401(a)] may be a lesser i ncluded offense of any kind of homicide . .. if the victi m is a child and the evidence suppo rts a cha rge und er this sec tion.” 23 degree murder as the “reckless killing of a chi ld less than sixteen y ears of age, if the child’s death results from aggravated child abuse, a s defined by § 39-15-402, committed by the defendant against the child.” The trial cour t instructed the jury as to the elements of this offense and as to the el ements of the offense of aggravated child abuse as defined by Tenn. Code Ann. § 39-15 -402. The jury returned a verdict of not guilty as to the tw o counts of first degree murder.However, they did find the appellant guilty of tw

o counts of aggravated chi ld abuse under Tenn. Code Ann. § 39-15-402.

The appellant now contends that her convictions for aggravated child abuse are void “since [ag gravated child abuse] i s not an included offense of first degree child murder.” Specifical ly, the appellant argue s that, because she was char ged with the “reckless

” killing of her chil dren, “aggravated c hild abuse cannot be a lesser included offense of this species of homici de since child abuse requ ires the higher mental state of ‘knowingly.’” 5 Although the appellant conced es that, by statute, misdemeanor child abuse may be a lesser included offense to homici de, see Tenn. Code Ann. § 39-15-401(d); 6 State v. Roberson , No. 02C01-9503-CC-00059 ( Tenn. Crim. App. at Jackson, Dec. 28, 1995), she argues that aggravated child abuse is not, as it contains no comparabl e provision.

Tennessee law recogniz es two types of lesser

offenses that may be included in the offense charged in an indictment and, may, therefore, form the basis for a convicti on: a lesser grade or class of the charged offense and a lesser included off ense. The two, though similar, are not synonymous.7 In other wor ds, alt hough generally to t he contrary , an offense may be a l esser grade or class of offense even though it requir es the same or higher cu lpabil ity than that

required by

the greater off

ense. For example, vo luntary manslaughter, whi ch requires the mental state of knowing, i s not a lesser included of

fense of second degree murder (also requi ring a knowing mental state) because it requires the additional element of provocation. However, voluntary manslaugh ter is a lesser grade or class of second de gree murde r because of the statutory grading of homici de offenses establ ished by our legisl ature. 24 State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996). An offense is “lesser included” in another “if the elements of the greater off ense, as those elements are set forth in the indictment, include but are not congruent with, all the elements of the lesser.” Trusty , 919 S.W .2d at 310-311 (quoting Howard v. State , 578 S.W.2d 83, 85 (Tenn. 1979)). However, a lesser “grade or class” of offense is established by the legislature and is determined simply by reading the statutory provisions. 7 Trusty , 919 S.W.2d at 310.

Necessarily incl uded within the offense of aggrav ated child abuse, as defined in Tenn. Code Ann. §39-15-402, is the offense of child abuse and neglect, as defined in Tenn. Code Ann. § 39-15-401. Tenn.Code Ann. § 39-15-401(d) prov ides that, if fairly raised by

the evidence, child abuse is a lesser offense of first degr ee murder. See Roberson , No. 02C01-9503-CC-00059. This provision, despit e the appellant’s assertions, is necessarily encompassed within the aggravated child abuse statute. Accordingly, we hold that, in the present case, aggravated child abuse is a lesser include d offense of first degree murder as defined i n Tenn. Code Ann. § 39-13-202(a)(4). See Roberson , No. 02C01-9503-CC-00059 ( holding by implication that aggra

vated child abuse is a l esser offense of first degree murder)

. This issue is without merit.

IV. Sufficiency of the Evidence

The appellant next contends that the evidence is insufficient t o support her convictions for aggr

avated child abuse because the State failed to prove “know ing8 W e note tha t the appe llant’s sufficien cy argum ent also e ncom passe s her ch allenge to the tri al court’s instruct ion on the def init ion of “knowi ngly. ” As one issue cannot be addressed without logical

reference to the other,both wil l be consider ed in our anal

ysis of the suffi ciency of the evidence. 25 conduct” beyond a reasonable doubt, i.e. , that she “was actuall y aware that her conduct was reasonably certain to cause the resulting injury to her children.” Specifically, the appella nt challenges the trial court’s instructions to the jury as they relate to the requisite mental state of “knowing” as the definition of this term appl ies to the offense of aggravated chil d abuse. 8 She argues that th e erroneous cha rge altered the State’s burden of prov ing the elements of the offense beyond a reasonable doubt.

We begin our analysis of the appellant’s issue by first noting

that the implications of this issue extend beyond the boundaries of this case. The appellant’s challenge ass ails the method by whic h juries are currently

instructed as to the requisite mental st ate of the charged offense. With this in mind, we write not with the purpose of reaching a desired result but, rather, of effecting the intent of our legislature as expr

essed in its enactment of our cr iminal code.

A. Theories of

Culpable Mental Stat es
Central to the concept of crimi nal liability is that, before there can be a crime, there must be an act, or actus reus , which must be accompanied by a criminal mind,
or mens rea . The ear

ly conc ept of mens rea

meant little more than a “g eneral notion of blameworthiness,” or an “evil meaning mind.” See21 A M
. J UR
. 2 D Criminal Law § 129 (1981). Over time, this general concept shifted from this vague notion of wickedness to a more definit e requirement of a specific sta te of mind to do that which is prohibited b

y the criminal law . Thus, no longer could the r equirement of “wickedness” suffice. R ather, a different state of mind was required for each crime. This development in the common law culminated in the creation of eighty or so9 The greater area of confusion i s found in t hose multipl e culpabil ity crimes which provi de for no culpabl e mental state in the def init ion of th e offense. Under the provisi ons of our cri minal code, if the mental state for the resp ective el ement is not defi ned in the of fense, “i ntent, knowi ng or reckless suff ices . . . with respect to ea ch element of the o ffense.” Tenn. Code Ann. § 39-11- 301(a)(1). For example, the of fense of aggravat

ed sexual batt

ery, causi ng bodily

injury , Tenn. Cod e An n. § 3 9-13 -504 (199 7), co ntain s two elem ents : (1) u nlaw ful se xua l cont act a nd (2 ) bod ily injury. Beca use the definition of s exual co ntact req uires an “ intentional” tou ching, the requisite mental state f

or this el ement is that o f “intentional .” However, because the offense d efines no men tal state for “b odily injury,” a m ental state of either “inte ntional, kn owing or reckles s suffice s.” 26 culpability terms. See generally Paul H. Robinson, Element Analysis in D efining Criminal Liabili

ty: The Model Penal Code and Bey ond , 35 Stan. L. Rev. 681, 691 ( 1983). Even with a specific mental state existing for each offense, u nder this “offense analysis,” of culpabil ity, it was soon r ecognized that each speci fic mental state was multifaceted. Id . In a traditional “offense analysis” offenses were referred to simply in ter ms of one encompassing mental state for the offense, i.e. , an intentional offense, a knowing offense or a reckless offense. Prior to the enactment of our 1989 code, this state em ployed “offense analysis.” However, where different culpability requirements are appropriate for diff erent elements, offense analysis fosters definition s that obscure the requis ite mental state. Id. As in the case of the offense of possession of a control led substance with the i ntent to sell, Tenn. Code Ann. § 39-17-417(4) (1997), proof of different mental states are required for the respecti ve elements of (1) the knowing possession of a controlled substance and (2) the intentto sell the same. 9

The pleth ora of mentes reae originating from the common law created much confusion and ambiguity. Thus, i n 1955, the drafters of the Model Penal Code sought to eliminate this c onfusion and narrowed the multitude of existing culpabil ity terms to four: purpose, knowl edge, recklessness, and neg ligence. See M ODEL P ENAL C ODE § 2.02 (1985); see also Tenn. Code Ann. § 39-11-301(a)(1 ) (1991) (delineating the levels of culpability and providing that “a person commits an offe nse who acts intentionally, knowingly, r ecklessly, or w

ith criminal neglig ence).” In furtherance of this concept, the Mode l Penal Code and, subsequentl y the10 On Novem ber 1, 1989, Tenness ee enacted a new c riminal code which was in large part an adoption of

the American Law Inst itute’s Model Penal Code. Among the advantages of adopting a ModelPenal Code provi sion is r ecourse to the commentary which accompanies the provisi on and to judi cial deci sions from other Model Penal Code states. However, caut ion is of ten advised when rev iewing j udicial decisions as variat ions are found in the cri minal statut es from state to state. I n this reg ard, we acknowledge that a significant por tion of the Tennessee Criminal Code, including those provisions which deal with the general principles of criminal liabilit y, were largely adop ted from the Tex as deriva tion of the M odel Pen al Code

. See Derivati on Comm ents, Propo sed D raft , Tenn . Code A nn. § 39- 403 (19 73).

11 M ODEL P ENAL C ODE § 2.02 provi des in part s pertinent

to the i ssue before us: (1) Minim um R equirem ents of C ulpability

. . . . a person i s not guilty of an offense unless h e acted purpos ely, knowin gly, reckles sly or negligen tly . . . with respect to each material el ement of the offense. (2) Kinds of Culpabi lit y Defined

. . . . (b) Kno wing ly

. A person acts knowingl y wit h respect to a

material el ement of an offense when: (i) i f the ele ment involves the nature of his conduct or

the attendant circumstances , he is awar e that hi s conduct is of that nature or t hat such cir cumstances exist; and (ii)if the e lement invol ves a result of

his conduct , he is awar e that it is practically certa in that his co nduct w ill cause su ch a res ult. . . Comparatively , relev ant porti ons of the Tennessee Code provi de: Tenn. Code Ann. § 39-11-201 - (a) No person may be conv icted of a n offense unless e ach of th e following is proven beyond a reason able dou bt:

(1) The conduc t, circumstances surroun ding the conduct, or a result of the conduct described in the def init ion of th e offense; (2) The culpable men tal state req uired . . . Tenn. Code Ann. § 39-11-301 - (a)(1) A p erson c omm its an offen se who acts intent ionally, knowingl y, reckl essly or

with cri minal negli gence, as the def init ion of the offen se requ ires, with respect to each element of

the offense

. . . Tenn. Code Ann. § 39-11- 302 - . . . (b) “Know ing” refers to a perso n who a cts kno wing ly with respect to the conduct

or to ci rcumstances surroundingthe conduct when the person i s aware of the nat ure of the conduct or that the circumstances exist . A person acts knowingly with respect to a r

esult of the person’s conduct

whe n the pers on is a ware that th e con duc t is rea son ably ce rtain to caus e the res ult. . . . 27 Tennessee Criminal Code, 10 provide that, with the exception of strict l iability offen ses, som e mental culpabil ity “must b e faced separate ly with respect to each material el ement of the cr ime ,” otherwise, no v

alid conviction may be obtained. 11 C OMMENTS , M ODEL P ENAL C ODE § 2.02 (emphasis added); Tenn. Code Ann . § 39-11- 301(a)(1). Moreover, the Model Penal Code and the Tenness ee Criminal Code both require that one of four levels of culpability must be proven with respect to each “material element” of the offense whi ch may involve “ (1) the nature of the forbidden conduct; (2) the attendant circumstances; or (3) the result of th e conduct.” C OMMENTS , M ODEL P ENAL C ODE § 2.02; see also Tenn. Code Ann. § 39-11- 201(a)(1) (1991) (providing that “no person may be convicted of an offense unless12 See gene rally Tenn. Code Ann. § 39-11- 201(a)(1); -(a)(2);Tenn. Code Ann. § 39-11- 301 (a)( 1); Ten n. Code Ann. § 39 -11-302 (b). Cf

. State v. Parker , 887 S.W .2d 8 25 (T enn . Crim

. App. 19 94); State v. Kimmel , No. 02C01-9701-CR-00006 ( Tenn. Crim. App. at

Jackson, Jan. 12, 1998) (holdi ng that t he mens rea requirements of a particul ar crime may diff er with r egard to the different elements of the crime).

13 (citi ng See, e.g. , Ala. Code §§ 13A-2-2 to -2-4 (1982); Al aska Stat. §§ 11. 81.600-.610, .900( a) (Sup p. 198 2); Ariz. Rev. St at. A nn. §§13-105 (5), -202 ( 1978 & Sup p. 198 2-1983 ); Ar k. Stat. Ann. §§ 41-202 to -2 04 (1977); Col o. Rev. Stat . §§ 18-1-501(3), -501(5) -(6), - 501(8), -503 (1978); Conn. Gen. Stat. Ann.§§ 53a-3(11)-( 14), -5 (West 1972); Del . Code Ann. tit. 11, § § 231, 251-253 (1979 & S upp. 1982); Hawaii Rev. Stat. §§ 704-204, -206 to -208, -212 to -213 (1976); Crim inal C ode of 19 61, § § 4-3 to -7, - 9, Ill. An n. Sta t. cha . 38, 4 -3 to - 7, -9 ( Sm ith-H urd 1 972 ); Ky. Rev. Stat. §§ 501.010(1), .020, . 030(2)- .050 (1975); Me. Rev. Stat. Ann. tit.17-A, §§ 34-35 (1982); Mo. Ann. Stat. §§ 562.016, .021, .026 (Vernon 1979); Mont. Code An n. §§ 45-2-101(33), (37), (58), -103 to -104 (1981); N.H. Rev. Stat. Ann. § 626:2 (1974); N.J. Stat. Ann. § 2C :2-2 (West 1982); N.Y. PenalLaw §§ 15.00(6), .05-.15 ( McKinney 1975); N.D. Cent. Code §12. 1-02-02 (1976); Ohio Rev. Code Ann. § 2901.21-.22 (Page 19 82); Or. Rev. Stat. §§ 161.085(6)-(10), .095(2), .105-.115 ( 1981); 18 Pa. Cons. Stat. Ann. §§ 302, 305 (Purdo n 1973); Tex. Penal Code Ann. §§ 6.02-. 03 (Vernon 1974); Utah Code Ann. §§ 76-2- 101 to -104 (197 8); Wash. Rev. Code Ann. § 9 A.08.01 0 (1977 )). 28 each of the following is pr oven beyond a reasonable doubt : (1) The conduct, circumstances surrounding the conduct, or a result of the c onduct described in the definition of the offense.”).

The definition of each culpability term with respect to eac h “conduct element” of an offense reflects a fu ndamental and critical principle of the Model Penal Code’s culpability scheme, the application of an “element analy sis” of culpability requirements, i.e. , different degrees of culpabilit y may be required w

ith respect to different elements of the same offense. SeeRobinson, Element Analysis in Defining Criminal

Liability: The Model Pen al Code and Beyond

, 35 Stan. L. Rev. at 699. Judicial constructi on or interpretation is not necessary to determine w hether our legislature intended to employ “element analy sis” within our criminal code. Rather, the legislatur

e’s enactment of Tenn. Code Ann. § 39-11-30 1(a)(b), requiri ng proof of a culpable mental state “w ith respect to each element of the offense,” expressly provides for the application of element analysis. 12 We acknowledge that our conclusion is in acc ord with the decisions

reached by other Model Pe nal Code states, includ ing Tex

as, whi ch have

likewise inc

orporat ed the Co

de’s in novati on of element analysis into their statutory schemes. 13 Accordingly, w e proceed utilizing

an14 We acknowledge that, alt hough supposedly a simplifi ed approach to under standing culpability, elem ent analysis has pro duced similar co nfusion and am biguity as its co unterpa rt, offense analy

sis. Legal

scholars recognize that t o rectif y such probl ems state legi slators must initiate necessary revisions to current criminal codes to express each elem ent as a separate word to negate conf usion as to whi ch conduct element t he element referen ces. Until such a time, however, the

courts are dut

y bound to separ

ate the el ements by interpretat ion. 29 element analysis approach. 14

B. Element An alysis

As stated previously , the Model Penal Code recog nizes that each culpabil ity term is defined in relation to each “conduct element” of an offense: (1) nature of the conduct; (2) the circumsta nces at the time; and (3) the r esult of the conduct. The first element, conduct, involves the nature of the proscribed act or the manner in which the defendant acts, e.g. , the physical act of committi ng an assault, or the physical restraint of another person (kidnapping)

. See People v. Derrera , 667 P.2d 1363, 1367 ( Colo. 1983) (citing Feinberg, Toward a New Approach to Proving Culpability: Mens Rea a nd the Proposed Federal Cri minal Code , 18 Am.C rim.L.Re v. 123, 128 (1980); People v. Noble , 635 P.2d 203 (Colo. 1981); People v. Andrews , 632 P.2d 1012 (Colo. 1981); People v. Curtis , 627 P.2d 734 (Colo. 1981)). The second element, circumstances surrounding the conduct , refers to a situation which relates to the actor’s cul pability, e.g. , lack of victim’s cons ent or stolen status of property. Id . The result of the defendant’s condu ct constitutes the final element, in other words, the accused’ s conduct must at least be a phy sical cause of the harmful result, e.g. , causing the death of another. Id

.
Many crimes are made up of not on ly one, but of several “ conduct elements,” including not only an act or omission, but also s ome specific result of that act or omission, or some prescri bed attendant circumstances, or perhaps both result and circumstances. See W AYNE R. L A F AVE & A USTIN W. S COTT J R ., S UBSTANTIVE C RIMINAL L AW § 3.4(d) (1986). In other words, an offense may contain one or more of these conduct elements which,alone or in combination w ith the others, form the15 But see Tenn. Code Ann. § 39-11- 302(a) (i ntenti onal refer s to nature o

f conduct or result of conduct); Tenn. Code Ann. § 39-11-302( c) (reckless r efers to ci rcumstances or result of conduct). 30 overall behavior which the Legislature has intended to criminalize, and it is those essential conduct elements to w hich a culpable mental state must apply. Correspondingly, eac

h culpability term is

defined with respect to each of the three kinds of “conduct elements”: co nduct, circumstances, and res ult. M ODEL P ENAL C ODE § 2.02. See also Tenn. Code Ann. § 39-11-302. For example, where a specific act is criminalized because of its very nature, a culpable mental state must apply to committing the ac t itself, i.e. , awareness of conduct. On the other hand, unspecified conduct which i s criminalized because of the result requires culpability as to that result, i.e. , result of conduct. Finally, where otherwise innocent behavior is criminalized due to the c ircumstances under whic h it occurs, a culpable mental state is required as to those surrounding circumstanc es, i.e. , awareness of circumstances. In other words, the analysis of the applicable mens rea varies according to the conduct el ements of the offense.

In the present offense, the applicable mens rea is “knowingly .” Tenn. Code Ann. § 39-11-302(b) defines “knowing” as: [A] person who acts know ingly with re

spect to the conduct or to circumstances surrounding the conduct when the person i s aware of the nature of the conduct or that the c ircumstances exist. A

person acts knowingly with respect to a resu lt of the persons conduct when the person is aware that the conduct is reasonably certain to cause the result.[ 15 ] When a criminal statute requires a mens rea of knowingly, it may speak to conduct, or to circumstances, or to result, or to any combination thereof, but n ot necessarily to all three. W AYNE R. L A F AVE & A USTIN W. S COTT J R ., S UBSTANTIVE C RIMINAL L AW § 3.4(d). In essence, three th eories of “knowingly ” exist, i.e. , (1) conduct; (2) circumstances; and (3) result of conduct, to correspond to the three conduct elements of a criminal offense. See Tenn. Code Ann . § 39-11-302 . Since a cr ime may consist of more than one “co nduct element,” there may be di fferent mens rea16 To determine which conduct element is appl icable, one must simply l ook at the penal proscript ion and determine whether the Legislature i ntended to puni sh “specifi c conduct” as opposed to a “specific result.” See Alvarado v. State , 704 S.W .2d 36, 39 (Tex. C rim. Ap p.), reh’g denied , (1994), cert. deni ed , 514 U.S. 1112, 115 S.Ct. 1967 (199 5). 31 requirements as to the different “conduct eleme nts” that constitute the crime, even if the required culpability is the same, e.g. “knowingly.” Because the applicable definition of “knowing” is el ement specific, a blanket instruction as to each theory, generally, will invite error. In other words, the court cannot instruct the jury that it could employ eithe r (1) conduct or (2) circumstances;
or (3) result of conduct. To do s o would effectively alter the State’s burden of proving each element of the offense bey ond a reasonable doubt. See State v. Lambert , 929 P.2d 846, 850 (Mont. 1996). For example, the offense of second degree murder is a resul t of conduct offense, that is, the intent of the legislature is to punish a person for the killing of another. 16 The trial court may only instruct the jury as to the result of conduct theory of knowingly. If the c

ourt instructed the jury

as to “awareness of conduct” or “awareness of circumsta nces,” the jury could find a defendant guilty on less pr oof than that needed to show that the defendant engaged in conduct with know

ledge that his conduct is reasonably certain to c ause the result. The dangers of a full instructi on of the applicable mens rea diminishing the State’s burden was illustrat

ed in Alvarado v. State , 704 S.W.2d 36 (Tex. Crim. App.), reh’g denied , (1994), cert. denied , 514 U.S. 1112, 115 S.Ct. 1967 (1995), the same case that the appellant contends that thi s court is bound to follow , infra . In Alvarado , the defendant was charged wi th injury to her chil d by placing the chil d in a bathtub of scalding water. At

trial, she defended on the ground that she did not know that the water was hot enough to cause burning, even th ough she admitted that she wa s angry at her child for resisting his bath and refusing to disrobe, and placed him, fully clothed, into the water, without first testing it. Id . at 39. The trial court pr ovided a general instruction as

to the applicable culpabili ty requirement and refused t o instruct on the result of the c onduct definition. The appellate cour t reversed the defendant’s conviction finding that the court’s charge permitte d the jury to convict the defendant if they found tha t she knowingly placed the child in “a tub of hot water”17 See Derivation Com men ts, Propo sed D raft , Tenn. Code An n. § 39-403 (1973).
18 The a ppellate co urt of Te xas ha s adop ted an ele men t approa ch to cu lpability requirem ents. See, e.g. , Patrick v . State , 906 S.W .2d 481, 4 92 (Te x. Crim . App.), reh’g deni ed , (1995), cert. deni ed , 517 U.S . 1106, 11 6 S.Ct. 13 23 (199 6); Hugh es v. State , 897 S.W.2d 285, 296 (T ex. Crim . App.), reh’g deni ed , (1994), cert. deni ed , 514 U.S. 1112, 115 S.Ct. 1967 (199 5); Cook v State , 884 S.W .2d 485, 4 87 (Te nn. Crim . App. 199 4); Alvarado , 704 S.W.2d at 38.

19 Acknowledging t hat the concept of “element anal

ysis” i n the Model PenalCode was foreign t

o the Texas courts, Judge Maloney, concurring wi th the majori ty’ s decision i n Cook v. State , 884 S.W.2d at 492, r ecognized, “The init ial dr afters of the Penal Code attempted to adopt the ‘e lement anal

ysis’ characte rist ic of t he Model Pena l Code. However, in removi ng two provision s key to the application of this ana lysis. . . the Legisla ture in effe ct tosse d the Co de into the air and allowed it to cra sh to the g round s plintered an d disjointed , leaving it to the c ourts to determ ine wheth er an elem ent analysis or an offe nse an alysis shou ld be em ployed in its application.” 32 without requiring a finding that she intended or knew serious bodily injury would result. Id . at 39-40.

The appellant argues that, becaus e our criminal code is der ived from the Texas adoption of the Model Penal C ode, 17 the appellate courts of this state are necessarily bound to follow the same conclusion as reached by the appellate courts of Texas. 18 Specifically, she rel ies upon the decision of the Texas Court of Criminal Appeals, the court of last reso rt for criminal appeals, i n Alvarado v. State , 704 S.W.2d at 36, which held that the trial c ourt, in instructing the jury, must limit i ts charge of the applicable mental state to the “conduct element” or elements of the offense charged, because to provide a blanket charge as to th e applicable
cu lp ab il it y r eq ui re me nt

wo ul d effect iv

el y a lt er th e S ta te ’s bu rd en of

pr oof. We concede that Texas and Tennessee hav e traveled similar paths regarding culpabi lity requirements. Furthermor e, while we acknow

ledge that Tennessee is now at the same crossroads previo usly confronted by the Tex as court, 19 we decline to adopt the explicit holding

in Alvarado

as this holding may be distinguished under the circumstances of the case sub judice . Although we agree with the appellate court of Texas regarding the pr incipal and theory behind element analysis, we decline to apply its holding of reversible error in the case now before us.

We agree with the appellant that to pro vide the jury w

ith the option that the appellant was aware o

f her conduct, aware of the cir cumstances, or

was reasonably33

aware that her conduct w as reasonably certain to cause the result, is to relieve the State of their burden of proof. To prove that a defendant is aware of her conduct is one thing; to prove that the defendant’s conduct is reasonabl y certain to produce a certain result is, although subtle, another. Alvarado , 704 S.W.2d at 39. Id . The court cannot

give the j ury the cho ice of which definition to apply to the crime charged, rather th e statut e defini ng the crim e dictate s which def inition o f “knowin gly” is appropriate as to each el ement. See Lambert , 929 P.2d at 852 (Leaphart, J. concurring).

The appellant asserts that the offense of “aggravated child abuse,” as defined in Tenn. Code Ann. § 39-15-402 and as charged in the present cas e, only contains the element of “result of conduct,” as was determined in Alvarado . We do not agree. Upon analysis

of our statutory provi sion, a purview i nto the legislative intent behind the enactment of the offense leads us to con clude that the offense, as charged in the case presently before this court, cont ains the elements of (1) awareness of conduct, (2) a wareness of circumstances ; and (3) result of conduct.

The trial court provid ed the jury with the following instructi on: Any pe rson who commits the off ense of aggravated

child abuse is guilty of a felony. For you to find

the Defendant guil

ty of this offense, the State must have proven beyond a reasonable doubt the existence of the f

ollowing essential elements: (1) The Defendant acted knowingly; AND (2) That the Defendant did: (a) Other than by

accidental means, treat a child in such a manner as to inflict injury; OR (b) Other than by

accidental means, neglect a child so as to adversely af

fect the child’s health and welfare; AND (3) (a) The Defendant used a deadly weapon to accomplish the act of a buse; OR (b) The act of

abuse resulted in seriou s bodily injury to the child The requirement of “ knowingly” is also sat isfied if it is shown that the D efen dant acte d int enti onal ly.20 The appellant also complains t hat, al though the t rial co urt provi ded the blanket instruction in its written cha rge, the co urt failed to ins truct the jur y as to the “re sult of con duct” elem ent in its oral ch arge. Altho ugh the c ourt did no t verbally recite the “result of c onduc t” element of knowingly, the court diddo so in the previous i nstructi on for fi rst degree murder. The court, i n instructing the j ury as to the defini tion of knowi ngly, remarked that thi s defini tion woul d be repe titious as it ha d bee n pre vious ly prov ided. W e con clud e tha t any e rror in the c ourt’s inadvertent omittance of the “result of conduct” element is har mless at best si nce it was pr ovided elsewhere in the oral charge and it was provided in the written charge. Tenn. R . App. P. 36(b). 34 A person acts “ knowingly” if that person acts with an awareness either: (1) That his or her conduct is of a part icular nature; or (2) That a particular

circumstance exists. A person acts knowingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause a result. (Emphasis added). A reading of this instruction impli es that, for a jury to find that the defendant acted knowingly, the jury must find that the def endant was (1) aware of her conduct or aware of the circumstances and (2) aware that the conduc t was reasonably certain to c ause a certain result as t o each material element of the offense. 20 Although this instruction is erroneous in that it did not charge the specific
mens rea

definition applicable to each “ conduct element,” we concl ude that any such error is harmless . Tenn. R. App. P. 36(a).

The prejudice in not provi ding a “conduct element” specific definition of the applicable mens rea is the alteration of the State’s burden of proof. The instruction in the present case did not r elieve the State’s burden of proof. The jury was instructed that it must find each element of the offense beyond a reasonable doubt. The definition of “knowingly ” provided by the cour

t supplied a two-prong

definition of the term, resulting in an added burden of proof upon the State, for w hich the appellant cannot now complain . Although the preferred ins truction would be one that is “conduct element” specific, we conclude that th e instruction provided in the present case did not prejudi ce the appellant. According ly, any such error in the instruction is harmless

.21 "Serious bodi ly i njury” is defi ned as bodil y inj ury which involv es: (A) A substanti al risk of death; (B) Protract

ed unconsciousness; (C) Extreme physi cal pain; (D) Protract

ed or obvious disfigurement; or (E) Protracted loss or substantial impairme nt of a function of a bodily membe r, orga n or m enta l facu lty. Tenn. Code A nn. § 39-11-106(a)(33). 35 Because we have determined that the jury instruction constitutes harmless error, we must determine whether the evidence i s sufficient to sustain the conv iction. A jury conviction removes the presumption of innocence with which a defendant is initially cloaked an d replaces it with one of guilt, so that on appeal a conv icted defendant has the burden of demonstrating that the evidence is insuffici ent. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982). It is the appellate court's duty to affirm the conviction if the ev

idence viewed under the se standards was sufficient for any rational trier of fact to hav e found the essential elements of the offense bey ond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , -- U.S. --, 115 S.Ct. 743 (1995); Tenn. R. App.P. 13(e). On appeal, the Stat e is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be dr awn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (1993).

Before a jury can find a defendant gu ilty of aggravate d child abuse as charged in the present cas e, the State must prove bey ond a reasonable doubt that the defendant “knowingly , other than by accidental means, treats a child under eighteen(18) years of ag e in such a manner as to inflict injury or neglect

s such a child so as to adversely affect the child’s health and welfare. . .” and such abuse results in serious b odily inju ry. 21 See Tenn. Code Ann. § 39-15-401; -402. “Knowing” is appl icable to the situations i n which the accused, w hile not having the actual intent to accomplish a specific wrongful purpos e, is consciously aw

are of the existence of facts which mak es his conduct unlawful. See People v. Weiss , 635 N.E.2d 635, 639 (Ill. App. 1994) . “Knowing” is o rdinarily establis hed by36

circumstantial evidenc

e rather than by direct proof. People v. Hall , 652 N.E.2d 1266, 1269 (Ill. App.) perm. to appeal denied , (Ill. 1995). The undisputed proof reveals that the appellant strapped her two childr en, Dustin and Devin, i nto their car seats, secured the window s and doors, and left her childr en alone in the car for over nine hours, never retur ning to check on them. The chil dren died as a result of systemic hyperthermi a triggered by bei ng locked in the hot vehi cle. Obviously, b y returning a guilty verdict, the jury did not accredit the appellant’s theory of the case that the deaths of her children were an accident. Nor did the jury accredit defen se testimony of the appellant’s ps ychological problems . We conclude that a rational trier of fact could find that the appel lant knew the ages of her c hildren (circumstances), knowingly strapped her children in the car (conduct), knowingly neglected them over the next nine hours (conduct), and was aware that her conduct was reasonably cer

tain to cause harm or injur y to her children (r

esult of conduct). Thus, the facts are sufficient to support a conviction for agg ravated child abuse on each count. Tenn. R. App. P. 13(e) . This issue is without merit.

V. Prior Sexual Relation ship with Micah Majors

The appellant contends that the tri al court improperly pe rmitted the prosecutor to elicit testimony from the State’s witness, Micah Majors, regarding his prior sexual relati onship with the appellant.Specifically, she conte nds that the evidence was inadmiss ible because it related to s pecific proof of character or tr ait, prohibited by Tenn. R. Ev id. 404, and because it prov ided a “specific instance of conduct of a witness for the purpose of attacking or suppo rting the witness’ credibility” by

extrinsic eviden ce, prohibited by Tenn. R. E vid. 608. We find that these arguments are misplaced. As evidence of the nature of appellant’s relationship with Majors was properly admitted to establish bias on behalf of Majors, we need not address the appellant’s 404 and 608 concerns.22 Ten n. R. E vid. 60 7 per mits imp eac hm ent o f a witn ess by eithe r part y. 37Rule 616, Tenn. R. Evid. permits a party to “offer evidence by crossexamination, extrinsi c evidence, or both, that a witness is biased in favor of or prejudiced against a part y or another witness .” 22 Bias is an important gr ound for impeachment of a witness and is an aid for the trier of fact in ass essing the weight to be afforded the witness’ testi mony. See Advisory Commiss ion Comments, Tenn. R. Evid. 616; State v. Reid , 882 S.W.2d 423, 427 (Tenn. Crim. App. 1987). Any relationship of a party to a witness which mi ght influence the testimony o f the witness is a proper subject of impeaching evide nce. See State v. Willia ms , 827 S.W.2d 804, 808 (Tenn. Crim. App. 1991). Our cour ts have long since r

ecognized that witnesses are often as muc h influenced in testifying by feelings of friendship or hostility to parties to the case as by direct pecuniary interest in the result of the trial, and for this reason, proof of the relations of the witness to the par ties may be shown. See Williams , 827 S.W .2d at 808 (citin g Creeping Bear v. Stat e , 113 Tenn. 322, 87 S.W. 653 (1905)). See also State v. Lewis , 803 S.W.2d 260 (Tenn . Crim. App. 1990); State v. Horne , 652 S.W.2d 916 (Te nn. Crim. App. 1983)). It is a well established principle that bias or prejudice of a witness is always relevant regardless of whether the matter stems from a s exual relationship. Thus,the nature of the appellant’s relationship with Mr. Majors was relevant to show bias. See Tenn. R. Evid. 401. Additionally, we cannot conclude that ev idence of the nature of the appellant’s relationship with Mr. Majors was more prejudicial than probative. See Tenn. R. Evid. 403. The jury was already aw

are of circumstances from whi ch they could infer the nature of the relati onship between the appellant and Majors. Accordingly, w

e conclude that this evide nce was properly admi tted by the trial court

. This issue is without merit.23 When counsel’s argument goes beyond t hese guideli nes, reversal is requi red if t he impropriety “affected the verdict to the prejudice of the defendant.” Cribbs , 967 S.W.2d at 783 (citi ng Harring ton v. State , 385 S.W .2d 7 58, 7 59 (T enn . 196 5)). C ritical f acto rs in d eterm ining if prejudice exists incl ude:

(1) the conduct

complained of vi ewed in li ght of the f acts and cir

cumstances of 38 VI. Prosecutorial Misconduct During Closing Argument

During closing ar

gument by the State, the pros ecutor made the following remarks: Then, when everyone left that room but Micah Majors,she had another opportunity to car e for these children. If she w as just going to talk to Micah Majors,she could have taken those c hildren to the room. She had done that many times. I su bmit, ladies and gentlemen, that more went on in that room than j ust talk. Use your c ommon sense. You know what they

did. The defense objected to this statement, but was overruled by

the trial court. The appellant contends that the statements m ade by the prosecutor were clearly erroneous since he was a rguing facts which were refuted by the ev idence elicited at trial.

Our state courts have recognized tha t closing argument is a valuable privilege for both the State and the defense and, accor dingly, have afforded w ide latitude to counsel in presenting final argument to the jury. State v. Cribbs , 967 S.W.2d 773, 783 (Tenn. 1998); State v. Cauthern , 967 S.W.2d 726, 736 (Tenn. 1998). Notwithstanding, closing argument is subject to the discretion of the trial court, which will be affirmed on appeal absent an abuse thereof, see State v. Tate , No. 02C01- 9605-CR-00164 (Tenn. Crim. Ap p. at Jackson, De c. 3, 1997) (citin g State v. Sutton , 562 S.W.2d 820, 823 (Tenn. 1978)), and must be temperate, pr edicated on evidence introduced duri ng the trial, and relev ant to the issues being tr ied. Cauthern , 967 S.W.2d at 736. The bounds of proper argument larg ely depend upon the facts in evidence, the char acter of the trial, and the conduc t of opposing counsel, State v. Townes , No. 02C0 1-9505- CC-00140 (Tenn. Cr im. App. at Jackso n, Nov. 19, 1996), perm. to appeal denied , (Tenn. Jul. 21, 1997) (cit ations omitted), and may address any relev ant and proper subject. 23 See Tenn. R. Crim. P. 29.1(b).the case; (2) the cura

tive measures undert aken by the cour

t and the pr

osecution; (3) the i ntent of t he prosecutor i n making the improper arguments; (4) the cumulat ive effect of the i mproper conduct and any o ther error

in the record; and (5) the r

elati ve strength and weakness of the case. Cribbs , 967 S.W.2d at 783 (ci ting State v. Bigbee , 885 S.W .2d 797, 8 09 (Te nn. 1994 ); State v. Buck , 670 S.W .2d 600, 6 09 (Te nn. 1984 ); Judge v. State , 539 S.W.2d 340, 344 (Tenn. Cr im. App. 1976)). 39 Moreover, both the prosecution and the defense m ust be allowed to argue not only the facts in evidence, but als o any reasonable inferences th erefrom. Tate , No. 02C01-9605-CR -00164 (citing Russell v. State , 532 S.W.2d 268, 27 1 (Tenn. 1976)); State v. Hall , No. 01C01-9311-CC-00409 ( Tenn. Crim. App. at Nashvi lle, Mar. 5, 1997), as corrected

, (Mar. 20, 1997) (c iting State v. Cone , 665 S.W.2d 87, 94 (Tenn.), cert. denied , 467 U.S. 1210, 104 S.Ct. 2400 (1984)).

Micah Majors admitted on di rect examination by the State that he and the appellant had previously shared an intimate sexual relationship. Howev er, he denied that he and the appellant had sex ual intercourse on the date of the p resent offenses. No proof was introduced at trial to either conf irm or dispel Mr. Majors’ assertion. Thus, a reasonable inference could be made as to the natur e of the appellant’s visit to Majors’ hotel room. Additionally, in its cha rge to the jury, the t rial court informed the jury that closing argument does not constitute evidence. Regardless of the inference impl ied by the prosecutor’s argument, the proof was more than sufficient to find the appellant guilty of aggrav ated child abuse as to both counts.

We conclude that the prosecutor’s statement w as within the scope of proper argument, i.e. , he made an arguable inference from the evidence presented at tri al. See Townes , No. 02C01-950 5-CC-00140 (citin g Russell , 532 S.W.2d at 271). The appellant has not shown that the inference raised by the pr osecutor during closi ng argumen t was so imp roper or in flamma tory as to wa rrant reve rsal. More over, we cannot conclude that the trial court abused its discretion in admitting the statement.40

Accordingly, this

issue is without meri

t.

VII. Prior Bad A

cts

Prior to trial, defense couns el filed a motion in limine to s uppress any evidence of the appellant’s al leged bad character or pr ior misconduct. The trial court reserved resol ution of the matter until it w as raised at trial. At trial, the State offered proof of the testimony of two w itnesses, Pam Rhea and Connie M edley, to testify as to prior inc

idents of misconduct by the appel lant. The trial court, after conducting a proper 404(b) hearing, prohibited the pr offered testimony of Rhea and Medley.

During cross-ex

amination of the appellant, the prosecutor asked her whether there had been prior incident s during which she was “too busy or too distracted to properly care for [her]

children.” The appellant st ated that there had been no prior incidents. The prosecutor then asked the appellan t about an incident during which she left her two childre n with Pam Rhea for twenty -five hours. Defense counsel objected to the question, at w hich time, the prosecutor st ated that the question was just for purposes of credibil ity. The trial court overruled the objection and permitted the question. The appellant res ponded that “she knew they were okay when they were with her. . .. I was . . . a littl e confused.” She further denied the all egation that she had informed Ms. Rhea that her state of intoxication prev ented her from picking up her children.

After the defense rested, the State soug ht to offer the testimony of three rebuttal witnesses, including Pam Rhea. The trial court sustained the appellan t’s objection as to two of the re buttal witnesses, but per mitted the State to present the testimony of Pam Rhea, restri cting her testimony to attacking the credibil ity of the41

appellant. Ms. Rhea testified that she cared for the appellant’ s two children from August 1994 until March 199 5, during which time the appellant worked the second shift at Calsonic. The appellant would “drop [the chil dren] off at two-thirty a nd was supposed to pick them up at one o’clock in the morning.” Ms. Rhea stated that, although the appellant was terminated from her emplo yment on February 20th, Ms. Rhea continued keeping her c hildren. Specifically , Ms. Rhea recalled that, on March 22, the appellant dropped the children off at one o’clock i n the morning and did not return for the childr en until two o’clock the following morning,a total of twenty-five hours. During her unexplained absence, the appellant never called Ms. Rhea to check on her childr en. When she finally returned to pick up her children, she told Ms. Rhea that “she had be en out with some f riends and nee ded to go somewhere and sober up before picking up the children.” Following Ms. Rhea’s testimony, the trial cou rt gave the jury the following instru ction: Ladies and gentlemen of the Jury, I have allowed this witness’ testimony for a limited purp ose only. You may con sider her testimony to this extent only. It is for the purpose of testing the credibility or

the believability of the defendant ’s testimony and for no other reason. You cannot consider it for the q uestion of whether or not the de fendant was disposed or not to commit the cr ime for which she, now, stands charged; only, howe

ver, for the limited purpos e of testing the . . . defend ant’s cre dibility or believabi lity.

The appellant now contends that the questioning of the appellant regarding the March babysitting incident was “inadmissible, totally irrelevant, and highly prejudicial.” She further contends that the trial cour t erred by permitting

the State to introduce the rebuttal testi mony of Pamela Rhea regarding a specific instance of bad conduct by the appellant.

Generally, character evidence is not admissibl e for the purpose of proving that a person has acted in conformity with that charac ter trait on a particular occasion. Tenn. R. Evid. 404(a). However, several exceptions to the general rule barring character ev

idence exist. Specifical ly, in a criminal c ase, if and when the accused places his or her “character in issue,” the prosecution may cros s-examine42

the accused to show that the a ccused’s character is not really good. Tenn. R . Evid. 404(a)(1); State v. Phipps , 883 S.W.2d 138, 153 (Tenn. Crim. App. 1994); N EIL C OHEN ET AL .., T ENNESSEE L AW OF E VIDENCE § 404.3 (3d ed. 1995). Specificall y, the State may inquire as to specific instances of bad conduct by the accused, provided that the prosecutor has a good faith basis for believing that the app ellant really committed the specific bad act and the specif ic bad act is relevant to the specific character trait testified to by the witness. See Tenn. R. Evid. 405(b); N EIL C OHEN ET
AL .., T ENNESSEE L AW OF EVIDENCE § 404.3. However, the prosecutor’s ability to show specific bad acts is limited to cross-examination. He may not put on extrinsic evidence (e.g. other w

itnesses) to prove that the specific acts took place, if the accused denied that they did

. See N EIL C OHEN ET AL ., T ENNESSEE L AW OF EVIDENCE § 405.3. Conversely,the defendant may not put on other w itnesses to show that the specific act referred to by the prosecutor on cross-examination never took pl ace.
Throughout the appellant’s cas e-in-chief, defense counsel prese nted testimony which port rayed the appellant as an ex tremely loving and

nurturing mother. Thus, “opening the door” for the prosecution to offer relev ant character evidence to rebut the appell ant’s proof. Accordingly, the questioning of the appellant as to the events of M arch 1995 was proper. H owever, since the appel lant denied the specific conduct of w hich she was asked on cr oss-examination, the State had to accept the answer that was given. Acc

ordingly, the questioning of Ms. Rhea as to the same instance of conduct was improper because it was extrinsic evidence of a prior bad act. Nonetheless , we cannot conclude that the improper questioning of Ms. Rhea and her responses pr ejudiced the outcome of the trial. SeeTenn. R. Evid. 403. Considering, specifically, the trial court’s instruction that Ms. Rhea’s testimony was only

to be used in determining the appellant’s credibility and, generally, the overwhelming evidence supporting the jury’s guilty verdict as to each count of aggravated chil d abuse, we find that the error was harmless beyond any doubt. Tenn. R. App. P. 36(a). Thi s issue is without mer it.43 VIII. Cumulative Error

Next, the appellant contends that the combination of errors ar ising from the closing argument of the pros ecution and testimony reg arding prior bad acts constituted an improper “character assignation” of the appe llant (issues V, VI, VII), resulting in cumulativ

e error. As we hav

e concluded that any error arising from the introduction of any characte r evidence, if any at al l, is harmless, this i ssue is without merit.

IX. Class A Sent ence for Aggr

avated Child A

buse

In her final issue, the appella nt contends that, because the tri al court failed to instruct the jury as to the class A felony version of the offense of a ggravated child abuse, i.e. , child is under six years of age, there is no conviction for the class A version of the offense. Rather, she argues, the jury co uld only have found her g uilty of the class B version of aggravated child abuse because the trial court only instructed the jury that “a child means a person under eighteen years of age.” Thus, she concludes that her class A sentences (eighteen years on each count) are unlawful. In support of her ar gument, the appellant asserts that the age of the child, provided in subsection (b), constitutes an element of the cr ime charged. Conversely, the State contends that the age requirement of § 39-15-40 2(b) is merely a punishment provision.

Our duty, as the revi ewing court, is to look at the statute before us and determine what the legis lature intended. See Smith , 893 S.W.2d at 917. T o complete our task, we must look to the statute’s language, its structure, the subject matter, and the context of the chal lenged provision. See Nationa l Gas Distri bs. v. State , 804 S.W.2d 66, 67 (Tenn. 1991). At the time of the present offenses, the44

statute defining aggrav ated child abuse provided: (a) A person is guilty of the offense of aggravated chi ld abuse who commits the offense of child abuse as defined in § 39-15-401 and: (1) The act of abuse results in serious bodily injur y to the child; or (2) A deadly weapon i s used to accomplish the act of abuse. (b) A violation of this

section is a Class B felon y; provided, that, if the abused child is six (6)

years of age or less, the penalty is a Class A felony. Tenn. Code Ann. § 39-15-402 (emphasis added). Additionally, the Sentencing Commission Comments to this offense advise that “[a]ggravated child abuse is a class B felony; however, if the child is age 6 or less, the offense is punished as a Class A felony.” Sentenci ng Commission Comments, Tenn. Code Ann. § 39-15-402 (emphasis added).

As recently recognized by the United States Supreme Court, there are “certain circumstances [under] which fundamental fairness would require that a particular fact be treated as an element of the offense . . ., but there are al so cases in which fairness calls for defining a fact as a sentencing factor.” Monge v. California , No. 97-6146 (U.S. June 26, 1998). In so holding, the Supreme Cou rt refused to adopt an absolute rule that an “enhancement constitutes an el ement of the offense any time that it incre ases the maximum sentence to w hich a defendant is exposed.” Monge , No. 97-6146 (cit ing Almendarez-Torres , 523 U.S. at ---, 118 S.Ct. at 1219 (1998)). Rather, the basic rule is that “[a] statutory provision is a penalty enhancer if its pr oof, while raising th e felony level of an offense, is not necessarily required to secure a conviction.” People v. Leske , No. 96SC693 (Colo. Apr. 13, 1998), reh’g denied , (May 18, 1998) ( for publication ) (citing Almenda rezTorres , 523 U.S. at --, 118 S.Ct. at 1229).

Guided by these principl es, we conclude that, under the present circumstances, fundamental fairness requires that the fact be tr eated as a penalty45

enhancer. Considering the structure and plain lang uage of the statute and the accompanying Commission Comments, we cannot conclude that th e legislature intended to create an additional element to the offense. By adding the “provided” clause in subsection (b) , the legislature did not create an offense that requires proof of elements different from the offense proscribed under the preceding provis ions of the statute. The offense pros cribed by the “provi ded” clause is precisely the same offense that is proscribed by the main portion of the statute. The legislature merely authorized an enhanced punishment for tho se offenders who victimize a certain subclass, i.e. , children under six years of age, of those indiv iduals, i.e. , persons under eighteen years of age, sought to be protected by criminalizing such abuse and/or neglect. See ,e.g. , Almendarez-Torres v. United States , 523 U.S. at --, 118 S.Ct. at 1219 (interpretin g 8 U.S.C. § 1326(b)(2) as a penalty provis ion rather than an additional element); Chaine v. Commonwealth , 436 S.E.2d 187, 190 (Va. App. 1993), affi ’d on re h’g , (Nov. 17, 1993) (clause setting forth age requirement in sodomy statute establishes penalty provision)

.
Additionally, in the pr

esent case, the appellant could have anticipated a sentence for a class A felony. Both counts of the indictment prov ided the appellant with notice of the age of the ch ildren. At trial, ther e was no factual dispute regarding the age of the two children. Although the trial court did not explicitly instruct the jury regarding subsection (b) of the offense, the court did instr uct the jury that “the punishm ent for t his off ense is no t less tha n fifte en years no r more tha n twenty-f ive years imprisonment,” the sentencing range for a cl ass A felony. See Tenn. Code Ann. § 40-35-112(a)(1) (1990). No objection was made to this charge. Cf

. State v. Palmer , No. 01C01-9607-CR-00285 ( Tenn. Crim. App. at Nashvi lle, Nov. 20, 1997). In light of our interpretation that subsection (b) mere ly constitutes a punishment provision and consider ing the circumstances at trial, we cannot concl ude that any error exists. The appel lant’s claim is wi thout merit.46 Conclusion

Finding no reversi ble error committed by th e trial court, we affirm the appellant’s convictions and sentences imposed for two counts of aggravated child abuse.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_________________________________ GARY R. WADE , Presiding Judge

_________________________________ JERRY L. SMITH, Jud ge