### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs D

ecember 13,

2000 STATE OF TENNESSEE v. JEFFREY COFFEY Direct Appeal from the Circuit Court for Maury County

No. 10830 Jim T. Hamilton, Judge

No. M2000-00770-CCA-R3-CD - Filed February 23, 2001

The defendant was convicted by a Maury County jury of aggr

avated child abuse of a

child six years of age or less, a Class A felony, and was senten ced t o tw ent y- five years in confinement, the maximum sentence for a Range I, standard offender . In this appeal as of

right, the defe

ndant presents two issues for our review: (1) whether the evidence was sufficient to support the conviction; and (2) whether the sentence was excessive. We conclude that the convicting evidence was suffi cient. We further conclude th at, althou gh the trial court erred in applying enhancement factors (5) and (6), two other statutory enhanc e ment factors wer e appropriately

applied. Additiona

lly, we conc

lude that, alth ough the t rial court erred in not applying mitigating factors ( 6) and (13), the defendant was appropriately sentenced. The judgment of the trial court is aff irmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and T HOMAS T. W OODALL , JJ., joined. Gary M . Ho wel l, C olu mbi a, T enn ess ee, f or t he ap pel lan t, J effr ey Co ffey. Paul G. Summers, Attorney General and Reporter; Marvin E. C l ements, Jr., Assistant Attorney General; T. Michael Bottoms, District Attorney Gener al ; and Lawrence R. Nickell, Jr., Assistant District Attorney General, for the appellee, State of Tennesse e. OPINION Following a three-day

trial, a Maury

County jury found th

e defendant, Jeff

rey Coffe y, guilty of aggravated

child abuse, a Class A felony. He was sentenc ed as a Range I

, standard offen

der to twenty-five

years in confinement, the maximum sentence in the applicable range. In this appeal as of right, the defendant presents the following issues for our review:

I. Whether

the evidence was sufficient to support the conviction for aggravated child abuse; and1 The victim was jus t days shy of

seven months of a

ge. -2- II. Whether the sentence was excessive. Having reviewed the entire record, we conclude tha t th e evidence was sufficient to support the conviction. We further conclude that, although sentencing errors occurred, the defendant’s sentence is appropriate. Judgment of the trial court is affirmed. FACTS The victim in this case

is the infant son of the defendant and the defendant’s then girlfriend, Jennifer Gladden. At the time of the crime, Sund ay, J anuary 26, 1997, the three were living in a duplex apartment in Columbia, Tennessee. That day had be en a normal one fo

r the parents, jus

t “sitting around the house,” and feeding and playing with their six-month

old son. 1 At approximately 3:30 p.m., Ms. Gladden told the defendant that shewas going to run a quick errand. The victim was in abattery-powered infant swing in his bedroom. I t was nap time, but he was not yet fully asleep andwas still “fussy.” The defendant was in the living room watching TV. Whe

n Ms. Gladden left

, there was no one else in the apartment other than the defendant and the victim Ms. Gladden was gonesome ten to fifteen minutes. When she returned, the telephone in the living room was off the hook. The defendant came to her and told her that the victim had stopped breathing and that

he was in his room. She found her infant s on in his bed, uncons

cious and lifeles s. She carried the victim back into the living room an d called 911. Ms. Gladden tried to follow the instructions of the 911 operator to determine if there were any life signs. She

also tried CPR but was afraid of hurting the victim and so only pushed slightly on his chest in an effort to g et him to breathe again. The defendant went outside onto the porch to watch for

emergency medical personnel and leadthem to the vic

ti m. After emergency personnel arrive d, the victim was transported to Maury Regional Hospital and then a irlifted to Vande

rbilt Pediatric I

ntensive Care Uni

t. The victim wa s diagnosed

as having extensive retinal hemorrhaging; a “profoundly sever e” neurological injury; and a deep abdominal injury consistent with a “punch or kick to the abdomen.” The attending phy sician at Maury Regional Hospital noted other evidence of trauma to the victim’s skin, including bruises of varying ages on his ribs, aro und his nec k, on his face near the right eye, and on his forehe ad; scratches in the armpit area; and blisters consistent with burns on his rib and left thigh. Although the victim survived his injuries, they were so extensive that his prognosis was desc ribed by his pediatric neurosurgeon a

s “horrible.” Ms.

Gladden testified at

the sentencing

hearing that the

victim, three years old by the time of the hearing, had to be fed liquids by tube every thre

e hours, was unab

le to do anything for himself, was subject to seizures, could h

ear but was unabl

e to see, was unab

le to speak, and could acknowledge his mother’s voice and touch with vowel sounds and a smile. The defendant te

stified a t trial that some ten minutes after Ms. Gladden left to run her errand, he walked back to the bathroom and, on his way, looked

into his son’s bedroom. He saw that the victim was slumped over in the swing, and he assumedthe baby ha

d fallen asleep.

He went into-3-

the be droom and lifted his son out of the swing only to discover that he was limp and was no t breathing. The defendant yelled at the baby and shook him to get him to open his eyes and breathe. He then placed

the victim in his crib and, following a procedure that he had once seen on television, held the victim’s ankles and pressed both legs to the infant’s chest. When nothing worked to rouse the baby, he went into the living room to call for he

lp but did not complet

e the call because at that pointMs. Gladden walke

d into the apartme

nt. The defendant

could not remember how many times he performed the

leg movement or h

ow hard he shook th

e infant. ANALYSIS Issue I. Sufficiency of the Evidence
In his first issue, the defendant asserts that the evidence introduced at trial was insufficient to convict him of aggravated child abuse. The defendant contends that

the convicting evidence was all circumstantial and did not exclude, beyond a reasonable

doubt, every

other reasonab

le hypothesi

s save the guilt of the defendant. The defendant proffers the theory that the victim’s brain damage was caused by an unexplained cessa

tion of breathing, similar to what occurs in so-called “crib death” or Sudden Infant Death Syndrome (“SI DS”), and that he shook the infant only to revi ve him. The defendant had no definitive explanation for the abdominal injury, other than the suggestion that it might have been cause

d by an airplane game that the defendant played with the victim or the leg press procedure that the defendant used to try and revive the victim. In essence, the def endant argues that, although the victim wa s in his sol e care when the injuries occurred, the evidence does not exc lud e nat ural or ac cid ent al c aus es r ath er t han cri min al c ulp abi lit y. When an accused challenges the sufficien cy of the co nvicting eviden

ce, this court must review the record to determine if the evid

ence adduced at the trial was sufficient “to support the findings by the

trier of fact of guilt beyond a reasonable doubt.” Te nn. R. App. P. 13(e). This rule is applicable to fin

dings of guilt

based on direct evidence, circumstantial evidence, or a combination of bothdirect and circumstantial evidence. See State v. Dykes , 803 S.W.2d 250, 253 (T enn. Crim. App. 1990). Evidence that is circum stanti al differs from direct evidence in that it “consists of proof of collateral facts and circu mstances from whi

ch the existence of

th e mai n fact may be deduced according to reason and common experience of mankind.” Bi sho p v. State , 287 S.W.2d 49, 50 (Tenn. 1956). Circumstantial evidencealone may be sufficient to supp

ort a conviction. See State v. Buttrey , 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988) (“A criminal offense may be established exclusively

b y circums

tantial evidence.”) (citations omitted). However, if a conviction is based purely on circumstantial evidence, the evidence must “‘exclude every other reasonable theory or hypothesis

except that of guilt . . . [.]’” State v. Tharpe , 726 S.W.2d 896, 900 (Tenn. 1987) (quoting Pruitt v. State , 460 S.W.2d 385, 390 (Tenn. 1970)).
In determining the

sufficiency

of the convicting

evidence, this co

urt does not r

ewe igh or reevaluate

the evidence. See State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).-4-

Nor may this cour

t substitute its own inferen ces for those drawn by the trier of fact from circumstantial evidence. See Liakas v. State , 28 6 S. W.2 d 85 6, 8 59 ( Ten n. 1 956 ). O n th e con tra ry, upon a conviction in the trial court, this c ourt is required to

afford the State

the strongest le

gitimate view of the evidence

contained in the r

ecord, as well a

s allreasonable inferences that may be drawn from the evidence. See State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978) . Th e trier of fact det ermines the “‘weight and credibility to be given to the testimony of witnesses.’” Id. (quoting Bolin v. State , 405 S.W.2d 768, 771 (Tenn. 1966)). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Because the g uilty verdict removes the presumptionof innocen ce and replaces it with a presumption of guilt, the accu sed, in choosing to challenge the sufficiency of the convic ting evidence, has the burden of showing why the evid

ence is insuffic

ient tosupport the verdict returned by the trier of fact. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This court will not di sturb a guilty

verdict because of the sufficiency

of the evidence

unless the facts contained in the record are insufficient, as a matter of law, for a rational trier of fact to find that

the accused is guilty beyond a reasonable doubt. See id. Before

an accused can be convict ed of aggravated child abuse, the State must prove the following, bey

ond a reasonable

doubt: Aggravated child abus

e and neglect. —

(a) A person commits the offense of aggravat

ed child abuse an

d neglect wh o commits the offense of child abuse and neglect as defined in § 39-15-401 and: (1) The act of abuse results in serious bodi l y injury to the child; or (2) A deadly weapon

is used to accomplish the act of abuse. (b) A violation of this section is a Class B felony; pro vide d, that, if the abused c hild is si x (6) years of age or less, the penalty

is a Class A fel ony. Tenn. Code Ann. § 39-15-402(a)–(b) (1997).

Child abuse and neglect. — (a) Any person who knowingly, other than by accidental means, treats a child under eightee n (18) years of age in such a manner as to inflict injury or neglects such a child so as to adversely

affect the child’s health

and welfare co

mmits a Class

A misdemeanor; provided, that if the abused chil d is six (6 ) years of age or l ess , th e pen alt y is a Cla ss D fel ony. Tenn. Code Ann. § 39-15-401(a).-5- “Serious bodily

injury” mea

ns bodily injur

y which invol

ves: (A) A substantial risk of death; (B) Protracted

unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial impairment of a f u nction of a bodily member, organ or mental faculty [.] Tenn. Code Ann. § 39-11-106(a)(34).
In this case, the evidence of serious bodily injury is unc ontroverted and requires no elaboration. The issue for the jury was to determine whether the injuries to the v

ictim were the re

sult of a criminal act or of natural causes and, if a criminal act, whether the defendant was the perpetrator. Over the three days of trial

testimony, the jury heard from a number of medical experts concerning the nature and extent of the injuries to the victim and the likelihood that such injuries could be attributed to eithe

r natural or acc

idental causes. The proof at trial wa

s that when Ms. Glad

den left the victim

in the sole care o

f the defendant, she left a healthy, normal infant. When she returned approximately twenty minutes later, she found her ch ild uncons cious and lifeless. Dr. Claudia Andrews was the first medical doctor to see the victim on hi s arr ival at the emergency room of Maury County Hospital on January 26, 1997. Dr. Andrews is licensed to practice medicine in Tennessee and is Board Certified in pediatrics by the AmericanAcademy of Pediatrics. She has practiced medicine in C olu mbi a, T enn ess ee, f or t wen tythree years. Dr. Andrews testified that what she saw when the baby arrived was “a lot of evidence of trauma on the baby’s ski n.” She tes tified furt her to the fo llowing:

A. The baby

was unconscious and not responding. So we, of course, su specteda major head injury, too, because of t h e unconsciousness and the lack of respiration. Q. Did the parents adequately explain those injuries to you?
A. They said that they - - t he mother, to me, specifically, denied recent i nju ry o r fever. And the father had told me that he had been okay fiv

e minutes earlier.

So there wasn’t a

history to explain that.
Dr. Andrews testified that the damag e she saw coul d not be explained by the sequence of events the defendant related, that is, that he thought the baby was asleep in theswing; picked him up; noted that he was n

ot breathing; sho

ok him to get a res

ponse; placed him

on his back

in bed and raised his legs to his chest.-6-

Dr. Wallace Neblett, III, a board certified

pediatric surgeon, saw the victim after he had gone through initial t

estin g in the emergency room at Vanderbilt Univer sity Medical Center and had subsequently

beenadmitted to the pediatric intensive care unit. Dr. Neblett is licensed to practice medicine in Tennessee, ha ving completed h

is training in 1980 . Dr. Neblett testi fied that a CT scan showedthat there was fluid in the victim’s abdominal cavity. A sample of this fluid was extracted and indicated tha

t there was infla

mmation and bleedi

ng within the abdominal cavity. Dr. Neblett elected to perform exploratory

surgery to determine the

source of the free fluid within the abdominal cavity. What h e found ind icated, acco rding to his testimon y, the followi ng:

It indicates that thereis some type o f an injury t

o either the ly

mphatic blood vessels or to

the intestine, itself, that had caused that. And we explored, and found adjacent that, back behind the stomach, adjacent to the pancreas, in

the upper abdome

n, that there was an area of he morrhage in the retroperitoneum, which is a medical term for th e backside of th e abdominal cavity. So back behind the stomach, behind the liver , adjacent to the pancreas, there was an area of hemorrhage.
Because of what Dr. Neble

tt describe d as a “profoundly severe neurological injury ,” the victim was not able t o take feeding s b y mouth but rather had to be fed through a tube, called a gast ros tom y. Dr Neblett tes tified that th e defendant’s scenario of events on January 26 could not explain the sort of abdomin

al injury he

saw in the victim

because “it would take a very focal, deep blow to the upper abdom

en to cause the inj ury that we found, way

back in the back of the abdominal cavi ty, with other

organs adjacent to that not involved.” The injury was the “ty pe of injury that one would sustain from a

punch or a kick to t

he abdomen,” ac

cording to Dr. N

eblett.
Dr. Noel Tulipan, a board certified neurosurgeon a t Vande rbilt specializing in pediatric neu ros urge ry, first saw the victim on January 27, 1997. Dr. Tulipan is licensed to practice medicine in Tennessee, having completed his training at Johns Hopkins University. When Dr. Tulipan saw the victim, the infant

was in a coma and u

nresponsive to an

y type of testing that he

could perform. Multiple tests, including a

CT scan and

X-rays, showed “a severe amount of swelling a ll throughout the entire brain.” An MRI scan performed a year and a half late r showed “severe

permanent brain damage, throughout the entire brain.” When asked by the prosecution if

the injury to

the victim’s brain could have occurred

as a result

of the actions which the defendant claimed to have taken, Dr. Tulipan res ponded, “Ab solutely not .” Dr. Tuli pan testif ied further to the foll owing:

Q. Was there a subarachnoid hemorrhage in this situation?
A. Yes, sir. Q. What exactly is a subarachnoid hemorrhage?-7- A. Subarachnoid hemorrhage just means blood outside of the brain bas ica lly. And that was verified both by the CT scan and also by a spinal tap that showed bloody spinal fluid. Q. Okay. And w

here would the blo

od come from?
A. It would come from blood vessels on the surface of t he brain, bas ica lly. Q. And what type of

force would

be caused to generate those -- make those blood vessels break?
A. Once again, it

would have to be some kind of severe trauma. The trauma that I mentioned, like a motor vehic le accident or a malicious shaking, but

not a mild fall and no

t a gentle shakin

g to awaken or stimula

te a child, by

any means. Q. How about if you h

ad a panicked pa

rent that thought

the child wasn’t breathing? Would that account fo r it?
A. Absolutely n

ot. Q. Absolutely n

ot?
A. It is only maliciou s shaking th at no sane hu man being c oul d possibly consider normal or, you know, usual stimulat i on of a child. Q. And what is diffuse cerebral edema?
A. That’s just a fancy term meaning swelling of the entire br ain. Q. And what c ause s that swelling? Once again, what you’ve described?
A. Yeah. It can be from a variety of thing s. It can be either from - - directly from the shaking - - the injury to the brain from shaking or it could be from the lack of adequate oxygen to the brain. Q. Oka y. Was there a situat i on here where there was lack of adeq uat e ox ygen? Ano xic ence pha lop ath y?
A. That would be our b

est guess from th

ose later scans.

Yes.-8- Q. Okay. Would th

at lack of oxy

gen have caus

ed these injuries ?
A. Say again, please? Q. Would

the lack of

oxyge n have caused the subarachnoid hemorrhage?
A. No. Lack of oxygen would have cause d the swelling of the brain. Whatwe call the edema

. But it wouldn’t cause bleeding, per se. The bleeding would have had to be caused by some sort of shaking or other trauma.
On cross-examination

, Dr. Tulipan state

d that it was not possible to dete

rmine which came first, the lack of breat hing or the s haking.
Dr. Robin Sinatra, a board certified pedia tric ophthalmolog

ist at Vanderbilt U

niversity Hospital, was called in to consult with other doctors treating the victim at the P ediatr ic Intensive Care Unit. She testified that a shaking inj ury from non accidental tra

uma would be the mos

t likely cause of the extensive retinal hemorrhaging that she observed in the victim.
Dr. Joseph Gigante, an assistant professor in general pediatrics at Vanderbilt Children’s Hospital who serves ona special child a buse committee at t

he hospital, was a

lso called in

to consult on the victim’s case. Dr. Gigante, who is board certified, first saw the victim on January 27, 1997, andtestified that he was called in because of the severity of the injuries to the victim and the lack of a good explanation for the injuries. Child abuse was suspected.
Dr. Gigante was asked if the injuries he observed could have occurred as a result of

actions such as those described by the defendant. Dr. Gigante r espond ed, “No. These

were very severe, significan t injuries . . . .” Dr. Gi gante testi fied to the following:

Q. What type of injury would it take to produce those type s o f injuries?
A. I think, especially when you are looking at the head trauma and looki ng at t he b lee din g in t he b ack o f th e eyes , th e typ ica l scenarios, or typical h

istorie s wher e we might see injuries like that are in a high-s peed mo tor vehicle acc ident, or when a c

hild hadfallen from

a significant height and then landed on his head. Q. By significant height, do you mean falling fr

om a bed, or would it have to be high

er than that?-9- A. No. It would

b e much higher than a bed. I mean, it would be falling out of a w

indow three or fo

ur stories tall.
As to the defendant’ s theory con cerning SID

S, Dr. Gigante te

stified that one of

th e ke y indicators of SIDS is that an autopsy reveals “no evidence of any kind of abnormality

withthe child.” In o therwords, according to Dr. Gigante, crib death babies, “ty pically don’t have any ty pe of abdominal trauma. They don’t have any type of injuries to their head. They don’t ha ve any - - no evidence of any bleeding in the back of the ey es or the retinal hemorrhages.” Duri ng thorough cross-

examination, Dr. Gi

gante was ques

tioned as to the re

lationship betweenan infant’s stopping breathing for no apparent reason and swelling of the brain. The theory being pressed by the defendant was that lack of oxy genwas the primary cause of the neurological damage to the victim and that this lack of oxygen could have had an unknown origin as in cases of SIDS. Dr. Gigante sought to distinguish the two, SIDS and Shaken Baby Syndrome, in

the following exchange on cross-examination:

A. But typically , what happens with these children is if they get shaken violently or are

victims of Shaken B aby Sy ndrome, will lose consciousness.
As they loseconsciousness and as their brain begins to swell, the blood supply to the brain gets cut off, because of the swelling that takes place in the brain.
As the blood supply gets cut off, the y get the lack of oxygen. That lack of oxygen

to the brain causes continued damage that takes place to the brain. Q. Sure. And we may be talking about sor t o f a chicken an d egg distinction, here. But let me put it to you in the way of this hy pothetical question: Let’s s uppose that for some unknown or unexplained reason, [the victim] stopped breathing for several minutes. Then someone, in an effort to revive him shook him and shook him violently. What, from your examination o f the brain inju ry and the retin al hemorrha ging, and all, is inconsistent with that having occurred?
A. Again , because of what we see with kids - -we’ve have [ sic ] experience with children who’ve had SIDS, and have died of

SIDS. We’ve had thousands of children who have died where that exact scenario that you’ve just described is takin g place. And when-10- autopsies are done on these children, those findings - - t h e retinal hemorrhages and the brain swelling - - are just not seen.
Dr. Gigante noted that when a child dies in the crib, there is no brain s welling becaus

e the brain does not swell after death. Returning to this issue on redirect examination, Dr. Gigante stated the follow ing:
I

can’t see how a resuscitative effort of finding a baby who is not bre ath ing and shaking them would cause - - could - - again, the literature would

support that y

ou don’t see these

types of inju

ries. And again, it wouldn’t

explain the abdominal injuries, either, as far as, you know, trying

to shake the baby an

d trying to w

ake a child up andtry to revive a child. And again, in combining the degree and the extent of these sev

ere injuries,

with the lack of a real good adequate explanation as to how the injur ies have taken place; when you don’t have a good - - when there is not a good hi story for th is, these are injuri es that we typically see in children who ha ve been abused. The defendant cites two unreported cases, State v. Jimmy Lee Jones , No. 01C01-9511-CR

00367, 1997 WL 59446 (Tenn. Crim. App. Feb. 12, 1997), perm . app . denied concurring in results only (Tenn. Jan. 5, 1998), and State v. Daniel D. Naughton, Sr. , No. 02C01-9612-CR-00449, 1998 WL 119509 (Tenn. Crim

. App. Mar. 18, 1998), perm . app . denied(Tenn. Dec. 7, 1998), in support of his position that th

e evidence was i

nsufficient.
As to the opinion in Jimmy Lee Jones , the first decision upon which the defendant relies, we notethat our supreme c

ourt denied the ap

plication for per

missio n to appeal but concurred in the results only. Thus, absent certain ver y limited e xceptions, none of w hich are presen

t here, this holding has no precedential and citation value, and cannot be cited or relied upon. SeeTenn. Sup. Ct. R. 4(F)(1)-(3).
In Naughton , the second case c ite d by t he defendant, the majority opinion stated the following: The evidenceestablished that the eleven week old child was in the primary care of the appellant and

his wife, the child’s mother. At the time of the injury, however, the appellant, by his own admission, alone was supervising the child and his two year old daughter. The appellant explaine d that the injury to the victim’s leg resulted from the stroller t ipping o ver. The testimony of medical experts contradicted

this explanation, rather, the medical proof found that the injuries sustain ed re sulted from a direct blow applied by a “lot of-11- force.” Th e appellant also conceded that the leg injury occurr ed immediately

preceding the

in itial trip to the emergency room for treatment. From these fact s and circumstanc

es, a rational jur

y could draw no other inf

erence save th

e guilt of the app

ellant. Naughton , 1998 WL 119509, at *3 (citation omitted). Defendant

heredirects our attention to the dissenting opinion in Naughton , which states that the fact that “the defendant’s explana tion of th e victim’s injuries conflicted with the testimony of the doctors is not sufficient to prove his guilt beyond a reasonable doubt.” Id. at *9. As the majority opinion in Naughton

indicates, there was other, overwhelming circumstantial evidence pointing to the guilt of the appellant. Defendant’s reliance on a sentence from th e dissenting opini

on is misplaced. Here, although the evidence is sol el y circumsta ntial, that is not unus

ual in cases of ch

ild abuse where the victim i

s too young to relate the facts concerning the injuries. We re ject the defendant’s argument that th e evidence is insu

fficient to convic

t him of aggrav

ated child abuse. The probability

that the injuries to

the victim were accidental or a ttributable to natu

ral causes is so r

emote that the truth must be, as the jury conclu ded, that the injur

ies were the res

ult of culpable

child abuse andnot of

natural causes a

nd that the defend

ant was the perpe

trator of this abus

e. This issue is without merit. Issue II. Excessive Length of Sentence The defendant asserts that his sentence of twenty-five y ears as a Ra nge I, standard offender, the maximum allowable

by law for aggravated child abuse , is excessive. The trial court applied the following four enhancement factors, listed here by a ppropriate statutory number: (5) The defendant trea

ted or allowed a v

ic tim to be treated with exceptional cruelty during the commission of the offense; (6) The personal injuries inflicted upon or the amount of damage to property sustainedby or taken

from the victim was

particularly great; (18) A victim, under § 39-15-402, suffered permanent impairment of e ither ph ysical or me

ntal functions as a

result of the abus

e inflicted; and (19) If the lack of immedia

te medical treat

ment would have pr

obably resulted in the death of the victim under § 39-15-402[.]2 The defendant requested that the trial court consider,

as non-enumerat

ed mitigators , the fact

s that he had been a lovi ng fat her; h ad come f

rom a st ructu red home

environment; had contributed f inanciall y to the care of his son af ter being placed on bond;

had a good employment history; had no criminal record of any kind at the time of t he crime; and had no history of

either drug or alcohol abuse. Defendant argues on appeal that the trial court erred in fai ling to consi

der his st eady employ

ment recor

d and his l

ack of a pri

or crimi nal recor d. -12- Tenn. Code Ann. § 40 -35-1 14(5), (6), (18), (19). The trial court refused to apply any of the four mitigating factors submitted by the defendant, whi ch included the following, listed here by appropriate statutory number:

(3) Substantial grounds exist tend ing to excuse or justify the d efendant’s criminal conduct, though failing to establ ish a defense: (6) The defendant, bec

ause of you

th or old age, lacked substantial judgment in committing the offense; (11) The defendant, although guilty of the cr ime, committed the offense under such unusual circumstances th at it is unlikely that a sustained intent to violate the law motivated the criminal conduct; (13) Any other factor consistent with the purposes of this chapter. 2 Tenn. Code Ann. § 40-35-113(3), (6), (11), (13). The defendant does not contest theapplication of enhancement factors (18) and (19), but he contends that the trial cour t erred in apply

ing enhanceme

nt factors (5) a

nd (6) and in

f ailing to address on the re

cord all mitigati

ng factors submi

tted by the de

fendant. Although this court must conduct a de novo review when a defendant challenges the length, range, or manner of service of a sentence, the legislature has mandated a “ presumption that the determinations made by the court from which the appeal is takenare correct.” Tenn. Code Ann. 40- 35-401(d). The presumption of correctness is, however, “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles [of the 1989 Sentencing Reform Act] and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).
In determining the appropriate range of a sentence, the trial court must consider the evidence received at trial andthe sentencing hearing; the presentence report; the principles of sentencing , as wellas arguments concerning sentencing alternatives; the nature and c haracteristics of the crime ; evidenceoffered by both p arties as to enhancement and mitigating factors; and any statement the defendant wishes to make on his own behalf. Accordingto Tennessee Code Annotated Section 40- 35-210, the trial court shall begin at the midpoint in the range w hen determi ning the sen tence range for a Class A felony. If there are enhancing factors but no mitigating factors, the trial court may set3 The defendant asserts that t he trial court should have started at the minimum sentence of fifteen y

ears where the range is fifteen to twenty-five years for a Class A felony for a Range I, standard offender, rat her than at the midpoint of twenty ye

ars. Def endant argues that the offense d ate, January 2 6, 1997 , suppose dly predate s the amend ment to Tennessee Code Annotated Section 40-35-210 requiring sentencing courts to begin at the mi dpoint as the presumptive minimum sentence for C lass A felonies. That amendment took eff ect on July 1, 1995, and, therefore, it applies t o the defendan t. See H.R. 17 66, 99th L eg., 1st Reg. S ess. (Tenn . 1995). -13- the sentence above

the midpoint but still within the range. See Tenn. Code Ann. § 40-35-210(d). Should there be enhancement andmitigating factors, the trial court must start at the midpoint, and enhancethe sentence within the range as appr opriate for the enhancement factors, and then reduce the sentence as appropriate for the mitigating fac tors. See id. § 40-35-210(e). 3 There is no mathematical formula for weighing factors to calculate the appropriate sentence. See State v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996)

. “Rather, the weight to be afforded an existing factor is left to the trial court's discretion so long as the court complies with the purposes and principles of the 1989 Sentencing Ac t and its findings are adequately supported by the record.” Id. at 475-76 (citations omitted). Both parties agree that the trial court appr opr iat ely applied enhancement factors (18) and (19), factors that apply specifically to victims under T ennessee Code Annotated Section 39-15-402, that is, victims of child a

buse and/or neg

lect. The facts

of the case support t

he application of

these statutory enhancement factors.
As to enhancement f

actor (6), the Sta

te concedes tha

t the trial court imp

roperly appliedthis factor. We agree. To be

applicable, enh

ancement facto

rs must not be “thems

elves e ssential elements of the offense.” State v . Poole , 945 S.W.2d 93, 95 (Tenn. 1997). Thus, enhancement factor (6)—that the injuries inflicted upon the victim were particularly great—is inapplicable to off enses where “serious bodily injury” is an element of the offense. Id. at 9 8. Be caus e “se rio us b odi ly in jur y” is an element

of aggravat

ed child abuse as it is defined in this case, it was error to apply it also as an enhancement factor.
As to enhancement factor (5), we initially acknowledge the fact that our supreme court has determinedtha t pr oof of s eri ous bod ily i nju ry, w hic h is an el eme nt o f es peci all y aggr avat ed ro bbe ry, does notnecessarily establish the enhancement factor of “e xceptional cruelty.” Id. “In other words, the fa cts in a case

may support a

finding of ‘exce

ptional cruelty’ that ‘demonstra tes a culpability distinctfrom a

nd ap preciably greater than that incident to’ the crime of especially aggravated robbery.” Id. (citing State v. Jones , 883 S.W.2d 597, 603 (Tenn. 1994)). This court has followed the instructions of Poole , and determined t hat enhancemen

t f acto r (5) may apply to the offense of aggr avated

child abuse. See State v. Daniel D. Naughton, Sr. , No. 02C01-9612-CR-004 49, 1998 W L 119509, at *7 (Tenn. Crim. App. Mar. 18, 1998), perm . app . denied(Tenn. Dec. 7, 1998). If the trial court should choose to ap

ply factor (5), it should “state what actions of the defendant, apart from the elem e nts of the offense, constituted ‘exceptional cruelty.’” State v. Goodwin , 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995).-14-

Here, the trial court stated the following regarding the application of fac tor (5):
One of the enhancing factors is whethe r or not this victim; th

is child wa s treat ed with exceptional cruelty during those 15 or 20 minutes. We have to look at the proof in this case, and the proof in this case is thatwhen Miss Gladden left you alone with this child, we hada no rma l he alt hy, h app y, child, sitting in a swing, and when she came back, some 20 minutes later, we have a child who has qu it breathing, who has suffered ruptured retinas behind his eyes, causing bleeding. Who has suffered mas sive - - t hat’s the way the doctor described it - - massive brai

n damage, causing bleeding on the outer layersof the brain. He suffered a deep abdominal bruise that was described as h avi ng to hav e bee n in fli cte d by a deep, hard blow to the abdominal area. And as a result of those i njuries, we now have a child, who at that time, was some seven months old, and we now have a child that I believe is three

, maybe thre

e goin g on four, who is blind for life, who is fedby a tube

three or four times a day, or every three or four hours in his stomach, who cannot speak, and can h ear, but barely responds and doesn’t resp ond really t

o anyone ac

cept [ sic] his mother. And this child’s prog

nosis is that -

- according to th

ese doctors, he really doesn’t have any prognosis. He’s going to b e this way the rest of his life. And God only knows how long he’ll live. He might live to be 40, 50 years old. So I think that enhancement factors [sic] fits. Although the trial cou rt, in the abo ve passage, has clearly set out those actions of the defendant that constituted aggravated child abuse, the court did not make any findings as to actions by the defendant, apart from the ele men ts o f th e off ens e, t hat con sti tut ed ex cept ion al c ruel ty. The court relied instead on the injuries that occurred duringthe twenty mi nutes when the vic

tim was in the sole care of the defendant and on the long-term effects of those i njuri es. The defendant relies on Naughton

, 1998 WL 119509 at *7, for the proposition that “exceptional cruelty” usually involves circumstances of long-term ab use or torture; or

some unusual ty

pe of abuse. Alth

ough there was sometestimony concerning other bruises, scratches, and possible cig are tte burns, the seriousness and magnitude of those old injuries were not relied on by the trial court. We conclude that there was no4 We compare the circumstances here to those in State v. Kerwin L. Walt

on where a defendant, left wit h the care of the thirteen-month- old infant son of his girlfriend , became angry at the infant fo r crying continu ously; punched the victim in the stomach; left the victim to suff er “the most painful injury a human body can suffer” f or a period of six hours while he socialized with friends; and, finally, set the house on fire in an effort to conceal

the deat h of the child. No. 02C01-9610-CR-00321,1997 WL 471169 , at *1-2 (Tenn. Crim. App. Aug. 19, 1997). We concluded that enhancement factor (5) wa s approp riately applied in this case. See id. at *2.

5 The trial court dec lined to app ly enhancem ent fa c tor (10)—that “the defendant had no hesitation about committing a crime when the risk to human li fe was high[.]”
6 Photographs of these injuries were entered in

to the tri al as evidence. -15- evidencein the record to su pport a finding of

exc ept ion al c ruel ty. 4 Therefore, enhancement factor (5) 5 should not have been applied.
As to mitigating factors, factor (3)—that subs t antial grounds exist tending to excuse the conduct—is

argued by the defendant because the State did not directly rebut his testimony that when he d iscovere d his son was not bre athing, he shook h

im only to rev

ive him. The trial c

ourt, in denying th

e application of f

actor (3), found

the following: Your story about your efforts to re vive the child by s

haking it, these expertwitnesses; these doctors that continue to treat your son to this day, all testify that there was no way on earth that the massive injuries this child suffered could have been caused by what you say y

ou did. The trial court appropriately denied the application of mitigating fa ctor (3).
As to mitigating fa

ctor (6)—that the

defendant, bec

ause of his y

outh, la ck ed substantial judgment in committing the offense—thedefendant argues that he was only twe

nty-three at the time of the offense; that he had never been thrust into such an emergency situation before; and that he had no training in first aid or CPR. The State argues, on the other h and, that the defe ndant was not a juvenile but a twenty

-three-y ear-old father

who severely

abused his

son and that “[t]o attribute the injuries of his own seven mon th old child to a youthful lapse in judgment is preposterous.” The trial court stated that “[c]er

tain ly you r yo uth is something to c onsider.” The tr

ial court appare

ntly concluded

that this factor existed, and, as a result, it shou ld have been weig

hed in the sentencing of the defendant. The trial court erred in not doing so.
As to mitigating factor (11)—that the defendant committed the offense under

such unusual circum stances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct—the defendant arg u es that testimony of his mother and of the victim’s mother indicated that he had been a loving father who often had sole care of his son. The defen

dant points to

the State’s theory that he had simply “snapped” because the child would not stop cry ing as supporting the application of factor (11). The State points to th

e testimony p

resented indica

tin g th e presence of suspicious bruises, scratc

hes, andburn marks on the v ictim. 6 This testimony, according to the State, was evidence from which a sustained intent on the part of the defendant

to violate the law by abusing-16-

his infant son could be inferre

d. The State arg

ued that the trial c

ourt should rega

rd the photogra

phic evidenceand the testimony of doctors that these injuries were “separate and apar tfrom those injuries for which Mr. Coffey was convicted.” While not specifically addressing the evidence of past abuse, the trial court did address the issue of intent of the defendant and the cir

cumstances of the case, including the fact that events happened so quickly on that Sunday . The trial court took part icular noteof the fact that in circumstances such as presented here, where the defendant wa s alone with an infant, motivation was simply impossible to discern or understand. We find no erro r i n the trial cou rt’ s co ncl usi on t hat mit igat ing f act or ( 11) sho uld not app ly.
As to factor (13), the “catch-all” factor, the defendant asserts that the trial court should have considered

the facts that he had no criminal record and that he had maintained steady employment since dropping out of school after the ninth grade. The trial court did not speci fically ad

dress this no n-enumerated

factor, and we conclude that this was error. In State v. Gutierrez , 5 S.W.3 d 641 , 646 (Tenn. 1999), our

supreme court not

ed that “[t]he lack o

f a criminal histor

y is appropr

iately considered in mitigation.” Add iti ona lly, this c ourt has noted that “some favorable consideration” is normally given basedupon “family contributions and work ethic.” State v. McKnight , 900 S.W.2d 36, 55 (Tenn. Crim. App. 1994). In State v. Evay Markel Kelley , No. E1999-005 57-CCA-MR 3-CD, 2000 WL 224358, at *11 (Tenn. Crim. App. Feb. 28, 2000), perm . app . de nied (Tenn. Nov. 20, 20 00), this court noted that “rela

tive to sentencing

, an individual’s pa

st essentially

stands as a witness either for or against him or her.” Thus, we conclude that the defendant was entitled to have his lack of a prior criminal r ecord and hi s good work re cord consid ered as miti gating factor s in his sen tencing.
We conclude that, although the trial court erred in applying e nhancement

factors (5) and

(6), enhancement

factors (18) an

d (19) were appr

opriately a

pplie d. Further, since the trial court appa rently

determined that the defendant’s youth was a mitigating fac tor, it should have bee n considered

in setting his sente

nce. Additionally

, we conclude tha

t mi tigat ion factor (13) applied because of the defendant’s lack of a prior record and good work history. Nonetheless, we conc lude that the horrendous injuries to the victim so “fir mly embed[de

d] the sentence in

the ceiling” that the sentence imposed was appropriate. State v. Samuel D. Braden , No. 01C01-9610-CC-00457, 1998 WL 85285, at *7 (Tenn. Crim. App. Feb. 18, 1998).-17- CONCLUSION
For the reasons discussed herein, the judgment of conviction for

aggravated

child abuse is affirmed. Furthermore, we affirm the defendant’s sentence of twe nty-five years for this offe nse.

___ __________

___________________

_ ALAN E. GLENN, JUDGE