### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ma rc h 10
, 200 4

STA TE OF TEN NES SEE v. JOHN A. LEE

Direc t Appeal from the Circ uit Court for Willi am son Coun ty No. II-402-146 Tim othy L. Easter, Judge

No. M2003- 01801-CCA -R3-C D - F iled April 29, 2004

Th e De fe nd ant, JohnA. L e e , w a s c on vic te d af te r a be nc h tri a l of one c ount of c hil d ab us e of a c hil d under six y ear s old, a C lass D felony

. The Defenda nt was subsequently sentenc ed to s erve two y ear s in the Depa

rtment of Corre ction. The sole issue r aised in this direct a ppeal is the suff

iciency of the

e vid e nc e . We a ff

ir m th e jud g me nt o f t

he tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the cour t, in which J ER R Y L. S MI TH and N OR MA M C G EE O G LE , J J ., joined.

Eug ene H onea, F ranklin, Tenne ssee, f or the a ppellant, J ohn A. L ee.

Pa ul G . Summe rs , A tto rn e y

Ge ne ra l and

Re po rt e r; El iza

be th B

. M a

r n e y , As sis tant A tto rn e y

Ge ne ra l; Ron Da vis , D istri c t A tto rn e y Ge ne ra l; and Sha ro n E. Gu ff

e e , A ssi sta

nt D istri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

L isa Br iglio wa s living in F airview
, Tenne ssee, with the Def endant and his wife, Rose L ee, in J anuar y 2002. She testified that, on the nig ht of J anuar y 1 7
, 2 0 0 2 , she wa s awakened at about 1:3 0 in the mor nin g by the so un d o f t

he De fe nd ant’ s si x-w e e k- old inf ant cr y ing . Sh e we nt b a c k to sleep, but wa s ag ain awa

kened a short time later by

another cry that she descr ibed as “ terrif ied” a nd “painf ul.” She g ot up to see what the matter wa s and saw the Def endant standingin the living room at the back of the couch. The baby was in the room wit h the Def endant, c rying “ like he wa s dy ing.” Ms. Brig lio asked the De fenda nt what was w rong with the baby , but the Def endant did not re spond. Ms. B ri g lio a sk e d tw ic e mor e wh a t th e ma tte r w a s, and the De fe nd ant f

ina lly tol d h e r t hat he ha d la id the ba by do wn on the c ou c h a

nd do zed of f. He he ard

a “ po p” and

sa w the ba by ’s arm do wn in between t h e couch cushions. Ms. Brig lio testified that the Def endant woke up his wife, and the y decide d they

neede d to take the ba

by to the hospital.-2-

The De fenda

nt and hi s wi fe d rove the baby to Horizon Medical Center in Dic kson, where the baby was deter

mined to ha

ve a broken arm. Sgt. J amie F err ell of the F airviewPolice Depa rtment

re sp on de d to a

c a ll r e qu e sti ngan inve sti g a tio n o f t he c ir c ums tanc e s su

rr ound ingthe inj ur

y . Sg t. F e rr e ll t e sti fi e d th a t he vie we d the ba by a t the ho sp ita l and

no tic e d b ru ise s o n b oth

of his up pe r a

rm s. Sgt. Ferr ell descr ibed the baby as ver y dirty with a bad diape r ra sh. Sgt. F err ell spoke with the Def endant, who told him t h at h e h ad b een w atchingtelevision on the couc h with the baby ly ing beside him when he hear d a “pop.” The baby beg an cry ing. The De fenda

nt theorized that the baby might have g otten his a

rm caug ht in the couch cushions and rolled over. Sg t. Fer rell testified that the Def endant then be g an cr

y ing a nd stated that he did not know what had happe ned.

Rose L ee, the Def

endant’ s wife, testified that she was a sleep whe n s h e wa s awakened by hear ing the television remote c ontrol hit the coffe e tab l e. S h e t h en hea rd the ba by cry . The Def endant c ame into her

bedroom a

nd told her that something wa s wrongwith the baby ’s ar m. She went to che ck on the ba

by and noti ced that he was not moving his left arm a nd would not gr ab her fing er. The Def

endant told her

t h at h e had bee n watchingtelevison when he hear d a “pop,” and when he looked over , the baby was cry ing. Ms. L ee testified that she ha d not seen a ny bruising on the baby ’s ar

ms until they

wer e at the hospital. M s

. L ee s t at ed that she did not believe that the Def endant br oke the ba

by ’s ar m and that the De fenda

nt had neve r hurt the ba

by befor e.
The hospit al personnel in Dickson sent Ms. L ee a nd the baby

to Vander

bilt C hildren’s Hospital in N ashville. There
, the baby was examined by Dr. Paul H ain. Dr. Ha in testified that the ba by ’s le ft hume ru s had be e n bro ke n mid- sh a ft

. Dr . Ha in de sc ri be d the fr a c tur e a s o bli qu e and a ll the wa y thr ou g h th e bo ne , b ut t

he re wa s n o d isp la c e me nt o f t he tw o b rok en pi eces . Dr . H a in explained that this t y

pe of fra cture was ge nera lly cause d by pressure applied in a twis ting motion. D r

. H a in f u rth e r e xp la in e d

th a t, a t s ix w e e k s o f a g e , an in f an t c an n o t r o ll o v e r

. F u rth e r mo r e , a s ixwe e k- old inf ant’ s b on e s are str on g e r tha n his mus c le s, makin g it ph y sic a lly imp os sib le to b re a k h is own bones.

Dr. Ha in spoke with the Def endant, who told him that he thoug ht the baby ’s ar m had g otten betwee n the couc h cushions and that the ba by had twisted his a

rm while aslee p. Dr. Ha in testified that the baby ’s arm would not have be en broke n under the se circ umstances. Dr . Hain stated that the bruising on the victim’s upper a rms was c onsistent with a twisti ng injury

.

On cr oss-examination, Dr. Hain admitted that he did not know how the injury occur red or who inflicted it. He a lso admitted that it was theoretica lly possible that the injury

had bee n cause d by someone rolling over on the baby while the baby ’s ar

m was in the couc h.

Det. Tom McCormick testified that he spoke w ith the Defe ndant and took the De fenda nt’s statement. The Defe ndant explained to him that the baby ’s ar m had g otten caug ht in the couch cushions, but he did not know what re ally happene d beca

use he was watching television. He he ard a “pop” and the b a

b y s ta rte d s c r e a mi n g

. T h e D e f

e n d an t’ s im

p r e s s io nw a s th a t t

h e b a b y h a d b e en trying to r oll over. De t. McCormick t estified that his investigation indicated that the Defe ndant had been the only

person with the ba

by at the time the injury

occur red.-3-

The De fenda

nt testifi ed that he did nothing to intentionally inflict the baby ’s injury . He insisted that the baby ’s ar m ha d g otten caug ht be tween the couc h cushions and that whe n he hea rd

a “pop,” the baby started cry ing. He stated that he subsequently pulled the baby ’s arm out fr om betwee n the couc h cushions.

Th e tr ia l c ourt

fo un d th e De fe nd ant guil ty of on e c ount o f c hil d ab us e of a c hil d und e r s ix
y ear s old, a Class D felony

. See Tenn. Code Ann. § 39-15-401( a). The Def endant now c ontends that the trial cour

t’s verdic t is not supported by sufficie nt evidence

.

Tenne ssee Rule of A

ppellate Procedure 13(e) presc ribes that “[f]indings of guilt in criminal actions whe ther by

the trial cour

t or jury shall be set aside if the evide nce is insuffic ient to support the finding s by

the trier of

fac t of g uilt bey ond a re asonable doubt.” A convic ted cr iminal defenda nt who cha lleng es the suff

iciency of the e vidence on appea l bear s the burde n of demonstrating why the evidenc e is insufficient to su p p ort the ver dict, beca use a ve rdict of guilt destroy s the presumption of i nnocenc e and imposes a presumption of guilt. See State v. Eva ns, 108 S.W .3d 231, 237 (Tenn. 2003); State v. Carruthe rs, 35 S.W .3d 516, 557-58 (Te nn. 2000); State v. Tug g le, 639 S.W.2d 913, 914 (Te n n

. 1 9 8 2 )

. T h is Co u rt m u s t r e je c t a c o n v ic te d

c r im in a l d e f

e n d an t’ s c h a ll e n g e to the sufficie ncy

of the e vidence if, afte r consider ing the evidenc e in a light most favora ble to the
prosec ution, we deter

mine that any

rational trier of fact could have found the essential elements of the crime bey ond a re asonable doubt. See J ackson v. V irg inia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On a pp e a l, t he State is e nti tle d to the str on g e st l e g iti ma te view o f th e e vid e nc e and a ll

rea sonable a

nd leg itimate infere nces w hich may be draw n there from. See Carruthe rs, 35 S.W .3d at 558; Hall, 8 S.W .3d at 599. A g uilty verdic t by

the trier of

fac t acc redits the testimony of the State’s wi tne sse s and

re so lve s a ll c on fl ic ts in the e vid e nc e in f a vo r o f t he pr os e c uti on ’s the or

y . Se e State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 199 7 ). Questions about the cr edibility of witnesses, the weig ht and value of

the evidenc e, as well as all fac tual issues raised by the evidence are r esolved by the trier of

fac t, and thi s Court will not re-w eig h or re -eva luate the e vidence . See Eva ns, 108 S.W .3d at 236; Bla

nd, 958 S.W .2d at 659. Nor w ill thi s Court substi t u t e i t s own infer ence s drawn f rom circ umstantial evidence for those dr awn by the trier of

fac t. See Evans, 108 S.W.3d at 236-37; Carruthe rs, 35 S.W.3d at 557.

Our c ri min a l c od e pr ov ide s th a t

Any pe rs on wh o k no wi ng ly
, ot her than b y

a c c ide nta l me ans , tr e a ts a c hil d

un de r e ig hte e n ( 18 ) y e ars of a g e in suc h a manne r as to i nf lic t in jur y

. . . c omm its a Cla ss Amis de me ano r; pr ov ide d, ho we ve r, that if th e a bu se d o r n e g le c te d c hil d is six ( 6 ) ye ar s o f

a g e o r l e s s , t h e p e n a l t y i s a

C l a s s D f

e l o n y.

Te nn . Co de Ann. § 3 9- 15 -4 01 (a ). A p e rs on a c ts k no wi ng ly “ wi th r e sp e c t to the c on du c t or to circ umstances surr ounding the conduct whe n the person is a war e of the nature of the conduct or that the c ir c ums tanc e s e xist. ” I d. § 39- 11 -3 02 (b ). Th e De fe nd ant co nte nd s th a t th e e vid e nc e in t his c a se-4-

is entirely circ umstantial, and that the proof must there fore “be not only consistent with the g uilt of the ac cused but it must also be i n co n s i s t ent with his innocence and must exclude ever y other

rea sonable theor

y or hy pothesis except that of g uilt.” State v. T harpe
, 726 S.W .2d 896, 900 (Tenn. 19 87 ) ( qu oti ngPr

uitt v. State , 4 60 S.W. 2d

38 5, 39 0 ( Te nn . Cr im. Ap p. 19 70 )) . A dd iti on a lly , “ it

mus t e sta bli shsu c h a c e rt a int

y of g uil t of the a c c us e d as to co nv inc e the min d be y on d a re a so na ble doubt that [ the def

endant] is the one who committed the crime.” I d. The De fenda nt argues that the
pr oo f i s simp ly

no t su ff ic ie nt t o e sta

bli shhis ide nti ty

a s th e pe rp e tr a tor . H ow e ve r, thi s Co ur t mu st keep in mind that the finde r of f act de cides the w eig ht to be g iven circ umstantial e vidence and that “‘[t] he infe renc es to be dra wn from such evidenc e, and the extent to which the circumstanc es ar e consistent with guilt and inconsistent with innocenc e, ar e questions primarily for the [fac t finder].’” Mara ble v. State, 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn. 1958) ( citation omitted).

The proof is uncontrover

ted in this case that the D efe ndant and the ba by wer e alone toge ther at the ti me t he baby ’s i njury occur red. The Defenda

nt offe red an explanation for the baby ’s injury which the tre ating phy sician desc ribed a s impossi ble. Dr. Hain testified that the g ener al ca use for such injuries was pressure applied in a twisting motion. Dr. Hain also descr ibed bruises t o the baby ’s upper

arms which wer e consistent with the application of such pressure . Dr. Ha in describe d the injury as “non- acc idental trauma .”

Th e tr ia l c ourt

e xpre sse d it s r e se rv a tio ns c on c e rn ing the De fe nd ant’ s c re dib ili ty and c le a rl y

acc redited the doctor’s te st i m o n y over that of the De fenda nt’s. I n so doing, the trial court de te rm ine d tha t the ba

by ’s inj ur y wa s the re su lt o f n on -a c c ide nta l c on du c t. T his pr oo f, tog e the r w ith the uncontrove rted e vidence that the Def endant wa s alone with the ba by when the injury

occur red, supports the finding that the Def endant knowing ly treated the baby in suc h a way as to inf l i ct the i n j u ry

. T hus, the evidenc e is suf ficient to suppor

t the trial court’s finding of g uilt beyond a

re a so na ble do ub t.

The judg ment of the trial c ourt is affir med.

___________________________________ DAVI D H. WEL L ES, J UDGE