# FILED
July 23, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1999 SESSION

STATE OF TENN ESSEE, * C.C.A. # 01C01-9708-CC-00339

Appellee, * Montgomery County VS. * Honorable Robe rt W. W edemeyer, Judge CEDRIC PHELPS, * (First Degree Mur der–Life) Appellant. *

FOR THE APPELLANT : FOR THE APPELLEE : STACY A. TURNER JOHN KNOX WALKUP 105 South Third Street Attorney General & Reporter Clarksville, TN 37

040 KAREN M. YACUZZO Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243 JOHN WESLEY CARNEY, JR. District Attorney General DANIEL BROLLIER Assistant District A

ttorney General 204 Franklin Street, Suite 200 Clarksville, TN 37

040

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON The defendant, Cedric Phelps, was convicted of first degree murder in the perpetration of aggrava ted child abuse, see Tenn. Code Ann. §§ 39-13-202; 39- 15-402, and sentenced to life in prison. He appeals, arguing that th e trial court erroneously admitted cer tain prejudicial testimony and that the evidence at tri al was insufficient to support the jury’s verdic t of guilt. We affirm the judgment of the trial court.

BACKGROUND Sometime during the early morning of June 17, 1995, the de fendant’s daughter, twenty-fiv

e-day-old Lichelle Phel ps, suffered an injury to her head from which she died a few hour s later. The defendant’s wife, Tiffany Phelps, testified that she attende d the chil d at appro ximately 3 :00 a.m. and that she was alive and well at that time. M s. Phelps then left the child i n the defendant’s care and retired to another room for the r emainder of the morning.
The defendant stayed with the chi ld in the couple’s liv ing room and slept. He testified that he woke at approximately 7:00 a.m. and noticed th at the child was pale and turning bl ue. The defendant stated that he attempted to check for a pulse and then woke his w ife who called for an ambulance. When the ambulance arrived, the chi ld was warm and li mp but had no heart beat and was not breathing. The emergency medical personnel began perfor ming cardiopulmonary resuscitation and transported the chi ld to the emergency room of Blanchfield Army Hospital at Fort Campbell. There, Dr. Scott Rice unsuccessfully continued att empts to resuscitate her. She was pronounced dead at 8:05 a.m.
During his initial

examination of the victi m, Dr. Rice noticed an ar ea of swelling on the right s ide of he r head. T his disco very promp ted him t o order x--3- rays of her head. These x- rays revealed a bro adly separated fracture of the child’s skull. Dr. Rice then ordered further s keletal x-rays, which revealed multiple additional injur ies.

Based on his own examination, as well as his review of the reports from two subsequent autopsies,Dr. Rice testified that the cause of the child’s death was severe head trauma, which, he estimated, would have resulted in symptoms–“most likely totally unconscious”–that would have been immediately observable to a person w ith no medical training and would have caused her death with in one to two hours. He opined that the fatal in jury would h ave required a “very signifi cant” or “severe am ount of forc e.” And, afte r describing each of the child’s injurie s and explaining in det

ail how each typical ly occurs, he opined that the injuries w ere intentionally infli cted rather than accidental.
Approximately fifteen hours after her death, Dr. Charles Harlan conducted an autopsy of the victim. Like Dr. Rice, Dr. Harlan testified that the cause of death was blunt tra uma to th e head an d opined that the injury would have required a “major impact .” Unlike Dr. Ric e, however, Dr. H arlan opined that the head injury appeared accidental and estimated that th e interval between injury and death would have been approximately twenty-four hours, with the child becomin g symptom atic within twelve to ei ghteen ho urs of th e injury.
On September 25, 1995, Dr. Georg e R. Nichols, II conducted a second, post-exh umation autopsy o f the vict im and revi ewed all pr eviously co nducted xrays, examinations, an d reports. Based on his findin gs, Dr. Nichols tes tified that the child had suffered the following injuries: a large complex right parietal skull fracture; a second, lineal or simple skull fracture; frac tures of the left sixth and seventh ribs; a corner

or metaphysis fracture of the r ight humerus; a periosteal hemorrhage on the right r adius; and discoloration of the o uter membrane of the-4- left tibia. With the exception of the last l isted injury, whi ch Dr. Nichols descr ibed as a therapeutic injury from the insertion of a needle into the bone, Dr. Nichols opined that all of these injuries were inflicted rather than accident al, thus clearly indicating child abuse. He further opined that all of the v ictim’s injuries had occurred within one day of her death. He testified that the v ictim’s head injuries resulted from multiple impacts with a “huge” amount of force and attributed the victim’s immediate cause of death to brain injury. A s for the time-line followi ng injury, Dr. Nic

hols stated that the victi m would have been symptomat ic within a few minutes and would hav e died within an hour or less.
Three additional physici ans evaluated the x-ra ys, autopsy photograp hs and reports, and other recor ds of the victim and testified at the defendant’s trial. Dr. Ellen Wright Clayton opined that the victim had died from r epeated blows to the head, inflicted with “ a great deal” of force. After ex tensively detaili ng the basis for her opinion, she further stated that the victim’s injuries were not accidental. Dr. Clayton testified that head injuries like the victim’s would typically cause symptoms and death within a few hours and, noting that the victim’s brain had not yet started to swell at her death, she concluded that the victim had in fact died shortly after her i njuries were inflict ed.
Based on the presence of subdural hemorrha ging, Dr. Mary Case specifically identified the fatal head injury as a diffuse ax onal injury (liter

ally, the tearing away of the axonal processes that connect the nerve cells of the brain). She testified in detail how such injuries occur and opined that the victim’s injuries were not accidental but inflicted. Dr. Case also testified that the f atal injury would have produced immediate unconsciousness and dea th in probably less than one hour.-5- Finally, Dr. Cleland Black opined that the cause of death was multiple inflicte d trauma to body, h ead, and trunk. He t estifie d that th e victim wou ld have exhibited severe sy

mptoms very soon after the i njuries to her head and could not have survived mor

e than a few hours after the injur ies.
In summary, five of the six medical experts who testified in this case opined that the victim’s injuries were infli cted rather than accidental an d that the victim would hav

e died within minutes to a few hours after incurring her head injuries. Each of t hese five experts al so testif ied that the victim would have been symptomatic almost immediately after the injury. These opinions, combined with Ms. Phelps testimony that the vic

tim was fine when she saw and fed her at 3:00 a.m., support the state’s theo ry that the victim’s injuries were inflicted after 3:00 a.m., when the defe ndant had sole custody of the child. Dr. Harlan, the single ex

pert whose opinion did not support the state’s case as t o the time line from inj ury to sympt oms and d eath, te stified that the victim would have become symptomatic withi n twelve to eighteen hours and would have di ed approximately twenty-four hours following her injuries. Dr. Harlan also contradicted the other five experts in his opinion that the victim’s inj uries appeared accidental.

ANAL YSIS The defendant first argues that the trial court erred in allowing Doctors Rice and Clayton to offer their opinions as to the interval between the victim’s injury and death. He asserts that because neither doctor is a forensic pathologist, they w

ere not competent to testify as experts in this area.
The admissibility of exper t testimony is a matter ent rusted to the sound discretion of the trial cour t, and this Court wil l not disturb the trial court’s decision-6- in that regard absent an abuse of that discretion. See State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993).

We f ind no err or in the t rial court ’s admiss ion of th e contes ted test imony. Both doctors were qualified to state their medical opinions based on th eir experience and training. Both are medical doctors. Both specialize in pediatrics, and both have substantial ex perience treating chil dren with severe head injuries. That neither is a forensic pathol ogist goes to the we ight of their testimony, not its admissibility. Further, we note that any hypothetical error in allowing this testimony would not be pr ejudicial, as their tes

timony regarding th e interval between injury and death was consistent with, and cumulative to, that of doctors Nichols, Case, and Blake.
The defendant next argues that the ev idence is insufficient to suppor t the jury’s finding of gui lt. When an appellant challenges the sufficienc y of the evidence, this Court mus t determine whether, after v iewing the evidenc

e in a light most favorable to th e prosecution, any ratio nal trier of fact could have found the essential elements of a crime beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). The appellee is entitled to the strongest legitima te view of t he eviden ce and all reasona ble infe rences th at may be d rawn therefrom. See State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
The credibility of wi

tnesses, the weight of thei r testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusiv

ely to the trier of fact. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jur y verdict for the stat

e accredits the testimony of the state’s witnesses and resolves all conflic

ts in favor of the state. See State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983).-7- Moreover, a guilty

verdict removes the presumption of innocence enjoyed b y defendants at trial and replaces it with a presumption of g uilt. See State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant chal lenging the sufficiency of the evidence car ries the burden of illustra ting to this Court w

hy the evidence is insufficient to support the verdict. See State v. Freeman , 943 S.W.2d 25, 29 (Ten n. Crim. App. 1996).
Based pri marily on D r. Harlan’ s testimo ny that de ath would not have occurred for approximately twenty-four hours after the victim’s injuri es, the defendant argues that the evidenc e does not establish that the v ictim’s injuries occurred during his ex

clusive care and custod y of the child. The undisputed evidence, including the defendant’s own testimony, indicates that the defendant was solely re sponsib le for th e custod y and welfa re of the victim dur ing the fi ve hours immediately precedi ng her death. Further, fiv e of six experts testi

fied that the victim’s injuries were intentionally inflicted and necessarily occurred within this five-hour period. Thus, the evidence supports th e jury’s conclusion that the victim died as the resul t of severe child abuse infli cted by the defendant during his exclusive cus

tody of the child.

CONCLUSION The judgment of the trial court i s AFFIRMED.

_____________________________ JOHN EVERETT W ILLIAMS, Judge-8- CONCUR:

____________________________ DAVID G. HAYES, Jud ge

____________________________ JAMES CURW OOD WIT T, JR., Judge