IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 27, 2018 Session

STATE OF TENNESSEE v. TYRAIL JERMAINE COOKE

Appeal from the Criminal Court for Knox County

No. 100543 Scott Green, Judge

No. E2017-00781-CCA-R3-CD

Aggrieved of his convictions of reckless homicide and aggravated child abuse, the 

defendant, Tyrail Jermaine Cooke, appeals. In this appeal, the defendant argues that the 

trial court erred by refusing to suppress the entirety of his pretrial statement to the police; 

that the trial court erred by admitting into evidence the video recording of his pretrial 

statement; that the trial court erred by admitting into evidence photographs, testimony, 

and other evidence relating to bruising in the victim’s genital area and a hole in the wall 

in the closet of the defendant’s residence; that the trial court erred by refusing to grant the 

defendant’s request for a special jury instruction regarding the right of parents to use 

corporal punishment to discipline their children; that the trial court erred by denying his 

motion for a mistrial based upon the prosecutor’s improper comment on the defendant’s 

right to remain silent during his closing argument; that the evidence was insufficient to 

support his convictions; that the 29-year effective sentence is excessive; and that the 

cumulative effect of the errors deprived him of the constitutional right to a fair trial. 

Because we discern no reversible error, we affirm the judgments of the trial court.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR., and ROBERT H. MONTGOMERY,JR., JJ., joined.

Mark E. Stephens, District Public Defender (on appeal and at trial); Jonathan Harwell, 

Assistant District Public Defender (on appeal and at trial); and John Halstead, Assistant 

District Public Defender (at trial), for the appellant, Tyrail Jermaine Cooke.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant 

Attorney General; Randall E. Nichols, District Attorney General; and Christopher 

Rodgers and Ashley McDermott, Assistant District Attorneys General, for the appellee, 

State of Tennessee.

07/23/2018
-2-

OPINION

In November 2012, the Knox County Grand Jury charged the defendant 

with one count of aggravated child abuse and one count of felony murder in the 

perpetration of child abuse related to the October 2012 death of five-year-old R.R.1

The evidence adduced at the defendant’s March 2015 trial established that 

the victim’s mother left the defendant, her live-in boyfriend, alone with her three children 

on the morning of October 20, 2012, while she went to run errands. At some point, the 

defendant telephoned to say that he could not rouse the victim, and, upon returning to the 

apartment, the victim’s mother found him unresponsive in his sister’s bedroom. The 

victim was transported to the hospital, where he succumbed to his injuries three days 

later.

The victim’s mother, A.R., testified that she had been dating the defendant 

for three or four months in October 2012 and that the two had moved into an apartment 

with her three children, ages six, five, and three, 11 days before the incident that led to 

the victim’s death. On October 20, 2012, she woke the children, fed them breakfast, and 

put a movie on for them to watch. She then woke the defendant and asked him to “just to 

listen for” the children while she and a friend ran errands. She and the defendant 

exchanged several text messages, and, at one point, she returned to the apartment to give 

the defendant some cigarettes. At that point, all three children appeared normal. She 

then left a second time to finish her errands. Just before returning home, she telephoned 

the defendant to check on the children and ask if they needed anything. The defendant 

indicated that all was well.

“About two minutes” later, the defendant called her back to tell her “that 

there’s a problem . . . where he can’t wake [the victim] up.” The defendant told her that 

the victim had soiled his pants and that when the defendant took him into the bathroom to 

change him, the victim “had fallen and hit his head.” The defendant said that “he woke 

[the victim] up the first time and that he had passed back out, and he tried putting him in 

the bathtub and he’d hit his head again in the bathtub.” She “rushed straight there” and 

arrived “within like two minutes after the phone call.” She recalled that when she 

arrived, the defendant and her other two children were “in the master bedroom” “playing 

the X-box.” The victim “was in the front room laying on the toddler bed with the door 

closed. He just closed him up in there.” When she picked the victim up and carried him

into the living room, “his eyes were rolled in the back of his head and his mouth was 

quivering.” She screamed for help from her friend, who was still outside, and she 

“started trying to give him CPR.” She telephoned 9-1-1, but her friend had to speak to 

 

1 As is the policy of this court, we refer to the minor victim by his initials.
-3-

the operator. She said that the defendant “came in there and tried to explain . . . then he 

changed the story, said [the victim] was jumping on the bed and hit his head on the 

window sill.”

Knoxville Fire Department paramedic Cory Darnell responded to the 

residence. When Mr. Darnell arrived, he saw the victim lying on his back just inside the 

front door and observed a black male “standing toward the back of the front room 

observing.” The victim was unconscious and “not breathing adequately.” Because the 

victim’s airway was obstructed by “blood and airway secretions,” medical personnel “had 

to suction” the airway and intubate the victim. He said that they used a bag valve mask 

to breathe for the victim but that they “had a difficult time keeping [the victim] 

intubated.”

Doctor Marymer Perales, who was declared an expert in the diagnosis of 

child abuse and trauma, testified that she was called by the emergency room physician 

who had initially examined the victim at East Tennessee Children’s Hospital. When she 

arrived, she saw “a very critical patient who required assistance to breathe, . . . medicines 

to have his blood pressure stay stable, and monitoring of . . . how much pressure was 

around his brain at all times.” Doctor Perales testified that she “performed a limited 

physical examination of the child because this child was so sensitive to any movement or 

even sound that we had to whisper in front of him.” She said that even small movements 

would increase the victim’s blood pressure, causing an increase in the intracranial 

pressure. For that reason, she did not turn the victim over to examine his back or the 

back of his head. Doctor Perales testified that imagining tests “showed that the patient 

had what we call occipital fracture” and “extraaxial fluid,” or “fluid that is between the 

brain and the skull.” The victim actually had fluid between all the layers of his brain and 

skull and “even had bleeding between the bone and the scalp.” He also suffered a 

“whiplash like” injury to his brain and a rupture of his cervical spine.

In addition to these injuries, the victim “did have a bruise over his left 

eyelid that was around the face” and “a laceration in the back of his head” that she never 

saw because she was unable to move him. The victim had bruising to the skin above the 

penis, “some swelling to the scrotum,” and bruising around the penis. Doctor Perales 

testified that “you’d have to have blunt trauma to that area to get a bruise there” and 

opined that a fall would not have caused the bruising because the victim lacked the “mass 

to create that much of force to have this much bruising present.” Instead, “[h]e would 

have to have been slammed or thrown.”

Doctor Perales testified that the injuries to the victim’s skull and brain 

would have required “a great amount of force. . . . A force that if someone were to 

witness that event, they would know that that child was injured.” She opined that the 
-4-

victim’s injuries “were inflicted nonaccidental trauma” and testified that the injuries 

could not have been caused by the victim’s fainting in the bathtub or his falling 

backwards onto a carpeted floor. She also testified that the injuries could not have been 

caused by the victim’s hitting his head on the window sill while jumping on the bed, 

explaining, “We see a lot of that in the emergency room, and these are not the injuries 

that you would see with a child who is jumping on a mattress and hits his head on a 

window sill.” She added that the fact that the back of the victim’s skull was fractured 

also suggested that he did not injure himself in a fall, explaining, “[F]rom the back of the 

head tells me one, there was a lot of force, and two, that it’s probably more concentrated 

to that area. And then the fact that he had swelling outside that area also confirms that 

that’s where the hit occurred.” Doctor Perales testified that she could fathom no scenario 

under which the victim could have caused the injuries to himself because the force 

required for the injuries would be similar to “a car accident, forces equal to falling from a 

great height like skydiving; a lot of force.” After receiving the injury, the victim would 

have been unable to carry on a conversation or walk unassisted and, if he had a lucid 

interval, it would not have lasted “very long at all.”

Officer Rachel Warren of the Knoxville Police Department (“KPD”)

forensics unit photographed and collected evidence at the apartment. Among the items 

she collected were towels found inside the washing machine that had “a reddish brown 

substance” on them and samples from the carpet and drywall in the master bedroom 

closet that also exhibited reddish brown stains.

KPD Investigator Phyllis Tonkin also responded to the scene, where she 

and KPD Investigator Brian Moran interviewed several witnesses, including the 

defendant.2 After Investigator Moran provided the defendant with Miranda warnings, the 

defendant “voluntarily agreed to do a walk-through of the residence to show what had 

occurred earlier that morning.” The defendant was then transported to the police station. 

Investigators Tonkin and Moran traveled to the police station less than two hours later to 

interview the defendant. A video recording of the defendant’s statement was played for 

the jury.3

During the interview, the defendant conceded that the victim’s mother had 

left him alone with the children on the morning of October 20, 2012. He said that after 

she woke him, he went back to sleep for a period of time before getting up to play video 

games. He admitted that he did not check on the children. At some point, the oldest 

child came into the room to ask for water, and the defendant told him to “get some water 

out of the bathroom.” Sometime later, the same child came into the room to report that 

 

2

Investigator Moran was unavailable at the time of the defendant’s trial.

3 As will be discussed more fully below, the video recording played for the jury was heavily 

redacted to comply with the trial court’s ruling on the defendant’s motion to suppress.
-5-

the victim was “messing with this.” The defendant told the victim to come into the room, 

and the victim complied. The victim began watching the video game that the defendant 

was playing, and the defendant asked the victim if he was “being bad.” The victim 

replied that he was not. The defendant “started smelling something,” and realized that 

the victim had soiled himself. The defendant said that he “turned him around, he turned 

right back around” and that when he pulled the victim’s pants down, the victim “passed 

out.” The defendant said that he did “everything [he] could” to get the victim to “come 

back and focus.” He said the victim eventually “stood up,” “walked like two steps,” and 

told the defendant that he was okay. The defendant then put the victim into the bathtub 

and went to get a towel. The defendant said that while he was out of the room, he heard 

“a loud boom.” He found the victim “in the tub laying down.” He claimed that when he 

picked the victim up, there was “foam and stuff” coming from the victim’s mouth. The 

defendant said that, at that point, he telephoned the victim’s mother. He then carried the 

victim in a towel to his sister’s bedroom. The defendant said that the victim “wasn’t 

breathing at all” when the defendant carried him into the bedroom. He said that he 

attempted to provide cardiopulmonary resuscitation to the victim.

When officers told the defendant that the victim’s injuries could not have 

been caused by his falling in the bathtub, the defendant said that he had “done a lot while 

he was passed out” trying to revive the victim, saying that he had shaken the victim and 

“pushed down hard as hell” on the victim’s chest. He said that when he pressed on the 

victim’s chest, blood came out of the victim’s mouth.

The defendant claimed that the victim had red marks and “big old knots” on 

his head where his older brother had “busted his head.” Eventually, the defendant 

acknowledged that he pushed the victim and then the victim “bumped his head on the 

dresser.” He said that he pushed the victim with one hand and that the victim “got back 

up” after hitting his head. He said that the back of the victim’s head struck the broken 

corner of the dresser.

Tennessee Bureau of Investigation Agent and Forensic Scientist Kim Lowe 

testified that forensic testing established the presence of the victim’s blood on a towel 

found in the washer and the defendant’s blood on a towel found in the bathroom. Testing 

of a sample of drywall cut from the master bedroom closet indicated the presence of 

blood but “failed to indicate the presence of human hemoglobin, a component of human 

blood,” and “further tests indicated the presence of human DNA but due to the limited 

information obtained, nothing can be interpreted.” Agent Lowe opined that the stain on 

the drywall “probably is not human blood” and that the presence of human DNA “could 

be from someone simply touching the wall.” In addition, the stain on the carpet from the 

master bedroom closet was not blood.
-6-

Two calls placed by the defendant while he was incarcerated in Knox 

County were played for the jury. In one call, the defendant acknowledged that the victim 

had been acting up, complained that he was forced to take care of the children because 

their mother would not, and said, “I put my hands on a little kid.”

Chief Deputy Medical Examiner for Knox County Christopher Lochmuller 

conducted the autopsy of the victim’s body. Doctor Lochmuller testified that the victim 

had “a large area of bruising . . . under the skin up against the skull” and “on the back 

side of the right side of his head.” “[T]here was an area of skin that had been partially 

torn” behind the victim’s left ear. “The underlying portion” of the victim’s skull “ha[d] a 

complex fracture,” and “[t]he brain itself [was] severely to markedly swollen,” causing 

“herniation which is an indication you’re getting close to death.” Doctor Lochmuller also 

observed “three bruises on the front of the brain. . . where the brain got pushed into the 

other side of the skull” and bruising on the brain stem “very close to the upper cervical 

spinal cord.” Doctor Lochmuller observed “an area of hemorrhage along the right side of 

the upper aspect of the cervical spine” as well as “some hemorrhage around the spinal 

cord itself,” which would have caused paralysis from the neck down, affecting the 

victim’s ability to move and breathe. He explained that “the injury to the upper cervical 

cord is what likely . . . would have caused him to stop breathing and why he’s in cardiac 

arrest at the . . . scene.” The head injury would have caused “compression on the brain 

and eventual swelling and herniation, but that cord injury, in and of itself, would have 

been enough, but you add that to the brain – the two together are the most significant 

injuries.” He said that the skull fracture alone “may have been survivable . . . but then 

you never know.”

Doctor Lochmuller observed “a discontinuous bruise sort of on the lower 

aspect of the abdomen that’s also . . . extending onto the right side of the scrotum.” He 

said that these injuries “didn’t really contribute to [the victim’s] death and they’re not 

pattern, so I can’t match them up with a weapon. It is an area that if kids are playing

could be injured.” Doctor Lochmuller did not think the bruising to the abdominal area 

and the head injuries occurred from the same blow but would instead “have to have been 

a separate blow.”

Doctor Lochmuller testified that it was possible that “a single impact could 

have caused the skull fracture, the bleeding around the brain and the injury to the neck . . 

. one moment caused that totality of injury,” but he emphasized that the injuries were 

“not something that would occur from a standing height.” He said that although it was 

theoretically possible that the injuries could have been sustained from the victim’s hitting 

his head while jumping on the bed, it was “not likely.” A person with injuries like those 

suffered by the victim would not have been able to stand up and carry on a conversation. 

He testified that the victim’s injuries could not have been caused by the victim’s falling 
-7-

backwards onto a carpeted floor or fainting in a bathtub. He said that “if an adult pushed 

a child as hard as they could into a dresser, maybe you could sustain that injury, but . . . it 

would have to be a very significant shove.” He said that there were “at a minimum two 

separate impacts, possibly three” to the victim’s head “but the two other ones are more 

minor compared to the one that’s associated with the skull fracture.” He said that, given 

the areas of bruising that were “distinctly separate on the scalp,” “[i]t would have been 

difficult to have had them all happen with one impact.”

After a full Momon colloquy, the defendant elected not to testify and chose 

to present no proof. Based upon the evidence presented by the State, the jury convicted 

the defendant as charged of aggravated child abuse but convicted him of the lesser 

included offense of reckless homicide in lieu of the charged offense of felony murder in 

the perpetration of aggravated child abuse. Following a sentencing hearing, the trial 

court imposed a sentence of 25 years’ incarceration for the aggravated child abuse 

conviction, to be served at 100 percent by operation of law, and a sentence of four years’ 

incarceration for the conviction of reckless homicide, to be served at a 30 percent release 

eligibility percentage. The court ordered that the sentences be served consecutively, for a 

total effective sentence of 29 years’ incarceration.

The defendant filed a timely but unsuccessful motion for new trial followed 

by this timely appeal. On appeal, the defendant challenges the trial court’s rulings with 

regard to the admissibility of his video recorded statement to the police, the admission of 

certain other evidence, and the defendant’s motion for mistrial. He also challenges the 

sufficiency of the convicting evidence and the propriety of the sentence.

I. Suppression

Prior to trial, the defendant moved the trial court to suppress the pretrial 

statement he provided to Investigators Tonkin and Moran at the police station. He 

alleged that his statement was inadmissible because the investigators had failed to 

provide him with Miranda warnings at the police station, that the oral waiver of his 

constitutional rights was not knowing and voluntary, that the investigators had not 

scrupulously honored his request to end the interview, and that, ultimately, his statement 

was not voluntarily given because the investigators had overborne his will with 

belligerent questioning.

At the hearing on the defendant’s motion, Investigator Tonkin testified that 

Investigator Moran provided Miranda warnings to the defendant while they were all still 

at the apartment where the offenses occurred. The defendant, who had been placed under 

arrest pursuant to an outstanding warrant from Blount County, waived his rights and 

agreed to not only speak to the investigators but also lead them on a tour of the premises 
-8-

while offering an explanation of what had occurred. The initial encounter with the 

defendant wherein Investigator Moran provided the Miranda warnings and the defendant 

agreed to talk was audio recorded. Officer Warren captured a video recording of the 

defendant’s leading the investigators through the home. Following the tour, the 

defendant was transported to the police station while Investigators Tonkin and Moran 

remained behind at the residence to complete their parts of the investigation there.

Less than two hours later, Investigators Tonkin and Moran went to the 

police station to question the defendant. Rather than provide the defendant with the 

Miranda warnings a second time, Investigator Moran reminded the defendant of the 

earlier admonition and asked the defendant if he recalled the warnings. Although the 

transcript of the video recorded interview indicated that there was no audible reply, 

Investigator Tonkin testified that she recalled the defendant’s saying that he did, in fact, 

recall the warnings. She said that the defendant provided verbal assent to the questioning 

and that he was not asked to sign a written waiver of rights form.

Investigator Tonkin said that during the interview, Investigator Moran 

asked most of the questions and that Investigator Moran told the defendant that the victim 

suffered injuries that the victim did not actually suffer, but she said that “that’s what [she 

and Investigator Moran] were told” by hospital officials. She agreed that Investigator 

Moran questioned the defendant strongly about alleged evidence of sexual abuse that 

proved to be not actual proof of abuse at all. She also agreed that Investigator Moran 

appeared at times to be rather agitated during the interview.

Investigator Tonkin conceded that at one point approximately one-third of 

the way into the interview, while he was being questioned about the alleged sexual abuse, 

the defendant said, “‘Put it like this, you can leave right now because I ain’t got nothing 

else to say about that. I’m so blunt when I say that.’” She said that she did not believe 

this statement to be an indication that the defendant wanted to stop the interview but that 

he merely wanted the investigators to stop asking him about the sexual abuse allegations. 

For this reason, they continued to question the defendant. She admitted that they 

continued to ask the defendant questions about the alleged sexual abuse even after his 

declaration. Investigator Moran also conceded that Investigator Moran did shout at the 

defendant and make the defendant wait until the end of the interview to have a cigarette.

At the conclusion of the hearing, the trial court took the motion under 

advisement and noted that it would watch the video recorded statement in its entirety 

prior to issuing a ruling. On the following day, the court reconvened the parties to 

discuss the issue. At that point, the State conceded that when the defendant said “you just 

leave right now,” he intended to invoke his right to remain silent and that the 

investigators had not honored the invocation. The State agreed that it would not use any 
-9-

portion of the defendant’s statement beyond that point. The trial court accepted the 

State’s concession and agreed that the defendant’s statement was an invocation of his 

right to remain silent.

The court deemed the remainder of the statement admissible, concluding 

that the defendant “was sufficiently advised of his Miranda warnings at the apartment” 

and that “he sufficiently waived those warnings.” The Court held:

I don’t believe that there had to [be] a separate invocation and 

advisement of his rights and subsequent waiver once he 

reached the police station, because the record reflects that that 

was a very short period of time afterwards. And the Court 

specifically found that there was not a voluntariness problem.

So from page 57 the line that I just read forward, [the 

defendant’s] statement is suppressed. . . .

. . . . There is one other part of this statement that I’m 

going to permit. . . . [T]here is a period of time when

Investigator Tonkin and Investigator Moran both leave the 

interrogation room, but the cameras are still rolling, and [the 

defendant] talks to himself and makes some statements which 

are not responsive to interrogation, he’s simply setting there 

talking to himself and lamenting some decisions that were 

made. That is still admissible. It’s not in response to 

interrogation. . . .

A trial court’s factual findings on a motion to suppress are conclusive on 

appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 

217 (Tenn.2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of 

credibility, the weight and value of the evidence, and the resolution of conflicting 

evidence are matters entrusted to the trial judge, and this court must uphold a trial court’s 

findings of fact unless the evidence in the record preponderates against them. Odom, 928 

S.W.2d at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts, 

however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn.

1998).

The Fifth Amendment to the United States Constitution provides that “no 

person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. 

Const. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding “the Fifth 

Amendment’s exception from compulsory self-incrimination” applicable to the states 
-10-

through the Fourteenth Amendment). This means that, to pass federal constitutional 

muster and be admissible at trial, a confession must be free and voluntary and not 

“‘extracted by any sort of threats or violence, nor obtained by any direct or implied 

promises, . . . nor by the exertion of any improper influence’” or police overreaching. 

Bram v. United States, 168 U.S. 532, 542-43 (1897) (citation omitted). The rule is 

equally applicable to confessions given during custodial interrogations following 

appropriate provision of Miranda warnings, see State v. Kelly, 603 S.W.2d 726, 728 

(Tenn. 1980), and those provided before the defendant has been placed in custody, see 

Arizona v. Fulminante, 499 U.S. 279, 286-88 (1991). To determine voluntariness, the 

reviewing court must examine the totality of the circumstances surrounding the 

confession to determine “whether the behavior of the State’s law enforcement officials 

was such as to overbear [the defendant’s] will to resist and bring about confessions not 

freely self-determine–a question to be answered with complete disregard of whether or 

not [the defendant] in fact spoke the truth.” Rogers v. Richmond, 365 U.S. 534, 544

(1961).

Article I, section 9 of the Tennessee Constitution provides that “in all 

criminal prosecutions, the accused . . . shall not be compelled to give evidence against 

himself.” Tenn. Const. art. I, § 9. “The test of voluntariness for confessions under 

Article I, § 9 of the Tennessee Constitution is broader and more protective of individual 

rights than the test of voluntariness under the Fifth Amendment.” State v. Smith, 933 

S.W.2d 450, 455 (Tenn. 1996) (citing State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.

1994)); see also State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005). “The critical 

question is ‘whether the behavior of the state’s law enforcement officials was such as to 

overbear [the defendant’s] will to resist and bring about confessions not freely selfdetermined.’” Smith, 933 S.W.2d at 455-56 (quoting Kelly, 603 S.W.2d at 728 (internal 

citation and quotation marks omitted)). Moreover, because of the extra protection 

afforded by the state constitution, “[f]or the relinquishment of rights to be effective, the 

defendant must have personal awareness of both the nature of the right and the 

consequences of abandoning his rights.” Thacker, 164 S.W.3d at 249 (citing Stephenson, 

878 S.W.2d at 544–45). Accordingly, “the totality of the circumstances must reveal ‘an 

uncoerced choice and the required level of comprehension before a court can properly 

conclude that Miranda rights have been waived.’” State v. Blackstock, 19 S.W.3d 200, 

208 (Tenn. 2000) (quoting Stephenson, 878 S.W.2d at 545; Moran v. Burbine, 475 U.S. 

412, 421 (1986)).

An accused “may knowingly and intelligently waive the right against selfincrimination only after being apprised of” the constitutional rights to remain silent and 

to counsel during interrogation. Thacker, 164 S.W.3d at 248. As with the voluntariness 

of a statement, the trial court “may conclude that a defendant voluntarily waived his 

rights if, under the totality of the circumstances, the court determines that the waiver was 
-11-

uncoerced and that the defendant understood the consequences of waiver.” Id. (citing 

Stephenson, 878 S.W.2d at 545). “Among the circumstances courts have considered are 

the defendant’s age, background, level of functioning, reading and writing skills, prior 

experience with the criminal justice system, demeanor, responsiveness to questioning, 

possible malingering, and the manner, detail, and language in which the Miranda rights 

are explained.” Blackstock, 19 S.W.3d at 208.

On appeal, the defendant concedes that Investigator Moran provided him 

with Miranda warnings before questioning him at the residence but argues that the 

investigators should have readministered the warnings before questioning him at the 

police station.

“A valid waiver of Miranda rights remains valid unless the circumstances 

change so seriously that the suspect’s answers to interrogation are no longer voluntary or 

unless the suspect is no longer making a knowing and intelligent waiver of his rights.” 

State v. Rogers, 188 S.W.3d 593, 606 (Tenn. 2006) (citing Wyrick v. Fields, 459 U.S. 42, 

47 (1982)). “Courts must examine the totality of the circumstances to determine whether 

renewed warnings are required.” Id. The circumstances to be examined include but are 

not limited to 

1) the amount of time that has passed since the waiver; 2) any 

change in the identity of the interrogator, the location of the 

interview, or the subject matter of the questioning; 3) any 

official reminder of the prior advisement; 4) the suspect’s 

sophistication or past experience with law enforcement; and 

5) any indicia that the suspect subjectively understands and 

waives his rights. 

Id.

In our view, there is no merit to the defendant’s claim. He was 

administered Miranda warnings at the residence and then, after giving the investigators a 

tour of the home, he was transported directly to the police station. Less than two hours 

later, the same two investigators arrived to question him. Before questioning the 

defendant, Investigator Moran reminded the defendant of the earlier warnings and asked 

the defendant if he remembered them. The defendant indicated that he did. Neither the 

change in location nor passage in time was sufficient, in our view, to require a fresh set of 

Miranda warnings.

The defendant also argues that because the investigators failed to 

readminister the Miranda warnings before questioning him at the station, the State cannot 
-12-

establish that the defendant provided a voluntary waiver. We disagree. We have 

previously concluded that the police were not required to provide Miranda warnings to 

the defendant at the police station because they had already provided them to him a short

time earlier at the residence. The defendant concedes that he voluntarily waived his 

rights at the residence; we see no reason to conclude that his waiver had expired when the 

questioning continued at the police station. Even if we had so concluded, however, we 

would still conclude that the defendant knowingly and voluntarily waived his rights at the 

police station. Investigator Moran reminded the defendant of the earlier admonition and 

asked if the defendant recalled it. The defendant indicated that he did and immediately 

began answering questions.

II. Admission of Video Recording of Defendant’s Statement

The defendant asserts that the trial court erred by admitting into evidence 

the video recording of his statement to Investigators Tonkin and Moran because the 

recording contained the hearsay statements and “prejudicial insults” delivered by 

Investigator Moran. The State contends, as it did at trial, that Investigator Moran’s 

statements did not qualify as hearsay because they were not offered for the truth of the 

matter asserted.

At trial, the trial court agreed with the State’s position and overruled the 

defendant’s objection. Just prior to the playing of the defendant’s video recorded 

statement, the court offered a curative instruction to the jury:

Ladies and Gentlemen, a couple of points about what you’re 

getting ready to see. You’re going to see an interview of [the 

defendant] conducted at the Knoxville Police Department. 

I’m informed that this . . . thing may not flow smoothly, it 

may jump around a lot. I don’t want you to be concerned 

about that. Blame me for that, okay?

Secondly, there will be times when there may be 

assertions made by Detective Moran in this interview. I’m 

instructing you now, don’t take those assertions as the gospel, 

okay? I want you to look at the proof that you hear from this 

witness stand in conjunction with whatever exhibit that’s 

introduced. That’s the proof in the case that you’re gonna 

decide the case on. For instance, if Detective Moran makes 

an assertion that this child may have been hurt in the 

following ways, that’s not necessarily something that you 

should take as fact at that point in time, okay? Am I clear?
-13-

“‘Hearsay’ is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these 

rules or otherwise by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide 

exceptions to the general rule of inadmissibility of hearsay.

As our supreme court recently confirmed, “[t]he standard of review for 

rulings on hearsay evidence has multiple layers.” Kendrick v. State, 454 S.W.3d 450, 479

(Tenn. 2015), cert. denied. The “factual and credibility findings” made by the trial court 

when considering whether a statement is hearsay, “are binding on a reviewing court 

unless the evidence in the record preponderates against them.” Id. (citing State v. Gilley, 

297 S.W.3d 739, 759-61 (Tenn. Crim. App. 2008)). “Once the trial court has made its 

factual findings, the next questions–whether the facts prove that the statement (1) was 

hearsay and (2) fits under one the exceptions to the hearsay rule–are questions of law 

subject to de novo review.” Kendrick, 454 S.W.3d at 479 (citing State v. Schiefelbein, 

230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 

(Tenn. Ct. App. 2005)); see also Gilley, 297 S.W.3d at 760 (stating that because “[n]o 

factual issue attends” the trial court’s determination whether a statement is hearsay, “it 

necessarily is a question of law”). “If a statement is hearsay, but does not fit one of the 

exceptions, it is inadmissible, and the court must exclude the statement. But if a hearsay 

statement does fit under one of the exceptions, the trial court may not use the hearsay rule 

to suppress the statement.” Kendrick, 454 S.W.3d at 479; see also Gilley, 297 S.W.3d at 

760-61.

In our view, the trial court did not err. The State did not offer any of 

Investigator Moran’s statements for their truth, and the trial court’s instruction ensured 

that the jury would not consider them as such. Moreover, it is our view that the crossexamination of Investigator Tonkin, which demonstrated that Investigator Moran’s 

statements were part of his strategy to get the defendant to make a statement, and the trial 

court’s instruction provided appropriate context to the investigator’s statements. Under 

these circumstances, we see no reason why the trial court should have excluded the 

evidence.

III. Other Evidentiary Challenges

A. Bruising

The defendant asserts that the trial court erred by admitting evidence 

regarding bruising on the victim’s genital area, arguing that the evidence was irrelevant 

and prejudicial because there was no proof that the victim received those injuries 

contemporaneously with the injuries that caused his death. The State contends that the 
-14-

evidence was relevant and admissible given that the defendant was charged with 

aggravated child abuse and because nothing limited proof on that charge to the injuries 

that caused the victim’s death. We agree with the State.

Questions concerning evidentiary relevance rest within the sound discretion 

of the trial court, and this court will not interfere with the exercise of this discretion in the 

absence of a clear abuse appearing on the face of the record. See State v. DuBose, 953 

S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); 

State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the 

trial court applies an incorrect legal standard or reaches a conclusion that is “illogical or 

unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204 

S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 

2006)).

Relevant evidence is evidence “having any tendency to make the existence 

of any fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which is 

not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed 

relevant, it may be still be excluded “if its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by 

considerations of undue delay, waste of time, or needless presentation of cumulative 

evidence,” Tenn. R. Evid. 403.

Here, the defendant was charged with aggravated child abuse, which 

required the State to establish that the defendant “knowingly, other than by accidental 

means,” treated the victim “in such a manner” that “result[ed] in serious bodily injury to 

the” victim. T.C.A. §§ 39-15-401(a); -402(a)(1). “‘Serious bodily injury to the child’

includes, but is not limited to . . . injuries to the skin that involve severe bruising . . . .” 

Id. § 39-15-402(d). Evidence that the five-year-old victim suffered extensive bruising to 

his lower abdomen and genital area was highly relevant to the charge of aggravated child 

abuse, regardless of whether those injuries contributed to the victim’s death. As a result, 

the trial court did not err by admitting the evidence.

B. Hole in the Wall

The defendant also asserts that the trial court erred by admitting into 

evidence a portion of the drywall from inside the master bedroom closet when no 

evidence linked the hole to the assault on the victim and when the State could not even 

establish that stains on the wall were human blood. The State contends, again as it did at 

trial, that the fact that there was a hole in the wall in the same closed area where the 

victim suffered the very significant injuries that led to his death was relevant. The State 
-15-

also asserts that the fact that the stains on the wall were not human blood went to the 

weight of the evidence rather than its admissibility. 

Officers examining the apartment after the victim was taken to the hospital 

found a hole in the drywall inside the master bedroom closet. There were also reddishbrown stains on the same portion of the wall. Officer Warren collected the drywall and 

sent the stained portion to the TBI for testing. As Agent Lowe explained to the jury, that 

testing indicated the presence of blood but “failed to indicate the presence of human 

hemoglobin, a component of human blood.” Based upon this finding, she concluded that 

the stain “probably is not human blood” and that the presence of human DNA on the 

drywall “could be from someone simply touching the wall.” Because this evidence did 

not tend to make the existence of any fact of consequence more or less probable, it was 

irrelevant. Given the overwhelming proof of the defendant’s guilt, however, we conclude 

that the erroneous admission of the evidence was harmless.

IV. Special Jury Instruction

The defendant next contends that the trial court erred by denying his 

request for a special jury instruction on the right of parents and guardians to use corporal 

punishment when disciplining children.

Under the United States and Tennessee Constitutions, a defendant has a 

constitutional right to trial by jury. U.S. Const. amend. VI; Tenn. Const. art. 1, § 6; see 

State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991); Willard v. State, 130 S.W.2d 99, 100 

(Tenn. 1939). This right encompasses the defendant’s right to a correct and complete 

charge of the law. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). In consequence, the 

trial court has a duty “to give a complete charge of the law applicable to the facts of a 

case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P. 

30. Jury instructions must, however, be reviewed in the context of the entire charge 

rather than in isolation. See Sandstrom v. Montana, 442 U.S. 510, 527 (1979) 

(Rehnquist, J., concurring); see also Cupp v. Naughten, 414 U.S. 141, 146-47 (1973) 

(“[A] single instruction to a jury may not be judged in artificial isolation, but must be 

viewed in the context of the overall charge.”); State v. Phipps, 883 S.W.2d 138, 142 

(Tenn. Crim. App. 1994). A charge is prejudicial error “if it fails to fairly submit the 

legal issues or if it misleads the jury as to the applicable law.” State v. Hodges, 944 

S.W.2d 346, 352 (Tenn. 1997).

Although the defendant may request special instructions, jury instructions 

are sufficient when they adequately state the law. State v. Gilley, 297 S.W.3d 739, 766 

(Tenn. Crim. App. 2008). When a trial court’s charge to the jury is complete, it need not 
-16-

give additional special instructions requested by the defendant. Id.; see also State v. 

Story, 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980).

We need not tarry long over the defendant’s claim because the instructions 

provided by the trial court contained a complete and correct statement of the law and 

because the evidence adduced at trial did not support the giving of a special instruction 

on a parent’s right to use corporal punishment. As the defendant concedes, “there is little 

law” on the subject of a parent’s right to use corporal punishment as discipline. Justice 

Birch, in a concurring opinion, suggested a potential jury instruction to be given when 

fairly raised in child abuse cases, see State v. Toliver, 117 S.W.3d 216, 233 (Tenn. 2003) 

(Birch, J., concurring), but neither our supreme court nor our legislature has seen fit to 

adopt such an instruction in the intervening 15 years since Justice Birch made his 

suggestion. It is telling that the defendant has not cited a single case where such an 

instruction was given or where the failure to give such an instruction was identified as 

error. Even if a standard instruction on this issue existed, it is not clear that the trial court 

would have been required to provide it in this case. Importantly, no evidence suggested 

that the defendant had been given permission by the children’s mother to provide any 

form of discipline, much less physical discipline, to any of the children. Additionally, in 

his statement, the defendant repeatedly insisted that he did not injure the victim in the 

course of disciplining him. Finally, the testimony from both Doctor Perales and Doctor 

Lochmuller established that the victim’s injuries were far in excess of what could have 

happened in the course of reasonable discipline. Consequently, the trial court did not err 

by refusing to provide the defendant’s requested instruction.

V. Closing Argument

The defendant asserts that the trial court erred by refusing to grant his 

request for a mistrial after the prosecutor improperly commented on the defendant’s 

constitutional right to remain silent.

During the rebuttal portion of the State’s closing argument, while 

discussing the evolving nature of the defendant’s explanation of how the victim came to 

be injured, the following exchange occurred:

Prosecutor: I don’t know what happened in that 

bedroom; he does. He doesn’t want to tell us.

Defense counsel: Objection.
-17-

Prosecutor: I meant in his statement. I’m sorry, I’ll 

clarify. In his statement, he did not want to tell what 

happened in that bedroom. He did not want to talk about it.

At the conclusion of the State’s argument, the defendant moved for a mistrial on grounds 

that the prosecutor had made an improper comment on the defendant’s right to remain 

silent. The trial court denied the motion:

I think he clarified that. I note your motion, but I think it was 

clarified. I don’t think - - certainly, I’m not gonna find that 

there was any malicious intent on his part to make a comment 

when we’re talking (inaudible). The - - he said what he did, 

and it’s a proper motion, but I’m gonna overrule it.

“Normally, a mistrial should be declared only if there is a manifest 

necessity for such action.” State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing 

State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)). “In other words, a 

mistrial is an appropriate remedy when a trial cannot continue, or a miscarriage of justice 

would result if it did.” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34 S.W.3d 516, 

527 (Tenn. Crim. App. 2000)). “The purpose for declaring a mistrial is to correct damage 

done to the judicial process when some event has occurred which precludes an impartial 

verdict.” State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

Pursuant to the Fifth Amendment to the United States Constitution and 

Article I, section 9 of the Tennessee Constitution, a criminal defendant has a fundamental 

right not to testify. See State v. Jackson, 444 S.W.3d 554, 586 (Tenn. 2014). It is wellsettled that this right prohibits a prosecutor from commenting on a defendant’s decision 

not to testify at trial. See Griffin v. California, 380 U.S. 609, 614-15 (1965) (“For 

comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal 

justice,’ . . . which the Fifth Amendment outlaws.”); State v. Hale, 672 S.W.2d 201, 203 

(Tenn. 1984) (cautioning that the “subject of a defendant’s right not to testify should be 

considered ‘off-limits’ to any conscientious prosecutor”). Even indirect comments on the 

defendant’s decision not to testify are forbidden, and, to this end, our supreme court has 

“adopted a two-part test for ascertaining whether a prosecutor’s remarks amount to an 

improper comment on a defendant’s exercise of the constitutional right to remain silent 

and not testify.” Jackson, 444 S.W.3d at 587-88 (citations omitted). A reviewing court 

must consider “whether the prosecutor’s manifest intent was to comment on the 

defendant’s right not to testify” or “whether the prosecutor’s remark was of such a 

character that the jury would necessarily have taken it to be a comment on the 

defendant’s failure to testify.” Id. (citations omitted).
-18-

We begin by noting, as did our supreme court in Jackson, that “[g]iven that 

‘[t]he impropriety of any comment upon a defendant’s exercise of the Fifth Amendment 

right not to testify is so well settled as to require little discussion,’ it is not at all clear why 

any prosecutor would venture into this forbidden territory.” Id. (quoting Ledford v. State, 

568 S.W.2d 113, 116 (Tenn. Crim. App. 1978). Here, during rebuttal argument, the 

prosecutor stated, “I don’t know what happened in that bedroom; he does. He doesn’t 

want to tell us.” In our view, this statement was clearly an unconstitutional comment on 

the defendant’s right to remain silent. The prosecutor’s “clarification” that the comment 

was meant to refer to the defendant’s refusal to explain to the police how the victim 

received his injuries does not alter our conclusion because, as our supreme court has 

observed, “evidence or argument about a defendant’s post-arrest, post-Miranda silence is 

impermissible.” Jackson, 444 S.W.3d at 586 n.43 (citing Doyle v. Ohio, 426 U.S. 610, 

617 (1976). The defendant’s decision to provide a statement waives the privilege against 

self-incrimination only “[a]s to the subject matter of his statements” and does not operate 

as a blanket invitation to the prosecution to ascribe meaning to the defendant’s silence on 

other matters. Anderson v. Charles, 447 U.S. 404, 408 (1980); see United States v. 

Casamento, 887 F.2d 1141, 1179 (2d Cir. 1989) (“[E]ven if a defendant has made 

statements to the police after receiving Miranda warnings, he is deemed to have 

maintained his silence, unless the post-arrest statements are inconsistent with the 

defendant’s testimony at trial.” Said differently, as to those subjects not addressed by the 

defendant in his statement, he has remained silent, as is his constitutional prerogative, and 

the State may not comment on that silence. In consequence, the prosecutor’s statement, 

even if it was intended as a remark on the defendant’s refusal to admit certain details 

during his statement, was an unconstitutional remark on the defendant’s exercise of his 

constitutional right.

Because improper commentary on the accused’s exercise of his right to 

remain silent is an error “of constitutional dimension,” a reviewing court must apply the 

standard of harmless error review for non-structural constitutional errors announced in 

Chapman v. California, that is, whether the State has established that the error was

harmless beyond a reasonable doubt. Jackson, 444 S.W.3d at 591; Chapman v. 

California, 386 U.S. 18, 24 (1967). “When assessing whether the State has met its 

burden, courts should consider the nature and extensiveness of the prosecutor’s argument, 

the curative instructions given, if any, and the strength of the evidence of guilt.” Jackson, 

444 S.W.3d 554 at 591 (citations omitted).

Here, the prosecutor’s remark was isolated. Like the improper comment at 

issue in Jackson, the comment at issue here occurred during the State’s rebuttal closing 

argument, thus depriving the defendant of any “opportunity to respond to the argument.” 

Jackson, 444 S.W.3d at 592. That being said, nothing in the record suggests that the 
-19-

prosecutor’s delivery of the statement was particularly forceful or in any way remarkable 

or that the comment was accompanied by any gesture toward the defendant, as was the 

case in Jackson. The defendant did not request any curative instructions either at the time 

of his contemporaneous objection or at the time of his request for a mistrial, and the trial 

court gave none. During its general charge, however, the trial court instructed the jury 

that the statements and arguments of counsel were not evidence and that the jury was to 

“place no significance on” the defendant’s decision not to testify and that “his election to 

do so cannot be considered for any purpose against him, nor can any inference be drawn 

from such fact.” Because these instructions were given as part of the court’s general 

charge, they “did not highlight the prosecutor’s comment or the defendant’s decision not 

to testify as the curative instructions given in Jackson did.” State v. Colvett, 481 S.W.3d 

172, 208-09 (Tenn. Crim. App. 2014) (citing Jackson, 444 S.W.3d at 592 (stating that the 

trial court’s curative instructions “likely served to emphasize further [Jackson’s] exercise 

of her constitutional right not to testify”)). Finally, contrary to the defendant’s assertions 

otherwise, the evidence of his guilt was overwhelming. While alone in the defendant’s 

care, the victim suffered a complex skull fracture and bruising of his brain stem – injuries 

which led to the victim’s death. On balance, we conclude that the error was harmless 

beyond a reasonable doubt. Consequently, the trial court did not err by denying the 

defendant’s motion for a mistrial.

VI. Sufficiency

The defendant avers that the evidence was insufficient to support his 

convictions, arguing that there was evidence of other, plausible explanations for the 

victim’s injuries.

We review the defendant’s claim of insufficient evidence mindful that our 

standard of review is whether, after considering the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 

307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This 

standard applies to findings of guilt based upon direct evidence, circumstantial evidence, 

or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 

370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither 

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id. 

Questions concerning the credibility of the witnesses, the weight and value of the 

evidence, as well as all factual issues raised by the evidence are resolved by the trier of 

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must 

afford the State the strongest legitimate view of the evidence contained in the record as 
-20-

well as all reasonable and legitimate inferences which may be drawn from the evidence. 

Id.

In this case, the defendant was charged with felony murder in the 

perpetration of aggravated child abuse but convicted of the lesser included offense of 

reckless homicide, which is “a reckless killing of another.” T.C.A. § 39-13-215(a). He 

was also charged with aggravated child abuse, which required the State to establish that 

the defendant “knowingly, other than by accidental means,” treated the victim “in such a 

manner” that “result[ed] in serious bodily injury to the” victim. T.C.A. §§ 39-15-401(a); 

-402(a)(1). “‘Knowing,’” in this instance, “means that a person acts knowingly with 

respect to the conduct or to circumstances surrounding the conduct when the person is 

aware of the nature of the conduct or that the circumstances exist.” Id. § 39-11-106(20).

For purposes of the aggravated child abuse statute, 

“[s]erious bodily injury to the child” includes, but is not 

limited to, second- or third-degree burns, a fracture of any 

bone, a concussion, subdural or subarachnoid bleeding, 

retinal hemorrhage, cerebral edema, brain contusion, injuries 

to the skin that involve severe bruising or the likelihood of 

permanent or protracted disfigurement, including those 

sustained by whipping children with objects.

Id. § 39-15-402(d).

The evidence adduced at trial established that when the victim’s mother left 

the victim and his siblings alone with the defendant, the victim was uninjured and 

behaving normally. When she returned home following the defendant’s report that he 

was having difficulty rousing the victim, the victim was near death. When paramedics 

arrived, the victim was unconscious and “not breathing adequately.” When Doctor 

Perales examined the victim, she saw “a very critical patient who required assistance to 

breathe, . . . medicines to have his blood pressure stay stable, and monitoring of . . . how 

much pressure was around his brain at all times.” Doctor Perales could not even perform 

a full examination of the victim’s body because even small movements would increase 

the victim’s blood pressure, causing an increase in the intracranial pressure. Medical 

imaging “showed that the [victim] had what we call occipital fracture,” fluid between all 

the layers of his brain and skull and “even had bleeding between the bone and the scalp,” 

and “a lot of brain swelling.” He also suffered a rupture of his cervical spine. She 

testified that the victim’s injuries were the result of “a great amount of force. . . . A force 

that if someone were to witness that event, they would know that that child was injured.” 

She said that the victim’s injuries could not have come from his falling onto a window 

sill while jumping on the bed, from his fainting in the bath, from his falling backwards 
-21-

onto a carpeted floor, or his stumbling into a dresser. She went so far as to say that there 

was no scenario under which the victim could have caused the injuries to himself. Doctor 

Perales’ testimony was corroborated by Doctor Lochmuller’s findings during the autopsy 

of the victim. He observed that the victim had suffered “a complex skull fracture” as 

well as a “whiplash-like” injury to his brain that caused significant swelling of the 

victim’s brain and brain stem. The injury to the victim’s brain stem paralyzed the victim, 

rendering him unable to breath.

In light of the medical testimony, the defendant’s assertion on appeal that 

“the evidence in this case was perhaps suspicious,” is absurd. The defendant was alone 

in the room with a five-year-old child who suffered injuries that medical experts equated 

with having been injured in a car accident or while skydiving. We hold that the evidence 

was sufficient to support both convictions.

VII. Cumulative Error

The defendant asserts that the cumulative effect of the errors deprived him 

of his constitutional rights to due process and a fair trial. Having considered the issues 

presented on appeal and having concluded that the defendant is not entitled to relief for 

any, we conclude that the cumulative effect of the alleged errors does not warrant 

reversal.

VIII. Sentencing

Finally, the defendant contends that the effective sentence imposed by the 

trial court is excessive.

Our standard of review of the trial court’s sentencing determinations in this 

case is whether the trial court abused its discretion, but we apply a “presumption of 

reasonableness to within-range sentencing decisions that reflect a proper application of 

the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 

(Tenn. 2012). The application of the purposes and principles of sentencing involves a 

consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of 

the defendant . . . in determining the sentence alternative or length of a term to be 

imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005 

amendments to ‘place on the record, either orally or in writing, what enhancement or 

mitigating factors were considered, if any, as well as the reasons for the sentence, in order 

to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. § 

40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is 

within the appropriate range and the record demonstrates that the sentence is otherwise in 

compliance with the purposes and principles listed by statute.” Id. at 709.
-22-

The defendant argues that the trial court abused its discretion by “basing its 

harsh sentence on an imagined sequence of events – [The defendant] was playing video 

games while [the victim] was unconscious – was not supported by the testimony at trial.” 

The record, however, belies the defendant’s assertion. At trial, the victim’s mother 

testified that when she arrived home after the defendant reported that he could not rouse 

the victim, her other children “were in the master bedroom with” the defendant “playing 

the X-box.” Although it was not entirely clear whether she meant that the defendant was 

actually playing the video game or whether he was in the room while the children played, 

we do not believe the distinction is significant enough to undermine the entire sentencing 

decision of the trial court. We would also note that this court has previously indicated 

that the fact that the defendant “‘sat playing video games’ while the unresponsive victim 

lay only a few feet away” reflected poorly on the defendant’s “potential for rehabilitation 

or treatment” and was thus an appropriate fact to be considered at sentencing. State v. 

Mark Takashi, No. E2010-01818-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., 

Knoxville, Sept. 27, 2012).

Conclusion

Based upon the foregoing analysis, we affirm the judgments of the trial 

court.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE