IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 3, 2015

STATE OF TENNESSEE v. SEBASTIAN PEGUES

Appeal from the Criminal Court for Shelby County

No. 12-06-111 J. Robert Carter, Jr., Judge

No. W2014-00854-CCA-R3-CD - Filed May 27, 2015

A Shelby County jury convicted the Defendant, Sebastian Pegues, of two counts of first

degree felony murder, one count of aggravated child abuse and one count of aggravated child

neglect. The trial court merged the two first degree felony murder convictions and sentenced

the Defendant to life. The trial court sentenced the Defendant to concurrent twenty-year

sentences for the aggravated child abuse and aggravated child neglect convictions. On

appeal, the Defendant asserts that there is insufficient evidence to support his convictions.

After a thorough review of the record and applicable law, we affirm the Defendant’s

convictions and sentences. We remand this case to the trial court for the entry of a corrected

judgment in Count 3, indicating that the convicted offense is aggravated child neglect.

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

and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT H.

MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Stephen Bush, District Public Defender; Harry E. Sayle III (on appeal), and Donna Armstard

and Cathy Kent (at trial), Assistant District Public Defenders, Memphis, Tennessee, for the

appellant, Sebastian Pegues.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;

Amy P Weirich, District Attorney General; and Carrie Shelton-Bush and Eric Christensen,

Assistant District Attorneys General for the appellee, State of Tennessee.

OPINION

I. Background and Facts
This case arises from the death of a three-month-old infant girl. A Shelby County

grand jury indicted the victim’s step-father, the Defendant, for two counts of first degree

felony murder, one count of aggravated child abuse, and one count of aggravated child

neglect.

At the January 2014 trial on these charges, the parties presented the following

evidence: Felecia Nunn testified thatshe worked as a 911 dispatcher in Memphis, Tennessee,

and received a call on June 25, 2012, from a residence located on South Greer. Ms. Nunn

testified that the caller was a male. A recording of the 911 call was played for the jury.

During the 911 call, the caller said that he needed an ambulance because his baby was

“slowly breathing” and “look[s] like she’s gonna die.” The caller said that the baby was his

daughter. The caller stated that the baby was dozing off and not crying between breaths. He

stated that he had given the baby Tylenol. The caller stated that the baby was weak and

“slowly dying in [his] arms. . . .” Ms. Nunn instructed the caller to perform CPR by blowing

air into the baby’s mouth. The caller followed her instructions and then told Ms. Nunn that

he thought the baby was dead. The caller then told Ms. Nunn that emergency personnel had

arrived. Ms. Nunn said this particular caller stood out to her because he was very calm. Ms.

Nunn instructed the caller to begin CPR until firefighters arrived and took over.

Jason Ikner testified that he was a paramedic in Memphis, Tennessee, and that on June

25, 2012, he responded to a residence located on South Greer due to a baby in distress.

When he arrived at the home, he was met by the Defendant. The Defendant took Mr. Ikner

inside his home and said that his daughter, the victim, was a baby and was having trouble

breathing. Mr. Ikner found the victim in a back bedroom lying on an adult-sized bed. The

Defendant told him the victim had been sick, had taken medication, and was not breathing

well. Mr. Ikner testified that the victim was “definitely . . . in distress.” He said that he

immediately noticed that the victim was “very depressed like lethargic.” He stated that the

victim had a “fixed” look on her face and was not breathing at a normal rate for a baby. The

Defendant told him he had given the victim Tylenol and showed him the dosage, which Mr.

Ikner said was not a large dose.

Mr. Ikner testified that the ambulance arrived quickly to transport the victim. He did

not perform CPR at that time because she was still breathing. He explained the term

“depressed,” stating that it was a medical term related to the victim’s respiratory rate and how

she interacted with her surroundings. Mr. Ikner said:

What would be normal like for a baby to cry, coo, breathe fast,

movements. None of that was present. It was very slow, delayed. And

normally when you . . . get in an infant’s face or wave something in an infant’s

face it grabs their attention and immediately they shift their focus. The baby,

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she never appeared like that. Like when I was assessing her . . . she just kind

of had an abnormal gaze that wasn’t directed at me. It was more just a far off

look.

Mr. Ikner recalled that there was another child in the house, the victim’s older sibling. The

sibling and the Defendant were the only two people in the house. He said that, when he left

the house with the victim, she was breathing but “deteriorating.”

When he got into the ambulance with the victim, Mr. Ikner informed the other

paramedics that the victim was “about to crash” or go into cardiac arrest. He said they

immediately laid the victim on the stretcher and put the “EKG leads” on to monitor her heart

rate. At that moment, her heart stopped and CPR was administered. He testified that the

victim’s pulse did eventually return.

On cross-examination, Mr. Ikner said that the paramedics intubated the victim inside

the ambulance, meaning they tried to inflate her lungs with oxygen through a tube down her

throat.

Dr. Marco Ross testified that he was the Deputy Chief Medical Examiner for Shelby

County. He was admitted as an expert in the field of forensic pathology. Dr. Ross identified

the autopsy report of the victim, which was entered into record. He stated that he conducted

the autopsy on the victim’s body and that she weighed sixteen pounds and was three months

old at the time of the autopsy.

In his examination of the victim’s body, Dr. Ross found a bruise on her right temple

consistent with blunt force trauma to that area. On the back of the victim’s head, Dr. Ross

found a hemorrhage, which he explained as an area of bleeding in the tissue. He testified that

there was a similar area of hemorrhage on the right front part of the victim’s scalp. Dr. Ross

said that, after removing part of the victim’s skull, he found a small area of hemorrhage on

the right side of the victim’s brain. Dr. Ross identified pictures of those injuries, and they

were admitted as evidence. He stated that all of the victim’s injuries to her head appeared

to be acute injuries, meaning that they occurred within twenty-four hours before her death.

Dr. Ross testified that it would have taken a minimum of two blows to the victim’s head to

create those injuries.

Dr. Ross identified pictures of areas of bruising on the victim’s torso region,

specifically her lower chest and upper part of her abdomen. Dr. Ross testified that he found

injuries on the victim’s ribs. The victim’s fifth through ninth ribs were fractured on her right

side, and her third through eighth ribs were fractured on her left side. The eighth and ninth

ribs on her backside, where they attach to the spine, had “calluses” indicative of older

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fractures to those ribs. He testified that the injuries to the ribs on her right side also appeared

to be acute. The injuries to her left side were a minimum of two weeks old. Pictures of the

injuries to the victim’s ribs were identified and admitted as evidence.

Dr. Ross testified that he could not completely rule out that the victim’s rib injuries

were caused by CPR, but he stated that his interpretation of the injuries was more consistent

with pressure or impact from the side of the body, rather than the front, which would be

consistent with CPR. He agreed that the injuries were more consistent with injuries sustained

from blunt force trauma. He testified that there were hemorrhages in the immediate vicinity

of the fractured ribs consistent with blunt force trauma. Based on the fracture lines on the

victim’s ribs, Dr. Ross testified that the victim had suffered broken ribs during three different

events.

Dr. Ross testified that the victim had suffered bleeding in her right lung, as well as in

her heart. Pictures of the bleeding in the victim’s lung and heart were identified and admitted

as evidence into the record. The presence of the hemorrhage inside the victim’s lung

indicated that the victim had suffered blunt force trauma rather than injuries sustained during

CPR. Dr. Ross testified that the victim had two lacerations on her liver, which he described

as “complex,” indicative of a “crush type of injury to the liver.” Pictures of the injuries to

the victim’s liver were identified and admitted as evidence into the record. Dr. Ross agreed

that it would take a “significant amount of force” to cause this type of injury to the liver. He

characterized the injuries to the victim’s liver as severe, caused by a very significant impact.

Dr. Ross testified that the victim also suffered hemorrhaging to her duodenum, the

connection between her stomach and small intestine, as well as to her pancreas and kidney.

He testified that the victim’s adrenal gland was split open by a large laceration consistent

with a severe injury. He agreed that an adult punching the victim would cause that type of

laceration. Dr. Ross testified that, due to her internal injuries, the victim had bled at least

half of her blood volume internally.

Dr. Ross testified that he determined the cause of the victim’s death to be multiple

blunt force injuries. He stated that the victim’s injuries were very severe and “associated

with a high mortality.” He testified that he typically associated these types of injuries with

car accidents because of the amount of force necessary to cause the same crushing of the

liver suffered by the victim. He stated that, had the victim been resuscitated, she probably

would have had to have her liver removed to stop the internal bleeding. He described the

injury to her liver as “very, very severe” and stated that the victim would have been in severe

pain after sustaining these injuries. Dr. Ross stated that the victim likely went into shock

within a matter of minutes after sustaining the injury to her liver. Based on the severity of

the injuries, Dr. Ross stated that the victim probably suffered them close to the time that she

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died.

On cross-examination, Dr. Ross agreed that the victim arrived at his office with

medical equipment on her body, left in place so that he could ascertain whether any of her

injuries or marks were related to the medical equipment. He clarified that the temple, where

the victim had a bruise, was on the side of the head between the eye and the ear. He agreed

that, near the injury to her temple, the victim had a mark where tape had been placed on her

head by medical personnel. He stated that the tape and any piece of medical equipment that

had been taped to her head would not have caused her injury. Dr. Ross stated that the

injuries to the child’s liver and abdomen would have been by someone forcefully squeezing

her abdomen, or punching or kicking her abdomen. He denied that her injuries could have

come from being hit with a belt buckle. He denied that her injuries were consistent with

“Shaken Baby Syndrome.”

Officer Euvonnie Keefer testified that she was employed by the Memphis Police

Department and responded to a call on June 25, 2012, on South Greer about a baby who was

having trouble breathing. The paramedics were present when she arrived at the scene. Inside

the house were the Defendant, the victim, and a seven or eight-year-old girl. Officer Keefer

spoke with the Defendant, who said the victim was having difficulty breathing and that he

had given her medication. At that point,she notified hersupervisor, consistent with protocol,

and asked the Defendant to remain at the house. Officer Keefer said that the other child in

the house was concerned about the victim.

Teresa Pegues testified that she was twenty-seven years old and had two living

children. She testified she had another deceased child, the victim, who was born February

28, 2012. She stated that, before her death, the victim had lived with her and her eldest

daughter, K.H., as well as the Defendant, to whom she was married. She stated that she and

1

the Defendant had been married since October 2011. She testified that K.H. was nine years

old at the time of trial and that she no longer had custody of K.H.

Ms. Pegues recalled that on June 25, 2012, she had to be at work at 6 a.m. When she

left for work that day, the victim and K.H. were still asleep, and the Defendant was awake.

She stated that the victim slept in the master bedroom in a crib. Ms. Pegues stated that the

victim was acting normally the night before and was very active, smiling, and trying to stand

up. About nine or ten o’clock in the morning on June 25, 2012, the Defendant called Ms.

Pegues at work and told her that the victim was breathing “funny” and “kind of wheezing.”

Ms. Pegues told him to give the victim Tylenol drops, which had been prescribed for the

victim during a prior episode when she was wheezing. The Defendant later called her and

It is the policy of this Court to refer to minors by their initials.

1

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said that emergency services were at their house and that she should go to the hospital.

Ms. Pegues testified that, at the hospital, a doctor met with her in a room and

explained to her that the victim’s heart had stopped three times and been revived several

times. The doctor said that it was not advisable to keep trying to revive the victim because

of the lack of oxygen to her brain. Ms. Pegues made the decision not to revive the victim.

She later held the victim, and her family members arrived and also held her. Ms. Pegues

called the Defendant to tell him what had happened. K.H. arrived at the hospital later and

Ms. Pegues asked for assistance from the social workers that were present to tell K.H. that

her baby sister had died.

Ms. Pegues said that K.H. burst into tears when she heard that the victim had died.

She was scared and upset and shouted, “mama I told you that dad was spanking the baby.”

Ms. Pegues agreed that she knew what K.H. was “talking about.” She said that K.H. left the

hospital with her grandmother while Ms. Pegues spoke to the police and the Department of

Children’s Services. Ms. Pegues agreed that, at the time of trial, she was under indictment

for aggravated child neglect related to the victim’s death and had retained an attorney after

being arrested on November 12, 2012. She recalled that investigators arrested the Defendant

the day after, on November 13, 2012, because investigators “felt like he was the cause of [the

victim’s] death.”

Ms. Pegues agreed that she loved the Defendant but had “moved on” from her

relationship with the Defendant since finding out what happened to the victim. She agreed

that she had a child with the Defendant. Ms. Pegues stated that, before she saw the victim’s

autopsy photographs, she thought the victim had suffered “just broken ribs and bruising

under the skin.” She explained that the autopsy photographs showed her how severe the

victim’s injuries were and that changed her opinion of the Defendant and also changed her

relationship with him.

Ms. Pegues testified that her daughter, K.H., was very bright. She stated that, on one

occasion, K.H. had scratched the victim’s back and left red marks. Ms. Pegues said that,

when she was at work, the Defendant would be at home taking care of the victim and K.H.

Ms. Pegues stated that, while in the Defendant’s care, the victim had been taken to the

hospital on one occasion before her death, on April 26, 2012, when she was just two months

old. K.H. was not home on this occasion. The Defendant called Ms. Pegues at work and told

her the victim had fallen out of the bed. Ms. Pegues said the victim’s left side was

“completely swollen” after the fall, and the victim’s eyes were swollen shut. The Defendant

told Ms. Pegues that he left the victim on the bed with him while he slept, and she fell onto

the floor while he was sleeping.

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On cross-examination, Ms. Pegues agreed that she wrote letters to the Defendant in

jail. She stated that she did not see the victim’s autopsy photographs until the week before

trial. She agreed that there was a possibility she would not be prosecuted for the indicted

charges if “everything came out in the clear,” and “we found out the truth . . . .” Ms. Pegues

agreed that she had said K.H. had a jealousy issue when Ms. Pegues would buy toys for the

victim or when she or other adults were giving the victim attention. Ms. Pegues agreed that

she did not leave K.H. alone with the baby because she had scratched the baby and because

of K.H.’s jealousy issues.

Ms. Pegues stated that on April 26, 2012, she put the victim in the bed with the

Defendant while he was asleep and then left for work. She agreed that the victim was

“mobile” then. She agreed that her grandmother currently had custody of K.H.

Ms. Pegues testified that on June 25, 2012, the victim was wheezing, meaning her

cries were “raspy” like she had asthma. Ms. Pegues said it was not to an extent that the

victim seemed out of breath, but there was a difference in her breathing pattern. She said the

victim “seemed like she was sore.” The Defendant called Ms. Pegues at work and said the

victim was wheezing, so Ms. Pegues told the Defendant to give her Tylenol. Ms. Pegues said

when the victim had been given Tylenol before, “it cleared everything up,” and the victim

was “back to her normal self.”

Ms. Pegues stated thatshe explained the difference between spanking and burping the

victim to K.H., because K.H. alleged that the Defendant was “whipping” the victim. Ms.

Pegues asked K.H. to demonstrate the Defendant’s actions, and Ms. Pegues told K.H. that

he was burping the victim or “pat[ting] the [victim] on the back.” Ms. Pegues stated that

K.H. was not strong enough to have inflicted these injuries on the victim.

Felicia Lobbins testified that she was a medical social worker on June 25, 2012, and

was present when emergency responders brought the victim to the hospital. Ms. Lobbins met

with Ms. Pegues when she arrived at the hospital and took her to where the doctors were

“working” on the victim. She was also present when K.H. arrived at the hospital. Ms.

Lobbins and other social work staff encouraged Ms. Pegues to tell K.H. about the victim’s

death while they were still at the hospital and had the support of the staff. Ms. Lobbins stated

that Ms. Pegues told K.H. that the victim had died, and K.H. “acted like a much older child.

She immediately said to [Ms. Pegues that] she wanted to know what happened.” K.H.’s

voice was raised, and she was “angry” and “upset.” K.H. told Ms. Pegues that the Defendant

was “who[p]ping” the victim while Ms. Pegues was at work all day and that the Defendant

had been “who[p]ping” the victim that morning. Ms. Pegues and other family members tried

to explain to K.H. that she was mistaken.

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Crystal Soberg testified that she worked at the hospital as a Child Life Specialist and

was familiar with the victim’s case. She, Ms. Lobbins, and the hospital chaplain were with

the victim’s family to provide emotional support. She said the victim’s family wanted hers

and Ms. Lobbins’s help when telling K.H. what had happened to the victim. She said K.H.

was very sad when she learned of the victim’s death, and then she started getting angry and

“words started rattling off, you know, ‘well, mom, you know what he does to her. You

know, what he does to her when you’re at work, when you’re gone all day and I hear him

hitting her.’” K.H. was angry with Ms. Pegues for leaving the house. Ms. Soberg said that

K.H. told Ms. Pegues that the Defendant was “who[p]ping” the victim, and Ms. Pegues tried

to clarify that the Defendant was burping the victim. “But, [K.H.] was sure that [she] heard.

He was who[p]ping the [victim].”

K.H. testified that she was nine years old and in the fourth grade. She testified that

the Defendant was her stepfather, and Ms. Pegues was her mother. She testified that she

presently lived with her great-grandmother, “Gee Gee.” K.H. testified that she had one sister

who was four months old, and another sister, the victim. K.H. testified that she remembered

living on South Greer in 2012 with the Defendant, Ms. Pegues, and the victim. She said the

victim slept in a crib in the Defendant and Ms. Pegues’s bedroom. K.H. said she spent a lot

of time with the victim, played with her, and watched television with her.

K.H. stated that on June 25, 2012, she remembered Ms. Pegues getting ready for work

early in the morning. Ms. Pegues left for work and K.H., the Defendant, and the victim

stayed at home. K.H. stated she was watching television in her bed with the victim in her

bed, and she placed the victim right beside her so the victim would not roll off the bed. K.H.

said the victim was “fussy” but not crying that morning. The victim was crying “a little later

in the morning” when K.H. “put [her] hand over [the victim’s] mouth so she couldn’t

breathe.” After that, K.H. took the victim to the Defendant and went to her room crying

because she felt guilty about putting her hand over the victim’s mouth. Then K.H. “started

hearing noise from the living room” that “sounded like who[p]pings,” but she was not sure

“if [the Defendant] whipped [the victim] or not[.]” K.H. did not “believe” that the Defendant

whipped the victim, but she agreed that she heard noises that sounded like “who[p]pings.”

She did not remember if the Defendant hit the victim.

K.H. testified that the Defendant called 911 and that he gave the victim some

medicine “a couple of minutes later” after she heard the whopping sounds. Emergency

personnel came to the house and took the victim to the hospital. K.H. remembered that the

victim was in the Defendant’s lap on the couch after K.H. brought her to him. While giving

the victim to the Defendant, K.H. recalled bumping the victim “a little bit” into the couch.

She said it was an accident.

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K.H. agreed that the Defendant had sent her lots of letters since that day and that he

called her a lot. K.H. agreed that the Defendant had asked for her to pray for him to come

home. K.H. agreed thatshe remembered the Defendant telling the victim that she was “going

to learn to stop crying[.]”

On cross-examination, K.H. stated that a “who[p]ping” was a “punishment.”

Letitia Cole testified that she was a forensic interviewer at the Memphis Child

Advocacy Center and interviewed K.H. in connection with the victim’s death. Ms. Cole

recalled that K.H. was “clear” about what had happened to the victim. Ms. Cole recalled that

K.H. did not tell her about putting her hand over the victim’s mouth, but she said that the

victim started crying and the Defendant asked K.H. to bring the victim to him. K.H. told Ms.

Cole about hearing noises in the other room that “sounded like someone was getting a

who[p]ping.” K.H. also told Ms. Cole that it sounded like a belt was being used and that the

Defendant had spanked the victim in the past.

Lieutenant Carl Ray testified that he worked for the Memphis Police Department and

was assigned to the Child Juvenile Abuse Squad in June 2012. He responded to a call on

South Greer on June 25, 2012. The Defendant, K.H., and the police were present at the

house when he arrived, the victim having already been transported to the hospital. Lieutenant

Ray spoke to the Defendant, who stated that he was trying to sleep and that the victim would

not stop crying. He called Ms. Pegues who told him to give the victim some Tylenol to help

her sleep.

Lieutenant Ray said another officer was speaking with K.H. while he took notes of

their conversation. He recalled that K.H. said that the victim cried a lot, and it frustrated the

Defendant. K.H. said “something about a who[p]ping.”

Vicki Watts testified that she worked for the Department of Children’s Services as an

investigator of child neglect cases. She testified that she spoke with K.H. on the day the

victim died. Ms. Watts recalled that K.H. stated that:

She was watching [the victim] in her bedroom. [K.H.] said that they

were watching television. [K.H.] stated that [the victim] became irritable.

[The victim] was starting to cry. [K.H.] stated that she put [the victim] in her

car seat and started to rock her in the car seat to try to sooth[e] her. [K.H.]

stated that she picked [the victim] up and, you know, out of the car seat trying

to get [the victim] to watch television with her but the [Defendant] came in and

got [the victim] from her and took [the victim] into another room.

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Ms. Watts then stated that K.H. said “she didn’t see anything” but K.H. told Ms. Watts “that

it sounded like [the Defendant] was hitting [the victim] with a belt. [K.H.] stated that [the

victim] was crying so loud to where she became hoarse.” Ms. Watts remembered K.H.

telling her that she heard the Defendant tell the victim that she was “going to learn to stop

crying[.]”

Ms. Watts also spoke with the Defendant that day. The Defendant told Ms. Watts that

if the victim’s autopsy report showed that she had broken ribs, it would be because “911 told

him to do CPR.”

Dr. Karen Lakin testified that she was an Assistant Professor of Pediatrics at the

University of Tennessee and the Medical Director at the hospital where the victim was

treated. Dr. Lakin testified as an expert witness in the fields of general pediatrics and child

maltreatment and abuse. She stated that she was asked to review the victim’s records by the

Department of Children’s Services and by the District Attorney’s Office. Dr. Lakin was

provided the victim’s hospital records from April 26, 2012, and June 25, 2012. The

paramedics’ records, reports from the investigation, interviews, and autopsy records were

also provided to Dr. Lakin.

Dr. Lakin testified that the victim was seen in the hospital’s emergency department

on April 26, 2012, for “facial bruising that was reported to have occurred from falling from

the bed while [the victim] was sleeping with [the Defendant.]” Dr. Lakin testified that the

victim returned to the hospital on June 25, 2012, in “extremely critical condition” and then

died at 1:20 p.m. on June 25 while in the hospital. The cause of death listed on the autopsy

was “multiple blunt force injuries.”

Dr. Lakin testified that the victim arrived at the hospital at 11:11 a.m. on June 25,

2012. Dr. Lakin explained that blood was drawn from the victim very quickly to allow the

staff “get a lot of information quickly” about the victim. Within a few minutes of the

victim’s arrival, blood tests indicated that the victim’s “hematocrit” level, the percentage of

red cells in the body, was 23 and her “hemoglobin” level, or blood protein level, was 7.8.

Dr. Lakin testified that those values “were almost half of what the normal value should be”

in an infant. A second round of blood was drawn and tested seventeen minutes later, and the

victim’s hematocrit level had dropped to 13.6 and her hemoglobin level to 4.6. Dr. Lakin

stated that the normal hematocrit level was around 35 to 40 and the normal hemoglobin level

was about 10 to 12. The dramatic drop between the two blood tests indicated that the victim

was “actively bleeding.”

Based on the victim’s autopsy reports, Dr. Lakin testified that the victim had “a

number of injuries.” Dr. Lakin further testified:

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[The victim] had a number of abnormalities on arrival in her lab work

including her sodium was very high, her chloride was very high. The carbon

dioxide was low. Everything was just very deranged which is something that

we do see in a child that is suffering from shock. Also . . . there are enzymes

that are produced by the liver. And so even before the autopsy there was huge

concern that there may have been some type of liver trauma because [the

enzyme levels] . . . you can see the normal values are 20 to 64. So we’re

talking, you know, [the victim’s enzyme levels were] thousands of times the

normal level.

And as well there is another enzyme that’s associated with the pancreas

and it was also extremely high. So there was already concern of some type of

intra abdominal injury that was going on . . . .”

Dr. Lakin testified that “heightened enzyme levels” are a “marker for blunt force trauma.”

Dr. Lakin testified that the victim had a “subdural hemorrhage” and explained:

A subdural hemorrhage is very concerning in and of itself[,] by itself for

non-accidental trauma in the absence of a history of significant head trauma.

It’s an unusual place to get bleeding to begin with because . . . that dura is

adhered fairly close to the brain itself. And so in order for those vessels to

rupture, you have to have some significant trauma to [the] head in order for

those – for vessels to rupture. Subdural hemorrhage is commonly associated

with abusive head trauma in [an] infant because . . . one of the mechanisms

that we believe occurs is very rapid acceleration, deceleration injuries that

occur with violent shaking. And that’s why it so alarms pediatricians when we

see a diagnoses of subdural hemorrhage and is considered one of the highly

suspicious injuries.

Dr. Lakin testified that it was her opinion that the victim’s head injuries came from at least

two different blows.

Dr. Lakin testified that the victim had two areas of rib fractures on her left side. Some

of the rib fractures were older, as indicated by the calluses on the bone. The area of rib

fracture on the victim’s right side was acute, meaning there was no callus formation. About

the hemorrhages in the victim’s lung, Dr. Lakin stated that they were “very concerning for

blunt trauma, very unusual.”

Dr. Lakin testified about the injuries to the victim’s liver and adrenal glands. The

injury to her liver was “in a crush pattern” and “look[ed] like ground beef,” meaning that the

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tissue in the victim’s liver was “falling apart.” The injuries to the victim’s adrenal glands

were “highly, highly, highly, unusual, very rare, not only in children but adults outside of any

significant history of trauma like major car accident, major blunt force trauma to the

abdomen.” Dr. Lakin stated that an adrenal gland injury occurs in children “that have

sustained blunt force trauma, major trauma from motor vehicle accidents or from falling from

numerous stories [out of a building], two or three story falls . . . They are very significant

injuries. And then the other high [rate] of adrenal injuries is from inflicted abdominal

trauma.”

Dr. Lakin testified that the victim had lost approximately half of her blood volume due

to “extensive hemorrhag[ing.]” This was consistent with the paramedic’s description of the

victim barely breathing and not focusing which Dr. Lakin stated indicated the victim was in

“shock and coma.”

Dr. Lakin stated that there was no chance that the victim’s injuries could have been

sustained during CPR or by being bumped into a piece of furniture. She denied that the

victim’s eight-year-old sibling could have caused these injuries because the injuries were

“very significant” and not the type of injury sustained “during routine play.” Knowing that

the victim’s sibling was a fifty-pound child made it even less likely in Dr. Lakin’s opinion

that the sibling caused the victim’s injuries because “children are not typically characterized

as being able to even have the strength to inflict that type of trauma.” Dr. Lakin stated that

with the injuries to the victim’s liver and adrenal glands, it was unlikely that the victim was

able to cry, or any crying would have been brief before losing consciousness.

On behalf of the Defendant, JoAnn Hansborough testified that the Defendant was

married to her granddaughter, Ms. Pegues. She stated that she currently had custody of K.H.

Ms. Hansborough stated that she was present at the hospital on June 25, 2012.

Sharon Hansborough testified that she was Ms. Pegues’s mother and the victim’s

grandmother. She stated that she had observed the interactions of K.H. and the victim in the

past and stated that K.H. was jealous of the victim and exhibited childish behaviors when the

victim was present. K.H. cried a lot after the victim was born, and she also scratched the

victim on one occasion. Ms. Hansborough described K.H. as “overly emotional” around the

victim.

Following this evidence, the jury convicted the Defendant of two counts of first

degree felony murder, one count of aggravated child abuse, and one count of aggravated

child neglect. The trial court merged the two first degree felony murder convictions and

sentenced the Defendant to serve a life sentence for the murder conviction with concurrent

twenty-year sentences for the aggravated child abuse and aggravated child neglect

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convictions. It is from these judgments that the Defendant appeals.

II. Analysis

On appeal, the Defendant contends that the evidence is insufficient to sustain his

convictions. He contends that the State did not prove that he inflicted the victim’s injuries

and that Dr. Ross’s testimony that it was possible that K.H. caused the injuries created a

reasonable doubt as to the Defendant’s guilt of aggravated child abuse. The Defendant

further contends that the State failed to prove that the Defendant knowingly neglected the

victim, a required element of aggravated child neglect. The State responds that the proof

shows that the Defendant was alone with the victim at the time of her injury, thus allowing

the jury to conclude that the Defendant caused the victim’s injuries and that the Defendant

was the sole adult responsible for the victim’s care when the neglect resulted in serious

bodily injury to the victim. The State further claims that the evidence of the severity of the

victim’sinjuries was sufficient for the jury to infer that the injuries were inflicted by an adult.

For those reasons, the State claims that the evidence is sufficient to sustain the jury’s verdict.

We agree with the State.

When an accused challenges the sufficiency of the evidence, this Court’s standard of

review is whether, after considering the evidence in the light most favorable to the State,

“any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see

Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State

v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon

direct evidence, circumstantial evidence, or a combination of both direct and circumstantial

evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing

State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct

evidence, a criminal offense may be established exclusively by circumstantial evidence.

Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be

given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and

the extent to which the circumstances are consistent with guilt and inconsistent with

innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.

2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of

review [for sufficiency of the evidence] ‘is the same whether the conviction is based upon

direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

In determining the sufficiency of the evidence, this Court should not re-weigh or

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

Nor may this Court substitute its inferences for those drawn by the trier of fact from the

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evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286

S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by the evidence

are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “‘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. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973)). The Tennessee Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,

527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate

view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate

inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting

State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a

defendant removes the presumption of innocence and raises a presumption of guilt, the

convicted criminal defendant bears the burden of showing that the evidence was legally

insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.

2000).

As relevant to this case, felony murder is a killing of another committed in the

perpetration of aggravated child abuse or aggravated child neglect. T.C.A. § 39-13-202(a)(2)

(2014). Aggravated child abuse occurs when the accused knowingly, other than by

accidental means, treats a child under the age of eighteen in such a manner as to inflict injury

and the act of abuse results in serious bodily injury to the child. T.C.A. §§ 39-15-401(a), -

402. Aggravated child neglect occurs when the accused knowingly treats a child under the

age of eighteen so as to adversely affect the child’s health and welfare and the act of neglect

results in serious bodily injury to the child. Id. An accused acts “knowingly” with respect

to his or her conduct “when [he or she] is aware of the nature of the conduct.” T.C.A. §

39-11-302(b).

The Defendant argues that the State failed to prove that he “knowingly” committed

aggravated child abuse because there was no direct proof that he knowingly or intentionally

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caused the injuries to the victim As we previously stated, a criminal offense may be

established solely by circumstantial evidence. It is for the jury to determine “the weight to

be given to circumstantial evidence, . . .‘[t]he inferences to be drawn from such evidence, and

the extent to which the circumstances are consistent with guilt and inconsistent with

innocence.’” Rice, 184 S.W.3d at 662. Therefore, we review circumstantial evidence under

the same standard as direct evidence. Dorantes, 331 S.W.3d at 379.

The evidence, viewed in the light most favorable to the State, showed that the

Defendant was the sole adult caring for the victim, a three-month-old child, and for K.H.

while Ms. Pegues was at work on the morning of June 25, 2012. The Defendant called 911

at approximately 10:30 a.m. and told the operator that the victim was having trouble

breathing. Jason Ikner testified that, when he arrived to treat the victim, she was not acting

like a normal baby. He said the victim was unable to focus her eyes, did not cry out, and was

not moving. Medical testimony showed that the victim was in a state of shock at the time

after having lost half of her blood volume due to extensive internal bleeding. Medical

testimony showed that the bleeding was caused by the victim having sustained multiple

severe injuries to her liver, including lacerations and “crush” injuries, as well as highly

unusual injuries to her adrenal gland, consistent with major blunt force trauma. The autopsy

indicated the cause of death was non-accidental blunt force trauma.

The victim sustained injuries to several areas of her ribs, some of which were at

varying stages of healing, indicating that the victim had sustained injuries on more than one

occasion. The victim had also sustained injuries to her head in several areas and was

suffering from a subdural hemorrhage, which Dr. Larkin testified was a highly suspicious

injury that often alerted pediatricians to instances of abusive head trauma. The victim’s

injuries were very severe, and the medical testimony was that she would have been unable

to live very long after sustaining these significant injuries. The victim died at 1:20 p.m. on

June 25, 2012; she had been in the Defendant’s care since 6:00 a.m. that morning.

K.H. testified that she and the Defendant were with the victim on the morning of June

25, 2012, and that when the victim started crying, K.H. took her to the Defendant. When

K.H. later learned that the victim had died, she was upset and angry, shouting to her mother

that the Defendant had been whipping the victim because she cried too much. We

acknowledge K.H.’s grandmother’s testimony that K.H. was jealous of the victim and had

physically harmed her in the past by scratching her. K.H. also testified that she placed her

hand over the victim’s mouth causing her to cry. Medical testimony, however, was that the

victim’s injuries were too severe to have been inflicted by a child of K.H.’s age and size; the

victim’s injuries were more consistent with her falling out of a two- or three-story building

or with a major car accident.

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This evidence is sufficient for a jury to find the Defendant guilty beyond a reasonable

doubt of first degree felony murder and aggravated child abuse and child neglect. The victim

sustained severe injuries to her head, ribs, liver, and adrenal glands. The Defendant contends

that the proof does not exclude the reasonable inference that the victim’sinjuries were caused

by K.H. or by the victim’s previous fall from the bed. The jury heard K.H.’s statements

about her treatment of the victim. The jury, however, also heard the medical testimony

indicating that the victim sustained severe traumas to multiple areas of her body, some over

a period of time. It is within the province of the jury to assess witness credibility and

determine the weight and value to be given to the evidence. Bland, 958 S.W.2d at 659. The

jury, by its verdict, credited the medical testimony in this case that the injuries were caused

by major blunt force trauma not inflicted by K.H. The Defendant is not entitled to relief as

to this issue.

III. Conclusion

In accordance with the foregoing reasoning and authorities, the judgments of the

trial court are affirmed.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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