### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ja nua ry 10, 200 6

STATE OF TENNESS EE v . MICHAE L FORREST BANDY

Direc t Appeal from the Circ uit Court for Tip ton County

No. 4969 Joseph H. Walk er, Judge

No. W2005-01977-C CA-R 3-CD - F iled March 21, 2006

The de fenda nt, Mich ae l Forr est Ba ndy , appea ls his convictions of first deg ree felony murder a nd ag g ravated child abuse, a Class A felony

. The sole issue on a ppeal is the suff

iciency of the e vidence

. Upon re view, we conclude that the evidenc e is sufficie nt to support the convictions and af firm the

same.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the court, in which D AVI D G. H AYES and A L AN E. G L EN N , J J ., joined.

Gary F. Antrica n, District Public De fende r, and David S. Stockton, Assistant Publ ic Def ender , for t h e ap p e l l a n t , M i c h a e l F o rr e s tB a n d y.

Pa ul G. Sum me rs , At torne y Ge ne ra l a nd Re po rt e r; Da vid H. F ind le y , A ssi sta nt A tto rn e y Ge ne ra l; El iza be th T . Ri c e , D ist

ri c t A tto rn e y

Ge ne ra l; a ndJame s W

. Freel and, Jr. a ndCol in A . Ca mpb e ll, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

The de fenda nt was indicted for ag g ravated child abuse, a Class A felony , and for first deg ree felony murder. A jury convicted the defe ndant on both counts. The de fenda nt was sentenc ed to life imprisonment on the second c ount conviction and to t wenty y ear s as a violent off

ender for ag g ravated child abuse

.

Fa ctual B ackg round

This case conce rns the death of Br anden T y ler Jo h n s o n , a thre e and a half-y ear -old child, while in the ca

re of the def endant. Chasity

Fa y Ross, the vict i m ’s m o t h er , t est ified that she lived with the defe ndant and her three children at the time of the victim’s dea th. The two other c hildren-2-

wer e Dy lan, then two months old, and L andon, who w as t h i rt ee n months old. OnlyDy lan was fathe red by

the def endant. Ms. Ross stated that she lef t the children w ith a neig hbor, Samantha Tay lor
, a t 1 :4 5 p

. m. o n Ju ly 3 0
, 2 0 0 4

. T h e v ic ti m ap p e ar e d n o r ma l a n d h e a lth y w h e n s h e le ft the children. Ms. Ross worke d at a convenie nce store about three miles from her home. The de fenda nt called Ms. Ross betwe en 5:00 and 6:00 p.m. The boy s were cry ing, but the de fenda nt assured he r they wer e all rig ht. The def

endant c alled Ms. Ross ag ain at appr ox imately 9:50 p.m. He state d that the vic tim

wa s n ot m ov ing . T he de fe nd a nt a lso sa id h e ha d d ro pp e d th e vic tim wh ile pla c ing him in bed. M s

. R o s s t o l d the def endant to ca ll 911, and she left wor k. When she arrived home, the de fe nd a nt w a s outs ide smo kin g a c ig are tte

. She fo un d the vic tim un c on sc iou s on his be d w ith his leg s o ff t h e si de. Ms. Ross called 911, a nd a re sponse team a rrived shortly

there afte r. The te am members a ttempted u n s u cc es s fully to revive the victim and remove d him to the Baptist-Tipton Ho sp ita l.

Samantha Ta y lor lived ac ross the stree t from Ms. Ross a nd baby sat the children on the day of the victim’s de ath. She stated that the victim wa s play ful that day and made no complaint of any pa in

. M s

. T a y lo r to o k th e c h il d r e n h o me to th e d e f e n d a n t’ s c ar e a t ap p r o xim a te ly 5 :0 0 p .m. The defe ndant re marke d that he would not bea t the children w ith a belt or hit them in the fac e.
Ray Dene ka wa s a par amedic w ith the ambulance service that responde d to the 911 call from Ms. Ross. He stated that he a rrived at 10:10 p

. m

. an d met a fire man ca rry ing the victim from the residence

. Up o n ex amination, the victim showed no vital signs, pulse, he artbe at, or spontane ous respiration. CP R was attempted, but the vi ctim never exhibi ted any

consciousness or

signs of life.

Pam Ford- Simps on, an investig ator for the C ovington Pol ice De partment, re sponded to the Ross residence on the nig ht of J uly 30th. Office r F ord-Simpson asked the de fend ant what ha d happene d. The de fenda nt told her that while plac ing a nother c hild in the b ed with t he victim, he noticed that the victim “did not move rig ht.”

The d ef en d an t gave a sig ned stateme nt in his handwriting to anothe r off icer on the sce ne. Th e state me nt w a s a s f

oll ow s: At approximately

17:30 I arrived at home, a nd shortly afte r that Sam broug ht the kids to me. I chang ed in the re stroom, and shortly there afte r I

fed the children, L andon, Ty ler, then pr ocee ded to watc h TV. At about 19:30 to 20:00 hours I p l ac ed the children in be d. At 21:20 I went to che ck on the children, and at t hat t ime I noticed Ty ler wa s not responding proper ly

. At about 21:50 I called Cha sity , and she a

rrived shortly there afte r. And a t approxim ately 22:10 the ambulance arrived. The stateme nt had a notation of th e t i m e i t was given a s 20:20. Office r F ord-Simpson ag ree d on

cross-e x amination that the time was incor rec tly written.

Me lissa Band y was fo rm e rl y marrie d to the de fe nd a nt a ndha d f ou r c hil dr e n b y

him . M s. Ba n d y i d entified a

letter written to Ms. R oss by the def endant a s the defe ndant’s handw riting. Wit hin the letter, the de fenda nt gi v es an acc ount of his interac tion with the victim on t he nig ht of the victim’s death. Ms. B andy rea d the following excerpt fr om the six -pag e letter :-3-

I g ot T y le r a nd

wr e stl e d w ith him . T he n I pin ne d h im a ndqu it. I do the same thing s with the boy s all the time, one of thre e thing s, either a rock bottom, pedigr ee, or

a choke slam, oh and powe r bomb. This time I had done a r ock bottom and went to pin him and then picked him up, y ou know, how they do on TV sometimes. So Ipicked him up af ter that, a nd then I did a choke slam on him. W hen I didthat, h e hit

a nddidno t mo ve , h e jus t w e nt l imp , a ndI jus t sh oo k h im. Ms. Ba ndy

also testified t hat the def

endant ha d told her he “ didn’t car e much” for the vic tim and had ref err ed to the victim as “a

piece of shit.”

Roge r Moore was, o n t h e nig ht of the victim’s dea th, an offic er f or the Coving ton Poli ce Depa rtment. He ha d taken the def endant’ s statement which wa s ref ere nced in I

nvestig ator F ordSimp so n’ s te sti mon y . O ff ic e r M oo re sa id tha t th e e nti re state me nt, inc lud ing the no ta tio n o f the tim e of statement, wa s written by the def endant. Of

fice r Moore ag ree d that the time written, 20:20 (8:20 p.m.), was incor

rec t as he did not arrive on the scene until af ter 10:00 p.m. He a lso stated that the defe ndant did not appea

r to be “ under the influence .”

Tany a Poteet, the Dir ector of Medical Records for L akeside Be haviora l Hea lth, was a State’s wi tne ss. Ms. Pot e e t te sti fi e d th a t th e de fe nd a nt p re se nte d h ims e lf to the ps y c hiatr ic su bs ta nc e abu se ho sp ita l on July 31
, 20 04

. I n the a dmi ssi on re c or ds
, the de fe nd a nt state d a s his c hie f com pla int
, “Don’ t know how to handle my problems. B een throug h so much in life.” Unde r a se ction titled, “Prec ipitating Events,” the defe ndant reported that he had three beer s the nig ht before , was c arry ing his girlf riend’s thre e-y ear -old son to bed, tripped ove r clothes, a nd dropped the boy

. He later le arne d that the boy

had died. On c ros s -e x ami nation, Ms. Poteet stated that the re cords r efle cted that the defe ndant had teste d positive f or the prese nce of

canna boids and also that he ha d expressed suicidal int e nti on s.

Elise Tanne r was the assessor f or incoming patients at L akeside Hospital. Ms. Tanner stated that she had done the initial assessment of the de fenda nt on J u l y 3 1
, 2 0 0 4. She had aske d the defe ndant what e vent or e vents caused him to present himself for admission. The defe ndant told her that he had tr ipped over

strewn c lothing and fallen while car ry ing the victim. The victim had struck his head on a door fra me. Ms. Poteet stated t hat she be lieved the de fenda nt was suffe ring from major de pr e ssi on a ndthat th e de fe nd a nt a dmi tte d to su ic ida l th ou g hts

.

L inda Gamblin was an investigator for the Covington Police De partment a nd had re sponded to the Ross residence on J uly 30th. The defenda nt had tol d her that night that while pla cing another child in bed, he ha d noticed that the victim was “not moving rig ht.” The de fenda nt was ar rested a fter his r e l e a s e f

r o m L a k e s i d e o n A u g u s t 2 n d

. T h e d e f e n d a n t g a v e a s i g n e d s t a t e m e n t w h i c h r e a d s in pe rt ine nt p art

a s f oll ow s: I t was an a ccide nt, an d we we re w restling . I know sometimes I

g et roug h. I wre stle with myown kids. We were wre stling on the mattre ss that was on the living room floor . I

was wr estling w ith him, and I wre stle on my

knees.-4- I did a choke slam on Ty ler. One hand wa s on the front part of his ne ck, and the other ha nd was on his bac k, and I choke sla mmed him into t he mattre ss. He did n’ t mo ve a ft e r tha t. I tr ie d to sh a ke him a ndtr ie d to sp la sh wate r o n h is f a c e in the bathroom. Af

ter that I took him and la id him on the bed and I tried CPR

. I was
scar ed to ca ll 911 beca

use I didn’t know what ha d happene d. So after I couldn’t g et h i m t o wa k e u p , I

ch ec k ed
, an d h e w as s t i l l b re at h i n g, an d h i s h ea rt wa s b ea t i n g.

He wa s mak ing g ur g lin g so un ds , an d so I c a lle d Cha sit y to co me ho me . H is mouth was open, a nd his tongue was moving . L andon wa s sleeping i n the bed. When Chasity g ot home Ty ler was ly ing on the bed with L andon, which is whe re I place d him when he wouldn’ t wake up. When Cha sity g ot home she went into the bedroom a nd tried to g et Ty ler to wake up. I followed her in there . She had picke d him up and was try ing to g et him awake . She put Ty ler on the ma ttress in the living room, and she c alled 911. She ca lled 911 twice. I nvestig ator Ga mblin st ated that she wrote the acc ount in her handwr iting. The defe ndant re viewed it, ma de on e c ha ng e , a ndsig ne d th e state me nt.

Dr. B ruce Phill ip L evy , a for ensic pa thologist who ser ves as the Chief Medica l Ex aminer f

or the State of Te nnessee , testified as an expert in fore nsic patholog y . Fr om the autopsy perf ormed on the victi m , Dr

. L evy ’s major finding s of patholog ical diag noses wer e: blunt force injuries of the head, ne ck, and tor so. Superficia l injuries to the ext remities wer e also found. Dr. L evy ascribed the

cause of dea t h t o t h e m ultiple blunt force injuries to the he ad and tor so. He stated the manner of death wa s homicide and the c ircumstance s of dea th as a ba ttered c hild.
More specifica lly , Dr. L evy stated that he f

ound eig ht injuries to the victim’s face are a and three are as of bleeding beneath the scalp. The internal bleeding are as wer e rela ted to a c o n t u s i on above the left ey e, the top lef t side of the hea d, and a third on the rig ht top back side of the he ad. On the victim’s torso wer e ar eas of bruising on the chest, a

bdomen, and ba ck. Dr . L evy found interna l bleeding in the intestinal mesentery , the ar ea that supports the intestines. The internal injuries to the head a nd the m esente ry wer e the most serious i njuries. Ba sed on the autopsy examination, Dr. L evy stated “the se injuries occ urre d . . . at or ne ar the time of (the victim’s) de ath, withi n a matter of

sever al hours at t h e mos t.” Dr. L evy found no “pattern injuries” suc h as would be pr esent fr om striking a door fr ame.

After the State conc luded its proof, the defenda nt testified as the s ole def ense w itness. The defe nda n t r e c o u n te d th e e v e n ts le a d in g to th e v ic ti m’ s d e a th

. H e s tate d th a t h e s ta r te d drinking shortly afte r ar riving home at 5:00 to 5:30 p.m. He said t h at h e per formed se vera l wrestling

maneuve rs on the victim including w hat he identified as a “c hoke slam,” “ body slam,” “hip toss,” and a “ rock bottom.” The defe ndant first re cog nized a problem with the vi ctim afte r t he victim was administered the “ choke sla m.” The de fenda nt denied any ang er towa

rd or a ny intent to injure the vic tim

.-5-

Du r in g c r o s s

- e xa mi n a ti o n , th e d e f e n d a n t a d mi tt e d th a t h is w r it te n s tate me n t o n Ju ly 30th, the or a l st a te me nt t o I nv e sti g a tor F or d- Simp so n, a ndhis a c c ou nt to L a ke sid e pe rs on ne l we re a ll f a lse

acc ounts. The def

endant a dmitted telling his former wife tha t he punched the victim in the stomach on prior occ asions to make him quiet. Howeve r, the de fenda nt denied the truthfulne ss o f the statement. The de fenda nt did not fee l that drinking or sm oking marijuana tha t evening had impaire d him

.

An a ly sis

The de fenda nt poses the only issue on appea l in the following manner : “whethe r the evidenc e in the re cord is suff icient, as a

matter of la w, to sustain the con v i ction for f irst deg ree felony murder ba sed upon ag g ravated child abuse .” The d ef en d an t arg ues that the proof adduce d was insuffic ient to show that the defendant acted “knowing ly ” as oppose d to acc identally in causing the vic tim ’s fata l in

jurie s.
Our inquiry

when r eviewing a cha lleng e to the sufficiency of the e vidence is whether, considering the evidenc e in a light most fa vorable to the State, any rational trier

of fa ct could have found the e ssential elements of the crime bey ond a rea sonable doubt. See J ackson v. Virg inia, 443 U. S. 3 07 , 9 9 S. Ct. 27 81 (1 97 9) ; Sta te v. Ha ll, 8 S.W. 3d 59 3, 59 9 (T e nn

. 19 99 ); Te nn

. R. A pp . P. 13(e) . Be cause a ver dict of g uilt removes the pre sumption of innocence and imposes a pr esumption of g uilt, the burden shifts to the def endant upon c onviction to show why the evidenc e is insufficient to sup po rt the ve rd ic t. Se e Sta te v. Ev a ns , 108 S.W. 3d 23 1, 23 7 (T e nn . 200 3) ; Stat e v. Carr uth e rs , 35 S.W. 3d516, 55 7- 58 (T e nn . 2 00 0) . O n a pp e a l, the Sta te is e nti tle d to the str on g e st l e g iti ma te view of the trial evidenc e and all rea sonable and leg itimate infere nces w hich may be dra wn from the evidenc e. State v. Smith, 24 S .W.3d 274, 279 (Tenn. 2000).

A ver dict of g uilt bythe trier of fac t resolves a ll confl i ct s i n the evidenc e in fa vor of the prosec ution’s the ory

. See State v. B land, 958 S.W.2d 651, 659 (Tenn. 1997). “Q uestions about the

cre dibilit y

of wit nesses, the weig ht and value of t he evide nce, a s well as all fa ctual issues ra ised by the evidenc e ar e re solved by the trier of

fac t, and this Court d o es not re- weig h or re -eva luate the evidenc e.” E v an s , 108 S.W .3d at 236 (c iting B land, 958 S.W.2d at 659). Nor may this Court

su bs titute its ow n inf

e re nc e s dr a wn fr om c ir c ums ta nti a l e vid e nc e fo r tho se dr a wn by the tr ie r o f f a c t. Evans, 108 S.W.3d at 236-37.

To convict the de fenda nt for fe lony murder, the State was re qui re d t o p ro ve that the defe ndant killed the vi ctim in the perpetration of a g g ravated child abuse . T.C.A. § 39-13-202( a)( 2). The killing must be done “in pursuanc e of the [felony ] and not collaterally to it.” State v. Pierce, 23 S.W .2d 289, 294 (Tenn. 2 0 0 1) (quoting Fa rmer v. State, 296 S.W.2d 879, 883 (1956)). It is not require d of the State to prove the def endant intende d to kill, onl y that he intended to c ommit t he

un de rl y ing fe lon y

. T. C.A

. § 39 -1 3- 20 2( b)

. Ag g ra va te d c hil d a bu se oc c ur s w he n th e “ a c t of abu se
re su lts in the se ri ou s b od ily inj ury to the c hil d. ” T. C.A . § 39 -1 5- 40 2( a )( 1) . A pe rs on c omm its c hil d abuse “ who knowing ly
, other than by acc idental m eans, treats a child under eig hteen ( 18) y ear s of ag e in such a

manner as to inf

lict injury .” T.C.A. § 39-15-401( a). Serious bodily injury is defined-6-

a s b od ily inj ury wh ic h in vo lve s a

su bs ta nti a l ris k of death , p ro tr a c te d u nc on sc iou sn e ss, e xtre me phy sical pain, protr acte d or obvious disf i gu rement or protrac ted loss or substantial impairment of a func tion of a bodily

member, or g an or me ntal fac ulty . T.C.A. § 39-11-106( a)( 34).

Circumstan t i al ev i d en ce al o n e m ayb e s u ff i ci en tt o s u p p o rt a c o n v i ct i o n

. S t at e v

. T h ar p e, 7 26 S.W .2d 896, 899-900 (Te nn. 1987). The c ir c u ms ta n ti a l e v id e n c e , h oweve r, must exclude every other

rea sonable theory

or hy pothesis other than g uilt. I d. at 900.
Whether the victim’s injuries we re inflicte d knowing ly or ac cidentally

is a question of fa ct for the jury

. I ntent is se ldom pr oved by direc t e vidence and may there fore be deduce d by the trier of fa ct from the nature and char acte r of the offe nse and fr om all of the circ umstances surr ounding the offe nse. See State v. Inlow, 52 S.W .3d 101, 104-05 (Te nn. Crim. App. 2000).

The medic al evi d en ce established that the victim died as a result of multiple blunt force inj ur ie s to the vic tim ’s he a d a nd tor so

. I t is un dis pu te d that the se inj ur ie s oc c ur re d wh ile the vic tim

wa s in the c are of

the de fe nd a nt. Th e de fe nd a nt a dmi tte d to g ivi ng e va siv e a ndou tr ig ht f a lse

acc ounts of the circ umstances of the victim’s injuri es

. At t rial the de fenda nt testified that he wa s
mere ly eng ag ing in hor seplay

with the victim in adminis tering various wr estling ma neuver s which all seeme d to share a commonality
, that the vi ctim was toss ed and slammed. I t was well within t he jury ’s pre rog ative to re

ject the defe ndant’s claim that the i njuries were inflicted acc identally . I t was equally within the jury ’s province to adopt the medica l expert’s opinion that the injuries we re not

acc idental but wer e knowing ly inflicted. Afte r vi ewing the evidence in a li g ht most favorable to the prosec ution, we conc lude that the evide nce supports t h e d efe ndant’s convic tions for first deg ree felony murder a nd ag g ravated child abuse

.



### ___________________________________ JOHN EVERETT W ILLIAMS, J UDGE