T o pr ot ec t t h e i den t i t y of m i n or vi ct i ms of

ch i l d abu s e, i t i s t h e pol i cy of t h i s c ou r t t o r ef

er t o t h e v i ct i ms by 1

t he i r i nit i als. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT KNOXVI LLE A ssi gne d on Br ie fs Ja nuary 25, 200 5

STATE OF TENNESS EE v . ELI JAH HAMMOND
Appeal f romthe Cr im inal Cou rt for Bradley County Nos. M-02- 296 and M-03-349 Carr oll L. Ross, Ju dge

No. E2004-01061-CC A-R3- CD - F iled April 15, 2005

Following a benc h trial befor e the B radle y CountyCriminal Court, the defenda nt, Elijah Hammond,

wa s f ou ndg uil ty

of a g g ra vate d c hil d a

bu se by us e of a de a dly we apo n a ndof aggravateda ssa ult involving his minor daug hter, S T. The c ourt merg ed the c onvictions and sentenc ed the de fenda nt 1 to serve 12 y ear s in the Depart m en t of Correc tion. On appea l, the defe ndant contends that the

e vid e nc e is i ns uf

fi c ie nt to su pp ort his a g g ra vate d c hil d a bu se c on vic tio n a ndthat he wa s impr op e rl y classified and sentenc ed as a Rang e I I , multipl e offe nder. After an extensive r eview of the re cord, the brief s of the parties, and applicable law, we conclude that the evidenc e supports his ag g ravated child abuse c onviction and that, pursuant to an ame nded judg ment of convic tion, the defe ndant was proper ly sentenc ed as a

Rang e I , standard of

fende r to serve an inca

rce rative, 12- y ear

sentenc e.

Te nn. R . A pp. P . 3 ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

J A M ES C U R W OOD W I TT , J R ., J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and N OR MA M C G EE O G LE , J ., joined.

Charles M. C orn, Dist rict P ublic Def ender ; and Richard H ug hes, Assistant District Public Defe nder, for the A ppellant, Elijah Hammond.
Paul G. Summers, Atto rney Gene ral & Reporter ; Wi lliam G. L amberth, I I , Assistant Attorney Gene ral; Jerry

N. Estes, District Attorney Gene ral; and St ep h en D. Crump, Assistant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION

Cha rl ott e Ti mbe rl ake , th e vic tim ’s thi rd -grade te a c he r at A rn oldEl e me nta ry in Br adley County , testified that when the victim came to school on November 15, 2002, she wa s very quiet and had trouble walking. During the school day , Ms. Timberlake notice d that the bac k of the-2-

vic tim ’s c lothin g app e are d to be br ow n, a ndthe te a c he r e sc orte d th e vic tim to the of fi c e to g e t f

re sh clothes and the n to the bathroom. Of fi cer Evely n L astra a ccompa nied them, and a fter initial

re sis ta nc e , the vic tim

a llo we d M s. Ti mbe rl ake to p ull do wn he r p a nts a ndun de rw e ar, a t w hic h ti me Ms. Timberlake obse rved the victim’s blood covere d bottom and raw skin.

The victim beg an shaking , and Ms. Timberlake talked to her to keep he r ca lm. The vic tim ins ist e d th a t no thi ng ha d ha pp e ne d to he r, a ndMs. Ti mbe rl ake de sc ri be d th e g ir l a s “ jus t in tot a l de nia l th e wh ole tim e .” Of fi c e r L a str a too k pic tur e s to doc ume nt the inj urie s, a nda ll the wh ile the vic tim

ke pt re pe a tin g , “ Th e re ’s no thi ng wr on g .” Th e vic tim didno t w a nt t o le a ve Ms. Timberlake when Offic er L astra w as re ady to transport her

to the hospital, but ult imately the women convince d the victim to accompan y Of fice r L astra. Ms. Timber lake sa id that the last thing she

reme mbere d was the vic tim say ing that she did not want to g o home and that she wanted to r eturn to s c ho ol.

On cr oss-examination, Ms. Tim berla ke explained that t h e d ef

en d an twa s a “ co n cer

ned pare nt” and that the vic tim had perfe ct attenda nce. She ha d met with the defe ndant on more tha n one
occa sion because he “ wanted to make s ure [ the vi ctim’s] g rade s were g ood,” and Ms. Timber lake te sti fi e d th a t th e vic tim

wa s a “ str a ig ht A stu de nt. ” Th e on ly thi ng un us ua l w ith the c hil d th a t Ms

. Timberlake had noticed w as that she wa s very quiet and kept to herself. Ms. Timberlake re called t h er e ha d b ee n t wo p ri o r o cc as i o n s wh en t h e v i ct i mh ad b ee n s i ck ; o n ce , t h e v i ct i mwa s ru n n i n g a
ve ry hig h f e ve r at sc ho ol, a ndthe sc ho ol n ur se c a lle d th e de fe nd a nt w ho c a me a ndtoo k the vic tim home. Evidently , the def

endant late r soug ht me dical trea tment, and the victim was hospitaliz ed for the fe ver. O n the sec ond occa sion, Ms. Timberlake said that the sc hool infirmary “didn’t re ally

want to call him at all.”

Cleveland Police Of

fice r Evelyn L astra te stified that she wa s as s i g ned as a school

resour ce of

fice r for all the eleme ntary

schools in the city

limit s. She was working on November 15, 2002, and at a

pproxi mately

9:30 a.m., Offic er L astra rec eived a telephone c all from the se cre tary at Arnold Elementa

ry ; the secr etary

was c ry ing and reque sted Off icer L astra’ s prese nce at the school b ec au s e of “as ev er e c h i l d ab u s e c as e. ” O ff i ce r Las trawa s t o l d o f t h e b l o o d t h at h ad s ee p ed t h ro u gh the child pants. Offic er L astra said that she t ook the vi ctim to the bathroom and talked to her in the prese nce of

sever al fe male tea cher s. Offic er L astra t o l d t h e v i cti m that it was important for the office r to see what was wrong , but when the office r t ried to pull down t he child’s pants, “it hurt her too much.” Of

fice r L astra enlisted the help of Ms. T imberlake

. The two women pulled the child’s g ray pants down, which e x posed blac k spandex shorts. W hen the shorts wer e pulled down, Off icer L a str a ob se rv e d th a t th e vic tim wa s w e ari ng tur qu ois e un de rw e ar that was “ tot a lly sta ine d w ith blood.” The w omen slowly peele d away

the underw ear , which “exposed the injuries that wer e fr om the top of her

waist down to about three , three -fourths of her thighs, the back of her thig hs, which

was re d, purple, a nd blue, and she was ha d no skin on her buttocks ar ea.”

Offic er L as t ra photogr aphed the victim’s injuries, contacte d the Depa rtment of Children’s Service s, and transported the victim to the Br adley CountyEmerg ency

Room for evaluation.-3- Do c tor An n M or g a n w a s o n s hif

t w he n O ff

ic e r L a str a br ou g ht the min or vic tim int o the emer g ency

room on November 15, 2002. Dr. Morg an testified that the victim display ed “se vere bruising and swelling to he r buttocks and thigh are a.” Dr. Morg an identified photogr aphs o f t he victim’s injuries, and Dr. Mor g an d es cribed the bruising as “sig nificant.” She explained, “The bruising is not only

visually dramatic here , but it was thick. I t was har d, the bruisi ng was so thi ck.” Dr. Morg an also identified other are as of the buttocks wher e the skin was “de nuded . . . a r aw sc rape

like are a” that was similar to “an ope n burn or a sever e abr asion.”

I n Dr. Morg an’s opinion, a “la rg e amount of f

orce ” would be ne cessa

ry to produce the inj u ri es t h at she saw. A s for the de nuded skin are as, Dr. Mor g an said that produc ing suc h injuries would require “re peate d trauma or friction to cause the destruction of the top lay ers of skin.” Fr om x-ray s that Dr. Morg an orde red, she also isolated two re cent rib frac tures on the victim’s rig ht side.

On c ro ss- e xami natio n, Dr . M or g a n s a id that sh e tr e a te d th e de nu de d s kin are a s w ith

a sa lva din e oin tme nt, c omm on ly us e d f or bu rn inj urie s, a nd

r e c o m m e n d e d T y le no l or

Mo tr in f or pa in

c on tr ol. Th e vic tim wa s re le a se d the sa me da y a nd re fe rr e d to Chatta no og a fo r a mor e fo rm a l c hil d abuse e valuation.

Th e vic tim

too k th e sta nda ndte sti fi e d th a t sh e c ur re ntl y wa s in fo ste r c are be c a us e her “ dad beat [ her].” L eading up to the beating , the victim e x plained that she had been on a school fi e ld t ri p a ndha d to ld h e r t e a c he r w he re sh e liv e d. A cl a ssm a te ov e rh e ard the c on ve rs a tio n a ndtol d th e v ic ti m’ s f

a th e r

. Wh e n th e v ic ti m g o t h o me th a t d a y , th e d e f e n d a n t “ to o k o u t th e p a d d le and whipped [her].” The victim was lying on he r bed at the t ime, and the defe ndant s truck her “a bunch” of times. After war ds, the victim took a shower w hile the def endant watched he r. When asked if the defe ndant had watched he r shower on other oc casions, the vict i m acknow ledg ed that he ha d; she mentioned that he ha d watche d her be fore when he whipped her with “hang ers.”

After the paddling and taking a showe r, the victim said that she dre ssed and slept a t her aunt’s house. The vic tim believed that the def endant took h er to school the ne x t day . The defe ndant worke d at nig ht, and when he had to leave for work, he would wake up the victim a nd take her to the aunt’s house for the re st of the nig ht. Then, when he would g et off work, the defenda nt
c a me by a ndtoo k th e vic tim

to s c ho ol.

On cr oss-examination, the vic tim denie d that the def endant ha d ever

warned her

not to divulge w here they lived. The victim did rec all that at one time, she lived w ith the defe ndant and his mother; her mother r esided in Florida , but the vi ctim never saw her. At s ome point, she and the de fe nd a nt m ov e d, a ndthe tw o o f the m w e re liv ing a lon e wh e n th e pa dd lin g oc c ur re d. Th e vic tim said that the defe ndant had spanked her with the paddle two other times. Ea ch time, she wa s clothed when he spanked he r.

Trac y Hill, a child protec tive service investiga tor with the Depa

rtment of Children’s Se rv ic e s, te sti fi ed th a t sh e pe rf orme d th e inv e sti g a tio n in vo lvi ng thevic tim ’s inj urie s. Ms. Hi ll-4-

spoke with the def

endant on Nove mber 18. Ms. Hi l l t es t i fi ed that the de fenda nt told her that he “discipline[d] her beca

use she had told the teache rs wher e she lived, a nd he g ave he r a spa nking that da y a ft e r sc ho ol. ” Ms. Hi ll re c a lle d that the de fe nd a nt a lso tol d h e r that he sp a nk e d th e vic tim wi th a paddle , g iving he r appr ox imately “eig ht licks.”
Reg arding the victim’s injuries, the def endant’ s expl anation to Ms. Hill was that al t h o u gh h e d i s ci p l i n ed t h e v i ct i m , “h e d i d n ’t fe el t h at h e c au s ed t h e i n j u ri es

. ” Ot h ert h an u s i n g a paddle f or discipline, the def

endant r elated that he had require d the victim to exercise, such as doing p u s h -u p s o r j o ggi n g.

The trial c ourt was puzzled why telling the te ache r her

home addr ess prompted the victim’s spa nking. Ms. H ill wa s not e ntirely clea r on that point, either; she told the c ourt that based on her c onversations with t he def endant a nd the victim, she l earned that evide ntly the victim talked to classmates a t another sc hool she had attended and divulge d that DCS wa s investigating he r father

on an ea rlier c ompl ain t. Su b s e q u e n tl y , a cla ssmate’s par ents contac ted law e nforc ement, and of fice rs
we re dis patc he d to the de fe nd a nt’ s re sid e nc e

. Ms. Hi ll g a the re d fr om that in c ide nt that th e vic tim was for bidden to talk about wher e she lived.

On cr oss-examination, Ms. Hil l was aske d about t he earlier DCS investigation. She said that the vi ctim had a suspicious bruise on her a rm, which prompted the defe ndant’s ar rest for

abu se . The de fe nd a nt wa s re qu ir e d to atte nd pa re nti ng c la sse s, a nda ft e r h e c omp le te d th e c la sse s, the c ha rg e wa s d ism iss e d. Ms. Hi ll a g re e d tha t th e de fe nd a nt w a s h on e st w ith he r a bo ut h is backg round, including that he had spent time in prison. The de fenda nt told Ms. Hil l that after he wa s rele ased f rom prison, he obtained leg al custody of his daug hter beca use the child’s mother, who lived in Florida, c ould not care for the c hild.

Th e de fe ns e qu e sti on e d M s. Hi ll a bo ut the re po rt of

he r i nv e sti g a tio n. I n h e r r e po rt , Ms. Hill wrote that the victim told her at the hos pital that she had showere d befor e she rece ived the spanking . Ms. Hill acknowledg ed what she had written, but she added that the def endant told her that the victim showere d afte rwa rds. I n her r eport, Ms. Hill also expressed her conce rns about the de f e n d a n t ’ s l a c k o f k n o w l e d g e o f ap p r o p r i a t e d i s c i p l i n e a n d ab o u t c o n t i n u e d ab u s e o f the vic tim sh ou ld s he be re turne d to the de fe nd a nt.

Cle ve la ndDe te c tiv e John Da ile y , Jr. , te sti fi e d th a t he wa s in vo lve d i n th e c a se investigation. He obtaine d a sea rch w arr ant for the defe ndant’s re sidence to locate a nd seize the black pa ddle that the def

endant used o n t h e v i ctim. Detec tive Dailey located the item, and it was int r o d u c e d a s a n e xh ib it

. T h e f o ll o w in g w r it in g ap p e ar e d o n o n e s id e o f th e p a d d le : “ Pr o v erbs 22:15, Foolishness is bound in the heart of a child, but the rod of corr ection shall drive it far f rom them.” On the other side of the paddle, the following writing appea red: “ Proverbs 19:18, Chasten the c hil d, thy

c hil d w hil e the re is h op e , a ndle t no t thy so ul spa re fo r the ir c rying .” Th e pa dd le a lso contained the initials “E.H.,” the date “12/1 of 2001,” and “A lso read Prove rbs 23:14.”

The de fense called two witnesses. Gwendolyn Rudolph was the victim’s baby sitter,-5-

the per son the victim r efe rre d to a s her “aunt.” Ms. Rudolph testified that she beg an baby sitti ng the victim in approx imately

April of 2002. B eca

use the de fenda nt was working a third-shift job at Du ra c e ll, he wo uldbring the vic tim to h e r h ou se be tw e e n 1 1:0 0 a nd11 :30 p. m. T he vic tim wo uld spend the nig ht with Ms. R udolph, and in the morning the defendant would pick up the vi ctim and drive he r t o s c ho ol.

Ms. Rudolph re called nothing unusual about the victim when the defe ndant broug ht her ove r on t he evening of November 14. Ms. Rudolph thought the victim was we aring a shirt and

some sweat pants, and Ms. Rudolph reca lled that the victim wanted to stay up and watch a television movie. Ms. Rudolph said that she told the victim that tomorrow was a school day

and that she ha d to go to be d. Acc ording to Ms. R u d olph, the victim was not walking or ac ting unusua l, and the victim did not c omplain of any injury

. L ikewise, Ms. Rudolph said that she noticed nothing unusual i n t h e m o rn i n g.

On cr oss-examination, Ms. R udolph testified that the defe ndant did not tell her about spanking the victim when he dropped he r off at Ms. Rudolph’s home on November 14. Ms. Rudolph also insisted that she never noticed any

wet spo t s on the victim’s pants and that the ma t on which the victim s l ep t at her house was not stained. Ms. Rudolph denied e ver spa nking the victim or touching her bottom.

The 28-y ear -old defe ndant took the stand in his o wn d ef ense. H e testified that he fo un d o ut that th e vic tim

wa s h is c hil d in 1998 , whi le he wa s inc arc e rate d in Ke ntu c ky on mul tip le

rec kless endang erme nt convictions. I n response to que stioning by the court, the defe ndant admitted that he ha d n ume ro us oth e r c on vic tio ns fo r w hic h h e ha d b e e n in c arc e rate d near ly on e-h a lf of his l i f e

. H i s p r i o r

o f f e n s e s i n c l u d e d r o b b e r y, tr e s p a s s , c ar t h e f t , a n d b u r g l ar y.

After the defen d an t was re lease d from Ke ntucky confine ment in 2001, he made

arr ang ements to g et custody of his daug hter who w as in foster care in Florida . The de fenda nt and the victim then moved in with the defe ndant’s mother who re sided in Cleveland, Te nnessee . The defe ndant testified that af ter they settled in, he and his mother had a bitter a rg ument over w hether she wa s try ing to g et custody of the victim and take her awa y from the de fenda nt. The def endant’ s mother ultimately

“kicked [ h i m ] o u t ” but forc ed the victim to rema in. The following day , the defe ndant pi ck ed u p t h e victim at school and ma de ar rang ements for

a new place to live. The de fe nd a nt’ s f

e ar that hi s moth e r m ig ht kidn ap th e vic tim le d to his c on c e rn fo r k e e pin g his a dd re ss
secr et.
Reg arding the bruise on the vic tim’s arm that was investigated by DCS in March of 2002, the def

endant sa id that he was c harg ed and, by ag ree ment, the charg e wa s dismis sed af ter he attended six weeks of pare nting classes in Cha ttanoog a. I n terms of g ener al discipline, the defe ndant testified that he e ither made the vi ctim write out her spe lling wor ds 10 or 20 times or he spa nked her with the paddle that ha d been introd u ce d as an exhibi t. Prior to November 14, the defe ndant believed that he had pa ddled the victim on three other oc casions. The defe ndant claimed that a s he was throwing away

trash at the old Cleve land Middle School, where he wa s working construction,-6-

he fo un d th e pa dd le

. He a dmi tte d wr iti ng the B ibl e qu otatio ns on the pa dd le ; he sa id he did so to remind himself t hat t he scripture “said that it was oka y to spank [his ] daughte r” to discipline her

.
The de fendant testified about picking up the victim from school on November 14 and having a “f

eeling ” that she t old someone where they lived. He said he tol d her that she was going to ge t a spanking when they g ot home

. Be fore the spanking , howeve r, the de fenda nt testified that the victim did her homewor k, he cooke d dinner, a nd the victim took a shower and dresse d. Then, the de fe nd a nt h a d th e vic tim c ome ov e r to he r be d, a nd he str uc k h e r w ith the pa dd le app ro xima te ly eig ht to 10 tim es. The de fenda nt de nied telling Ms. H ill that he watche d the victim showe r afte r he sp a nk e d he r. He te sti fi e d th a t w hat he sa id w a s th a t he ha d w a tc he d h e r s ho we r b e fo re so he c ou ld

coac h her on how to properly wash he r body

and shampoo he r hair.

D e f e n s e c o u n s e l s h o w e d t h e d e f e n d a n t t h e p h o t o g r ap h s o f h i s d a u g h t e r ’ s inj ur ie s. He ins ist e d th a t he didno t caus e the i nju ri e s, a lth ou g h h e a dmi tte d s tr iki ng he r e ig ht t o 1 0 ti me s. He m ai n t ai n ed that he noticed no blood on the vic tim’s pants and that she did not behave any dif fe re ntl y a ft e r the sp a nking

. Th e de fe nd a nt d id n ot b e lie ve that th e vic tim ha d f a lle n o r h urt he rs e lf

a ft e r the sp a nking , an d he did no t thin k an y on e e lse ha d spa nk e d the vic tim . The de fe nd a nt, fo r a ll int e nts a ndpu rp os e s, ha d n o e xpla natio n f or his daug hte r’ s in

jurie s.

On cross-e x amination, the defe ndant was evasive about his a ddress at the time of the events in Nove mber 2002. He claimed not to be s u re o f t he stree t name; howeve r, af ter re peate d questioning a

bout the addre ss he had g iven the victim’s e lementary school, the def endant a dmitted ly ing and having just “made up a n addre ss” that was w ithin the s chool z one. The defe ndant denied, though, punishing the victim be cause she had exposed his lie by telling sc hool personnel their actua l addre ss. Reg arding the photog raphs that ha d been entere d as ex hibits, t he state pr esente d them to the de fe nd a nt and

sp e c if ic a lly a sk e d, “ Yo u’ re tell in g the Cou rt that y ou ha d n oth ing to d o w ith this (indicating) .” The defe ndant re sponded that he “ had nothing at all to do with that” and that he didn’t “believe the s panking that, that she got would have did that at all.” The de fenda nt also denied dr e ssi ng the vic ti m in multip le la y e rs of c lothin g to c on c e a l he r i nju ri e s. Th e state c on c lud e d it s
cross-e x amination by

asking if the defe ndant had any explanation f or the injuries or f

or the victim’s broken ribs. The def

endant sa id, “No.”

Ba sed o n the evidenc e pre sented, the tria l court, as the trier of f act, f ound the defe ndant g uiltyof ag g ravated child abuse by use of a deadly wea

pon and of ag g ravated assault, and it merg ed the c onvictions. At a separ ate he aring , the trial court then sentenc ed the de fenda nt to serve 12 y ear s in the Depa

rtment of C orre ction. Ag g rieve d of his conviction and se ntence , the def endant has appe aled.

I. Time liness of the Appeal
Although the issue is not raised by the state or mentioned by the def endant, we are confr onted initiallywith the t imeliness of t he defenda nt’s appea l. The re cord be fore us contains two-7-

judgme nt of conviction forms, one for the defe ndant’s ag g rava t ed ch i l d abuse c onviction and the other for the merg ed ag g ravated assault conviction. The ag g ravated child abuse judgment wa s filed on Aug ust 15, 2003.

On September

11, 2003, the defe ndant timely filed a motion for new tria l. There afte r,
on Ma rc h 2 9, 20 04 , a

g e ne ri c writt e n o rd e r w a s e nte re d d e nying the ne w t ri a l mo ti on

. Th a t sa me day , the rec ord re flec ts that an Amende d J udg ment reg arding the ag g ravated child abuse conviction

was e ntere d; it chang ed the de fenda nt’s offe nder status fr om multi ple to st an d ard and awa rded pretria l jail credits.

The de fenda nt’s notice of a ppeal wa s not file d u n t i l April 29, 2004. The notice , ac co rd i n gl y , wa s untimely

. See Te nn . R. Ap p. P. 4 (c ). Ev e n s o, Ap pe llate Rul e 4( a ) p ro vid e s in pertinent pa

rt, “[H]owever, in all criminal cases the ‘ notice of appea l’ document is not jurisdictional and the f iling of suc h document may be wa ived in the intere st of justice.” Te nn. R. App. P . 4(a)

. Unlike situations where in a def endant may

have be en we eks late in fi l i n g a notice of appea l, see State v. Ronnie K. Daniel , No. M2001-03092-CCA-R3-CD (Tenn. Crim. App., Nashville, Nov. 22, 2002), we note that the notice in this ca se wa s untimelyby only one day . Additionally , we ha ve
re v i ew ed t h e i s s u es ra i s ed o n ap p ea l an d fi n d t h em t o b e w el l p re s en t ed an d cl ea rl y s t at ed

. Al l t h i n gs considere d, we be lieve that the inter est of justice will be be tter serve d by waiving the timely

filing of a no tic e of app e a l, andwe no w p ro c e e d to the me ri ts o f the de fe nd a nt’ s a pp e a l.

II. Su ff iciency of the Evid ence

The de fenda nt contends that the e vidence is insufficient to support his conviction for ag g ravated child abuse . Our c onsideration o f t h at claim is g rounded in leg al bedr ock. When an

acc used cha lleng es the suff iciency of the e vidence , an appe llate c ourt inspects the e videntiary la nd sc ape , in c lud ing the dir e c t a ndc ir c ums ta nti a l c on tou rs , fr om the va nta g e po int mos t a g re e able to the prosec ution. The revie wing court then de cides whe ther the evidenc e and the infe renc es that flow there from permit any rational fa ct fin d er t o co n clude bey ond a re asonable doubt that the defe ndant is g uiltyof the c harg ed crime. See Te nn

. R. A pp . P. 13 (e ); J ac k so n v . V irg ini a , 4 43 U. S. 30 7, 32 4, 99 S. Ct. 278 1, 27 91 -9 2 ( 19 79 ); State v. Dunc an , 6 98 S.W. 2d63 , 6 7 ( Te nn . 1 98 5) ; Sta te v. Dy kes , 803 S.W .2d 250, 253 (Tenn. Crim. App. 1990) , overruled on othe r grounds by State v. Hooper , 29 S.W .3d 1 (Tenn. 2000)

.

I n determining suff

iciency o f t h e proof, the appe llate court does not replay and

rew eig h the evidenc e . S ee St at e v. Ma tth e ws , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990)

. Wit ness cr edibility , the weig ht and value of the evidence, and fac tual disputes are entrusted to the finder of fac t – in this case , the trial court. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 1978) ; Lia k as v . S tat e , 19 9 Te nn

. 29 8, 30 5, 28 6 S.W. 2d85 6, 85 9 ( 19 56 ); Fa rm e r v . S tat e , 574 S.W .2d 49, 51 (Tenn. Crim. App. 1978). Simpl y stated, t he re viewing court will not substit ute its judgment for that of the tr ie r of fa c t. I ns te a d, the c ou rt e xten ds to the Sta te of Te nn e sse e the str on g e st l e g iti ma te view of the evidenc e contained in the re cord a s well as all re asonable and leg itimate infere nces tha t may be dra wn from the e vidence

. See Cabbage , 571 S.W .2d at 835.-8- Wit h these princ iples in mind we must determine whether the evidenc e in this recor d is sufficient to support th e t ri al co u rt’s ver dict. We beg in with the definition of the conviction offe nse. The of

fen s e o f child abuse is committ ed whe n a per son “knowing ly , other than by

acc idental means, tre ats a c hild under eig hteen ( 18) y ear s of ag e in such a manner as to inflict injury .” Te nn. Code Ann. § 39-15- 401 (2003). The offe nse of ag g ravated child abuse is committed wh e n ( 1) the a c t of c hil d a bu se re su lts in “ se ri ou s b od ily inj ury ” to t

he c hil d o r ( 2) the a c t of

c hil d abuse is ac complished with a “de adly wea pon.” Id . § 39 -1 5- 40 2( a )( 1) , ( 2) . A “ de a dly we apo n” is define d in the Code as follows: “( A) A firea rm or anything manifestly desig ned, made or ada

pted fo r the pu rp os e of

inf lic tin g de a th o r s e ri ou s b od ily inj ury ; or

(B ) A nythi ng that in th e ma nn e r o f i ts
use or intended use is c apable of causing de ath or serious bodilyinjury .” Id

. § 39-11-106( 5)(A) , (B ). “Serious bodily

injury ” is define d as injury involving: “( A) A substantial risk of de ath; (B ) Protrac ted unconsciousness; (C) Extreme phy sical pain; (D ) Protrac ted or obvious disfig ureme nt; or (E) Protracte d loss or substantial impairment of a function of a bodil y member, or g an or me ntal fac ulty .” Id . § 39-11-106( 34).

Th e tr ia l c ou rt

in this c a se fo un d the de fe nd a nt g uil ty of the mod e of a g g ra vate d c hil d abuse a ccomplished with a de adly wea pon. Id . § 39-15-402( a)( 2). I n closing arg ument, the state ha d

conce ded the de fense arg ument that the serious bodily injury mode of a ggravated child abuse had

no t be e n e sta

bli sh e d, a ndin ann ou nc ing its ve rd ic t, the tr ia l c ou rt sig nif ie d it s a g re e me nt. We, thu s,
c on fi ne ou r r e vie w t o th e tr ia l c ou rt ’s ve rd ic t.

C en tra l t o t h e de fe n d an t ’s t h eo ry o f de fe n s e at tri al wa s t h e a rgu m en tt h at al t h o u gh the def endant should have known that his use of the paddle w as g oing to injure the victim, he was

us ing the pa dd le , a s in te nd e d, to d isc ipl ine the c hil d. Ac c or din g to the de fe nd a nt, the state faile d to prove “ knowing child abuse.”

The de fenda nt’s arg ument trea ds into an uncertain are a of the law. We know fr om State v. Duc ker , 2 7 S

. W

. 3 d 889, 896-97 (Te nn. 2000), and State v. Mateyko , 53 S.W .3d 666, 673 (Tenn. 2001) , that child abuse is a “nature- of-c onduct” offense . “As such, the prosec ution need not prove that the defendant ‘intended’ to cause injury to the child.” State v. Toliver , 117 S.W .3d 216, 23 0 ( Te nn . 200 3). The c on vic tio n o ff e ns e in this c a se , h ow e ve r, wa s a g g ra vate d c hil d a bu se
acc omplished with a deadly wea pon. As previously

noted, the Code de fines a “ deadly wea pon” as including “ anything manif estly design ed , m ade or ada

pted for the purpose of

inflicting de ath or

se ri ou s b od ily

inj ury ” or

wa s “ in the ma nn e r o f its us e or int e nd e d us e

. . . c apa ble of c a us ing de a th

or serious bodilyinjury .” Tenn. Code Ann. § 39- 11-106(a )(5) (A), ( B) (2003).

Ho w, if a t a ll, the de fi ni ti on of “de a dly we apo n” mod if

ie s th e e le me nt o f “ c hil d abuse” is not entirely

clea r. I n Toliver , the def

endant wa s convicted of

t wo counts of a g g ravated child abuse by use of a deadly wea pon. Reg arding the first convic tion count, the “victim testified that the def

endant struc k him on the buttocks with a heavy -duty extension cord wra

pped with coat hang ers a nd duct tape.” 117 S.W .3d at 226. For the sec ond conviction count, the “ victim testified that th e de fe nd a nt s truc k h im t wi c e wi th the br a ide d e xten sio n c or d, wr app e d th e c or d arou nd his

ne c k, the n be g a n slin g ing him aro un d the ro om, c a us ing the vic tim to s tr ike ob

je c ts a ndfu rn itu re in-9-

the room and to sustain injuries to his ribs, neck, a nd fac e.” Id

. Five me mbers of the court, without g reat elabora

tion, concluded that the e vidence was suff icient t o support the j ury ’s verdict finding the defe ndant gui l t y o f t wo counts of ag g ravated child abuse by use of a deadly wea pon. Id . at 226 (majority opinion), 233 (B irch, Jr,. J ., concur ring ), 238 (Ande rson, J ., dissenting)

. The major p o i n t of eng ag ement in Toliver conce rned the consolidation of the indictments in conjunction with the admission of evidence of ot h er c rimes, wrong s, or ac ts. Four members of

the court ruled that consolidation was impr o p er and that the er roneous a dmission of other-c rimes evidenc e af

firmatively

appea red to ha ve af

fec ted the ver dict of the jury

. See id. at 218.

The diver g ent views a

bout consolidation ex presse d in Toliver have releva nce to the issue in this ca se. Specifica lly , the majority opinion discusse s, as it must, the Criminal Procedur e Rule 13 consolidation require ment that the evidenc e of e ach of fense be re levant to prove a material issue in the trial of the othe r o ff ense. Rega

rding “intent” a s a possible materia l issue supporting

c on so lid a tio n, the ma

jority op ini on state s,
[T]he tr ia l c ou rt

e rr e d in c on c lud ing that the e vid e nc e of e a c h o ff e ns e
wa s r e le va nt t o p ro ve int e nt a s to the ot her off e ns e . A s th e de fe ns e points out, t his Court has previously held in . . . Ducker

. . . and Matey ko , . . . that child abuse is a “natur e-of -conduc t” offe nse. As

su c h, the pr os e c uti on ne e d n ot pr ov e that the de fe nd a nt “ int e nd e d” to
c a us e inj ury

to the c hil d. F urthe rm or e , th e tr ia l c ou rt in this c a se did not ex plain how the evide nce of eac h offe nse wa s relevant to prove intent as to the other of

fense

. I ndeed, the defe ndant in this case wa s char g ed with ag g ravated child abuse by use of a deadly wea

pon. To ob ta in a c on vic tio n o n th is char ge , th e pr os e c uti on ne e de d o nly to prove that the defe ndant k nowing ly trea ted the victim in a manner that cause d injury

and that the a ct causing injury was acc o m p l ished with a dea dly

wea pon, which is “[a]ny th ing de signe d, made or

a d ap t e d f o r t h e p u rp o s e o f

i n f l i c t i n g d e a t h o r

s e r i o u s b o d i l y i n

j u r y”

or so me thi ng “ that in the ma nn e r of its us e or int e nd e d u se is c apa

ble of causin g d ea t h o r serious bodilyinjury .” Intent simply was not

re le v an t gi v e n th e c ha rg e s in this case, and we are unable to disce rn another issue to w hich the evidenc e of eac h offe nse wa s relevant and admissible.

11 7 S. W.3 d at 23 0 ( e mph a sis a dd e d) . T his la ng ua g e plainl y su g g e sts that th e de fi nit ion of “ de a dly

wea pon” does not c onvert a g g ravated child abuse into a result-of- conduct of fense

.
J ustice Ande rson, howeve r, parted company with majo ri t y o p i nion in Toliver . He analy zed whether

intent was a material issue in the following fashion:

Th e ma jority c on c lud e s that the of fe ns e s w e re no t r e le va nt t o-10- intent or any other materia l issue. Whil e the majority corr ectly states that child abuse is a

“natur e of c onduct” of

fense , see State v . Ducker , 27 S.W .3d 889, 896-97 (Tenn. 2000), t hat does not resolve the issue. The c harg es in this case w ere aggravated chil d abuse. The pr os e c uti on wa s re qu ir e d to e sta bli sh that the de fe nd a nt know ing ly treat ed t h e victim in a manner that cause d injury

and that the defe ndant did so by

employ ing a

“dea dly wea

pon.” The latter issue require d the ju ry t o d etermine whether the def endant use d a devic e that was “ desig ned, made or ada pted for the p urpose of inflicting de ath or ser io us bo dil

y inj ur y ” or wa s “ in the ma nn e r o f i ts use or int en d ed use capa

ble of c ausing death or

serious bodily

injury .” Tenn. Code Ann. § 39- 15-402(a ) (e mphasis added) . Acc ording ly , I
wo uldc on c lud e that th e of fe ns e s w e re a dmi ssi ble f or the jury to consider the defe ndant’s motive, purpose, and int ent in using the br a ide d e xten sio n c or d a s it re la te d to the re qu ir e d e le me nt of “ de a dly

wea pon.”

Id . at 236 (Ande rson, J ., dissenting) (empha sis in original).

J ustice Birc h took the opportunity in Toliver

to “ra ise the leve l of discussion” about the ostensible fa ilure of the “ [m ]odern child abuse statutes” to “expressly rec og nize the pare nt’s rig ht to rea sonably

corpor ally

punish a child.” Id . at 232-33 (B irch, J r., J ., concur ring ). He e x presse d the vie w that “ a

pa re nt h a s a ri g ht t o c or

po ra lly pu nis h a c hil d a ndsu c h co nd uc t be c ome s c ri min a l on ly when the phy sical portion of that punishment bec omes unrea sonable.” Id

. at 2 3 3 (B i rch, J r., J.,
concur ring ).

Toliver

may perha ps cre ate more questions than provide answe rs to inter preting the of fe ns e of a g g ra vate d c hil d a

bu se by a de a dly we apo n. Th e de fe nd a nt i n th is c a se se e ks to e xploi t the situatio n b y

arg uin g that his co nd uc t is no thi ng mor e than a pa re nt e xer c isi ng the ri g ht t o p a dd le his or her child in a completely traditional context. W e disag ree , and in our opinion, the def endant’ s conduct of

fends a ll of the viewpoints expressed in Toliver

. First, the “paddle ” used to inflict the c hild’s injuries is whollyunlike the traditional imag e of a paddle used for spa nking; the imag e that usually comes to mind is of a flat piec e of w ood with a short handle. The im plement i n this case has a long narrow handle, a nd the striking sur fac e is l ike wi se na

rr ow a ndlon g . We a g re e wi th the st ate ’s ass e ssm e nt o n a pp e a l th a t “ [t]his pa dd le

rese mbles a base ball bat more tha n it does any type of instrument that mig ht be used to punish a child for misbeha vior.” Without doubt , this “paddle” was c lear ly capa ble of ca u s i n g o r i nflicting extreme pain, obvi ous disfigur ement, or e ven death. See State v. Eav es , 959 S.W .2d 601, 604 (Tenn. Crim. App. 1997) (holding that a har d plastic Bic or P apermate pen was a “dea dly wea pon” whe n used to stab a de puty

as it was capable of causing either “ext reme pain” or “obvious disfigur ement”) (listing other

objects that had be en cha rac terized as dea dly

wea pons).T he defendan t ass er t s as a s econdar y ar gu ment t hat t he t r i al cour t s houl d hav e c ons i dere d t he l es s er i ncl uded 2

o ff e n se o f ch ild a b u se a n d the a lter n a tive , ch a rg e d c o u n ts o f ag g ra v a te d a ssa u lt a n d re c k le ss a g g ra v a te d a ssa u lt. In his b rie f, the d e fen d a n t wr ites th a t he “re lies u p o n the a rg u m e n ts m a d e in the fi rs t i ssu e fo r re v ie w tha t t h e p a d d le u se d

. .

. t o s pan k h i s da u g h t er w as n ot a dea dl y we apon

. ” T h e def en dan t does n ot f

u r t h er e l abor at e, a r g u e, or c i t e t o t h e r ec or d. In a sm u c h a s the d e fen d a n t re c e ive d a b e n c h trial a n d no ju ry-ins tr u c ti o n a l e r r o r is ra ise d , w e d e e m it un n e c e ssa ry to d well on t hi s m at t er.
-11-

Second, the de fenda nt insist s that the “pa ddle” wa s used in a tra ditional manner, a s
e vid e nc e d b y

the c hil d n ot h a vin g a ny inj urie s outs idethe are a of the bu tto c ks . T he tr ia l c ou rt fl a tly

re je c te d th a t arg ume nt, a s w as its pr e ro g a tiv e a s f a c t f ind e r. Th e te sti mon y

a ndph oto g ra

ph ic exhibi ts in thi s case clea

rly establish that the victim’s injurie s wer e not c onfined to the are a of the buttocks; indeed the photog raphs show r edness a nd swellin g from the waistli ne to the thig hs and upper le g are a and br

ui s i n g al o n g the side of the vic tim’s body . Doctor Mor g an testified that the

v i c t i md i s p l a ye d “ s e v e r e b ru i s i n g a n d s w e l l i n g t o h e r b u t t o c k s a n d t h i g h ar e a ” a n d t h a tx

- r a ys isolated two rib fra cture s on the victim’s rig ht side.

L a st, t he tr ia l c ou rt

fo un d th e de fe nd a nt’ s te sti mon y to b e su sp e c t a ndno t c re dib le in m a ny re sp e c ts. F ro m th e e vid e nc e , th e tr ia l cou rt re a so na bly inf e rr e d tha t the de fe nd a nt r e pe a te dly struck the victim bec ause she had exposed his dece ption to the school o ff i ci al s about living in a school- zo n e d n e ig h b o rh o o d a n d n o t b e c a u s e , a s h e trie d to c laim , th a t h e li v e d b y th e “ s c r iptur e” wh ic h auth orize d sp a nking c hil dr e n. Th e de fe nd a nt ha d atte nd e d c ou rt -o rd e re d p are nti ng c la sse s; he had be en spec ifically

instructed not to use a p ad d l e t o discipline his child, but he ignor ed that instruction and solicited, instead, the opinions of other unidentified constru c ti on worke rs and pa stors who endor sed spa n k i n g ch i ldren. In the cour se of the vic tim’s testim ony , she mentioned that the de fe nd a nt h a d s pa nk e d he r not on ly wi th the “ pa dd le ” bu t th a t he ha d “ wh ipp e d [he r] w ith ha ng e rs ” in the pa st.

T h ee v idence , viewed in the lig ht most favorable to the state, supports the def endant’ s conviction. Fa ctually , the defendant’s actions in this case and his choice of weapon are at least as eg g reg ious, if not more so, than the evide nce in Toliver rela ting to the first conviction count. The Marc h 1st incident in Toliver involved the defe ndant striking a fully clothed, teena g e victim on the b u t t o ck s wi t h a he av y -d u t y ex t en s i o n co rd wr ap p ed wi t h co at h an ger s an d d u ct t ap e. E v en t h o u gh the views of the members of the Toliver

court diff ere d in certain respe cts, the Jus tices appe are d likemin de d th a t a

pa re nt i s n ot i mmu ne fr om pr os e c uti on or c on vic tio n f

or a g g ra vate d c hil d a

bu se
acc omplished with a deadly wea pon mere ly

beca use the victim is clothed, because the situs of the inj ury c e nte rs on the bu tto c ks , o r b e c a us e the inj ury is i nf lic te d b y a pa dd le -l ike ob

je c t.

The e v id e n c e , w e h o ld , is s u f f ic ie n t t o s u p p o r t th e d e f e n d a n t’ s c o n v ic ti o n f

or ag g ravated child abuse by use of a deadly wea pon. 2

III . Se nt e nc ing

For his last issue, the defe ndant ar g ues th at h e was improperly classified a nd sentenc ed as a

Rang e I I , multipl e off

ender

. The transcript of the sentenc ing hearing reve als that the-12-

trial court r

uled, “I find the Sta t e h as m et i t s burden of showing that y ou are within rang e I I .” Reg arding enhanc ement and mitig ating fac tors, the trial court stated,

At that point, we beg in with a minimum of 12 y ear s. I n order to e nh a nc e that, the Sta te mu st s ho w c e rt a in e nh a nc e me nt f a c tor s. They have pr oposed under

section 40-35- 114, subpara g raphs ( 2), (6) , and (16) . . . . I

find they have met their burden on subpara g raph ( 2)

. . . . Subparag raph ( 6) I find is a part of the ac tual – it’s too sim ilar to an eleme nt of the crime itself. . . . I just fi n d i t ’s a p ar t o f the offe nse and that I

can’ t in effe ct find it as an e nhance ment fac tor.

I find that the State has al s o met its burden on a, on subpara g raph ( 16) in that this was a position of private tr ust, in that she wa s y our daug hter. . . .

I find that no mitigating fac tors have be en shown he re toda y in the pr oo f b e fo re the Cou rt

. So, I do fi nd tho se e nh a nc e me nt fa c tor s to exist,

su bp ara g ra

ph s ( 2) a nd(1 6). Ho we ve r, I de c lin e to u se tho se to incre ase y our punishment more than 12 y ear s.

. . . I ’m just not will ing to use those to e nhance ment the punishment up – just to be re alistic, if y ou kic ke d in to r a ng e I , I pr ob abl y would h a ve us e d th e se . B ut I thi nk wi th a 12 -y e ar s e nte nc e

. . . th a t is a c on sis te nt p un ish me nt w ith t h e a c t u a l c r i m e t h a tI s e e c o m m i t t e d h e r e t o d a y.

Th e a g g ra vate d c hil d a

bu se jud g me nt i n t he reco rd, fi le d A ug us t 15 , 2 00 3, is consistent with the trial court’ s imposed sentence ; it shows that the defendant wa s found g uiltyof ag g ravated child abuse by bench trial, was c lassified as a Multipl e, Rang e I I

offe nder, a nd rec eived a 12-y ear sentenc e. F or re asons unknown and not e vident in the re co rd b ef o re us, on March 29, 2004, approximately

seven months l ater, an “A mended Judgment” was e ntere d and filed. That judgme nt chang ed the de fenda nt’s offe nder status to Standard, Ra ng e I , but it left the 12-y ear sentenc e in place

.

On appea l, the state arg ues “no harm, no foul,” so to speak. It points t o the Amende d J u d g m e n ta s d i s p o s i n g o f t h e d e f e n d a n t ’ s c l a i mt h a th e w a s i m p r o p e r l y s e n t e n c e d a s a

R a n g e II, Multipl e off

ender : “The tria l court’s c orre ction of the er ro r o n t h e sentencing form re nders the defe ndant’s ar g ument moot.”

I t a ppear s that the trial court had jurisdiction to amend the orig inal judgme nt. That is, a s a g e ne ra l rul e , a

tr ia l c ou rt ’s jud g me nt b e c ome s f ina l th irty da y s a ft e r i ts e ntry

un le ss a tim e ly-13-

notice of a

ppeal or a specifie d post-trial motion is timely filed. See Te nn . R. Ap p. P. 4 (a ), (c ); Sta te
v . P e nd e rg ra ss , 9 3 7 S

. W

. 2 d 8 3 4 , 8 3 7 ( T e n n

. 1 9 9 6 )

. T h e d e f e n d a n t ’ s n e w tr i a l m o t i o n w a s t i m e l y,
a ndthe tr ia l c ou rt

re ta ine d ju ri sd ic tio n o f the c a se un til 30 da y s a ft e r the mot ion wa s d e nie d. I t a lso appea rs on the fac e of the rec ord that both pr osecution counse l and counse l for def endant sig ned the Amended Judgme nt. There fore , we tre at the Amende d J udg ment as controlling an d re gard the defe ndant to be ser ving an incar cer ative, 12-y ear sentenc e as a

Rang e I , standard of

fende r.

As a Ra ng e I , sta nd ardof

fe nd e r, the de fe nd a nt’ s 1 2- y e ar s e nte nc e re pr e se nts a maxi mum sentence within the Class B fe lony conviction ra ng e of e ight to 12 y ear s. See Tenn. Code Ann. § 40-35-112( a)( 2) (2003). Oddly , the def endant doe s not challeng e the leng th of his sentence

e v e nth o u g hh is a

r g u me n t a bout improper off

ender classification, if corre ct, would conc eivably make him eligible f

or an e ight- y ear

sentenc e. Ne verthe less, the trial court’s rema rks during the sentenc ing hearing le ave no r oom for doubt that the trial court found the exis tence of enhanc ement fa ctors (2) previous history

of criminal convictions, see Te nn . Co de A n n

. § 4 0- 35 -1 14 (2 ) ( 20 03 ), a nd(1 6) abu se of posi tion of private trust, id

. § 40-35-114( 16), and that no miti g ating fac tors wer e shown; the trial court a lso ex pressly

observe d that in terms of Rang e I offe n d er classification, it would not have hesitated to apply

and we igh the enhanc ement fa ctors to ar rive a t a 12-y ear

sentenc e.

Given the tria l c ourt’s rema rks, we be lieve the r ecor d is adequa te for us to c onclude that no basis exis ts to disturb the defendant’s standard, Range I 12-y ear sentenc e. The defe ndant has – and he a dmitted as much – an e x tensive criminal recor d, including c onvictions for robbe ry (1992), criminal trespa ss (1993), possession of e x plosive components (1994), theft by dece ption (1995), resisting arr est (1995 ), unlawful possession of a wea pon (1995), a nd rec kless endang erme nt inv olv ing a n auto mob ile (1 99 5)

. Th e de fe nd a nt a lso , wi tho ut qu e sti on , abu se d a po sit ion of

pr ivate trust. See S tate v. Turner , 30 S.W .3d 355 (Tenn. Crim. App. 2000) . L ast, bec ause the trial court

serve d as the fa ct finder

at trial pursua nt to the defe ndant’s w ai v er o f the rig ht to a jury trial, we discern no issues arising from the Supreme Court’s opinion in Blakely v. W ashington , 542 U.S. ___, 124 S. Ct . 2531 (2004).

For the fore g oing r easons, we aff irm the defe ndant’s convic tion and sentenc e.

___________________________________ J AMES CURW OOD WI TT, J R., J UDGE