# FILED
April 30, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUA RY 1999 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9712-CR- 0 053 4 ) vs. ) Sullivan County ) GARY WAYNE HA

LL, ) Hon. Phyllis H. Mi ller, Judge

) Appellant. ) (Aggravated Chil d Abuse) )

FOR THE APPE LLANT: FOR THE APPELLEE: RICHARD A

. TATE (at trial) JOHN KNOX WALKUP Asst. District Publi c Defender Attorney General & Repor ter P.O. Box 839 Blountville, TN 37617 ELLEN H. POLLACK Assistant Attorney Gener al JULIE A. MA

RTIN (on appeal) 425 Fifth Ave. N., 2d Floor Attorney at Law Nashville, TN 37243-0493 P.O. Box 426 Knoxville, TN 37901 H. GREELEY WELLS, JR. District Attorney General BARRY STAUBU S TERESA MURRAY SMITH Asst. District Attor

neys General P.O. Box 526 Blountville, TN 37617-0526

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE2 OPINION The defe ndant, Gary Wayne Hall, appeals from the conv iction of aggravatedchild abuse he received at the conclusion of a jury trial in the Sulliv an County Criminal Court. The

defendant is presently serving a 24-year in carcerat ive sentence in the Department of Correcti on. In this appeal, the defendant claims that the evidence at trial ins ufficiently supports the jur y's finding of his gui lt beyond a reasonable doubt and that the sentence imposed is exc essive. Followi ng a review of the record, the bri efs of the parties, and the applicabl e law, we affirm the judgment of the trial court.

The 25-year-old defendant and 23-year-old Laura M cGhee shared a platonic friendship in late 1996 and earl y 1997. In November 19 9 6, McGhee delivered the victim, John Daniel Hunley. After Hunley's birth, the defendant began helping McGhee with child c are. At first, the defendant assisted in McGhee's presence, and eventually, by January1997, McG hee would leave the victim in the defendant's care for several hours th ree to four times a week whil e she went to work.

In late Janu ary, the victim became very ill. After believing the victim had a viral infection, and later epilepsy, medical

personnel eventually

diagnosed the victim's condition as resulting from "non-accidental trauma" or c hild abu se. The defendant was inter

viewed by

law enforc

eme nt pers onnel several times and admitted shaking, hitting , dropping, and tossing the victim. In each statement the defendant gave, he provided more information about the nature and s everity of the abuse inflicted on the victim. The defendant maintained, however, th at he had not meant to hurt the victi m and was hav ing a hard time coming to terms with what he might have

done to the v

ictim.3 At trial, the sta

te presented evidence that the v ictim, who had been born without an y known physical or mental impairments, now suffers developmental delays and may never wal k, talk or l ive independently. Medical personnel opined that the abuse suffered by the victim is the cause of the se impairments.

The defense centered on proof, via the de fendant's te stim ony, that the d efendant car ed about the victim as if he w ere his own child and w ould never knowingly

harm him. The defendant admitted, in his testimony and in his pret ri al stat ements , that he had vigorously shaken the victim, slapped the victim on the head, dropped the victim several inches into his ca r seat which caused the victim to hit his head on the floor or the car seat, and tossed the victim into h is crib from the defendant's chest height. The defendant maintained, however, that he had not meant to hurt the victim and took all of thes e actions other than dropping the victim into the car seat in efforts to ass uage the vi ctim's colic. He cl aimed he had accidentally dropped the victim into the car seat after the victim startled

him as he was liftin g the vic

tim.

The jury foun d the defendant guilty of the char ged crime of aggravat

ed child abuse and set

a fin e of $10,000. At the sentencing hearing, the trial court imposed a near-maximum sentence of 24 years and fined the defendant $10,000.
Against this backdrop, the defendant appea ls.

I In his first i ss ue, the defendant challenges the suffici ency of the convictingevidence. Specifically, he claims that the proof does not support a finding that h e possessed a kn owing mens rea beyond a reasonable doubt.4 When an accused challen ges th e sufficiency of the evidence, a n appellate court’s standard of review is whether, after considering the evidence in the light most favorable to the

prosecution, any

rational trier of fact could have found the
ess ential ele ments of the crime beyond a reasonab le doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13( e). This rule applies to finding s of g uilt based upon direct evidence, ci rcumstantial evidence, or a combination of

direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim.App. 1990).
Moreover, a criminal offense may be established exclusiv ely by circumstantial evidence. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire , 634 S.W.2d 608 (Tenn. Crim. App. 1987). How ever, before an accused may be conv icted of a criminal offe nse based upon circumstantial ev idence alone, the facts and circumstances

"must be so strong and cogent as to exclude every other reasonable hypothesis save theguilt of the defendant." State v. Crawford , 225 Tenn. 478, 470 S.W.2d 610 (1971); Jones , 90 1 S .W.2d at 396. In other words, "[a] web of guilt must be woven around the defendant from which he cannot esca pe and from which facts and circumstances the jury could draw no other

reasona ble infe rence save the guilt of the defendant beyond a reasonable doubt." Crawford , 470 S.W.2d at 613; State v. McAfee , 737 S.W.2d 304, 30 5 (Tenn. Crim. App. 1987).

In determin ing the su fficie ncy of t he evidence, this court s hould not reweigh or reevaluate the evi dence. State v. Ma tthews , 805 S.W .2d 776, 77 9 (Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the weight and value of th e evidence, as well as all factual issues rai sed by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 8351 If the victim is six years of age or less, as is the victim in this case, the penalty is elevated from a Class B felony to a Clas s A felony. Tenn. Code Ann. § 39-15-402(b) (1997). 5 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the tri er of fact from the evidence. Liakas v. State , 199 Tenn. 298, 305, 286S.W.2 d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may

be drawn from the evidence. Cabbage , 571 S.W.2d at 835.

In pertinent part, aggravated child abuse is committed when "[a]ny person . . . knowingl y, other than by accidental mean s, treats a child under ei ghteen (18) years of age in such a manner as to inflict injury

or neglects

such a child so as to adversely affect the chil d's health and welfare" and the a ct of ab use cause s serious b odily inju ry. 1 Tenn. Code Ann. § 39-15-401(a), -402(a)(1) (1997).

As relevant to the offense of aggr avated child abuse, the mens rea of "knowing" is established "with respect to the result of aperson's conduct when the person is aware that

the conduct is reasonably certain to cause the result." Tenn. Code Ann. § 39-13-302(b) (1997); see State v. John Adams , No. 02C01-9707-CR00246, slip op. at 7 (Ten n. Crim. App., Jackson, July 14, 1998), ltd. perm. app. granted on other grounds (Tenn. 1999).
Viewing the evidence of the case at bar in the light most favorable to the state, we find the evidence sufficient to suppor t a finding of

the defendant's guilt b ey ond a reasonable doubt. The victim was given a di agnosis of "nonaccidental trauma." The medi cal experts testifi ed abo ut the amounts and types of force necessary to cause the victim's i njuries. There was ex pert testimony that the6

victim's retinal h emorrh ages were consistent with "very v iolent, forcible shaking, " not rocking, putting the child on one's knee, or gently moving the child back and forth. The skull fractures wer

e consistent with a "blow " to the head. The head trauma and resultant disability wer

e consistent with v

igorous shaking of three to four minutes duration, being dropped into a cr i b, being dropped into a car seat, and being slapped on top of the head. Another expert concur red that forceful shaking lasting two to four minute s could cause the brain injur y and opined that based upon the amount of b leedi ng the victim had, the sh aking "would have to be as hard as you could do it, just about. You w ou l d have to really be us ing as much force as you could potentially do to cause bl eeding inside the head." Calling into

doubt any claim of accidental dropping in the home, an expert opined that a fall would not result in
as much internal bleeding as the vict im had unless it was from ten to twelve feet onto concrete. However, the injury could res ult from a "forceful so rt of throw and hit" against an object. Yet another expert opined that the brain injury would result from "fairly vigorous shaking" rather than mere rocking, putting the child on one's knee, or even "normal" droppi ng, although dropping w as a possibility.
Although the defendant clai m ed any injuries to the victim were accidental, t he jury was free to accept or reject his explanation of the events. Nevertheless, in his pretri al s tatements th e defendan t acknowledged hit ting, rocking, shaking, tossing and dropping the victim. He said he tossed the victim int o his crib "on pur pose" rather than by accide nt. At trial, the state cal led the defendant's credibility into q uestion via introduction of several statements in which the d efendant admitted progr essive ly to g reater amounts o f force an d diff eren t forcible actions and events inv olving the victi m. Two of the defendant's former coworkers, who testified about the defendant's truthfulness and good reputation, were impeached by

evidence that the defendant was not forthcoming with them about the nature of the accusations against him. Both of the defendant's former co-workers7

were parents, and both testified that c ommon sense dictated that one not t hrow, drop or shake a child. The jury v iewed a videotape of the defendant demons trating and describing some of his actions relative to the v ictim.

The jury was free to assess the defendant's claim of accident on the
one hand against the state's evidence of the degree and duration of f orce necessary to cause the victim's injuries on the other. Al though this court does

not reweigh the eviden ce, it is apparent from the recor d that the defendant's claim of accide nta l injuryis incredible in the face of the magni tude of the force and the nature of actions necessary to cause the victim's very serious injuries. The only reasonable inference is that the defendant, having enga ged in such forceful and egregious acti vity, was necessarilyaware that this type of conduct was

reasonably certain to c ause serious bodilyinjury. See Tenn. Code Ann. § 3 9-13-302(b) (1997); cf

. State v. David Palmer , No. 01C01-9607-C R-0 0285, slip op. at 12 (Tenn. Cri m. App., Nashville, Nov. 20, 1997) (jury free to di sregard de fense of accident in favor of contrary medical testimony), perm. a pp. deni ed (Tenn. 1998). Accordingly, the evidence sufficiently supports the jury's finding that thedefendant knowingly committed the crime. See Crawford , 470 S.W.2d at 613; McAfee , 737 S.W.2d at 305.

II In his re ma ining issue, the defendant claims that the 24-year sentence imposed b y the trial court is too le ngthy given the appl icable enhancement and mitigating factors. In determining whether the trial court has properly sentenced an individual, this court engages in a de novo

review of the record

with a presumption that the trial court's deter minations were correct. Tenn. Code Ann. § 40- 35-401(d) (1997). This presumption is "conditioned upon the affirmative showing in the record that the trial court consider ed t he s entencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting2 The trial court incorrec tly applied mitigati ng factor (2), "[t]he defendant acted under strong prov ocation[.]" See Tenn. Code Ann. § 40-35-113(2) (1997).

8 our de novo review, we mustconsider the evidence at sentencing, the presentence report, the sentencing principles, the arguments of counsel, the statements of the de fendant, the nature and characteristi cs of the offense, any mitigat ing an d enhancement factors, and the defendant’s amenabilit y to rehab ilitation. Tenn. Code Ann. § 40-35-210(b) (Supp. 1998);Tenn. Code Ann. § 40-35-103(5) (1997); Ashby , 823 S.W.2d at 168. On appeal, the appellant has the burden of showingthat the
se ntence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Senten cin g Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.

In the case at bar, the trial court misapplied a mitigating factor; 2 therefore , ourreview of its sentencing determination is de novo without the presumption of correctness.

Turning first to enhancement factors, the record reflects that the defendant has a prior history of criminal convictions. See Tenn. Code Ann. § 40-35- 114(1) (1997). The defendant concedes as much in his brief. His convictions are not numerous and are for comparatively less serious offenses; therefore, this fact or is entitled to no more than modera te weight.

The victim of this offense was particularly v

ulnerable due to

his age. See Tenn. Code Ann. § 40-35-114(4) (1997). Although age under eighteen years is an eleme nt of the of fense and age of six years or less is a punishment enhancement, see Tenn . Code Ann . § 39-15- 401(a), - 402(a), ( b) (1997) , the two and one-half month old victim was,due to his natural physi cal and mental limitations associated with his age, particularly vulnerable because he w as unable to summon help, resist or testify

. See State v. Kissinger , 922 S.W.2d 482, 48 7 (Tenn. 1996);9

Sta te v. Adams , 864 S.W.2d 31, 35 (Tenn. 1993). In the present case,the defendant testified about how "helpless" and dependent on others the victim was. The young victim weighed approximately twel ve pounds at the time the 422 pound defendant abused him. At this young age, the v

ictim was

unable to communicate his n eeds to t he defendant verbally. This factor is appropriately

entitled to great wei ght. Accord State v. Jo hn Adams , No. 02C01-9707-CR-00246, slip op. at 1 3 (Tenn. Crim. App., Jackson, Jul y 14, 1998) (one month old v icti m of aggravated child abuse was particularly vulnerable).

The trial court applied factor (5), that the defendant treated the victim with exceptional cruelty

. See Tenn. Code Ann. § 40-3 5-115( 5) (1997). The supremecourt has said that the relevant inquiry fordetermining the applicabi lity of this enhancement factor is whether the facts demonstrate "a culpabili ty distinct from and appreciably greater than that incident to" the convi ction crime. State v. Poole , 945 S.W.2d 93 , 98 (Te nn. 1997) (quoti ng State v. Jones , 883 S.W.2d 597, 603 (Tenn. 1994)). On de novo review, we ag ree with the t rial court t hat this factor applies. The state proved serious bodily injuryconstituting the crime of aggravated child abuse. It appears that the inj uries were inflicted over the course of sever al days, rather than on only oneoccasion. The state proved not only that the victim's injur ies were serious but also that they were life-threatening . Contrary to the d efe ndant's claim that he wanted to help in determining what w as wrong with the victim, he initially wa

s not forthcoming about the nature of the victim's injuries even though he knew the victim w as hospitalized. Fur

thermore, the trial court doubted that the defend ant ha d ever fully admitted the extent of the abuse inflicted on the victim. Accor d State v. Leggs , 955 S.W.2d 845 (Tenn. Crim. App. 1997) ("The injuriessuggest a more extens ive and protracted beating than the two kic ks [sufficientto establish the crime] admitted to by Appellant."). This factor is entitled to moderate weight.10 The defendant concedes he has "a previous history of unwillingness to comply with the cond iti ons of release into the community" based upon his commission of additional offenses while on pr obation. See Tenn. Code Ann. § 40- 35- 114(8) ( 1997). This factor is appropri ate and is entitled to moderate w eight because the defendant has committed further offenses by writing worthless checks while on probation for that same crime on multiple occasions.

The defendant also concedes he abused a position ofprivate trust in committing the offense. See Tenn. Code Ann. § 40-35-114(1 5 ) (1997). He is correct. He was entrusted by his best friend with the care of her two and one-half month old child, but he breached the confidence and trust s he placed in him by abusing the child so severely that the child now faces a l ife of mental and physical impairment. This factor wei ghs heavily in our sentencing determination.

The defendant appropriately concedes that the victi m suffered permanentimpairment as a r esult of the aggravated child abuse inflicted. See Tenn. Code Ann. § 40-35-114(18) (1997). We weigh this factor heavily in accord with the severity

of injuries inflicted.

The final applicable enhancement factor is that if immediate medi cal treatmenthad not been obtained, such injuries "would have probably

resulted in the death of the victim . . . ." See Tenn. Code Ann. § 40-35-114(1 9) (1997). It is apparentfrom the record that the victim's injuries were se vere and life-th reatening. The victim's seizur

es were so severe that medical personnel found it necessary to medic at e him to the point of being comatose i n order to bring his s eizure activity under control. At one

point, the victim stopped breathing while hospi talized. One physician estimated the risk of fatality to the victim during his hospitalization w

as 20 to 70 percent. This factor is entitled to moderate weig ht.11 Turning next to the mitigating factors, the defendant urges us to consider that the defendant acted under strong provocation. See Tenn. Code Ann. § 40-35-113(2) (1997). In this vein,the defendant presented plausible ev idence of his in experience with children. Caring for the victim proved challenging to him because the victim was col icky. The defendant became nervo us and alarmed by his lack of success in consoli ng the victim. The defendant's inter p retation of this factor is a novel one, and he has adv anced no precedent for this uniq ue application. The facts he advances are more appropriately considered as proof of mitigating factor (11), that the defendant commi tted the crime under such uniq ue circumstances

that it i s u nlikely that he was motivated by a sustained intent to violatethe law. See Tenn. Co de Ann. § 40-35-11 3(11) (19 97). Acco rdingly, we give mitigating

factor (11) moderate weig ht.

The defendant contends the trial court should hav e considered two miscellaneousmitigating factor s. See Tenn. Code Ann. § 40-35-113(13) (1997). First, heclaims he should receiv e the benefit ofmitigation because he assisted in th e investigation of the offense. H e cooperated with the inv estigation to a limite d extent, and he should receive no more than slight mitigation in view of his repeated lack of complete candor with the detectives about the abuse

.

The defendant also claims he should receive the benefit of mitigation based upon his remorse for the crime. We agree with the trial court's finding that the defendant was only "somewhat remorseful" based upon his initial lack of candor with the investigating

officer and denial of responsibili ty over a period of

time. This factor should receive only limited weight.

The presumptive sentence for thi s Class A fel o ny is the midpoint within the range. See Tenn. Code Ann. § 40-35-210(c) ( 19 97). Consid ering the12

relevant principles and weigh ing the enhance ment factors aga in st the mitigating factors, we find a sentence of 24 y ears appropriate for the defendant's crime.
In summary, we affirm the judg ment of the trial court.

________________________________ JAMES CURWOOD WITT, JR., JUDGE
CONCUR:

_______________________________ GARY R. WADE, PRESIDING JUDGE

_______________________________ JOHN K. BYERS, SENIOR JUDGE