It is the policy of this court to refer to minor victims by their initials. 1

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 29, 2008

STATE OF TENNESSEE v. ERICA LYNN WYMA

Direct Appeal from the Criminal Court for Hamblen County

No. 04CR395 John F. Dugger, Jr., Judge

No. E2007-01999-CCA-R3-CD - Filed September 10, 2008

The defendant, Erica Lynn Wyma, was convicted of attempted aggravated child abuse, a Class B

felony, and sentenced as a Range I, standard offender to eleven years in the Department of

Correction. She argues that the evidence was insufficient to support her conviction, the trial court

erred in admitting a statement of the victim as an excited utterance, and her sentence is excessive.

Following our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL, J., joined.

JOSEPH M. TIPTON, P.J., filed a concurring opinion.

Greg W. Eichelman, District Public Defender, for the appellant, Erica Lynn Wyma.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General;

and C. Berkeley Bell, Jr., District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

State’s Proof

The defendant was indicted on a single count of aggravated child abuse. At trial, Dr. Angela

Warden testified that she treated the twenty-five-month old victim, Z.B., on November 20, 2003, 1

for pharyngitis. She said the victim’s vision and walking ability were normal at that time. When

Dr. Warden treated the victim on March 13, 2007, she found that the victim’s right arm and leg were

weak and her right eye drifted outward. 
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Teddy Collingsworth, a criminal investigator with the State Attorney General’s office,

testified that he interviewed the defendant during his investigation of the cause of the victim’s

injuries and that she offered inconsistent accounts of how the injuries had occurred. He said she first

told him that she was in the bathroom when the victim slipped and fell into the tub. Later, she told

him that she was not home when the victim fell and that her boyfriend, Casey Kyle, was the only one

present when the victim fell. Collingsworth read into evidence a statement made in his presence by

the defendant on December 15, 2003, which read in pertinent part:

On Friday morning, [November] 21, 2003, I got up when [the victim] woke

up. It was before 8:00 a.m. I was agitated toward everything. Sometimes when I get

up, I wake up in a weird mood. I fed [the victim], and she was crying, and I don’t

know why; I don’t know if she was in a crying mood, or didn’t feel good. I

remember we were in the living room, and I kept asking her what she wanted. She

just kept crying, saying, Mommy.

I got upset more. I don’t remember when I get upset what I do.

I was sitting on the couch, and she was standing in front of me. I grabbed her

on her arms and started shaking her. I kept shaking. I kept asking her what she

wanted. She just kept crying. I don’t remember if I did anything else to her or if I

hurt her.

The next thing I remember, we were playing cards. I didn’t mean to do it on

purpose. It was an accident. Casey [Kyle] was not there, and Jason [Jarme, the

defendant’s brother] was in the bed asleep. 

On cross-examination, Collingsworth acknowledged that he called the defendant “a liar”

when she came to speak with him because he believed she had been untruthful when she told

investigators that the victim’s injuries were the result of a bathtub fall. He testified that the

defendant’s December 15 statement was transcribed by Detective Vickie Arnold and that when the

statement was completed, he read it to the defendant who reviewed it, made corrections, and signed

it. 

Dr. Ramsey Larson, medical director of the emergency department at Morristown-Hamblen

Hospital, testified that he examined the victim on November 22, 2003, and found that she had

difficulty moving her right arm and standing on her right leg. He said he asked Dr. Imtiaz, the

pediatrician on call that evening, to examine the victim because it was unusual to see such injuries

in a child. 

Detective Vickie Arnold of the Morristown Police Department testified that she was

summoned to East Tennessee Children’s Hospital in Knoxville on November 22, 2003, to investigate

a possible child abuse. She located the victim in the pediatric intensive care unit and noticed that

she was unresponsive. She then spoke with the defendant, who told her that she was in another room
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when she heard the victim fall in the bathtub. Detective Arnold said that on November 24 she again

spoke with the defendant, who said she previously had lied about being home when the victim fell.

The defendant gave a statement, which read in pertinent part:

I was with mymom, WendyShirles, helping her move, helping Wendy move,

so Casey [Kyle] gave [the victim] a bath. Casey’s ex-girlfriend, Tammy, came by,

and Casey told [the victim] to wait there while he went to the door. After he went

to the door, and he said he heard a boom, and he went back to the bathroom, and [the

victim] was standing up crying. So he got her out of the bathtub – bathroom and put

her clothes on her and he set her up on the couch and watched T.V. After a while she

started dozing off and he put her in her bed.

I got home around 9:30 p.m. and Casey told me what had happened. My

brother, Jason, 22 years of age, was also there. When I got home, he told me that she

seemed to be doing okay. Jason then left.

When Jason came back at 2:00 to 2:30 a.m., Casey and I were in the living

room. Casey was lying, dozing, on the mattress we put in the living room. Jason saw

[the victim] lying in the floor of the bedroom and whining, crying, but not a lot. He

picked her up and brought her to me.

I held her and gave her to Casey. She started throwing up, and I noticed that

she had thrown up clear and macaroni. I waited 30 minutes – Clear liquid and

macaroni. I waited 30 minutes. I gave her her medicine and laid her on the couch.

At 4:00 a.m. she got back up. I was holding her, and Casey got up around

6:45 or 7:00 a.m. [The victim] got up with Casey. Casey asked [the victim] . . . if

she wanted anything to eat, and she said yes. Casey said that then [the victim]

couldn’t get up, and I was concerned. 

We started getting dressed and took her to the hospital. We got up at the

hospital, M.H.E.R., around 8:30 a.m., and after she was seen there, she was

transferred to [East Tennessee] Children’s Hospital. 

Dr. Christopher Miller, a pediatric neurologist, testified that on November 22, 2003, he spoke

with the defendant, who told him that the victim had fallen in the bathtub the previous night. He

examined the victim that day and observed a retinal hemorrhage in her left eye. He ordered an

opthalmological exam which showed retinal hemorrhage present in both eyes. A neurologic

examination revealed that the victim had difficulty moving her right side. Computerized tomography

(CT) and magnetic resonance imaging (MRI) scans disclosed a hemorrhage overlying the left side

of the victim’s brain. Dr. Miller opined that the history given to him by the defendant did not

explain the injuries he observed and the reports he reviewed, because a fall occurring in a bathtub

would not create sufficient trauma to produce the bleeding observed in the victim’s retinas and brain.
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He testified that, in his opinion, the victim had suffered “some element of trauma,” and shaking

could explain her injuries. Dr. Miller examined the victim on April 19, 2007, and found that she

remained partially paralyzed and had a clear asymmetry in fine motor dexterity. 

On cross-examination, Dr. Miller testified that there was a history of stroke and migraine

headaches in the victim’s family. He said the victim’s grandmother reported that the victim had

experienced an episode of severe head pain the previous month. He testified that the victim

displayed no broken bones, bruises, or signs that she had been squeezed or held tightly under her

arms. He stated that during her April 2007 examination the victim was able to walk and talk and was

“animated.” On redirect examination, Dr. Miller testified that when he spoke to the defendant

immediately after the victim’s injury, the defendant denied any history of shaking or trauma. 

Dr. Sidney Roberts, a pediatric radiologist, examined the victim’s CT and MRI scans and

found a subdural hematoma, or hemorrhage, along the surface of her brain. He testified that trauma

was the usual cause of blood on the surface of the brain. The MRI scan also revealed ischemia, or

lack of blood flow, in several areas of the victim’s brain. In Dr. Roberts’ opinion, the ischemia

stemmed from blood along the victim’s brain acting as an irritant and causing blood vessels in her

brain to spasm and tighten. Responding to a hypothetical question, Dr. Roberts stated that the

victim’s injuries were consistent with an episode of violent shaking. On cross-examination, Dr.

Roberts testified that other types of trauma, including whiplash, a football collision with a helmet

on a goalpost, or a fall could cause injuries similar to the victim’s injuries.

Dr. Gary Gitschlag, a pediatric ophthalmologist, testified that he examined the victim on

November 24, 2003, and found “extensive” retinal hemorrhages on the inside of both eyes.

Responding to a hypothetical question, he stated that this finding was consistent with the victim

having been shaken. He testified that although the victim’s hemorrhages eventually cleared, she

experienced changes to the architecture of her right eye which caused it not to fixate orlook centrally

at a target. He said this injury was “probably” permanent because there had been no improvement

in the fixation for more than a year. 

Dr. Joseph Childs, a pediatric intensive care physician, testified that he examined the victim

on November 22, 2003. His findings were consistent with those of Drs. Miller, Larson, and Roberts,

and he said these findings were consistent with the victim having been shaken. He said he

considered other possible causes, including history from the family and blood disorders, and found

none that could explain his findings. On cross-examination, Dr. Childs testified that although not

all retinal hemorrhages are caused by shaking, significant force “such as a high-speed car accident

or a fall from a tremendous height,” would be required to generate injuries as serious as the victim’s.

Wendy Shirles, who was dating Jason Jarme at the time of trial, testified that on November

21, 2003, the defendant came to her house with the victim at around 8:30 a.m. to help her move.

When they arrived, Shirles noticed that the victim’s eyes were red and swollen from crying. At

around 5:30 p.m. she and the defendant took the victim back to the defendant’s house and left her

with Casey Kyle. They resumed moving Shirles’s belongings until around 9:30 p.m., when Shirles
 Kyle and the defendant married in 2005. 2

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took the defendant home. Shirles testified that the defendant came to her house “a couple of weeks

later” and told her that she had been up all night on November 20, 2003, doing cocaine, drinking,

and playing cards with Kyle and some neighbors. Shirles said the defendant told her that the victim

was crying persistently the next morning, so she picked the victim up, shook her, and threw her down

on the couch. 

Stephanie Avery testified that in 2003 she worked in private healthcare as a caregiver and

was hired to ensure that the victim’s needs were met while she was in the hospital. She said that on

November 26, 2003, she arrived to sit with the victim around 8:00 a.m. She said she held and rocked

the victim while playing movies on the television and reading her a book. At some point, she laid

the victim down because she appeared restless and agitated. Ms. Avery turned on a movie, then

heard the victim make a mumbling noise. She testified that she drew closer to the victim and heard

her say “Mommy, stop.” Over defense objection, Ms. Avery was permitted to review a statement

she gave to a detective the following day and, after refreshing her memory, testified that the victim

screamed, “No, no,” as if she were defending herself and said, “Mommy hit me.” 

Defense Proof

Callie Clark testified that the defendant and the victim came to help her and Wendy Shirles

move on November 21, 2003. She stated that the victim left between 5:00 and 5:30 p.m. and that

she did not have any occasion to take the victim to a doctor that day. 

Casey Kyle, the defendant’s husband, testified that on November 21, 2003, he worked until

2

around 4:30 or 5:00 p.m., then returned home because the defendant had asked him to watch the

victim. He stated he was preparing dinner, giving the victim a bath, and speaking with his son’s

mother when he heard a splash in the bathtub. He ran into the bathroom and discovered the victim

standing up and crying. He asked if she was all right, and when she responded in the affirmative,

he dressed her, fed her dinner, and kept her awake for approximately two hours. 

Around 8:30 p.m., shortly after Kyle put the victim to bed, Jason Jarme returned home and

Kyle asked him to check on the victim. The defendant returned home around 9:30 p.m., and Kyle

asked her to check on the victim as well; both Jarme and the defendant reported that the victim was

fine. Kyle and the defendant went to sleep and were awakened at about 1:30 a.m. by Jarme, who

said he found the victim lying on the floor. The victim then began vomiting and the defendant gave

her medicine. When Kyle woke the victim at 6:00 a.m. to feed her before he went to work, he

noticed that she was having difficulty moving the right side of her body. 

Tammy Pinkston, the mother of CaseyKyle’sson, testified that their son had been with Kyle

the previous weekend and had left his jacket with him. She drove to Kyle’s residence on November

21, 2003, to retrieve the jacket, and Kyle threw the jacket to her from an upstairs patio. After the two

exchanged words, Pinkston left. 
We note that the witness’s name is spelled “Wheatfall” in the trial transcript but is spelled “Wigfall” in the 3

transcript of the sentencing hearing. We will use the “Wigfall” spelling because the last name of the witness’s wife is

spelled “Wigfall” in the trial transcript.

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James Wigfall, the defendant’s stepfather, testified that the victim lived with him, was 3

attending school, and was an active child. 

Donna Wigfall, the defendant’s mother, testified that she had custody of the victim, who was

doing well in school and was interested in basketball. She said she had never heard the victim cry

out spontaneously in fear of the defendant. She stated that the victim still has weakness on her right

side and wears safety glasses. 

The defendant testified that beforeNovember 2003, the victim had asthma but was otherwise

healthy. She stated that she scheduled a doctor’s appointment for November 20, 2003, after noticing

that the victim had sores in her mouth and was vomiting. She had to take a G.E.D. test that day, so

her mother and brother took the victim to the doctor. The defendant denied that any alcohol or drugs

were consumed at her house that night. The defendant testified that she awakened about 8:00 a.m.

the next morning and fed the victim, who was crying because she did not feel well. She played cards

and danced with the victim who told her she wanted to go to Wendy Shirles’s house. The defendant

and the victim went to Shirles’s house where the defendant helped Shirles move until around 5:30

p.m. After taking the victim home to stay with Kyle, the defendant returned to Shirles’s house.

When the defendant returned home around 9:30 p.m., Kyle told her that she should check on the

victim because she had fallen earlier. She did so, found the victim to be well, and lay with her until

the victim fell asleep. Once the victim was asleep, the defendant returned to the living room. Jarme

returned home around 1:00 a.m.; shortly thereafter, the defendant fell asleep in the living room.

Around 1:30 or 2:00 a.m., Jarme brought the victim into the living room and told the defendant that

he found her on the floor crying. The victim vomited, so the defendant gave her some cold water,

medicine, and a breathing treatment. The defendant kept the victim with her in the living room, and

both returned to sleep. Kyle woke the defendant around 7:00 or 7:30 a.m. and told her that the

victim could not get up. The defendant helped the victim up, but she could not stand and nearly fell

before Kyle caught her. The defendant and Kyle then took the victim to Hamblen Hospital in

Morristown. 

The defendant testified that her bathtub was made of porcelain, with sides about one foot

from the floor. She said that other than the fall described to her by Kyle, she knew of no event that

could have hurt the victim on November 21. She stated that she originally lied and told Dr. Miller

that she was home with the victim when the accident occurred because she was afraid the State

would take the victim from her custody. She acknowledged that she also told a detective on

November 23, 2003, that she had been present when the victim fell. 

The defendant said she met with Detective Arnold and Investigator Collingsworth on

December 15, 2003, and told them she was not home when the victim fell. She said Detective

Arnold told her that dancing with the victim or tossing her into the air was considered shaking. She
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testified that Investigator Collingsworth told her she was a liar because she did not look into his eyes

when speaking to him. She said that, although Detective Arnold told her she was free to leave at any

time, she did not leave because she feared she would get into trouble. She acknowledged that at this

meeting she signed the statement read into evidence by Investigator Collingsworth but said she

signed it because she was “agitated,” “upset,” and “wanted to get out of there.” 

Asked about her statement to investigators, “I don’t remember when I get upset what I do,”

the defendant said, “I didn’t know how to answer the question that [Detective Arnold] asked me .

. . so I just answered to any old thing.” She denied getting so upset that she did not remember her

actions and said she remembered fully what happened on the morning of November 21, 2003. She

repudiated the passage from the statement that “I grabbed [the victim] on her arms and started

shaking her,” and said she showed Detective Arnold that she was dancing with the victim and not

shaking her. Asked about the sentence, “I didn’t mean to do it on purpose, it was an accident,” the

defendant testified:

That sentence was when I described to her what I was – what me and the baby

was doing, dancing. That was when she had told me that that was considered shaking

my child. And I explained to her, I said, Well, if that’s considered shaking my child,

if that’s how you’re putting it, I’m sorry, you know, I was just dancing with my child,

having, you know, playing, having, playing, having a moment . . . with my child. 

I didn’t know that was considered shaking. I never heard of that being

considered a shaking.

I wasn’t confessing saying that I done it. I didn’t hurt my child. I wouldn’t

have never hurt no child or any other child. 

The defendant denied telling Shirles that she shook the victim and threw her on a couch. She

recalled speaking with Shirles but said she told Shirles that she had been accused by Detective

Arnold of shaking the victim and did not tell her that she actually shook the victim. On crossexamination, the defendant testified that she did not remember Detective Arnold transcribing any

of the December 15 statement. Regarding the statement, “Sometimes when I get up, I wake up in

a weird mood,” the defendant stated that she did not know how to answer the question she was

asked, so she “just started talking” and “answered it the best way I could.” Contrary to her testimony

on direct examination, she denied telling Investigator Collingsworth, “I don’t remember when I get

upset what I do.” She further denied stating, “I don’t remember if I did anything else to [the victim]

or if I hurt her.” She reiterated that she never shook or hurt the victim and only danced with her on

the morning of November 21, 2003. 

State’s Rebuttal Proof

In rebuttal, the State recalled Investigator Collingsworth, who testified that he read the

December 15 statement to the defendant. He stated that he asked the defendant to demonstrate how
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she shook the victim, and the defendant replied that she placed one hand on each of the victim’s

shoulders and shook her. On cross-examination, he testified that he did not recall discussing with

the defendant whether dancing could involve shaking or injure someone if performed too vigorously.

Following deliberations, the jury found the defendant guilty of the lesser-included offense

of attempted aggravated child abuse. At the sentencing hearing, CaseyKyle testified that he worked

two jobs and that the defendant worked as a housekeeper at Quality Inn. He stated that he and the

defendant did not use drugs or alcohol but later acknowledged that he “might have a beer or two.”

He said he would like the defendant to stay home and did not believe she was guilty. On crossexamination, Kyle testified that one day, while the defendant was at school or work, Jason Jarme

locked the victim in a closet because she was “whining.” He said he and the defendant ordered

Jarme to leave the house following this incident, but the defendant later allowed him to return. Kyle

acknowledged a prior drug conviction, charge of harassment, and failure to pay child support. 

James Wigfall, the defendant’s stepfather and the victim’s current custodial parent, identified

several pictures of the victim and testified that she was a happy, active, and intelligent child. He

testified that she could move her arms, legs, fingers, and toes but said her left eye was still weak.

Responding to questioning from the court, Wigfall stated that the victim wore glasses to protect her

stronger eye. 

The court found no mitigating factors and a sole enhancement factor, that the defendant

abused a position of private trust. See Tenn. Code Ann. § 40-35-114(14) (2006). According that

factor great weight, the court enhanced the defendant’s sentence from eight years to eleven years.

ANALYSIS

The defendant argues that (1) the evidence was insufficient to support her conviction; (2) the

trial court erred in admitting into evidence a statement by the victim to a caregiver; and (3) her

sentence is excessive. The State contends that the evidence was sufficient and the trial court did not

err in admitting the victim’s statement or sentencing the defendant. After careful analysis, we agree

with the State.

I. Sufficiency of the Evidence

Where sufficiency of the convicting evidence is challenged, the relevant question for the

reviewing court is “whether, after viewing the evidence in the light most favorable to the

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

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also

Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall

be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond

a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835

S.W.2d 600, 604 (Tenn. Crim. App. 1992). 
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All questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d

620, 623 (Tenn. Crim. App. 1987). “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. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our 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, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,

370 S.W.2d 523 (1963)). 

A jury conviction removes the presumption of innocence with which a defendant is initially

cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of

demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).

The defendant was convicted of attempted aggravated child abuse. A person commits

criminal attempt who, acting with the kind of culpability otherwise required for the offense: 

(1) Intentionally engages in action or causes a result that would constitute an

offense, if the circumstances surrounding the conduct were as the person believes

them to be;

(2) Acts with intent to cause a result that is an element of the offense, and

believes the conduct will cause the result without further conduct on the person's

part; or

(3) Acts with intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the person

believes them to be, and the conduct constitutes a substantial step toward the

commission of the offense.

Tenn. Code Ann. § 39-12-101(a) (2003). Conduct does not constitute a substantial step toward the

commission of the offense unless the person’s entire course of action is corroborative of the intent

to commit the offense. It is no defense to prosecution for criminal attempt that the offense attempted

was actually completed. Id. (b), (c).
Sections 39-15-401 and -402 were both amended in 2005. 

4

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At the time the defendant committed the offense, Tennessee Code Annotated section 39-15- 4

402 provided in pertinent part:

(a) A person commits the offense of aggravated child abuse or aggravated

child neglect who commits the offense of child abuse or neglect as defined in §

39-15-401 and:

(1) The act of abuse or neglect results in serious bodily injury to the child; 

 or

(2) A deadly weapon is used to accomplish the act of abuse.

(b) A violation of this section is a Class B felony; provided, however, that,

if the abused or neglected child is six (6) years of age or less, the penalty is a Class

A felony.

Tenn. Code Ann. § 39-15-402 (2003). Section 39-15-401 stated in part: 

Any person who knowingly, other than by accidental means, treats a child

under eighteen (18) years of age in such a manner as to inflict injury or neglects such

a child so as to adversely affect the child’s health and welfare commits a Class A

misdemeanor; provided, however, that if the abused or neglected child is six (6) years

of age or less, the penalty is a Class D felony.

Tenn. Code Ann. § 39-15-401(a) (2003).

The defendant argues that the evidence was insufficient because the jury found the defendant

not guilty of aggravated child abuse. As we understand her, she argues that acquittal on the

completed offense of aggravated child abuse is tantamount to a rejection of the factual basis

underlying the lesser-included offense of attempted aggravated child abuse. However, this court has

previously held that a substantially similar argument is without merit. In State v. Alecia Diane

Cooper, No. M2006-02618-CCA-R3-CD, 2007 WL 2350097, at *5 (Tenn. Crim. App. Aug. 14,

2007), the defendant was charged with assault and convicted of the lesser-included offense of

attempt to commit assault. On appeal, she argued that her conviction for criminal attempt could not

stand because her acquittal on the greater offense necessarily meant that the jury rejected the factual

premise that she assaulted the victim. This court disagreed, holding that “[w]hen ‘the evidence [is]

sufficient to support [a] conviction [of] the greater offense charged, the defendant cannot complain

of the jury finding [her] guilty of the lesser offense.’” Id. at *6 (quoting McDonald v. State, 512

S.W.2d 636, 640 (Tenn. Crim. App. 1974)).
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Viewing the evidence in the light most favorable to the State, the jury heard testimony from

Investigator Collingsworth and Wendy Shirles that the defendant admitted shaking the victim on the

morning before she was taken to the hospital and from the victim’s treating physicians that she

suffered a subdural hematoma and retinal hemorrhages in both eyes. Drs. Roberts and Childs

testified that their findings were consistent with the victim having been shaken. Dr. Gitschlag

testified that the victim suffered a permanent change in the architecture in her right eye that affected

her ability to fixate on a target. Although the defendant and Casey Kyle testified that the victim’s

injuries resulted from a fall into a bathtub, Dr. Miller testified that, in his opinion, the victim’s

injuries could not have been caused by such a fall. This evidence was sufficient for a rational jury

to find the defendant guilty of both aggravated child abuse and attempted aggravated child abuse.

It is of no consequence that the jury found the defendant not guilty of the greater offense and guilty

of the lesser offense. 

II. Admission of Victim’s Out-of-Court Statement

The defendant argues that the trial court erred in permitting Stephanie Avery, the victim’s

caregiver, to testify that the victim said, “No, no” and “Mommy hit me” while in her hospital bed

on November 26, 2003. The trial court ruled that these statements were admissible under the excited

utterance exception to the hearsay rule. 

Hearsay, an out-of-court statement offered to prove the truth of the matter asserted, is

generally inadmissible. See Tenn. R. Evid. 801-802. However, excited utterances, statements

relating to a startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition, are not excluded by the hearsay rule. Tenn. R. Evid. 803(2). There

is a twofold rationale for admitting excited utterances: 

“First, since this exception applies to statements where it is likely there was a lack

of reflection--and potential fabrication--by a declarant who spontaneously exclaims

a statement in response to an exciting event, there is little likelihood, in theory at

least, of insincerity. . . . Second, ordinarily the statement is made while the memory

of the event is still fresh in the declarant’s mind. This means that the out-of-court

statement about an event may be more accurate than a much later in-court description

of it.”

State v. Stout, 46 S.W.3d 689, 699 (Tenn. 2001) (quoting Neil P. Cohen et al., Tennessee Law of

Evidence, § 803(2).1, at 532 (2d ed. 1995)), superseded by statute on other grounds as stated in State

v. Odom, 137 S.W.3d 572 (Tenn. 2004). 

The first requirement, that there be a startling event or condition, is broadly construed,

encompassing any event “sufficiently startling to suspend the normal, reflective thought processes

of the declarant.” Stout, 46 S.W.3d at 699. The second requirement, that the statement relate to the

startling event or condition, is satisfied if the statement describes all or part of the event or condition,

or deals with the effect or impact of that event or condition. Id. 
We note that other jurisdictions, when analyzing statements made by young children under similar

5

circumstances, have admitted as excited utterances statements made several days after the startling event. See State v.

Richard L. Nitz, Jr., No. CA2003-09-228, 2004 WL 2786018, at *4 (Ohio Ct. App. Dec. 6, 2004) (six-year-old child

abuse victim’s statement made one week after startling event); State v. Rogers, 428 S.E.2d 220, 226 (N.C. Ct. App.

1993) (five-year-old sexual assault victim, three days); Commonwealth v. Bailey, 510 A.2d 367, 368 (Pa. Super. Ct.

1986) (nine-year-old sexual assault victim, two days).

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The third requirement, that the statement be made while the declarant is under

the stress or excitement from the event or condition, relates most directly to the

underlying rationale for the exception. In State v. Smith, 857 S.W.2d 1, 9 (Tenn.

1993), we said that “[t]he ultimate test is spontaneity and logical relation to the main

event and where an act or declaration springs out of the transaction while the parties

are still laboring under the excitement and strain of the circumstances and at a time

so near it as to preclude the idea of deliberation and fabrication.”

Id. at 699-700. The time interval between the startling event and the declarant’s statement is only

one consideration in determining whether this third requirement is satisfied and is not dispositive.

“Other relevant circumstances include the nature and seriousness of the event or condition; the

appearance, behavior, outlook, and circumstances of the declarant, including such characteristics as

age and physical or mental condition; and the contents of the statement itself, which may indicate

the presence or absence of stress.” Id. at 700 (citations omitted). 

Applying the three-part analysis to the victim’s statement, we first conclude that there was

a startling event and that the statement was related to it. The startling event was the trauma which

caused the victim’s injuries, and the statement was directly related to it – the victim’s statement,

“No, no” and “Mommy hit me” described what caused the trauma and who inflicted it. Although

five days had elapsed between the startling event and the victim’s statement, we conclude that the

statement was made while the victim was under the stress of the startling event. The victim’s age

when she made the statement, twenty-five months, is highly significant. Where the declarant is a

young child, “the examination of the temporal proximity of the event and declaration merits

considerable latitude. . . . [Y]oung children, especially following stressful experiences, are not adept

at reasoned reflection and are therefore less apt to concoct false stories.” State v. Charles L. 5

Williams, No. M2005-00836-CCA-R3-CD, 2006 WL 3431920, at *11 (Tenn. Crim. App. Nov. 29,

2006) (citation omitted). Moreover, the victim was still hospitalized when she made the statement,

lending further support to our conclusion that the stress of the startling event was ongoing. Finally,

it is of paramount significance that the victimuttered the statementspontaneously. Stephanie Avery,

the caretaker, testified that she heard the statement after noticing that the victim had begun mumbling

and speaking on her own. This court said, in Charles L. Williams, that “spontaneity is the key factor

in determining whether a statement falls within the excited utterance exception” and “the lapse of

time after the occurrence of an event is not as important as the condition of the speaker’s mind.”

2006 WL 3431920, at *9 (citation omitted). We conclude that the trial court did not err in admitting

the victim’s statement as an excited utterance. 
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III. Sentencing

The defendant argues that her sentence is excessive because “the [t]rial [c]ourt improperly

weighted the enhancement factor against her in relation to all mitigation.” She argues that the trial

court should not have enhanced her sentence from eight to eleven years because she had no

significant prior criminal history and was “married comfortably” to Casey Kyle. The State argues

that the trial court properly sentenced the defendant.

When an accused challenges the length, range, or manner of service of a sentence, it is the

duty of this court to conduct a de novo review on the record with a presumption that “the

determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §

40-35-401(d) (2003). This presumption is “conditioned upon the affirmative showing in the record

that the trial court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal

conclusions reached by the trial court in sentencing the accused or to the determinations made by the

trial court which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311

(Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v.

Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v.

Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, this court is required to give great weight to the

trial court’s determination of controverted facts as the trial court’s determination of these facts is

predicated upon the witnesses’ demeanor and appearance when testifying.

In conducting a de novo review of a sentence, this court must consider (a) any evidence

received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of

sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and

characteristics of the offense, (f) anymitigating or enhancement factors, (g) any statements made by

the accused in his own behalf, and (h) the accused’s potential or lack of potential for rehabilitation

or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.

Crim. App. 2001). 

The party challenging the sentence imposed by the trial court has the burden of establishing

that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;

Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence

imposed by the trial court is erroneous. If our review reflects that the trial court, following the

statutory sentencing procedure, imposed a lawful sentence, after having given due consideration and

proper weight to the factors and principles set out under the sentencing law and made findings of fact

that are adequately supported by the record, then we may not modify the sentence even if we would

have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

At the time the defendant committed the offense, the presumptive sentence for a defendant

who was a Range I, standard offender convicted of a Class B felony was eight years. Tenn. Code

Ann. § 40-35-112 (2003). The trial court enhanced the defendant’s sentence to eleven years based

on its finding of one enhancement factor–that the defendant abused a position of private trust. The
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defendant’s primary argument is that the trial court improperly weighed this enhancement factor.

However, as she acknowledges, “[t]he weight to be afforded an existing [enhancement] factor is left

to the trial court’s discretion so long as it complies with the purposes and principles of the 1989

Sentencing Act and its findings are adequately supported by the record.” State v. Kelley, 34 S.W.3d

471, 479 (Tenn. Crim. App. 2000). The trial court found that the position of trust enhancement

factor was entitled to great weight because the defendant is the victim’s mother and had a paramount

duty to protect and care for her. The record supports the sentencing determination of the trial court.

The defendant is not entitled to relief.

CONCLUSION

Based on the foregoing authorities and reasoning, the judgment of the trial court is affirmed.

___________________________________ 

ALAN E. GLENN, JUDGE