# FILED December 11, 1998 Cecil W. Crowson Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT NASHVILLE AUGUST SES SION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710-CR-00451 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, JR. ANTHONY HODGES, ) JUDGE ) Appe llant. ) (First Deg ree Mu rder, ) Aggravated Chil d Abuse)
ON APPEAL FROM THE J UDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUN TY
FOR THE APPELL

ANT : FOR THE APPELLEE : JEFFREY A. DeVASHER JOHN KNOX WALKUP Assistant Public Defender Attorney General& Reporter (On A ppea l) KENNETH W. RUCKER KARL F. DEAN Assistant Attorney General Metro Public Defender 425 Fifth Avenu e North (At Tria l) Nashville, TN 37243 RICHARD TENNE NT VICTORS. J OHNSON Assistant Public Defender Distri ct Attorney General (At Tria l) BILL REED & LI LA STAT OM 1202 Stahlman Buildi ng Assistant Distri ct Attorneys Nashville, TN 37201 General Washington Square, Sui te 500 222 Se cond A venue North Nashville, TN 37201 OPINION FILED ________________________ AFFIRMED-2-

DAVID H. WELL ES, J UDGE1 We address these issue s in different order.

-3- 

# OPINION

The Defenda nt, Anthony Hodges, pursuant to Ten nessee Rule of Appellate Procedu re 3(b), appeal s his conv icti ons and sentences for fir st degree fel ony murder and aggrava ted ch ild abuse. We affi rm both the convi ctions and sentences.

Defendant assigns seven points of error f rom the proceedi ngs below: (1) the t rial court im properly denied Defen dant’s m otion to su ppress his state men t to police, (2) the trial court erred by not requiri ng the State or the jury to electa factual theory , (3) the trial cou rt impro perly refused to a llow Defendant to present evidence thathis seve red co-d efenda nt had a bused the victim in the pas t, (4) the evidence was insufficient to convictDefendant of felony murder and aggravated child abuse, (5) the trial cou rt improperl y instruc ted the ju ry regardi ng criminal responsibilit

y, (6) the tr ial cou rt impro perly d enie d De fendant’s motion to strike the State’s pr

oposed aggravati ng factors for sentenci ng, and (7) the trial court impro perly applied t he maximum sentence avail able for aggr avated chil d abuse. 1

In February 1996, Defendant Anthony Hodges, and his wife Kena Hodges,
were indicted by the Davidson Count y Grand Jury on one count of murder committed during the p erpetrat ion of aggravated chil d abuse in viol ation of Ten nessee Code Annotated § 39-13- 202(a)(2) and one count of aggr avated c hil d-4-

abuse and ne glect in viola tion of § 39 -15-402 . The De fendan t s ucce ssfully moved to sever h is trial from tha t of his wife and co -defend ant; and fo llowing his trialin January of 1997 , a jury return ed guilty ve rdicts on b oth charges. Th e jury sentenced Defen dant to l ifeimpr ison ment wi th out the possi bilit y of parolefor felony murde r, and the trial court sen tenced him to tw enty-fi ve year s for aggravated child abu se, to be served concurrent with hi s life sentence. The t rial court denie d Def enda nt’s m otions for a ne w trial, for judgment of acquittal, for a
new sent enci ng hearing, and for i mposi tio n of l ifewi th the possibil ity of parole; and D efenda nt timely a ppeale d.

I. S UFFICI ENCY OF THE EVI DENCE We first addres s the sufficie ncy of the evidenc e in orde r to reviewthe facts presented by theSt ate at tri al. Defendant contends that

the evidence was not suffic ientto convict him o f felony murde r or aggra va ted chil d abuse—on either
a theory that he was the princi pal perpetr ator or a t heory that Kena Hodges infli cted the abus e and Defe ndan t is crim inally re spon sible for her actio ns. We disagre e.

Tennessee Rule of Appell ate Procedure 1 3( e) prescri bes that “[ f]indi ngs of guilt in crimi nal acti ons whether by the trial court or jury shall be set aside if the evidence is insuf

ficien t to support

the findi ng by the tri er of factbeyond a reasonable doubt .” Tenn. R. App. P. 13(e). In addit ion, because conv iction by
a trier of fact destroys t he presumption of innocence and imposes a presumptio n of guilt, a convicted c riminal defendant bears the burden of showing that the-5-

evidence was insufficient. McB ee v. Sta te , 372 S.W.2d 1 73, 176 (Te nn. 1963);
see also State v. Evans , 8 38 S .W. 2d 1 85, 191 (Tenn. 1992)(citi ng State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown , 551 S.W.2d 329, 331 (Tenn. 1 977)); State v. Tugg le , 639 S.W .2d 913 , 914 (Te nn. 198 2); Holt v. State , 357 S.W .2d 57, 61 (Te nn. 1962).

In its rev iew of the evi dence, an appellate court mustafford t he State “t he strongest legiti mate view ofthe ev idenc e as w ell as all reason able an d legitima te inferences

that may be drawn there from.” Tugg le , 639 S.W.2d a t 914 (citi ng State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). The court may not “ reweigh or re-eval ua te th e eviden ce” in the re cord be low. Evans , 838 S.W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the rev iewing court find particular conf licts i n the trial testimony, the co urt mu st reso lve the m in favor of the jury v erdict or trial co urt judgm ent. Tugg le , 639 S.W.2d at 914.

A. Facts In this case, the evidence cl early establishes t hat the young victi m, Miyoshi Richardson, died of bl unt force tr auma as a

resu lt of in tent iona l bl ows to her head and torso. I n additi on, it i s decisively app arent tha t e ither t he mother, Kena Hodges, or the s tep-fat her, D efend ant, inflic ted the fatal inju ries and that the victim was in the sol e custody of Defendant throughout the day of

her dea th. The State could not sh ow, howeve r, which perso n— if only o ne—actually admini stered the blow s; but it argu es that it ne vertheles s met its b urden o f proof.2 Only oneitem con tained enough blood to determine identity. The blood on that item— the shi rt—belonged to the victi m. -6-

1. Proof of Injury Metropolitan Nashvilleand Davidson County pol ice offi cers test ified t hat they were d is patched to Defendant’s home at approxi mately 5:00 p. m. on Decembe r 28, 1995. A paramedi c unit was pres ent at the s cene when th e of ficers arrived , but m edica l perso nnel w ere pre paring to leav e. The offic er s observed the victim , a twenty-ei ght month old chi ld, on a couch as they entered the home. At that t ime, offi cers observed that the child was already st iff wi th rigor mortis, had the appearance of havi ng been deceased for some time, had a la rge bruise with swelling on the left side of her

face, and had dried b lood in one n ostril. The off ice rs moved th e victi m to a back bedroom while awai ting the medi cal examine r.

O fficers confi scated severalitems of physi cal evidence f rom the residence, includi ng a bed sh eet, a pair o f pants , a tow el, a diaper, a cotton pad, a sponge, and a child’s sw eat shirt. Testing by the Ten nesse e Bure au of Inve stigation (T BI) revealed the pres ence o f blood on these ite m s. 2 Officer s also seize d a coat hangerthat had been bent and secured with tape, which was hangingon a hook in the victim’s room. Whi le the State characteri zed this hanger as evidence of punishment, t he defense argued that it m ay ha ve be en sim ply a tool for turni ng on lights

above the chil d’s reach. In addit ion, the State pres ent ed evidence of otheritems taken from th e hou se, inc luding a mo p, that it characteri zed as having-7-

been used to clean t he home. The mop was wet when seized, but the TBI found no trace s of blood on it.

The medical exam iner, a fo rensic pathologi st, examined t he victi m’s body at the scene of the crime, after another representati ve from the examiner’s offi ce had pronounced the chi ld dead. Photogr aphs introduced a t trialdepicted br uising of her skin al ong the left side of her

face, wit h abrasions on t he side of the face and around the eye, a nd bru isin g apparent on her arms and legs. The doctor testif ied that the v ictim al so had a lacerat ion insi de her left nostriland on the inside of h er uppe r lip, and ad ditional ab rasions o n her ha nds an d legs.
The next day, the medical examiner performed an autopsyon the victim and determined that

she died as a result of blunt f orce inju ry of the head and torso. Seve ral mo re con tusion s, lace ratio ns, and abrasions were found over variousparts of t he victi m’s body, incl uding her chi n, lower l ip, ear, abdomen, buttocks, knee, heel, tongue, and hands . The doctor testifi ed that al l external manifestati ons of injury were con sistent with blunt force-typ e tra uma, and that injuri es to the child’s hands were characteri stic of defensi ve wounds. Finally,
areas of the v ictim’s scalp were v isible through her h air, indica ting tha t her ha ir may h ave be en pulled from he r head.
Upon internalexamination, the medical exam inerascertai ned that the victim suffered hemorrhaging underneat h the scalp; betw een th e brain and s kull, undern eath the protect ive membrane ofthe brain; and on the surfac e of the brain-8-

itself. Hemorrhaging also app eared around the opt ic nerves and wi thin the eyes themselves. The victim’s l iv er was lacerated and contained ar eas of hemorrhage. All internal inju ries rem ained co nsistent with blunt for ce trauma, and hemo rrhages of the victim ’s eye reg ion were comp ati ble wi th injuries received from viol ent, for ceful shaki ng. The doctor concluded that the v ict im’s death resulted f rom multipl e blows to th e child’ s head and torso, and that th e blowswere inte ntional— they we re incons istent with any type of accidental i njury.

The doctor then testif ied regard ing the victim’s proba ble status dur ing the day of her death. He opined that, whil e conscious, the victi m would likely have been irri table fr

om likely headac he and nausea, wit h increasi ng lethargy and decreasing activi ty. Next, the chil d would have sli pped into unconscious ness, followed by com a and th en dea th. Although the doc tor could n ot determine the exact time that death occurred, he estimated t hat, based upon t he extent of rigor mortis present at h is 5:30 p. m. examination, the vict im had been dead for at least several hours u p to twelv e hours or longe r. According to the medical exa miner, if the ch ild’s injur ies ha d bee n inflicte d at or b efore a pprox imate ly 6:00 a.m
. on the day of her deat h, the brui ses would have been vi sible and appar ent by noon, and proba bly much earlier.

2. Statements by

Anthony and Kena Hodges The pri mary p roof presented by the State to show how, when, and by whom t he i nju ri es to Mi yos hi w ereinfli cte d wasgle anedfrom th e so me ti me s consiste nt, some times co nflicting state men ts by An thony a nd Ken a Hod ges to-9-

police. Detective Kent McAlister of

the Metropolitan Police Department testified concerning many of the statements made by the Hodges.

Defen dant related t hat he and the vi ctim had been alone t ogethe r through out the day of her death. Kena Hodges left the home for work at appro xima tely 6:3 0 a. m. an d di d not ret urn unt il sho rt ly before5:0 0 p. m. McAlister

stated th at, at t he scene, Defendant explained the chil d’s faci al bruises by telli ng officers she had fal len off of the commode ea rli er in the day. Separately, Kena stated at the s cene that the child ha d fallen in her presence t hat mornin g, hitting he r head o n the ba throom heater.

McAlister

requested the Hodges to appear at the Cri minal Justi ce Center later thesameeveni ng fo r extended i nter view, which they

did. In t hat i nter

view, Defendant told McAlister t hat early in the morning, while Kena prepared for work, he heard a “boom” fr

om the bathro om. A ccord ing to D efend ant, Ke na told him thatthe chil d had fall en and hit her h ead on the bathro om heater, burni ng her hair. During th is statem ent, Defendant denied s eeing thi s first fall and stated t hat the victi m acted normally af ter it occurred, although she did not cry or complai n, as she usually w ould.

In additio n, Defendant i nformed McAliste r that ar ound 10:00 a.m., he saw the victi m stumble once, and he pl aced the vict im on the commode because she had partially soiled he r clothes. While the vi ctim was in t he bathroom, Defendant walked to t he kitchen to feed thei r dog. When he heard a l oud noise fr om the-10-

bat hro om, he returned to find the chil d lying on the fl oor. He stated that though she appea red to be all ri ght , sh e fe ll agai n whi le t ryi ng to wal k ou t of theroo m. Following these falls, Defendant noted t hat the victim appeared sleepy and less responsive , and she seemed “in a daze. ” He then put t he child to b ed
. Defendant spok e with h is wife by tel ephone between 10:00 and 11:00 a.m., and he inform ed he r that the child ha d fall en and s eemed extremely sleepy. According to Defenda nt, Kena re assure d him that t he child was merel y tired becau se she hadn’t ha d muc h sleep th e night be fore.

Kena telephoned Defendant at approxi mately 12:30 p. m., and Defendant informed her that the ch ild was still sleep ing. In h is state men t, Defe ndan t told police that he was then worried about Miyoshi because he t hought she should be awake. Kena reportedl y again tol d Defendantto let the chil d sleep—that she was tired. Kena called back at approxi mately 2:00 p. m., at which t ime Defendanttold her the victi m was still sleeping and t hat he wanted to wake her . He took a wet towel and squeezed it over her face a nd told his wife that

“it l ooked like she moved he r eyes.” Kena agai n told Defendant the chil d was just sl eepy, buth e told Dete ctive Mc Alister that h e knew some thing wa s wron g: And I said . . . som ething just do n’t see m righ t beca use s he no rmally be up because I at

this poi nt I ha d my ster eo on in theli vin g ro om I said music is up and I said th e dog been barkin g you know I said there’s comm otion goin g on an d my w ife said well go get her. So I went to the bed , got her, broug ht her out and my wife was on the otherli ne and my wife I sa id we ll baby yo u talk to her maybe you can call her and maybe she’llrespond and my wife started you know Miyo shi, Miyo shi, Miyoshi, Miyo shi and I sai d it l ook like she movi ng and my wife said wellcheck her temperat ure a nd she told me the thermometerwhich we have a home t hermom eter is in the . . .-11- bathroom cabine t so I went back to the cabinet and got the thermo meter c leaned off, put it in her m outh, flush ed it.

. . . . . . . It

seemed like she was [responding] and my wife just kept because my wife was, yo u know, coaching me more or less along because I told my w ife she sh ouldn’t be asleep th is long. My wife kept tel ling me s he’s tire d, she ’s sleepy. I said she shoul dn’t be asleep thi s long.

When asked how s he se eme d to be respo nding , Defe ndan t told Detective McAlister

that “[s]he would open her eyes j ust like vaguely, like a sleepy .
. . look, partially like you know vaguely just open them with a sleepy look. ” During t he
sameconve rsation w ith his wife, D efenda nt rema rked tha t he th ou ght Miyoshi might have had a seizure because it l ooked as though she had been biti ng her tongue. According to Defendant, Kena told him the chi ld had nothad a seizure and to put her to bed . Defendant t herefore put the vict im back to bed. He denied notici ng anything u nu sual about her appearance other than her lac k of responsiveness. When asked about the dis colorati on of her face, he stated that he assumed she bruised her self i n the fall s, butthat he di d not noti ce when the bruises a ppeare d on he r face.

K ena Hodges arrived home shor tly befo re 5:00 p.m. and attempted to wake the vi cti m. In h is statement , Defe ndant t old McAl ister that “she started playing w ith the ba by ’s l ike l egs sh e sai d thebaby i s some k ind of, you know, medical term w ord sh e use d I don ’t know , she s aid the ba by is w ell tight. ” They called the chil d’s grandmother t o t ell her the chil d was dead. They then cal led 911. Defendant stated that after the paramedics informed the Hodges that the child wa s conclu sively de ad,-12- . . . it hit home and, you know, I was breaki ng down at that poi nt and she was stro ng. She was telling me, b aby, you kno w, i t wa s my fault. I was saying, baby, it’s my fault cause I should have had, you know, when the baby fel l out a coupl e of timescall ed th e, yo u know, ambu lance the n and w hat not.

Defendant gave another statement to pol ice the next night, December 29, 1995
. During th at statem ent, Dete ctive Mc Alister inform ed De fendan t that th e victim died fro m be ing be aten, n ot from falli ng, an d implored him to tellpolice what had happened the previ ous day. Defendant immediately deni ed beating t he child, and he admitted t hat Kena sometimes acted ab usive ly towa rd Miy oshi. When asked t he l ast ti me he reme mbered Ke na “ over dis cip li ne”thevi cti m, Defendant responde d, “Thursday morning,” the d ay of her dea th. He stated, “I hone stly do n’t belie ve sh e just fe ll I mean it was a t hrow . . . , ” and he indi cated thathe he ard K ena s ay to th e child in the bathroom, “Get the f__k out of here you mother f__ kin’ bitch. I’ll kick your f__king ass.”

Defendant continued to repeatedly maintain t hat he did not hing to harm t he vic ti m, and h e exp lained his scraped knuckle and bruised toe by insist ing that h e helped his neighbor

move several large appl iances the day bef ore Miyoshi died. When pressed again, t he following exchange occurred: ANT HON Y: Earlier in the m orning my w ife well my wife was abusive with her. . . . MCA LISTE R: What’d she do? ANTHONY: Firstshe hit her in the si nk. I was i n the bed sleep and I know she hit her head on t he side of t he coming out of our bathroom there i s a fire well fi replace, no heater and you know boom , I heard the noise. . . .-13- MCALISTER:
. . . [T] ell us what ha ppened, tellus what you saw? PINKERTON: What kind of co nversa ti on and w hat did you see? ANTHONY: I seen her with her hair goingto the door. I mean it’s like, get your ass up, you know and boom MCALISTER: Boom what? ANTHONY: Kicking h er[.] MCALISTER: Kicking her where? ANTHONY: From the bathr oom[.] MCALISTER: Kicking her where did she kick her on her

body? ANTHONY: In her in her ass or between her l egs orwhatever beca use it

ti ppedup o ut i ntothebedr oom. PINKERTON: So where did s he, where did she land when she fel l wh en s he got ki cke d out of t he bathr

oom?

. . . . ANTHONY: I have a, wha t is it, a milk c rate. I ha ve an old milk crate. It was closer d own. I us e it a s a nig ht stan d. She hit that and moved it back. PINKERTON: What part of her body hit t he milk crate? ANTHONY: Well she was upside down. She had f lipped and so the milk cr

ate was likemoved and I moved the milk crate back in the corner. PINKERTON: And what time of morning was this? ANTHONY: Is [sic]was about six-fifteen ri ght before shehad to go to w ork. Six so methin g. MCALISTER: So she kicked her one t ime.

. . . ANTHONY: No she was pretty abusive.-14- MCALISTER: Well expla in to me what pretty a busiv e is. W ould you please explain that to me. I guess I’m justdumber than a rock. ANTHONY: She made the ba by sta nd up in the co rner all night.

. . . PINKERTON: Which night are w e talking a bout? ANTHONY: We’re talki ng about W ednesday, Thursday, Thursday morning. PINKERTON: Talking about the nigh t before the ba by’s death. ANTHONY: Right. She made the baby stand up in the corner and h old he r hand s up o n the w all. PINKERTON: Why? Why did she say she done that? Why? ANTHONY: The baby girl said she had to pee and then so she slep t in the corn er all night. PINKERTON: Standin g up? W hat did yo u say ab out that? ANTHONY: Baby put the baby to bed.

. . . ANTHONY: Okay. F__k you you don’t have nothi ng to say about, yo u know . I said, baby , put the ba by to bed
. . . . PINKERTON: So y’all slept i n the bed and th e bab y stan ding in the corner ANTHONY: With her hands up. PINKERTON: When did you noti ce that she got up an d the baby wa s out of the corne r? ANTHONY: I noticed poss ibly all nigh t oneo’cl ock, two o’clock, three o’cl ock, she’d hol ler at t he baby, are you r eady to say something, you ready to say somethi ng. She would get up and get her norm al[.] PINKERTON: Get up and get what? We don’t kno w w hat normal is.3 The transcript of Kena’s interview b

egins abruptly, and the

record does not reflect the conve rsation prior to the beginning

of what has

been recorded; but Kena has clearl

y bee n informed somehow of allegations that she kicked the child. -15- ANTHONY: Smack the ba by, hit the baby. You can’t sayyou gotta g o tobed, you can ’t say you gotta g o tothebat hro om. PINKERTON: When she hit her after she was st

anding and you wok e up one of those few times you woke up and she was hit ting her, when she slapped the baby where did thebaby h it? Did sh e hit her head on anything el se? Or did she j ust slap her and the bab y just stood still or did she fall down or wha t? ANTHONY: She was constantl y fall ing. Constant ly givi ng up.

. . . PINKERTON: How often did t his happen? ANT HON Y: Too m uch.
Upon cross-examinat ion, Detect ive McAlister testi fied to s everal statem ents made by Kena Hodg es o ver the same time period—the eveni ng of her daughter’ s deat h, De ce mber 28, 1995, and t he next night , techni cally t he early morning hours of December 30, 1995. Duri ng herfirst interv iew, K ena to ld McAlister

that Miyoshi ha d fallen and hit her h ead on the bathroom heater. Later, when apparently co nfronted with D efendant’s state ments incu lpating her, 3 Kena denied everki cki ng t he v ict im, yet sheadmi tt ed i nfl ict ingsomehar m. Kena told detectives that sh e had struck the ch ild lightly with a plastic coat ha nger, causing her to fall an d hit her he ad aga inst the ba throom sink.

In her statement, Kena expressed disbel ief that her ac tions caused t he child’s death , but sh e acc epted respo nsibility if th at we re in dee d the case. McAlister testi fied to her words:-16- “I’m hurt. Don ’t think I’m no t hurt. And I feel bad, because, l ike I said, I don’t believe t hat that’s what did i t to her, but I guess it did, so I’m wrong . . . . I was think ing of any body a nd any thing but m e. I could n’t believe t his was me, but I ’m being honest. It’s not enough to sa y, I’m so rry. It’s no t enou gh to s ay, I did n’t think that w ould happe n.

. . . . I didn’t th ink tha t wou ld resu lt from tha t. It’s not e noug h. It’s not enough and you’re right. And it’s not enough for me to say t hat I should have, woul d have, could have . It’ s not enough. Her life is gone, and I’ m being honest . Tr ue eno ugh, I don’t -- I don’t thi nk I was a neglige nt Mam a. I guess I was ne gligent the n. Abus ive, I don’t think I was abusive, but I gu ess I w as ab usive then. I d on’t think I was a bad parent. I m ade a m istake an d I’m wro ng. I guess I’ve got to pay for it. I hate to be ho nest, y ou kn ow, I g uess this is going to be said i n court, pl ayed in court , whatever. I’m being honest in my h eart. Don’t thi nk I don’t feel bad. I have fel t bad since it happened. I’ m truly a Chri stian, b ut I make mistakes . I do wrong. This was on e, true enough. Hey, you-all ar e saying it’s a biggie. It is

a biggie. I do feelbad. Now, I’ m not going to say I want you-all to jus t believe m e. I’m not g oing to sit here and just l ie and say, hey. Bu t, now, I gu ess if I did -- did it, I’d b e, I guess I ’ll keep saying it, if beca use I s till don’t w ant to b elieve that, it was me. But if I did it, I did it, and I’m wrong . I’m no t trying to pass the bu ck. I’m not tryi ng to point fingers, and I’m notgoing to steer yo u wrong.”

Officers asked Kena why she fail ed to admit t he prior ni ght that she hit t he victi m with a coat hanger, and she responded that she blocked the incident out of her m ind beca use sh e did not b elieve sh e caus ed harm to the child: “I guess I want to block that out. I did not

even remember that, but after I sat there, I thought about it and say, you know, what now, that I think about i t. Th ree b lows to the head. It might have been just me, no w that I think a bout it, a fter I thou ght ab out w hat rea lly happen ed.” McAlister

testified that, to his knowl edg e, K ena had not mentioned bef ore that she hit her daug hter thr ee times. Fi nally, the detecti ve testi fied to Kena’ s words shortly before police arrested her: “‘Jesus, I am so sorry, Miyosh i. I never wanted-17-

to do nothing to you. How many years does a person go to jai l for someth ing like this?’”
Upon redirect

examination of

Detective M cA lister , the State presented evide nce th at at the first i nterview, in response to the questi on of whether Defendant had struck the vict im in a harmfulmanner, Kena stated, “No, and that was much -- we loved Miyos hi, li ke I said, and you know, but this incide nt, he cal led me during t he day, because he wanted for me to reass ure him, because he’ s like I said, he’ s real nervous about th is, so he di dn’t know -- so he jus t went on what I said, like I said, feel bad because I feel I should have did more, but like I assume , she asleep, yo u know . . . .”

To impeach the credi bilit y of Kena ’s statements i mplicati ng herself, the State also i ntrod uced Ke na’s earlier s tatem ent tha t she d id not k now exac tly where or how the vict im fell in th e bath room : “I gues s that’s when she fe ll. I can’t say I saw it . . . .”

In addit ion, the j ury heard thi s account by Kena thr ough McAlister: “I said, Baby, don’t worry about it. Should I cal l the ambulance? I was lik e, Baby , no. I sa id, no, a nd I ad mit tha t, beca use I’m thinki ng, there ain’t nothing wr ong with her. And that’s t he honest truth, and I was tell ing everybody on my job, well , my husband was nervous about my da ughter. And if you ask hi m, he’s a li ttle ner vous abou t her, bu t I don’t think wro ng [sic] with her. Betty p unch es me to herself, and says, get over -- and says, get o ver it. She’s fi ne. He’s just overre acting. And I don’t know. And so then I was tell ing him litt le thing s to do to her and st uff to t ry and hear her. I was l ike, well Baby, take her in t he tub and lay her in the tub and just

take a little cold water and put it on her belly. That will pr obably make her squ int, you k now, if t he temperature. No, Baby, it’s too col d to do that. I don’t wa nt to ma ke her co ld. I sai d, oka y, well, th at’s under stan dabl e, yo u know.

. . . .-18- And so, I said, well, B aby, I don ’t think nothin g wron g. I think she fine. Y ou’re just o verreac ting.” The general substance of thi s telephone cal l and another that day were verified by Kena’s co-worker , who heard Kena speak. According to Kena’ s statem ent, Defendant called her

back soon thereaf

ter to r equest her to come home as soon
as possible becaus e of the chi ld’s condi tion. Regar ding pain or

marks on the victim, De tective M cAlister tes tified that Ke na stated , “Like I said, I did not notice those things before I had left. I didn ’t see them, and I did n’t do t hem, and I didn’ t see him do any whil e I was there. I d on’t be lieve h e did w hile I was not ther e. I di dn’t see it and h e didn ’t tell me if h e did
. . . . Like you-al l are sayi ng, you trying to figur

e out whether i t was him, o r whe ther it was m e, and I’m trying to be like, I know for a fact it wasn’t me .” Finally, the Sta te introd uced this con versa tion be twee n polic e and Kena : “‘Wh o’s been doing it?’ . . . ‘It was not m e.’ . . .’Wh o’s be en do ing it?’ . . . “H im.’”
B. Leg al Ana lysis Defendant was conv ict ed of aggravate d child abuse i n violat ion of Tennessee Code A nnotated § 3 9-15-402(a )(1) and first degre e m urder in violat ion of §39- 13- 202(a)(2)—s pecifi cal ly, murd er commi t ted during t he perpetrat ion of aggravated chil d abuse. We will address the murder convicti on first.

Defendant argues that his convict ion for murder during the p erpetrat ion of aggrava ted ch ild abuse shoul d be reversed because t he evidence was insuffi cientto show (1) t hat he inf lictedthe abuse upon the vict im, or (2)that he
was criminally r

esponsible for Kena’s inf licti on of injury upon t he child. W e-19-

conclude that the evidence was su fficient for the ju ry to find D efenda nt guilty as the princip al p erpe trator of felony mu rder. We furthe r find that even if the jury belie ved Ke na Hodges inflicted the fatal blows, the evidence i s nevertheless suffic ientto convict

Defendant based upon his subs eque nt neg lect of th e victim and his c riminal res ponsib ility for Kena ’s condu ct.

1. Felony M urder by Infliction of Injury At the time of t his offe nse, Tennessee Code Annotate d § 39-13-202 read in part: “ First degr

ee murder is . . . [a]kill ing of anot her committed i n the perpetrat ion of or attem pt to perp etrate any . . . ag grava ted ch ild abuse.” Tenn. Code Ann. § 39-1 3-202(a)(2). The legisl ature prescribed that “[a] person is guilty of the offe nse o f aggra vated child ab use w ho co mm its the o ffense of child abuse
as defined i n § 39-15-401 and . . . [t]heact of abuse results in serio us bo dily injury to the child.” Id. § 39-15 -402(a)( 1) (emp hasis ad ded). In turn, the crossreferenced § 39- 15-401, entitled “Chi ld Abuse and Neglect ,” stated: Any person who kn owingly , other than by accid ental m eans, tre ats a child un der eig hte en (18) y ears of a ge in suc h a ma nner as to inflict injury or neglects

such a child so as to adversely affect the child’s health a nd welfare is guilty of a Clas s A misde meano r; provided thatif theabused child i s six (6) years of age or less, t he penalty is a Class D felony. There can be no question thata killing has occurre d within the mean ing of § 39- 13-202(a)(2 ). Likewise , the re can be no mistake that an act of abuse has resulted in serio us bo dily injur y within the mea ning of § 39-15 -402(a)(1). Defen dant disp utes ne ither statem ent; he ac know ledges in his brief,

Taken in the light m ost favora ble to the State, the evidenceat trialestabli shed either that(1) the de fendan t’s co-defe ndant, Kena-20- Hodges, inflicted the inju ries that ca used th e victim’s d eath , whil e the defendant was awake and aware of such abuse, made no attemptto stop sai d ab use, a nd made no effort to obtain medical assistance for th e vi ctim; or (2) di sregarding Kena Hodges’ confession, the defendant infl ict ed the injuri es that caused t he victim ’s death, he r injuries be ing cons istent with b eing struc k with rings the defendant

may have been wearing o n his h and(s); or (3) some combination of the two theor ies outl ined above.
Turning to a facet

of greater

dispute, therefor

e, we examine whether t he proofestablish ed De fendan t’s guilt a s the de liverer of ph ysical blow s. Defen dant, by his own admission, cared for t he victi m alone between the hours of appro xima tely 6:30 a.m. and 5:00 p.m. The mother, Kena Hodges, did not rec all notici ng any signs of ph ysical injury to the c hild prior to leavin g her in Defe ndan t’s
care. The jury vi ewed photographs of Defendant’ s bruised toe, scrap ed knuckle, and the rings he norm ally wo re. The jury he ard D efend ant’s statement, in which he recounted that the vict im had soiled her clothes duri ng the day, and coul d have surmised that

the inci dent provoked hi m. Although Kena admit ted to havi ng struckthe child in th e morn ing hou rs, the jury a lso heard , by her sta temen t to police, tha t she did n ot believe she cou ld have c aused such se vere injurie s. In addition, Defendant conceded t hat the victim h ad be en furth er injure d while in his care by falling at leas t twice, inclu ding on ce from the heigh t of a com mode
.
Our supre me c ourt ha s long stated , “[T]he weig ht to be given c ircumstanti al evidence and ‘“[t

]he infer ences to be drawn fr

om such evidence, and t he extent to which th e circum stance s are con sistent w ith guilt and in consiste nt with innocence, are questi ons primarily for the jury.”’” State v. Mann , 959 S.W.2d 503,-21-

518 (Tenn. 1997) ( quoting Marab le v. State , 313 S.W.2d 451, 457 ( Tenn. 1958) (quoting Wharton ’s Criminal Evide nce)). We conclude that it was within th e jury’s purviewto find Defendant guil ty of battering the v ictim whil e alone wit h her the day of her de ath. See g enera lly State v. Donald Ray Lacy , No. 02C01- 9701- CC00013, 1997 WL 729261 (Tenn. Crim. App. , Jackson, Nov. 25, 19 9 7) (fi nding circumstant ial evide nce s ufficien t to con vict of fe lony m urder by ag grava ted ch ild abuse when victim wa s in defen dant’s so le care); State v. Cynt hia & Rhodney Roberson , No. 02 C01-95 03-CC- 00059, 1995 WL 7 65009 ( Tenn. Cr im. App., Jackson, Dec. 28 , 1995) (s ame); State v. James DuBose , No. 01C01- 9405- CC00160, 1995 WL 50 4803 (Ten n. Crim. App ., Nashville, Aug. 25 , 1995) (sam e), aff’d , State v. DuBose , 953 S.W.2d 649 (Tenn. 1997) (perm is sion to appeal denied on s ufficiency issue).
2. Felony Murder by Acts of Neglect Likewise, we find the evi dence suffi cientfor the j ury to fi nd Defendantguilty of neglecti ng the vict im within t he meaning of Tennessee Code Annotated § 39- 15-40 1(a ) and, by

incorporat ion, §§ 39-1 5-402( a)(1)and 39- 13-202(a)(2) . As explaine d above, fi rst degree felony murder i s a “kil ling committed in th e perpetrat ion of or attem pt to perp etrate any . . . ag grava ted ch ild abuse.” Tenn. Code Ann. § 39-1 3-202(a)(2). Next, aggravated child abuse i s the commission of “child abu se as de fined in § 3 9-15-40 1" that cau ses serio us bod ily injury. Id. § 39-15-402(a)(1). Chil d abuse, as defined in § 39-15-401, i ncludes “knowingly, otherthan by accident al mean s, . . . neglect[ing a child un der eigh teen] so a s to adversely affec t the child’s health and welfare.” Id. § 39-15-401.4 Atthat time, subsection (a)(1) of § 39-2-202 included the collection of offenses that we deem “felony murder.” -22- Defendant argues to th e contrary. He agrees that t he evidence establ ishes the crime of

neglect, but disputes that he was charged with that offense: [T]he most thatthe evidence at trialestabli shes is that the defendant neglected the victim, an off ense with which he wa s not cha rged. . .

. At the time of the off ense, the offense of aggravated chi ld neglect did not exist

in Tennessee. Chi ld neglect is a dist inct off

ense from chi ld abus e. Child negle ct is not a pred icate o ffense for felo n y murder. (Footno te omitted.)(Citi ng State v. C ynthia D enise S mith , No . 1 153 , 1 990WL 134934 (Tenn. C rim. App ., Knoxv ille, S ept . 20, 1990.) ) In addit ion, Defendant argues that thi s Court “hel d that chi ld neglect was insufficient to suppo rt a convicti on for fe lony m urder” i n State v. Den ise M aupin , No . 2 72, 199 1 WL 197420 (Tenn. Crim. App. , Knoxvil le, Oct. 7, 1991); and he argues that the supr eme court aff irmed this conclusion in State v. Ma upin , 859 S.W.2d 313, 315 (Tenn. 1 993).

The primary distincti on between both Mau pin opinions and t he case atbar is that the statute at

issue in Mau pin was no t, as Defe ndant c laim s, the fel ony murder statute. See Mau pin , 859 S.W .2d at 314 . Rather, th e proble matic sta tute
was Tenness ee Code Annotated § 39-2-202 (a)(2), wh ich the l egislat ure had recently enacted. 4 Subse ction (a)(2 ), reading , It shall al so be murderin the fir st degree to killa child l ess than thirteen (13) years of

age, if the child’ s death resul ts from one (1) or more incide nts of a protra cted p attern o r multip le incide nts of c hild abuse comm itted by th e defe ndant a gainst su ch child, or if death results from the cumulati ve effects of such pattern or incidents,5 Section 39-4-401, as considered in Maupin , differed from § 39-15-401, the child abuse

statute in force at the time of Miyo shi Hodges’s death, because it was strictly a misdeme anor offense, whereas child abuse may now constitute a Class D felony.

6 When a jury

had returne

d a verdict of guilty a

s to neglec

t and not gui lty

as toinfliction ofinjury, or “abuse.” See State v. Cyn thia Denis

e Smith , No. 1153, 1 990 WL 13493 4, at *3-4 (Tenn. Crim.App., Knoxv ille, Sep t. 20, 1990).

-23- was determined to be unconstit utional by our supreme court in the case of Mau pin’s boyfriend , State v. Hale , 840 S.W.2d 307 (Tenn. 1992 ), decid ed wh ile Mau pin was on appea l to the sup reme c ourt.
Desp ite the obvious and s ignifi cant dif ference in the relevan t stat ute, a similarity exists bet

ween the “chil d abuse murder ” statute of Mau pin and the “felony murder by aggravate d child abuse” statute we contemplate here. The child abuse murderstatute also d id not d efine “c hild ab use” w ithin its terms, and courts turned to t he statutor y offense of

child abuse: § 39-4-401. 5 Like § 39-15- 401 that w e con sider in this case, § 39-4-401 was entitl ed “Child Abuse and Neglec t.” Section 39-4-40 1 conta ined two separa te ways to satisfy commission of the offens e—b y either inflicting injury upo n or neg lecting a ch ild. Beca use th is Court had previousl y upheld a convi ction fo r child neglect al one under § 39-4- 401, 6 a panel of this

Court concluded i n Mau pin that “chi ld abuse, asproscribed in [the child ab use m urder sta tute], did not i nclude child neglect.” Mau pin , 1991 WL 197420, at *5.
Turning to the felony murder by aggravated chil d abuse st atut e at issue here, howeve r, we respe ctfully disagree that the leg islature did not i ntend for t he term “child abuse” to i nclude chil d neglect. Throughout our Code, differ ent-24-

concepts, prohibit ions, and mandat es are expressed i n separate sect ions and subsections. Speci ficall y, ou r cr imin al l aws are divi ded into expl icit subsections to avoid ambi guity of interpretation. Te nnes see Code Annotated § 39-15-401 creates one cri me which can be satisf ied by two dif ferent cour

ses of conduct, not two sep arate crim es.

When stating, “A person i s guilty of t he offense of aggravated child abuse who commits the offense of child abuse as defined in § 39-15-401 . . . , ” we do not believe our legisla ture intend ed to refe r only to one half of an unenumerated, uninterrupted, unpunc tuated stat ute subsecti on, as Defendant woul d have us conclude. “Child abuse as defined i n § 39-15-401" encompasses § 39-15-401(a) in its enti rety: Any person who kn owingly , other than by accid ental m eans, tre ats a child und er eighte en (18) y ears of a ge in such a mann er as to inflict injury or neglects

such a child so as to adversely affect the child’s health an d welfa re is guilty of a Class A m isdemea nor; provided, that if

the abus ed ch ild is six (6) years of age or less, the penalty is a Class D felony
. See Tenn. Code Ann. §§ 39-1 5-402, -4 01; see also State v. Cynt hia & Rhodney Roberson , No. 02C0 1-9 503- CC-0 0059 , 19 95 WL 7 6500 9, at * 6 (T enn. Cri m. App., Jacks on, Dec. 28 , 1995).

The facts pres ented by the State support a j ury verdic t of murder during the perpetrat ion of aggravated chil d abuse based upon neglect of the vict im “so as to adver s ely affe ct the c hild’s he alth an d welfa re,” res ulting in seriou s bod ily injury. See Tenn. Code Ann. § § 39-1 5-401 , -402. D efend ant kn ew th at the c hild-25-

ha d been forced to stan d for ho urs ov ernigh t again st the w all, una ble to s le ep , eat, or reliev e hers elf. Ear ly the next morni ng, Defendant admit ted that he heard
a loud boom while Ken a and the victim were in the bathroom together. Imm ediate ly thereafter, he “seen [sic] her with her hai r going to t he door”; and t he victim flew across t he room, hit a milk-crate nightstand, and fl ipped upside down, landing on the floor. Defendant eit her knew orstrongly suspected that

Kena had kicked M iyoshi.

Toward mid-morning, Defendant observed t he victi m fall at least t wice, and he noticed t hat she was too sleepy to awaken herself, as she would normally do. Close r to mi dday, Defendant at tempted severaltimes to wake Miyoshi , but the victim man aged only a slight re spon se, if any. Kena tol d police t hat Defendant
was ext reme ly distress ed about the vi ctim’s condition thr oughout the day, and thatat one po int, Defendant was alarmed enough to try to hearher heartbeat and feel her pulse. The jury saw pho tographs in w hich the child’s facial bruise s were eviden t, and m edica l perso nnel te stifie d th at bruises were apparent when they arrived a t the scen e.

Defendant knew this child was i n serious medicaltrouble. Defendant took
no action to provide medicalattenti on for the ch ild he consi dered his own. Miyoshi died as a result. Cf. State v. Bord is , 905 S.W.2d 2 14, 22 5-26 (Tenn, Cri m. App. 19 95) (finding that evide nce wa s sufficient to convict o f s econ d degree murder where “deteriorati on [ of vict im] was evident and the need for medical att entio n was apparent,” yet defendant

elected not

to nourish or seek-26-

medical assistance). We find the evi dence sufficient to p ermit the jury to convict him of first de gree fe lony m urder base d upo n a the ory tha t Defe ndan t know ingly neglec ted her s o as to ad versely a ffect her he alth and w elfare.

Fina lly, this same evid ence is suff icient to show that Defendant is crimina ll y respo nsible for the c ondu ct of Ke na Ho dges . To be crimin ally resp onsible, Defen dant, “[h]aving a duty imp osed b y law .
. . and ac ting with inte nt . . . to promo te or ass ist [the o ffense ’s] com miss io n,”mu st have “fa il[ed]to make a
reaso nable effort to prevent com mission of the o ffense.” Tenn. Code Ann. § 39- 11-402(3). As Miyoshi’s step-parent and ca r etaker, D efenda nt bore a duty to pr otect her from harm a nd prov ide her w ith eme rgency attention. D efe ndant , although not the vi ctim’s l egal guardian , was entrusted by her legal g uardian to watch over her on adaily basi s. We consider t his to bea “du ty i mposed by law” within the me aning o f § 39-11 -402(3). See State v. Mic hael Tyrone Gordon , No. 01C01-9605-CR-00213, 1997 WL 578961, at *6 (Tenn. Crim. App., Nashvi lle, Sept. 18, 1997); State v. Jeffrey Lloyd Winders , No. 88-142-II I, 1989 WL 105710, at *2-3 (Tenn. Crim. App., Nashvi lle, Sept . 14, 1989). Kena admitted t hat she struckthe child o n the m orning o f Dece mb er 28, 1995, and Defendant grew increa singly awar e of the child’s m edic al ly severe condition as t he day progressed. This proo f is sufficient for th e jury to infer Defen dant’s inte nt to promo te or assis t in the infliction o f injury or ne glect of the child.
3. Aggravated Child Abuse-27- Because we have already found the evidence suff icient to findDefendant guilty of aggravated child abuse base d upon either a theory that Defendant know ingly infli cted inj ury on the vi ctim, causi ng her death, or a theory that Defendant knowingly negl ected the chi ld so as to adve rsely aff ect her heal th and safety, causing her deat h, we need not fur ther address t he argument that the evidence is not suffi cient to support hi s conviction of aggravate d child abuse. This issu e lacks m erit.

II. ELECTION OF OFFENSES At trial , prior

to Defendant ’s pre sentation of proof, he move d the cou rt to compe l the State to elect on e of its two th eories of g uilt—w hether th e State wished to proceed on atheory that Defendant inf lictedinjury upon the vict im, or wheth er Def endant was crimina lly res ponsible for Kena Hodges’s inf licti on of injury upon thevi cti m. Defendant also moved for a specialjury i nstructi on, which
wou ld have advised the jury that its ver dict must be unani mous regarding whetherDefendant was guil ty as a pri ncipal or as criminal ly responsi ble for Kena. The trial court denied D efendant’s m otion, and the jury re ceived a stan dard unanim ity instruct ion at theconclusion of proof. I n additi on, the State argued strenu ously in closing t hat the ju ry’s verdi ct need not be unanimous regar ding the theory o f guilt.

Defenda nt argue s that “[w ]hen a defen dant is charg ed with multip le poss ible crimes in one indictment, t he State must elect which charge on which to proce ed.” Mo reover, h e conte nds tha t-28- the trial court’s failure to require election cre ated the potentialthat each juror did not co nside r the ‘sa me o ccurre nce’ in arrivi ng at the verdicts. Some jurors may have considered onl y the inci dent where Kena Hodges physically abused the victi m before she left for work, and convicted the defendant under a criminal responsibi lity theor y. Ot her ju rors may have conside red only th e defendant’ s alleged conduct in abusing the vict im after Kena Hodges left for work.

We disag ree tha t electio n was require d in this case . Proo f of mu ltiple
occurrencesof the off ense, any of whi ch the State of fers to sat isfy t he requ iremen ts of the in dicted offens e, is the typica l situatio n in wh ich ele ction is crucial to a defendant ’s consti tutionalright to a unanimous jury. See, e.g. , State
v. Shelton , 851 S.W .2d 134 (Tenn. 1 993); Burlison v. State , 501 S.W.2d 801 (Tenn. 1973); State v. Hoyt , 928 S.W.2d 935 (Tenn. Crim. App. 1995). In those situations, such as when a chil d alleges some ty pe of abuse y et cann ot relate when the o ffenses occurred, the j ury must support a verdict of guilt by a unanimous decision t hat the defend ant committed one spec ific offense—one juror may not convict

based upon a decisi on that the defendant committed the offense on one da te, while anothe r juro r believes t he defendant committed the
samestatutor

y offense, but on dif ferent date. Such a defendant would be convicte d of differen t offenses , each by a partial jury.
Here, in contrast, Defendant cou ld o nly

hav e bee n co nvi cte d of thesame offense: a killing c omm itted in perpetrat ion of or attempt to perpetr ate aggravated child abuse on December 28, 1995. Although the State di d indeed present the jury two disti nct alte rnatives, in doing so it posed no thr eat to D efend ant’s constit utional rights, because i t offe red n ot two alternat ive offe nses, but t wo-29-

alternativemeans for culpab ilit y for a si ngle offens e. Specifically, if several jurors believed Defen dant inflicted blows to the vict im, and severaljurors bel ieved that Defen dant negl ected the vi ctim fol lowing blows by Kena, then we believe they may allcon vic

t of fi rst degr ee mu rde r co mm itted during the perpetrati on of or attemp t to perpe trate agg ravated child abu se.
Similarly, the State need not elect between prosecuti on as a principa l actor and prosec ution for crim inal respo nsibility in this ca se. See State v . Wi ll iams , 920 S.W.2d 247 (Tenn. Cri m. App. 1995). I n William s , this Court found no error in the trial court’s failure to require el ection bet ween theories of

actual perpetrat ion of aggravated rape a nd c ri mi nal responsi bilit y for the conduct of anothe r. Id. at 257-58. We stated, Unlike thecited aut hority, this case i nvolves one particular of fense occurringduring one cr iminal event . Problems wit h a unanimous jury verdict ge nerall y arise when the State fai ls to el ect among differ ent offenses. Here the State properly elected to seek a convicti on of aggravated rape b y serious bodi ly inj ury. The trial judge instruc ted the jury on the ele men ts of this offense, and found t he evidence to warr ant a furt her instruction on criminal respon sibility for anoth er, and fo r criminal re spons ibility relative to the elements of aggr

avated rape. The jury reached a verdict based on one se t of facts relatin g to the one inci dent ofrape. We conclude thatthe Defendant’s constit utional ri ght to a unanimous jury verdict was no t violated b y the cou rt’s instruction s. Id.
Furthermore, if upon further review it is determined that failure to require
e lectio n was error, we conclude that such error was harmless b eyond a reaso nable doubt. Th e jurors ne cessar ily must h ave ag reed up on the fac ts-30-

underlyingthe co nvictio n. Tha t is to say , those jurors, if a ny, wh o con vic t ed Defendant because they believed he infli cted blows upon Miyo shi , must
nece ssarily hav e come to the concl usion that he then, fo r the remainder of the day, neglected her

in such a manner as to adversely af fect her health or

safety. One cannot reach t he former concl usion without subsequ ently reac hing the l atter conclus ion— to do so would be tota lly inconsistent with t he proof presented by the State. L ikew ise, tho se same jurors woul d have essential ly concluded t hat Defendant breached his cust odial dut

y to protec

t the chi ld with t he inten t to promo te commission of t he aggravated chi ld abuse ini tiated by Kena earlier

in the morning, satisfyin g the o ffense of crim inal res pons ibility for h er con duct. T his issue lac ks me rit.

III . MOTION TO SUPPRESS Next, D efenda nt argue s that the tria l court erred in denyin g his mo tion to suppress a statement taken by Detec tive E.J. Bernard of t he Metropolit an Davidson County Police Depar tment. In essence, Defendant claim s that th is statementshould have been excl uded from tri al based upon it s inherent unreliability. To dem onstrate its unreli abilit y, Defendant ar

gues (1) that

the statementwas neither audi otaped nor vi deotaped, al though both methods of recordati on were availabl e; and (2) that the most prej udicialof asserti ons found in Detective Bernard’s t ypewritten account of Defe ndant’s statement cannot be found in Bernard’s contemporaneous, handwritten notes.-31- Relying on his typewritten r eport of Defendant’s statement, Detective Bernard testified to Defen dant’s a ccou nt of the even ts surro undin g the v ictim’s death. Specificall y, he incl uded:

[Defen dant] stated th e child was pl aced in the be d and sh e was crying, for whatever the reasons may be. He f urther stated that he put some covers over her face, t urned the radi o up loud so that he wouldn’t have to listen to the c ries. That the chil d d ie d at appro xima tely noon that da y, and the m other d idn’t co me h ome ‘till appro xima tely 5 o’clock. . . . And he stated tha t . . . the n th ey c ame up with a story abo ut calling 91 1. Defendant denied ever making these statements and argues that “any of these statements, had they actual ly been made by him, were of such importance t hat any trained police i nvestigator taki ng contemporaneous notes would have included this info rm ation ther ein.” He remarks that t he statements cannot be corroborated by any other statement made by Defendant, by a recording of the statement made to Bernard, or by Bernard’s handwritten notes.

Defendant urges th is Court to require, a s a co ndition to admissibi lity, recordati on of a c usto dialinterro gati on wh en it is feasible. H e notes that both Minne sota and Texas require custodialinterr ogations to be recorded, as do the Uniform Rules o f Crim in al Procedure and t he Model Code of Pre-Arr aignment Procedure. We decline to adopt this rat her bright-liner ule of admissibility,
res erving this issu e for ou r supre me c ourt or the leg islature . In add itio n, w e conclude that the State was not requi red to recor d this part icular i nterrogat ion as a prereq uisite to its ad missibility.-32- Here, Defendanthad an opportu nity to cross-exam ine Detective B ernard regarding discrepancies between Bernard’s t est imon y at trial, b ased upon his typewr itten statem ent, and his handwrit ten notes. Defendantdid indeed crossexamine on such discrepanc ies, as wellas the f e asibil ity of recording t he interr ogation. Detective Be rnard testified that the typed statement was produced from the notes wit hin twenty-fours hours, that he accur ately tr anscribed t he statem ent, and that no record ing de vices w ere av ailable in the p articula r room in which th e statem ent wa s taken.

Defendant does n ot dispute that he ga ve the sta temen t k nowingly and voluntarily; he dispu tes the ac curacy of Detec tive Bern ard’s reco llection. W e consider

this an issue of cr

edibilit y appropriate for t he jury. Through crossexam i nat ion, the jury heard evidence t hat the ty ped statement contained statem ents not rec orded in the d etectiv e’s no tes, an d the ju ry app arently accred ited Dete ctive Ber nard’s tes timony . This issue is without m erit.

IV. EVI DENCE OF PRIOR ABUSE BY KENA HODGES In his fourt h issue, Defenda nt argues that the t rial cour t erred by

refusing to perm it Defendant to pr esent evidence t hrough the testi mony of two witnesses thatKena Hodg es, the vic tim’s mo th er, had abused t he child i n the past. The State argues, and the trial court agreed, that Tennessee Rule of Evidence 404(b) mandates the inadm issibility of this ev idence . In response, Defendant cites State
v. Smith , 868 S.W .2d 561 , 574 (Te nn. 199 3), State v. Turn bill , 6 40 S.W.2d 40, 46-47 (Tenn. Crim. App. 1982), and State v. Glebock , 616 S.W.2d 897, 905-06-33-

(Tenn. Crim. App. 1981), for the pr opositi on that evi dence of pri or acts of violence against the victim are releva nt to show motive and intent to commit the of fense.
Tennessee Rule of Evidence 404(b) reads: Evidence of other crim es, wron gs, or acts is not admissible to prove the character of

a person in orde r to sho w actio n in conform ity with th e character trait. It may, ho wever, be a dmissible for othe r purpose s. The conditi ons which must be sati sfied before allowi ng such e vidence are: ( 1) The court upon request must hold a hearing outsi de th e jury’s pres ence; (2) The court must determine that a material i ssue exists other than conduct conforming with a character trai t and must upon request state on t he record the material i ssue, the r uling, a nd the reasons for admi tting t he evidence; and (3) The court must excl ude the evidence if its probative value is outweighed by

the danger of unfair pr ejudice.

The State correctly notes that , once theabove criteria of Rul e 404(b) have been satisf ied, the appropriate standard of review i s whether the t rial court ab used its disc retion when ruling upo n the ad missibility o f evidenc e at trial. State v. DuBose , 953 S.W .2d 649 (Tenn. 1 997). The trialcourt fol lowed the strict ures of Rule 404(b) by conduct ing a heari ng out of the prese nce of the j ury; by rul ing on the record that

the evidence wasbein g offered t o show the propensi ty of Kena Hodges to commit abuse, r ather than f

or any other purpose; and by indi cating thatthe evidence was cumul ative—that t he record alr eady reflec

ted other si milar evidence. The trialcourt, t herefore, must be affor ded an abuse of disc retion stan dard of review.-34- State v. Smith , relyi ng upon Turn bill and Glebock , held that “v iolent a cts indicat ing the relat ionship bet ween thevi cti m of a

vi ole nt c ri me and the defendant prior to the commissi on of the offens e are re levan t to sho w def enda nt’s hostility toward the vict im, malice, intent, and a settl ed purpose to harm t he victi m.” 868 S.W.2d at 574. Here, w e have a distingu ishable c ase: the S tate does not seek to introduce evidenc e again st the acc used; ra ther, Defe ndant s eeks to introduce evidence that another pe rson, Kena Hodges , comm itted a prior violent act agains t the victim.
Examining Rule 40 4(b) in con junction w ith Rule 401, thi s evidence may or may not be relevant evidence in t his case—that is to say, i t may or may not have “any tenden cy to ma ke the ex istence o f any fact th at is of conseq uence to the action more p robable or less pro bable tha n it would be witho ut the evid ence.” Tenn. R. Evid. 401. As sumin g that und er Rule 4 04(b), prio r violent ac ts against the victi m can be relevant evi dence of motive and i ntentto com mit the acts agai n, evidence in thi s case that Kena had abused the chil d could be relevant evidence thatshe had abused Miyoshi on th e day of her death, but it would not make abuse or negle ct by De fendan t any less likely. Therefore, weconclude that the trialjudge did not

abuse his dis cretion by denying admissi on of this evidence.

V. JURY INSTRUCTION ON CRIMINAL RESPONSIBILITY Defendant next contends t hat the trial court committed an err

or of constit utional magnitude when it instructed the jury on the thi rd sectio n of crimi nal respon sibility for the con duct of an other an d a juven ile crimina l statute mandating-35-

thatpersons who have knowledge of child abuse r

eport such abuse to the authorities. See Tenn. Code Ann. §§ 39-11- 402(3), 37- 1-403. Specif icall y, the trialcourt instructed:

The defendant is criminally responsible for an offense committed by the conduct of another if

having a duty i mposed by law or voluntarily undertaken to prevent commission of the offense and acting with the i ntent to benefit in the proceedsor result s of the offense or to promot e or ass ist its com miss ion, the defen dant fa ils to make a reasonable ef fort to prevent commissio n of the off ense. In a later i nstruction, sepa rated by ninete en pages of the record, the trial court advised the jury, Any person having knowl edge of or cal led upon to render ai d to any child who is suffering fr om or has sustained any wound, injury, disability or physicalor mental condi tion which i s of such a nature as to reasonably indicate t hat it has been caused by brutali ty, abuse or neglect or which on the basis of avai lable inform ation re ason ably ap pears to have b een ca used b y brutality, ab use or n eglect shal l report such harm immediately by telephone or

otherwise to the judge having juveni le juri sdicti on or to the county offi ce of the Department of Human Services or t o the offi ce of the Sherif f or the chieflaw en forcem ent offic ial of the m unicip ality wh ere the child resides. Person s include s, bu t is not limited to neighbor, relative, friend or any other pers on. We conclude that , while t he latter instruct ion was likel y not warranted by the facts of this case , its inclusi on was not erroneous; and furthermore, if erroneous, such
error wa s harm less bey ond a re asona ble dou bt.

We find that

these inst ructions were charged to t he jury each separ ate from the other, with no indica tion from the trial court that the jury should consider them together and with no fur

ther inst ruction t hat the latter constit uted a “duty imposed by law” under the former. Had the jury decided that Defenda nt failed to report child abuse in viol ation of this inst ruction, such a decisi on nev ertheles s sho uld-36-

have had no bearing on fulfillmen t of the crim inal respo nsibility statute, because the third crimin al respon sibility prong requires “a duty im posed by law . . . t o preventcommission ofthe offe nse.” T enn. C ode A nn. § 3 9-11- 402(3 ) (emp hasis added). Faili ng to report child abuse, by its terms, is an altogether differ ent propositi on and do es not sa tisfy this pron g of crimin al respon sibility. The tw o instruct ions combi ned cr eate d no er ror. Therefore, we now co ntemp late whether the instructions given alone created error.

“It is the dut

y of the t rial cour

t to give a complete charge of the law applic able to the facts of a case .” State v. Harbi son , 704 S.W.2d 314, 319 (Tenn. 1986) (citi ng State v. Thompson , 519 S.W.2d 789, 792 ( Tenn. 1975)); see State
v. Burkley , 804 S.W.2d 458, 461 (Tenn. Crim. App. 1990). In t his case, t he State presented a theory b y which the j ury could concl ude that Defendant was crimin ally responsibl e forKena H odges ’s actions. We have determined that the evidence was suffic ient to find Defendant gui lty of criminal responsibi lity for fel on y murder by reason of Defendant undertaking the obli gation to care for and protect
a young, helpl ess child. Therefore, we find that the trial court was w arran ted in charging the jur

y with the th ird prong of crimina l respons ibility—ha ving a du ty impos ed by l aw.

The second instruction, dealing wit h failur e to report

child abuse, we find to be essential ly irr

elevant. Defendant was notcharged under thejuvenil e code with failur

e to report chil d abuse, nor does this instruction assist t he trier of f act in determining a ny issue releva nt to a charged offense. Our su preme co urt-37-

addressed irrel evant jury instruct ions in Adcock v. State , 236 S.W.2d 88 (Tenn. 1949), and Pedigo v. State , 236 S.W.2d 8 9 (Tenn. 19 51), in which im proper jury instruct ions required reversal of conv ictions . We fin d both case s disting uisha ble from the cas e at bar.

In Pedigo , the supreme court described the j ury instructi on as follows: A photos ta t of t he charge as it was handed to the jury, convinces us that b y reason of inco mpeten t and irrelevant m atter, illegible interl ineation and mea ningle ss annotati on, the charge might as well have been wri tten in a fore ign lan guag e and could serve no purpos e exce pt to confu se the jury
. 236 S.W.2d at 90. Here, we have only a singl e irrel evant instruc tion, no illegible interl ineation and no meaningless annotation. This case cl early doesnot rise to the magnitude of t he impropriet y in Pedigo . Turning to Adcock , the predeces sor to Pe digo and the case of P edigo’s c o-defen dant, we find that the writte n instructi ons given t o the jury “contained not only poi nts of l aw applicable to the
. . . case, but al so much that was inappl icable and conf using.” Fur thermore, [n]ot only did [

the Adcock jury] receivemuch law that had no applicat ion to th e facts of this case, but they were al so given i nstructi on on many facts which were not in evi dence an d wer e contrary to the theo ry of the D efenda nt. The defense of t he accused was an alibi . In the charge taken by the jury to the jury room , it was state d . . . , “the Defe ndant a dmits thathe di d thekil li ng, b ut says th at i t was d one by him i n his

own necessa ry self-def

ense, etc. ” Then foll ows an elaborate ch arge on self-defense. 236 S.W.2d at 89.-38-

Again, we conclude that the case at bar cl early does not reach the signi ficance of Adcock . We find no reversible e rror i n the trial court’s inclu sion of this a ccurate and non-misleadi ng, yet i rrelevant instruct ion.

VI. STATUTORY AGGRAVATING FACTORS A. Tennessee Code Annotated § 39- 13-204(i) (1) Defendant arguesthat the t rial cour t erred by

instructing the jury on both statutory aggravatingfactors r equested by the State during sentencing. The first factor, listed in Tennessee Code Annotated § 3 9-13-204(i )(1), r eads: “The murder
was committed ag ainst a per son less than t

welve (12) year

s of age and the defendantwas eighteen (18)years of age, or older. ” Tenn. Code Ann. § 39- 13- 204(i)(1).

In support of

his argument, Defendantcontends that this factor “shoul d not apply to cases of felony murder where the underl ying fel ony is aggravated child abuse, because such appli cation would automatica lly suppor t a sentence of

life withoutparole for

any defend ant ove r the age of eightee n.” Moreover, Defendant claims, Applicati on of this factor in no meaningful way narr

ows the class of defend an ts eligible for a se ntenc e of life w ithout p arole. T his aggravatingfactor unconstitut ionall y duplicates a single as pect of the allege d cr ime - the vi ctim’s age - and thereby vi olates due process, doub le jeop ardy, th e right to a fair trial, and the protect ions against cruel and unusualpunishment as guaranteed by the Fif th, Sixth, Eighth, a nd Fou rteenth A mend ments to the United States Constitut ion; and Artic le I, §§ 8, 9, 16, an d 17 of the Tennessee Constitut ion.-39- This issue has be en resolved by our supre me cou rt in State v. But ler , No. 02S01-9711-CR-00094, 1998 WL 710632 (Tenn., Jackson, Oct. 12, 1998)(for publication). In Butler , the supreme cour t held that “ther

e are no consti tutional
or statutory prohi bitions” to relying upon the felony m urd er aggravati ng circumstance when seeking a senten ce of life with out the po ssibility of parole f or defend ants cha rged w ith felony m urder. Id. at 2 (dis cussing Tennessee Code Anno tated § 39 -13-204 (i)(7)).

The court firs t stated that, w hen th e prop osed pena lt y is no t death, constit utional provisi ons prohibi ting crueland unusual punis hment and definin g the need to narrow t he class of offenders “are not at issue.” Id. at 4-5. Second, the court disc ussed statutory s entenc ing requ iremen ts —spec ifical ly, §§ 39-1 3- 204 and 39-13-207—and determined t hat “[n] othing i n the text of either

section 39-13-207 or 39-13-204 pr ohibits the jury from consideri ng an aggravati ng circumstance when the aggrava torduplicates an element of t he underlyi ng offense.” Id. at 7.
Although in thi s case the trial court instructed as an aggravator a differ ent ele me nt of the underlying offense, we are confr onted with a nearly ident ical situati on. Furthermore, prior to Butler , this Court approved theuseof t he s ame aggravator

in a case in which age was an element of the offen se. State v. Danny Ray Lacy , No. 02C 01-970 1-CC -00013 , 1997 W L 7292 61 (Ten n. Crim. A pp., Jackson, Nov. 25, 1997) ( pe rmitti ng § 39-13-204(i )(1) as an aggr avating factor in a prose cution for first d egree m urder by aggrav ated ch ild abuse ), perm. to-40-

appeal denied (Tenn . 1998 ). We th erefor e hold that ther e are no consti tutional
or statutory im pedim ents to the use o f § 39-13-204( i)(1) as a sentencing aggrav ating facto r by the trial co urt in this cas e.

B. Tennessee Code Annotated § 39- 13-205(i) (5) Defendant next argues t hat the evi dence was insuff icient for the j ury to fi nd the statutor

y aggravati ng factor i n Tennessee Code Annotated § 39-1 3- 204(i)( 5)—that themurder was “especial ly heinous, atrocious , orcruel in that it involved torture or seri ous physical abuse beyond that necessa ry to produce death.” The State contends that it pr esented sufficient

evidence by which the jury could have co me to this conc lusion be yond a reason able do ubt, and we agree.

“Tortu re” has be en define d as “the infliction of sev ere phy sical or m enta l pain upon the vict im wh ile he o r she re main s alive and con scious.” State v. William s , 690 S.W .2d 517 , 529 (Te nn. 198 5); State v. Nes bit , 1998 WL 670966, at *10 (Tenn., Jackson, Sept. 28 1998). In State v. Pike , 1998 WL 69006 4 (Tenn., K noxville, O ct. 5, 1998 ), the supre me co urt noted that “[w]ith res pect to ‘serious physical abuse beyond that necessary to produce death,’ we expl ained in State v. Odom that ‘seriou s’ alludes to a matter of deg ree, and that the physical abuse must be ‘beyo nd tha t’ or mo re than what is ‘nece ssary to prod uce d eath.’” 1998 WL 690064, at *14. When determining whether the evi denceshows “severe physica l or men tal pain,”

[t]he jury may use their common know ledge and experience in deciding whethe r a fact i s logical ly deducibl e from the circumstancesin evidence, or in making r easona ble inf erences from-41- the evidence, and may test the truth and weight of the evidence by their own general knowledge and j udgment derived f rom experience, observ ation, and reflection; bu t neither jurors nor judges when acting as arbiters of guilt are permitted to base thei r decisi ons on the existence or non-exi stence of facts accordi ng to their personal beliefs

or experiences, but onl y on facts established by legal and competent evidence oron infe rence s ded ucible from such proven facts as a re autho rized by la w.
Fairbanks v. State , 508 S. W.2d 67, 69 (Ten n. 1974 ) (ci ting23A C.J.S. Criminal Law § 1373 ), quote d in Nesb it , 1998 W L 6709 66, at *11
.
According to the proof in t he record, Miyoshi Richardson co nclusi vely sustained bluntforce tr auma to the head and torso, eac h injury being suff icient to caus e dea th, as a result o f multip le blows causing various hemorrhaging of t he brain and lace rations to th e liver. In additio n to these gr ievous injuries , the vic tim showed affirmative evidence of shaken bab y s yndrome by her damaged, hemorrhaging optic n erve a rea. Fin ally, in a ddition to her seri ous physical injuries, the jury he ard evide nce tha t t he c hild suf fered both phys ical torture—through an explanati on of the chi ld’s worseni ng symptoms throughout the day of he r death prior to slippin g into unc onsciou sness, d ue to deprivati on of medical attenti on; as well as mental tort ure—through a detai led descri ption of how the tw o-yea r-old ch ild was forced to stan d with h er palm s aga inst the wall, in a corner of t he room all ni ght long, while her mother and Defendant engaged in sexual intercourse and sl ept, wit hout being permi tted to sl eep, sit down, or relieve herself. We find the evi dence suffi cient to perm it a jury to find this aggravating factor.-42- VII. MAXIMUM SENTENCE FOR AGGRAVATED CHILD ABUSE Defe ndan t’s final argum ent is that th e trialcourt err ed by imposing the
max im um s enten ce av ailable by law for the c onvic tion of a ggrav ated c hild abuse—twenty-five years as a Range I offender. He co ntends that the trial court applied one enhancement factor in error , while al so improperly denying one mitigati ng factor. Although thi s Court mus t cond uct a de novo revi ew when a criminal defendant appeal s the lengt h, range, or manner of service of

sentence; the legislat ure ha s ma ndate d a “pre sum ptio n that t he determinati ons made by the court fro m which the appeal i s taken are cor rect.” Tenn. Code Ann. § 40-35- 401(d). The presumption of correctness

is condit ioned, however, upon proper considerati on by the trialcourt of t he sentencing principl es in Tennessee Code Annotated § 40-35 -103. State v. Ashby , 823 S.W.2d 166, 168 ( Tenn. 1991). We find no err

or by the trial court

in thi s case.
Tennessee Code Annotated § 40-35- 114(5) The trialcourt appl ied the statuto ry enh ance men t factor fo und in Tennessee Code Annotated § 40-35- 114(5): “The defendant tr eated or all owed
a victi m to be treated with excepti onal cruel ty during the commission of t he offense .” Tenn. Code Ann. § 40-35- 114( 5). D efend ant as serts th at this enhancement f actor was improperly consider ed because it i s inherent to the crime—an “essenti al element” of the off ense. Defendant

c ites this Cour t’s opinion in State v. Claybrooks , 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994), for the propositi on that “[f]actors that are i nherent in a particul ar offense, even if not designated as an ele ment, m ay not be applied to increas e a sen tence.”-43-

Specifically, he arg ues th at it is impossible t o infli ct seriou s bodily i njury upon a child of six year s or less— eleme nts of the o ffense— without tre ating the c hild with “excep tional crue lty.”

The State, i n support of its argument that thi s enhan ce ment factor was appro priately applied, cites State v. Poo le , 945 S.W.2d 93 (Tenn. 1997), in which
our supre me c ourt he ld that th e elem ent of “s erious bodily injury, ” as includ ed in t he offense e specially a ggrava ted robb ery, doe s not nec essarily co nstitute “exceptiona l cruelty.” Id. at 98. The cour t stated, “In other

words, the facts in a
case may sup port a finding of ‘exce ptional cruelty’ that ‘dem onstra tes a culpa bil ity distinct from a nd ap precia bly greater t han that i ncident to’ the crime of esp ecially aggravated robbery.” Id. We be lieve that Poole providesappropriate guidance in this case. Defendant in t his case coul d be convicted of aggravated child abuse withouta findi ng of excepti onal cruel ty and, fo r that r eason, appli cation of the enhancement factor

was permissibl e in thi s case.
B. Tennessee Code Annotated § 40- 35-113(4) Defen dant’s final argument is t hat the trial court should have appli ed th e statutory mitigating factor foun d in Tenne ssee Co de Anno tated § 40-35 -113(4): “The defendant pl ayed a minor rol e in thecomm ission of the offense.” The trial court was w ithin its a uthority to rejec t this mitigati ng factor i n light of the evidence presented. Even if t he evidence showed that Kena Hodges infli cted the bl unt force trauma upon the victim, Defendant at t he very least ignored the obvi ous, severe medical peril of a hel pless, two-year-ol d child for whom he had accepted7 Despite the fact that a plain-langua ge reading of

§ 40-35-210

would ind icate that a sentencingcourt must return to the minimum sentence in the range when enhancemen

t factors are present(although the presumptive s entence with no mitigating or enhancement factors is the mid-point), the appropriate and correct res ult is to start from the mid-point of the range. See State v. Katherine Irene Warren , No. 01C01-9710-CC-00455, 1998 WL 749412, at *4 (Tenn. Crim. App., Nashville, Oct. 28, 1998) (following Statev. Chance , 952 S.W.2d 848 (Tenn. Crim. App. 1997), which noted the incongruity of § 40-35 -210(c), (d), and (e), butconcluded that a plai n-language

reading of

its provisions would create an a bsurd resul

t). -44- a primary care r

esponsibil ity on aregular basi s and for whom he had accepted
a parental r

elations hip. Taken even in the light m ost favora ble to Defendant, t he evi dence doe s no t po rt ray a mi nor rol e fo r hi m.

C. Maximum Sentence Under Tenn esse e Cod e Ann otated § 40-3 5-210 , the trial c ourt sh all presu mptiv ely apply the mid- point of the sentencing range for Class Afelonies. Tenn. Code Ann. § 40- 35 -210(c). H ere, the m id-point of th e range is twenty years because Defenda nt is a Range I offender. Whe n enhanc ement fac tors are foun d but no mitigat ing factors are found, the tri al court may sentence a defendantabove this pr esumptive sentence. 7 Because the trialcourt foundtwo statutory enha ncem ent fac tors, w e con clude that the trial cou rt did no t err in
s enten cin g Defe ndan t to twe nty-five years on the charg e of ag grava ted ch ild abuse
.

In conclusion, we affirm the judgment of convicti on for fi rst degree murder committed during perpe tration o f aggra vated child abuse and the convi ction fo r aggravated child abuse. Further more, we affirm Defen dant’s se ntence s of life imprisonmentwithout t he possibil ity of parol e fo r murder an d twenty-five yea rs for aggravated child abuse.-45- ____________________________ DAVID H. WELL ES, J UDGE

CONCUR:

______________________________ JERRY L . SMI TH, J UDGE

______________________________ JOHN K. BYERS, SENIORJUDGE