### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 17, 200 3 Session

STATE OF TENN ESSEE v. BRIAN LA RICE CURETON
Direct Appeal from the Criminal Court for Davidson County No. 2001-B-1008 Cheryl Blackburn, Judge

No. M2002-00835-CCA-R3-CD - F iled October 8, 2003

Following a jury trial, De fendant, Brian L arice Cureton, was convicted of one count of first degree felony murder and one count of agg ravated child abuse. The

trial court sentenced Defendant to life im prisonm ent

with the po ssib ilit y of parol e for t he felo ny murder convi ction . Foll owing a sentencing hearing, the trial court sentenced D efendant to twe nty-five y

ears imprisonment for the aggravated

child abuse conviction as a Range I offend er and orde red the sentence for ag gravated chil d abuse to r

un concu rrently with Def

endant’ s life sen

tence. D efenda

nt now app eals hi s convictions and sentencing alleging (1) that the evidence is insufficient to support Defendant’s convictions for first degree felony murder and

aggr avated c hild abuse

bey ond a rea sonable d

oubt; (2) that the trial court erred in not allowing Defendant to cross examine Kinoltra Ewing about her willingness to take a

poly graph

test; (3) that the tr

ial cour t erred in not red actin g po rtions of Defendant’s statemen

t to the poli ce; (4) that the tr ial cour t erred in no t instructing the jury on facilitation of aggravated c hild abuse and felony

murder as lesser

included offenses; (5) that the trial court erred in permitting the State’s expert witness to offer opinions outside her area of expertise; and (6) that Defendant’s sentence for ag gravated child abuse was excessive. After a thorough review of the re cord and

the arg uments an d briefs of counse l, we aff irm the jud

gments o f the tria

l court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

T HOM AS T. W OODA LL , J., delivered the opinion of the court, in which J OHN E VERE TT W IL LI AMS and R OBER T W. W EDEMEYER , JJ., joined.
Ross E. Alderman, District Public Defender; William J. Steed, Assistant Public Defender, on appeal; C. Dawn Deaner, Assistant Public Defender , at trial; and Clark B. Thornton, Assistant Public Defender, at trial, for the appellant, Br ian Larice Cureton.
Paul G. Summers, Attorney Gene ral and Reporter; Elizabeth B. Marney , Assistant Attorney General; Victor S. Johnson, II I, District Attorney

General; Bernie McEvoy , Assistant District Attorney, and Ka

trin Miller, Assistant District Attorney Gener al, for the appellee, State of Tennessee.-2- OPINION At 7:45 a.m. on Fr id ay, April 6, 2001, Angel Rey

nolds brought her four-y

ear-old son, Jemond Reynolds Cure

ton, the vi ctim in this c ase, tothe emergency room at Tennessee ChristianMedical Center. Dr. Jennifer Eisenhour testified that when the victim arrived he was lethargic and

limp with
a severely extended stomach. Although he was conscious, the victim was unabl e to respond to questions or follow

commands . The eme

rgenc y st aff adm inistere d oxyg en and the

n attempted to insert an IV. The victim’s veins, howeve r, h ad collapsed from shock. While the emergency staff
was trying

to locate a vein, the victim stopped breathing and then his hear t ceased beating. The staff was not able to revive the victim, and he was pronounced de ad at 9:36 a.m.

Ms. Reynolds testi fied tha t the victim had spen

t the nine d ay s prior to h is death w ith Defendant

and his girlfriend, Kinoltra Ew ing. Defendant also had custody of his daughter, Mackenzie. Neither Ms. Reynolds nor Ms. Ewing was Mackenzie’s mother. Ms. Rey nolds said that Defendant

was in and out of the victim’s life until 2000 when Ms. Reyno lds move d back to Nashville. At that time, Defendant expressed an interest in developing a relationship with his son, and the victim began

spending alterna ting we ekends w ith Defendant and Ms. Ewing. Later that ye ar, Ms. Reynolds said that she decided to join the Tennessee National Guard which would require her participation in anine- to sixteen-week basic training progra m. Ms. Reynolds and Defenda ntagreed that Defendant would have temporary custody of his son during that period. In order to acc ustom the victim to his new living arrangements, the chil d was spending more time with his father immediately prior to his death.

M s. Reynolds desc

ribed the victim as v ery

energ etic and

talkative with a hea

lth y a ppetite

. Before he began stay

ing with Defendant on a regular ba sis, he was complete ly to ilet train

ed. While h e was at De

fendant ’s house, however , the vict im had fre

quent ac cidents in

his clothin g. Ms. Reynolds said

that she had discussed

this problem with Defendant, and, on one occasion, Defenda nt responded

hysterically , saying

that Ms. Re

yno lds had to c ome get

the child because Defend ant did not know ho w to deal with the vic tim’s bath room acc idents.

Ms. Reynolds testifie d that on Th ursday morning Defend ant called her whi le she was at her parent’s house an d asked her to watch the victim and Mackenzie while Defendant went to a job interview. They

arrang ed for D efenda

nt to bring

the child ren to Ms. Rey

nolds’ pa rents’ h ome. Ms. Reynolds said that when the children arrived around 9:00 or 9:30 a.m., the victim did not greet her
as he usually did with a kiss and a hug but simply sat down in front of the television. Ms. Reynolds offered the children a snack, and the child ate a few crackers. L ater, Ms. Reynolds and De fendant took the children to Ms. Reynolds’ apartment whe re a friend was waiting to braid Defenda nt’s hair. While they were

there, Ms. Reynolds fixed lunch for the c hildren. Although he drank all of his juice, the victim only manage d to eat a portion of a ho t dog and a few chips. Ms. Rey nolds said she thought the victim was sick and checked his forehead f or fever but the child’s brow wascool. Defendant

left with the children to pick Ms. Ewing up for lunch. The victim hugged and kisse d Ms. Reynolds good-by

e.

Ms. Reynolds testified that later that eve ning Defendant

and Ms. Ewing called her on a three--3-

way call about 9:30 or

10:00 p.m. and told her that the victim was cry ing and asking for Defendant who was over

at a frie nd’s house . A few mi nutes late r, Ms. Ewi ng call ed her ba ck, and M s. Reynolds talked to the victim, telling him to calm down and g o to bed.
Ms. Reynolds testified

that on Friday mor

ning Ms. Ewing called her around 5:30 a.m. and told he r that Defendant had not come home Thursday night. Ms. Ewing asked Ms. Rey no lds t o watch the victim

and Mack

enzieso that she

could g o to work. Ms. Reynolds arrived a t Defendant’s home around 7:30 or 8:00 a.m. and immediately noticed that

her son c ould

barely walk. Whe

n Ms. Reynolds picked him up, she noticed that the victim’s stomach was swollen and hard. Ms. Reynolds immediate

ly took her son to the emerg ency room, ar riving a round 7:45 a.m.. Defendant and Ms. Ewing arrived at the hospital about thirty to for ty- five minut

e s later. Wh

en the doctor told Ms. Reynolds and Defendant

that the victim had died, Defendant screamed and beg an hitting the door.

Ms. Reynolds said that the police first approached her while she wa s at the funeral home and
a sked her a nd Defendant to accompany the officers to the station for questioning. Ms. Rey nolds testified that on the way

Defendant was very

upset and said over and over in a loud vo ice that h

e did not do any

thing and that he w as not go ing to ja il.

On cross-examination, Ms. Reynolds said that Ms. Ewing ha d not mentioned that the victim
was vomiting Thursday nig ht in either of her telephone calls. When Ms. Reynolds told Ms. Ewing that she was g oing to take the victim to the hospital on Friday morning , Ms. Ewing appeared surprised. Ms. Reynolds said that the victim’s stomach was not swollen Thursday morning . She did not re membe r tell ing Det ectiv e Smi th th at the victi m’s ap petit e was goo d that morni ng. Ms. Reynolds testified that she did not worry about leaving thevictim with Defendant and Ms. Ewing. Ms. R eynolds also testified that both Defe ndant and Ms. Ewing appeared conc erned while they waited a

t the hospital for word on the victim’s condition.

Ms. Ewing next testified that she met Defendant in 1999 when

she was eighteen and he was twenty-one. Defendant

was Ms. Ewing’s first serious boy friend, and the couple lived together for
a few months until Defendant moved to Milwaukee. When he returned, Defendant and Ms. Ewing resumedtheir re

lationship and wer e living togethe r when th e vic t im died. Ms. Ewing said that Defendant

had four childre n, but only

Mackenzie lived with her father. Ms. Ewing testified that the victim spent the night at Defendant’s home periodically and had been stay

ing with Defendant and Ms. Ewing a couple of day s before he died. Because he did not have a job a t the time, Defendant watched the children during the day while Ms. Ewing was at work.

Ms. Ewing said t

hat she arrive d home from work around 5:30 p.m on Wednesday . After dinner, the victim

so iled his clothe s. Ms. Ewin g said th at she told the victim

to take of

f his pant s and underwear and then hit him three times on his buttocks with a belt. Defendant then struck the victim twic e with

the belt in the same spot. After the victim took a bath, Defendant continued the child’s punishment. Ms. Ewing testifie d that Def endant ta ped two me dium sized c ans of fo od to the vi ctim’s hands an d made him stand in a

corner of the de

n, facin g the wa

ll, with his a

rms-4-

outstretched. Defendant then went into his bedroom to watch television.

Ms. Ewing said that the victim stood in the corner between thirty

minutes and an hour

while she sat on the couch wa

tching t elevision . Ms. Ewing

said she n oticed th at the vic tim’s armswere trembling after a whil e, and he was b endin g backwa rds as if he w ere goin g to tumble over. Ms. Ewin g said she told Defendant that the victim’s arms were shaking , and he replied “good”. The victim then star ted waving his arms aro

und, try ing to loo sen the ta

pe that he ld the ca ns to his ha

nds. One of the ca

ns eventu ally

fell off . Ms. Ewing

said that the victim pick

ed the ca n up and th

rew it toward the couch where Ms. Ewing wa s sitting with Mackenzie in her lap.

Ms. Ewing told Defendant that the victim had thrown one of the food cans at Mackenzie, and Defendant

came into the den. Ms. Ewing said that she could tell Defenda nt was an gry

fro m his expression. Defend ant walked over to h is son and untaped the remaining can from the child’s ha nd. When De fendant set the can down on the floor, the victim appeared conf used. Defendant then grabbed the victim by his shirt and drag ged him over to the couch. Ms. Ewing said that Defendant kept asking the victim why he threw the can, and the child replied that he did not know. Defendant sat down on the couch and pulled the victim toward him until the child was only a couple of inches away from Def endant. D efenda

nt asked h

is son aga in why he threw the can. When the vi ctim still didnot answer, Defendant closed hi s hand in a

fist and pulled his a

rm back u

ntil his fist

was even withhis shoulder. Ms. Ewing turned back to the television and when she looked back at D efenda

nt, his fist was against thevictim’s abdomen, just below the sternum. The victim stumbled back three of four paces. Defendant told the victim that he loved him and the

n told the c

hild to go to bed. Ms. Ewing said that she was watching television during the incident a nd admitted that she d id not intercede on the victim’s behalf.

Ms. Ewing said that she did no t observe a ny unusual behavior in the vic tim on Thursday morni ng. Ms. Ewing also did not notice an y change in the victim’s appetite because the children usually did not eat breakfast. Defendant drove Ms. Ewing

to work on Th

ursday morning because his car was out of

gas. Ms. Ewing said that Defendant a nd the children arrived to take her to lunch around2:00 p.m. , and the v ictim was a sleep in th

e backse at. Defe

ndant and Ms. Ewing

ate a fa st food meal in the car, but the victim did not eat. Defendant told Ms. Ewing that the victim an d Mackenzie had already

had lunch. While they ate, one of Ms. Ewing’s friends stopped by the car and said “hi” to the victim who did not respond. Since it was unusual for the victim not to respond to greetings, Ms. Ewing looked at the victim and noticed for the first time that he had dried blood
on his lip. She went into her office building to get a damp paper towel and cleaned the child’s face.

Ms. Ewing testifi e d that she got home from work around 5:30 p.m on Thursday . She and Defendant

stood in the

front y ard talk

ing while the children played in their room. Defendant left to visit friends, tel ling Ms. Ewing that he wo uld be home

around 1 0:30 p.m.. Wh en the victim discovered

that his father was gone, he beg an crying . Ms. Ewing said that she called Defendant and told him to come home, but Defendant refused. The victim then soiled himself, and Ms. Ewing called D efenda

nt again to tell

him about the accident and Defendant spoke with the victim. After Defendant

hung up, Ms. Ewing shoved the victim in the chest with her hand, and the child fell back-5-

agains tthe wooden arm of the couch. Ms. Ewing then retrieved a belt and struck the victim three times in the buttocks. Following this incident, the victim vomited twice, and Ms. Ewing aga in called Defendant

to ask him to return home. Defendant refused and told Ms. Ewing to feed the victim. She fixed a hot dog

but the vic tim vomited

again a s soon as he

took a bite , so she se

nt the chi ld to bed.

Around 2:00 a. m. Fr id ay morning , the vict im fell out

of bed. Ms . Ewing w ent into his bedroom and told him to get back in bed. Ms. Ewing next woke at 5:00 or 5:30 a.m. Ms. Ewing calledMs. Reynolds to come ge t the childre

n becau se Defe

ndant had not come home that night. The victim came into the den and asked for water. The child climbed up on the couch and lay down next to Ms. Ewing. Ms. Ewing rubbed the victim’s stomach because he said it hurt. When she stopped, the victim com

plained a gain ab out the pa

in, and Ms. Ewing c ontinued r ubbing. Ms. Ewing admitted, however , that she

was not re ally

pay ing atte ntion to the victim and did not notice that his stomach
was swollen. Eventually, she g ave the victim some medicine for gas and both T yle nol and Mot

rin for his pain.

Around 6:00 a.m., Ms. Ewing dressed the children and put them in the car. She then drove aroundfor awhile try

ing to spot Defendant’s car while the victim lay in the b ack seat . When she could not find Defendant, Ms. Ewing returned home to wa it for Ms. Reynolds.

Ms. Ewing admitted that she left out “bits and pieces” in her initial statement to the police. Ms. Ewing sa

id that she

wanted to

tell the officers just enough so that they would let her go home. She also admitted that she did not mention that Defendant had struck the victim in the abdomen with his fist on Wednesday night. When De tective Smith asked her to take a polyg raphtest, Ms. Ewing said that she decided

to descr ibe all of the even ts immedia

tely preced ing the v ictim’s de athincluding his punishm

ent on Wednesday

night.

On cross-e

xamination, Ms. Ewing

admitted t

hat she di d not have m

uch inter action wi th the victim when he visited Defendant and was not sure what wa s or wa s not normal behavior in the child. Ms. Ewing said that the victim did not like to spend time with her.

Def endant’s counsel extensively cross-e xamined Ms. Ewing about the inconsisten cie s between her testimony

at trial a nd her sta tements to

the police concer

ning the sequenc e of eve

nts in the two or three day s preceding the victim’s death. Ms. Ewing’s consistent response was that she didnot reme

mber mak ing the s tatement s reflected in the tran script of

her inte rview with Mike Smith, a detec tive with th

e Nashvi lle Metro

politan Pol

ice Dep artment.

Ms. Ewing also testified on cross-examination that the victim was very thirsty Thursday

night butshe di d not give hi m anythi ng to dr ink so that he would not urinate in his pajamas. When the victim got up F riday morning , he still c omplaine d of thirst iness, and Ms. Ewin g gavehim water, juice, milk and Kool-aid. Ms. Ewing noticed the victim’s stomach was tight when sherubbed it, but she did not really pay

attention. Around 6:30 a.m., Ms. Ewing dressed the victim bec ause he s aid his stomach w as hurtin g. She then placed the children in her car and dr ove around looking for Defendant

for appr oximately ten minute s. When they returne d home, the victim wanted more water,-6-

and this time he vom ited afte r drin king. Ms. Ewing pushed him into the bathroom in case he vomited again.

The first time Ms. Ewing realized something was seriously wrong withthe victim was when Ms. Reynolds arrived a

nd the victim had difficul ty w alking. Ms. Ewing

admitted t

hat she to ld Ms. Reynolds that the victim

was “fine just a minute ago”. Ms. Ewing said that she told Ms. Reynolds on Thursday nig

ht that the victim had vomited but that she had given him some medicine.

All sudden deaths of childre n are investigated by the police, and Detective Smith was assigned the victim’s case. After the au topsy was completed, the victim’s death was classified a homicide, and Det ective S mith inter viewed D efenda

nt and Ms. E

wing. I n his first

statemen t, Defendant

denied that his son was sick on Thursday . Defendant admitted that he often roughhoused with the victim, but denied ever hurting the child. De fendant said that h

e might h ave accidentally hit the victi m in the chest on occasion because the boy squirmed when the two of them tussled. Defendant

also told D etective

Sm ith that the victim fell off of his bicyc le on both Monday and Tuesday and landed face d

own in the

grass.
After Detect ive S mith inter viewe d Ms. Ewing, he again questioned Defendant. At this point, Defendant

admitted t

hat on Wednesd a y night he struc k the victim in the chest with his fist and spankedhim for throwing the food can. De tective S mith said he

arrested Defen dant and r ead him his Miranda warnings. Defendant told Detective Smith that he “lost his cool” when the victim threw the food c an but only

“jabbed ” him in the

chest.

Dr. Jenn ifer Ei senho ur was on dut y the morn ing t he victim wa s brought into the hospital. She administe

red oxygen to

th e ch il d an d t hen att emp ted to in ser t an IV. B efo re t he IV was in place, however, the vi ctim stop ped br eathi ng. Dr. Eisenhour said she place a breathing tube into the child’s trachea, and he started breathing ag ain. However, during the process, the victim’s heart stopped and they were un able to r

evive him

.
Dr. Eisenhour testified that she first believed that the victim was suffering from a perforated appendix or twi sted b owel a ltho ugh the extent of swelli ng in his a bdomen wa s not consi stent with that diagnosis. After an x-ray indicated the presence of blood in the abdomen, howeve r, Dr. Eisenhour

concluded that t

he victim’s condition was the result of trauma rather than a medica l or infectious condition.

Dr. Eisenhour said that when she told the family that the victim had died, Defend ant beca me very upset and struck the door with his fist. Dr. Eisenhour called security because she was worried about Defendant’s reaction.

Dr. Eisenhour testified that the autopsy r evea led lac erations of both the pancreas and the small intestine. These results were consistent with the victim’s physical

symptoms and indicated a blunt force trauma to the abdomen. The lace rations permitted the contents of both organs to seep into the abdom

inal c avity causing

swelling, inflamation, blood loss and eventually infection.-7-

Depending on the size

of the la

ceratio ns, Dr. Ei senhour t estified that a pe

rson woul d ex hibit sym ptoms of abd omin al swe llin g, thirstine ss and vomiting within twenty-four to forty-eig

ht hours of sustaining the injury. Dr . Eisenhour said, however , that the sym ptoms migh

t be pres ent in as li

ttle
as twelve ho

urs and noted that th

e more sig nifican

t the blee ding, the

more ra pidly the sy mptoms would develop. Dr. Eisenhour did not discuss the timing of the victim’s injuries with Dr. John Gerber, the forensic pathologist who performed the autopsy

. Dr. Eisenhower said that she based her conclusion as to the timing of the injuries on her clinical findings. Regar ding an opinion on the time of injury based upon tissue samples fr om the autopsy, she would defe r to Dr. Gerber. Dr. Eisenhour testifi ed th at surgery

would have been appropriate if the victim had been br ought to the hospital
soone r than Friday mor ning.

On cross-examination, Dr. Eisenhour testified that the abdominal wall of a child is not as developed

as an adult’s. Therefore, les s force is necessary in order for blunt trauma to a child’s abdomen to cause the same internal injuries as would b e cause d to an adu lt. Abdomin al injurie s in
a child can result from a punch or pushing ag ainst a seat belt or striking the handlebar of a bicy cle. However, Dr. Eise

nhour co nfirmed t

hat a punc h would ha

ve to have “some significant driving force behind it”to cause

the ty pe of inju ries suff ered by the victim

.
Dr. Gerber

perfor med the a utopsy . The aut

opsy results indicated that the victim’s injuries
were caused by a

blunt force injury to the a bdominal region which resulted in a two-inch lace ration
on the small i ntestine, a one-inch lace ration in t

he pancreas, a

nd mesent

eric he mo rrh age. The victim’s death was caused by the accumulation of a l ar ge amount of fluid in the abdomen which pushed his diaphragm up against his lungs causing the victim’s body to go into shock. The state of shock eventua lly c aused the

child’s heart an d lungs to stop functioning. Dr. Gerber testified that a blow to the ar

ea ident ified by Ms. Ewing as the place Defenda nt struck the victim would cause the injuries that led to the victim’s death.

Dr. Gerber testified that the victim’s sy mptoms and injuries were consistent with a blow

to the abdomen inflicted between twelve to thirty -six hours priorto death. A twelve -hour time frame would indicate a

ca tastroph

ic injury while a th

irty -six hour tim

e frame would indic ate a sma

ll lacerationin the pancreas and small intestine. Dr. Gerber classified the lacera tions on the victim’s organs as “medium”. Dr. Gerber based the outer limits of this tim

e frame on the numb er of wh

ite blood cells present in the victim’s system as we ll as the extent of the edema.

Dr. Gerber testified that the victim’s lack of appetite and energy

on Thursday morning , and the increasing severity

of his symptoms during Thursday night, including

thirstine ss, pain, a

nd bouts of vomiting, indicated that the injury wa s inflicted on Wednesday nig ht rather than Thursday

night. If, however, the victim’s behavior was normal on Thursday morning as Ms. Rey

nolds initia

lly t old the police, then this factor would not indicate a Wedne sd ay eve ning injury. Dr . Gerber said that there wa s an abrasion on the victim’s mid-back area with some hemorrhag e present beneath the bruis ing. The abrasion was inflicted within the same time fra me that t he internal injuries were sustained and could have caused the lacera tions to the v ictim’s pancr eas and small intestine. Dr. Gerber testified that there was no external sign of injury to the abdomen, a nd the swelling of the-8-

victim’s s tomach, i n and of itself, did not indi cate where the blow was s ustained . Dr. Ger ber said that the swelling of the victim’s stomach would be obvious. Both lacerations were po ssibly treatab le if discovered in time.

At the conc lusion of th

e eviden ce, the j ury

found Defendant

guilty of first degree f elony murder and aggra

vated child abuse.
I. Sufficiency of the Evidence

In his appea

l, Defendant firs t contend s th at the ev idence w as insuff icient to s ustain his
conv iction s for felony mur der and aggra

vated child abuse. Defendant arg ues that the proof that Defendant’s blow to the

vic tim’s ches t on Wednes day night ca used the c

hild’s de ath was e

ntirely circumstantial evidence. Defendant contends that the e vidence supports t

he reas onable

hyp othesis that Ms. Ewing, and no t Defendant, caused the injuries that led to the victim’s death when she sho ved the victim against the couch on Thursday night. Because the facts did not exclude every
reasona ble hyp othesis except Def endant’ s guilt, D efenda

nt c ontends that the State failed to prove beyond a reaso nable dou

bt that Defendant

committed the charged offense s. Alternatively, De fendant argues that

he is gui lty a

t most of ch

ildabuse because the evidence doe s not sustain a finding that De fe nd an t c au se d t he vi ct im to su ff er se ri ou s b od il y in

ju ry.
When a defendant challenges the sufficiency of the convicting evidence, we must review the evidence in a ligh

t most favo

rable to the prosecution in determining whether a rational trie r of fact
co uldhave found all the essential elements of the crime bey ond a reasonable doubt. Jackson v
. Virginia , 443 U.S.30 7, 319, 99 S. Ct. 2781, 27 89, 61 L .Ed.2d 560 (1979). O nce a jur

y f inds a defendant gu il ty, his or her

presumpt ion of inno cence i s remove d and rep laced w ith a presumption of guilt. State v. Black , 815 S.W.2d 166, 175 (Tenn. 1991). The def endant h as the burden of overcoming this presu

mption, an d the Sta

te is entitled to the strongest legitimate view of the evidence along with all reasonable inferenc es which may be drawn f ro m that evidence. Id.; Stat e v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have r

esolved a ll conflicts and drawn any

reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Questions concerning the credibility of witnesses, the weight and val ue to be given the evidence, and all factual issues raised by the evidence are resolved by the trier of fact an d not this court. State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of guilt predicated upon direct

evidence, circumstantial evidence, or a c ombination of both direct and circumstantial evidence. State v. M atthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

In order to

sustain Defendant’s conviction for felony murder, the State was required to prove that Defendant killed the victim in the perpetration of agg ravated child abuse. Tenn. Code Ann. § 39-13-202(a)(2). The State need not show that Defendant

intended to kill, only

that he in tended to commit the underlying

fe lo ny. Id. -202(b). Aggrava ted child abuse is defined as the commission of child abu se when t

he “act of abuse results in serious bodily injury

to the child.” Tenn. Code Ann. § 39-15-402(a)(1). A person commits ch ild abuse “who knowingly , other th an by accide ntal mean s, treats a child under eighteen (18) y ears of age in such a manne r as to inflict injury.” Id

. -401(a)

.-9-

“‘Serious bodily injury ’ means bodily injury which involves a substantial risk of death; protracted
unconsc iousness; extreme physical pain; protra cted or obvious disfigurement; or protracted loss or substantial impairment of a function of a bodily member, organ

or mental faculty.”Tenn. Code Ann. §39-11-106(a)(34). “‘Bodily injury ’ includes a cut, abrasion, bruise, burn or disfigurement; phy sical pain or tempor

ary illness or

impairme

nt of the fu nction of a bodily member, or gan, or metal facu lty [.]” Id. -106(a)(2).

In a ddition, to sustain a conviction for felony murder, the State must show that the killing
was “in the perpetration of” agg ravated child abuse. Tenn. Code Ann. § 39-13-202(a) (2). In other words, the killing must be done “in pursuance of the [fe lo ny] and not collaterally to it.” State v. Pierce , 23 S. W.3d 289, 2 94 (Te nn. 20 01) (q uoti ng Farmer v. State , 201 Tenn. 107, 115-116, 296 S.W.2d 879, 883 (1956)).

The State may prove a

material fact by

either direct or circumstantial evidence. Stinson v. State , 181 Tenn. 172, 178, 180 S.W.2d 883, 885 ( 1944). Whe ther a de fendant ’s conduct proximately caused the victim ’s death

is a question for the jury. See State v. Farner , 66 S.W.3d 188, 204 (Tenn. 2001).

In su pport of h

is argu ment that t

he evide nce wasinsuffic ient, Defend ant relie s on this Court’s decision in State v. Hix , 696 S.W.2d 2 2 (Tenn. Crim. App. 1984), overrule d on other g rounds, Sta te
v. Messamo re , 937 S.W.2d 916, 919 fn. 3 (Tenn. 1996). In Hix , the par ents of the si x-week-ol d victim took their infant to the hospital because he was cry ing incons olably. When the baby wa s examined, the doctors discover ed various injurie s, both past a nd prese nt, that we

re consi stent with child abuse. Neither

pa rent admitted harming their child, and there wer e no eye witnesses to any incident tha t resulted i n injury

to the bab y. T

hrough circumst antial ev idence, however , the State showed that the baby’ s injuries were not inflicted accidentally , and the baby w as in the custody of bothparents when the injuries were sustained. This Court found these particular facts insufficient to establish that either parent or both parents inflicted the injuries. Hix , 696 S.W.2d at 24. This Courtconcluded that “[t]he reasona ble hy pothesis w

hich has n ot been e

xcluded by

the evide nce in this case is that one of the appellants inflicted the injuries, a nd the othe r, for whatever reason, remained silent; hence, the evidence does not prove bey ond a reasonable doubt which on e committed the crimes.” Id. at 25.

Unlike the situation before us in Hix , however, Defendant admitted that he struck the vict

im
on Wednesda

y ni ght, and his confession was corroborated by Ms. Ewing’s thorough description of the events th at transp ired tha t n ight. Ms. Ew ing testified that Defendant was ang ry with his son after he threw one of the food cans toward the c ouch where Ms. Ew ing sat w it h Mackenzie. Defendant

pulled the victim towards the couch by his shirt until the child was about two inches away from him. Defendant then pulled his fist back

even with

his shoulde

r, and str uck the vi ctim causing him to stumbl e backwa rds thre e or four

steps. Ms. Ewing said she was watching television at the time, that she looked at Defendant once when his fist was pulled back, looked away , and then
saw Defendant’s fist against the victim when she looked bac k. Ms. Ewing identified the spot where the victim was struck as between the sternum and the upper pa rt of his stomach.-10-

Ms. Ewing also admitted that she pushe d the vict im into the couch on Thursday nig ht between 7:00 and 7:30 p .m. with he r hand be fore she retriev ed the be

lt to whip him fo

r soiling his cloth es. Sh ortly aft er thi s inci dent, the vi ctim began v omit ing.

Dr. Gerber testified that the blow causing the victim’s interna l injuries occurred between twelve and thirty-six hours before his death. A blow that would cause death within twelve hours would have to be cat

astrophi c, resul

ting in la ceratio ns larg e enoug

h to cause an immediate flooding of the abdominal cavity with the fluids fr om the injured organs. On the other hand, if d eath did not
occur for thirty-six hours, the blow would have resulted either in an incomplete tear of the organs
or a small laceration resulting in a slow accumulation o f fluids. T he accu mulation of

fluid would eventua lly cause the person to suffer from shock which would lead to the cessatio n of func tions in the lungs and heart. Dr. Ger ber testi fied tha

t the victi m’s incre asing le th argy , lack of appetite, thirstine ss and bouts of vomiting throughout Thursday as described by

both Ms. Re

yno lds and Ms. Ewing indicated that the fatal blow was delivered Wednesday night. Finally, Dr. Gerber testified that if Defe ndant hit th

e child wh

ere Ms. Ewing testified he did, this blow would cause lacerations of the sma

ll intestine

and panc reas. The jury dec ides the weight to be giv en to cir

cumstanti al evide

nce. “T he infer ences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistentwithinnocence are questions . . . for the jury .” Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958) (citation omitted). The jury was fre e to reje ct Defe

ndant’s a rgumen t that Ms. Ewing’s shove on Thursday nig

ht led to the victim’s death, and this rejection was amply supported by the medical testimony. The fact that ther e was testimony that

another person may

have also injured the victim does not preclude the jury

from concluding that

Defendant’s blow to the victim’s chest on Wednesday

night caused thechild’s fatal internal injuries. See State v. H odges, 7 S.W.3d 609, 621 (Tenn. Crim. App. 1998). We conclude that there was sufficient evidence for any

reasonable jury to find Def

endant g uilty of agg ravate d child abuse and f

elony murder b ey ond a rea sonable d oubt. Defendant is not entitled to relief on this issue.
II. Failure to Charge the Lesser Included-Offense of Facilitation

Defendant

next contends thatthe trial court erred by failing to instruct the jury on the lesser included offenses of facilitation of felony murder and facilitation of agg ravated child abuse.

Defendant

was indicted in May, 2001 on one count of felony murder , one count of second degree murder and one count of agg ravated child abuse. During the trial, Defendant reque sted in writing that the tr

ial cour t charg e the jur

y on the following less er-inc luded off enses: Count 1 : Felony murd er, second degree murde r, voluntary manslaug

hter, reckless homicide, criminally neg ligent homicide; Cou nt 2 : Second d

egree murder, voluntar

y ma nslaugh ter, re ckless ho micide, c

riminally negligent homicide; Count 3: Agg

ravate d child abuse, know ing ag grava ted ass a ult, child a

buse, re ckless-11-

aggravated

assau lt, re ckles s enda ngermen t, kn owing or reck less assa ult (Class A misdemeanor), knowing assault (Class B misdemeanor).

The State agreed to nolle prosequi count two, second degree murder, a nd Defendant’s trial began on February

11, 2002 on count

one, felony murde

r, and count three, agg

ravated child abuse. Defendant’s defense

centered on demonstrating that Ms. Ewing, not De fendant, inflicted the blow that led to the victim’s death. During a jury-out hea ring, the trial court questioned Defendant about the char ge to the jury on lesser -include d offens es as follows:

THE COUR T: All right, the ju rors ar e ready. Ab out t he char ge, I am goi ng to ch arge volunt ary manslaughter as a knowing killing of a nother and the lesser-included of f elon y murder, so it would be right after murder second. Also, I ’m going to charge child abuse on that coun t. Now the lessers on Count 2 [sic], I’m going to charg e all the ones that [Defendant’s counsel] requested

except fo r the B mi sdemean or assault, so I’ ll do the kn owing or reckle ss assault, but

not the offensive touching, okay , all right. Now I g uess this is a question that I have, and I ’ll hear you on it, and tha tis having listened to the testimony, is there any one who is arguing the theory of criminal responsibility for the c onduct of another? General Miller is shaking her head no. GENERAL MCEVOY: No, Your Honor. THE COURT: Okay, wha t about the defense? DEFENSE COUNSEL: No, Your Honor. THE COURT: Oka

y, s o as I understand the

defense is that he didn’t do it at all, not even– DEFENSE COUNSEL: I ’m glad we’ve made our def ense–that is our defense. THE COURT: Well, the State’s position is that Mr. Cureton did it and I would assume the defense position is that Ms. Ewing did it, but I want to make sure f or the charge, I

mean, I
amrequired to charge all possible theories. I just wa nt to make sure I’m not missing any thing. I f I le ave that

out of the

charg e, there

is not goi ng to be

any objectio n to it. DEFENSE COUNSEL: No objection and that will be ar gued. THE CO UR T: Co rr ec t. No cr im in al re sp on si bi li ty w hi ch meansno facilitation ch arges

. All righ t.

Defen dant

argues that the trial court is required to instruct the jury on all lesser- include d offense s, whether or not

Defend ant requ ests such

instructi ons, if the

evidenc e is leg ally

sufficient to support a conviction for the lesser offense. State v. Burns , 6 S.W.3d 453, 464 (Tenn. 1999). The t rial in this case began on Februar y 11, 2002. The Tenne ssee legislature, in 2001, amended Tennessee Code Annotatedsection 40-18-110 to provide that an instruction as to a lesser-included of fense is waived unless the defendant requests in writing, prior to the trial c ourt’s charge to th e jur y, that such an instruction be provided to the jury . Tenn. Code Ann. § 40-18- 110(c). Thi s amendment

to Tennessee Code Annotated section 40-18-110 governs all trials on or after January 1, 2002. 2001 Tenn. Pub. Acts 338, § 2. Becau se Defendant did not request an instruction on the lesser included offense s of fac ilitation o f felony murder a nd facil itation of aggr avated c hild abuse in writing prior to the trial court’s charge to the jury , Defendant has not presented a ground upon-12-

which relief may

be granted. Tenn. Code Ann. § 40-18-110(c ).

Even if the legislature had not amended Tennessee Code Annotated section 40-18-110(c), the trial court’s failure to charge the lesser-included offenses of facilitation under the f act s p resented in this case would not be “plain error” as Defendant argues. Defendant acknowledges in his brief that he did not re quest the

trial cou rt to charg e lesser

-included offens es of fa

cilitation . He asse

rts, however, that

the trial court’s failure

to charg e the les ser-inc luded off enses is “ plain er ror” in the record, and this entitled him to a new trial. Defendant relies upon this Court’s decision in State v. Adkisson , 899 S.W.2d 626 (Tenn. Crim. App. 1994). There are five factors se t forth in Adkisson which must be considered in order for an appellate c ourt to find plain e rror: “a ) the re cord must clearly establish what occurred in the trial court; (b) a cle ar and unequivocal rule of law must have been breach ed; (c) a subs tanti al righ t of the acc used must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consider ation of the error is ‘necessary to do substantial justice.’” Id . at 641-42 (quoting Tenn. R. App. P. 52(b)).

The absence of at least one factor pr ecludes a finding of plain error. We conclude that factor (d), the accused did

not waive

the issue for tac tical re asons, isnot ap plica ble. D efenda nt’s s trate gy was to put all the blame for the victim’s d eath on Ms . Ewing, and to disa ssociate himself from all
re sp on si bi li ty. This is specifically implied in the colloquy between the trial court, prosecutor and defense counsel concerning the

lesser-included offenses to be charged to the jury as outlined above. Therefore, we conclude it was not “plain error” for the trial court to not charg e facilitation of felony murder and aggra

vated child abuse.

Fi na ll y, even if t

he failu re to cha rge the lesser- included

offense s of fac ilitation w as “plai n error”, it was har

mless bey ond a rea sonable

doubt. A reviewing court can consider several factors in deter mining wh

ether e rror to charge a lesser- included

offense is harmle ss beyond a rea sonable doubt. State v. Allen , 69 S.W.3d 181, 191 (Tenn. 2002). Among these factors are the defendant’s theory of de

fense, the jury ’s verdict, and the evidence presented a t trial. Id.

Defendant’s defense was that Ms. Ewing committed the crime. T he State d id not pros ecute Defendant

upon the th

eory of Defe ndant’s c riminal r esponsibi lity

for the a cts of Ms. Ewing or any other pe rson. The

evidenc e prese

nted at tr ial gav e the jur

y the opportu

nity to accept and acc redit testimonythat Ms. Ewing’s pushing of the victim on Thursday night caused the

injury to the vic tim which resulted in his death. The jury obviously rejected this theory . Impor ta nt to this an aly sis, however , is th at there

is no evide

nce wha tsoever that Def endant f acilitat ed Ms. Ewing’s act. Tenness ee Code A

nnotated section 3 9-11-403 (a) def ines “fa cilitation ” as follo ws:

A person is criminally responsible f or the facilitation of a felony if, knowing that

another intends to commit a specific felony , butwithout t he intent required for criminal responsi bility under § 39-11-402(2), the person knowingly fur nishes substantial assistance in th e c om mi ss io n o f t he fe lo ny.
There is no proof

that Def endant kn ew Ms. Ew ing woul d push or o therwise abuse the victim-13-

on Thursday nig

ht. There is obviously, theref ore, no proof that Defendant knowingly furnished substantia l assistance to Ms. E

wing when she pu shed the v ictim.

In this particular issue the jury’ s verdict , standing alone, is neutral. Thus, we conclude any error was harmless bey

ond a reasonable doubt. Allen , 69 S.W.3d at 191.

III. Cros s-Exam

ination of Wit

ness
Defendant

next argues that the trial court erred i n ref using to a

llow Def endant tocrossexamine Ms. Ewing concerning a comment she ma de on direct examination about a polyg raph test. I n response

to the State ’s questio ns as to wh y sh e had not b een trut

hful initia lly wit h Detec tiv e Smith, Ms. Ew ing test

ified as f ollows:

PROSECUTOR: When y ou spoke to Detecti ve Smith, di d yo

u te ll him that Wednesday night, [De

fendant ] struck [the

victim] with

his fist? MS. EWING: No. PROSECUTOR: Okay . Why didn’t y ou tell him t

hat? MS. EWI NG: B eca use I didn’ t wan

t to hu rt [Defend ant]. PROSECUTOR: Did Detective Smith continue to question you? MS. EWI NG: Yes. PROSECUTOR: At some point, did you tell him that [Defendant] had struck [the victim] with his fis t? MS. EWI NG: Yes. PROSECUTOR: What made you tell him at t

hat point? MS. EWING: Well, I

realized how serio

us it was g etting a

nd he also

wanted me

to take a lie detector test. I told him okay , butonce, if I take that, it was g oing to have to come out anyways, so I wen t ahead and to ld hi m everyth ing.

After this state ment, th e State ch anged

its line of

questioni ng and d

id not explor

e Ms. Ewing’s comment further. At the conclusion of

Ms. Ewing’s testimony, the trial c ourt conducted
a jury-out hearin g durin g which Def endant requested permission to cross-examine Ms. Ewing about her willingness to take a poly graph test. The trial court considered Ms. E wing’ s statement gratuitous and irrelevant

and refused Defendant’s reque st. After the recess, the trial court instructed the jury that “any

comments that you

heard earlier about the term lie detector test, any decision to
or not t o take that, are not admissible in this court and you are to disreg ard those comments and consider it as though y ou had never known them.”

Defendant

argues that the trial court’s refusa l to permit Defenda nt to cros s-examine Ms. Ewing about her statement violated his constitutional rights to confrontation and to prese nt a defense. Ms. Ewing was the only person to see De

fendant strike the victim on Wednesd ay

night, and her credibility or la

ck thereof was crucial to Defendant’s defense. Defend ant arg ues that M s. Ewing’s statement implied to the jury that she was willing to take a polyg raph test and thus lent her testimony a credibility

Defendant contends was unwarrante d.-14-

As Defend ant submits , an accused has t he righ t to cross- ex amine wit

nesses in order to impeach their credibility. State v. Sayles , 49 S.W.3d 275, 279 (Tenn. 2001). Denial of an accused’ s right to effectively

cross-examine the witnesses presented by the State results in a “‘constitutional
error of the first magnitude’” and deprives the a ccused of a basic right essential to a fair trial. State
v. Hill , 598 S .W.2 d 815, 819 (T enn. C rim. A pp.19 80) (q uoti ng Davis v. Alaska , 415 U.S. 308, 318, 94 S. Ct. 1105, 1111, 39 L. Ed. 2d 341 (19 74)); see also Ch ambers v. Mississippi , 410 U.S. 284, 295-6, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297 (1973). The rig ht to confrontation, however, is not absolute, and “the propriety , scope, manner a nd cont rol of the

cross-e xamination o f witness es is subject to the discretion of the trial court.” State v. Dishman , 915 S.W.2d 458, 463 (Ten n. Crim. App. 1995). This Court will not interfere with that discretion absent a clear and plain a buse. See State v. Fowler , 213 Tenn. 239, 373 S.W.2d 460, 464 (1963).

It is well established in Tennessee that the results of a polyg

raph test are

not admissi

ble in evidence. Stat e v. Irick , 762 S.W.2d 1 21, 127 (T enn. 1988 ); State v. H art , 911 S.W.2d 371, 377 (Tenn. Crim. App. 1995). Corresponding ly, neither an offer to take a poly graph test nor the circumstances surrounding the taking of the test are a dmissible. State v. Hartman , 42 S.W.3d 44, 61-62 (Tenn. 2 001); State v. Adkins , 710 S.W.2d 525 , 528-9 (Tenn. Crim. App. 1985). Any potential error, however, resulting fr o m unsol icited te stimony that offe rs other wise inad missible testimonymay be cur

ed by a prope

r instruction to the jury to disreg ardthe comment. State v. West , 767 S.W.2d 387, 397 (Tenn. 1989); State v. Foster , 755 S.W.2d 846, 849 (Tenn. Crim. App. 1988).
Notwithstanding the trial court’s curative instruction, Defendant argue s that he should have been permitted to cross-examine Ms. Ewing about her willingness to take a polygra ph test under what has been termed the “good-for- the-goose, good-for-the -gander” rule. See Spadafina v. State, 77 S.W.3d 198 (Tenn. Crim. App. 2000). With its underpinnings derived “from the fundamental guarantee of f airness ,” the rule is invok ed in cri minal cas es in those situationswhere o ne party introduc es, or ‘opens the door’ to, an issueor subject, and the other pa rty is permitted “to question the witness to

clarify or explain

the matters brought out during, or to remove or c orrect unfavor able inferences left by, the pre

vious . . . examination.” State v. Land , 34 S.W.3d 516, 5 31 (Tenn . Crim. App. 2000) (citi ng Peopl e v. Manning , 182 Ill. 2d 193, 230 I ll. Dec. 933, 695 N.E.2d 423, 433 (1988) (citations omitted)). This is notthe situation presented here, however. Ms. Ewing’s remark about the polygr

aph test was an unsolicited and brief comment during a lengthy

examination. The Statedid not pur su e her co mment, an d the tria l court g ave a cu

rative in struction

to the jury

to disregard any ref erence to a poly graph test. Jurors are presumed to follow the trial court’s curative instructi ons. State v. R eid , 91 S.W.3d 247, 279 (Tenn. 2002). Mo reover , Defen dant exhau stively cross-examinedMs. Ewing about the numerous inconsistencies between her statement to the police and her tria

l testimony . Based

on the fa cts surro unding th is stateme nt, it does not appea

r that Ms. Ewing’s remark affirmatively affected the result of the trial, and any error that may have

occurred
as a result of Ms. Ewing’s statement was harmless. See Tenn. R. A pp. P. 36(b ); Tenn. R . Crim. P. 52(a).

IV. Prior Bad Acts-15-

Defendant

n ext argue s that the trial court erred in deny ing Defendant’s motion to redact portions of his statement to the police pursuant to Rule 404(b) of the Tennessee Rules of Evidenc e. In hisstatement, Defendant admitted that he had struck the victim in the chest with his fist a few months prior to the incident giving rise to the charge s against him. The trial court conducted a hearing outs ide th e prese nce of t he jur y to deter mine t he adm issi bili ty of thi s evid ence. A ltho ugh notentirely clea

r from the record, it ap pears th at t he trial court concluded that Defendant’s statemen ts concerning the prior incident constituted essentially background evi dence depicting how Defendant

disciplined and played with his children. As such, the trial court found that Rule 404(b)
was not applicable to t his evidence. The trial court denied Defenda nt’s motion to exclude the
e videnc e without stating the material issue to which the evidence was re lated or whether the probative value of the evidence outweig hed any da

nger of unfair prejudice.

In his first in

terview withDetective Smith, Defendant described how he punished the victim periodic ally

either by whipping him with a belt on his buttocks or smacking the child ’s hand w ith his own hand. Defendant also explained that when he and the victim pretended to box, Defendant would punc

h the chil d in the chest or arm, but never hard enoug h to hurthim. At the conclusion of this session, Detective Smith interviewed Ms. Ew in g and discovered that Defenda nt had previous ly

struck the victim in

the ches t with his fi st. Detective Smith asked Defendant about the incident at the beginning of

his second in

terview and Def endant r esponde d, “[t]hat w as a long while back though, I mean, that’s like whe n he first started hav ing thatlittle behavior problem, you know.”
Later, the following e xchange took place:
[Detective] Smith: . . . you know . . . y ou’ve already

told us that you

hit [the victim] in the chest. [Defendant]: Uh huh. [Detective] Smith: You didn’t tell us. Then you told us y ou hit him in the chest as a way of disciplining him, like, don’t do that again. See . . . [Defendant]: Uh huh. [Detective] Smith: . . . you know. And that . . . y ou didn’t t

ell me tha t, that y ou hit him in the chest because we asked about that and y ou and you . . . [Defendant]: I’ve . . . like I said my memory

. . .

. . . [Detective] Smith: . . And you told me that y ou had hit him in the chest before. [Defendant]: Once before. [Detecti ve] Smith: For

the same principle . . . if y ou dish it ou

t . . . am I wrong b y sa

yin g that? You can dish it out, then you ought to be able

to take it. You know, you just told me tha

t a few minutes ago. [Defenda nt]: Yeah. But not on

every occasio n I do

that. [Detective] Smith: Okay. All right

. So yo u hit him in the chest . . . and y ou faile d to tell me that before and I

had to . . . and it was br ought to your at tenti on by me ta lkin g to [M s. Ewi ng]

. . .-16-

[Defendant]: Uh huh. [Detective] Smith: . . . and then you said, y eah, I did that too. [Defenda nt]: Yes sir . I’m

not going

to lie about it.

Defendant

argues that the

statemen ts constitu te prope nsity evidenc e relating to Defendant’s character rather than a material issue a t trial. Defend ant also c ontends th at the da nger o f unfair prejudic e resulting from

the state ments far outweig hs any probativ e value o f the stat ements.

Alth ough no further illumination is offered in its brief, the State appeared to argue a t the trial court hearing that Defendant’s statements a bout the prior blow to the victim’s chest weresi mply general responses to Detective Smith’s questions concerning Defenda nt’s method of disciplining his son and constituted, presumably, c ontextual background evide nce. The State argued that the stateme nts did not contain evidence of a prior act subject to the protective procedures of Rul e 404(b) and were otherwise admissible.
A trial court’s decision to admit evidence based upon releva ncy under Rules 401 a

nd 402 will not be dist

urbed ab sent an a

buseof discretion. State v. Gilliland , 22 S.W.3d 266, 270 (Tenn. 2000). If th

e relev ancy

of the pr offere d evidenc e is subject to analysis under Rule 404(b), however,
our standard of review is based on an abuse of discreti on only

if the tri al court

substantia

lly complies with the rule’s procedural requirements. State v. DuBose , 953 S.W.2d 649, 652 (Tenn. 1997). If the trial court holds a hearing out of the presence of the jury

pursuant to Rule 404(b) but fails to state the material issue to which the evidence was re levant or find that the probative value of the evidence outweighs the dang er of unfai r prejudic e, the de

terminat ion as to the admissib ility of the evidence is made by the re viewing court based on the evidence pr esentedat the hearing. Id. at 653.

Rule 404(b) st

ates tha t “[e]vidence of oth

er crime s, wrong s, or act s is not admi ssible to prove the char

acter o f a pers on in orde

r to show a

ction in conformity with the cha

racter trait.” We note that by its explicit terms, Rule 404(b) applies to the general admissibil

ity o f other c

rimes or wrongs or acts to pr

ove a pe rson’s c haract

er in ord er to show action in conformity with a c haracter trait. In other words, the “a ct” does not have to be a “crime” or a “wrong ” for Rule

404(b) to ap pl y.

In his statement, Defendant admitted striking his son in the chest with his fist as a form of discipline some months before the current offense . When the St

ate see ks to introduce evidence of
a prior incidence of abuse in a child abuse ca se, the reviewing court must first determine whether the admiss ibility

of the evidence i s controlled by Rule 401 or Rule 404(b). DuBose , 953 S.W.2d at 653. If the defenda

nt is clearly identified a s the perpetrator of the earlier abuse, a s in this case, admissibility

of the evidence i s gover

ned by Rule 404(b). Id. at 654. It is our view, therefore, that Defendant’s statemen

ts constituted evidence of other acts subject to the procedural protections of Rule 404(b).

We must next deter

mine whet

her ther e was a material issue other than conduct conforming to a character trait to which the evidence was relevant, and, if so, whe ther the probative value of the-17-

evidence outweighs the danger of any unfair prejudice. Tenn. R. Evid. 404(b). Rule 401 states that “relevant evidence” includes that evidence “whic h has any tendency to make

the existence of any fact that is of consequence to thedetermin ation of th e action more pro bable or less prob able

than it would be without the evidence.” Tenn. R. E vid. 401. A

lthough t his thresholdof admissi

bility is relative ly le nient, our supreme court has cautioned that “genera l background

evidenc e used to relate the full story of the off

ense is rarely

probative of an actual material issue at trial.” Gilliland , 22 S.W.3d at 271; Tenn. R. Evid. 401, Advisory Commission Comments. Background evidence that includes proof of other crimes, wrongful c onduct or other acts, however, may be admiss ible if the contextua

l evidenc e is relevant to a materialissue at tr ial other than cri minal prop ensity

and its probativ e value i s not outwe ighed b y th

e dang er of unf

air prejudice. See Gilliland , 22 S.W.3d at 272; State v. Evangeline Combs and Joseph D. Combs , Nos. E2000-02801-CCA-R3-CD, E2000- 02800-CCA-R3-CD, 20 02 WL 31118329, *5 0 (Tenn. Crim. App., Knoxville, Sept 25, 2002), perm. to appeal denied

(Tenn. 2003).

Evidence of

other crimes, wrongs or acts may be admissible to show the defendant’s intent
or motive, the defendant’s identity, the absence of mistake or a ccident if that is the defendant’s defense, or the existence of a continuing plan, scheme or conspira cy of which the char ged of fense is a component. State v. Parton , 694 S .W.2d 299, 302 (Tenn. 1985) (citations omitted). To support a conviction for aggra

vated child abuse, the State must prove that the act of abuse was
c ommitted know ingly and not a ccidentally. When the pre sence or absence of a par ticular intent which is necessary

to prove the offense is contested, evidence of a prior act of a buse that tends to establish intentmay be admissible. Parton , 694 S.W.2d, at 303. In the event the defenda nt claims that th e injury was accidentally inflicted, inflicted by someone e lse, or the defendant lacked the intentto harm the

victim, proof that the defendant was responsible for prior a cts of abuse may

be probative of the defendant’s intent to harm the child or to show that the act of abuse was not accidental. DuBose , 953 S.W.2d, at 654.

In this instance, Defendant does not deny that he occ asionally pu nished the victim phy sically
or that he hit the victim in the chest on Wednesday nig ht as a form of puni shment. Although he disputes Ms. Ewing’s identification of the exact location of the blow, Defendant does not claim that he struck the victim a

ccident ally . The cr

ux of Defe

ndant’s d efense is that t he fa tal blow was delivered Thursda y ni ght whe

n Ms. Ewing

had sole custody of

the child and that his punishment of the victim on Wednesday did not cause se rious bodily injury

to the child. The crucial issue at trial, to be de te rm in ed by t he ju ry, was therefore as follows: Was Defendant’s a ct of hitting the child
on Wednesday nig

ht the fatal blow, or was Ms. Ewing’s act in pushing the victim against the couch
on Thursday nig

ht the fatal blow? Although the situation in DuBose concer ned one s pecific incidence of abuse as opposed to separa te acts, the DuBosecourt found that evidence of a prior act of abuse might be admissible if the issue at trial is who delivered the abuse. Dubose , 953 S.W.2d at 654.

There was no sc ientific evidenc e prese

nted in th e case sub judice as to the severity of Defendant’s prior incident of hitting the victim. However, the clear implication was that the prior blow to the chest was more seve re than the no rmal disc iplinary actions ta

ken by Defend ant to-18-

punish his son. Defendant admitted that he had the attitu de that if

the victim

“[could] dis h it

out, then [the victim] ought to be able to take it.” Ms. Ewing testified that the fatal blow by Defendant
was de li ve re d a ft er th e v ic ti m t hr ew a c an of fo od at Ms . E wi ng an d t ha t D ef en da nt wa s “ an gr y” when the in ciden t occurred. The evidence of the pr ior act was relevant as to the severity of Defendant’s blow to the victim on Wednesday night. The probative value of this evidence outweighed

the danger of any

unfair prejudice and was therefor e admissible. Defen dant is no t entitled to relief on this issue.
V. Expert

Testim ony
Defendant

argues that the trial court erred in allowing Dr. Eisenhour to give her opinion as to the timing of the victim’s death. Defendant contends that Dr. Eisenhou r was not q

ualified in the field of forensic pathology and submits that Dr. Eisenhour’s opinion was unreliable.

Dr. Eise nh our served as the victim’s attending phy sician when he was brought into the hospital on Friday mor

ning. Dr. Eisenhour testified that she was a 1996 g raduate of the Medical Coll ege of Virgini a and specia lized in emergency

medicine including pediatric and adult emerg ency care. In a ddition to being an assista nt profe ssor at Va

nderbilt University, Dr. Eisenhour attended private patients, spending about one-half of her time at the Va nderbilt Children’s Hospi ta l Emergency

Department and the other half at the Vanderbilt Adult Emergency Depar tment. At the time of the alleged offense, Dr. E isenhour worked two shifts a month at the Tenne ssee Chr istian Medical Center. Based o n her expe rience , the tria

l court declared

Dr. Eise nhour an expert in the field of emergency

medicine.

The testimony that Defenda ntspecifically c

hallenges concerns Dr. Eisenhour’s opinion that the injuries to the vict im’s pancrea s and smal l intestine occurr ed within t

wenty -four to

thirty -six hours of his dea

th. Defe ndant con tends tha t Dr. Eise nhour’s o pinion as t

o the timing of the victim’s injuries is outside her field of expertise.

It is well established that “questions concerning th e q ua li fi ca ti on s, ad mi ss ib il it y, r el ev an cy, and competency

of expert testimony are matter s left within the broad discretion of the trial court.” State v. Stevens , 78 S.W.3d 81 7, 832 (Te nn. 2002) ; State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993). A witness who is qua lified asan expert

in a part i cular f ield may te stify in the form of an opinion if the scien tifi c, tech nical or oth er spec iali zed k nowle dge of the wit ness will substantia

lly assist the trier of fact in understanding evidenc e or determining a fact at issue. Tenn. R. Evid. 702;
s ee McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257 (Tenn. 1997). In addition, the evidence offered through the expert must be relevant to a fact at issue in the ca se. Tenn. R. Evid. 401, 402. A trial court’s ruling will not be overturned on appeal unless the reviewing court finds that the trial court abused it s di sc re ti on in ad mi tt in g o r e xc lu di ng th e e xp er t t es ti mo ny. Stevens , 78 S.W.3d at 832.

Dr. Eisenhour testified that when the pancreas and duodenum are lacerated, the contents of the organ s begin

to ooze into the abdominal cavity causing the build-up of inflamation and irritation-19-

over time. Based on the victim’s phys ical sy mptoms at th

e time he w as admitte d to the hos pital, Dr. Eisenhou

r testified that the

lacera tions to his or ga ns we re in fl ic te d w it hi n t we nt y-fou r t o t hi rt ysix hours of his death. Dr. Ei senhou r based her conclusions on medical literature, her teaching experience, and her background in the emerg ency c are of children. Under cross-examination, Dr. Eisenhour

said that she based the time of the injury on her c linical findings as a treating phy sician and not the pathological examination of tissues performed during autopsy . For that reason, Dr. Eisenhour stated that she would defer to Dr. Gerber “for the autopsy results and the tissue timing there.” Dr. Eisenhour also admitted that the injury could have been inflictedwithin twelve hours of death depending on a number of fac tors, including the rate of internal bleeding a nd “oo zin g” from internal organs, and the status of the victim’s underly ing immune system.

We find no error in the admission of Dr. Eisenhou r’s te stimony. An emerg ency tre ating physician may testify

as to t he exa mination of the victim and the victim’s cause of death even though he or sheis not a forensic pathologist. State v. Duncan , 698 S.W.2d 63, 68 (Tenn. 1985). Dr. Eis enhourwas qualified as an expert in emergency medicine, including pediatric emerg ency care, and based her opinion as to the timing of the injuries on her clinical expertise. The fact that Dr. Eisenhour is not a forensic pat hologist goes to t he weig ht of her testimony

and not to its admissibility. Defendant is not entitled to relief on this issue.

VI. Sentencing

We note initially that at the time of the sentencing hearing, ther e were twenty -two statutory enhancement

fa cto rs listed i n Tennes see Code Annotate d section

40-35-11 4. Subsequ ently , in Public Acts 2002, ch. 849, § 2, the legislature added a twenty-third enha

ncement factor, but listed it as enhancement factor (1) and r enumbered previous factors (1) through (22) as (2) throug h (23). See Tenn. Code Ann. § 40-35-114 (2001 Supp.). In this opinion, we will ref er to the enhancement factors of Tennessee Code Annotated section 40-35-114 as they existed at the time of the sentencing hearin g.
At the conclusion of Defendant’s sentencing hearing for

the offense

of agg ravate d child abuse, the trial court found two en hancement factor s applica ble. Fir st, Defe

ndant abu sed his positio n of private trust as the victim’s father charg ed with the child’s care and custod y. Tenn

. Code Ann. § 40-35-114(15). Secondly , the trial court found that Defendant had treated the victim withexceptional cruelty base d on the totality of the events occ urring on Wednesday

and Thursday nights. Id. -114(5). Specifically , the trial court pointed to Defendant requiring his fou r-yea r-o ld
son to st and for over t hirty minutes with arms ou

tstretch ed and c ans tape d to his wri sts while Defendant

watched television. Defendant followed this punishment with a blow

to his son’ s chest or abdominal cavity and

then sent the child to bed. On

Thursda y ni ght, de spite rep eated r equests from Ms. Ewing

for Def endant to come home

and despite his knowledge that Ms. Ewing’s and the victim’s relationship was difficult, Defendant remained awa y from the home a

l l nigh t. The trial court, ho wever, concluded that it pla ced gr eater w eight on

factor 15, abuse

of a priv ate trust

.
As a mitigating factor, the tri al court found factor (11) applicable in that the offense was-20-

committed under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated Defendant’s criminal conduct. Tenn. Code Ann. § 40-35-113(11). Thetrial cou rt, however, assigned little weight to this factor. The trial court re jectedDefendant’s request that his cooperation with the po lice and his lack of substantial judgment because of his youth be considered in mitigation of his sentence, and Defendant does not cha llenge these findi n gs on appeal. Id. - 113(6) and (10). Defend ant also a rgued at the se ntencing hearing that his la ck of pri or convictions, and the fac t th at his son would not have died from his injuries had Ms. Ewing sought medical treatment when the victim

first man ifested p hys ical sy mptoms, we

re appr opriate mitigating factors to be consid

ered in determining the length of his sentence. Id. -113(13). The trial court declined to consider

these fa ctors not ing that , as a

general proposition, people are supposed to obey the law. Alth ough the trial court also noted that Ms. Ewing failed to notice the victim ’s obviousdistress, she did request Defendant to come home Thursday night, and Defendant refused to do so.

At the conclusion of the sentencing he ar in g, th e t ri al co ur t s en te nc ed De fe nd an t t o t we nt yfive years f

or his conviction for aggrava ted child abuse and ordered the sente nce to run concurrently withDefend ant’s lif

e sentence for f

elony murder. In hisappeal, Defend ant arg ues that th

e tr i al court improperl y applied factor (5) as an enhanceme nt factor and erred in not considering Defendant’s lack of prior convictions and his steady wor k history in mitigation of his sentence under factor (13).

When a defendant challenges the leng th of a sentence, this court conducts a de novo review of the record, with a

presumption that the trial court’s determinations are correct if the record shows that the trial judge c onsidere d the sent encing principle s and all releva

nt f acts and circumst ances. Tenn. Code Ann. § 40-35-4 01(d); State v. P ettus, 986 S.W.2d 540, 543 (Tenn. 1999). The burden is on the defendant to show that the sentence is improper. Tenn. Code Ann. §40-35-401(d), Sentencin g Com mission Comme nts. I n reviewing the l ength o f the sen tence, t his court must consider: (1) the evidence presented at the tri al and se

ntencing hearing ; (2) the p

re-sen tence r eport; (3) t he princi ples of sentencing and arg uments as to sentencing alternatives; (4) the nature and characteristics of the criminal con duc t; (5) any appr opriate enhancement and mitigating f actors; and (6) any state

ments made by Def

endant on his own behalf. Tenn. Code Ann. § 40-35-210(b).

Our review of the record reflects that the trial court follow ed the statutory sentencing procedureand gave due consideration to the sen te ncing principles and all relevant fac ts and circumst ances. Our review of the sentenceimposed by the trial court is there fore de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d); Pettus , 986 S.W.2d at 543.
Aggravated

child abu se of a child under the age of six is a Class A felony. Tenn. Code A nn. § 39-15-40 2(b). As a Range I off ender, D efenda

nt is subject

to a sentence of not less than fifteen yearsnor more than twenty -five ye ars. Tenn. Code Ann. § 40-35-112(a)(1). The pr esump tive sentence for a Class A felony is the midpoint of the range if there are no enhancement or mitig ating factor s. Tenn. Code Ann. § 40-35-210(c). If both enhancing and

mitigating factors are prese nt, the trial court must start at the m idpoint of t he range, enhance the sentence within the range as appropr iatefor the enha ncing f actors, and then reduce the sentence as a ppropriate for the mitigating-21-

factors. Tenn. Code Ann. § 40-35-210(e).

The weight placed on one factor by the trial court may va

ry from that assig

ned to another, and the legislature has specifically declined t o assign a n umerical value to mitigating and enhancement

factors. Tenn. Code Ann. § 40- 35- 210, Sente ncing Co mmission Comm ents; State
v. Spratt , 31 S.W.3d 587, 606 (Tenn. 2000). The weight accorded enha ncing and mitigating factors is within the trial court’s discretion so long as the recor d supports its f

indi ngs and the fi ndin gs comply with sentencing principles. State v. Ke lly , 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000).

Defendant

concedes that a d efendant’s ex ceptionally crue l treatment of a victim may be used
as an enhancement factor in determining the length of the defendant’s sentenc e for ag grava ted child abuse. See State

v. Poole , 945 S.W.2d 93, 98 (Tenn. 1997) (Proof that the victim suffered serious bodily injury does not preclude a finding that the defendant acted with exceptional cr u elty.). Defendant

argues, however, that his conduct on Wednesda

y ni ght did

not go bey ond the conduct necessary to support a conviction for aggrava ted child abuse. In other w ords, h is actions on the night in questio n did not de

monstrate “‘a cul pability distinct from and appreciably greater than that incident to’ the crime

of [aggravated child abuse.]” Poole , 945 S .W.2 d at 98 (citi ng State v. Jones , 883 S.W.2d 597, 601 (Tenn. 1994)). In support of his position, Defendant relies upon this Court’s decisions in State v. D anie l D. Naughton , No. 02C01-9612-CR-00449, 1998 WL 119509 (Tenn. Crim. App., Jackson, Mar. 18, 1998), perm. app. denied (Tenn. Dec. 7, 1998) and State v. Jeffrey Coffey , No. M2000-00770-CCA-R3-CD, 2001 WL 178465 (Tenn. Crim. App., Nashville, Feb. 23, 2001), perm. app. denied (Tenn. June 18, 2001).

In both case s, we found

consider ation of f actor ( 5) inappr

opriate in deter mining the lengt

h of the defe ndant’s s entence

primaril y because th

e proof t hat esta blished the defendant’s guil t of aggravated

child abuse wa s the same

proof used to sustain

a finding that factor (5) was applica ble. In Naughton , there was some evidence that the infant victim had suffe red prior injuries , but the Statedid not offer any

proof that connected the defend ant with any injury other than the current injury upon whic h his conviction for aggravate d child abuse was based. Naughton , 1998 WL 119509, at

*7. Moreove

r, in Naughton , the defendant sought immediate medical treatment. Id. Similarly, in Coffey , the tria l court re lied only on the current injuries suffered by the victim’s and the long-term effects of those injuries in deter mining th at facto

r (15) wa s applica

ble in enhancing the defendant’s sentence. Coffey , 2001 W L 178465, at *11. Without proof of long-term or continuous abuse or any

unusual type of abuse , the evidence used to suppo rt each defe ndant’s conviction for aggravate d child abuse was the same evidence used by the trial court to e stablish

the existence of exceptional cruelty. Id.

In the case

sub judice , on the other hand, the trial cou rt specif ically considered the nature of the punishment inflicted on the victim shortly before he was struck in the chest in finding that Defendant’s conduct evidenced exceptionalcruelty. We find that the evidence amply supports the trial court’s use of factor (5) to enhance Defendant’s sentence. See State v. Hodges , 7 S.W.3d 609 (Tenn. Crim. App. 1998) (Consideration of factor (5) permissible where immediatel y pr ior to receiving the fatal injuries, the two-yea r-old victim was made to stand in the corner for hours with-22-

her palms against the wall without the opportunity to sleep, sit down, or use the bathroom, and the defendant failed to seek medical at tention as the child’s health deteriorated after the inf liction of the fatal blo ws.); State v. Kerwin L. Walton , No. 02C01-9610-CR00321, 1997 WL 471169 (Tenn. Crim. App., Jackson, Aug. 19, 1997), no perm. to app. filed. (Use of “ex ce pt io na l c ru el ty” appropriate where the defenda nt failed to seek medical treatment for the victim.).
Defendant argues that the trial c ourt erred in not considering his lack of prior convictions i n mitigation o f the length of his sentence. I n addition, Defendant contends that the trial court should have also considered Defendant’semplo yment hi story alt hough Defend ant did not raise his employment

at the sentencing hearing. B oth a l ack of pr ior convi ctions an d a favor able employment

hist ory may be given consi derati on in determ inin g the length of a defen dant’s sentence. See State v. Gutierrez , 5 S.W.3d 641, 646-47 (Tenn. 1999). This Court has affirmed the use of a defendant’s employment history as a mitigating factor “when the defendant’s ‘performance ha s surpassed that

which is expected of

him.’” State v. Ke lly , 34 S.W.3d 471, 482 (Tenn. Crim. App. 2000) (citing State v. Randal A. Thies , No. 02C01-9708-CC-00299, 1998 WL 391813, at *7 (Tenn. Crim. App., Jackson, April 24, 1998)). According to the sentenci ng report, Defendant’s work history is far from stellar and shows a consistent patter n of alt ernating periods of work and unemployment

. Even if t he trial court had considered Defenda nt’s lack of prior convictions and employment

history as mitigating

factors, however, these co nsidera tions would

be entitle d to little weight. Based on the recor d of this case, a sentence reduction is not warra nted.

CONCLUSION

After a caref ul revie w of the r

ecord, w e affir

m the judgment of the

trial cou rt.

_____________________________________

THOMAS T. WOODALL , JUDGE-23-