### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON August 8, 2000, Sess

ion STATE OF TEN

NESSEE v. BEN

JAMIN BROWN Direct Appeal from the Criminal Court for Shelby County No. 96-13456, 57, Carolyn Wade Blackett, Judge

No. W1999-00327-CCA-R3-CD - Decided October 24, 2000
Benjamin Brown appeals f

rom his convictions

o f one co unt of felony murder committed in the perpetrationof aggravated child abuse and one count of ag gravated child abuse. An effective sente nce of life imprisonment was imposed. On direct appeal, he contends (1) the e vidence i s insufficient

to support his convictions; (2) the lesser offe nse of criminally

negligent homic

ide should have been instructed; (3) testimony regarding prior bad acts was erroneously admitted; and (4) his convictions violate the constitutional protections against do uble j eopardy. Following review, the appellant’s conviction for ag gravated child

abuse is vac ated and dismissed as violative of the protections against double jeopardy. We affirm the appellant’s conviction for felony murder finding the evidence suffic

ient to support his

conviction. Because the appellant’s motion for new trial as t

o felony murder was untimely filed, the re maining issues related to this conviction are waived. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court is affirme

d in part; vacated an

d dismissed in part.
D AVID G. H AYES , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., J. and J OHN E VERETT W ILLI AMS , J., joined. Coleman W. Garrett, Memphis, Tennessee, for the appellant, Benjamin Brown. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solici tor Gene ral, Kim R. Helper, Assistant Attorney General, William L

. Gibbons, District Attorney General, and Jennifer Nichols, Assistant District Attorney General, for the appellee, State of Tennessee

.

OPINION The appellant, Benjamin Brown, was convicted by a ShelbyCounty jury of one count of felony murder committed in the perpetration of aggravated child abuse and one count of aggravated child abuse. He was subsequently sentenced to life imprisonment for felony murder and twenty-five-2-

yearsfor aggravated

child abuse. The sentences were ordered to run concurrently . He now appeals his convictions alle

ging: I. The evidence is insufficient to support his conviction for felony murde r; II

. The trial court erred by failing to instruct the jury as to the lesser of

fense o f criminally negligent homicide;
III. The trial court erred

by permitting

prior bad acts of

the appellant to

be introduced absent a jury out hearing; and
IV. The appellant's convictions for both felony murder committed in the perpetration of aggravat

ed child abuse an

d aggravate

d child abuse

violate the princ

iples against dou ble jeo pard y. After a review of the r

ecord before u

s, we conclude tha

t constitutional pro

tections agains

t double jeopardy p

rohibit the multiple convictions and punishments for fe lony murder

committed in the perpetration of aggravated child abuse and agg ravated child abuse. As such, the indictment for aggravated

chi ld a bus e is dis mis sed , th e res ult ing c onv ict ion is r ever sed , an d th e acc omp anyi n g sentence is vacated. Find

ing no further e

rror on behalf

of the trial court requiring reversal, we affirm the appellant’s conviction for felony murder.
Background The app ellant and Tammy Huff met and star

ted dating in 1992 . A few months afte r the y began dating, the couple announced they were g etting married. Ms. Huff was pregnant at the time. The couple married on April 26, 1994, at the Hernando, Mis sissippi, home of Tammy's father, James Riley Banks. On the evening of his daughter's marriage to the a ppellant, Mr. Banks received a telephone call from an anonymous female, later identified as Adrena McCoy, infor

ming him that the appellant was the father of her children. Mr. Banks disclosed this telephone con versati on to his daughter and informed his daughter that her new husband

was not welcome in his home. Tammy left her new husband less than twenty-fo ur hours after they were married, subsequently divorcing the appellant. On September 16, 1994, Ms. Huff gave birth to a daughter, Ashley Denise. The two resided withMs. Huff's parents at their Hernando residence. In the summer of 1996, Tammy Huff and the appellant reconciled and were remarried on July 12, 1996. I n August, the appellant, Huff, and their daughter moved to an apartment in Memphis. Soon af ter moving into the apartment, Tammy began “potty training” Ashley. Duri

ng th e time, Tammy

recalled that the appellant “would fuss at [Ashley] and tell her that if she didn ’t ge t potty-trained

he was going to give her

a whipping. ” Although Tammy never saw her husband spank1 The stairs outs ide the apartment

were made of metal an d exposed aggregate concre te surface. -3- Ash ley, she did hear him thr eaten to “whip” h

er for not usi

ng the “pot ty.” Tammy admitted that when she confronted the a ppellant about his

threats, he stated that he was not “going to whip her.” She fur the r adm itt ed t hat the app ell ant wou ld c has tiz e her for phys ica lly r eprimanding the child.

Ms. Huff testified tha

t she was unhappy

in her marriag

e to the appellant

. On September 12, she decided to lea

ve him. She telephoned her parents and told her father that she wanted to come home. Mr. Banks informed T amm y t hat "if she was g oing to come [home] th

at she was going

to stay." After Tammy made this telephone call, the appellant confronted her with his disbelief that she was actually going to leave him. She explained that the appellant became angry and “he like started choking me.” The appella nt relinquished his

hold a nd again began asking Tammy why she was leaving him. She responded, “Because you’re mean and I don’t trust you.” “[The appellant’s] eyes like turned red, and . . . he started coming after me. . . .” He placed a knife to her throat and warned her, “If you leave

me, you know, I can, y

ou know, I can kill you. I don’t ha ve anything to lose.” He then forced Tammy to telephone her parents and tell them that she was not g oing home.
Ms. Huff testified

that the following morning she took Ashley to day care. The appellant got o ff work at 12:30 and he picked Ashley up from the day care center. Tammy did no t see Ashle

y again until 6:30 that evening when the appellant brought Ashley by Tammy’s pla

ce of employ

ment. Tammy was eating her dinner at

this time. Ashley sat o

n Tammy’s la

p and ate some chic

ken nuggets and a brownie. Ashley appeared healthy at this time. Shortly thereafter, the appellant and Ashley left and Tammy returned to work.
At approximately 8:00 p.m., Rita Griffin, a neighbor of the Browns, returned to her re sidence at the Woodlake apartment complex in Memphis. As she reached the top of the stairs leading to her apartment,she saw the appellant coming out of his apartment. Theappellant was carrying his twoyear-old daughter, Ashley. The child “was lay ing on his shoulder . . . it seemed like she was asleep.” Ms. Griffin entered h er apartme nt and made a telephone call. Within two minutes, she heard “beating” at her door and

asked who was there. The appellant identified himself and exclaimed that “[his] baby fell

down the stairs.” Ms. Grif fin let the “very

upset” appellant

inside her apart

ment. The appellant told

her that he had sat the child on the steps while he returned to his apartment to get his keys. When he came back outside, he saw that Ashley was on the ground; “she had fallen down the steps.” 1 Ms. Griffin then telephoned for medical assistance. Meanwhile, the appellant sat down in a chair and

bega n ro cki ng th e chi ld, sayi ng “A shl ey, Ashley, wake up.” Ms. Griffin observed that the child was gasping for breat h and was trying to open her ey es. The appellant was shaking the child in an attempt to revive her. The 911 operator obviously overheard the comments and advised Ms. Griffin to tell the appellant not to shake the child. The appellant then attempted to givethe child CPR. During this time, M s. Griffin was unab

le to observe whe

ther the child had

any bruises , cuts or abrasions on her legs, arms or face.2 Dr. Schmidt explain ed that the degr

ee of brain

injury is measu

red by the “glasgow coma score.” The score ranges from 3 to 15. A normal pe rson will have a score of 15

. When Ashley arrived at the ICU, “her

score was four. . . . and three is ba sically no brain function.” -4- At 8:30 p.m., Tammy received a telephone call from the appellant. He inform ed her tha t Ashley had fallen down th

e stairs. Tammy

could hear an ambulan ce in the background. The appellant drove to Tam my’s pl ace of emplo yment a nd the two pr oceed ed to Le Bonheur Hospital. On the way to the hospital, the app ell ant tol d Ta mmy t hat he fo rgot his keys and he sat Ashley on the steps. When he c ame back outside , Ashley was at the bottom of the steps. She stated that the appellant,despite emphasizing that Ashley’s condition was serious, was not cry ing. The appellant attempted to console his wife, telling her that Ashley was going to be f ine.
Dr. Jeffrey Eug

ene Schmidt,a pediatric intensive care physician, testified that he was on duty when twenty-four month old Ashley Brown was broug

ht to the hospital.

Ashley was t

ransferred to ICU from the emergency room at approximately 2:00 a.m. The reports from the ER indicated that the patient had “severe neurologic injury.” Upon admission to I CU, it was determined that Ashley had“severe neurologic devastation, severe brain injury.” 2 “From direct observation, there was no evidence of any

external trauma. No scratches, bruises, bumps, no swelling, no cuts.” A CAT scan didnot show any signs of severe bl eeding. However, the attending physicians observe d retinal hemorrhages that were classified as “fairly severe.” Dr . Schmidt testified that based o n the presence/absence

of injuries, he determined tha t the injury was what is known as “accelerationdeceleration syndrome.” Specifically , he explained: The brain sits i

n a fl uid filled sac called the dura. And especially in little children and babies, the ability for t he brain to move wi

thinthat sac is far mor

e than adults. In fact, in adults it

doesn’t mo ve much at al l. In babies i t can move en ough that the connections between the brain and the dura, the tiny blood vessels can get sheared. The other – the nerve fibers, too, and the nerve cells can get sheared if t here’ s a sudden impact or accelerat ion- deceleration f

orce. And then tha

t’s also the same e xplan ation for the tiny vessels in the back of the ey e. Because of a sudden acceleration-deceleration

force, these tiny vessels get rupt ured a nd cause the bleeding, the hemorrhages in the back of the ey e. Dr. Schmidt advised that “acceleration-deceleration syndrome” was commonly recognized as “shakenbaby syndrome.” The only other explanations consistent with these injuries would be from “major trauma like high-speed motor vehicle accidents, falls from extreme heights,” but notfalling down a fl ight of s tai rs. The “sh aki ng” i nvo lve d in “sh aken bab y s yndrome” would have to be “extrem e, severe, out of control,” “shaking back and forth violently,” “ it requires the head

to b e snapped back and forth.”
Dr. Schmidt testified th

a t the appellant had informed him that Ashley had fallen down the stairs outside their apa

rtment. Dr. Schmidt

was suspicious of th

is statement beca

use it did no t comport with the degree

of injury re

ceived by th

e child and the inju

ries tothe child

were inconsistent-5-

withan accidental injury. He explained that if a two-y ear-old child fell down thirteen or fourteen raised concrete and metal stairs, he would expect to find:

someexternal evidence of either cuts, abrasions, bruises. If there wa s n eurologic inj ury, then I would expect that . . . her head would have hadto have hit something andthere would be either br uising, bl eeding, cuts, abrasions, something that wo

uld show that her head struck . . . the step or . . . some evidence of external trauma.
No evidence of external trauma was present on the victim’s person. Dr. Schmidt opined that “[t]he only way that a

child could have brain

damage as seve

re as [the victim], . .

. is the shaking tha

t would cause the severe damage to the brain cells.” In support of his conclusion , he sta ted that the brain injury was inconsistent with the mechanism of a fall down the stairs and there was the presence of re tinal hemorrhages which you would definitely not see from a fall down the stairs. The victi m died on September 15, at 11:55 p.m. Her death was due to both heart and lung failure.
Dr. Schmidt testified that his concern over the appellant’s explanation of the victim’s injuries led him to speak with Ta mmy Huff’s m

other and sist

er. Both women expressed concern for Tammy’s safety. When confronted by the e vide nce from the autopsy of bruising to the victim’s buttocks and lower back, Dr. Schmidt refuse

d to change his

op inion, concluding

that a fall would nothave pr oduced a “pattern” bruise. Instead, Dr. Schmidt concluded that a pattern bruise to the victim’s buttocks would confirm his conclusion of abuse.
Dr. Wendy Gunther, an assistant medical examiner for Shelby Cou nty, performed the autops y on the vi ctim. Her ex amination revealed “some bruising on [the victim’s] left arm and on her buttocks,” however, she observed “no abra sions, no lacerations.” Dr. Gunther concluded that the bruising on the butt

ock s was “consistent with somebody having struck her repeatedly . . . .” Dr. Gunther explained that this br

uising was diffic

ult to see with the naked eye for several reasons. “One is that bruises in children with dark brown skin are often hard to see, and the other reasons were because of livermotis. When the dead personis lying f ace up, the blood c ollects in their ba

ck, so everything

looks kind of dark red.” The bruise measured an area of 5 X 5 inches. This bruising was determined to be “fairly fresh. It ha d not been a long time before she was injured or died that

this happened.” Dr. Gunther admit ted that the bruise

s could have been caused “by a very unusual fall.” Based upon the post-mortem examination, Dr. Gunther concluded:
I think Ashley

Brown died of sha

ken baby sy

ndrome. When y

ou take a child

. . . and you shake them really, really, rea lly hard, you can scramble the ne urons. The axons break apart and the neurons die. . . . There is no other injury which can explain why she went into a coma and never came out . . . [w]hy all the neurons in h er brain eit her d ied or w ere s tar tin g to d ie o the r th an s hak en b aby.
In refuting the appellant’s explanation that the child fell down the stairs, Dr. Gunther continued:3 The appe llant explained that he was not sure whether o ne child was actually his. -6- If this child fell down a flight of concrete steps, she didn’t sus tai n an y inj ury. There’s no skull fracture, there’s nomajor ble eding ne xtto the brain, there’s no fractures of her arms or legs or her collarbones or ribs. There’s no bruising to show where she might have hit the steps. The only bruising is that bruise on her arm and the bruising on her buttocks. I don’t understand how s he could have fallen down a flight of 16 steps without sustaining

any injury

. . . . [T]he only

thing she can ha

ve died of is shaken baby syndrome, for she has no injury to her brain except

the injury of s haking.
In his defense, the appellant presented the testimony of Adrena McCoy. McCoy testified that the appellant is the father of four of her five children. She stated that she and the appellant shared a home together in Greenville, Mississippi, from May 1994 to May

1996. They also lived together prior to this period. While the couple lived together, the appellant was responsible for the care of the children while McCoy was at work. McC oy a lso testified that she never saw the appellant physically

reprimand any of the children and he cautioned her neve r to “h it them.” In essence, McCoy was of the opinion that

the appellant was an excellent father and that he could never have harmed a child. Arusher Sturdevant, the appellant’s cousin, testified that, on September 13, 1996, he was at his brother’s house between 2:00 a nd 3:00 p.m. playing dominoes. The appellant arrived at the residence. He had Ashley withhim. Atfirst, the appellant tended to Ashley, but when a neighbor’s child came over and sta

rted playin

g with Ashley, the appellant joined the domino game. Two hours l ater the appellant and

Ashley left

. Roosevelt Robinson

, another of the a

ppellant’s cousin

s, confirmed that the appellant had been at his house playing dominoes on September 13. The thirty-two-

year-old appellant testified that he has ten or eleven children. 3 He stated that he met Tammy Huff at Delta State University in Novembe r 1993. They married in April 1994 and divorcedsoon thereafter. Tammy was pregnant at the time of their marriage. The appellant did not see Tammy again until May 1996 when he saw her at his mother’s hou

se in Greenville,

Mississippi. This was the first time that the appel lant saw hi s daughter, Ashley. During this meeting, the appellant and Ta mmy d ecided to “try to give it another try ” even though the appellant had been living wit h Ad rena McC oy. In early August, the appe

llant, Tammy

and Ashley m

oved to Memphis. The appellant recalled

that, on the evenin

g of September 1 2, Tammy was disgruntled with him because he was late picking her up from work and accused him of being with another woman. An argument ensue

d and Tammy th

reatened to lea

ve him. Tammy telephoned her mother and tol

d her she was coming home. Shethen proceeded to the door when the app

ellant grabbed

her and told her to sit down. Tammy sat down and the couple talked. “Every thing was normal after that.” The following day the

couple took Ashley to daycare and then each

left for their respective jobs. At lunchtime, Tammy delivered the car to the appellant since he got off work before she did. The app ellant got off wo

rk at 2:30 p.m. and w

ent home. The appe

llant changed c

lothes and th

e n4 The judgment of convicti on for the off

ense of aggravat

ed child abuse was

entered on May 26, 1999; thus, the June 14, 1 999, mo tion for new trial w as timely filed. See gene rally Tenn. R. Crim. P. 33(b). -7- picked Ashley up

at daycare. He then went to h is 4 :30 app oin tme nt w ith his ins uran ce co mpa ny. After the meeting, the app

ellant and Ashley

went to the home of

the appellant’s c

ousin. Shortly

after 5:00 p.m., he took Ashley to McDonald’s whe

re she got some

chicken nuggets. Between 5:30 and 6:00 p.m., h e drove to Tammy’s place of employ ment. Tammy came out to the car and the y discussed repairing their automobile. She stayed in the car for about thirty minutes, during which time she played with Ashley and fed her something to eat. The appellant then went to his cousin’s house where hevisited for a while and then returned home. Following this testimony, the appellant reiterated his version of the circumstances leading to the death of Ashley Denise Brown. Based upon this proof, the jury found the appellant guilty of f elony murd er committed in perpetration of aggravated child abuse and agg ravated child abuse.
Analysis
As a preliminary matter, the State contends that the majority of the issues, with respect to the appellant’s co nvic tion for felony murder, raised by the appellant on appeal have been waived due to the appellant’s f

ailure to timely

file his motion for new tria l. 4 See Tenn. R. App. P. 3(e

); State v. Nesbit , 978 S.W.2d 872, 880 (Tenn. 1998), cert. denied , 526 U.S. 1052, 119 S.Ct. 1359 (1999); Statev. Johnson , 980 S.W.2d 414, 418 (Tenn. Crim. App. 1998). Accordingly, the State argues that review should only extend to the review of the sufficiency of the

evidence and se

ntencing, as we

ll as plain errors affecting the appellant’s substantial rights. See Tenn. R. App. P. 3(e); Tenn. R. App. P. 13(b); Tenn. R. Crim. P. 52(b). The judgment

of conviction for the offense of felony murder was entere d by the trial court on April 30, 1999, andthe motion for new trial was not filed until June 14, 1999. Rule 33(b), Tenn. R. Crim. P., provides that the written motion for new trial shall be made “within thirty days of the date the order of sentence is entered.” The thirty-day period may not

be enlarged

. See Tenn. R. Crim. P. 45(b). The thirt

y-day provision is

jurisdictional,

and an untimely motion is a nullity. See Johnson , 980 S.W.2d at 418 (cit ing State v. Martin , 940 S.W.2d 567, 569 (Tenn. 1997)). This court does not have the authority to w aive the untimely filing of a motion for new trial. See Tenn. R. App. P. 4(a). We are, therefore, without jurisdiction to review the assigned issues stemming from the appellant’s felony

murder conviction with the exception of a sufficiency review of the evidenc e. See Johnson , 980 S.W.2d at 418 (citation omitted).
I. Double Jeopardy The appellant contends that his convictions for bot h felo ny murder committed in the perpetrationof aggravated child abuse a n d aggravate

d child abuse viola

te the principles a

gainst-8-

double jeopardy. Sp ecifically, he argues tha t the circumstanc

es leading to both

convictions arose out of a single incident and from a single course of conduct, the shaking of Ashley Brown. The general rule

is that a defendant can constitutionally be tried and convicted for first degree felony murder and the un

derlying f

elony in a sin

gle trial without

violatin g the constitutional prohibitions against double jeopardy. State v. Blackburn , 694 S.W.2d 934, 936-937 (Tenn. 1985). Indeed, there

is no double jeopardy violation requiring dismissal or merger where “the two statutes are directed to separate evils.” Blackburn , 694 S.W.2d at 936 (cit ing Albernaz v. United States , 450 U.S. 333, 343, 101 S.Ct.1137 (1981)); see also State v. Denton , 938 S.W.2d 373, 377 n.11 (Tenn. 1996); State v. Lewis , 919 S.W.2d 62, 69 (Tenn. Crim. App. 1995). Th e key issue i

s “whether the legislature intended cumulative punishment.” Blackburn , 694 S.W.2d at 936. With consideration o

f these principle

s, a panel of this c

ourt recently

dis tinguishe d convictions for felony murder and aggra vated child abuse from the gen eral rule permitting convictions for both felony murder and the underlying felony. See State v. Bobby G. Godsey , No. E1997-00207-CCA-R3-DD (Tenn. Crim. App. at Knoxville, Sept. 18, 2000). Judge Wade, writing on behalf of this court, recognized that “[t]he evil addressed by the legislat ion at is sue is the aggravated

abuse or neglect of a child.” State v. Bobby G. Godsey , No. E1997-00207-CCA-R3-DD. Add iti ona lly, “[t]he legislative history of the . . . fir st degree murder statute suggests that the objective was to increase the degree of

the penalty, not to implement a n additional pe nalty.” Id

. This court, in a we

ll-reasoned and

thorough analy

sis, continued to hol

d that [a]ggravated

child abuse or ne

glect is unique a

mong the felonie

s capable of supporting a felony murder conviction because it maybe, as indicated in [ State v. JennieBain Ducker , No. M1997-00074-SC-R11-CD (Tenn. Jul. 14, 2000], a lesser includedoffense of homic ide. Because th

e leg islature did not clearly intend a cumulative punishment for ag gravated child abuse where there is a conviction and punishment for first degree felony murder arising

out of the same ag

gravated child abuse, the defendant’s conviction for the former must be set aside.
Statev. Bobby G. Godsey, No. E1997-00207-CCA-R3-DD. Indeed, the court’s reasoning in State v. Bobby G. Godsey

relies upon principles of law relating to multiple punishments arising from the same physical conduct within a single criminal episode. The issue of

multiple punishments arising from a single criminal episode was addressed by our supreme court

in State v. Phillips , 924 S.W.2d 662 (Tenn. 1996). To determine whether offenses are multiplicitous, several general principles must be considered:
1. A single offen se m ay not be divided into se parate parts; g

enerally, a single wrongful act may not furnish the basis for more than one criminal prosec ution;
2. If each off

ense charged requ

ires proof of a f

act not required

in proving the other, the offenses are not multiplicitous; and-9-

3. Where time

and location separate and distinguish the co

mmission of the offe

nses, the offenses ca

nnot be said to have

arisen out of a sin

gle wrongful a

ct. Id

. at 665. These fac

tors must be considered in

determining whe

ther the multiple

convictions violat

e dou ble jeo pard y. In the present case, the appellant was co nvicted of felony murder committed in the perpetrationof aggravated child abuse and the underlying offense of aggr avated child abuse. The record indicates that the same proof established both offenses; i.e. , the same physical acts supporting the appellant’s conviction for aggravated child abuse are the same acts supporting his conviction for felony murder. Moreover, neither offense required proof of a fact not required in proving the other. Under principles of double jeopardy relating to multiple convictions, on ly one offense was committed and only one conviction may stand. Accor dingly, the appellant’s conviction for aggravated child abuse is vacated.
II. Sufficiency of the Evidence
In his first issue, the appellant asserts that there is no competent proof in the record to support bothhis dual conviction

s for felony

murder committed i

n the perpetratio

n of aggrava

ted child abuse andaggravated

child abuse. While h

e notes that ci rcumstantial evid ence alone is suf

ficient to support a conviction, he a

rgues that the c

ircums tantial evide nce in this case is not so strong and cogent as to exclude ever y oth er re aso nab le h ypot hes is e xce pt h is gu ilt . Sp eci fic all y, he contends that the jury’s co n clusion that the appellant shook the baby to death “defies logic, reason and common experience.” In support of his contentions, he avers that he has no history of child neglect or abuse. Inde

ed, the proof indic

ates that not only

was he not abusive, but that he was ove rly protective of his children. Furthermore, he contends that the proof is consistent with his explanation as to the cause of the victim’s injuries. Specifically, he submits that “it is possible, and more than lik ely, that the child

fell . . . [f]rom the top of stairwell floor directly to the bottom, landing on her buttocks on the bottom step.” This is supported by the bruisi ng to the victim’s b

uttocks. Add iti ona lly, he admits that “whe n he saw his child

lying at the

bottom . . . of the con

crete stairwel

l.

. . . [h]e rushed to her aid andshook her in an atte mpt to revive her. ” He admits that “[h ]e obviously could have shaken the b

aby violentl

y enough to

cause additional

injuries.” Howev

er, he asserts

that injuring the child under the se circumstances w

ould not constitute

aggravated

child abuse. The St

ate responds (1) the appellan t’s theory th

at the victim fell di

rectly to the

bottom of the stairw

ell is a physical impossibility; (2) ce

rtain fac ts in the appellant’s explanation of the incident were inconsistent; and (

3) no prior history

of abuse is requir

ed before convi

ction of these cr

imes.
TennesseeRules of Appellate Procedure 13(e) prescribes that “[f] indings of guilt in criminal actions whether by

the trial court or

jury shall be set aside if the evidence is insufficient to support the finding by the trier of fact bey ond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct andcircumstantial evidence. See State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).-10-

In addition, because conviction by a trier of fact removes the presumption of innocence and imposes a presumption of

guilt, a convicted criminaldefendant bears the burden of showing that the evidence was insufficient. See State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). When a criminal offense is estab lished exclusively

by circumst

antial evidence

, the facts and circumstances “must be so strong and cogent as to

exclude every

other reasonab

le hypothesis save the guilt of the defendant.” State v. Crawford , 470 S.W.2d 61 0 (Ten n. 1971); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995). In other word s, “[a] web of guilt

must be woven around the defendant from which he cannot escape and

from which facts

and circumstanc

es the jury c

ould draw no other reasonable inferenc e save the guilt o f the defendant b

eyond a re

asonable doubt. Crawford , 470 S.W.2d at 613; State v. McAfee , 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).
In its review of the e

vidence, an appe

llate court must af

ford the State the

“strongest leg

itimate view of the evidence as well as all re asonable and legitimate inferences that may be drawn th er efrom.” State v. Tuggle , 639 S.W. 2d 913, 914 (Tenn. 1982 ) (citing State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn. 1978)). The court may not “reweigh or r eevaluate the evidence” i n th e record below. Evans , 838 S.W.2d at 191; see also Sta te v. M ann , 959 S.W.2d 503, 518 (Tenn. 1997) (quoting Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958)(weight and inf erences fr om circumstantial evidence are jury questions)). Likew ise, should the reviewing court find particular conflicts in the trial testimony, the co urt must resolve them in favor of the jury verdict or the trial court judgment. Tuggle , 639 S.W.2d at 914. The appellant stands convicted of felony murder committed in the perpetration of aggra vated child abuse. At the

time of the victim’s

death, the crime

was defined as
A killing of another committed in the perpet rat ion of o r at tem pt t o pe rpet rat e any . . . aggravated child abuse. . . . Tenn. Code Ann. § 39-13-202(a)(2) (1996 Supp.). Aggravated child abuse occur s when a person

. . . knowingly

, oth er than by accidental means, treats a child under eightee n (18) years of age in such a manner as to inflict injury . . . [and] . . .[t]he act of abuse results in serious bodily injury to the child. See Tenn. Code Ann. §§ 39-15-401(a) (1996 Supp.); Tenn. Code Ann. § 39-15-402(a)(1) (1996 Supp.). In the present

case, the medica

l testimony wa

s undisputed that the

child died as a re

sult of “shakenbaby syndrome.” The appe llant was the solecaretaker of the child during the time period when the fatal injuries were inflicted. The pr

oof also establish

ed that the victim

had bruising on her buttocks consisten t with a spa nking or fir m beating. Ag ain, the jury is the sole arbiter of the credibility

of the witnesses a

nd conflicts in the

testimony. Th

us, we do not dis turb the ju ry’s findings-11-

as to these issues. Moreover, contrary to the appellant’s assertion, the lack of a prior history

of abuse does not preclude conviction for this offense. See, e.g. , State v. Antonio Demon te Lyons , No. M1999-002490CCA0R3 CD (Tenn. Crim. Ap p. at Nashville, Feb. 25, 2000) (requirement of prolonged

abuse for conviction of aggravated child abuse is not the law). Thus, giving de ference to the jury’s res

olutio n of the issues of credibility, we conclude that the evidence presented, e ven though circumstantial, is sufficient to exclude every other reasonable hy pothesis save the guilt of the appellant. Furthermore, the evidence presented belies the appellant’s theory of the c ase. The victi m exhibited no scrapes or abrasions which would have been consi stent with a fall down fourteen exposed aggregate concrete stairs. Nor did the victim sustain any exterior injuries,

including skull fractures, to her head. For th

e fall to have occurred

as the appellant s

uggests, the tw

o-year-o ld victim hadto have propelled herself over the railing. Obviously, the jury rejected this theory. This issue is without merit.

Conclusion
Af terr eview of the record and the applicable law, we conclude that the appellant’s convictions for aggravated child a buse and felony murder committed in the perpetration of aggravated

child abuse

violate constitutional protections against double jeopardy. The judgment of conviction and sentence upo n the charge of

aggravate

d c hild abuse is, therefore, vacated and dismissed. With regard to his conviction for felony murder, the appellant has not shown his entitlement

to appellate relief. Accordingly, the judgment of c onviction entered

by the trial court

for this offense is affirmed.

___________________________________ DAVID G. HAYES, JUDGE