FILED

December 11, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CC-00310

)

Appellee, ) 

) BLEDSOE COUNTY

)

V. ) 

) HON. J. CURTIS SMITH, JUDGE

TRACEY PENDERGRASS, )

)

Appellant. ) (AGGRAVATED CHILD ABUSE)

FOR THE APPELLANT: FOR THE APPELLEE:

L. THOMAS AUSTIN JOHN KNOX WALKUP

Attorney at Law Attorney General & Reporter

P.O. Box 666

Dunlap, TN 37327 SANDY R. COPOUS

Assistant Attorney General

425 Fifth Avenue North 

2nd Floor, Cordell Hull Building

Nashville, TN 37243

JAMES MICHAEL TAYLOR

District Attorney General

WILL DUNN 

Assistant District Attorney General

265 Third Avenue, Suite 300

Dayton, TN 37321

OPINION FILED ________________________

REMANDED

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Tracey Pendergrass, appeals as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. The Defendant was convicted

of aggravated child abuse following a jury trial in the Circuit Court of Bledsoe

County. She was sentenced to ten years as a Range I offender. The Defendant

argues the following five issues in her appeal: (1) Whether the trial court abused

its discretion when it allowed family members to testify as to statements made by

the minor child several hours after he was injured; (2) whether the trial court

abused its discretion when it allowed the attending nurse to testify as to

statements made by the child which identified the Defendant as the cause of the

injury; (3) whether the trial court erred when it neglected to include a lesser

included offense in its charge to the jury; (4) whether the trial court abused its

discretion when it refused to grant the Defendant’s motion for a mistrial after four

jurors were allowed to use the telephone after the case was submitted to the jury;

and (5) whether the trial court erred when it imposed a sentence of ten (10) years

upon the Defendant. For the reasons stated below, we remand this case to the

trial court for a hearing on the issue of jury separation. 

The victim in the case sub judice was the Defendant’s three year-old stepson. He was brought to the Bledsoe County General Hospital with severe burns

from his waist down to his toes. The burns were consistent with an “immersion

burn,” which is where a person is held down in a substance which results in a

burn. In the case sub judice, the child was burned by scalding hot water in a

bathtub. The Defendant contended that the child fell into the water on his own,
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while she was not in the room . There was proof at trial that the burn was not

consistent with this explanation as there was a definite line around the child’s

waist that was the demarcation for the burn. There were no splatter-type burns

as would be expected if he had fallen into the tub.

After being brought to the Bledsoe County General Hospital, the child was

then taken to T.C. Thompson Children’s Hospital in Chattanooga by helicopter.

He was treated for his burns at the hospital and had to be kept for twenty-one

(21) days. He was given whirlpool treatments after which the boy’s skin would

peel and bleed. His treatment was very painful. He has permanent scarring from

his waist down as a result of the burns. After being released from the hospital,

physical custody of the child was granted to his paternal grandparents. He was

undergoing therapy at the tim e of trial.

I.

The Defendant’s first issue is that the trial court abused its discretion when

it allowed the State’s witnesses to testify as to statements made by the minor

child several hours after he was injured. At trial, the victim’s grandmother, Carol

Pendergrass, testified that while they were at the hospital in Chattanooga several

people were in the victim’s room. She was standing next to her son, Bruce

Pendergrass, who is also the victim’s father. When he asked the victim how he

got in the bathtub, the victim replied, “Mommy put me in the water.” Brad

Pendergrass, the victim’s uncle also testified that he was in the hospital room.

He heard the victim reply to Bruce Pendergrass’s question as to how the accident

occurred. He also heard the victim respond that his mother had put him in the
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water. There was proof at trial that the victim called his step-m other, the

Defendant, “Mommy.”

The Defendant argues that the trial court erred in overruling his objections

to the admission of these statements. The trial court allowed these statements

into evidence under the excited utterance exception to the hearsay rule pursuant

to Rule 803(2) of the Tennessee Rules of Evidence. Rule 803(2) states that an

excited utterance is, “[a] statement relating to a startling event or condition made

while the declarant was under the stress of excitement caused by the event or

condition.” The Defendant argues that these statements should not have been

allowed into evidence because the statements were too remote in time from the

incident. Several hours had passed since the child was initially burned. He had

been taken to the Bledsoe County General Hospital and treated and then airlifted

to Chattanooga for treatment. The Defendant also argues that the child was

given pain medication, Tylenol with codeine and three (3) milligrams of morphine,

and this medication would preclude the statements from being made

spontaneously or when the child was in an excited state.

The decision to apply the exception is left to the discretion of the trial judge.

State v. Payton, 782 S.W.2d 490, 494 (Tenn. Crim. App. 1989). “[T]he primary

consideration [is] whether the comments are, because of the circumstances,

reliable.” Payton, 782 S.W.2d at 494 (citing McCormick’s Law of Evidence, § 297

at 854-55; Shelton v. State, 460 S.W.2d 869 (Tenn. Crim. App. 1970)). Our

supreme court has addressed what is necessary for a statement to meet the

excited utterance exception. In State v. Smith, 857 S.W .2d 1 (Tenn.), cert.

denied, 510 U.S. 996 (1993), the Tennessee Supreme Court stated:
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The ultimate test is spontaneity and logical relation to the main

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

while the parties are still laboring under the excitement and strain of

the circumstances and at a time so near it as to preclude the idea of

deliberation and fabrication. See Garrision v. State, 163 Tenn. 108,

116, 40 S.W .2d 1009, 1011 (1931); Paine, Tennessee Law of

Evidence, (1974), Part F. Excited utterance, § 69.

Smith, 857 S.W.2d at 9. Also, a statement, even if it is elicited by another, is

admissible as an excited utterance declaration. Smith, 857 S.W.2d at 9.

In his ruling in response to the Defendant’s objection to the entry of these

statements as excited utterances, the trial court stated:

I believe in the situation before the Court now there has been some

several hours between the event the child was treated at the

Bledsoe County Nursing Home [sic] and then transported by

helicopter [to] T.C. Thompson’s Children’s Hospital in Chattanooga.

So we have a several hours time lapse, but the circumstances which

should be considered are the nature and the seriousness of the

event or condition, the appearance of the declarant, the behavior of

the declarant, the outlook of the declarant, and other circumstances.

What we have here is a three year old child adm ittedly severely

burned over the lower portion of the child’s body. We would

obviously have pain associated with what’s been said to be first and

second degree burns over the lower portion of the body. We have

an attempted catheterization apparently unsuccessfulat the Bledsoe

County Hospital. We have an IV started at the Bledsoe County

Hospital. We have a child, a young child, wrapped in bandages.

We have a young child in a strange and probably frightening

environment at the Bledsoe County ER room, emergency room . We

have a child transported by helicopter to another hospital, which

would be a new series of strangers. I think under these

circumstances that this child still was under the stress of excitement.

I think the offered evidence is an excited utterance under the

hearsay exception and I’m going to allow Mrs. Pendergrass to testify

in the matter as offered.

The trial court also stated that this ruling applied to Brad Pendergrass, the

victim’s uncle.
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We do not find that the trial court abused its discretion. The child would

obviously have been under a great deal of stress from the time he was burned

in the bathtub throughout his treatment by many strangers at two different

hospitals. There is also little danger of fabrication by a child so young in so much

pain and distress. We do not find that the fact the child was given pain

medication precludes the trauma and distress of the event for the child. We find

that the ruling of the trial court is correct under the circumstances in the case sub

judice.

Even if error, we feel it would be harmless beyond a reasonable doubt. We

note from the record that several witnesses, who were called to testify by the

Defendant, testified that the child stated that he had fallen into the bathtub, and

not that his “Mommy” had put him into the tub. In addition, there was

overwhelming proof that the child had been forcibly placed into the scalding hot

water, and that Defendant was the only adult in the house at the time of the

incident. 

Therefore, this issue is without merit.

II.

In Defendant’s second issue, she contends that the trial court erred by

allowing testimony of the flight nurse regarding statements made by the victim
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that, “My Mommy did it,” when inquiry was made by the nurse as to, “Who did this

to you?” The trial court admitted the testimony under Rule 803(2), excited

utterance, and Rule 803(4), statements for purposes of medical diagnosis and

treatment. The life flight nurse, Kathleen Cornett, testified at trial that before they

lifted off she repeatedly asked the child what had happened to him. She finally

asked him who had done that to him, and he stated that his mommy had done it.

She testified that the child had been given Tylenol with codeine about an hour

prior to their arrival, but it had no affect on the child. He was unresponsive to

their questions. The victim was given three (3) milligrams of morphine, and

subsequently became responsive.

The trial court stated these reasons for allowing Ms. Cornett’s testimony

of the child’s statements into evidence: 

This statement of the child was actually made prior in time to

the statement that was made in the presence of the grandmother

later on at T.C. Thompson’s Hospital. I think that the statement of

the child is proper under the excited utterances exception for the

same reasons that I’ve already outlined as relates to, I believe Mrs.

Carol Pendergrass’ testimony. I think under the three criteria set out

in the Rucker case that it is also an exception to the hearsay rule

based on the medical diagnosis and treatm ent in that the statement

was made for the purpose of medical diagnosis and treatm ent, that’s

the first criteria.

Number two, the medical history of the declarant past or

present symptoms, pain sensation and the general character of the

cause or source thereof, and it was reasonably pertinent to

diagnosis and treatment. The State’s arguing that as part of the

diagnosis and treatment essentially the identification of child abuse

is part of the diagnosis and treatment, and that is in fact what this

witness has testified to.

Using the law set out above, we conclude that the trial court did not abuse

its discretion in allowing Ms. Cornett to testify to the child’s statement under the
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excited utterance exception to the hearsay rule. The trial court’s response to the

Defendant’s objection is correct concerning the excited utterance exception.

We now turn to whether the statement should have been allowed into

evidence under the exception for statements made for medical diagnosis and

treatment. The Defendant argues that the trial court abused its discretion by

allowing this statement in under the medical diagnosis and treatment exception

because of the child’s young age, the persistent questioning by Ms. Cornett and

the influence of narcotics. The proper issue is whether the statement m eets the

criteria set out in Rule 803(4), “[s]tatements made for purposes of medical

diagnosis and treatment describing medical history; past or present symptoms,

pain, or sensations; or the inception or general character of the cause or external

source thereof insofar as reasonably pertinent to diagnosis and treatment.”

Tenn. R. Evid. 803(4).

Trial courts have broad discretion in determining the admissibility of

evidence, and their rulings will not be reversed absent an abuse of discretion.

State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989). In State v.

Rucker, 847 S.W.2d 512 (Tenn. Crim. App. 1992), this court stated, “[t]his Court

is of the opinion that ‘[s]tatements made by a child abuse victim to a physician

during an examination that the abuser is a member of the victim’s immediate

household are reasonably pertinent to treatment.’” Rucker, 847 S.W.2d at 519-20

(quoting United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985)). It is

thought that the name or identity of a perpetrator is pertinent in the diagnosis and

treatment of a child abuse victim because “‘there is a direct correlation between
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identity and recurrence’” which often reveals a pattern of abuse. Rucker, 847

S.W.2d at 519 (quoting State v. Maldonado, 536 A.2d 600, 603 (Conn. 1988)).

Our supreme court recently addressed the issue of child abuse cases and

the admissibility of statements made by children which are allowed into evidence

through Tennessee Rules of Evidence Rule 803(4) in State v. McLeod, 937

S.W.2d 867 (Tenn. 1996). In McLeod our supreme court stated:

In making the determination under Rule 803(4), trial courts must

consider criteria such as the circumstances surrounding the making

of the statem ent, which would include the timing of the statement

and its contents. If the trial court finds that the statement was

inappropriately influenced by another, the court should exclude it as

not having been made for the purpose of diagnosis and treatment.

The inquiry, however, will vary depending on the facts of each case.

To illustrate: (1) the trial court may consider whether the child’s

statement was in response to suggestive or leading questions;

and/or (2) the trial court may consider any other factor that may

affect trustworthiness, such as a bitter custody battle or family feud.

McLeod, 937 S.W.2d at 871.

In the case sub judice, the trial court held a jury out hearing on the

admissibility of the statement. The trial judge decided to allow the statement

because, “the identification of child abuse is part of the diagnosis and treatment,

and that is in fact what this witness has testified to.” We do not find that the trial

judge abused his discretion. He had a jury out hearing, and his reasoning is

based on the same principles on which Rucker and McLeod are based.

This statement was admissible under both the excited utterance and

medical diagnosis and treatment exceptions to the hearsay rule. See State v.

Maurice Gordon, ___ S.W.2d ___ (Tenn. Sept. 29, 1997) (three-year-old sex
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abuse victim’s complaint of pain and statement of who caused the pain were

admissible as both excited utterance and statement for the purpose of medical

diagnosis and treatment). 

Therefore, this issue has no merit.

III.

The Defendant’s next issue is whether the trial court erred when it

neglected to include the lesser included offense of child abuse in its charge to the

jury. The jury was given an instruction for the charge of aggravated child abuse.

The Defendant argues that the crime of child abuse is a lesser included offense

of aggravated child abuse and should have been charged in this case. 

We agree that child abuse is a lesser included offense of aggravated child

abuse. The Defendant relies upon State v. Howard, 926 S.W.2d 579 (Tenn.

Crim. App. 1996), in support of her argument that the trial court committed

reversible error by failing to charge the jury on the lesser included offense of child

abuse. However, in Howard, this court recognized the established law that when

the proof shows that either the indicted offense occurred or no offense occurred,

then the trial court is not required to charge the lesser included offense. Howard,

926 S.W.2d at 586.

At the time of the offense, aggravated child abuse was defined in

Tennessee Code Annotated section 39-15-402 as follows: “(a) A person is guilty

of the offense of aggravated child abuse who commits the offense of child abuse
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as defined in § 39-15-401 and: (1) the act of abuse results in serious bodily injury

to the child;. . . .”

Also at the time of the offense, Tennessee Code Annotated section 39-15-

401 defines child abuse as, “(a) Any person who knowingly, other than by

accidental means, treats a child under eighteen (18) years of age in such a

manner as to inflict injury or neglects such a child so as to adversely affect the

child’s health and welfare is guilty of a Class A misdemeanor.”

The indictment in Defendant’s case charged that she did “. . .unlawfully,

knowingly, and other than by accidental means, inflict injury upon [victim], a child

under eighteen (18) years of age, such act resulting in serious bodily injury, in

violation of T.C.A. § 39-15-402. . . .” 

It is clear from both the allegations in the indictment, and the proof at trial,

that what made this particular offense aggravated child abuse, was the serious

bodily injury inflicted upon the victim. 

Tennessee Code Annotated section 39-11-106(a)(33) defines serious

bodily injury as follows:
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(33) “Serious bodily injury” means bodily injury which involves:

(A) A substantial risk of death;

(B) Protracted unconsciousness; 

(C) Extreme physical pain;

(D) Protracted or obvious disfigurement; or

(E) Protracted loss or substantial impairment

of a function of a bodily member, organ,

or mental faculty;

The Defendant’s theory at trial, including her testimony, was that the

injuries suffered by the victim were as a result of the victim accidentally falling into

the scalding water. As observed in the statute defining aggravated child abuse,

which incorporates the definition of child abuse, an accidental injury is a defense

to the criminal charge. There was uncontradicted and uncontested proof at trial

that the victim had a protracted and obvious disfigurement as a result of scarring

from his waist down, that he suffered extreme physical pain, and that the injury

posed a substantial risk of death. While Defendant offered proof to contradict

evidence of how well the victim had recovered, this proof did not contradict the

proof of serious bodily injury.

The Defendant argues that proof of bruises on the victim’s chest, back,

face, and whip marks across his buttocks required the trial court to charge the

lesser included offense of child abuse. She bases this argument on the theory

that the jury could believe the burns were caused by accidental means, but could

still convict the Defendant on the lesser included offense of child abuse based

upon the proof of the bruises.
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However, our review of the record requires us to reject Defendant’s

argument. Dr. William Belknap, a pediatrician who examined the victim at the

Chattanooga hospital on the night of the incident testified that bruising on the

child was consistent with the restraining type of hold that the medical personnel

thought had occurred during the victim’s immers ion into the scalding water.

Specifically, the doctor testified:

An immersion injury appearance taken together with bruising and

also in addition noting that the knees were flexed, the legs were

flexed at the knees indicated to us that an individually clearly had

held the child somewhere about the trunk and actually had dipped

the child in the scalding water to achieve this kind of an injury and

we felt most compelled to make that conclusion based on the

observation of the bruising.

Also, Dr. Belknap noted that the bruising about the victim’s face was most

consistent with a restraining type of hold necessary to immerse someone into

scalding water. The sm aller bruises were approxim ately the size of fingertips. 

While it is not clear from the record how the whip marks across the victim’s

buttocks would have been caused by the immersion of the victim into the bathtub,

we note there was no proof in the record by circumstantial or direct evidence that

Defendant had caused the whip mark bruising on the victim’s buttocks. The only

proof in the record regarding the cause of the whip mark bruising on the buttocks,

including the Defendant’s testimony, was that her husband had whipped the child

with a belt a day or two before the child was burned in the water. The Defendant

also offered proof that the other bruising on the child was as a result of the child

accidentally falling in the bathroom on an earlier occasion and from the child

possibly being struck by another child at an overnight church related “lock-in.”
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The Defendant concluded her direct testimony by stating the entire incident was

an accident, and she would do nothing to hurt any of her children. 

In her argument on this issue, the Defendant wants to focus on some

injuries, the bruises, and separate them for consideration from the burn injuries.

The State’s proof was that all the bruises, except for the whip marks on the

buttocks, were consistent with a restraining hold by the perpetrator who

immersed the child into the hot water. There is no proof that the Defendant

herself inflicted the whip marks on the buttocks area. The Defendant’s proof was

that bruising on the buttocks was caused by the Defendant’s husband, and other

bruises were not caused by the Defendant, but by accidental means. 

In the case sub judice under the proof presented at trial, the Defendant

could be guilty of the greater offense of aggravated child abuse, or no offense at

all. In such situations, it is not error for the trial court to refuse to charge the

lesser offense. Whitwell v. State, 520 S.W .2d 338, 344 (Tenn. 1975); State v.

Atkins, 681 S.W.2d 571, 577 (Tenn. Crim. App. 1984), cert. denied, 470 U.S.

1028 (1985). 

Accordingly, this issue is without merit.

IV.
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The Defendant’s fourth issue is whether the trial court abused its discretion

when it refused to grant Defendant’s motion for a mistrial after four jurors were

allowed to use the telephone during the course of the jury’s deliberations. The

jury began deliberations at approximately 3:30 p.m. During the supper break, at

around 7:50 p.m., a few of the jurors wanted to make calls to make arrangements

for staying over another night. The jury was sequestered.

In Gonzales v. State, 593 S.W.2d 288 (Tenn. 1980), our supreme court

stated:

In Hines v. State, 27 Tenn. 597 (1848), the “settled law”

applicable to jury separations was stated as follows:

“The principles laid down in these cases are, 1st, that

the fact of separation having been established by the

prisoner, the possibility that the juror has been

tampered with, and has received other impressions

than those derived from the testimony in court, exists,

and prima facie the verdict is vicious; but, 2d, this

separation may be explained by the prosecution,

showing that the juror had no communication with other

persons, or that such communication was upon

subjects foreign to the trial, and that, in fact, no

impressions other than those drawn from the

testimony, were made upon his mind. But, 3d, in the

absence of such explanation, the mere fact of

separation is sufficient ground for a new trial.” 27

Tenn. at 602.

Gonzales, 593 S.W .2d at 291. This passage of Gonzales was also cited with

approval in State v. Furlough, 797 S.W.2d 631, 645 (Tenn. Crim. App. 1990).

After the State meets its affirmative burden that no prejudice occurred, a

harmless error analysis is permitted. Furlough, 797 S.W .2d at 645; Gonzales,

593 S.W.2d at 293.
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The Defendant orally moved for a mistrial immediately after the jury

returned with the verdict, at about 8:10 p.m., and a hearing on the matter was

held immediately. The officers who had taken the jurors to make their phone

calls testified. Deputy Sheriff Mel Matthews testified that the jurors wanted to

make phone calls to make arrangements for the night. He was in the room while

they were calling, but did not hear any portions of the conversations. One of the

court officers, Tammy Turner, also testified at the hearing. The phone the jurors

used was at her desk. On direct examination by the Defendant, she stated that

two women and two men made the calls. During cross-examination by the State,

she testified that she heard the whole conversations, and “Everyone said I need

you to bring clothes, put ‘em in my car, I don’t know when I’ll be home, bye.” On

redirect, the officer stated that she did not know what was being said on the other

end of the telephone conversations. Sheila Johnson, another court officer, stated

that what the previous two witnesses had testified to was the same as her

recollection of the events. On cross-examination by the State, she stated that the

conversations were very short, and she did not see the jurors arguing with

anyone. The trial court ruled, “I do not find that there’s been anything improper.

I don’t find any prejudice to the defendant as far as the activities of the jury. I’ll

overrule the motion.”

In making its ruling, the trial court used an erroneous test to consider the

Defendant’s motion for mistrial. As stated above in Gonzales, once there has

been a jury separation during sequestration, and in this case during the jury’s

deliberations, the possibility that the juror has been tampered with and received

impressions other than those derived from the testimony exists and the verdict

is prima facie “vicious.” However, the prosecution should be allowed the
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opportunity to show that all of the communications to each juror were upon

subjects not involving the trial and that no impressions other than those drawn

from the testimony were made upon the juror’s mind. If there is an absence of

such explanation, the mere fact of the separation is sufficient grounds for granting

the motion for a new trial. Gonzales, 593 S.W.2d at 291 (quoting Hines v. State,

27 Tenn. 597, 602 (1848)). 

In this case the jury separation occurred only a few moments before the

jury returned with its verdict. After the jury reported its verdict, the trial court

dismissed the jury. Defendant’s counsel promptly made the motion for mistrial,

indicating that he had brought the possibility of jury separation to the attention of

the court a few moments before and had intended to have a hearing on the

record prior to the jury returning its verdict. 

The trial court, as stated above, issued its ruling after the Defendant had

put on her proof showing a separation of the jury, but based its ruling upon an

improper standard. The State is entitled to offer whatever proof which may be

available to show that any communications made to the jurors during the phone

conversations were upon matters not pertaining to the trial, and that the jurors did

not obtain any impressions other than those drawn from the testimony. Even if

we suspect that those people who spoke with the jurors did not speak of matters

pertaining to the trial, or make any impressions upon the jurors which affected the

verdict, we are unable to make such an assumption under the mandates of

Gonzales. 
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Therefore, it is necessary for the judgment to be vacated and this matter

remanded to the trial court solely for an evidentiary hearing and decision by the

trial court on the issue of jury separation in a manner consistent with this opinion.

If the trial court finds that all of the jurors’ communications were on subjects

foreign or upon subjects not pertaining to the trial and that no impressions were

made upon the jurors in reaching the verdict other than the proof heard at trial,

and after making this determination that no prejudice occurred to the Defendant,

the judgment shall be reinstated. Absent such a finding by the trial court, the trial

court shall grant the Defendant a new trial. The Defendant can appeal from an

adverse decision on this issue. 

 

V.

The Defendant’s final issue is whether the trial court erred by imposing a

sentence of ten (10) years. When an accused challenges the length, range, or

the manner of service of a sentence, this court has a duty to conduct a de novo

review of the sentence with a presumption that the determinations made by the

trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presum ption is

"conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances."

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

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

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct
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involved; (e) any statutory mitigating or enhancem ent factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

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

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

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

A.

The Defendant first argues that the trial court erred when it used essential

elements of the crime as enhancing factors. The Defendant argues that

enhancement factor (4), the victim was particularly vulnerable because of age or

physical or mental disability, factor (5), the defendant treated or allowed the victim

to be treated with exceptional cruelty, and factor (6), personal injuries inflicted

upon the victim were particularly great, are all inherent in the offense, and cannot

be used to enhance the Defendant’s sentence. Tenn. Code Ann. § 40-35-114

(4), (5) & (6). 

The statute under which the Defendant was convicted provides that, “[a]

person is guilty of the offense of aggravated child abuse who commits the offense

of child abuse as defined in § 39-15-401 and :(1) The act of abuse results in
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serious bodily injury to the child.” Tenn. Code Ann. § 39-15-402. Tennessee

Code Annotated section 39-15-401 states that child abuse is “[a]ny person who

knowingly, other than by accidental means, treats a child under eighteen (18)

years of age in such a manner as to inflict injury or neglects such a child so as

to adversely affect the child’s health and welfare.”

We first address enhancement factor (4), the victim was particularly

vulnerable because of age or physical or mental disability. Our supreme court

has stated that this enhancement factor, “relate[s] more to the natural physical

and mental limitations of the victim than merely to the victim’s age.” State v.

Adams, 864 S.W.2d 31, 35 (Tenn. 1993). Therefore, factor (4) is not inherent in

an offense based on the age of a victim. In State v. Andrew Johnson, III, No.

02C01-9304-CR-00050, Shelby County (Tenn. Crim. App, Jackson, filed April,

20, 1994), perm. to appeal denied, (Tenn. 1994), the defendant was convicted

of the aggravated rape of his four-year-old daughter. This court held that factor

(4) applied because the four-year-old was home alone and in the sole care of the

defendant when the crime occurred. The court went on to say, “[i]t would be

ludicrous to say that she was capable of resisting the assault of her adult father.

There was no one in the house or otherwise available to help her.” Johnson, slip.

op. at 4. The victim did testify in Johnson, but this court stated that it was with

extreme difficulty.

The Supreme Court of Tennessee recently addressed this issue again in

State v. Poole, 945 S.W.2d 93 (Tenn 1997). The court reiterated the requirement

that the State has the burden of proving a victim’s lim itations causing the victim

to be particularly vulnerable and cited Adams in support thereof. The supreme
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court also held the trial court must make factual findings whether the evidence

with regard to the victim’s age demonstrated an ability to resist the crime,

summ on help, or testify at a later date. Poole, 945 S.W .2d at 96. 

In Defendant’s case, the trial court noted that the victim was three (3) years

old at the time of the offense and discussed case law in Tennessee which speaks

in terms of youthful age precluding a victim from resisting or calling for help or

being capable of testifying. The trial court specifically referred to Adams among

other cases in determ ining that this enhancement factor applied. The record

reflects that the victim was left alone with the Defendant, his step-mother, and

that the offense occurred during a time period when the victim’s father was away

from the home at work. There was no one present to help the victim and the

victim was unable to resist the abuse inflicted upon him by the Defendant. We

find that this enhancement factor was appropriately applied by the trial court and

that the trial court made sufficient findings in the record to support application of

this enhancement factor. 

Regarding factor (5), that the Defendant treated or allowed the victim to be

treated with exceptional cruelty during the commission of the offense, the trial

court relied upon the fact that the victim was forcibly held in extremely hot water

to support application of this enhancem ent factor. On appeal, the State relies

upon evidence of bruises on the victim’s face and bottom, and well as the burn

injuries in support of application of this enhancement factor. However, when the

very facts which caused the crime to be aggravated under the law are also used

to support the finding of “exceptional cruelty,” our court has held that the

enhancement factor could not be applied. Manning v. State, 883 S.W.2d 635,
-22-

639 (Tenn. Crim. App. 1994). Therefore, we agree with Defendant that

enhancement factor (5) is not applicable. Likewise, proof of serious bodily injury

also constitutes proof of particularly great injury and enhancement factor (6)

should not have been applied. State v. Jones, 883 S.W.2d 597, 602 (Tenn.

1994); State v. Crowe, 914 S.W .2d 933, 939-40 (Tenn. Crim. App. 1995). 

The State argues that application of enhancement factor (10), that the

Defendant had no hesitation about committing a crime when the risk to human

life was high, is applicable in this case. We respectfully disagree. There was

proof in the record from a physician who treated the child that extensive burns on

the victim’s body were potentially fatal. However, “a substantial risk of death” is

one of the definitions of “serious bodily injury.” Tenn. Code Ann. § 39-11-

106(a)(33). A fair review of the record clearly shows that proof of “a substantial

risk of death” was one of the factors relied upon by the State in proving “serious

bodily injury” to sustain a conviction of aggravated child abuse. We therefore

conclude that factor (10) is an essential element of the offense as charged in the

indictment and should not be included as an enhancement factor. We find that

only enhancem ent factor (4) applies to the Defendant’s sentence. 

B.

Defendant argues that the trial court erred by failing to apply the following

mitigating factors from Tennessee Code Annotated section 40-35-113:

(3) Substantial grounds exist tending to excuse or justify

the defendant’s criminal conduct, though failing to

establish a defense. 
-23-

(8) The defendant was suffering from a mental or physical

condition that significantly reduced his culpability for

the offense; however, the voluntary use of intoxicants

does not fall within the purview of this factor;

(11) The defendant, although guilty of the crime, committed

the offense under such unusual circumstances that it is

unlikely that a sustained intent to violate the law

motivated his conduct;

(12) The defendant acted under duress or under the

domination of another person, even though the duress

or the domination of another person is not sufficient to

constitute a defense to the crime;

(13) Any other factor consistent with the purposes of this

chapter. 

[Defendant urges her lack of a prior criminal record,

attendance at church, and other “good character

evidence” submitted at the sentencing hearing would

make this mitigating factor applicable.]

We agree with the State and the trial court that factors (3), (8), (11), and

(12) do not apply in this case. Actually, the record is devoid of any proof

whatsoever to support any of these mitigating factors. The trial court heard the

testimony of all of the witnesses and found that the only “catch-all” mitigating

factor under (13) which might be applicable would be the fact that the Defendant

does not have a prior criminal record. However, in this particular case, the trial

court held that this factor should be given little weight in sentencing Defendant,

and we agree.

The trial court specifically found that any one of the enhancement factors

it believed were applicable would support a sentence above the minimum

presumptive sentence of eight (8) years, in light of the fact that the one mitigating

factor which was applicable should be given very little weight. 
-24-

Having found that one (1) enhancement factor is applicable, and that one

(1) mitigating factor is applicable, but that the mitigating factor should be given

very little weight, and being in agreement with the trial court that any one of the

enhancement factors found by that court should be afforded great weight in this

particular case, we conclude that the record supports the sentence imposed by

the trial court. Therefore, this issue is without merit.

CONCLUSION

We vacate the judgment and remand this case to the trial court solely for

an evidentiary hearing and decision by the trial court on the issue of jury

separation in accordance with this opinion. All other issues raised by the

Defendant are overruled. 

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JERRY L. SMITH, Judge