# FILED December 11, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1997
STATE OF TENNESSEE, ) C.C.A.NO. 03C01-9608-CC-00310 ) Appellee, ) ) BLEDSOE COUNTY ) V. ) ) HON.J. CU RTIS S MITH, JUDGE TRACEY PENDERGRASS, ) ) Appe llant. ) (AGGRAVATED CHILD A BUSE)

FOR THE APPELLANT : FOR THE APPELLEE : L. THO MAS AU STIN 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, Cordel l Hull Bui lding Nashvill e, TN 37243 JAMES MI CHAEL T

AYLOR Distri ct Attor ney General WILL DUNN Assistant Distri ct Attor ney General 265 Third Avenue, Sui te 300 Dayton, TN 37321

OPINION FILED ________________________ REMANDED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Tracey Pendergrass, appeal s as of ri ght pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant was convicted of aggravated chi ld abus e followi ng a jury t rial i n the Circui t Court of Bledsoe County. She was sentenced to ten years as a Range I offender. The Defendant argues the foll owing fiv e issues in her

appeal: (1)Whether the tri al court ab used its discreti on when it al lowed family members to testi fy as to st atements made by the minor child several hours after he wa s injured; (2) whethe r the trial court abused its discretion when it all owed th e attend ing nurse to testify as to statem ents made by the chil d which ident ified t he Defendant as the cause of t he injury; (3) whether

the tri al court er red when it negl ected to i nclude a lesser included offens e in its ch arge to the ju ry; (4) whet her the trial c ourt abu sed its discreti on when it ref used to grant the Defendant’ s motion for a mistri al after four jurors were allowed to use the telephon e after the c ase wa s subm itted to the jury; and (5) whether

the trial court erred when it imposed a se ntence of ten (1 0) years upon the Defendant. For the reasons stated bel ow, we remand this case to the trial court for a hearing on the iss ue of jury se paration
.
The victim in the case sub judice was the Defendant’ s three year-old stepson. He wa s broug ht to the Bled soe Co unty General Hospitalwith sever e burns from his waistdown to his toes. The burns were cons istent with an “i mmersion bu rn,” which is wher

e a person is hel d down in a substance which res ults i n a burn. In the case sub judice , the ch ild was burne d by sc ald ing hot w ater in a bathtub. The Defendant contended that the c hild fel l into the water on hi s own,-3-

while she was not in the room
. There was proof at trialthat the bu rn was not consistent

with thi s explanati on as there was a d efinite l ine aro und th e child ’s waist thatwas the demarcati on for theburn. There were n o splatt er-type burns as would be expected if he had fallen i nto the tub.

After being broug ht to the Bleds oe Co unty G enera l Hosp ital, the child was then taken to T.C. Thompson Children’ s Hospital i n Chattanooga by helicopter. He was treated f

or his burns

at the h osp ital andhad to be kept f or twenty- one (21) days. He was giv en whirlpooltreatments af terwhich the b oy’s sk in wou ld peel and blee d. His trea tment w as very pa inful. He has permanent scarring f rom his waistdown a s a result o f the burn s. After b eing re lease d from the ho spital, physical custody of

the ch ild was grante d to his paternal gr andparents. He was unde rgoing therap y at the tim e of trial.

I.

The Defe ndan t’s first

issue is t hat the trial court abused i ts discr etion when it allowed t he State’ s wi tnesses to testify as to statements made by the minor child severa l hours after he was in jured. A t trial, the vict im’s grandmother , Carol Pendergrass, testified that while they were at the hospi tal in Chattanooga sever al peop le were in the victim’s roo m. She was stan ding ne xt to her son, Bruce Pendergrass, who is also the victi m’s father. When he asked the victi m how he got in the bat htub, the v ictim repl ie d, “Mommy put me in the water.” Brad Pendergrass, the vict im’s uncle al so testi fied that he was in thehospita l room. He heard the victim re ply to B ruce P ende rgrass ’s question as to how the accident occurred. He al so h eard th e vi cti m res pond that hi s mo t her had put hi m in the-4-

w ater. There was pro of at trial that the victim called his step-m other, th e Defen dant, “Mo mm y.”

The Defendant argues t hat the trial c ourt er red in overrul ing his obj ections to the admission of t hese statements. The trial court allow ed thes e statem ents into evidenc e unde r the excited utteranc e excep tion to the hearsay rule pursuant to Rule 803(2) of

the Tennessee Rules of Evidenc e. Rule 803(2) states that an excited utterance is, “[a] statement relati ng to a start ling event or conditi on made while the declar

ant was und er the st ress of excitement caused by t he event or condition .” The Defendant argues that these statements shoul d not have been allowed into evidence because t he statements weretoo remote in time from the incident. Several hours had passed si nce the chil d was init ially burned. He had been taken to th e Bleds oe Co unty General Hospital and treated andthen airl ifted to Chattan ooga fo r treatm ent. The Defendant also ar gues that t he child was given pain medicati on, Tylenol with codei ne and three (3)milli grams of morphine, and th i s medication woul d preclude t he statements f rom being made spontaneously or when the chi ld was in an excited state.

The decision to apply t he exception i s left to the dis cretion of the tri al judge. State v. Payton , 782 S.W.2d 490, 494 (Ten n. Crim. App . 1989). “[T]he primary considerati on [is] whethe r the com ments are, bec ause o f t he circ umstances, reliable.” Payton , 782 S.W.2d at 494 (ci ting McCormick’s Law of Evidence , § 297 at 854-55 ; Shelton v. State , 460 S. W.2d 869 (T enn. Crim. App. 1970)). Our supr eme court has add ressed w hat is necessar y for a statement to meet t he excited utterance exc eption. In State v. S mith , 857 S.W .2d 1 (T enn.), cert
. denied , 510 U.S. 996 ( 1993), the Tennessee Supr eme Court stated:-5- The ultimatetest i s spon taneity and lo gical re lation to the m ain event and where an act or decl aration springs out of the transacti on while the partiesare stil l labori ng under the excitement and strai n of the circumstancesand at a ti me so near it as to preclude t he idea of deliberat ion and fabrication
. See Garrision v. State , 163 Tenn. 108, 116 , 40 S.W .2d 100 9, 1011 (1931); P aine, Tennessee La w o f Evidence , (1974), Part F. Exci ted utter ance, § 69.
Smith , 857 S.W.2d at 9. Also, a statem ent, even if it is elicited by ano ther, is admis sible as a n excited u tterance declaratio n. Smith , 857 S.W.2d at 9.

In his ruling i n response to t he Defendant’s obj ection to the entry of these statements as excited ut terances, t he trialcourt stated: I believe in the si tuation bef ore the Court now there has been some sever al h ours between the event the chi ld was treated at the Bledsoe County Nursing Home [si c] and then trans ported by helicopter [to ] T.C. Thompson’s Children’ s Hospital in Chattanooga. So we have a s everal hours time lapse, but the ci rcumstances which shou ld be considered are th e nature and the seriousness of the event or conditi on, the appearance of the declar

ant, the behav ior of the declarant, the outlook of the declar

ant, and other

circumstances. What we have here is a th ree year o ld child adm itte dly seve rely burned over the l ower porti on of the chi ld’s bo dy. W e wou ld obviou sly have pain associ ated with what’s been said to be first and second degree burns over the lower por

tion of t he body. We have an attemp te d catheteri zation appare nt ly unsuccessful at the Bledso e Count y Hosp ital. We have an IV started at the Bled soe Co unty Hosp ital. We have a child, a youngchi ld, wra pped in bandages. We h ave a young chil d in a str ange and probably f righten in g environment

at th e Bleds oe Count

y ER room, e merge ncy room . We have a chi ld transported by hel icopter to another hospi tal, which would be a new series of strangers. I think under these circumstancesthat thi s child st ill was under the stress of excitem ent. I think t he offered ev idence is an excited ut terance under t he hearsayexception andI’m going to allow Mrs . Pende rgrass to testify in the matt er as offer

ed. The trial court also stated tha t t his ruli ng applied to Brad Pendergrass, the victi m’s uncle.-6- We do not find that the tr ial c ourt ab used its discre tion. Th e child would obviou sly have been under a great deal of st ress from the t ime he was burned in the bathtub throu ghout his tre a tment by many str angers at two different hospitals. The re is als o little da nger o f fabrica tion by a child so young in so much pain and distre ss. We do not find t hat the fac t the c hi ld was given p ain medication precludes t he trauma and dist ress of theevent for the chil d. We find thatthe ruli ng of the tri al court is corr ect under the circumstances in the case sub judice
.
Even if err

or, we feelit would be harmless beyond a reaso nable d oubt. We
n ote from th e record that several wi tnesses, who were called to testif y by the Defen dant, testif ied that the chil d stated t hat he had fall en into th e bathtub, and
n ot that his

“Mommy” had put him into the tub. In additi on, there wa s overwhelming proofthat the c hild had been forcibly placed into the scalding hot water, and that Defendant was the only adult in the house at t he time of t he incident.

There fore, this issu e is withou t merit.

II.

In Defendant’s second issue, she contends that t he trial co urt erred by allowingtestimony of the fli ght nurse regar ding stat em ent s ma de by th e victim-7-

that, “My Mo mm y did it,” when inquiry was made by the nu rse as to, “W ho did this to you?” The trial court admitted the tes timony under Ru le 803(2), excited utterance, and Rule 803(4), statements for purposes of medical diagnosi s and treatme nt. The life f light nurse, K athleen Corne tt, testif ied at trial that before they lifted off she repeatedl y asked the ch ild wha t had h appe ned to him. S he fina lly asked him who had done th at to him, a nd he s tated that h is mom my had done it. She testif ied that t he child had been given Tyl enol with codeine about an hour p r iorto their arrival, bu t it had no a ffect on the child. He w as unre spons ive to their ques tio ns. The vict im was given t hree (3) mil ligrams of morphine, and subsequently became responsive.

The trial court

stated these reasons f or all owing Ms. Cornett’s test imony of the child ’s statem ents into e vidence :

This statement of

the chil d was actuall y made prior in time to the statement

that wa s mad e in the pres ence of the gr andmother later on at T.C . Tho mps on’s H ospita l. I thin k that thestatement of the child i s proper under t he excited ut terances except ion for t he same reasons that I’ve already outli ned as relates to, I believe Mrs. Carol Pendergrass’ testimon y. I think under the three criteri a set out in the Ruc ker case that it is also an excep tion to th e hea rsay ru le based on the medical diagn osis an d treatm ent in that the statement was made for the p urpos e of m edica l diagn osis an d treatm ent, tha t’s the fir st criteria. Number two, the med ical history o f the declarant past or presentsymptoms, pain sensat ion and the general character of the cause or source there of , and it was reason ably pertine nt to diagn osis and trea tment. T he State ’s arguing that as part of t he diagn osis and treatment essentially the identifi cation of chil d abuse is part of the d iagnos is and trea tment, a nd that i s in fact wh at this witness has testifi ed to. Using the law set

out above, we con clude that the trial court

did not abuse its discre tion in allowin g Ms. C ornett to testify to th e child ’s statement under the-8-

excited utterance exception t o the hearsay rul e. The tri al court’ s response to t he Defendant’s obj ection i s correct concerning theexcited ut terance except ion.

We now turn to whet her the statement shou ld have be en allowe d into evidence un der the excepti on for statements made for medical diagnosis and treatme nt. The Defendant argues t hat the trial court abused its di scretion by allowingthis statement in under the medical diagnosi s and treatment exception because of the chil d’s young age, the pers istent q uestioni ng by Ms. Cornett and the influence of narco tics. The p roper issu e is wheth er the state ment m eets the criteria set outin Rule 803(4) , “[s] tatements made for purposes of medical diagnosis and treatment de scribing med ical history; past or present symptoms, pain, or sensations; or the inception or general ch aracter of the cause or ex

ternal
so urce th ereof inso far as rea sonab ly pertinent to diagno sis and tre atmen t.” Tenn. R . Evid. 803(4).

Trial courts have br oad discret ion in dete rmining the admissibil ity of evidenc e, and their rulings wi ll not be reversed absent an abuse of disc retion. St ate v. Baker , 785 S.W.2d 132, 134 (Tenn. Cr im. App. 1989). In S tate v
. Rucker , 847 S.W.2d 512 (Ten n. C ri m. App. 1992 ), this court stated, “[t]his Court is of t he op ini on t hat

‘[ s]tate me nts made by a child abuse v ictim to a physici an during an examination that the abuse r is a m embe r of the victim ’s imme diate hous ehold are reasona bly pertinent to treatm ent.’” Rucker , 847 S. W.2d at 519-20 (quoting Unit ed States v. Ren ville , 779 F .2d 43 0, 436 (8th C ir. 1985 )). It is thoughtthat the nam e or ide ntity of a p erpetr ator is pertinent in the di agnosis and treatment

of a ch ild abus e victim because “‘t here is a di rect corr elation between-9-

identity and rec urrence ’” which ofte n reveals a pattern of abuse
. Rucker , 847 S.W.2d at 519 (quoti ng State v. Maldonado , 536 A.2d 60 0, 603 (Con n. 1988)).

Our supreme court recen tly addr esse d the is sue o f child abuse cases and the admis sibility of statem ents made by children which are allowed into ev idence through Tennessee Rules of Evi den ce Rule 80 3(4) in State v. McLeod , 937 S.W.2d 867 (Tenn. 1996). I n McLeod our supreme court stated:
In making the d etermination under Rule 803(4), t rial courts must consider

criteria such as the c ircumstances sur rounding the maki ng o f the statem ent, which would inc lude the tim ing of the s ta temen t and its contents. If

the tri al court f inds tha t the state ment was inapp ropria tely influen ced b y anoth er, the c ourt sh ould exclude i t as not having been made for the purpose of diagno sis and tre atmen t. The inquiry, however, wi ll var y depending on t he facts of each case. To i llustrate : (1) the trial cou rt may cons ider wh ether th e child ’s statementwas in response to suggestive or l eading questions; and/or(2) the tr ial court may consi der any other factor t hat may affecttrustworthi ness, such as a bitter custody batt le or family feud.
McLeod , 937 S.W.2d at 871.

In the ca s e sub judice , the trial court held a jur

y out heari ng on the admis sibility of t he stat ement. The tri al judge deci ded to all ow the statement because, “the identif ication of chi ld abuse is part of the dia gnosis and treatme nt, and thatis in fact

what this

witness has testifi ed to.” We do not fi nd that the trial judge abu sed h is discr etion. H e had a jury ou t hearin g, and his rea sonin g is based on the same princ iples on whi ch Rucker and McLeod are based.

This statem ent was admis sible und er both th e excite d ut terance and medical diagno sis and tre atmen t exception s to the he arsay rule
. See St ate v. Mau ric e Gor don , ___ S.W.2d ___ (Tenn. Sept. 29, 1997) (t hree-year- old sex-10-

abuse victi m’s complaint of pain and statement of who c aus ed the pain w ere adm issible as both exci ted utter ance and statement f or the pur po se of medical diagno sis and tre atmen t).

There fore, this issu e has n o merit.

III.

The Defendant’s next issue i s w hetherthe trial c ourt er red wh en it neglected to include the lesser i ncluded offense of chil d abuse in its charge to t he jury. The jury was gi ven an instruc tion for the charge of aggrav ated chil d abuse. The Defendant arguesthat the crime of chi ld abuse is a lesser i ncluded offense of aggra vated ch ild abuse and sh ould ha ve been charge d in this cas e.

We agree that ch ild abu se is a lesser included offense of agg ravate d child abuse. The Defen dant re li es upon State v. Howa rd , 926 S.W.2d 579 (Tenn. Cri m. App. 1996), i n support of her argument that the tri al court committed
revers ible error by f

ailingto charge the jury on the les ser inc luded offens e of ch ild abuse. However, in Howard , this court recogni zed the establ ished law t hat when the proofshows that ei ther the i ndicted offense occur red or no offense occurred, then the trial cour t is not requ ired to charge the lesse r included offense. Howard , 926 S.W.2d at 586.

At the time of

the offens e, aggravated c hild abus e was define d in Tennessee Code Annotated section 39- 15-402 as fol lows: “( a) A perso n is guilty of the offens e of aggravated child abuse who commits the offense of chi ld abuse-11-

as defined i n § 39-15-401 and: (1) the act of abuse res ults in serious bod ily injury to the child ;. . . .”

Also at the ti me of the offense, Tennessee Code Annotated sect ion 39-15- 401 defines chi ld abuse as, “ (a) Any person who knowingly, other than by accidentalmeans , tre ats a c hild under eight een (18) years of age in such a
manner as t o inflict injury or n eglects s uch a ch ild so as to a dversely a ffect th e child’s hea lth and we lfare is guilty of a Class A misde mean or.”

The indict ment in Defendant’ s case charged that she d id “ . . .unlawfully, knowingly, and other than by ac cidental mea ns, inflict injury upon [victim], a child
u nder eighte en (18 ) years of age , such act res ulting in seriou s bod il y injury, i n violation of T.C.A. § 3 9-15-402. . . .”

It is clear

from both th e alleg ations in the ind ictme nt, and the pro of at trial, that wh at ma de this particul ar offense aggr avated child abuse, was the seri ous bodily injury in flicted upo n the victim
.
Tennessee Code Annotated secti on 39 -11-1 06(a)(33) def ines seri ous bodily inj ury as follows:-12- (33) “Serious bodily

injury” means bodily

injury which i nvolves: (A) A substantialrisk of death; (B) Protracte d unco nscious ness; (C) Extreme physical pain; (D) Protracted or obvious di sfigurement; or (E) Protractedloss or substant ial impairment of a functi on of a bodil y member, organ, or mental facu lty;
The Defendant’s t heory at t rial, includi ng her testi mony, was that t he injuri es suffered by the vi ctim were asa result of th e victim ac cidentally fa lling into the scalding water . As observed in t he statute defining aggravated chi ld abuse, which incorporates the defi nition of chil d abuse, an accidental injury is a defense to the criminal cha rge. There was uncontradi cted and uncontested proof at trial thatthe vict im had a protrac ted and obvious

disfi gurement as a result of scarri ng from his waistdown, that he suffered ex treme physicalpain, and that the injury posed a substanti al ri sk of death. While Defendant offered proof to contradict evidence of how well the vict im had r ecov ered, thi s proof didnot contradi ct the proof of serious b odily injury.

The Defen dant a rgues that proof of brui ses on the victim’s chest , back, face, and whip m arks across h is buttocks requ ired the trial court to charg e th e lesse r includ ed offe nse o f child abuse. She bases thi s argument on the theory thatthe jury c ould b elieve th e burn s were caus ed by a ccide ntal m eans , but co uld still convict the Defen dant o n the lesser included of

fense of chi ld abuse based upon the proof of the bruises.-13- Howeve r, our rev iew of th e reco rd requ ires us to rejec t Defe ndan t’s argum ent. Dr. Willi am Belknap, a pediat rician who examined the vi ctim at t he Chattanooga hospital on the night of the i ncident t estifi ed that brui sing on the child was consistent

with the r

estraini ng type of h old that the medi cal personnel thoughthad o ccurre d durin g the vic tim’s im mers io n into the scalding water. Specifical ly, t he doctor testifi ed:
An imme rsion injury a ppeara nce ta ken together wi th bruisi ng and also in addi tion no ting that the knees were flexed, the legs were flexed at the kne es indicated to us that an indivi dually cl early had held the child som ewhere about the trunk and act ually had di pped the child i n the scaldi ng water to achi eve this k ind ofan inju ry and we felt most compe lled to make that conclus ion based on the observati on of the brui sing.
Also, Dr. Belknap noted that the bruising about the v ictim’s face was most consistent

with a rest raining t

ype of hold necessary to i mme rse som eone in to scalding water. The sm aller bru ises were approxim ately the siz e of fingertip s.

W hile it is not clear from the record how the whip marks across thevictim’s buttocks would have been caused by the immersion of

the vict im into t he bathtub,
we note there was

no proof in the record by circumstant ial or di rect evi dence that Defendant had caused the whip mark brui sing on the victim’s buttoc ks. Th e only proofin the re cord re gardin g the c ause of the w hip mark bruising on the buttocks, includi ng the Defend ant’s testimony, was that her h usband had whipped thechild with a belt a day or tw o before the child w as burn ed in the w ater. The Defendant also offered pr

oof that t he other

bruisin g on th e child was a s a res ult of the child accid entally falli ng in the bat hroom on an earli er occasion and f rom the c hild poss ibly being struck by ano ther ch il d at an ove rnight chu rch related “lock-in.”-14-

The Defendant concluded her direct testimon y by stating the entire incident was an acc ident, and she wo uld do no thing to hu rt any of he r children.

In her argument on thi s issue, t he Defendant wants to focus on s o me injuries, the bruises, and separate them for considerati on from the burn injuri es. The State’s pr

oof was that all the bruises, except for the whip marks on t he buttocks, were co ns istent with a restr aining hol d by the perpet rator who immersed the chil d into thehot water. There is no proof tha t th e De fendant herse lf infli cted the whi p marks on the buttocks area. The Defendant’s pr oof was thatbruisingon the buttocks was caus ed by th e Def enda nt’s husband, and other bruises w ere not c aused by the De fendan t, but by acc idental m eans.

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

y of the gr

eater offense of aggravated child abuse, or no offens e at all. In such s ituations, it is no t error for the trial court t o refuse to c harge the lesser offense. Wh itwell v. State , 520 S.W .2d 338 , 344 (T enn. 19 75); S tate v
. Atkins , 681 S.W.2d 57 1, 577 (T enn. C rim. App . 1984), cert
. denied , 470 U. S. 1028 (1 985).

Accord ingly, this issu e is withou t merit.

IV.-15- The Defe ndan t’s fourth i ssue is whether the tri al court ab used its di scretion when it ref used to grant D efendant’s m otion for a mistrial after four jurors w ere allowed to use the telephone duri ng the course of the jury’s deli berations. The jury began deliber

ations at approximatel y 3:30 p.m. During the supper break , at around 7:50 p.m., a few of the jurors w anted to make calls to m ake arra ngem ents for stay ing over anot her night. The jury was sequestered.

In Gonz ales v. Sta te , 593 S.W.2d 288 (Tenn. 1980), our suprem e court stated:
In Hines v. State , 27 Tenn. 597 ( 1848), t he “sett led law” applicable to j ury separations was stated as follows: “The princip les laid down in these cases are, 1st , that the fact of separ at ion having bee n establi shed by the prisoner, the possibi lity that the j uror has been tampered with, and h as received ot her impres si ons than those derived from the testimonyin court, exi sts, and pri ma facie the ver dict is vic io us ; but, 2d , this separation may be explained by the pros ecu tion, showing thatthe juror ha d no co mm unication with other persons, or that s uch communication was upon subjects foreign to t he tri al, and th at, in f act, no impressionsother than t hose drawn from the testimony , were m ade upon his mind. But, 3d, i n the absence of such explanat ion, the mere fact of separation is suffici ent ground for a new t rial. ” 27 Tenn. at 602.
Gonzales , 593 S.W .2d at 291 . T his p assag e of Gonzales was also cited with approval in State v. Furlough , 797 S .W.2 d 631, 645 (Tenn. Crim . App. 1990 ). After the State mee ts its affirmative burden that no pre judice oc curred, a harmless error ana lysis is perm itt ed. F urlough , 797 S.W .2d at 645 ; Gonzales , 593 S.W.2d at 293.-16- The Defenda nt orally move d f or a mistrial imm ediately after the jury returned with the ver dict, at a bout 8: 10 p.m., and a hear ing on the matter was held immediately. The officer s who had taken the j urors to make t heir phone calls testif ied. Deputy Sher iff M el Matthe ws testified that the juro rs wante d to make phon e calls to make arrangements for the night . He was in theroom while theywere calli ng, but di d not hear any porti ons of the conversations. One of the court officer

s, Tammy Turner, also testifi ed at the hearing. The phone the jurors used was at her desk. On direct examination by

the Defendant, she stated t hat two women and two men made the calls. During cross- examination by the State, she testif ied that s he heard the whole conversations, and “Everyone sai d I need you to bring clothe s, p ut ‘ em in my ca r, I do n’t know when I’ ll be ho me, b ye. ” On redirect, the offi cer stated that she di d not know whatwas b eing s aid on the other end of the te lepho ne co nvers ations . Sheila Johnson, another court officer , stated thatwhat the previous two w itnesses had testifi ed to was the same as her recollec tion of t he event s. On cross-examinat ion by the State, she stated th at the
c onversati on s were very short, and she did n ot see the jurors arg uing with anyone. The trialcourt rul ed, “I do not find that there’s been anything impro per. I don’t f ind any prej udice to t he defendant asfar as th e activitie s of the jury. I’ll overrule th e motio n.”

In making its ruling, t he trial court use d an erro neous test to consider t he Defe ndan t’s motio n for m istri al. As stated above in Gonzales , once there has been a jury separ

ation duri ng sequestrat ion, and i n this case during the ju ry’s deliberations, the possibi lity that the j uror has been tampered with and received impressionsother than those derived f rom the testimony exists and t he verdict is pri m a facie “vici ous.” However, the prosecut ion should be al lowed the-17-

opportu nity to show that all of the communications to e ach juror wer

e upon subjects not inv

olvi ng the t rial and that no impress ions ot her than those dr awn from the tes timon y were mad e upo n the ju ror’s mind . If t here is an absence of such explanation, t he mere fact of the separati on is suff icient grounds for gr

anting the motion for a new trial. Gonzales , 593 S.W.2d at 291 (quoti ng Hines v. State , 27 Te nn. 597 , 602 (18 48)).

In this case t he jury separ ation occurred only a few moments before the jury returned wi th i ts verdict. After the jury reported its verd ict, the trial court dismissed the jury . Defendant’ s counsel prom ptly ma de the motio n for m istrial, indicat ing thathe had brough t the poss ibility of jury separation to the attention of the court a few moments bef ore an d had in tended to have a h earing on the record p rior to the jury re turning its ve rdict.

The trial court, as stated above, issued its ruling after t he Defendant had pu t on her proof sh owing a separat ion of thejury, but based its ruling upo n a n imprope r stand ard. The State i s entitl ed to offer whatever proof which may be availab le to show that an y comm unications m ade to the jurors during the p hone conversati ons were u pon m atters n ot perta ining to the trial, a nd tha t the juro rs did not obtain any im pressions oth er than those d rawn from the testimony. Even if
we suspe ct that thos e peop le who sp oke with the juror s did not speak

of matters pertaini ng to the tri al, or make any impressi ons upon the jur ors which af

fected the verdict, we are unable to make such an assumption under t he ma ndates of Gonzales

.-18- Therefore, i t is necessar y for t he judgment to be vacated and thi s matter remanded to the tria l court s olely for an evi dentiary hearing and deci sion bythe trialcourt on theissue of j ury separat ion in amanner consistent with thi s opinion. If the trialcourt finds that all of the j urors’ communications w e re on su bjects foreign or upon subjects not pertai ning to th e trialand that noimpressions were made upon the jur

ors in reach ing the ver dict oth er than theproofheard at trial, and after makin g this determination that no prej udice occurred to the Defen dant, the judgment shall be reinstated. Absent such a findi ng by the trial court , the trial court shall gran t the Defe ndant a new trial . The Defendant can appealfrom an adverse decision on this issu e.

V.

The Defe ndan t’s final issue is whet her the trialcourt err ed by imposing a senten ce of ten (1 0) years. When an accused chall enges the lengt h, range, or the manner of servi ce of a sentence, this cour t has a duty t

o conduct a de novo review of the sentence with a presu mption that the determinat ions made by the trialcourt are corre ct. Ten n. Co de An n. § 40 -35-4 01(d) . This p resum ption is "conditi oned upon the affirm ative showing in the record that the trial court considered the sente ncing princip les an d all relevant fac ts and circ umsta nces." State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence, t his court must consider: (a) the e vide nce, if any, recei ved at the t rial and t he sentencing hearing; (b) the presentence report; (c) the princip les of sen tencing a nd argu ments as to sentencing alternativ

es; (d) the nature and characterist ics of the cri minal conduct-19-

involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement thatthe defenda nt made o n his own be half; and (g ) the pote nti al or lac k of potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawfulsentence after having gi ven due considerat ion and properweight to t he factors and princi pals set out under the sentenci ng law, and thatthe trialcourt's findings of fact are adequately supported by t he record, then
we may not modify t he sentence even i f we would have pr eferred a di fferen t result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

A.

The Defendant fi rst arguesthat the t rial cour t erred when it used essent ial eleme nts of the cri me as enhancing factor s. The D efendant argues that enhancement factor (4 ), the victim was p articula rly vulnerabl e because ofage or physical or mental di sabili ty, factor (5) , the defend an t treated or allow ed the victim to be treated wi th except io nal cruel ty, and f actor (6) , personal injuri es infl icted upon the victim were p articula rly great, ar e all i nherent in t he offense, and cannot be used to e nhance the Defendant’ s sentence. Tenn. Code Ann. § 40-35-114 (4), (5) & (6)
.
The statute u nder which t he Defendant was convi cted provi des that, “[a] person is guilty of the offense of aggravated child abuse who commits the offense of child abuse as d efined in § 39 -15-4 01 an d :(1) T he ac t of abu se res ults in-20-

serious bodily injury to the child.” T enn. C ode Ann . § 39-15-402. Tennessee Code Annotated sect ion 39-15-401 st ates that child abuse i s “[a]ny person who kn owingly, other than by accidentalmeans, treats a child under

eighteen (18) years of age in such a manner as to in flict injury or neglects such a chil d so as to advers ely affect the child’s hea lth and we lfare.”

We first add ress e nhan cem ent fac tor (4), th e victim was p articula rly vulner able because of age or phy sical or mental disab ility. Our supreme c ourt has stated th at this enha nce ment factor, “relate[s] more to t he natural phy sical and men tal limita tions o f the vic tim than mer ely to the victim’s age.” State v. Adams , 864 S.W.2d 31, 35 (Tenn. 1993 ). The refore , factor (4 ) is not in heren t in
an offense base d on the age of a v ictim. In State v. A ndrew J ohnso n, III , No. 02C01-9304-CR-00050, Shelby County (Tenn. Crim. App, Jack son, fil ed Apr i l, 20, 1994), perm . to appeal de nie d , (Tenn. 1994), the defendant was convicted of the ag grava ted rap e of his four-year-o ld daug hter. This court hel d that fac tor (4) applied because t he four-year -old was home aloneand in the sol e care ofthe defendantwhe n the crime occurre d. The court went on to say, “ [i]t

would be ludicrous

to say that sh e was capable of res isting the assault of he r adult father. There was no one in thehouse or oth erwise available to h elp her.” Johnson , sli p. op. at 4. Th e victim did testif y in John son , but this cou rt stated tha t it was with extreme difficulty.

The Supr eme Cour t of Te nnes see re cently a ddres sed th is issue a gain in State v. Poole , 945 S.W .2d 93 (Ten n 1997). The court rei terated t he requirement thatthe State has the burde n of pro ving a v ictim’s lim itations caus ing the victim to be particu larly vulnerabl e and cited Adams in supp ort

the reo f. The s upreme-21-

court also held the trial court m ust make factual findings whe ther t he evide nce with regard to th e v ictim’ s age demonstrated an abi lity to resist the cri me, summ on help , or testify at a late r date. Poole , 945 S.W .2d at 96.

In Defendant’s cas e, the trial court noted that the victim was three (3 ) years old at the ti me of the offense and discussed case law in Tennessee which speaks in term s of youthf ul age precl uding a vic tim from resi sting or callingfor help o r being capa ble of testifying. The trialcourt speci fically referr ed to Adamsamong otherc ases in determ ining that this enhan cemen t factor applied. The record reflects that the victim was left alone wi th the Defendant , his step-mother, and thatthe offense occur red during a t ime period when the vict im’s fat her was away from the home at work. There was no one present to he lp the v ictim and t he victim was u nable to resis t the ab use in flicted u pon h im by the Defen dant. W e find thatthis enhancement f actor was appropriately appli ed by the trial court and thatthe trialcourt made suff icient finding s in the record to support applicat ion of this enha ncem ent factor.
Regarding factor

(5), t hat the Defendant treated or

allowed t he victi m to be treated with exc eption al cruelty during the commission of the of fense, the trial court relied upo n the fact that the v ictim was forcibly held in ext remely hot water to suppo rt application of this enh ancem ent factor. On ap peal, the State rel ies upon evidence of

bruiseson the vict im’s face and bot tom, and well as the burn injuri es in support of a pplicat ion of this enhancement factor . However, when t he very facts whi ch caused the cri me to be aggravated unde r the law are al so used to supp ort the fin din g of “except ional cru elty, ” our court has held that

the
e nhancement factor cou ld not be a pplied. Mann ing v. State , 883 S.W.2d 635,-22-

63 9 (Tenn. Crim. App. 1994). Therefore, we agree wi th Defenda nt tha t enhancement factor

(5) is not

applicable. Likew ise, proof of serious b odily injury also constit utes proof of particul arly gre at injur y and enhancement factor (6) shou ld not have been appl ied. State v. Jones , 883 S.W.2d 597, 602 (Tenn. 1994); State v . Crowe , 914 S.W .2d 933 , 939-40 (Tenn . Crim. A pp. 199 5).

The State arg ues tha t application of enha ncem ent factor (1 0), that the Defendant had no hesitat ion about com mitting a crime when the r isk to human life was high, is applica ble in th is case. We respectf ully di sagree. There was proofin the record from a physi cian who treated t he child t hat extensive burns on the victim’s body were potent ially fatal. However, “a substantialrisk of death ” is
one of the defi nitions of “seri ous bodily injury .” Ten n . Code Ann. § 39-11- 106(a)(33). A fair

revi ew of therecord c learl y shows that proof of “a substantial riskof death” was one of the fac tors rel ied upon bythe State i n proving “serious bodily injury” to sustain a convicti on of aggravated child abuse
. We therefore conclude that fact

or (10) i s an essentialelement of t he offense as char ged in the indict ment and should not be included as an enhancement factor . We find that only enh ancem ent factor (4 ) applies to the Defe ndant’s s entenc e.

B.

Defendant argues that the trial court erred by failingto apply t he following mitigati ng factors from Tennessee Code Annotated sect ion 40-35-113: (3) Substantialgrounds exist tending to excu se or justify the defendant’s c rim inal cond uct, thoug h failing to establish a defen se.-23- (8) The defendantwas sufferi ng from a mental or physical conditi on that si gn ifican tly reduced his culpa bilit y for the offense; however, th e vol untary us e of intoxica nts does not fall within the p urview of this factor; (11) The defendant, although guil ty of t he crime, committed the offense unde r such unus ual circ ums tance s that it is unlike ly that a sustained int ent to vi olate the l aw motivate d his con duct; (12) The defendant acted under duress or under the domination of another per son, even though the duress or the dominati on of another per son is not sufficien t to constit ute a defense to the crime; (13) Any other fa ctor co nsiste nt with th e purp oses of this chapte r. [Defendanturges h er lack of a prior criminal record, attendance at church, and other “good c haracter eviden ce ” subm itted at th e sen tencin g hea ring wo uld make this mitigatin g factor ap plicable.]

We agree with theState and the t rial cour t that f actors (3) , (8), (11), and (12) do not apply in this cas e. Actually , the recor d is devoi d of any proof whatsoever

to support any of these mitigati ng factors. The trialcourt heard t he t estimony of all of the wit nesses and found that the only “catch-all ” mitigat ing factor under (13) whi ch might be applic able w ould be the fact that the Defendant does not have a pri or criminalrecord. How ever, in thi s particu lar case, the tri al court h eld tha t this fac tor sho uld be given little wei ght in senten cing De fendan t, and we agree.

The trialcourt speci fically found that any one of the enhan cemen t factors it believe d were applic able would support a sentence above the mini mum presum ptive sentence of ei ght (8) ye ars, in l ight of t he fact th at the one mit igating factor wh ich was a pplicable should b e given ve ry little weight.-24- Having found that one (1) enhancement fa ctor is applicabl e, and that one (1) mitigating factor is ap plicable, bu t t h at the miti gating fac tor should be given very litt le weight, and being in agreement wi th the trial court that any

one of the enhancement factors f ound by that court shou ld be a fforded great w eight in this particul ar case, weconclude that the r ecord supports

the sentence i mposed by the trial cou rt. Therefo re, this issue is without m erit.

CONCLUSI ON

We vacate the j udgment and remand this cas e to the trial court solely f or an evidentiary heari ng and deci sion by th e trial court on the issue of jury separation in accordance wi th this opinion. All other i ssues raised by

the Defen dant are overruled
.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JERRY L. SMITH, Judge