IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 12, 2015 Session

STATE OF TENNESSEE v. DONALD W. HIGGINS III

Appeal from the Criminal Court for Davidson County

No. 2011-D-2978 Seth Norman, Judge

No. M2014-01171-CCA-R3-CD – Filed July 27, 2015

The defendant, Donald W. Higgins III, appeals his Davidson County Criminal Court jury 

conviction of aggravated child neglect, claiming that the evidence is insufficient to 

support his conviction, that the trial court erred by admitting photographs of the victim‟s 

injuries, that the trial court erred by refusing to play at trial a portion of his recorded 

pretrial interview with the police, that the trial court erred by refusing to instruct the jury 

that a violation of the duty to report was a lesser included offense of aggravated child 

neglect, and by imposing a Range II sentence. Because the evidence adduced at trial was 

insufficient to support the defendant‟s conviction of aggravated child neglect, that 

conviction is reversed, and the charge is dismissed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Dismissed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY,JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Richard Strong (on appeal); and Kelly Young and Holly Troutman (at trial), Nashville, 

Tennessee for the appellant, Donald W. Higgins III.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant 

Attorney General; Victor S. Johnson III, District Attorney General; and Brian Holmgren, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

A Davidson County Criminal Court jury convicted the defendant of one 

count of aggravated child neglect for allegedly aiding in Suzanne Wiley‟s neglect of her 

daughter, M.D.1

 

1 As is the policy of this court, we refer to the minor victim by her initials.
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Doctor Deborah Lowen, a pediatrician at Vanderbilt Children‟s Hospital

who was also a specialist in child abuse injuries, testified that she examined M.D. on 

August 3, 2011, following M.D.‟s August 2, 2011 hospital admission. At that time, the 

victim‟s mother informed Doctor Lowen that she first observed burns on the victim‟s 

body on July 29, 2011. The victim‟s mother said that she put ointment and gauze onto 

the victim‟s blistered and peeling skin and that she gave the victim Tylenol for the pain.

Doctor Lowen explained that the victim suffered second- and third-degree 

burns to “between 20 and 30 percent of her body surface area from the buttocks down 

involving both legs and the genital area.” At the time Doctor Lowen examined the 

victim, “[t]he skin was off and peeling.” She said that when the injury was fresh, the skin 

would have blistered and that “[o]ver time the areas that were blistered will then pop and 

that skin will come off also.” She testified that burns such as those suffered by the victim 

“will leak a lot of fluid,” leading to dehydration. The victim was dehydrated when she 

arrived at the hospital.

Doctor Lowen testified that, had the victim been brought to the hospital 

immediately after the injuries, she would have been treated with pain medication and 

provided a lot of intravenous fluids to ward off dehydration. She said that the victim‟s 

injuries would have been treated with sterile ointments and wrapped in sterile gauze that 

would have been changed on a set schedule.

Doctor Lowen said that the victim‟s wounds “needed to be cleaned 

extensively because they hadn‟t been” and that she required skin grafting to the deepest 

part of the wounds. She testified that the victim had undergone “a dozen surgical 

procedures” between the time of her initial hospitalization and the February 2014 trial 

and that she would require more procedures as she grew in order to minimize scarring 

and allow her to have a full range of motion in her ankles.

According to Doctor Lowen, proper care for the victim‟s wounds could not 

occur outside of a hospital setting. She opined that the delay in medical care increased 

the victim‟s scarring “[b]ecause the skin had a chance to start redeveloping, re-growing, 

in a non-healthy way.” She added, “By the time she came in for medical care it was to[o] 

late to intervene in that process and to get it growing the correct way, and the burn 

surgeon is very clear about that also.”

During cross-examination, Doctor Lowen clarified that she did not actually 

treat the victim but instead acted as “a consultant” in the victim‟s case. Doctor Lowen 

stated that the victim‟s mother told her that the victim had been burned when the victim 

turned on the hot water in the bathtub. She said that the victim‟s injuries were not 
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consistent with the victim‟s having brief exposure to hot water running from the faucet 

but were consistent with the victim‟s having been “[p]laced into a tub of hot water.” 

Doctor Lowen agreed that third-degree burns are not actually painful because burns that 

severe actually destroy the nerve endings. The second-degree burns, she said, would 

have been very painful. She said that the victim would likely have manifested that pain 

by crying, becoming lethargic, and not eating as much. Those signs of distress should 

have been obvious to the victim‟s mother. Doctor Lowen said that she had no contact 

with the defendant and had never even heard his name until she got the subpoena to 

testify in this case.

Carey King, the victim‟s maternal grandfather, testified that he spoke to the 

victim‟s mother on August 2, 2011, and learned that the victim had been burned. Mr. 

King asked the victim‟s mother to bring the victim to his store, where he was working on 

that day, so that he could examine the victim. When they arrived, the victim‟s mother 

was carrying the victim, who was “wrapped in a towel and she was very lethargic, very 

pale in color.” When he opened the blanket to look at the injuries, he “was shocked, 

horrified, and taken aback at the extent of the injury.” He recalled that the victim was 

wearing a shirt and a diaper and that her legs were wrapped in gauze. He said that he 

asked Ms. Wiley why she had not taken the victim to the hospital. He then telephoned 

his wife and Vanderbilt Children‟s Hospital. His wife drove the victim and the victim‟s 

mother to the hospital while Mr. King stayed behind to lock up his store.

Mr. King testified that the victim‟s mother “told so many stories” about 

how the victim received her injuries “that we can‟t even get them back right now.” He 

said that, as far as he knew, no version provided by the victim‟s mother was the truth. He 

acknowledged that the victim‟s mother was resistant to taking the victim for treatment 

and that he “told her she needed to bring [the victim] out” so that he could examine the 

wounds. He explained that he “was in Special Forces and . . . was trained in 

understanding wounds, so [he] would have been able to tell her what she needed to do.” 

Mr. King said that he had never met or heard of the defendant.

Lorelei King, the victim‟s maternal grandmother, testified that she 

telephoned the victim‟s mother on August 2, 2011, because she had been unable to get in 

touch with her the day before. Ms. King said that her daughter had not previously 

indicated that she had been staying with relatives of her boyfriend. She stated that she 

did not even know that the victim‟s mother had become involved with a man named 

Jarico Huey. Ms. King recalled that when she told the victim‟s mother that she sensed 

that something was wrong, the victim‟s mother began to cry. After some “probing,” the 

victim‟s mother told Ms. King that the victim had been burned. Ms. King said that she

told the victim‟s mother to telephone Mr. King, explaining, “I knew that he would be able 

to extract the information from her and figure out what was wrong.”
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Ms. King testified that her husband telephoned her a few minutes later and 

told her to come to their store. When she arrived, Mr. King brought the victim out to her 

car “wrapped back up in a blanket, put her in a car seat, and told [Ms. King] to take her 

directly to the hospital.” Ms. King recalled that the victim “was bleeding, she was wet, 

weeping, and black like charred.” She said that the victim asked for a drink “because she 

was thirsty” and that when she handed the victim a bottle of water, the victim “kept 

drinking and drinking.”

Ms. King testified that prior to her telephone call with the victim‟s mother 

on August 2, 2011, she had no knowledge of any injury to the victim. She said that she 

and her husband, not the victim‟s mother, insisted that the victim be taken to the hospital.

Ms. King said that since the victim‟s initial hospitalization, the victim had 

undergone “about 18” different surgeries and procedures, all of which had required 

general anesthesia. Only two of those procedures involved skin grafts, both of which 

occurred during the initial hospitalization. She said that one of the skin grafts was 

designed to save the victim‟s left foot, which the doctor had indicated might require 

amputation.

During cross-examination, Ms. King said that she spoke with the victim‟s 

mother approximately three times between the Friday when the victim received her 

injuries and the Tuesday when she discovered that the victim had been injured. She said 

that the victim‟s mother never indicated that the victim had suffered any injury. Ms. 

King also spoke to the victim, who was 18 months old at the time, and that the victim 

cried and asked to come to Ms. King‟s house. Ms. King said that it was not unusual for 

the victim to cry to come to her house. Ms. King said that the victim‟s mother told her 

that the victim had been in her care during the entire time following her injury. The 

victim‟s mother told Ms. King that she did not take the victim to the hospital because she 

was “[s]cared they were going to take her baby away.”

Metropolitan Nashville Police Department (“Metro”) Detective Michael 

Dale Clark testified that he investigated the victim‟s injuries. As part of that 

investigation, he asked the mother to provide a reenactment of the circumstances 

surrounding the injuries. The reenactment took place at a residence on Coventry Way. 

While at the residence, Detective Clark examined the water heater and determined that it 

was set to a temperature of “approximately 140 to 145.” He tested the faucet on the 

bathtub and determined that the peak temperature of the water coming from that faucet 

was 145 degrees and that the faucet reached that temperature after approximately 15 

seconds.
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Metro Detective John Grubbs testified that he spoke with Doctor Lowen on 

August 3, 2011, and then interviewed Ms. King and the victim‟s mother. At that time, 

the victim‟s mother did not suggest that anyone else had been involved in the victim‟s 

injuries. During a follow-up interview on August 18, 2011, Detective Grubbs learned 

that the victim‟s mother was at work when the victim received her injuries. At that point, 

he conducted another interview of the victim‟s mother, and she told him that the victim 

had been with her boyfriend, Jarico Huey, when she was injured. Mr. Huey admitted 

during an interview with Detective Grubbs that he had caused the burns by placing the 

victim into scalding water.

During that second interview, the victim‟s mother also indicated that she 

and Mr. Huey “took [the victim] to another address where they remained for a period of 

four to five days.” That other address was the residence where Mr. Huey lived with his 

family. Detective Grubbs later learned through interviews with Mr. Huey‟s family 

members that Mr. Huey‟s grandmother, mother, and the defendant, who is Mr. Huey‟s 

brother, along with the defendant‟s girlfriend, Candace Bennett, had all been present at 

the residence at some point while the injured victim was there. Detective Grubbs said 

that the defendant lived at that residence, which was owned by his grandmother, but he 

could not say with any certainty how often the defendant had been in the residence during 

the relevant period. Detective Grubbs testified that none of those individuals made any 

attempt to report the victim‟s injuries to the police or to the Department of Children‟s 

Services.

Detective Grubbs interviewed the defendant, and an audio recording of a 

portion of that interview was played for the jury.

During cross-examination, Detective Grubbs acknowledged that friends of 

the victim‟s mother initially colluded with the victim‟s mother to conceal the fact that the 

victim was in Mr. Huey‟s care when she received her injuries. When the victim‟s mother 

finally acknowledged that she had been untruthful about the source of the victim‟s 

injuries, she did not indicate that the defendant had been present when the victim was 

injured. The defendant is not related to the victim or the victim‟s mother, and he was not 

present at the Coventry Way address when the injury occurred. That address was the 

residence of the victim and her mother. The defendant had never resided at that address. 

The detective‟s investigation revealed only that the defendant and Ms. Bennett had seen 

the victim‟s injuries once while the victim and her mother were at the defendant‟s 

grandmother‟s house and that, after seeing the injuries, the defendant and Ms. Bennett

then went to the store to purchase supplies to treat the injuries. The detective

acknowledged that no evidence existed to show that the defendant had seen the victim 

more than one time after her injury.
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At the conclusion of Detective Grubbs‟s testimony, the State rested. 

Following a full Momon colloquy, the defendant elected not to testify and chose to 

present no proof. After the jury convicted the defendant of aggravated child neglect, the 

trial court imposed a Range II sentence of 28 years‟ incarceration. The defendant filed a 

timely but unsuccessful motion for a new trial followed by a timely notice of appeal.

In this appeal, the defendant challenges the sufficiency of the convicting 

evidence, the trial court‟s evidentiary rulings, the trial court‟s failure to provide an 

instruction on a violation of the statutory duty to report child abuse as a lesser included 

offense of aggravated child neglect, and the sentence imposed by the trial court.

I. Sufficiency

The defendant first asserts that the evidence was insufficient to support his 

conviction because the State failed to establish that the defendant had a legal duty to 

protect M.D. The State contends that the evidence showed that the defendant voluntarily 

assumed a duty of care with regard to M.D. and that he was criminally responsible for the 

victim‟s mother‟s failure to seek medical treatment for the child‟s injuries.

We review the defendant‟s claim of insufficient evidence mindful that our 

standard of review is whether, after considering the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 

307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This 

standard applies to findings of guilt based upon direct evidence, circumstantial evidence, 

or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 

370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither 

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id. 

Questions concerning the credibility of the witnesses, the weight and value of the 

evidence, as well as all factual issues raised by the evidence are resolved by the trier of 

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must 

afford the State the strongest legitimate view of the evidence contained in the record as 

well as all reasonable and legitimate inferences which may be drawn from the evidence. 

Id.

Tennessee Code Annotated section 39-15-401(b) provides:

Any person who knowingly abuses or neglects a child under 

eighteen (18) years of age, so as to adversely affect the 
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child‟s health and welfare, commits a Class A misdemeanor; 

provided, that, if the abused or neglected child is eight (8) 

years of age or less, the penalty is a Class E felony.

T.C.A. § 39-15-401(b). As charged in this case, an act of child neglect is classified as 

aggravated child neglect when “[t]he act of . . . neglect . . . results in serious bodily injury 

to the child.” Id. § 39-15-402(a)(1).

The offense of child neglect has three elements: “(1) a person knowingly 

must neglect a child; (2) the child‟s age must be within the applicable range set forth in 

the statute; and (3) the neglect must adversely affect the child‟s health and welfare.” 

State v. Sherman, 266 S.W.3d 395, 404 (Tenn. 2008) (citing State v. Mateyko, 53 S.W.3d 

666, 670 (Tenn. 2001); State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000)). Discussing 

when the failure to act may give rise to criminal culpability under the statute, our 

supreme court has held that “[i]n order to establish neglect, the State must first prove that 

a defendant owes a legal duty to the child.” Sherman, 266 S.W.3d at 404 (citing

Mateyko, 53 S.W.3d at 671). The court added,

In order to be found guilty of a criminal omission, one must 

have knowledge of the circumstances that give rise to the 

duty. Moreover, our child neglect statute contemplates that 

the conduct constituting the offense be made knowingly. A 

defendant‟s duty to act must arise from a legal duty; a mere 

moral obligation will not suffice.

Sherman, 266 S.W.3d at 404 (citations omitted). “Ordinarily, the legal duty envisioned 

by section 39-15-401(a), along with the knowledge of such a duty, arises from a 

relationship with a child victim.” Id. at 405.

In Sherman, our supreme court concluded that a relationship giving rise to a 

legal duty exists, and criminal liability for child neglect may be found, when a person 

stands in loco parentis. Id. Whether a person is standing in loco parentis depends upon 

the intent of the individual, and a fact-finder may infer that intent from circumstantial 

evidence, including “the child‟s age, the child‟s dependence upon the person claimed to 

be in loco parentis, and whether that person supports the child and exercises the duties 

and obligations of a natural parent.” Id. at 406-07.

Utilizing these factors, we conclude that the State presented no evidence 

that the defendant intended to establish an in loco parentis relationship with the victim. 

At all relevant times, the victim remained under the exclusive care and control of her 

mother, who expressed resistance to any suggestion of medical treatment for the victim. 
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No evidence suggested that the victim was dependent upon the defendant, that the 

defendant supported the victim, or that the defendant undertook “the duties and 

obligations of a natural parent” with regard to the victim. Indeed, the evidence, in the 

light most favorable to the State, established that the defendant‟s brother, Jarico Huey, 

burned the victim by submerging her into hot water while at Ms. Wiley‟s residence. At 

some point after the victim was burned but before Ms. Wiley spoke to Mr. King and 

agreed to get medical treatment for the victim, the defendant and his girlfriend, Candace 

Bennett observed at least part of the injuries to the victim‟s leg. The defendant told Ms. 

Wiley that she should take the victim to the hospital, but when she refused, the couple 

went to the store, where Ms. Bennett procured ointment and gauze to treat the victim‟s 

injuries. None of the facts adduced at trial supported a conclusion that the defendant 

knowingly neglected M.D.

The State argues on appeal, as it did in the trial court, that the defendant 

was criminally responsible for Ms. Wiley‟s neglect of the victim and thus guilty of 

aggravated child neglect.

“A person is criminally responsible as a party to an offense, if the offense is 

committed by the person‟s own conduct, by the conduct of another for which the person 

is criminally responsible, or by both.” T.C.A. § 39-11-401(a). As is pertinent here, 

A person is criminally responsible for an offense committed 

by the conduct of another, if:

(2) Acting with intent to promote or assist the commission of 

the offense, or to benefit in the proceeds or results of the 

offense, the person solicits, directs, aids, or attempts to aid 

another person to commit the offense; or

(3) Having a duty imposed by law or voluntarily undertaken 

to prevent commission of the offense and acting with intent to 

benefit in the proceeds or results of the offense, or to promote 

or assist its commission, the person fails to make a reasonable 

effort to prevent commission of the offense.

Id. § 39-11-402(a)(2)-(3). “To prove guilt through a theory of criminal responsibility, the 

State must establish that the defendant „knowingly, voluntarily and with common intent 

unite[d] with the principal offender[] in the commission of the crime.‟” Sherman, 266 

S.W.3d at 408 (quoting State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994)); 

see also Dorantes, 331 S.W.3d at 386 (observing that “the evidence must establish that 

the defendant in some way knowingly and voluntarily shared in the criminal intent of the 
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crime and promoted its commission”). Although “[m]ere presence during the 

commission of a crime is insufficient to support a conviction,” the State need not show 

that the defendant physically took part in the crime, “encouragement of the principal is 

sufficient.” Sherman, 266 S.W.3d at 408.

The State argues that the defendant, acting out of a motive to protect his 

brother from criminal charges, knowingly aided the victim‟s mother in her neglect of the 

victim. The evidence clearly established that Ms. Wiley neglected the victim and that the 

victim suffered serious bodily injuries that led to a lasting impact on her physical health. 

No evidence established, however, that the defendant “knowingly, voluntarily, and with 

shared intent” united with Ms. Wiley in the commission of that offense. In the light most 

favorable to the State, the evidence showed that the defendant saw the victim only once 

after she was burned but before she was taken for medical treatment. Although the State 

argues that the defendant could have seen the victim while the victim and her mother 

were staying with the defendant‟s relatives, they presented no actual proof that he did. 

Additionally, no proof established that the defendant knew that Mr. Huey had caused the 

victim‟s injuries, that Mr. Huey had done so other than by accidental means, or that Mr. 

Huey would face criminal charges for the injuries. Suggesting that the defendant acted 

out of a motive to protect his brother under these circumstances is mere speculation. 

Moreover, the defendant‟s assisting with the procuring of supplies so that 

Ms. Bennett could treat the victim‟s injuries does not, in our view, evince that the 

defendant shared Ms. Wiley‟s intent to withhold medical treatment from the victim. 

Indeed, the treatment facilitated by the defendant was the only medical treatment the 

victim received. No proof exists that the defendant actively discouraged Ms. Wiley from 

seeking medical treatment for the victim or prevented her from doing so. See Dorantes, 

331 S.W.3d at 386-87 (affirming conviction when evidence established that Dorantes 

“knowingly and voluntarily shared in the criminal intent of the crime and promoted its 

commission” because he “was not willing to allow others to either observe the 

seriousness of the victim‟s injuries or ascertain his need for intensive medical 

treatment”). Mr. and Ms. King‟s testimony established Ms. Wiley‟s resistance to taking 

the victim to the hospital. Finally, we cannot say that the defendant‟s admitted 

suggestion to Ms. Wiley that the victim‟s injuries “might not be so bad,” which was 

based upon his own experience with having been burned as a child, rises to the level of 

active encouragement required for a conviction of being criminally responsible for the 

conduct of another. Because the evidence did not establish that the defendant, “[a]cting 

with intent to promote or assist” in Ms. Wiley‟s neglect of the victim, aided or attempted 

to aid Ms. Wiley in the commission of that offense, we conclude that the evidence was 

insufficient to establish that the defendant was criminally responsible for Ms. Wiley‟s 

neglect of the victim under the terms of Code section 39-11-402(a)(2).
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We also conclude that the evidence was insufficient to establish that the 

defendant was criminally responsible for the neglect of the victim under the terms of 

Code section 39-11-402(a)(3). “Subdivision (3) sets forth what criminal liability is 

imposed upon offenders who neglect their duty with intent to benefit from, promote, or 

assist in the commission of an offense.” Id., Sentencing Comm‟n Comments; see also 

State v. Jackie Caldwell, No. E2008-00307-CCA-R3-CD (Tenn. Crim. App., Knoxville,

Oct. 6, 2009); State v. Larry E. Rathbone, No. E2007-00602-CCA-R3-CD, slip op. at 9

(“According to the comments to Tennessee Code Annotated section 39-11-402, 

subdivision (3) places criminal liability in the situation where a person who has a legal 

duty to prevent the crime fails to do so with the specific intent to further the crime.”). 

This court has held that “subdivision (3) relates to situations where a person may be 

criminally responsible for the conduct of another by failing to act” and observed “that 

„for criminal liability to attach, it must be found that there was a legal duty to act and not 

simply a moral duty.‟” Larry E. Rathbone, slip op. at 9 (quoting State v. Jeffrey Lloyd 

Winders, No. 8-142-III, 1989 WL 105710, at *2-3 (Tenn. Crim. App., Nashville, Sept. 

14, 1989)). We also cautioned that the language of the statute did not suggest that the 

legislature intended “„to require every citizen to exercise an affirmative duty “imposed by 

law” to prevent the commission of a crime‟” but instead intended to limit liability under 

the statute “„to members of law enforcement agencies and others (such as care givers or 

custodial parents) vested with a specific duty to prevent a crime from occurring‟” and 

“„to those who have voluntarily undertaken to prevent commission of the offense.‟” 

Larry E. Rathbone, slip op. at 10 (quoting State v. Michael Tyrone Gordon, No. 01C01-

9605-CR-00213 (Tenn. Crim. App., Nashville, Sept. 18, 1997)).

As discussed more fully above, the defendant bore no legal duty to the 

victim, and therefore he was not “vested with a specific duty” to prevent the neglect of 

the victim. Additionally, the record showed that, at all relevant times, the victim was 

within the exclusive care and control of her mother. Moreover, we cannot say that the 

defendant‟s procuring of supplies to treat the victim‟s injuries evinced his intent to 

voluntarily assume the role of the victim‟s caretaker, particularly given the undisputed 

evidence that the defendant saw the victim only once and that Ms. Wiley did not show 

the defendant the full extent of the victim‟s injuries. Finally, “subdivision (3) of the 

criminal responsibility statute not only requires a legal duty, but also requires that the 

individual act with a culpable mental state, specifically, the intent to promote or assist the 

commission of the offense or to benefit in the proceeds or results of the offense.” Larry 

E. Rathbone, slip op. at 11. We have already concluded that the evidence did not 

sufficiently establish that the defendant acted with the intent to promote or assist in Ms. 

Wiley‟s neglect of the victim.

Consequently, because the evidence was insufficient to establish that the 

defendant was criminally responsible for Ms. Wiley‟s neglect of the victim, the 
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defendant‟s conviction of aggravated child neglect is reversed, and the charge is 

dismissed.

Although we have concluded that insufficiency of evidence requires that 

the defendant‟s conviction be reversed and the charge dismissed, we review the 

remaining issues to facilitate any further appellate review.

II. Photographs

The defendant next contends that the trial court erred by admitting 

photographs of the victim‟s injuries taken when she went to the hospital for treatment. 

He argues that, because he was willing to stipulate that the victim suffered serious bodily 

injury in the form of second- and third-degree burns, the only purpose of the entry of the 

photographs was to inflame the passions of the jury. The State argues that the 

photographs were relevant to show that “the defendant was aware of the injuries, and in 

spite of this knowledge, assisted and encouraged” the victim‟s mother not to seek medical 

treatment for the victim.

“Tennessee courts have consistently followed a policy of liberality in the 

admission of photographs in both civil and criminal cases.” State v. Carter, 114 S.W.3d 

895, 902 (Tenn. 2003) (citing State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)). “The 

general rule . . . is that photographs . . . are admissible if they are „relevant to the issues 

on trial, notwithstanding their gruesome and horrifying character.‟” Carter, 114 S.W.3d 

at 902 (quoting Banks, 564 S.W.2d at 950–51). Relevant evidence is evidence “having 

any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” Tenn. R. Evid. 401. Even relevant photographs may be excluded, however, if 

their probative value is substantially outweighed by the danger of unfair prejudice. Tenn. 

R. Evid. 403; Banks, 564 S.W.2d at 950–51. The term “unfair prejudice” has been 

defined as “[a]n undue tendency to suggest decision on an improper basis, commonly, 

though not necessarily, an emotional one.” See Banks, 564 S.W.2d at 951. “The 

admission of photographs lies within the sound discretion of the trial court and will not 

be overturned on appeal absent a showing that the trial court abused that discretion.” 

State v. Odom, 336 S.W.3d 541, 565 (Tenn. 2011) (citing Banks, 564 S.W.2d at 949).

The photographs admitted in this case certainly confirm that the victim 

suffered serious bodily injury, an element of aggravated child neglect. That being said, 

the photographs were not particularly relevant to the defendant‟s knowledge of the 

victim‟s injuries because the photographs were taken several days after the defendant had 

seen the injuries and because the proof established that the defendant had not seen the full 

extent of the injuries. The danger for unfair prejudice certainly exists here, where the 
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photographs depict terrible injuries to an 18-month-old child. Although it is a close 

question, we conclude that the trial court did not abuse its discretion by admitting the 

photographs in this case.

III. Defendant’s Statement

The defendant avers that the trial court erred by refusing to play the entire 

content of his audio recorded statement to the police under the rule of completeness. The 

State asserts that the trial court did not err because the unplayed portion of the statement 

contained inadmissible hearsay.

Unfortunately for the defendant, the entire, unredacted recording does not 

appear in the record on appeal. Without hearing the recording, we cannot assess the 

impact of the trial court‟s exclusion of the evidence. When the trial court makes a ruling 

excluding evidence, the party offering the evidence is obliged to make an offer of proof 

to preserve the issue for review. See Tenn. R. Evid. 103(a)(2) (“Error may not be 

predicated upon a ruling which admits or excludes evidence unless a substantial right of 

the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance 

of the evidence and the specific evidentiary basis supporting admission were made 

known to the court by offer or were apparent from the context.”); see also State v. Hall, 

958 S.W.2d 679, 691 n.10 (Tenn. 1997) (“Not only does [an offer of proof] ensure 

effective and meaningful appellate review, it provides the trial court with the necessary 

information before an evidentiary ruling is made. Indeed, generally, if an offer of proof 

is not made, the issue is deemed waived and appellate review is precluded.”); State v. 

Goad, 707 S.W.2d 846, 853 (Tenn. 1986) (“In order for an appellate court to review a 

record of excluded evidence, it is fundamental that such evidence be placed in the record 

in some manner.”). Furthermore, the appellant bears the burden of preparing an adequate 

record on appeal. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). If the 

appellant fails to file an adequate record, this court must presume the trial court‟s ruling 

was correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993).

IV. Lesser Included Offenses

The defendant contends that the trial court erred by refusing to instruct the 

jury that a violation of the duty to report under Code section 37-1-412 is a lesser included 

offense of aggravated child neglect as charged in this case. The State asserts that the trial 

court committed no error.

Prior to trial, the defendant moved the trial court to instruct the jury that a 

violation of the duty to report as defined in Code section 37-1-412 is a lesser included 

offense of aggravated child neglect. The trial court refused.
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Tennessee Code Annotated section 40-18-110 provides, in pertinent part, as 

follows:

An offense is a lesser included offense if:

(1) All of its statutory elements are included within the 

statutory elements of the offense charged;

(2) The offense is facilitation of the offense charged or of an 

offense that otherwise meets the definition of lesser included 

offense in subdivision (f)(1);

(3) The offense is an attempt to commit the offense charged 

or an offense that otherwise meets the definition of lesser 

included offense in subdivision (f)(1); or

(4) The offense is solicitation to commit the offense charged 

or an offense that otherwise meets the definition of lesser 

included offense in subdivision (f)(1).

Id. § 40-18-110(f).

Our Code defines aggravated child neglect, as charged in this case, as 

follows:

(a) A person commits the offense of . . . aggravated child 

neglect . . . who commits . . . child neglect, as defined in § 39-

15-401(b) . . . :

(1) The act of abuse, neglect or endangerment results in 

serious bodily injury to the child. 

T.C.A. § 39-15-402(a)(1). Code section 39-15-401 provides:

Any person who knowingly abuses or neglects a child under 

eighteen (18) years of age, so as to adversely affect the 

child‟s health and welfare, commits a Class A misdemeanor; 

provided, that, if the abused or neglected child is eight (8) 

years of age or less, the penalty is a Class E felony.
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Id. § 39-15-401(b). Code section 37-1-412, regarding a violation of the duty to report, 

provides that “[a]ny person who knowingly fails to make a report required by § 37-1-403 

commits a Class A misdemeanor.” Id. § 37-1-412(a). Code section 37-1-403 provides, 

in pertinent part:

Any person who has knowledge of or is called upon to render 

aid to any child who is suffering from or has sustained any 

wound, injury, disability, or physical or mental condition 

shall report such harm immediately if the harm is of such a 

nature as to reasonably indicate that it has been caused by 

brutality, abuse or neglect or that, on the basis of available 

information, reasonably appears to have been caused by 

brutality, abuse or neglect.

Id. § 37-1-403(a).

An examination of the two statutes reveals that all of the elements of a 

violation of the duty to report are not included within the offense of aggravated child 

neglect. As explained, aggravated child neglect has three elements: “(1) a person 

knowingly must neglect a child; (2) the child‟s age must be within the applicable range 

set forth in the statute; and (3) the neglect must adversely affect the child‟s health and 

welfare.” Sherman, 266 S.W.3d at 404. A violation of the duty to report requires a 

showing that (1) a person knows about or has been asked “to render aid to any child who 

is suffering from or has sustained any wound, injury, disability, or physical or mental 

condition”; (2) “the harm is of such a nature as to reasonably indicate that it has been 

caused by brutality, abuse or neglect or that, on the basis of available information, 

reasonably appears to have been caused by brutality, abuse or neglect”; (3) the person has 

failed to report the harm to the appropriate authorities. T.C.A. § 37-1-412(a). Because 

all of the elements of a violation of the duty to report are not included within the offense 

of aggravated child neglect, violation of the duty to report does not meet the statutory 

definition of a lesser included offense, and the trial court did not err by refusing to 

provide a jury instruction on that offense.

V. Sentencing

In his final claim for relief, the defendant asserts that the trial court erred by 

imposing a Range II sentence when the State failed to file a notice seeking enhanced 

punishment as required by Code section 40-35-202. The State contends that the 

defendant waived any complaint regarding his range classification by conceding at the 

sentencing hearing that he was a Range II offender.
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Our standard of review of the trial court‟s sentencing determinations in this 

case is whether the trial court abused its discretion, but we apply a “presumption of 

reasonableness to within range sentencing decisions that reflect a proper application of 

the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 

(Tenn. 2012). The application of the purposes and principles of sentencing involves a 

consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of 

the defendant . . . in determining the sentence alternative or length of a term to be 

imposed.” T.C.A. § 40 35 103(5). Trial courts are “required under the 2005 amendments 

to „place on the record, either orally or in writing, what enhancement or mitigating factors 

were considered, if any, as well as the reasons for the sentence, in order to ensure fair and 

consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. § 40 35 210(e)). 

Ultimately, under the holding in Bise, “[a] sentence should be upheld so long as it is 

within the appropriate range and the record demonstrates that the sentence is otherwise in

compliance with the purposes and principles listed by statute.” Id. at 709.

Code section 40-35-202 provides:

If the district attorney general believes that a defendant 

should be sentenced as a multiple, persistent or career 

offender, the district attorney general shall file a statement 

thereof with the court and defense counsel not less than ten 

(10) days before trial or acceptance of a guilty plea; provided, 

that notice may be waived by the defendant in writing with 

the consent of the district attorney general and the court 

accepting the plea. The statement, which shall not be made 

known to the jury determining the guilt or innocence of the 

defendant on the primary offense, must set forth the nature of 

the prior felony convictions, the dates of the convictions and 

the identity of the courts of the convictions. The original or 

certified copy of the court record of any prior felony 

conviction, bearing the same name as that by which the 

defendant is charged in the primary offense, is prima facie 

evidence that the defendant named in the record is the same 

as the defendant before the court, and is prima facie evidence 

of the facts set out in the record.

T.C.A. § 40-35-202(a). “The purpose of the requirement is to provide the defendant with 

„fair notice‟ that he is exposed to something other than standard sentencing. It is intended 

to facilitate plea-bargaining, to inform plea decisions, and to assist with trial strategy.” 

State v. Benham, 113 S.W.3d 702, 705 (Tenn. 2003) (quoting State v. Adams, 788 S.W.2d 

557, 559 (Tenn. 1990)).
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[T]he notice provision of Tenn. Code Ann. § 40-35-202(a) 

requires, at a minimum, that the State file: (1) written notice, 

(2) clearly expressing the State's intention to seek sentencing 

outside of the standard offender range, (3) setting forth the 

nature of the prior felony conviction, the dates of the 

convictions, and the identity of the courts of the convictions.

State v. Livingston, 197 S.W.3d 710, 713-14 (Tenn. 2006) (footnote omitted). “Failure to 

file any notice to seek enhanced sentencing pursuant to Tennessee Code Annotated 

section 40-35-202(a) is grounds for re-sentencing as a Range I offender.” State v. 

Cooper, 321 S.W.3d 501, 507 (Tenn. 2010) (citing State v. Pender, 687 S.W.2d 714, 

719–20 (Tenn. Crim. App. 1984)).

The defendant correctly points out that no notice appears in the record on 

appeal. At the sentencing hearing, however, the State indicated that it had “provided 

notice to [the defendant] prior to trial that he was a Range II offender.” Also at the 

sentencing hearing, the defendant acknowledged both his criminal record and his release 

eligibility classification: “[The defendant] absolutely 100 percent does have a record and 

that record makes him a Range II . . . .” Because the defendant acknowledged at the 

sentencing hearing that he had notice of his record and that he was a Range II offender, 

we are not inclined to conclude that the absence of the required statutory notice from the 

appellate record indicates that the State actually failed to file notice as required under 

Code section 40-35-202. Consequently, the trial court did not err by imposing a Range II 

sentence.

Conclusion

The evidence adduced at trial was insufficient to support the defendant‟s 

conviction of aggravated child neglect. Accordingly, we reverse the judgment of the trial 

court and dismiss the charge against the defendant.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE