# FILED
March 10, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

SESSION, 2000
STATE OF TENN ESSEE, * * No. M1999-959-CCA-R3-CD Appellee, * * WILSON COUNTY vs. * * Hon. J. O. Bond, Judge HENRY DEQUAN RHODES, * * (First Degree Felony Murder Appellant * Committed in the Perpetration of * Aggravat

ed Child Abu se) For the Appellant : For the Appellee : Gregory D. Smith Paul G. Summers Contract Appellate Defender Attorney General and Repor ter One Public Sq., Ste 321 Clarksville, Tn 37040 Kim R. Hepler Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 Tom P. Thompson, Jr. District Attorney General Robert Hibbett Asst. District Attor

ney General 119 College Street Labanon, TN 37087

OPINION FILED: AFFIRMED David G. Hay

es, Judge2 OPINION
The appellant, Henry Deq uan Rhodes, was indicted by a Wilson County Grand Jury for first deg ree felony murder committed in the perpetration of aggravated child abus

e. Following a jur

y trial, he was found g uilty of the indicted offense and sentenced to life imprisonment. On appeal, he argues: I. The evidence is insufficient to sustain a verdict of felon y murder; and II. The trial court erre

d in admitting certain phot ographs into evidence.

After review, we find no error of law req uiring reversal . The judgment of the trial court is affirmed.

Background
Shortly after 2:00 a.m. on the mor ning of November 6, 1996, Lieut enant Ed Denning of the Wilson County Sherif f’s Department responded to an emergency “call” at 2104 Locust Gro ve Road. Arrivi ng at the location, he disc overed the appellant, his girlfri end, Christy Yarbr ough, and his brother, Deedy Rhodes. Deedy Rhodes was holding si

xteen month old Brian Yar brough, the son of Christy Yarbrough. The child w as “limp.” Denning bel ieved that the child w as either unconscious or deceased. Denni ng further noticed the odor of alc ohol on the people present, as if “there had been a party.” The appellant told Lieutenant Denning that “he had been try ing to get Ms. Yar

brough to take the baby to the doctor, and she hadn’t done it. .. .” The baby was tr ansported to Universit

y Medical Center in Lebanon.

Dr. Scott Giles, the medic al examiner for Wilson County and the di rector of the emergency room at the U niversity Medic al Center, was on duty

at the time Brian3

Yarbrough arriv

ed at the hospital. The call pr eceding the victim’s

arrival stated that the ambulance team was “bringing in an approximately 18 month old child in full cardiac arrest.” D r. Giles met the ambulance w hen it arrived. He immediately noticed that the c hild was covered w

ith linear bruises on his legs and arms as w ell as some larger bru ises on his face. I noticed that he had no heart activity whatsoever which is unusual in a child that young. It takes q uite an insult to stop a chi ld’s heart. At that time, I called the ambulance crew to call the police because the child had probably been beaten to death.
The child was moved into the emergency room, wh ere resuscitation was attempted. Dr. Giles obser ved that the child “had hemor rhages in the retina in the back part of his eye whi ch is considered very good evidence that he had been shaken or received a str ong blow to the head.” “ The child never establis hed any cardiac activity

or any independent breathing .” Dr. Giles diag nosed the death as the result of “shaking baby syndrome which is child abuse.” “The immediate c ause of death was intra cranial

bleeding as a consequence of blunt force trauma to the head.” Additionally, D r. Giles rejected any hypothesis that the vi ctim’s injuries and ultimate death could have res ulted from a fall or other “acci dent.” By visual inspection of the victim, Dr. Giles concluded that the injuries occurred “certainly within the last 12 to 24 hours prior to his arrival [at the hospital.]”
Dr. Charles Harlan performed the autopsy on the child. The autop sy confirmed Dr. Giles diag nosis that “death occurred as result of blunt force trauma to the head.” Dr. Harlan co ncluded that [t]he blunt force trauma to the head i ncludes a number of different injuries. They include diffuse subarchnoid hemorrha ge. . . .There are multiple contusions of the left cheek. A contusion is a bruise indicating that he received multiple blows to the left cheek. There is pulmonary congestion and hemorrhage which is part of the reaction to the injury to the head. There is a right subdural hematoma of 75 ccs that would be about 15 teaspoons that’s located on the right side tha t is, it is in the space between the arachnoi d membrane and durameter. The durameter . . . is the membrane w hich completely surroun ds the brain. The consistency of this membrane i s such that it is consis tent with having been there for some 8 to 12 hours, most likely 8 to 10 hours prior to the time of death, and that indicates tha t the point of injury occurred so me 8 to 10 hour s, perhaps 8 to 12 hours pr ior to the ti me of death. There’s also a . . .pooli ng of blood and soft tissue below the4 scalp on the back of the head. There are also multiple paral lel linear contusions pr esent here and there on the body . . . . . . .injuries to the front of the body, which includes the contusions on the left cheek. It includes multiple of the parallel linear contusions which have approxi mate distance apart of a tenth of an inch, each of them. . . . Of the left and rig ht sides of the body. . . .the various parallel linear contusi ons and they’re approxi mately seven in number. Various parallel linear

contusions and other straig ht line linear contusions that are present on the right side of the head. And there are at least four double parallel lines and then multiple single lines, approximately four of those. .. .the left side or view of the head and neck showi ng again th e contus ions on th e cheek a nd at lea st two groupings of parallel l inear contusions. The contusion present on the left ear lobe is probably a continuation of the parallel l inear contusion grouping that is present slightly above and behind the left ear. It is my opinion that the mul tiple parallel linear contusions are caused by the person being str uck by some probably c ylindrical object o

f approximately the same si ze and shape and consistency as a coat hanger. It could be either a coat hanger, a swit

ch, another piece of metal or hard plastic. . .

.

. . . The contusions on the face are consistent with the f ace being struck by some object other than the ob ject causing the parall el linear contusions and this could be s uch things as an open hand, a fist , a skillet, a number of different things. . . .

Lieutenant Anthony Murray, along with other law enforcement officers, conducted a search of the residenc e at 2104 Locust Grove Road. During the search, he discovered “[a] switch off a tree, or limb, small limb” “under the couch” in the living room. De

tective Lieutenant Dav

id Kennedy, the lead inve stigator in the homicide of Brian Yarbroug h, “took a statement” from the appell ant “at 8:35 am the morning of the 6 th .” In this statement, the appel lant explained that, on Nov ember 5, 1996, at approximately 2:00 or 3:00 pm, Christy Yarbrough picked him up at his grandmother’s house and took hi m to the Locust Grove address . Later that afternoon, Christy took Deedy to the store, leav ing sixteen month old Br ian in the care of the nineteen year old ap pellant. Brian and [the appellant] w ere sitting on the couch w atching TV. Brian did not have any clothes on except his diaper. [ The appellant] was on the telephone, Brian went i n the kitchen and [the appellant] heard a jar5 break. Prior to Chri sty leaving the hous e Brian was misbehavi ng and [the appellant] told Christ y to go out and get a sw itch. [The appellant] did not whip him then. [The appellant] whipped Brian after he broke the jar in the kitchen. [The ap pellant] hit Brian three or four times. After the spanking Brian sat down on the couch and watc hed TV. . . . Christy and Deedy r

eturned from the store approxi mately ten minutes later. They ate and then watched televi sion. [The appellant] noticed Brian l aying on the couch, his eyes were open but his body

was limp. [The appella nt] took Bri an outside to get some fresh air because Brain didn’t seem to be breathing right. . . . [He] laid Brian back on the couch. Bri an’s body was stil l limp. [He] picked Bri an up and shook him to try and w ake him up. [The appellant] laid B rian back on the couch and Brian star ted foaming at his mouth. . . . Foam also came out of Brian’s nose. [ The appellant] then picked Brian up and carried him to the bedroom and laid him on the bed. At 10:35 pm on the evening of the 6th,the appellant provided a s econd statement in which he admitted that he “whipped Brian w ith the switch sev

eral times including hitting Br

ian on the face and head area.” He further admitted that, ”later on that night [he] hit Brian in the back of the head with the palm of [his] hand. . . .” He conceded that “[h]e didn’t mean to hit Brian that hard o n the back of the head.”
At trial, the appellant testified in his own defense. He explained to the jury that his prior statements to the police were inv oluntary and coerced. H e denied making any statement that he “ smacked the baby with the palm of my hand . . . . I did not do anything to harm it.” He further denied making the statemen t that “I didn’t mean to hit Brian that hard on the back of his head. ” Notwithstanding these recantations, the appellant di d not deny “switchi ng” the child, in fact, he ad mitted that he “told Christy to go out and get a switch” “just in case Brian misbehaved.” Moreover, the appellant a dmitted that the child “appear[ ed] to be all right” w

hen he first arrived at the hous e and that, after the appellant “sw itched” him, the child had marks on his body. He al so related that there wer e others in the house during the ten hour period prior to the child’s death, including his brother, the child’s mother, and his cousin, Walter Love.6 Based upon this evidence, the jury found the appellant gui lty of first degree felony murder.
I. Sufficiency of the Evidence
In his first issue, the appel lant contends that the evidenc e is insufficient to support the jury’s v

erdict finding the appellant guilty of first degr ee felony murder committed in the perpetration of ag gravated child abuse. Specifically, the appell ant asserts that his “use of a switch to spank [the victim] on the legs did not cause said child’s death from head trauma.” He adds that, “[s]imply put, [he] ‘just can’t take the blame for something’ he did not do. ” In support of his position,the appellant argues that “[s]everal other people had access to the child in question for the ten hour period in which . . . the injuries . . . we re inflicted.”
To support a conviction for felon y murder committed during the perpetration or attempt to perpetrate the offen se of aggravated child abuse, the evidence must show, beyond a reasonable doubt, a "killing of another committed in the perpetration of or attempt to perpetrate any .. . aggravated child abuse...." Tenn. Code Ann. § 39-13-202(a)(2) (1996 Supp.) . As charged in the pres ent case, “a person commits the offense of aggravated child abuse . . . who commits the offense of chi ld abuse ... and: (1) The act of abuse results in serious bodily i njury to the child." Tenn. Code Ann. § 39-15-402(a) (1996 Supp.). Child abuse is defined as follows: 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 ... commits a C lass A misdemeanor; provi ded, that if the abused child is six (6)

years of age or less, the penalty is a Class D felony. Tenn. Code Ann. § 39-15-401 (1996 Supp. ).
There is no dispute that the six teen month old child died as the r esult of blunt force trauma to the head. The victim also had multiple bruises consistent with being7

hit with a switc

h. Expert testimony opi ned that these type of injuries were consistent with child abuse and inc onsistent with an acci dental fall. The appellant conceded that the child was in his presence during the time period the fatal blows were inflicted and that he had hit the ch ild with a swit ch. Although, at trial,the appellant recanted his earlier st

atements that he hit the child i n the head, it was for the jur y to evaluate the credi bility of h is testim ony. Inde ed, on ap peal, it i s not the prerogati ve of this court to revisit questions of witness credibility, that function being solely within the province of the trier of fact. See generally State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995); State v. Boling , 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992). Rather, it is this court’s duty to affirm the conviction if the evidence viewed in the light m ost favor able to th e State is suffici ent for a ny rationa l trier of fact to h ave found the essential elements of the offense beyon d a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (1993); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e). Moreover, once a def endant is convicted, the presumption o f innocence is removed and is replaced with the presumption of guilt so that on appeal the convicted defendant has the burden of demonstrating that the evi dence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).
Although the evidence in this case is circumstantial, circumstantial evidence alone may be sufficient to support a conviction. See State v. Buttry , 756 S.W.2d 718, 821 (Tenn. Crim. App. 1988); State v. Cooper , 736 S.W.2d 125, 129 (Tenn. Crim. A pp. 1987) . Howe

ver, if a convi ction i s based p urely on circumstanti al proof , the facts and circumstances must be so overwhelming a

s to exclude any other explanation except for the defendant’s guilt. See State v. Black , 815 S.W.2d 166, 175 (Tenn.1991); State v. Tharpe , 726 S.W.2d 896, 900 (Tenn. 1987); Cooper , 736 S.W.2d at 129. “It must establish such a cer tainty of guilt of the accus ed as to8

convince the mind beyond a reasonable doubt that the [appellant ] is the one who committed the crime.” Tharpe , 726 S.W.2d at 896. When reviewing circumstantia l evidence, this court must remember that the jury deci des the weight to be g iven to circumstantial evidenc

e and that “[t]he inferences to be dr awn from such evidence, and the extent to which the circumstances are consi stent with guilt and inconsistent with innocence are questions primarily for the jury.” Marable v. State , 203 Tenn. 440, 313 S.W.2d 45 1, 456-57 (1958).
In the case sub judice, the evidence points unerringly to the appellant. A jury is not compelle d to believe a def endant’s version of the events su rrounding a homicide, even if uncontradic ted. Moreover, the jur

y could reasonably i nfer that the appellant inflicted the fatal blow s based upon his access to the c hild, his admitted beating of the child with a switch, and his statement that “[he] didn’t mean to hit Brian that hard on the back of the head .” These facts and the inconsiste ncies in the appellant’s accounts of the ev ents would permit a rati onal juror to infer beyond a reasonable doubt that the appellant committed the offense of felony murder during the perpetration of aggrav ated child abuse. See Jackson v. Virginia , 443 U.S. at 317, 99 S.Ct. at 2789; Tenn. R. App. P.13(e). This issue is w ithout merit.

II. Admissibili

ty of Photo

graphs of the Victim
In his final issue, the appell ant contends that the trial cou rt erred in allowi ng “gory and unduly pr

ejudicial photographs” of the victim to be shown t o the jury. Specifically, the appella nt, relying on Gladson v. State , 577 S.W.2d 686 (Tenn. Crim. App. 1978), argues that, since the appellant did no t dispute and was wi lling to stipulate as to the victim’s cause of death, admission of the aut opsy photographs of1 We note that, alt hough the appel lant fai led to obj ect to th e introduction of th ese photographs duri ng the tri al, t he trial court didrule on t heir admissibi lit y. Moreover , the appel lant failed to raise this issue i n his wri tten motion f or new tri al. Notwithstandi ng this omissi on, at t he hearing on the motion, couns el orally amended the motion to include this issue. The trial court agreed to hear the issue and, at the conclusi on of the heari ng, ruled upon the admissibi lit y of the photog raphs. A ccordin gly, we proc eed to re view the iss ue. 9 the victim’s internal

organs are inadmissibl e. 1

We do not find Gladson controlling in the cas e sub judice . In Gladson , the State argued that the photogr aphs of the autopsy established the cause of death. Defense counsel offered to stipulate that the victim died as a re sult of injuries received in an altercation between the victim and the defendant. A pa nel of this court held that photographs of the victim’s cranial bones and brain inad missible in light of the defendant’s stipulati on. In the present case, althoug h he now concedes the cause of death, at trial, the appellant never offered to stipul ate the cause of death. Thus, this court is not bound by the result in Gladson

.
Tennessee court’s follow a pol icy of liberality in the admission of photographs in both civil and cri minal cases. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978) (citations omitted). Acc ordingly, “the admis

sibility of photographs

lies within the discretion of the trial cour t” whose ruling “

will not be overtur

ned on appeal except upon a clear showing of an abuse of discretion.” Id. Notwithstanding, a photograph must be found relevant to an iss ue that the jury must decide before it may be admitted into evidence. See State v. Vann , 976 S.W.2d 93, 102 (Tenn. 1998), cert. denied , –U.S.–, 119 S.Ct. 1467 (1999); State v. Braden , 867 S.W.2d 750, 758 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1993) (citation omitt ed); see also Tenn. R. Evid. 401. Additionally, the probative value of the photograph must outweigh a ny unfair

prejudicial effect that it may have upon the trier of fact. Vann , 976 S.W.2d at 103 (emphasis added); Braden , 867 S.W.2d at 758; see also Tenn. R. Evid. 403. In this respect, we note that photographs of a murder victim are prejudicial by their

very nature. How

ever, prejudicial ev

idence is not per se excluded; indeed, if this w ere true, all evidence of a crime would be excl uded at trial.10

Rather, what is excluded is evidence which is “unfairly prejudicial,” in other words, that evidence which has “an undue tendency to sugg est decision on an improper basis, commonly, though not necessarily an emotional one.” See Vann , 976 S.W.2d at 103 (citations om itted).
Of the thirty-nine photographs of the victim tendered for introd uction at trial, the trial court only permitted introduction of sev en photographs. Three of the sev en are autopsy photographs specifically depicting the injury sustained to the victim’s cranial area. Other portions of the victim’s body are not visible in these photographs. The remaining four photographs depict the numerous bruises inflicted upon the victim’s body,specifically, the left si de of the body, the right si de of the body, the right side of the victim’s head, and the l eft side of the victim’s head. These four photographs were ta ken prior to the autopsy.
Upon review, we find the photographs relevant and lacking danger of unfair prejudic e. Althou gh we conce de that t he photo graphs are not plea sant to vie w, we also acknowledge, as d id the trial court, that mur der, by its very

nature, is not pleasant. Indeed, in child abus e cases, particularly

those resulting in the d eath of the child, it is not uncommon for medical testimony to play a central role in establishing the relationship between the injuries received and whether they were occasioned by accidental or non-accidental means. We conclude that the photographs in this case accurately depict the nature and the extent of the victim’s injuries. Dr. Harlan explained to the court that the photographs of the auto psy were necessary to describe the actual extent of the fatal inj uries and to be able to conv ey to laymen the complex medic al testimony as to the manner and cause of death; one shows the subdural hematoma on the convex of the brain, and the other shows it on the under side after the brain has been re moved to show the extent completel y around the brain on the r ight side. The other of these shows the subg aleal hematoma which is pr esent on the back of the head, showing it s size, shape and charact er. See, e.g. , State v. Stephenson , 878 S.W.2d 530, 542 (Tenn. 1994); State v. Smith ,11

868 S.W.2d 561, 576 (Tenn. 1993), cert. denied , 513 U.S. 960, 115 S.Ct. 417 (1994) (photographs used to illustrate witnesses’ testimony admissible for this purpose). But see State v. Duncan , 698 S.W.2d 63 (Tenn. 1985), cert. denied , 475 U.S. 1031, 106 S.Ct. 1240 (1986) (where medical testimony adequately describes the degree of the injury, gruesome or graphic phot ographs should not be admitted)

. Additionally, the photographs of the victim’s bruised body prior to the autopsy were relevant to establish the underlying offense of aggravated child abuse and were probative to explaining the nature of the injuries inflicted upon the victim which could not accurately be relay ed verbally. Cle

arly, the photographs ar e relevant to establishing (1) the c

ause of death and (2) the underly ing offense of aggravated child abuse.

Moreover,we conclu de that the pho tographs w

ere not especially gr

uesome or shocking in nature s o as to preclude their admiss ion. Although any photog raph depicting the autopsy of a c hild would be inherentl

y prejudicial in a criminal case, the photographs in the present c ase were more probativ e regarding the medical testimony of the victim’ s injuries than prejudic ial. See, e.g. , State v. Terrence L. Davis , No. 02C01-9511-CR-00343 (Tenn. Crim. App. at Jackson, Jun. 2, 1997), perm. to appeal denied , (Tenn. Aug. 31, 1998) (photographs of child victim’s autopsy admissible to show severity of injuries); State v. James Dubose , No. 01C01-9405-CC-00160 (Tenn. Cr im. App. at Nashville, Aug. 25, 1995), aff’d on other grounds , 953 S.W.2d 649 (Te nn. 1997) (photograph of internal organs of child victim is probativ

e in understanding testimony of medical examiner); compare State v. Collins , 986 S.W.2d 13, 21 (Tenn. Crim. App. 1998) (color photographs of bruised, bloodied, nude infant v ictim prejudicial w

here medical testimony undisputed); State v. Cynthia Rober son and Rhodney Roberson , No. 02C01-9503- CC-00059 (Tenn. Crim. App. at Jackson, Dec. 28, 1995) (introduction of autopsy photograph of child abuse victim did not depict injury resulting in death thus more prejudicial than probative). As such, we cannot conclude that introduction of th ese12

photographs had a tendency to suggest a decision on an improper or unfair basis. The photographs were necess ary to explain to the jury the cause of death to the child, i.e. , the result of a blow to a c hild’s head, and that the injur ies were not accidental. Though the photographs may be characterized as gruesome, the y are relevant and are not so “ unfairly prejudicial” as to bar their admission.We cannot conclude that the trial cour t abused its discretion by admitting these photographs

. See Tenn. R. Evid. 403; State v. Evans , 838 S.W.2d 185 (Tenn. 1992), cert. denied , 510 U.S. 1064, 114 S.Ct. 740 (199 4); Banks , 564 S.W.2d at 947. T his issue is without meri

t.

For the reasons stated herei n, we find no error of law requiring rev

ersal. Accordingly, we affirm the appellant’s judgment of conviction for first degree m urder.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

___________________________________ JERRY L. SMITH, Jud ge13

___________________________________ NORMA MCGEE OGLE, J udge