### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE Se pte m be r 27, 200 5 S es sio n
STA TE OF TEN NES SEE v. AD AM F. WESTE R

Direc t Appeal from the Cr im inal Cou rt for Anderson County No. A2CR196A Jam es B. Scott, Jr ., Judge

No. E2004-02429-CC A-R3- CD - F iled Fe bruary 9, 2006

An Ander son CountyCriminal Court juryconvicted the appellant, Adam F. Wester, of first deg ree felony murder in the pe rpetration of ag g ravated child abuse
, and the trial court sente nced him to life imp ri so nme nt. Th e app e lla nt ap pe a ls, c la imi ng (1 ) that the tr ia l cou rt e rr e d by a llo wi ng the jury to hear about prior injuries to the victim; (2) tha t t h e t rial court improperly admitted into evidence photogr aphs of the vic tim’s body ; (3) that the tria l court improper ly instructed the jury on the mens

rea element of

the crime; (4) that the tria l court er red by ref using to g ive a spe cial jury instruction

on “ac cident”; (5) that the trial court err ed by g iving sequential jury instructions; a nd (6) t h at the

e vid e nc e is i ns uf

fi c ie nt t o s up po rt

the c on vic tio n. Up on re vie w of the re c or d a ndthe pa rt ie s’ br ie fs
, we a ff ir m th e jud g me nt o f the tr ia l c ou rt

.
Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which J ER R Y L. S MI TH and A L AN E. G L EN N , J J ., joined.

J . Thomas Marsha ll, J r., Clinton, Tennessee , for the a ppellant, Adam F . Wester.

Paul G

. Summers, A ttorney Gene ral and Reporter ; B lind Akr awi, Assistant A ttorney Gene ral; James N. Ramsey , District Attorney Gene ral; and J anice G. Hicks, Assist ant District Attorney Gene ral, for the appe llee, State of Te nnessee

.
OP IN ION

Th is c a se aro se fr om the de a th of the app e lla nt’ s six- mon th- old so n, B ry so n We ste r. Am y Russell, the appellant’s e x -wife , testified that she mar ried the a ppellant in Fe bruary

2001 . At the time of the marriag e, Russell had a six-y ear -old son, Aar on, and a thr ee- y ear -old daug hter, Aly ssa. I n J une 2001, the victim was born. Russell worked about sixt y hours per wee k as a lice nsed pra ctical

nurse a nd as a c ashier at K-Mart. Whi le Russell was working , her mother or the a ppellant took car e of the victim.-2-

On Dec ember

16, 2001, Russell was at home with the victim and bathe d and fe d him. That

a ft e rn oo n, Rus se ll’ s p are nts arrive d to take the vic tim to h a ve his pic tur e ma de wi th S a nta Claus

. Russell’s mother broug ht an outfit for the vic tim to wear, a nd Russell and h er m o t h er dressed the victim in the outfit. R ussell’s pare nts left with the victim about 3:00 p.m. S o m et i m e later , the appellant a

rrived home , and Russell wen t t o work, lea ving A aron a nd Aly ssa at home with the appellant. Russell retur ned home f rom work a

bout 10:00 p.m. and found all of the lig hts turned on and Aa ron and A ly ssa aslee p. The a ppellant and the vic tim were g one, and the victim’s car seat wa s on the floor in the living room. The victim’s clothes w ere on the floor in his bedroom, a nd a dar k stain was on the mattre ss in his crib. About five mi nutes afte r Russell returne d home, the appe llant telephoned a nd told Russ ell that he had taken the victim to the emerg ency room. Russell telephoned her pa rents and told them that the a ppellant had take n the victim to the hospital. Shortlythere afte r, Tammy Shepherd, a

friend of Russell’s mother, came to the home to stay with Aaron and Aly ssa. Russell went to the Methodist Medical Center in Oa k R i d ge and lea

rned tha t the victim had died. She sa id tha t sh e ne ve r hit the vic tim or thr e w him do wn , th a t hi s la st p hy sic a l e xami na tio n w a s in October 2001, and that the victim was a normal, hea lthy

baby . She said that there wer e no bruises on the victim when she bathed him e arlier that day

. Russell a dmitted that she pled nolo contende re to failure to r eport c hild abuse.

Al y ssa Rus se ll, wh o w a s f

ive y e ars olda t th e tim e of tr ia l, t e sti fi e d th a t sh e a ndthe vic tim shar ed a bedr oom. On the eve ning of Dec ember

16, 2001, the appe llant, Aly ssa, and Aa ron we nt to Burg er K ing and Blockbuster video store. Whil e they wer e gone, the victim was at home alone. After much leading by

the State, Aly ssa testified that sometime on the da y of t he victim ’s dea th, the vic tim wa s in his c ri b a nd sta

rt e d to c ry

. Th e app e llant c a me int o th e ro om a ndtol d A ly ssa to g o to sleep. The victim wa s l y ing on his stomach, a nd Aly ssa saw the appellant hit the victim on the victim’s back, c ausing the victim to bounce up and dow n.

Aar on Scales, who w as eight y ear s old at t he ti me of trial, testified that he was the victim’s brother. O n the nig ht of Dec ember 16, 2001, he, Aly ssa, and the a ppellant went to Burg er K ing a nd Bl o ckb u s t erv i d eo s t o re

. W h i l e t h eywe re go n e, t h e v i ct i mwa s at h o m e a l o n e i n h i s b ab y s wi n g. When they

returne d home, the victim was c ry ing, a nd the appellant picked up the victim and car ried the victim to his room. Aaron and Aly ssa watche d a videotape in Aa ron’s be droom, and Aly ssa slept in Aaron’ s room that night. He said that they fell asleep during the movie, that he did not hear the victim cry , and that he did not know how the victim died.

Mi chael Be rthia

ume , a ph y sic ia n’ s a ssi sta nt, te sti fi e d th a t he wa s w or kin g a t Me tho dis t Medica l Center on the nig ht of Dec ember 16, 2001. The a

ppellant ca me into the hospital carry ing the vi ctim a n d s a id
, “ [P ]l e a s e h e lp me

. ” T h e v ic ti m w a s n o t b r e a th in g , a n d B e r th ia u me s ta rted

c ard iop ulm on ary

re su sc ita tio n ( CPR) , u sin g tw o f ing e rs to c omp re ss the vic tim ’s c he st. Th e vic tim

was we aring only

a diape r, wa s wrappe d in a blanket, a nd was c old. On cross-e x amin ati on, Be rthiaume testified tha t CP R could crush a child’s chest, damag e interna l org ans, or br eak ribs. He stated that the victim had “ blotchy spots” on his chest and that the a ppellant sounded distraug ht.-3-

Dr . B arry Cum min g s te sti fi e d th a t on De c e mbe r 1 6, 2001 , h e wa s w or kin g a t Me tho dis t Medica l Center. Michae l B erthiaume y elled that he nee ded help, a nd Dr. Cummings we nt into the trea tment r oom. The victim wa s lifeless and was not br eathing

. He stated that the victim was cold, which could ha ve re sulted from the v i ct i m ’s having been de ad for a period of time or could have resulted f rom the victim’s having been e x posed to a cold environme nt. Dr. Cummings put an a irway tub e int o th e vic tim ’s lun g s, a ndnu rs e s u se d a ba g a nd ma sk app aratus to g e t oxy g e n in to the vic tim

. A ca rdiac monitor reve aled that the victim had a very slow, irreg ular he art rhythm but no puls e. Dr

. Cummi ng s tried to resusc itate the victim for a bout one hour. At some point, the victim had a slig ht

re turn o f c ard ia c a c tiv ity , b ut the a c tiv ity wa s los t. He state d th a t th e vic tim ha d b ru ise s a c ro ss h is

c he st a ndabd ome n, a

br uis e un de r h is c hin , a

fe w b ruis es on his ba c k, a ndre dn e ss o n o ne of his buttocks. He stated that he talked to the a ppellant and that the a

ppellant told him the following: The

app e lla nt p ut the vic tim

to b e d a bo ut 6 :00 p. m. a nd pr op pe d up a bo ttl e in the c ri b w ith the vic tim

. About 10:00 p.m., the appellant che cked on the victim and discovere d that the victim was not moving. The appellant trie d to wake the v i ct i m , g ot no response, attempted CPR , and took the vic tim to the e me rg e nc y

ro om.

On cr oss-examination, Dr. Cummi ng s testified that the appe llant was upset and pac ing. H e
s ai d t h at i f CPR was done incorr ectly , it could cause broken ribs; a bruised hea rt; or a tea

r in the

me se nte ry , th e blo odve sse ls tha t su pp ly blo odto the int e sti ne s. He state d th a t in or de r to d o CPR on a baby proper ly , one or two finge rs s hould be used to depr ess the che st and that the compre ssions should have a

depth of one -half to one inch. He s aid t hat too much pre ssure c ould frac ture the

s t er n u man d t h a ta f

ra ct u re d s t er n u mco u l d i n j u re t h e u p p erp ar to f t h e a b d o m en

. Dr

. C u m m i n gs state d th a t so me of

the vic tim ’s br

uis e s lo ok e d f

resh and that so me loo ke d a bo ut t we nty -f

ou r- to forty -eig ht-hours old.
Wanda Russell, Amy

Russell’s mother and the victim’s g randmother , tes t i fi ed that on the

a ft e rn oo n o f D e c e mbe r 1 6, 20 01 , she a nd he r hus ba nd too k the vic tim to h a ve his pic tur e ma de wi th Santa Claus. They returne d to Amy Russell’s home about 5:30 p.m . The a ppellant was home , but Amy had g one to work. A bout 10:30 p.m., Amytelephoned he r mother a nd was hy sterica l. Wanda Russell telephoned Tammy Shepherd a nd as k ed h er t o g o to Amy ’s home. Mrs. Russell and her hu sb a ndthe n w e nt t o th e ho me a nd sta y e d the re un til Am y te le ph on e d a ndtol d th e m th a t th e vic tim ha d d ie d. On c ro ss- e xami na tio n, Mr s. Rus se ll t e sti fi e d th a t be fo re sh e too k th e vic tim to h a ve his picture ma de, she he lped Amy chang e the victim’s shirt and ther e we re no br uises on the victim at that time. She said that on the afte rnoon of Dec ember 16, she noticed tha t a vein in the victim’s nec k was throbbing . She said that she did not reme mber telling a police of fice r that t h e victim had shallow breathing. She state d that the victim did not fuss or cry that afte rnoon.
Don Russell, W anda Russell’s husband, testified that on Dec ember 16, 2001, he and his wife took the victim to the mall in order to ha ve the victim’s picture ma de with Santa Claus. He sta ted that he neve r hit or t hrew the vi ctim. On cross-examination, R ussell testified that on the way to the mall, the victim appear ed to have a bre athing disorder. H e stopped the c ar, but the victim seemed to be all rig ht. Russell st ated that be fore he and his wife took the vict i m t o t h e m al l , he held the-4-

victim while his wife and Amy Russell chang ed the victim’s clothes. H e did not see any bruises on the vic tim

. Tammy Shepherd te stified that she was Wanda R ussell’s friend. On the nig ht of Dec ember 16, Wanda Russell telephoned a nd asked S h epher d to go to Amy Russell’s house to watch Aa ron and Aly ssa while Amy

went to the hospital. When Shepherd g ot to t h e h o u se, Amy Russell was waiting for he r on the porc h. S h epher d stay ed with Aar on and Aly ssa, who we re a wake . Severa l hours later , the police a

rrived at the home.

Offic er K ent Warre n of the Oa k Ridge Police Depa

rtment testifi ed t h at on December 16, 2001, he we nt to the Me thodist Medica l Ce nter in r esponse to a report tha t a child had died. When he ar rived, he talked with M ichae l Be rthiaume a nd examined the victim. Serg eant Scott B all and De te c tiv e Ron B ou c he r a

rrive d a t th e ho sp ita l, an d Of fi c e r War re n we nt t o A my

Rus se ll’ s h ou se to
secur e the sc ene. T ammy Shepherd and two children were at t he home. Office r Warre n inspected the vic tim ’s c ri b a ndtoo k p ho tog ra ph s.

Se rg e a nt S c ott

B a ll o f the Oa

k Ri dg e Pol ic e De pa

rt men t tes ti fi e d th a t he wa s th e De pu ty Cor on e r f or An de rs on Cou nty

. He sa id that he ha d be e n a de pu ty c or on e r fo r abo ut fo urte e n y e ars ; that he attended the St. L ouis School of Medicine, Medic al, L eg al, and De ath I nvestig ation Training For ce; a nd that he took a master’s course as follow-up to his ini tial training . On Dec ember 16, the Medica l Ex aminer for Ander son Countyreque sted that Serg eant B all g o to the Methodist Medical Center. Ser g eant B all viewed the victim’s b ody and saw three , cre scent-sha ped mar ks on the victim’s head. Ser g eant B all then went to the victim’s home.

Detec tive Ron Bouche r of the Oak Ri dg e P olice Department investigated the victim’s death. On the nig ht of De c e mbe r 16, De te c tiv e B ou c he r wa s pag e d an d ad vis e d tha t a six-mo nth -o ld c hil d ha d die d at the Me tho dis t Med ic a l Cen te r em e rg e nc y ro om. De te c tiv e B ou c he r we nt t o th e ho sp ita l, talked to D r. Cummi ng s, and viewed the victim, who was wea ring only a diaper

. Detec tive Bouc her then went to the victim’s home a nd inspected the victim’s be droom. Severa l day s later, De tective B ou c he r a ndSe rg e a nt B a ll tra ns po rt e d th e vic tim ’s bo dy to the me dic a l e xaminer’ s off ic e in Nashville and attended the victim’s autopsy

. On December 19, Detec tive Bouc her inter viewed the appe l l an t and Amy

Russell separa tely , and both g ave a written statement. Ac cording to the appellant’ s written statement, the a ppellant g ave the victim a bottle about 6:00 p.m. and then went to watch tele vision. Aaron and A ly ssa wer e wa tching television in another be droom. About 9:30 p.m., the appellant checke d on the vi ctim and noti ced that he was ly ing on his back a nd looked pale. The a ppellant picked up the victim a nd discovere d that he was not br eathing

. The appellant put the victim on Aly ssa’s bed a nd beg an bre athing into his mouth. The appellant “ started pushing him hard on his stomach and sides and c hest bec ause I hear d something in his throat.” The a ppellant took the vic tim to the ho sp ita l. D e te c tiv e B ou cher state d th a t th e app e lla nt a lso g a ve a n o ra l st a te me nt i n which the a

ppellant s aid t hat he chec ked on the vi ctim, noticed that the vi ctim was not bre athing , and the n p ic ke d u p th e vic tim

.-5-

Detec tive Bouc her te stified that afte r the a ppellant g ave hi s written statement, he interviewe d the appe llant ag ain and told the appe llant that the victim had bruises, broke n ribs, and a br oken collarbone

. The appellant g ave another written statement. I n the statement, the appellant said that about one month bef

ore the victim’s death, he w as ca rrying the victim to his room and sl ipped and fell. The vic tim “hit his fac e and some of my weig ht landed on him.” The appellant a lso said that afte r Wanda Russell broug ht the victim home on Dece mber 16, the appellant was playing w ith the

v i c t i ma n d “ w a s t h r o w i n g h i mu p a n d d o w n i n f r o n t o f h i s b e d

. ” T h e v i c t i m“ h i tm y ar ms i d e w a ys and he hit the side of

the bed a nd bounced into the bed.” The a ppellant che cked the victim, believed the vict i m wa s al l ri gh t , and g ave the victim a bottle. He then took Aa ron and A ly ssa to g et something to e at and to the video store. About 9:30 p.m., the appellant chec ked on the victim. The victim was pale, a nd the appe llant tried to g ive hi m C P R

. T h e appe llant rushed the victim to the hospital.

On cr oss-examination, Detective B oucher testified that he inspec ted the victim’s room and

e xami ne d th e vic tim ’s c ri b b ut d id n ot c oll e c t a ny e vid e nc e fr om the ho me . Wa nd a Rus se ll t old Detec tive Bouc her tha t the victim had brittle bone disease and shallow breathing. Detective B oucher stated that the a

ppellant told him that the appellant used his knuckles to g ive t he victim CPR and that the appe llant pressed on the victim’s c hest, stomach, and side s. He stated tha t the appellant wa s not a suspec t on Dece mber 19, that he allowed the appellant to leave the police department after g iving his statements, and that the a ppellant was not c harg ed with a c rime until J une 2002.

The State re called Amy Russell to testify

. She stated t hat after she and the appellant lef t the po lic e de pa

rt me nt o n D e c e mbe r 1 9, he r mothe r dr ov e the m home

. I n the c ar, the app e lla nt t oldAm y that he lie d to the of

fi c e rs abo ut thr ow ing the vic tim int o the a ir

. Ac c or din g to the app e lla nt, he tol d the story beca use the off

icer s said they would hara ss Amy Russell and her children until he told the truth. Amy

Russell s t at ed t h at t he appe llant attended the vie wing of the victim’s body for f ive minutes and did not attend the victim’s buri al

. On cr oss-examination, she acknowle dg ed that the

app e lla nt a c te d li ke he lov e d th e vic tim

.
Dr. B ruce L evy , the Chief Medic al Examiner for the State of Tenne ssee, testified tha t he perf ormed the vic tim’s autopsy

. The victim ha d bruises on his neck, c hest, abdomen, a nd back, a nd

mos t of th e br

uis e s o c c ur

re d a t th e tim e of

the vic tim ’s de a th o r w ith in s e ve ra l ho ur s b e fo re his death. One bruise was y ellowish and looked to be older than the others. Dr. L evy x -ra y ed t he victim’s body

and found that the victim had a f rac tured c ollarbone tha t was in the proc ess of he aling but was misaligne d. The victim also had mul tiple rib fra cture s, and si x to eig ht of the fr actur es we re in the proce ss of hea ling. He said that some of the rib fra cture s occur red at or nea

r the time of the victim’s de ath and that some of the f rac tures we re se vera l weeks old. Dr . L evy collecte d six hundred twenty -five millili t er s of blood from the victim’s abdome n and found a tear in the victim’s abdominal mesente ry

. He explained that the mesentery is a fan- shaped pie ce of fat a nd tissue that

connec ts the i n te s ti n a l t

r a c t t o th e b lo o d s tr e a m. H e s a idth a t th e te ar in th e me s e n te r y

w a s th ree

eig hths of an inch long and was beneath the victim’s bellybutton. He said that one of the victim’s rib fra cture s could not have c aused the tear and that the tear resulted from a blow or cr

ushing injury to the front of the victim’s abdomen. He stated that a considerable amount of force had to be used-6-

to cause the injury

an d t h at t h e tear

was not the ty

pe of injury

that would result from the normal h a n d l i n g o f

a c h i l d

. H e s t a t e d t h a th e h a d n e v e r k n o w n C P R t o c a u s e s u c h a n i n j u r y.

Dr. L evy testified that he sa w no indication that the victim suffe red f rom brittle bone disea se. He sa id tha t th e vic tim

su ff e re d f ro m ba tte re d c hil d s y nd ro me a ndtha t th e vic tim ’s c a us e of

de a th was blunt forc e injuries to the torso. He s t at ed t h at t he victim’s rib fr actur es would have been painful and w ould ha ve pre vented the vic tim from rolling ove r. He stated that the blee ding c aused by the mesente ry

tear would not have be en ra

pid a nd acknow ledg ed that the tear could have occur

red

as ear ly as 7:00 p.m. On cross-e x amination, Dr. L evy testified that the victim’s br u i s es o cc u rr ed three to four hours be fore hi s d ea t h
, and he a cknowledg ed that some of the victim’s rib fra cture s could have occur

red two months befor e his death. He said that CPR could result in torn livers and ri b f ra c tur e s a ndthat on ly

fi ng e rs sh ou ld b e us e d to pe rf or m CPR o n a sm all chi ld, no t kn uc kle s. He state d that all of the victim’s rib fr actur es we re posterior and on either side of the vic tim’s backbone an d t hat CPR had never c aused suc h posterior rib f rac tures. He said that some of the victim’s rib fra cture s were fre sh and occ urre d within six hours of the vic ti m’s death. On r edire ct
e xami natio n, Dr . L e vy

te sti fi e d th a t the app e lla nt’ s hit tin g the vic tim on the ba c k, c a us ing the vic tim to bounce up a nd down, would be consistent with t he victim’s broke n ribs and the br uising on the victim’s back.

At Dr. L evy ’s re quest, Dr. Hug h Be rryman, a biolog i ca l an thropolog ist, ex amined the victim’s ribs and rig ht collarbone . Dr. Be rryman stated that he f ound thirteen rib f

rac tures that we re at l east two wee ks old and eight fractur es t hat occurre d near the time of the victim’s death. The jury convicted the appellant of first deg ree felony

murder in the pe rpetration of agg ravated child abuse
, and the tria l court sentenc ed him to life imprisonment.

II. Ana lys is

A. Admissibili ty

of Prior I njuries

The a ppellant claims that t h e t ri al court erre d by allowing the jury

to hear evidenc e of the vic ti m’ s p r io r r ib f

r a c tu r e s a n d b r o k e n c o ll ar b o n e

. H e c o n te n d s th a t b e c a u s e th e p r oof did not establish that he ca

used the prior

injuries, they

wer e irr el evant to any

issue at trial and w ere inadmissible under Tenne ssee Rule of E vidence 404 (b). The State claims that the evide nce w as
a dmi ssi ble to s ho w tha t th e vic tim ’s de a th wa s no t a n a c c ide nt. We c on c lud e that th e tr ia l c ou rt did not err by admitting the e vidence

.
Te nn e sse e Rul e of

Ev ide nc e 40 4 p ro vid e s,
(b ) O the r C ri me s, Wro ng s, or Ac ts. - E vid e nc e o f

o th e r c ri me s,
wr on g s, or

a c ts i s n ot a dmi ssi ble to p ro ve the c ha ra c te r of a pe rs on in

o r d e r t o s h o w a c t i o n i n c o n f o r m i t y w i t h t h e c h ar a c t e r t r a i t

. It m a y, howeve r, be ad m i s sible for other purposes. The conditions which must be satisfied bef

ore a llowing suc h evidenc e ar e:-7- (1) The court upon re quest must hold a hearing outside the jury ’s pre sence ;
(2) The court must determine that a material issue exis ts other tha n c on du c t c on fo rm ing wi th a ch ara c te r tr a it a ndmus t up on re qu e st state on t he re cord the materia l issue, the ruling , and the r easons f or admitting the e vidence ;
(3) The court must find proof of the other crime, wrong , or ac t to be clea r and c onvincing ; and
(4) The court must e x clude the evidenc e if its probative value is outweig hed by

the dang er of

unfair pr ejudice.

See also State v. Parton, 694 S.W .2d 299, 302 (Tenn. 1985) . A trial court’s decision re g arding the admission of Rule 404(b) evide nce w ill be review ed under an abuse of di scre tion standard; howeve r, “the de cision of the trial c ourt should be af for d ed n o d ef

erence unless there has bee n substantial compliance with the proce dural require ments of the Rule.” State v. DuB ose, 953 S.W .2d 649, 652 (Tenn. 1997)

.
Gene rally , “[o] nly

in an exceptional ca se will another c rime, wrong , or bad a ct be r eleva nt to a n is su e oth e r t

ha n th e a c c us e d’ s c ha

ra c te r. Suc h e xce pti on a l c a se s in c lud e ide nti ty , inte nt, motive, opportunity , or re buttal of mistake or a ccid en t

. ” S t at e v. L uellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992)

. I n making its decision reg arding the admissibilit y of the testimony , the trial court must first determine if the off ere d testimonyis rele vant t o prove something other than the

app e lla nt’ s c ha

ra c te r. I f the e vid e nc e is r e le va nt, the n, up on re qu e st, the c ou rt wi ll pr oc e e d to a Rul e 4 0 4 ( b ) h e ar in g

. Se e St a te v. Ro b e r t W a y n e H e rr o n , N o

. M 2 0 0 2

- 0 0 9 5 1

- CC A

- R3

- CD , 2 0 0 3 WL 151201, at *2 (Te nn. Crim. App. at Nashville, J an. 22, 2003) (stating tha t the admission of prior ac t te sti mon y mus t a lso me e t th e te st f

or re le va nc y

c on ta ine d in Te nn e sse e Rul e of Ev ide nc e 40 1) , p e rm

. to appea l denied, (Te nn. 2003).

Be fore trial, the appe llant filed a motion in lim ine see king to e x clude e vidence about the victim’s prior injuries pursuant to Tenne ssee Rule of Evidenc e 404(b) . At trial, the court held a jury

o u t h ea ri n g i n o rd ert o d et er m i n e w h et h ert h e e v i d en ce wa s ad m i s s i b l e. Du ri n g t h e h ea ri n g, Detec tive Bouc her te stified that when he confr onted the appe llant with the fac t tha t the victim had olda ndre c e nt rib f

ra c tur e s, the app ell ant g a ve a state me nt i n w hic h h e sa id tha t a bo ut o ne mon th befor e the victim’s death, he ac cidentally fell on the victim. The a ppellant also told Detec tive Bouc her tha t on the afte rnoon of the vic tim’s death, he wa s play ing w ith the victim and was throwing the victim into the a ir. He explained that the victim hit the side of his crib and bounc ed into the bed. The tria l court rule d that there was c lear and convinc ing e vidence as to the appe llant’s having dr op pe d th e vic tim , th a t th e e vid e nc e wa s r e le va nt, a ndthat th e e vid e nc e wa s adm iss ibl e un de r R ule 404(b) to show that the vic tim’s death was not an accident. The jury returne d to the courtroom, a nd De te c tiv e B ou c he r t e sti fi e d a bo ut the vic tim ’s pr ior inj ur ie s and the app e lla nt’ s w ri tte n s ta te me nts

.-8-

After this testim ony , the trial court instructed the jury that it c ould only consider the evidenc e for the purpose of

deter mining whe ther the vic tim’s injuries on Dece mber 16 we re a ccide ntal.

T h e f a c t s i n t h e i n s t a n tc a s e ar e s i m i l ar t o t h o s e i n D u B o s e , 9 5 3 S

. W

. 2 d 6 4 9 , 6 5 0

- 5 1

. In DuB ose, the sixt een- month-old victim di ed fr om a blow to his abdomen and r esulting te ars to the

connec tive tissue of the s mall intestine. I d. at 651. The medical examiner testified that she found evidenc e of othe r interna l injuries to the victim’s abdominal are a that we re w eeks to months old. I d. The defe ndant arg ued that the trial court err ed by allowing the jury to he ar abo u t t h e prior abdominal injuries pursuant to Rule 404(b). Specifica lly
, he arg ued that testimony about the prior injuries was irr eleva nt unless the injuries could be attributed to him. I d. at 653. Our supre me court held t hat bec ause the “evide nce a dmitted did not s how the identity of the pe rson who ca

used the prior abdominal injuries sustained by the victim, it wa s n o t i n ad m issible under Rule 404(b) a s ref lecting upon the cha

rac ter of the defe ndant.” I d. The court c oncluded that e vidence of the prior abdominal i n

j u ries wa s releva nt to show that someone caused the injuries intentionally , not acci dentally . I d. at 654; see a lso Tenn. R. Evid. 401. Moreover , the court concluded that the probative va lue of the e vidence was not substantially outweig hed by the dange r of unfair pre judice

as re quired for

exclusion under Tenne ssee Rule of E vidence 403. I d.
Turning to the instant c ase, Dr. L evy testified that the victim suffe red multiple rib fra cture s and a br oken collar

bon e and that many

of the fr actur es we re morethan two wee ks old. Detec tive Bouc her te stified that when he confr onted the appe llant about the victim’s prior inj uries, the appellant of

fer ed a possible e x planation, claiming that he acc identally fell on the victim about one month before the victim’s de ath and that he acc identally dropped the victim on the afternoon of the victim’s d ea t h

. Howeve r, as noted in the a ppellant’s brie f, “[i] t is questionable as to whethe r the Def endant’ s responsibilityfor the e arlier rib fra cture s was esta

blished by

the proof,” and there was no testimonyas to whethe r the appellant’ s falling on or dropping the victim could have c aused the victim ’ s p r io r

in ju r ie s

. T h e r e f

o r e , li k e D u B o s e , th e e v id e n c e w a s n o t i n a d mi s s ib le u n d e r 4 0 4 ( b). Mo re ov e r, e vid e nc e of

the oth e r i nju ri e s w a s r e le va nt t o s ho w the y we re no t the re su lt o f a n a c c ide nt,
an esse ntial element of a g g ravated child abuse

. See Tenn. Code Ann. § 39-15-402( a)( 1). The trial

c ou rt ob vio us ly

c on c lud e d th a t th e pr ob a tiv e va lue of thi s e vid e nc e ou tw e ig he d the da ng e r o f u nf a ir prejudice to the appe llant. We ag ree and conc lude that the trial c ourt proper ly admitted the evidenc e.

B. A dmissibi lityof Photogr aphs

The appellant claims that the trial court e rre d by admitting into evidenc e photog raphs of the victim’s bruised body

. He contends that the phot og raphs “had no re al proba tive value on whe ther Mr. Wester wa s perpe trating ag g ravated child abuse when Bry son died” and, there fore , that the photogr aphs’ pr ejudicial ef fec t outweig hed their p robative value. The State c laims that the photogr aphs we re a dmissibl e to show the c ircums t an ce s o f the offe nse. We conc lude that the appellant wa ived this issue because he f ai l ed to obj ect at trial. I n any event, we conclude that the photogr aphs we re a dmissibl e.-9-

During Detec tive Bouc her’ s testimon y , t h e State showe d him ex hibits 4.1 t hroug h 4.5, depicting the victim’s injuries. Acc ording to the appellant’ s brief, he objected to the introduction of the ph oto g ra

ph s dur ing B ou c he r’ s te sti mon y . H ow e ve r, ou r r e vie w o f the tr ia l tr a ns c ri pt r e ve a ls that the appe llant failed to objec t t o the introduction of the photog raphs. The ref ore, the appellant h as wa i v ed the issue. See Tenn. R. App. P. 36(a) . We note that during Serg eant Scott B all’s testimony , the appe llant objected to the introduc tion of ex hibit 4.2 on the basis that the photog raph was irr eleva nt under Te nnessee Rule of Evidenc e 401. Howe ver, on a ppeal, he contends that the photogr aphs we re ina dmissibl e under Tenne ssee Rul e of Evide nce 403. A “party cannot a ssert a ne w
or differ ent theory to support the objection in the motion for a ne w trial or in the a ppellate c ourt.” State v. Adkisson, 899 S.W .2d 626, 635 (Tenn. Crim. App. 1994). I n any event, we have r eviewe d the photog raphs a nd conclude that they wer e admissible. Gene rally , “photog raphs of the cor pse ar e
a dmi ssi b l e i n m u r d e r p r o s e c u t i o n s i f t h e y ar e r e l e v a n t t o t h e i s s u e s o n t r i a l
, n o t w i t h s t a n d i ng the ir g ruesome a nd horrifying c hara cter .” State v. Banks, 564 S.W.2d 947, 950-51 (Tenn. 1978). In the instant case, two of

the photog raphs show br uises on the victim’s chest a n d ab d o m en, one of the pho t o gra p h s s hows bruises on the victim’s bac k, one of the photogr aphs shows cr esce nt-shaped marks on the ba ck of the victim’s he ad, and the final photogr aph shows a red mark on the vic tim’s buttock. The photogr aphs are not g ruesome or inflammatory and corr oborate testimonyreg arding the extent of the victim’s injuries. The photog raphs we re pr operly admitted into evidence

.
C. Mens rea

The ap p e ll a n t c la im s th a t th e tria l c o u r t imp r o p e r ly in s tr u c te d th e ju r y o n f

e lo n y murder. Specifica lly , he conte nds that the trial cour t ga ve an imprope r instr u ct i o n re gar ding the mens rea require d to commit the underly ing f elony of ag g ravated child abuse. The State claims that the trial court prope rly

instructed the jury . We ag ree with the State.

Du ri ng the jury

c ha rg e , th e tr ia l c ou rt

ins truc te d th e jury

a s f oll ow s:

First-de g ree murder. I

char g e y ou, the jury , that an y p er son who

c omm its mur der i s guil tyof a c ri me . F or

y ou , th e jury

to f indthi s defe ndant g uilty of this off ense the state must ha ve prove n bey ond a

re a so na ble do ub t th e e xiste nc e of the fo llo wi ng e sse nti a l e le me nts : number one, that the defe ndant unlawfully killed B ry son Wester; and two, t h at t h e kil ling wa s committed in the perpetr ation of or the attempt to perpe trate the alleg ed crime of ag g ravated child abuse

. Th a t is that th e kil ling wa s c los e ly c on ne c te d to the a lle g e d o ff e ns e of ag g ra va te d c hil d a

bu se or ne g le c t; l e a ve ou t ne g le c t th e re in this

case , M e mb e r s o f

th e Ju r y ; a n d w a s n o t a s e p ar a te d is ti n c t a nd ind e pe nd e nt e ve nt; a ndthr e e , th a t th e de fe nd a nt i nte nd e d to c omm it the less offe nse of a g g ravated child abuse

.
The trial c ourt then instructed the jury on ag g ravated child abuse . During jury deliberations, the jury sent out a written note, asking t hat t he trial court “review and explain” eleme nt number three “that-10-

the def endant intende d to commit the alleg ed off ense of ag g ravated child abuse .” The trial court g ave the jury

the following written re sponse:

The e lements that addre ss the jury inquiry is tha t element of “knowing ly ”. The law re qui res that a person c ommit “child abuse” other than by

acc idental means a nd commits the same “knowing ly ”. The Court in providing y ou this further instruction dire cts the jury to the definition of “knowing ly ” and “ acc idental means”

.
“ I n t e n t i o n a l l y ” m e a n s t h a ta p e r s o n a c t s i n t e n t i o n a l l y wi th respe ct to the nature of the conduct or to a result of the conduc t when it is t he per son’s co n s cious objective or desire to e ng ag e in the

c on du c t or

c a us e the re su lt. Th e r e q u i r e m e n t o f “ k n o w i n g l y ” i s a l s o e s t ab l i s h e d i f i t is shown that the def

en dant ac ted intentionally . The term

“ int e nti on a lly ” ha s b e e n p re vio us ly de fi ne d f

or y ou in the se ins truc tio ns

. These de finitions alone with othe r s p r e sented in the c harg e ar e to d ir e c t y ou r f

urthe r d e lib e ratio ns

.
I n this case, the State w as re quired to prove that the appe llant k i l l ed t h e v ictim in the pe rp e tr a tio n o f a g g ra va te d chil d abu se. See Te nn . Co de An n. § 3 9- 13 -2 02 (a )( 2) . “ No c ulp able mental state is re quired for conviction . . . except the intent to commit [ aggr avate d child abuse].” Tenn. Code Ann. § 39-13-202( b). Child abuse is the knowing trea tment of a c hild in such a manner to i nf lic t in jury . T e nn . Co de An n. § 3 9- 15 -4 01 (a ). Ag g ra va te d c hil d a bu se is c hil d a

bu se that r e su lts in se rious bodily injury and is a Class A felony if the child is six y ear s of ag e or le ss. Tenn. Code An n. § 3 9- 15 -4 02 (a )( 1) , ( b) . T he “ kn ow ing ” me ns re a re qu ir e me nt f

or fi rs t de g re e mur de r i n perpe tration of ag g ravated child abuse ref ers only to the conduct e lement of tre atment. State v. Ducke r, 27 S.W.3d 889, 897 (Tenn. 2000).

The a ppellant claims that the trial court’s a nswer to the jury was incor

rec t in that it allowed the jury to c on vic t th e app e lla nt i f the jury fo un d th at he c omm itt e d a g g ra va te d c hil d a bu se knowing ly , rathe r t han int entionally

. Thus, he contends that the t rial court’s instruction lessened the Sta te ’s bu rd e n o f p ro of . H ow e ve r, the tr ia l c ou rt ’s or ig ina l in str uc tio n to th e ju ry was g ive n in

acc ordanc e with Tenne ssee Pattern J ury I nstructions 7.03(b), the instruc tion for first deg ree murder, and 21.01, the instruction for ag g ravated child abuse

. I n t h e o rig inal instructions, the trial court sp e c if ic a lly state d th a t i n ord er to con vic t th e app e lla nt, the jury ha d to fi ndthat he int e nd e d to commit ag g ravated child abuse . The trial c ourt then prope rly instructed the jury

that ag g ravated

c h il d ab u s e o c c u r s w h e n a p e r s o n k n o w in g ly
, o th e r

th a n b y a c c id e n ta l m e a n s , tr e a ts a c h il d u nder

s i x y e ar s o l d i n s u c h a

m a n n e r a s t o i n f l i c ti n j u r y a n d t h e a c tr e s u l t e d i n s e r i o u s b o d i l y i n j u r y

. In

re sp on se to the jury ’s qu e sti on , th e tr ia l c ou rt simply rei ter a te d th a t th e app e lla nt h a d to c omm it ag g ravated child abuse “knowing ly .” The trial court then redef ined “intentionally ” and dir ecte d the jury to the orig inal char g e. We do not believe that the t rial court’s answe r to the jury ’s question was an improper

instruction or lessene d the State’s burde n of proof

.-11- D. “Ac cident” Instruction

Next, the appellant claims that the trial court e rre d by ref using to g ive a r equeste d instruction

on “ a c c ide nt. ” He c on te nd s th a t the tr ia l cou rt sh ou ld ha ve g ive n the re qu e ste d in str uc tio n b e c a us e “ac cident” is used in the child abuse statute. The S tate cla ims that although the tria l court did not g ive the appe llant’s reque sted instruction, the trial court properly instructed the jury on “ac cidental means.” We be lieve that the trial court g ave a n err oneous instruction on “a ccide ntal means” but that the e rr or wa s h arm le ss.

A d e fe nd a nt h a s a

“ c on sti tut ion a l ri g ht to a c or re c t a nd c omp le te c ha

rg e of the la w. ” Sta te v. Tee l, 793 S.W .2d 236, 249 (Te n n

. 1 9 9 0 ). Acc ording ly , trial courts “ should give a re quested instruction if it is supported by the evidenc e, embodies a party ’s theory , and is a c orre ct statement of the law.” State v. Phipps, 883 S.W .2d 138, 150 n.20 (Tenn. Crim. App. 1994) . Howeve r, trial courts nee d not give reque sted instructions if the substance of the instructions is cover ed in the g ener al cha

rg e. State v. Z irkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995).

B e fo re tr ia l, the app e lla nt f ile d a mot ion re qu e sti ng that th e tr ia l c ou rt c ha rg e the jury

wi th the following instruction on acc idental death take n from Ha rre ll v. Minnesota Mut. L ife I ns. Co., 937 S.W .2d 809, 814 (Tenn. 1996) :

[I ]f de a th is the un a nti c ipate d a ndun e xpe c te d r e su lt o f a n in te nti on a l, voluntary act, it is acc idental i n t he ordina ry and plain sense of the word.

The trial c ourt ref

used to g ive the reque sted instruction. I nstead, the trial court instructed the jury

a s f oll ow s:

Acc idental means. A ccide ntal means is a leg al term provided in the

definition of ag g ravated child abuse a nd child abuse. In this case the la w a dd re sse s th e hu ma n a g e nc y , th a t is hu ma n a c ts, a sso c ia te d w ith ag g r a v a te d c h il d ab u s e a n d c h il d ab u s e a s th e s e c r im e s r e late to the

cause of death as broug ht about by a knowing co m m i ssion of ag g ravated child abuse . A death of the child must be broug ht about by the per sonal acts of the defe ndant in the knowing commission of child abuse.

We c on c lud e that th e app e lla nt’ s re qu e ste d ins truc tio n, wh ic h the app e lla nt t oo k f ro m a c ivi l insurance case , is not a proper instruction in a first deg ree murder by ag g ravated child abuse case

. Thus, the trial court properly ref used to g iv e the instruction. Howeve r, re g arding the ac tual instruction o n “ a c c id e n ta l me a n s ” th a t th e tria l c o u r t g a v e th e ju r y , w e n o te th a t n o in s tr u c ti o n on “ac cidental mea ns” appe ars in the Te nnessee Pattern JuryI nstru ct i o n s and that the phra se is not define d by

statute. I t is not clear whe re the trial court g ot the instruction that it gave the jury , and we be lieve the t ri al court’s instruction was er roneous. In our view, no instruc tion on “acc idental-12-

means” was ne cessa

ry . See State v. Summers, 692 S.W.2d 439, 44 5 (T enn. Crim. App. 1985) (stating that “[w] h er e words and terms are in common use and a re suc h as ca n be under stood by pe rs on s o f o rd ina

ry int e lli g e nc e , it

is n ot n e c e ssa

ry , in the ab sen ce of a nythi ng in the c ha rg e to obscure their mea ning, f

or the c ourt to define or explain them”). I n any event, we hold that the trial

c ou rt ’s e rr or

wa s h arm le ss i n li g ht o f the e vid e nc e a g a ins t th e app e lla nt. Se e Te nn . R. Cr im. P. 52(a) ; Tenn. R. App. P. 36(b).
E. Sequential JuryI nstructions

The a ppellant claims that the trial c ourt err ed by g iving se quential jury

instruct i o n s

. He contends that it was e rror for the trial court to tell the j ury not to consider lesser

included off

enses if it found the appe llant guilty of first degr ee mur der. H oweve r, he a cknowledg es that the issue ha s been pr eviou s l yand unsucc essfully litigated by

other pa rties. The State c laims that this court has repe atedly

held that it is not error for a trial court to deliver sequential j ury instructions. W e ag ree with the State.

I n th e ins ta nt ca se , th e tr ia l c ou rt ins truc te d th e jury

a s to the le sse r i nc lud e d o ff e ns e s o f f ir st de g re e mur de r. Th e c ou rt a lso ins truct ed the jury

that it wa s to fi rs t c on sid e r the app e lla nt’ s g uil t
on the ind ic te d o ff

e ns e of fi rs t de g re e mur de r. I f the jury fo un d him g uil ty , the y we re to s o in dic a te
on the verdic t f

orms and cea se deliberation. Howeve r, if the jury found the a

ppellant not g uiltyof first deg ree murder, the court instructe d it to determine the appellant’ s g uilt on the lesse r included of fe n s e o f s e c o n d d e g r e e m u r d e r

. I f t h e j u r y f o u n d h i m g u i l t y o f s e c o n d d e g r e e m u r d e r , itwa s to indicate the c onviction on the verdic t f orms and cea se deliberation. However , if the jury found the appellant not g uiltyof sec ond deg ree murder, the jury was to de termine the appellant’ s g uilt on the lesser inc luded offe nse of rec kless homicide. The a ppellant ar g ues that such se quential instructions

wer e er ror. This court pre viouslyexamined t h i s i s s ue and de termined that seque ntial instructions are pr op e r. Sta te v. Ra ine s, 88 2 S.W.2 d 376 , 382 (T e nn . Crim. Ap p. 19 94 ). Ou r s up re me c ou rt up he ld this court’s conc lusion in S tate v. Mann, 959 S.W.2d 503, 521 (Tenn. 1997) (a ppendix). Theref

ore,
we c on c lud e that th e tr ia l c ou rt didno t e rr

by g ivi ng the se qu e nti a l ju ry ins truc tio ns

.
F. Suffic iency

of the Evidenc e Finally
, the appe llant claims that the evidenc e is insufficient to support the c onviction. He contends that the evidenc e ag ainst him wa s circ umstantial a nd that the State failed to prove that the

app e lla nt “ a c tua lly

c a us e d th e fata l in

jurie s or inf

lic te d a ny inj ur ie s wi th the c ulp able me nta l st a te require d of a murde rer

. ” He a rg ues that, ac cording to Dr. Cummings’ testimony , the appe llant’s perf orming CP R o n the victim could have c aused his fatal injuries. The State c laims that the evidenc e is sufficie nt. We ag ree with the State.
When an appe llant challeng es the suff iciency of the c onvicting e vidence , the stand ard f or revie w is “whe ther, a fter vie wing the evidenc e in the lig ht most favorable to the prosec ution, any-13-

ratio na l trie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t.” Jac ks on v. Vi rg ini a , 4 43 U. S. 30 7, 31 9, 99 S. Ct. 27 81 , 27 89 (1 97 9) ; se e Te nn . R. Ap p. P. 13 (e ). On app e a l, the Sta te is e nti tle d to the str on g e st l e g iti ma te vie w o f the e vid e nc e a nda ll

rea sonable or le g itimate infere nces w hich may be dra wn there from. State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978) . Questions conce rning the credibility of wit nesses and the weig ht and value to be af forde d the evidenc e, as w ell as all fa ctual issues ra ised by the evidenc e, are resolved by the j u ryas t ri er o f fa ct

. S t at e v. Bl an d
, 9 5 8 S

. W

. 2 d 6 5 1 , 6 5 9 (T en n

. 1 9 9 7 ). T h i s co u rt wi l l n o tre we i gh

or re evalu at e t h e evidence. I d. Be cause a jury conviction re moves the pre sumption of innocence with which a de fenda nt is ini tially cloake d at trial and r epla ces it on appeal with one of g uilt, a

c on vic te d d e fe nd a nt h a s th e bu rd e n of de mon str a tin g to thi s c ou rt that th e e vid e nc e is i ns uf fi c ie nt. State v. Tug g le, 639 S .W.2d 913, 914 (Tenn. 1982). Moreove r, we note that a g uiltyverdic t can be based upon direc t evidence , circ umstantial evidence , or a c ombination of direct a nd circ umstantial evidenc e. See State v. Pende rg rass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
First deg ree murder is “ [t he] kill ing of another committed in the perpe tration of or attempt to p e rp e tr a te a ny

. . . a g g ra va te d c hil d a

bu se .” Te nn . Co de An n. § 3 9- 13 -2 02 (a )( 2) . A s p re vio us ly stated, no culpa

ble mental state is re quired for a first deg ree murder conviction except for the intent to cause the underly ing f

elony . Tenn. Code Ann. § 39- 13-202(b) . Ag g ravated child abuse occur s when “ [a] person . . . c ommits the offe nse of c hild abuse or ne g lect . .

. and . . . [ t] he ac t of abuse or

ne g le c t resu lt s in se ri ou s b od ily inj ury to the c hil d. ” Te nn . Co de An n. § 3 9- 15 -4 02 (a )( 1) . Ch ild

abu se a ndne g le c t oc c ur s w he n “ [a]n y pe rs on wh o k no wi ng ly , o the r tha n b y a c c ide nta l me a ns , tr e a ts
a c hil d u nd e r e ig hte e n ( 18 ) y e ars of a g e in s uc h a man ne r as to i nf lic t in jury or ne g le c ts s uc h a

c hil d so as to adver sely

aff ect the c hild’s health and we lfare .” Te nn. Code Ann. § 39-15- 401(a)

.
Th e e vid e nc e a t tria l re ve a le d tha t on the day of the vic tim ’s de a th, the vic tim ’s g ra nd pa re nts
came to his home in order to t ake him to the m all and have hi s picture made. Whil e at the home, the victim’s gr andmother a nd mother cha ng ed his clothes, and no one s aw br uises on the victim at that time. That eve ning, the victim was in the appe llant’s exclusive c are

. About 9:30 p.m., the appe llant took the vi c ti m t o th e e me r g e n c y r o o m b e c a u s e th e v ic ti m w a s n o t b r e a th in g a n d h a d n o p u ls e. Photogra phs of the victim show numerous bruise s on his chest and a bdomen and a

few bruises on his back. The photogr aphs also show cre scent-sha ped marks on the back of the victim’s head. D r. Br uce L evy found multiple, old and new rib f rac tures and a tear

in the victim’s mesentery , which

cause d extensive bleeding and death. The appellant told Dr. Cum mings and the pol ice that he had

a tt emp ted CPR o n th e vic tim , a ndDr . Cu mmi ng s te sti fi e d th a t CPR d on e imp ro pe rl y on a c hil d could cause abdominal injuries. How ever , Dr. L evy testified that CPR could not ha v e ca u sed the victim’s posterior rib frac tures or the tear in the victim’s mesentery . I nstead, Dr . L evy conclude d that blunt f

orce to the victim’s a

bdomen cause d the tear

. Moreove r, Dr. L evy testified that most of the vi c ti m’ s b ru is e s w e r e f r e s h a n d th a t th e me s e n te r y te ar c o u ldh a v e o c c u rr e d ab o u t 7 :0 0 p .m., while the victim was in the a ppellant’s ca

re. The victim’s sister testified that she saw the appe llant hit the victi m’ s b a c k, c aus ing the vic tim to b ou nc e up a nddo wn , a ndDr . L e vy state d th a t th e se actions we re c onsistent with the vi ct i m ’s rib fra cture s and bruises. When De tective B oucher

c on fr on te d th e app e lla nt a bo ut the vic tim ’s inj ur ie s, the app e lla nt expl a ine d th a t he a c c ide nta lly fe ll on top of the victim about one month befor e the victim’s death a nd that he acc identally dropped the-14-

victim on the day

of his death. How ever , the ap pellant also g ave inc onsistent statements to the police, cla iming in his oral stateme nt that he che cked on the victim a nd saw that the vic tim was not breathing while claiming in his written statement that he picke d up the victim and then discove red that he was not breathing. Take n in the l ight most favor able to the State, the e vidence is sufficient to support the conviction.

III. Conclusi on

B a se d u po n th e re c or d a ndthe pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ NORMA McGEEOGLE, J UDGE