         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    June 19, 2002 Session

              STATE OF TENNESSEE v. JANET HUFFINE DYKES

                   Appeal from the Criminal Court for Washington County
                            No. 26191   Robert E. Cupp, Judge



                                 No. E2001-01722-CCA-R3-CD
                                       August 16, 2002

The Defendant, Janet Huffine Dykes, was convicted by a jury of one count of reckless aggravated
assault and one count of aggravated child abuse through neglect. The trial court merged the assault
conviction into the child abuse conviction and sentenced the Defendant as a Range I standard
offender to fifteen years in the Department of Correction. The Defendant now appeals as of right,
challenging the sufficiency of the evidence in support of her convictions. We find the evidence is
not sufficient to support the Defendant’s conviction of aggravated child abuse through neglect and
therefore reverse that conviction. We find the evidence sufficient to support the reckless aggravated
assault conviction, and affirm that conviction. Because the Defendant was not sentenced for reckless
aggravated assault, we remand this case for sentencing on the Defendant’s conviction for reckless
aggravated assault.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed in Part;
                              Reversed in Part; Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

A. Scott Pratt, Jonesborough, Tennessee, for the appellant, Janet Huffine Dykes.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Joe Crumley, District Attorney General; and Steve Finney, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                             OPINION


        The Defendant has two children, a son and a younger daughter. In the spring of 2000, the
Defendant was thirty-four years old; her son, Patrick, was eight; and her daughter, Marisa, was
eighteen months old. In the fall of 1999, the Defendant began seeing Joe Hankal, a divorced father
of three daughters. The Defendant testified that Hankal was good to her children, and she had hoped
that they would eventually marry. She acknowledged, however, that Hankal was taking numerous
prescription drugs during the time they were seeing each other. She explained that Hankal told her
the drugs were for “a slight nerve problem.” She further explained that she felt his drug taking “was
safe because . . . he seemed to be fine” and she knew they were prescription drugs. She denied ever
obtaining any of Hankal’s drugs for him.

        The Defendant testified that, on the night of April 12, 2000, she bathed Marisa and did not
notice anything on her head. She stated that Marisa “didn’t play quite as much in the bathtub,” but
explained that Marisa had been sick, was on antibiotics, and was teething. After bathing Marisa, the
Defendant, Hankal and Marisa attended a car sale while the Defendant’s son, Patrick, was at church.
During the sale, the Defendant testified, Marisa was “fine” and walked part of the time they were
there. When they returned, Hankal put Marisa to bed, as had become his routine by this time.
Hankal left the house at about midnight. Before going to bed herself, the Defendant checked on
Marisa and testified that she seemed “[f]ine.”

          The next morning, Hankal returned at about 7:20, according to the Defendant. Marisa woke
up crying at 7:30, and the Defendant told Hankal, “She’s not ready to get up. She’s just awake. She
needs a little bit more sleep.” Hankal got Marisa from her bed and took her to the Defendant’s
bedroom, where he laid Marisa in the Defendant’s bed. The Defendant was elsewhere in the house
at this time. About an hour to an hour and forty-five minutes later, the Defendant testified, she heard
Marisa stirring. She went in to get her up for the day, and testified about what she found:
                 I opened the bedroom door and I saw her laying in the middle of the
                 bed. I didn’t know anything was wrong at that time, and I said,
                 ‘Mommy’s little girl ready to get up?’ And she didn’t move. I went
                 and picked her up. Her eyes looked real funny. They were rolled
                 back in her head. She had just, like, a stare. It looked like she was
                 looking at me but she couldn’t see me. And I said, ‘Marisa, Marisa,’
                 and I just kind of shook her a little bit. I said, ‘Marisa, what’s wrong?
                 What’s wrong?’ She wouldn’t even cry. And I hollered and I said,
                 ‘Oh, God, Joe, come here. Come here. Something’s wrong with
                 Marisa.’ He come running in there. And he said – I said,
                 ‘Something’s wrong.’ The very first words he said, he said, ‘Oh,
                 God, she might have got a hold of one of my pills. One of my pills
                 might have fell out of my pocket.’ And I said, ‘Hurry, go call 911.’
                 She was just lifeless and limp. I didn’t know what was wrong with



                                                 -2-
                  her. He said, ‘No, I’m not going to call 911. Let’s go ahead and just
                  take her on to the hospital.’

The Defendant and Hankal drove Marisa to the hospital, taking her to the emergency room. As
medical personnel began treating the child, she had a seizure.

       The Defendant testified that she did nothing to hurt Marisa, and that she did not know how
Marisa was hurt.

        Marisa was admitted to the hospital, and x-rays were taken, revealing a non-displaced
fracture in the left tenth rib and a non-displaced spiral fracture of the right humerus (the upper arm).
Dr. Glynda Ramsey, a radiologist, testified that these injuries probably occurred within forty-eight
hours of the x-rays, and could have occurred as little as “one minute” before. She explained that the
rib injury could have been caused by intentional squeezing or by direct blunt force. She explained
that the arm injury involved “some twisting mechanism.” She testified that neither of these injuries
was common in young children. The x-rays also revealed healing fractures to Marisa’s right
forearm, near the wrist. Dr. Ramsey testified that these injuries were probably less than six months
old, and could have been caused by a fall or a direct blow. Dr. Ramsey also testified that these
fractures were “healing in normal alignment.”

        A CT scan of the brain performed on April 13, 2000, revealed a hematoma on Marisa’s left
scalp, described by Dr. Ramsey as “like a blood clot internally in the scalp.” The hematoma was
about three inches in size. This injury was the result of blunt trauma, but Dr. Ramsey could not
determine whether the injury occurred from a fall or from a blow. Dr. Ramsey stated that this injury
was not “readily visible.”

         On April 18, 2000, a bone scan was performed. This procedure revealed an additional injury
to Marisa’s growth plate at her right ankle. Dr. Ramsey testified that this injury was also zero to
forty-eight hours old.1 Dr. Ramsey testified that this injury to Marisa’s ankle was probably not
caused by a fall, but could have been caused by holding the child by her ankles, or by a direct blow.
Dr. Ramsey testified that it was likely that Marisa’s recent fractures and the hematoma “all occurred
at the same time” and were “consistent with non-accidental trauma.” Marisa was released from the
hospital to the care of her father on April 20, 2000.

        Dr. William Bridgforth, a pediatrician, testified that, in his opinion, “the most probable cause
for the seizures was trauma to [Marisa’s] head.” An electroencephalogram, or “brain wave test,”
showed no abnormalities. The CT scan of Marisa’s brain also came back normal. A drug screen was
also performed on Marisa, and came back negative for drugs in Marisa’s bloodstream. As to other
injuries, Dr. Bridgforth testified that there were recent fractures to Marisa’s right lower leg, upper



       1
           We note that Marisa was in the hospital during the entire forty-eight hours preceding the bone scan.

                                                         -3-
right arm, and tenth rib. There was a “probable” healing fracture to her left upper arm bone,2 and
two old fractures of the right lower arm. Dr. Bridgforth testified that Marisa’s recent fractures were
serious bodily injuries and that Marisa “was unable to walk because of her leg fracture so it was
very painful.” Dr. Bridgforth also testified to bruises on Marisa’s left upper chest, right chest, left
calf, three bruises on her back, bruises on her left cheek and beside her right eye, and a bruise of her
left eyeball. Dr. Bridgforth testified that these bruises were “not in the right location for normal
toddler bruises” and that some of them were several weeks old. In Dr. Bridgforth’s opinion,
Marisa’s recent injuries were the result of child abuse. He testified that the hematoma was recent
and could have occurred in conjunction with the recent fractures. Dr. Bridgforth also testified that
the Defendant had brought Marisa to his pediatrics practice group on ten occasions when Marisa was
suffering some illness. The records kept by the pediatrics group contained no evidence or suspicion
of abuse. Dr. Bridgforth testified that Marisa’s shots were up-to-date.

       Joe Hankal testified that it was routine for him to put Marisa to bed on the evenings that he
spent with the Defendant. He testified that the Defendant was “good to” Marisa, and that he never
saw her do anything to hurt Marisa. He further stated that he “never done nothing to hurt” Marisa.
He acknowledged, however, that he had ridden Marisa around with him on motorcycles and dune-
buggies.

         Hankal testified that he could not remember whether the Defendant and Marisa went with
him to the car sale on the night of April 12, 2000. He did remember being at the Defendant’s house
that evening, and testified that Marisa had been “fine.” He testified that he returned the next
morning at about nine o’clock. He explained that, at that time, Marisa was “whining in her crib,”
so he “went into the bedroom and got her and went and laid down in [the Defendant’s] bed with her,
and she went back to sleep.” Hankal then joined the Defendant. A “short time” later, he testified,
the Defendant went to her bedroom to get Marisa up. A few minutes later, he heard the Defendant
call him, saying that something was wrong with Marisa. When he went into the bedroom, he
testified, Marisa “was just kindly limp and her eyes -- she just couldn’t focus.” The Defendant
wanted to call 911, but Hankal was worried that one of his pills might have fallen out of his pocket
and that Marisa had swallowed it; he thought they could get Marisa to the hospital more quickly if
they took her themselves.

        Hankal testified that, two weeks after the incident with Marisa, he entered a drug
rehabilitation program. He testified that he had been abusing Lortab, Xanax, Elavil, Paxil, Valium
and Adapin during the time he was seeing the Defendant. He stated that he mixed these drugs and
sometimes took fifteen to twenty pills in one day. He stated that the Defendant knew how many
drugs he was taking, and that she obtained some of them for him.




         2
         Dr. Ramsey testified that the initial x-rays indicated some possibility of this fracture, but later tests revealed
no abnormality.

                                                           -4-
        Sgt. Tom Frayer investigated the suspected child abuse. He began his investigation on April
17, 2000. He testified that he observed a hematoma on Marisa’s right forehead while she was in the
hospital, but saw no other visible signs of injuries. His initial interview was with Patrick Dykes at
school. He then interviewed the Defendant on April 18, 2000. In this initial statement, which was
admitted at trial, the Defendant explained that Marisa had come down with ear and viral infections
about two weeks earlier and was on antibiotics. She stated that she had never seen her son hit or hurt
Marisa, but that he did play roughly with her, including “pick[ing] her up by an arm.” She stated
to Sgt. Frayer that “nothing” had happened on April 12, 2000. Her description of the events of April
13, 2000 were consistent with her trial testimony. She also stated that Marisa had never had seizures
in the past, and that she had “never in [her] life suspected anything like this.”

       Sgt. Frayer took another statement from the Defendant on September 7, 2000, which was also
admitted at trial. In this statement, the Defendant reiterated that she had not hurt her child, and
maintained that “Joe did.” She explained,
                I thought at the time he really loved her. But now I can look back and
                know that he was just plain old obsessed with her. He would take her
                and lay down with her and close the door. And I am guilty of that,
                for allowing him to take my baby behind closed doors. I loved and
                trusted this man. I had no reason not to trust him. He had three kids
                of his own he was wonderful with. He was great with the kids in
                front of me. Patrick loved him.

Again, she stated that Marisa had been fine on the night of April 12, 2000, and that she “wasn’t
hurting until the next morning.” When Sgt. Frayer asked her when the injuries could have occurred,
she stated, “That morning.” She further stated that she didn’t hear anything that led her to believe
that Hankal was hitting her. She stated that she never saw her son Patrick hit Marisa, but explained
that Patrick and Hankal’s children played “rough” with her. She stated that she had no idea about
how the old fractures could have occurred.

         During her second statement to Sgt. Frayer, the Defendant said that she had asked Hankal
if, due to his drug abuse, he could have hurt Marisa and not known it. According to the Defendant’s
statement, Hankal answered this question affirmatively. At that point, she told Sgt. Frayer, Hankal’s
father took him to the drug rehabilitation facility.

        Sgt. Frayer testified that he spoke with a total of five people about the case, other than
medical personnel. He stated that he investigated Hankal but found nothing to show that he had
inflicted Marisa’s injuries.

        On cross-examination, Sgt. Frayer admitted that he had decided to seek an indictment against
the Defendant by April 21, 2000, after speaking with medical personnel, the Defendant, Hankal, and
Patrick Dykes. He admitted that he never entered the Defendant’s house. He took no photographs
of the victim. He did not obtain Marisa’s medical history to check for evidence of prior abuse. He
admitted that he quickly made up his mind that the Defendant had inflicted Marisa’s injuries, and

                                                 -5-
that he eliminated Hankal as a suspect early on. He admitted that he did not attempt to obtain any
records from Hankal’s drug rehabilitation facility in an effort to determine if he made any admissions
regarding the case. When asked if he could have done a great deal more of an investigation in this
case, he stated, “I guess.”

                                              ANALYSIS
         The Defendant in this case was charged with alternative counts of aggravated child abuse:
the first count designates that the abuse occurred through the infliction of serious bodily injury, and
the second count designates that the abuse occurred through neglect. With respect to the first count,
the trial court charged the jury with the lesser-included offenses of intentional or knowing
aggravated assault, reckless aggravated assault, and child abuse. With respect to the second count,
the trial court charged the jury with the lesser-included offense of child neglect. The jury convicted
the Defendant of reckless aggravated assault under Count One, and aggravated child abuse through
neglect under Count Two. The trial court subsequently merged the reckless aggravated assault
conviction into the aggravated child neglect conviction. The Defendant now challenges both
convictions on sufficiency grounds.

         Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, after
reviewing 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. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because
conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of
guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient.
See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102,
105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle,
639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact, not the appellate courts.
See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987).

       A crime may be established by circumstantial evidence alone. See State v. Tharpe, 726
S.W.2d 896, 899-900 (Tenn. 1987). However, before an accused may be convicted of a criminal
offense based only upon circumstantial evidence, the facts and circumstances “must be so strong and

                                                  -6-
cogent as to exclude every other reasonable hypothesis save the guilt of the defendant.” State v.
Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). In other words, a “web of guilt must be woven
around the defendant from which he cannot escape and from which facts and circumstances the jury
could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.”
Id. at 613; see also State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998) (“In convictions .
. . where the evidence is entirely circumstantial, the jury must find that the proof is not only
consistent with the guilt of the accused but inconsistent with his innocence. There must be an
evidentiary basis upon which the jury can exclude every other reasonable theory or hypothesis except
that of guilt.”).

        Aggravated child abuse through neglect occurs when a person “knowingly, other than by
accidental means, . . . neglects [a child under eighteen (18) years of age] so as to adversely affect the
child’s health and welfare,” and serious bodily injury results. See Tenn. Code Ann. §§ 39-15-401(a),
39-15-402(a)(1). “Serious bodily injury” is defined as bodily injury involving: “(A) [a] substantial
risk of death; (B) [p]rotracted unconsciousness; (C) [e]xtreme physical pain; (D) [p]rotracted or
obvious disfigurement; or (E) [p]rotracted loss or substantial impairment of a function of a bodily
member, organ or mental faculty.” Tenn. Code Ann. § 39-11-106(34). Thus, to support a conviction
of aggravated child neglect, the State must prove beyond a reasonable doubt that the accused
knowingly neglected a child, and that the knowing neglect resulted in serious bodily injury to the
child.

         The term “neglect” is not defined in our criminal code. Accordingly, our supreme court has
looked to definitions of the term in other parts of the Tennessee Code. See State v. Adams, 24
S.W.3d 289, 295-96 (Tenn. 2000). One of the definitions the court found helpful in construing
criminal neglect is found in the provisions for juvenile courts, and states that a neglected child is one
“[w]hose parent, guardian or custodian neglects or refuses to provide necessary medical, surgical,
institutional or hospital care for such child,” id. at 295 (quoting Tenn. Code Ann. § 37-1-
102(b)(12)(D) (1996 and Supp. 1999)), or one who “is in such condition of want or suffering or is
under such improper guardianship or control as to injure or endanger the morals or health of such
child or others;” id. (quoting Tenn. Code Ann. § 37-1-102(b)(12)(F)). The court also looked to the
Tennessee Adult Protection Act which defines neglect as “the deprivation of services by the
caretaker which are necessary to maintain the health and welfare of an adult or a situation in which
an adult is unable to provide or obtain the services which are necessary to maintain that person’s
health or welfare.” Id. (quoting Tenn. Code Ann. § 71-6-102(1) (1995 & Supp. 1999)).

        What a conviction of aggravated child abuse through neglect requires, then, is proof that the
accused knew of some need that the child had, and then failed to supply that need, resulting in
serious bodily injury to the child. For instance, in the case before us, the proof would be sufficient
to support the Defendant’s conviction if the record contained proof that the Defendant knew of the
injuries Marisa suffered during the forty-eight hours prior to her admission to the hospital, failed or
refused to seek medical treatment for them, and serious bodily injury resulted from the failure to seek
treatment. The record does not contain such proof. On the contrary, the Defendant testified that she
realized something was wrong with Marisa on the morning of April 13, 2000. She immediately

                                                  -7-
sought medical care. The medical testimony established that Marisa was suffering from a hematoma
and several fractures, all occurring from “one minute” to forty-eight hours prior to Marisa’s entering
the hospital. Even if the jury chose to disbelieve the Defendant’s testimony, there is no proof in the
record that Marisa suffered from her injuries for some significant period prior to being taken to the
hospital. Nor is there any proof that Marisa suffered any further injury from any delay in receiving
medical care, or that the seizures would not have occurred had she received earlier medical care. In
short, there is simply no proof in the record that the Defendant knew Marisa was injured and delayed
seeking treatment for those injuries such that serious bodily injury resulted. Cf. State v. Hodges, 7
S.W.3d 609, 623 (Tenn. Crim. App. 1998) (finding the evidence sufficient to support a conviction
of murder during the perpetration of aggravated child abuse through neglect where the proof
established that the defendant knew the child was in serious medical trouble, took no action to
provide medical attention for the child, and the child died as a result).

        There is also no proof in the record to support a finding that the Defendant was criminally
negligent in allowing Hankal to be alone with Marisa. While there is certainly proof that Hankal was
abusing drugs while spending time with the Defendant and Marisa, there is no proof in the record
that he harmed Marisa prior to April 13, 2000, and that the Defendant knew about it but continued
to allow him to take care of Marisa. Indeed, Sgt. Frayer testified that his investigation revealed
nothing to indicate that Hankal had abused Marisa.3

        We acknowledge that the jury may have disbelieved the Defendant’s testimony. However,
the medical proof adduced at trial established “serious bodily injury” only with respect to the
fractures Marisa suffered in April.4 Thus, even if the jury determined that the Defendant was lying
about her discovery of Marisa’s April injuries, and concluded that the Defendant had known about
them for up to forty-eight hours prior to seeking medical care, there is no proof from which a rational
jury could conclude that the delay -- that is, the neglect -- caused serious bodily injury as required
by the statute. See State v. Mateyko, 53 S.W.3d 666, 667 (Tenn. 2001) (holding that a conviction
of child abuse through neglect requires proof that the neglect causes “an actual, deleterious effect
or harm to the child’s health and welfare and that the mere risk of harm is insufficient to support a
conviction”). And, with respect to the medical proof that Marisa had suffered some fractures in the
past, there is no proof in the record that the Defendant was aware of these injuries or that, even if she
was, her failure to seek medical treatment for them resulted in serious bodily injury.

       In short, the State failed to adduce the necessary proof to establish that the Defendant
neglected Marisa, and that the neglect resulted in serious bodily injury to Marisa. Accordingly, we



         3
           W e note, howev er, that Hankal was the last person with Marisa prior to the Defendant’s insisting that she be
taken to the h ospital.

         4
          Dr. Bridgforth testified that Marisa’s leg fracture caused extreme physical pain, one of the statutory definitions
of “serious bodily injury.” There was no testimony establishing that any of the other injuries met the statutory definition
of “serious bodily injury.”

                                                            -8-
must reverse the Defendant’s conviction for aggravated child abuse through neglect and dismiss that
charge.5

       We turn now to the Defendant’s conviction for reckless aggravated assault. That offense is
committed upon the accused’s recklessly causing serious bodily injury to another. See Tenn. Code
Ann. § 39-13-102(a)(2)(A). “Reckless”
              refers to a person who acts recklessly with respect to circumstances
              surrounding the conduct or the result of the conduct when the person
              is aware of but consciously disregards a substantial and unjustifiable
              risk that the circumstances exist or the result will occur. The risk
              must be of such a nature and degree that its disregard constitutes a
              gross deviation from the standard of care that an ordinary person
              would exercise under all the circumstances as viewed from the
              accused person’s standpoint.

Id. § 39-11-302(c).

        The Defendant was convicted of reckless aggravated assault under Count One of the
indictment, which charged her with causing the April injuries to Marisa, including the hematoma,
rib fracture, upper arm fracture, and the fractures near Marisa’s ankle. Dr. Ramsey testified that the
rib injury was the result of “intentional squeezing” or direct blunt force. She testified that the upper
arm injury involved “some twisting mechanism.” The ankle injury, she testified, could have been
caused by holding Marisa by her ankles. The nature of these injuries indicates treatment that was
at least “reckless.” Intentionally squeezing an eighteen-month-old child around the rib cage
constitutes a gross deviation from the applicable standard of care. Similarly, twisting a young
child’s arm, and/or holding her by her ankles constitutes a gross deviation from the applicable
standard of care. Thus, the proof is sufficient for a rational jury to conclude that someone recklessly
inflicted these serious bodily injuries upon Marisa.

         The proof established that the Defendant was Marisa’s primary caretaker during the forty-
eight hour period during which the injuries occurred. In the light most favorable to the State, the
proof established that the injuries were caused either by the Defendant’s actions or the actions of Joe
Hankal. There certainly was no direct evidence that the Defendant inflicted the injuries. Joe Hankal
testified that he did nothing to inflict the injuries and that he did not know how the injuries occurred.
The Defendant also testified that she did nothing to inflict the injuries and that she did not know how
the injuries occurred. The jury obviously discredited the Defendant’s testimony and found the
Defendant to be untruthful. The credibility of the witnesses, especially the credibility of the
Defendant and Joe Hankal, was the crucial issue for the jury to resolve. The jury resolved this issue
in the State’s favor. This, we think, is sufficient to entitle the jury to conclude that the Defendant


         5
        There is likewise no proof that the Defendant neglected Marisa and thereby caused bodily injury.
Accordingly, we are also unable to sustain a conviction of the lesser-included offen se of child abuse thro ugh neglect.

                                                          -9-
recklessly handled Marisa, thereby causing serious bodily injury. Accordingly, the evidence is
sufficient to support the Defendant’s conviction for reckless aggravated assault.

       Because the trial court merged the reckless aggravated assault conviction into the aggravated
child abuse through neglect conviction, the Defendant was not sentenced for the assault. We
therefore remand this matter for sentencing on the reckless aggravated assault conviction. The
Defendant’s conviction for aggravated child abuse through neglect is reversed and dismissed.


                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




                                               -10-
