         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 10, 2007

                  STATE OF TENNESSEE v. DENISE WIGGINS

                      Appeal from the Criminal Court for Shelby County
                           No. 04-01850    W. Otis Higgs, Judge



                  No. W2006-01516-CCA-R3-CD - Filed November 2, 2007


The Appellant, Denise Wiggins, was convicted by a Shelby County jury of one count of aggravated
child abuse and one count of aggravated child neglect of her five-year-old daughter. The trial court
subsequently merged the two Class A felonies into a single conviction for aggravated child abuse.
Following a sentencing hearing, Wiggins was sentenced to twenty years imprisonment as a violent
offender. On appeal, Wiggins raises two issues for our review: (1) whether the evidence is sufficient
to support the convictions; and (2) whether the sentence imposed is excessive. After review, we
conclude that the evidence is sufficient to support Wiggins’ conviction for aggravated child abuse.
We conclude, however, that the evidence is legally insufficient to support her conviction for
aggravated child neglect. With regard to sentencing, we remand for resentencing based upon the
misapplication of enhancing factors and for adherence with the holding of Blakely v. Washington.

   Tenn. R. App. P. 3; Conviction for Aggravated Child Abuse Affirmed; Conviction for
     Aggravated Child Neglect Vacated and Dismissed; Remanded for Resentencing


DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and ALAN
E. GLENN , J., joined.

Robert Jones, Shelby County Public Defender, Phyllis Aluko, Assistant Public Defender (on appeal);
Jennifer Johnson and Glenda Adams, Assistant Public Defenders (at trial), Memphis, Tennessee, for
the Appellant, Denise Wiggins.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Vanessa King, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

                                       Factual Background
        The Appellant is the mother of the five-year-old victim in this case. The proof at trial, in the
light most favorable to the State, established that on Thanksgiving morning 2003, the victim and her
two younger siblings were watching television in the bedroom at their residence. Also in the
bedroom was the Appellant, who was ironing clothes. After finishing ironing, the Appellant
wrapped the cord around the iron, leaving it on the ironing board, and left the room. Following the
Appellant’s exit, the victim plugged the cord into the receptacle and proceeded to burn her brother
and sister with the iron. Hearing the children screaming, the Appellant returned to the bedroom.
Upon reentering the bedroom, the Appellant told the victim to put the iron down, and the victim
complied. The Appellant then picked the iron up and proceeded to burn the victim’s leg, explaining
that she was going to show the victim how it felt to be burned by an iron. The Appellant, who
worked as a nurse’s assistant at a nursing home, later placed ointment on the wound and bandaged
the burned area; however, no medical attention was sought.

        On December 1, 2003, Rachelle Hood and her daughter, Ryan, took the victim and the
victim’s younger brother to the movies. Mrs. Hood attended church with the Appellant and, due to
the Appellant’s dire financial plight, was providing a place for the Appellant and her family to live.
En route to the movie theater, Mrs. Hood noticed that the victim was limping. During the movie,
Ryan took the victim to the restroom and returned very upset. Ryan informed her mother that when
she helped the victim pull down her pants to use the bathroom, she saw a very large, infected burn
on the victim’s leg. When Mrs. Hood asked the victim what had occurred, the victim informed her
that “my mamma burned me.” When the group left the theater, the victim had to be carried, as she
was no longer able to walk. The group proceeded to the Appellant’s house for permission to take
the victim to the hospital for treatment. The Appellant gave her permission but did not accompany
Mrs. Hood. Mrs. Hood first took the Appellant to a nearby hospital but was referred to LeBonheur
Children’s Medical Center.

        Upon arrival at LeBonheur, Mrs. Hood was informed that, prior to any treatment, consent by
a parent of the minor victim was required. Mrs. Hood returned to the Appellant’s home and,
accompanied by the Appellant, returned to the hospital. According to hospital records, the burn was
on the upper part of the left leg and was several days old. The wound appeared dirty, but no sign of
infection was found. A medical expert opined that the victim had sustained a second-degree burn
with elements of a first-degree burn and that the burn would have been very painful to the victim.
The victim’s treating physician concluded, based upon the victim’s reported history of the injury,
that the wound was not accidentally inflicted. A pediatrician who specialized in child abuse
evaluation also was of the opinion that the burn was not an accident.

        On March 23, 2004, a Shelby County grand jury returned a two-count indictment charging
the Appellant with aggravated child abuse and aggravated child neglect. At trial, the Appellant did
not deny that she burned the victim, but she claimed that it was accidental. According to the
Appellant, she entered the bedroom, after hearing screams, and found the victim holding the hot iron,
and, when she tried to take the iron from the victim, it fell and landed on the victim’s leg. According
to the Appellant, she initially treated the wound with Vaseline but later applied antibiotic cream and
wrapped the wound, which she claimed never blistered.


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       At the conclusion of the proof, the Appellant was convicted as indicted, with the two
convictions being merged into a single conviction for aggravated child abuse. On April 20, 2006,
the Appellant was sentenced to a term of twenty years in confinement, to be served at 100%.

                                               Analysis

        On appeal, the Appellant raises two issues for our review: (1) whether the evidence is
sufficient to support the convictions; and (2) whether the sentence imposed by the trial court is
excessive.

I. Timely Filing of Motion for New Trial and Notice of Appeal

        As a preliminary matter, the State argues that the appeal should be dismissed because the
Appellant’s motion for new trial was untimely filed, which further resulted in the untimely filing of
the notice of appeal document. The trial court’s sentencing order was entered on April 20, 2006.
The motion for new trial was filed and denied on June 22, 2006, sixty-three days after the trial
court’s sentencing order was entered. The notice of appeal document was filed on July 17, 2006.

        A motion for new trial must be made in writing or reduced to writing within thirty days of
the “date the order of sentence is entered.” Tenn. R. Crim. P. 33 (b). This provision is mandatory,
and the time for the filing cannot be extended. Tenn. R. Crim. P. 45(b); State v. Martin, 940 S.W.2d
567, 569 (Tenn. 1997). Thus, the State is correct that the Appellant’s motion for new trial and notice
of appeal were not timely filed. While this court has no authority to waive the untimely filing of a
motion for new trial, we may waive, in the interest of justice, the untimely filing of the notice of
appeal. Tenn. R. App. P. 4(a); see also State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App.
1980). Moreover, although we are precluded from considering any other issue raised in an untimely
motion for new trial, this court is not precluded from reviewing the sufficiency of the evidence or
a sentencing issue. Tenn. R. App. P. 3(e); see also State v. Boxley, 76 S.W.3d 381 (Tenn. Crim.
App. 2001). Because these are the only two issues raised by the Appellant on appeal, we elect, in
the interest of justice, to waive the untimely filing of the notice of appeal and review the issues upon
the merits.

II. Issues Raised by the Appellant

       a. Sufficiency of the Evidence

        First, the Appellant contends that the evidence presented at trial was not sufficient to allow
a rational juror to find her guilty of either aggravated child abuse or aggravated child neglect beyond
a reasonable doubt. In considering the issue of sufficiency of the evidence, we apply the rule that
where the sufficiency of the evidence is challenged, the relevant question for the reviewing court is
“whether, after viewing the evidence in the light most favorable to the [State], any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e).


                                                  -3-
Moreover, the State is entitled to the strongest legitimate view of the evidence and all reasonable
inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). 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. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.
App. 1987). This court will not reweigh or reevaluate the evidence presented. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978).

       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

        Initially, we are constrained to note that the Appellant “acknowledges that under existing
standards of appellate review, the Appellate Court may determine that the weight of the evidence
was a matter left solely for the jury to resolve.” She asserts, however, that “a closer examination of
the Jackson standard requires the Court to affirm a conviction only when it determines that the
evidence, if believed by the jury, would convince the average mind of the [A]ppellant’s guilt beyond
a reasonable doubt.” According to the Appellant, compliance with this mandate “would require the
Appellate Court to weigh and evaluate the evidence to the extent necessary to conduct a Jackson
review.”

        This court has repeatedly held that Jackson v. Virginia addresses two important aspects of
a sufficiency review on appeal: (1) the manner of review of the convicting evidence; and (2) the
standard of review for legal sufficiency. The scope of our examination of the evidence is not
equivalent to that of a jury. In a challenge to the sufficiency of the evidence, this court does not retry
the defendant. We emphasize that our examination in a sufficiency review is not to revisit
inconsistent, contradicting, implausible, or non-credible proof, as these issues are resolved solely by
the jury. Rather, we look to the record to determine whether there was substantive probative
evidence to support the verdict. The second inquiry, the question of legal sufficiency, then follows:
whether the record contains evidence from which the jury could have found the essential elements
of the crime beyond a reasonable doubt. Every reasonable hypothesis of innocence need not be
dispelled; it is only necessary that there exists proof which supports the elements of the crime.

          As noted, the Appellant was convicted of aggravated child abuse and aggravated child
neglect, with the child neglect conviction merging into the child abuse conviction. To support a
conviction for aggravated child abuse, as relevant to this case, requires proof that the Appellant
knowingly, other than by accidental means, treated a child age six years or less in such a manner as
to inflict injury which resulted in serious bodily injury. T.C.A. § 39-15-402(a) (2006). Serious
bodily injury is defined as bodily injury which involves a substantial risk of death, protracted


                                                   -4-
unconsciousness, extreme physical pain, protracted or obvious disfigurement, or protracted loss or
substantial impairment of a function of a bodily member, organ, or mental faculty. T.C.A. §39-11-
106(a)(34) (2006).

        With regard to this conviction, the Appellant does not contest that she did in fact inflict the
injury upon the then five-year-old victim with an iron. Rather, she merely asserts that the proof is
insufficient to establish that she “knowingly” inflicted the injury, as opposed to the injury occurring
accidently. She contends that the only proof presented which contradicted her testimony that she
accidently caused the injury was that of the victim herself. Moreover, she asserts that the victim’s
testimony should be evaluated in light of the fact that the victim admitted that she did not understand
the difference between the truth and a lie when being questioned. However, as noted above, we are
not permitted to reweigh or reevaluate the evidence presented to the jury. The jury was present and
heard both the victim and the Appellant’s accounts of the events leading up to the infliction of the
injury. It was within their province to make a credibility determination, and we will not second
guess their decision.

          The evidence in the light most favorable to the State established that the Appellant entered
the bedroom to find that the victim had burned her siblings with the iron. The Appellant picked up
the iron and, after telling the victim she was going to show her “what it felt like to be burned,”
intentionally placed the hot iron on the victim’s upper left thigh. Moreover, contrary to the
Appellant’s assertion that only the victim’s testimony supported the jury’s conclusion that the
incident was not accidental, a pediatrician who specializes in child abuse evaluation also testified
at trial that, based upon his review of the victim’s case, the burn was not the result of an accident.
Additionally, the record is replete with proof that the burn was intensely painful to the victim. Based
upon this proof, we conclude that the evidence is sufficient to support the conviction for aggravated
child abuse.

       The Appellant also asserts that the evidence is insufficient to support her conviction for
aggravated child neglect. To convict of aggravated child neglect, as indicted in this case, requires
proof of the following essential elements:

       (1)     that the Appellant did knowingly other than by accidental means:

               (a)     neglect a child so as to adversely affect the child’s
                       health and welfare; and
               (b)     the act of neglect resulted in serious bodily injury to
                       the child; and
               (c)     that the child was six (6) years of age or less.

See T.C.A. § 39-15-401, -402(a)(1),(b) (2003); see also T.P.I. Crim. 21.01 (7th ed. 2000).

       In support of the Appellant’s conviction for aggravated child neglect, the State, on appeal,
follows the same argument as advanced by the prosecutor at trial, i.e., “The [Appellant] admitted she


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did not seek medical treatment for the victim after she was burned.” While the question of whether
the Appellant sought medical treatment is relevant to the above stated first element of the offense,
it is not dispositive of the second element required for conviction.1 The proof at trial fails to
demonstrate that it was the act of neglect, or failure to seek medical treatment, which resulted in
serious bodily injury. Rather, the proof established that it was the Appellant’s act of abuse which
produced the serious bodily injury to the victim. Accordingly, the evidence is insufficient to support
the conviction for aggravated child neglect.

         b. Sentencing

         Next, the Appellant argues that the trial court imposed an excessive sentence in the case. In
support of this argument, the Appellant contends that the trial court erred by failing “to acknowledge
that it had the authority to impose a lesser sentence[, instead indicating] that the law gave [it] no
other choice than to impose a mid-Range One 20 year sentence . . . [and by failing] to acknowledge
all of the mitigators presented at sentencing[, particularly] . . . the [Appellant’s] previous expressions
of remorse.” The Appellant asserts also that the trial court’s application of three enhancement
factors was error, as the factors were included within the elements of aggravated child abuse.
Finally, the Appellant contends that the application of all enhancement factors not found by a jury
and used to enhance the sentence violated her Sixth and Fourteenth Amendments rights as expressed
by the holding of Blakely v. Washington. In this regard, we would note that the Appellant committed
the instant offenses in 2003, prior to the June 7, 2005 amendment to various provisions of
Tennessee’s Sentencing Act in response to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004). See 2005 Tenn. Pub. Acts Ch. 353 §§ 1, 6, 8. The “Compiler’s Notes” to the amendment
states that the act shall apply to criminal offenses committed on or after June 7, 2005 and that
offenses committed prior to that day shall be governed by prior sentencing law. T.C.A. § 40-35-
210(c), Compiler’s Notes. The notes continue, however, that defendants sentenced after June 7,
2005, for crimes committed previously, may elect to be sentenced under the new act by executing
a waiver. Id. The sentencing hearing in this case was conducted in April 2006. However, the record
before us indicates that no such waiver was filed in the instant case. Thus, the Appellant’s sentence
must be reviewed under the sentencing provisions in effect prior to the 2005 sentencing amendment.

        The Appellant was convicted of aggravated child abuse, a Class A felony, as a Range I
offender. The appropriate sentence range for a Range I offender convicted of a Class A felony is
fifteen to twenty-five years. T.C.A. § 40-35-112(a)(1) (2003). Prior to the 2005 sentencing
amendment, the presumptive sentence for a Class A felony was the midpoint within the range absent
enhancing or mitigating factors. T.C.A. § 40-35-210(c) (2003). The presumptive sentence is then
increased for applicable enhancing factors and decreased for applicable mitigating factors. Id. at (d),
(e).


         1
          Aggravated child abuse and aggravated child neglect are codified in the same penal statute. T.C.A. § 39-15-
402. The offense of “child abuse and neglect” is a single offense which may be committed by alternative courses of
conduct. State v. Mateyko, 53 S.W .3d 666, 668 n.1 (Tenn. 2001); State v. Hodges, 7 S.W .3d 609, 622 (Tenn. Crim. App.
1998).

                                                         -6-
         At the conclusion of the sentencing hearing, the trial court found the presence of four
statutory enhancement factors: (1) that the victim was particularly vulnerable due to age or disability;
(2) that the Appellant treated the victim with exceptional cruelty; (3) that the personal injuries to the
victim were particularly great; and (4) that the Appellant abused a position of private trust. See
T.C.A. § 40-35-114(5), (6), (7), (16) (2003). As noted, the Appellant contests application of factors
(5), (6), and (7) upon grounds that they are included within the elements of the offense of aggravated
child abuse. The State concedes, and we must agree, that the Appellant is correct. See State v.
Jones, 883 S.W.2d 597, 603 (Tenn. 1994). Thus, it was error to apply those factors.

           Additionally, the Appellant asserts that her sentence was excessive because the “trial judge
. . . failed to acknowledge all of the mitigators present at sentencing.2 In particular, [the court] failed
to acknowledge the [Appellant’s] previous expressions of remorse.” The Appellant further contends
that “consideration of her expressions of remorse is necessary to determine whether the trial court
properly weighed it as a mitigating factor.” The Appellant is correct that this court has previously
held that statements of remorse may be considered as mitigating evidence under Tennessee Code
Annotated section 40-35-103(13) (2003).

        At the sentencing hearing, the trial judge made the following pronouncements with regard
to his sentencing obligation under the sentencing act:

                . . . So here I am being asked to sentence this lady. I’m sure she’s sorry this
         happened, but I am bound by the law. She’s been convicted of a most serious felony.
         Carries fifteen to sixty years in the penitentiary.

                  I mean, it’s just terrible that this Court has to follow the law. I can’t suspend
         her sentence. I can’t probate a class “A” felony. It’s just most unfortunate that this
         lady has to pay this kind of price. And not only does she loose [sic] her daughter, but
         the little girl looses [sic] her mother. I think that that is what weighs so heavily upon
         me in this situation.

         At a later point in the sentencing process, the trial judge remarked:

         I would urge the defense to appeal this sentence. I think that another Court looking
         at this might find that this Court is all wrong. My inclination, to be perfectly honest
         with you, would be not to impose a twenty year sentence on this mother, to be
         perfectly honest with you.

        Furthermore, at sentencing, the trial judge commented that, “If there are mitigating factors,
the fact is, is that she has no previous record.” After review, it is altogether unclear from the record


         2
           Under pre-amendment law, appeal of a sentence was permitted if, “The enhancement and mitigating factors
were not weighed properly, and the sentence is excessive under the sentencing considerations set out in § 40-35-103 .
. . .” T.C.A. § 40-35-401(b)(2)(repealed 2005).

                                                        -7-
before us whether the trial judge, as argued by the Appellant, “simply failed to acknowledge the
mitigators,” rejected the mitigators after a review of the sentencing proof, considered the mitigators
within the context of other sentencing purposes, or was under the belief that, irrespective of the
mitigators, the court could not deviate from the midrange sentence of twenty years.

        Last, the Appellant challenges the trial court’s application of all four of the enhancement
factors upon grounds that such “enhancement of [her] sentence based upon factors not found by the
jury” violated her Sixth and Fourteenth Amendment rights to a trial by jury. The Appellant is correct
that application of the four enhancement factors to increase the length of her sentence, absent their
finding by a jury, was violative of her constitutional rights. See Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004); see also Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856
(2007); Harvey Webster v. State, No. M2006-00886-CCA-R3-PC (Tenn. Crim. App. at Nashville,
June 27, 2007) perm. app. dismissed, (Tenn. Sept. 7, 2007); State v. Mark A. Schiefelbein, No.
M2005-00166-CCA-R3-CD (Tenn. Crim. App. at Nashville, Mar. 7, 2007) perm. app. denied,
(Tenn. June 18, 2007). Thus, the Appellant is correct that, pursuant to Blakely and Cunningham, no
statutory enhancement factors should have been applied to overcome the presumptive minimum
sentence, which in this case was twenty years. Nonetheless, because this issue is raised for the first
time on appeal, any sentencing challenge available to the Appellant under Blakely was waived based
on the Appellant’s failure to object at trial to what she now contends is a constitutionally invalid
sentencing scheme. See Tenn. R. App. P. 36(a).

       Notwithstanding, based upon the trial court’s misapplication of enhancing factors, the
uncertainty of mitigating factors, and the requirement that the sentencing determination must
comport with the holding of Blakely v. Washington, we conclude that a remand for resentencing is
necessitated.

       Upon remand, the trial judge is instructed, as required by the pre-amendment provisions of
40-35-210, to consider, either from the transcript of the April 20, 2006 hearing or through the
introduction of supplemental evidence if the trial court so chooses:

       (5) evidence and information offered by the parties on the enhancement and
       mitigating factors in §§ 40-35-113 and 40-35-114;

               (d) . . . Should there be enhancement but no mitigating factors for a
               Class A felony, then the court shall set the sentence at or above the
               midpoint of the range. Should there be mitigating but no
               enhancement factors for a Class A felony, then the court shall set the
               sentence at or below the midpoint of the range;

               (e) . . . Should there be enhancement and mitigating factors for a
               Class A felony, the court must start at the midpoint range, enhance
               the sentence within the range as appropriate for the enhancement



                                                 -8-
               factors, and then reduce the sentence within the range as appropriate
               for the mitigating factors;

               (f) Whenever the court imposes a sentence, it shall place on the
               record either orally or in writing what enhancement or mitigating
               factors it found, if any, as well as findings of fact as required by § 40-
               35-209.

T.C.A. § 40-35-210(b)(5)(d)(e)(f).


                                          CONCLUSION

        Based upon the foregoing, the Appellant’s conviction for aggravated child abuse is affirmed.
The Appellant’s twenty-year sentence for this conviction is vacated and the case is remanded for
resentencing. The Appellant’s conviction for aggravated child neglect is vacated and dismissed with
instructions that an amended judgment form be entered to reflect this holding.



                                                        ____________________________________
                                                        DAVID G. HAYES, JUDGE




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