        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 13, 2014

            STATE OF TENNESSEE v. KWAKU ARYEL OKRAKU

                 Appeal from the Criminal Court for Davidson County
                       No. 2009A769    Steve R. Dozier, Judge




               No. M2013-01379-CCA-R3-CD           - Filed August 1, 2014



The defendant, Kwaku Aryel Okraku, was convicted of one count of aggravated child neglect
where the neglect caused serious bodily injury to the child, a Class A felony, one count of
aggravated child neglect where a controlled substance was used to accomplish the neglect,
a Class A felony, and one count of reckless homicide, a Class D felony. He received a
sentence of sixty years for each conviction of aggravated child neglect and a twelve-year
sentence for reckless homicide, all to be served concurrently, for an effective sentence of
sixty years. On appeal, the defendant argues that the trial court erred in denying his motion
for judgment of acquittal because the evidence is insufficient to support his convictions; the
trial court erred in permitting the jury to hear testimony regarding a prior incident involving
drugs; and the trial court erred in permitting testimony about the defendant’s statements
about selling cocaine. After reviewing the record, we affirm the judgments of the trial court
but remand the case for entry of a corrected judgment sheet that reflects the merger of the
aggravated child neglect convictions, with aggravated child neglect through the use of a
controlled substance remaining as the sole conviction for aggravated child neglect.


Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and
Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and R OGER A. P AGE, JJ., joined.

William E. Griffith, Nashville, Tennessee, for the appellant, Kwaku Aryel Okraku.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Victor S. (Torry) Johnson, III, District Attorney General; and Brian Holmgren, Assistant
District Attorney General, for the appellee, State of Tennessee.



                                          OPINION



        This case arises from an incident that occurred on June 11, 2008, where the victim
ingested an amount of cocaine that ultimately proved fatal. Both the defendant and the
victim’s mother, Ms. LaTonya Majors, were subsequently indicted on two counts of
aggravated child neglect and one count of first-degree felony murder. The defendant’s first
trial resulted in a mistrial. The facts included in this opinion are based upon the evidence
presented at the defendant’s second trial, where a jury found the defendant guilty of two
counts of aggravated child neglect and one count of reckless homicide.

        The victim was born on May 20, 2005, and was three years old at the time of the
incident. The victim and her mother shared a townhouse with the defendant in Antioch,
Tennessee. Ms. Majors and the defendant met shortly after the victim’s birth, and the
defendant was “basically [the victim’s] father.” On the morning of June 11, 2008, Ms.
Majors and the victim went to a career center in Murfreesboro and then met Mr. William
Gibson at Taco Bell. During the visit to the career center and Taco Bell, the victim was
never out of Ms. Majors’ sight. The victim and Ms. Majors later went to Eastland Park,
where Mr. Gibson joined them in the afternoon. While at the park, the victim was never out
of the sight of Ms. Majors other than “a normal . . . range” for a child playing in the park, and
Ms. Majors never witnessed the victim pick up or handle any unknown objects or substances.

       The victim and Ms. Majors returned from the park around 3:00 p.m. that afternoon,
and Ms. Majors began to prepare dinner and get dressed to attend her cosmetology class,
which began at 4:30 p.m. The defendant ordinarily cared for the victim while her mother
attended class, but Ms. Majors wished for her friend Ms. Aniesha Ollie to watch the victim
that day. Ms. Majors and the defendant had gotten into an argument the previous day, and
she was still upset with the defendant.

        Ms. Majors left her home “after 5:00 [p.m.]” to take the victim to Ms. Ollie’s house.
While en route to Ms. Ollie’s residence, Ms. Majors broke her phone after she and the
defendant got into another argument. Ms. Ollie was not home, so Ms. Majors went to one
of her friend’s residences, and Ms. Ollie was not there either. Ms. Majors then went to a
Verizon store to replace her phone, and she telephoned the defendant to ask him to meet her
at the store because the phone account was registered in his name. She purchased a new cell


                                               2
phone, and she and the defendant returned to their residence in separate cars. The victim
remained in the vehicle while Ms. Majors looked for Ms. Ollie and while Ms. Majors was
purchasing a new cell phone. Ms. Majors never witnessed the victim pick up any objects
during this time period.

       Once Ms. Majors and the victim returned home, the victim “continue[d] to play
throughout the house as she normally [did][][,]” and Ms. Majors laid down in her bedroom
and began watching television. The defendant was not at the residence when Ms. Majors
returned, but she estimated that she next saw the defendant “a few minutes” after she arrived
home. The defendant “was in for a brief second” and then left shortly thereafter, stating that
he was going to his mother’s house. Ms. Majors stated that the victim was back at home for
“about 45 minutes to an hour” before she collapsed.

       There were no areas of the house that were off-limits to the victim, and Ms. Majors
was not worried about the victim’s getting into anything harmful in the house because the
cleaning supplies were located in the laundry room and were placed high enough that the
victim could not access them. When the victim was playing in the house, Ms. Majors was
not able to see the victim nor was Ms. Majors aware of which specific rooms the victim
entered.

       Ms. Majors was on the telephone with Mr. Gibson when the victim entered her room
and stood in the doorway and began to pray, stating either “I see Jesus” or “I’m talking to
Jesus.” Ms. Majors knew the victim was praying because the victim held both of her hands
together “in a praying position” in front of her mouth. Ms. Majors found this behavior
unusual because she had never noticed her daughter praying before. The victim also was
ignoring Ms. Majors’ attempts to speak with her, which was unusual because normally when
Ms. Majors would speak to the victim, “she would respond no matter what she was doing.”
The victim also began to name “everyone she [knew] and wouldn’t stop.”

       Ms. Majors observed this behavior for “probably about at the most 15 to 20 minutes.”
Because she had never witnessed the victim behave in this manner, Ms. Majors took a video
of the victim on her cell phone. When the defendant returned home, Ms. Majors took the
victim downstairs to show the defendant her behavior. The defendant told Ms. Majors that
he had never witnessed the victim behaving in such a manner, and while he was holding the
victim, she “collapsed.” Ms. Majors estimated that the defendant returned home “probably
within 5 or 10 minutes” of her taking the video of the victim and that “[p]robably 20 to 30
minutes” elapsed between the time when she first observed the victim praying to the time
when the victim collapsed in the defendant’s arms.

       When the victim collapsed, Ms. Majors observed her eyes “rolling[,]” and the victim

                                              3
“went limp.” Ms. Majors grabbed the victim in her arms and exited the townhouse
screaming for help. A neighbor made Ms. Majors lay the victim on the floor, and the victim
began shaking.

       Ms. Amanda Swift was a neighbor who witnessed Ms. Majors outside with the victim
screaming that the victim was not breathing. Ms. Swift ran down her stairs and out of her
door and asked Ms. Majors what was happening. When Ms. Majors responded that her
daughter was not breathing, Ms. Swift took the victim from Ms. Majors, brought her inside
of Ms. Majors’ home, instructed Ms. Majors to call 911, and began to perform
cardiopulmonary resuscitation (“CPR”)on the victim. Ms. Swift stated that the victim
urinated on her and at the time was “really clammy, sort of wet.” Ms. Swift was certified and
licensed to administer CPR and began to perform CPR when she found that the victim was
not breathing. Ms. Swift noted that the victim’s body was in a sort of “convulsion” and that
the victim felt stiff, “like an ironing board.”

       The victim began to breathe on her own, but the breathing was not consistent enough
for Ms. Swift to stop performing CPR. Ms. Swift detected a very faint pulse in the victim
and estimated that she performed CPR on the victim for twenty to thirty minutes. Ms. Swift
stopped performing CPR after hearing from the defendant that the 911 operator instructed
them to stop all CPR efforts because it was believed that the victim was having a seizure.
After stopping CPR, Ms. Swift observed the victim “going in and out of convulsions. She
would shake; her eyes would roll in the back of her head and her body would constrict [sic].”

       Mr. Anthony Bryant, a paramedic with the Nashville Fire Department, responded to
the 911 call that came from the townhome. Mr. Bryant was dispatched to the residence at
10:30 p.m. and arrived at 10:41 p.m. Mr. Bryant believed that he was responding to a
seizure, and, when he observed the victim, she “was seizing and was just twitching pretty
much all over. . . . [her] [e]xtremities, body, head, eyes were twitching.” The victim was
placed on a stretcher, and Mr. Bryant began asking Ms. Majors about the victim’s medical
history. Ms. Majors told Mr. Bryant that the victim had a fever that day but that she had not
given the victim any Tylenol or ibuprofen. She had given the victim Dimetapp earlier in the
evening when she noticed that the victim felt hot. The victim went into cardiac arrest before
leaving in the ambulance, and paramedics were not able to revive her until they arrived at
Southern Hills Hospital. En route to the hospital, paramedics administered epinephrine to
the victim to help her heart start beating again and atropine to help speed up the heartbeat to
maintain blood flow. Mr. Bryant administered two dosages of each drug to the victim. At
this point, Mr. Bryant believed that the victim was suffering from a febrile seizure.

       After the victim arrived at Southern Hills Hospital, doctors were able to start the
victim’s heart beating again. Mr. Bryant then transported the victim to Vanderbilt Children’s

                                              4
Hospital after about “20 or 30 minutes.” Mr. Bryant agreed that nothing about the victim’s
behavior was inconsistent with the victim’s having suffered a cocaine overdose that day.

        Officer Matthew Barnes of the Metro Police Department was initially dispatched to
the residence, but, after learning that the victim was being transported to Southern Hills, he
proceeded to the hospital. At the hospital, Officer Barnes spoke with the defendant and
observed that he was visibly upset. Officer Barnes began filling out a report and later
apprised a youth services detective about the situation.

        Once the victim arrived at Vanderbilt Children’s Hospital, doctors informed Ms.
Majors that the victim was nearly unresponsive. Ms. Majors then learned on June 13, 2008,
that the victim had cocaine in her system and that the cocaine was the cause of her unusual
behavior. Upon learning that the victim had tested positive for cocaine, Ms. Majors “freaked
out” on the defendant, shouting at him and telling him that she hated him.

       Ms. Majors became upset with the defendant based upon a December 2006 incident,
where Ms. Majors found the victim playing with a bag in her mouth in a closet in the room
that Ms. Majors shared with the defendant. The bag was small and appeared to have been
torn off and tied, and Ms. Majors observed two “rocks” inside the bag that were dark yellow.
Ms. Majors confronted the defendant about the bag when he returned home, and the
defendant told her that the bag contained “rat poison.” Ms. Majors did not believe the
defendant and kept asking him about the substance in the bag, at which point the defendant
told her that she “kn[e]w what it [was] and just kind of gave a smirk.” Although the
defendant did not specifically tell her what the substance was, Ms. Majors surmised that the
bag contained rock cocaine. She believed it was cocaine partially because she knew that rat
poison looked “like a green little pellet” and because the items in the bag did not match that
description, nor were there rats in the residence. The defendant eventually left with the bag
and told Ms. Majors that he had been holding it for a friend.

       Police were called to the residence in December 2006, and Ms. Majors did not make
any mention of the drugs in the residence. She did not mention the drugs to the police
because the defendant had already left with the drugs, and Ms. Majors was afraid that she
would go to jail because she struck the defendant during the dispute. Ms. Majors informed
the defendant that she would not tolerate drugs in the house, and the defendant promised that
drugs would not be in the house again. Ms. Majors later informed detectives about the
December 2006 incident after cocaine was discovered in the victim’s system.

       The morning after discovering that the victim tested positive for cocaine, Ms. Majors
had a conversation with the defendant at their home where they discussed how the victim
could have tested positive for cocaine. The defendant told Ms. Majors that the victim

                                              5
possibly could have gotten the cocaine from a ball cap because the defendant had “cooked
some up” in the microwave the night that the victim collapsed. He said that some of “it” may
have gotten onto the cap. The defendant asked Ms. Majors if the victim had been playing
with any of his hats, and Ms. Majors replied that she had, that she “always plays with all of
his caps.” Ms. Majors was not aware that the defendant had been cooking anything in the
microwave on the night of the incident, and, although the defendant did not say what he had
been cooking, it was insinuated to Ms. Majors that it was cocaine because the disclosure
came during a conversation about how cocaine could have entered the victim’s system. That
same day, Ms. Majors relayed the details of this conversation to police officers and also
informed them of the December 2006 incident.

        Ms. Majors described the conversation between herself and the defendant as “sarcasm,
but at the same time it was [the defendant] saying that he was doing it.” The defendant
informed Ms. Majors that he discovered a hat with powder on it, and Ms. Majors saw the hat
and observed that it had a white powder. The defendant stated that he was “back at it,”
meaning that he was selling drugs again. Ms. Majors agreed that she never observed any
large amounts of cash or digital scales or other drug paraphernalia in the townhouse.

        Ms. Rebecca Swift1 testified that she was a social worker in the pediatric critical care
unit at Vanderbilt Children’s Hospital in June of 2008. The day after the victim was admitted
to the hospital, Rebecca met with Ms. Majors, the victim’s biological father, and the
defendant. Ms. Majors told Rebecca about the victim’s strange behavior and showed
Rebecca the video of the victim’s praying. On June 13, 2008, Rebecca found out that the
victim tested positive for cocaine and made a referral to the Department of Children’s
Services (“DCS”). Ms. Majors became “irate” when Rebecca informed her that she had
contacted DCS, and Ms. Majors asked to speak with the defendant. Rebecca heard Ms.
Majors scream at the defendant that cocaine was found in the victim’s system and that she
hated the defendant. Upon hearing that the victim tested positive for cocaine, the defendant
“threw his arms up, [and he] said the F word.” The defendant again used the “F word” when
Rebecca informed him that she contacted DCS and the police. After meeting with Ms.
Majors and the defendant, Rebecca contacted Detective Thomas Rollins and advised him of
Ms. Majors’ and the defendant’s reaction to the news.

       Dr. John Davis, a forensic pathologist and assistant medical examiner at Forensic
Medical, did not perform the autopsy of the victim but testified that he agreed with the
findings of the doctor who did perform the autopsy. He agreed that the victim’s cause of
death was the toxic effects of cocaine. He agreed that the symptoms displayed by the victim

       1
        Ms. Rebecca Swift is not related to Ms. Amanda Swift. We will refer to Ms. Rebecca
Swift as “Rebecca” so as to avoid any confusion. We intend no disrespect.

                                               6
were consistent with a finding that the victim was experiencing some form of cocaine
reaction and ingestion. Dr. Davis also agreed that there was no other potential cause of the
victim’s death. He stated that there was no way to determine how the cocaine entered the
victim’s system.

        Dr. Donna Seger, the Medical Director of the Tennessee Poison Center, testified that
the hospital first became aware that the victim had cocaine in her system after a urine drug
screen tested positive for cocaine. Dr. Seger stated that the drug screen indicating the
presence of cocaine was confirmed analytically by using “the gold standard, which is a big
machine . . . kind of like a machine that doesn’t make mistakes.” Dr. Seger further testified
that the symptoms the victim exhibited would be consistent with those displayed by a child
who ingested cocaine. She opined that cocaine is rapidly absorbed into the body and that
“the highest level of cocaine occurs very shortly after you ingest it, certainly within an hour.”
She testified that seizures occur quickly after a peak level of cocaine is reached. Dr. Seger
said that administering atropine and epinephrine to the victim did not contribute to the
condition that caused the victim’s death, and she agreed that the medical explanation for the
victim’s death was cocaine ingestion that produced seizures that led to the brain death of the
victim. Dr. Seger thought that the victim must have ingested cocaine because she did not
believe that a three-year-old was capable of snorting something up her nose without
assistance.

        Ms. Aniesha Ollie testified that Ms. Majors was her best friend. She shared childcare
responsibilities with Ms. Majors; Ms. Majors would look after her children when Ms. Ollie
could not find a babysitter, and Ms. Ollie would do the same for Ms. Majors. Ms. Ollie did
not have any contact with the victim on the day that she was admitted to the hospital. She
testified that she had sold marijuana but stated that she never brought drugs into Ms. Majors’
residence.

        Mr. Robert Cross testified that he met the defendant while both were incarcerated at
the Criminal Justice Center (“CJC”). The defendant approached Mr. Cross for legal advice
several days after the defendant entered the CJC because he witnessed Mr. Cross preparing
legal letters for other inmates. The two spoke on several occasions, and other inmates were
not within hearing distance. Mr. Cross testified that the defendant told him that the
defendant had laid cocaine out on a table and that he was “bagging it up for resale.” The
defendant went to use the bathroom, and when the defendant returned from the bathroom,
he saw the victim with white residue on her hand and told Mr. Cross that she later collapsed.
The defendant also “mentioned something” to Mr. Cross about cooking something in a
microwave. The defendant told Mr. Cross that the child was his girlfriend’s daughter and
mentioned that his girlfriend had also been charged in her murder. The defendant was afraid
that his girlfriend would later testify against him, and his plan was to place much of the

                                               7
blame on her if she did testify against him. The defendant mentioned that he was
experiencing financial difficulties and said that he was reselling cocaine in an attempt to
make more money. The defendant referenced the fact that a detective found “30 something
pairs of tennis shoes” and “high priced rims,” and he was worried that these items would
make it appear as though he was a drug dealer.

        Mr. Cross made notations on several different dates about his conversations with the
defendant, and these notes were discovered during a security shakedown. The information
was turned over to authorities, and Detective Thomas Rollins interviewed Mr. Cross about
the letter. Before conducting the interview, Detective Rollins confirmed that the defendant
and Mr. Cross were housed in the same location in the CJC. Detective Rollins showed Mr.
Cross a set of photographs, and Mr. Cross identified the defendant as the individual with
whom he had spoken. Detective Rollins agreed that he and Mr. Cross discussed the items
found in the defendant’s residence and that Mr. Cross indicated that his knowledge of these
items came from conversations with the defendant.

         On cross-examination, Mr. Cross admitted that his notes did not contain any reference
to the victim’s having cocaine on her hands or later passing out. He agreed that his notes said
that the cocaine was on the victim’s lips. He never mentioned the defendant’s cooking
something in the microwave in his notes or interview and testified that he did not remember
until trial that the defendant stated that he cooked something in the microwave. He attributed
his memory struggles to the length of time elapsing between his testimony at trial and his
pretrial conversations with both the defendant and Detective Rollins. Mr. Cross admitted
that he hoped speaking with authorities would result in a reduction of his sentence but
testified that he did not receive an early release for cooperating with authorities.

       Detective Thomas Rollins of the Metro Nashville Police Department Youth Services
Division first spoke with Ms. Majors and the defendant at Vanderbilt Children’s Hospital on
June 12, 2008. Once he learned that the victim tested positive for cocaine, he re-interviewed
Ms. Majors. Ms. Majors informed Detective Rollins that the defendant was the one
responsible for the cocaine that was found in the victim’s system and told him that the
defendant had been cooking something inside the residence. Detective Rollins then
conducted a telephone interview with the defendant, who told the detective that he had no
idea how the cocaine got into the victim’s system. Both Ms. Majors and the defendant were
aware that the victim tested positive for cocaine before speaking with Detective Rollins.

       Based upon his conversation with Ms. Majors, Detective Rollins conducted a search
of the defendant’s townhome. He discovered two red Chicago Bulls baseball caps, which
contained no visible residue and could not be tested by the TBI. Detective Rollins observed
“quite a few” pairs of expensive tennis shoes, along with “upper end electronics and rims for

                                              8
[the defendant’s] vehicle” during the search. Detective Rollins did not find any drugs in the
residence, but he was aware that the defendant and Ms. Majors were suffering financial
difficulties. Detective Rollins had previously investigated narcotics crimes, and he testified
that crack cocaine typically is a “yellowish color” and that “rock” is a commonly-used street
term to describe crack cocaine. He further testified that crack cocaine could “very easily”
be cooked in a microwave.

        Detective Rollins was able to listen to several telephone conversations that the
defendant had made while incarcerated when the defendant spoke with his brothers and also
with Ms. Ollie. Detective Rollins noted that the defendant expressed concern that Ms.
Majors was going to “flip” and cooperate with detectives. Ms. Ollie would be included on
three-way telephone calls when the defendant and his brothers would attempt to find out how
Ms. Majors was doing and state that they were going to hire Ms. Majors a private attorney.
As soon as Ms. Ollie would exit the conversations, the defendant and his brothers would
“start talking bad about her” and express that Ms. Ollie was not on their side. Detective
Rollins believed that the primary aim of these conversations was to “keep Ms. Majors quiet”
and prevent her from testifying against the defendant. The defendant was concerned because
he had been in a relationship with Ms. Majors for three years, and she knew “a lot about his
business.” At one point, the defendant stated that he did not think that Ms. Majors would tell
police that he left drugs behind at the house.

       The defendant testified that he was employed by Southwestern Great American at the
time of the incident. He recalled the December 2006 incident, and he stated that the
substance that Ms. Majors discovered was mothballs that the defendant was using to keep
ants out of the house. When Ms. Majors did not believe the substance was mothballs, the
defendant told her that it was poison meant to get rid of ants. The defendant stated that a
fight occurred because Ms. Majors believed that he was breaking up with her, and she did
not want him to do so. He stated that the first time he heard that Ms. Majors was alleging
that drugs were involved in that dispute was after he was incarcerated. He denied that the
substance was narcotics, stating that he did not have any drugs in his closet for the victim to
find.

       The defendant testified that the couple “had financial problems like everybody else
would.” He said that he enjoyed collecting tennis shoes and would use any extra money he
made to purchase a pair of sneakers. He stated that he received a loan to purchase both his
vehicle and the rims on the tires.

       The defendant’s account of June 11, 2008, and the following days differed somewhat
from the testimony of Ms. Majors. The defendant recalled that, on the morning of the
incident, Ms. Majors and the victim left the residence without informing him where they

                                              9
were going. Ms. Majors later sent the defendant a text message telling him that she was at
the career center in Murfreesboro and asking him if he could watch the victim later in the day
while Ms. Majors attended class. Ms. Majors did not tell the defendant that she went to the
park. Ms. Majors and the victim returned to the residence around 3:00 p.m., and the
defendant recalled the victim’s complaining that she had a headache. He came downstairs
and saw the victim sitting at the table preparing to eat dinner. Ms. Majors and the victim left
after Ms. Majors and the defendant got into an argument.

        The defendant testified that he did not meet Ms. Majors at the Verizon store; she
returned to the townhome and picked him up to go with her to the Verizon store. Ms. Majors
dropped the defendant back off at the townhome, where he remained playing video games.
He left the residence later in the evening to go to his parents’ house and returned thirty or
forty-five minutes later, at which point “everything went haywire.”

        Ms. Majors brought the victim downstairs to say goodnight to the defendant, and the
defendant noticed that something seemed wrong with the victim. He asked Ms. Majors about
it, and Ms. Majors informed him that the victim had been acting strange for the last thirty or
forty-five minutes while the defendant was away. Ms. Majors went to pick the victim up,
and the victim “stumbled, hit the wall and slid down, eyes rolling in the back of her head.”
The defendant then called 911 and was relaying to Ms. Majors and Ms. Swift the information
he was receiving from the 911 dispatcher. When the ambulance arrived to transport the
victim, the defendant attempted to get in the ambulance, but the ambulance had already
started to pull away. The defendant rode to the hospital with his older brother.

       The defendant testified that while at Vanderbilt Children’s Hospital, he was called to
a small room where Ms. Majors began shouting that she hated him. One of the doctors then
explained that the victim tested positive for cocaine, and the first word out of the defendant’s
mouth was “[t]he F word.” He cursed because he was confused as to how a three-year-old
could have cocaine in her system. The defendant was very upset when he heard this news.

       The defendant recalled that he did not argue with Ms. Majors at the townhome when
discussing how cocaine could have entered the victim’s system and testified that he never
said anything about the victim’s potentially coming into contact with a powdered substance
on one of his baseball caps. He testified that he never stated that he was cooking something
in the microwave on the night of the incident. He recalled that he kept his hats on the top
shelf of a closet and that the victim would have been unable to reach them.

       The defendant recalled that, on the day of the discussion in the townhome, Ms. Majors
told him not to return to the hospital. When he came back to the townhome, he saw that the
home and his truck had been searched.

                                              10
        When the defendant learned that there was a warrant out for his arrest, he eventually
turned himself in to authorities. While in jail, he was informed that Mr. Cross was an inmate
who was familiar with the law, and the defendant approached him to try to learn more about
what he was charged with and the basis for the charges. He stated that he never witnessed
Mr. Cross writing letters or any other paperwork, and he estimated that he spoke with Mr.
Cross on “anywhere from 10 to 15 occasions.” The defendant told Mr. Cross about the
police’s search of his residence and vehicle but testified that he never mentioned anything
about bagging up drugs for resale and never told Mr. Cross that the victim had cocaine on
her lips and passed out.

       The defendant said that he told Mr. Cross that police searched his home because his
daughter had cocaine in her system and had determined that she could not have ingested it
anywhere other than at the defendant’s residence. He claimed that Mr. Cross fabricated the
idea that the defendant was experiencing financial difficulty and resorted to selling drugs to
earn extra money. The defendant believed that Detective Rollins thought that he was a drug
dealer based upon his collection of sneakers and other items found in his residence. The
defendant claimed that the majority of items in his residence were purchased used and
second-hand at garage sales. The defendant testified that he never had cocaine in his
residence on June 11, 2008, and that he still was unsure how the cocaine entered the victim’s
system.

        He used the “F word” when he learned about the cocaine in the victim’s system
because it “was the first thing that came to mind[,]” as the positive test reflected negatively
on both Ms. Majors and him as parents. The defendant agreed that he had never witnessed
Ms. Majors use drugs but stated that the two never had a conversation about having drugs
in the home. He contended that Ms. Majors’ testimony was “probably” untrue and claimed
that Mr. Cross made up “everything that he said.” The defendant stated that Ms. Majors
made up her statement that the defendant admitted that the substance from the December
2006 incident was cocaine and fabricated the conversation in the bathroom between the two
of them the day after the victim tested positive for cocaine. The defendant agreed that Ms.
Majors did not have very much knowledge about how drugs are packaged or cooked and then
agreed that she fabricated a story about how cocaine entered the victim’s system.

       The jury convicted the defendant of two counts of aggravated child neglect and one
count of reckless homicide, and he received an effective sentence of sixty years. The
defendant filed a pro se petition for post-conviction relief alleging several grounds of
ineffective assistance of counsel and was permitted to file a delayed appeal because trial
counsel failed to file a motion for new trial or a notice of appeal. The trial court then denied
the defendant’s motion for a new trial, and he filed this timely appeal.



                                              11
                                            ANALYSIS

I. Sufficiency of the Evidence

        The defendant argues that the trial court erred in denying his motion for acquittal filed
after the State rested its case because the evidence was insufficient to sustain his convictions
for aggravated child neglect and reckless homicide. Specifically, he contends that witnesses
provided inconsistent testimony and that the evidence is insufficient to show that he exposed
the victim to cocaine and therefore also insufficient to show that he neglected the victim “as
to affect her health and welfare causing her serious bodily injury.”

       A defendant waives his right on appeal to challenge the trial court’s failure to grant a midtrial
motion for judgment of acquittal if the defendant chooses to present proof after the trial court denies
the motion. State v. Collier, 411 S.W.3d 886, 893 (Tenn. 2013) (citing Mathis v. State, 590 S.W.2d
449, 453 (Tenn. 1979)). Here, the defendant chose to testify after the trial court denied his motion,
and he did not renew the motion at the conclusion of the evidence. Therefore, this issue is waived
on appeal, and we only address whether the evidence is sufficient to support the defendant’s
convictions. See Collier, 411 S.W.3d at 893.

         When a defendant challenges the sufficiency of the evidence, the relevant question
for this court is “whether, after reviewing 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 (1979). On appeal, “the State
is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.” State v. Elkins, 102 S.W.3d 578, 581 (2003).
Therefore, this court will not re-weigh or reevaluate the evidence. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Instead, it is the trier of fact, not this court, who resolves any
questions concerning “the credibility of witnesses, the weight and value to be given the
evidence, as well as all factual issues raised by the evidence.” State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997).

       A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is then
shifted to the defendant on appeal to demonstrate why the evidence is insufficient to support
the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Circumstantial evidence
alone may be sufficient to support a verdict of guilty. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011). It is the jury who “decides the weight to be given to circumstantial
evidence, and ‘[t]he inferences to be drawn from such evidence, and [,moreover,] the extent
to which circumstances are consistent with guilt and inconsistent with innocence, are
questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). Direct and circumstantial evidence

                                                  12
are treated equally when weighing the sufficiency of the evidence, and it is not required for
the State to exclude every reasonable hypothesis except for that of guilt. Id. at 381.

        A person commits the offense of aggravated child neglect when that person
“knowingly abuses or neglects a child under eighteen (18) years of age so as to adversely
affect the child’s health and welfare,” and “[t]he act of abuse, neglect, or endangerment
results in serious bodily injury to the child.” T.C.A. §§ 39-15-401(b); 39-15-402(a)(1)
(2012). A person also commits aggravated child neglect if “a controlled substance . . . is
used to accomplish the act of abuse, neglect or endangerment. T.C.A. § 39-15-402(a)(2).
The defendant was convicted of two alternative counts of aggravated child neglect. Count
1 alleged serious bodily injury, and Count 2 alleged that a controlled substance was the
instrument that accomplished the neglect. When the child is eight years old or younger, the
offense is a Class A felony. T.C.A. § 39-15-402(b). A person acts “knowingly with respect
to the conduct or to circumstances surrounding the conduct when the person is aware of the
nature of the conduct or that the circumstances exist.” T.C.A. § 39-11-302(b). Serious
bodily injury is defined as bodily injury that involves:

              (A) A substantial risk of death
              (B) Protracted unconsciousness
              (C) Extreme physical pain
              (D) Protracted or obvious disfigurement
              (E) Protracted loss or substantial impairment of a function of a bodily
              member, organ , or mental faculty; or
                            n
              (F) A broken bone of a child who is eight (8) years of age or less[.]

T.C.A. § 39-11-106(a)(34)(A)-(F). In order to sustain a conviction for child neglect, the
State must prove “three material elements: (1) that a person knowingly neglected a child; (2)
that the child’s age was within the applicable range set forth in the statute; and (3) that the
neglect adversely affected the child’s health and welfare.” State v. Mateyko, 53 S.W.3d 666,
670 (Tenn. 2001). The State must also prove that the child suffered “an actual, deleterious
effect or harm.” Id. at 671.

       A person commits reckless homicide by recklessly killing another. T.C.A. § 39-13-
215(a). The statute states that:

              “Reckless” refers to a person who acts recklessly with respect to the
              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

                                              13
              constitutes 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.

T.C.A. § 39-11-302(c). Viewed in the light most favorable to the State, the evidence shows
that on June 11, 2008, the defendant brought cocaine into his residence. He was preparing
the cocaine for resale, and some of the cocaine came to rest on one of his baseball caps. The
victim was able to access the cocaine, ingested it, and began exhibiting strange behavior that
necessitated a 911 call. The victim later passed away, and toxicity from cocaine ingestion
was determined to be the cause of her death. The presence of cocaine in the victim’s system
was confirmed by two separate tests. Dr. Davis and Dr. Seger both testified that the victim
died due to cocaine ingestion. Ms. Majors testified that the defendant told her that he had
been “cooking some up” in the microwave the night of the incident and that the victim may
have ingested cocaine from one of his baseball caps. Ms. Majors testified that she saw a
baseball cap belonging to the victim that contained a white powder. Ms. Majors also testified
to an incident that occurred in December of 2006, where she discovered the victim with a bag
in her mouth that contained what Ms. Majors believed was rock cocaine. Mr. Cross testified
that the defendant told him that he was bagging up cocaine for resale and that he witnessed
white powder on the victim’s hands.

        The defendant contends that there was no proof that he brought cocaine into the
residence, and he claims that the testimonies of Ms. Majors and Mr. Cross were “inconsistent
at best.” However, the jury chose to credit the testimonies of Ms. Majors and Mr. Cross over
the testimony of the defendant. It is the jury who resolves questions of witness credibility,
and this court will not substitute its own inferences “for those drawn by the trier of fact from
circumstantial evidence.” Bland, 958 S.W.2d at 659. We conclude that the evidence is
sufficient to support the defendant’s convictions for aggravated child neglect and reckless
homicide. From the proof at trial, a jury could find that the defendant brought cocaine into
his residence knowing that the victim was able to access it; the victim was three years old at
the time, within the age requirement enumerated by the statute; and the defendant’s actions
caused the victim to ingest cocaine, which resulted in her death. The evidence shows that
the defendant’s act of neglect resulted in serious bodily harm to the victim and that a
controlled substance was used to accomplish the neglect. Accordingly, the defendant is not
entitled to any relief as to this issue.

II. Prior Bad Acts

A. Testimony Regarding the December 2006 Incident

       The defendant argues that the trial court erred by admitting testimony regarding the

                                              14
2006 incident when the victim placed a bag into her mouth that contained rock cocaine.
Specifically, he claims that the testimony constituted improper character evidence whose
probative value was outweighed by the danger of unfair prejudice.

       Tennessee Rule of Evidence 404(b) states that “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action in
conformity with the character trait.” However, such evidence may be admissible for other
purposes, such as illustrating motive, intent, guilty knowledge, the identity of the defendant,
absence of mistake or accident, and common scheme or plan. Id.; Collard v. State, 526
S.W.2d 112, 114 (Tenn. 1975). In order to admit evidence of a prior bad act:

              (1) The court upon request must hold a hearing outside the jury’s
              presence;
              (2) The court must determine that a material issue exists other than
              conduct conforming with a character trait and must upon request state
              on the record the material issue, the ruling, and the reasons for
              admitting the evidence;
              (3) The court must find proof of the other crime, wrong, or act to be
              clear and convincing; and
              (4) The court must exclude the evidence if its probative value is
              outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)-(4); State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985). Our
standard of review of the trial court’s determinations under Tennessee Rule of Evidence
404(b) is whether the trial court’s ruling was an abuse of discretion. State v. Dubose, 953
S.W.2d 649, 652 (Tenn. 1997). However, this decision is entitled to deference only if the
trial court substantially complied with the procedural requirements of Rule 404(b). Id.

       The defendant contends that the probative value of the evidence was outweighed by
the unfair prejudice and that the incident was not proven by clear and convincing evidence.
Before trial counsel began cross-examination of Ms. Majors, but after she recounted the
December 2006 incident, the trial court gave the following limiting instruction to the jury:

                     If from the proof you find that the defendant has committed
              another crime -- you’ve heard what this witness has talked about in
              terms of what she thought were drugs, et cetera. That, obviously, is not
              what he is, [the defendant] is, on trial for at this point.

                    And that information, if you credit it at all, may not be
              considered as evidence to prove his disposition to commit a crime for

                                              15
              that which he is on trial for. This evidence may only be considered by
              you, if at all, for the limited purpose of determining whether it provides,
              A, the defendant’s intent. That is, such evidence may be considered by
              you if it tends to establish that the defendant actually intended to
              commit the crime with which he is presently charged or,

                     B, guilty knowledge. That is, such evidence may be considered
              by you where guilty knowledge is an essential element of a crime
              charged and evidence of other offenses tends to establish that the
              defendant possessed of this knowledge at the time of the commission
              of the alleged crime with which he is presently charged with.

The trial court then conducted a hearing outside the presence of the jury. The court discussed
the admissibility of the December 2006 incident in conjunction with the defendant’s
statement to Ms. Majors that he may have been responsible for providing the cocaine that the
victim ingested, stating:

               But the statement she’s talking about [the defendant] making bear on
       June 12th obviously is relative, probative again of all the other issues that we
       discussed or for the last trial and this trial and were just instructed in terms of
       limiting instructions to the jury, that is, I mean, does the defendant -- if
       believed, obviously, but that’s the jury’s role, not mine -- there’s been no proof
       to the contrary here.

              But if believed, does this information contained in this statement come
       back at it again using there is no testimony here like there was at the last trial
       where [the defendant] said anything about dealing, but his having access to
       that substance and his acknowledgment of that to Ms. Majors, which I do find
       has been shown here, and ease [sic] central element -- can it be an element of
       this particular charge?

              That is that by doing this; coupling it with the December of ‘06 about
       being back at it again is that aggravated child neglect based on the age and
       circumstances around this incident. I think it is so were [sic] not here trying
       [the defendant] on simple possession of cocaine but if he’s acknowledging I’m
       back doing it again, using, then I think that’s probative and not unfairly
       prejudicial because the whole crux of the case.

               And the reason for it is not, am I guilty of simple possession, but am I
       guilty of possessing [cocaine] for resale or use around this three-year-old child

                                               16
       having the information again, if believed, from the December of ‘06 incident.

Trial counsel then had the following discussion with the trial court:

                      Trial Counsel: Judge, just for the record. . . . And so in your
       ruling just now you talk about coupling the fact relating back to the December
       of 2006 incident?
                      The Court: Uh-huh.
                      Trial Counsel: Which is exactly why when I was making -- when
       I was making my motion again today at the start of the trial asking that -- for
       that to stay out when she testified to that a few minutes ago, there was nothing
       except for her saying, I assume it to be -- there is nothing saying that is, in fact,
       what the substance was.
                      The Court: Yeah, I mean, there’s no lab report.
                      Trial Counsel: Well, there’s no lab report. She never mentioned
       anybody until this incident.
                      The Court: I understand that. And you can cross-examine her
       about it. But I mean, if [the jury] believe[s] [Ms. Majors] there was an
       incident about rat poisoning, little white rocks tied up in a plastic bag, and
       whether that was rat poisoning or cocaine.
                      I mean, it puts -- if believed -- puts [the defendant] on notice
       that, hey, don’t leave white rocks laying around in little plastic bags for [the
       victim] to have access to.

              ....

              So, I mean, they have a discussion about, hey -- a fight about, hey, don’t
       have [the victim] around stuff like this, don’t bring it into the house, and then
       June of ‘08 that’s what occurs again. Again, if believed.

We conclude that the trial court substantially complied with the procedural requirements of
Rule 404(b). The court conducted a jury-out hearing and determined that a material issue
other than conduct conforming with a character trait existed; the act was relevant to show
either the defendant’s intent or guilty knowledge and served to put the defendant on notice
that leaving cocaine accessible to the victim could have a harmful result. The court
determined that the probative value was not outweighed by the danger of unfair prejudice.
While the record before us does not contain an explicit statement from the court that it found
proof of the December 2006 incident by clear and convincing evidence, the court considered
the December 2006 incident in conjunction with the defendant’s statements to Ms. Majors.
The court found that proof of the defendant’s acknowledgment to Ms. Majors that he had

                                                17
access to cocaine “has been shown here[.]” The court recognized that a lab report did not
exist confirming that the substance from December of 2006 was cocaine but permitted trial
counsel to cross-examine Ms. Majors about the incident. In so doing, the court implicitly
extended its finding that Ms. Majors’s testimony constituted proof of the defendant’s
statements to also find that her testimony regarding the December 2006 incident showed that
the substance from the incident was cocaine. See State v. Michael Bailey, No. W2005-
01815-CCA-R3-CD, 2007 WL 763212, at *5 (Tenn. Crim. App. Mar. 13, 2007) (concluding
trial court substantially complied with Rule 404(b) when it did not explicitly find proof that
a prior bad act occurred by clear and convincing evidence but that the finding was implicit
in the court’s explanation for permitting the testimony of the witness). Because the trial
court substantially complied with the procedural requirements of Rule 404(b), we review the
decision for an abuse of discretion. Dubose, 953 S.W.2d at 652.

        We conclude that the trial court did not abuse its discretion in admitting testimony
regarding the December 2006 incident. We agree that the evidence was material to an issue
other than conformity with a character trait because it established the defendant’s intent and
guilty knowledge. While the evidence may have been prejudicial, it was also highly
probative, and the probative value was not outweighed by the danger of unfair prejudice.
The incident demonstrated that the defendant was on notice that the victim could access
drugs that he kept in his residence. The incident was probative of the defendant’s knowledge
that the victim had previously come perilously close to ingesting cocaine that was in his
residence. When coupled with his statements to Ms. Majors, the December 2006 incident
showed the defendant’s guilty knowledge that his conduct had caused the victim’s injury.
Further, the trial court provided a limiting instruction to the jury that the evidence of the
December 2006 incident could only be considered to determine whether it proved the
defendant’s intent or guilty knowledge. Accordingly, the defendant is entitled to no relief
as to this claim.

B. Testimony of Robert Cross

       The defendant argues that the trial court erred by admitting the testimony of Robert
Cross regarding the defendant’s statements that he had bagged up cocaine for resale on the
date of the incident and that the victim had white powder on her lips. He specifically
contends that the statement was inconsistent with his own testimony and that of Ms. Majors
and that it constituted improper character evidence whose probative value was outweighed
by the danger of unfair prejudice. The State responds that the testimony was not character
evidence nor evidence of other crimes but that it was evidence of the crime of aggravated
child neglect. We agree with the State and conclude that the evidence was not a prior bad
act that required a 404(b) analysis. Bagging cocaine and leaving it on the table was the
conduct that gave rise to the charges of aggravated child neglect and reckless homicide, the

                                             18
conduct that was at issue in the trial; therefore, it was not a prior bad act.

       Because the testimony did not constitute evidence of a “prior bad act” requiring a
404(b) analysis, the issue becomes whether the evidence was admissible under Rules 401 and
402. Dubose, 953 S.W.2d at 653. In order to be admissible, evidence must first be relevant.
Evidence is relevant when it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Tenn. R. Evid. 401. If the trial court finds that the evidence is
relevant, the court must then determine “if the probative value is substantially outweighed
by the danger of unfair prejudice.” Tenn. R. Evid. 403. Unfair prejudice exists when
evidence has “[a]n undue tendency to suggest a decision on an improper basis, commonly,
though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 947, 951 (Tenn.
1978). This court reviews evidentiary decisions of the trial court under an abuse of discretion
standard. Dubose at 652.

       Before Mr. Cross testified, the trial court conducted a hearing outside the presence of
the jury. The trial court found that Mr. Cross’s testimony was credible because there was
written evidence of the statements the defendant made, and no proof had been offered to
contradict Mr. Cross. The trial court found that the testimony was not unfairly prejudicial
and was extremely probative, stating:

               So, these discussions about how this incident happened, I mean,
       obviously, if they’re believed by the jury, they’re extremely probative. No one
       else in the prior trial, at any other time has given information about the victim
       having a baggy and white powder on her hands. So it’s extremely probative.
       Is it prejudicial to hear that I’m selling drugs out of a house where there is a
       three year old? Yes. Is it unfairly prejudicial? I don’t think so because of the
       material issues that we’ve already discussed when I was ruling on Ms.
       Majors[’] testimony.

              ....

               But back to the cocaine and I’m back into selling it and she gets a hold
       of some of it. I mean, the reason it’s probative is it’s an admission, number
       one, if it’s believed. And Number two i[t] goes into multiple elements about
       knowledge and intent and can answer, if the jury believes it, they may think
       Mr. Cross is ridiculous, I don’t know. But can explain the question that, again,
       has been asked and is a relevant question to be asked, is [the defendant]
       responsible for this. Well, is it neglectful to be selling drugs or leaving
       cocaine out in a home where a three year old is present and roaming around?

                                               19
       Might be, if the jury credits the testimony, and that’s the whole case.

              So obviously there are issues again, other than character or other than
       is, was [the defendant] in June of ‘08 selling drugs. That’s not what we’re
       here to answer, but that is extremely relevant and probative to the allegations
       for which he’s on trial for aggravated child neglect and did that lead to the
       victim’s death.

In the case sub judice, the trial court determined that the testimony of Mr. Cross was highly
probative as to the allegation of aggravated child neglect. The court found that the evidence
raised issues other than the defendant’s character and determined that it was not unfairly
prejudicial because the evidence raised questions as to the defendant’s intent and guilty
knowledge.

        We conclude that the trial court did not abuse its discretion in admitting the testimony
of Mr. Cross. As the trial court noted, the testimony was highly probative as to the allegation
that the defendant committed aggravated child neglect by leaving cocaine in a location where
it was accessible to the victim. The evidence was probative of the defendant’s intent to leave
cocaine in a location where the victim could access it and to the defendant’s guilty
knowledge that it was his conduct that caused the victim’s death. We agree that while the
testimony was prejudicial, it was not unfairly prejudicial, and any prejudice did not
substantially outweigh the probative value. Therefore, the defendant is not entitled to any
relief on this issue.

III. Merger

       We note as a matter of plain error that the trial court entered two judgments of
conviction for aggravated child neglect, but the defendant was convicted under alternative
theories. In Count 1, the defendant was convicted of aggravated child neglect that caused
serious bodily injury to the victim, and in Count 2 he was convicted of aggravated child
neglect where a controlled substance was employed to accomplish the neglect. When a
defendant is convicted of the same offense under alternative theories, “a merger and
imposition of a single judgment of conviction protects against double jeopardy and preserves
the validity of the jury verdicts for future avoidance of problems related to unnecessarily
dismissed ‘charges’ or ‘convictions.’” State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim.
App. 1997). Therefore, we vacate the judgments and remand the case for the entry of a
single judgment form to reflect the merger of the aggravated child neglect conviction in
Count 1 into the conviction of Count 2.




                                              20
                                      CONCLUSION

        For the above-mentioned reasons, the judgments of the trial court are affirmed, but
the case is remanded for the entry of a single, corrected judgment form to reflect the merger
of the verdicts into one conviction for aggravated child neglect, with Count 2 as the basis for
the remaining conviction.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




                                              21
