        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 1, 2015

           STATE OF TENNESSEE v. JORDAN GREGORY LOVE

            Direct Appeal from the Criminal Court for Davidson County
                    No. 2012-A-432      Steve R. Dozier, Judge



              No. M2015-00183-CCA-R3-CD – Filed September 7, 2016



NORMA MCGEE OGLE, J., concurring in part and dissenting in part.

        I agree with the majority‟s conclusions regarding Mr. Pilarski‟s testimony and the
trial court‟s committing reversible error by admitting the codefendants‟ statements. To
me, the fact that the State even pursued charges against everyone in the home and the
victim‟s father is troubling. I write separately, though, to dissent from the majority‟s
conclusion that the evidence is insufficient to support the Defendant‟s convictions.

        First, the majority concludes that the evidence is insufficient to show that the
victim suffered serious bodily injury because it does not establish a protracted or obvious
disfigurement. As noted by the majority, “„[p]rotracted‟ is an adjective used to describe
something that is delayed or prolonged in time.” Derek Denton, No. 02C01-9409-CR-
00186, 1996 WL 432338, at *5. “Obvious” means “easily seen, recognized or
understood, open to view or knowledge.” Random House Webster‟s Unabridged
Dictionary 1339 (2d ed. 1998). The victim‟s mother testified that she was “completely
shocked” when she first saw the victim‟s tongue, that his tongue “protruded from his
mouth,” and that it “opened up in two” when he smiled. She also stated that when he ate
food, even baby food, it would fall out of his mouth and that when out in public, people
would ask if there was any way to repair his tongue. She said that the victim would sit
with his tongue protruding from his mouth and that it took a couple of months for the
tongue to heal. I have reviewed the photographs of the victim‟s tongue and, like his
mother, was shocked. Although the Defendant claims that the cut was small, only one to
one and one-half centimeters in length, the victim‟s tongue was also small. Therefore,
while the cut may have seemed small in relation to an adult‟s tongue, it was obvious and
quite significant to a baby‟s tongue. As a result, I would hold that the evidence was
sufficient for a jury to find that the cut to the victim‟s tongue qualified as serious bodily
injury.
        The majority also concludes that the evidence is insufficient to show that a
dangerous instrumentality was used to abuse the victim. Granted, Dr. Patel was the only
witness to conclude that the victim‟s tongue was cut with a sharp object. However, Dr.
Holzen acknowledged that the injury could have been caused by a sharp object, and the
Defendant himself said that the victim‟s tongue looked like it had been cut with a pair of
scissors. Although Mr. Pilarski did not find any sharp object in the Defendant‟s bedroom
that could have been used to cut the victim‟s tongue intentionally, he also did not find
any object, such as a spoon, that could have cut the victim‟s tongue accidentally.
Moreover, the victim‟s tongue was injured on June 11, but Mr. Pilarski did not examine
the Defendant‟s bedroom until June 22, eleven days later. Thus, I would also hold that
the evidence was sufficient for a jury to find that a dangerous instrumentality was used to
injure the victim.

       In sum, I believe that the evidence is sufficient to support the Defendant‟s
convictions. Nevertheless, I agree with the majority‟s conclusion regarding Mr.
Pilarski‟s testimony and that the trial court erred by admitting the codefendants‟
statements into evidence and that the error was not harmless. Accordingly, the
Defendant‟s convictions must be reversed and the case remanded to the trial court for a
new trial.


                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




                                           -2-
