         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    March 27, 2007 Session

             STATE OF TENNESSEE v. DAVID HAROLD HANSON

                Direct Appeal from the Criminal Court for Anderson County
                          No. A4CR0208     James B. Scott, Judge



                    No. E2006-00883-CCA-R3-CD - Filed August 27, 2007


The defendant, David Harold Hanson, was convicted of aggravated child abuse a Class A felony, and
received a sentence of eighteen years imprisonment. On appeal, the defendant raises the following
issues: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court
erred in refusing to instruct the jury on the definition of “accidental means” as submitted by the
defendant; (3) whether the trial court improperly instructed the jury on the “knowing” element of
aggravated child abuse; and (4) whether the trial court erred by giving sequential jury instructions.
Following our review of the record, the parties’ briefs and the applicable law, we conclude that the
evidence was insufficient to prove that the defendant possessed the requisite mental state for
aggravated child abuse; and therefore, we reverse the judgment of the trial court and dismiss the
case.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                        Dismissed

J.C. MCLIN , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., J., joined
and ROBERT W. WEDEMEYER , J., concurring in part and dissenting in part.

J. Thomas Marshall, Jr., Clinton, Tennessee, for the appellant, David Harold Hanson.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS
         The defendant was charged with two counts of aggravated child abuse against S.H., an
      1
infant. The following evidence was presented at trial. Amanda Silcox, who described herself as
the defendant’s fiancée, testified that she and the defendant lived together and had two children
together. The couples’ first child, S.H., was born on May 22, 2003.2 S.H. weighed seven pounds,
thirteen ounces and was a normal baby when she came home from the hospital. Ms. Silcox took care
of S.H. for the first six-to-seven weeks after she was born but then went back to work at the Sonic
restaurant in Clinton, Tennessee on “July 7th or 8th.”

        Ms. Silcox testified that she worked over forty hours a week at Sonic. While she worked at
Sonic, the defendant took care of S.H. at their home in Oak Ridge. On July 13, 2003, Ms. Silcox
returned home from work around 7:00 p.m. and found the defendant upset and crying. The
defendant told her that he had been carrying S.H. and a basket of laundry at the same time and fell
on some stairs. The defendant also indicated that they should take S.H. to the hospital. Ms. Silcox
went over to the crib where S.H. was lying asleep. Ms. Silcox noticed that S.H.’s right leg was
“swollen and bluish-purple,” so she and the defendant took S.H. to the hospital. Ms. Silcox recalled
that they did not take S.H. to Oak Ridge Hospital which was near their house; instead, they took S.H.
to Children’s Hospital in Knoxville. Ms. Silcox explained that they took S.H. to the Children’s
Hospital because her relatives had been to that hospital before and the hospital was “for children.”

         Ms. Silcox testified that after waiting in the emergency room for a couple of hours, S.H. was
examined by a doctor. During the examination, the doctor moved S.H.’s leg and she cried a little,
but she did not cry when the doctor moved the other parts of her body. The doctor placed S.H.’s leg
in a splint and told Ms. Silcox to give S.H. some Baby Tylenol. The doctor also told Ms. Silcox to
make an appointment with a pediatrician in two or three days. Ms. Silcox did not wait. She and the
defendant took S.H. to see the pediatrician, Dr. Carl Morris, on July 15, 2003. Dr. Morris examined
S.H. and told Ms. Silcox to take her back to Children’s Hospital for more x-rays, which Ms. Silcox
did on the same day. At the hospital, S.H.’s leg was x-rayed again. Ms. Silcox was told to come
back the next day to have Dr. Mark Turner, an orthopedic specialist, look at S.H. Afterwards, Ms.
Silcox took S.H. home. The next day, Ms. Silcox took S.H. to the orthopedic specialist for more x-
rays and then returned home.

       Ms. Silcox testified that on July 24, 2003, she took S.H. to Dr. Morris for her two-month
check-up. After Dr. Morris performed a routine examination of S.H., he informed Ms. Silcox that
he wanted S.H. to undergo a full-body skeletal x-ray at Children’s Hospital. Ms. Silcox complied
and took S.H. to Children’s Hospital. However, Ms. Silcox was not allowed to take S.H. home after
she was examined. Instead, S.H. was placed in the custody of the Department of Children’s Services
(DCS). Thereafter, Ms. Silcox was told that S.H. had injuries other than the ones to her right leg.
When questioned by Police Investigator Gary Anders, Ms. Silcox told Anders that she observed the
defendant lift S.H. into the air and bring her back down twice on the same occasion. Ms. Silcox


          1
              Because the victim is an infant, we have determined to refer to her by her initials.

          2
              The couple had a second child, a boy, who was born on December 16, 2004.

                                                             -2-
asserted that S.H. laughed when the defendant did this. Ms. Silcox noted that S.H. was about a
month or month-and-a-half old when the defendant lifted S.H. into the air. Ms. Silcox
acknowledged that she loved the defendant and chose to stay with him even though it meant that
S.H. would remain in the custody of DCS. Ms. Silcox noted that she let co-workers and relatives
hold S.H. In fact, her mother and father took care of S.H. for a couple of days. Ms. Silcox also
stated that she had never observed the defendant express anger toward S.H. or treat S.H. in a way
that would cause her injury.

        Investigator Gary Anders was called to testify for the sole purpose of impeaching part of Ms.
Silcox’s testimony. According to Investigator Anders, Ms. Silcox told him that she saw the
defendant “throw S.H. up in the air and catch her on the way down, and he may have grabbed her
too hard and possibly caused the impact.” On cross-examination, Investigator Anders noted that Ms.
Silcox said that she did not think the defendant had injured S.H.

        Lori Nunley testified that she was the emergency room physician who saw S.H. on July 24,
2003, at Children’s Hospital. S.H. was referred to the hospital for a total body x-ray because she had
sustained suspicious looking leg fractures. S.H. was brought to the hospital by Ms. Silcox.
According to Dr. Nunley, S.H. appeared alert, not particularly fussy, and well-fed. However, S.H.’s
hygiene was marginal, having some dirt underneath her fingernails and toenails. S.H. also had a
small, fading bruise about the size of a pinky fingernail near the middle of her chest. Dr. Nunley
observed that the bottom portion of S.H.’s right leg was very swollen, had bruising, and was purple-
blue in coloration. The coloration was especially noticeable around the front of her right ankle. Dr.
Nunley also observed that the sole of S.H.’s right foot had bruising and she had a blister on her toe,
probably from the splint she had been wearing. S.H.’s left leg was tender but showed no visible
signs of bruising.

        Dr. Nunley testified that after she reviewed S.H.’s x-rays, she found multiple fractures on
both of S.H.’s legs and on her chest. She described the leg fractures as “corner” or “bucket-handle”
fractures which were considered to be caused exclusively by child abuse. Dr. Nunley also noted that
the rib fractures were worrisome and “highly suspicious for child abuse.” Dr. Nunley opined that
the fractures found on S.H.’s legs were not consistent with the circumstances of an adult falling on
top of a baby. She explained:

       Generally, the type of fracture you would see in a long bone in an arm or a leg from
       a fall would be a transverse fracture, meaning that a long portion of the bone is
       broken in half perpendicular to the long axis of the bone. Sometimes there can be
       fractures that are more angled or can sometimes even be a little spiraled. That does
       not describe [S.H.’s] fractures.

Based on her experience and expertise, Dr. Nunley opined that S.H.’s fractures were consistent with
a child being violently shaken or from extreme rotation and twisting motion where a child’s arms
and legs flail back and forth violently. Dr. Nunley discounted the theory that S.H.’s fractures could
have been caused by changing her diaper, yanking her legs, or turning her over by her leg. Rather,


                                                 -3-
Dr. Nunley reiterated that S.H. had fractures on both sides of her legs, and these fractures were
consistent with a very forceful, twisting motion or a wild, flailing motion.

        Dr. Nunley testified that she ruled out “brittle bone disease” because S.H. did not show any
of the associated signs or symptoms and she had a rather benign medical history. Dr. Nunley
diagnosed S.H. as a victim of battered child syndrome, and therefore, Dr. Nunley called DCS.
Dr. Nunley acknowledged that the ophthalmologist, who later examined S.H., did not find any retinal
hemorrhages or bleeding in the back of her eyes which is often associated with shaking a baby.
However, Dr. Nunley asserted that she could not rule out baby shaking with 100% certainty because
of the fractures.

        Dr. Nunley testified that S.H.’s rib fractures were located on both sides of her ribs. Thus, Dr.
Nunley opined that these fractures were caused by forcible squeezing because a baby’s ribs are very
pliable. Dr. Nunley also opined that the rib fractures were older than the leg fractures. Dr. Nunley
further opined that movement of S.H.’s legs would cause her extreme physical pain. However, Dr.
Nunley acknowledged that it was difficult to measure how much pain an infant felt and the infant
would have no memory of the pain suffered. Dr. Nunley recalled that after reviewing the x-rays on
July 24, she reviewed the earlier x-rays. She saw the “bucket-handle” fractures on the July 15 x-rays
but she did not see the fractures on the initial x-rays taken prior to July 15.

        Dr. Sidney Roberts testified that he specialized in pediatric radiology at Children’s Hospital.
On July 14, 2003, he reviewed the initial x-rays of S.H.’s right ankle but did not perceive any
fractures at the time. On July 15, 2003, he reviewed additional x-rays taken of S.H. and found small
fractures on S.H.’s lower right leg. Although he read the parents’ explanation of how S.H.’s injury
occurred – that her father had fallen down the steps with her – Dr. Roberts called S.H.’s pediatrician,
Dr. Morris, and voiced his suspicion of child abuse based on the location and appearance of the
fractures. Thereafter, Dr. Morris ordered full body x-rays of S.H. on July 24, 2003, and Dr. Roberts
reviewed them. According to Dr. Roberts, the x-rays showed that S.H.’s right leg had four fractures:
below her knee, in the fibula and tibia, and near her ankle. The x-rays also showed two fractures to
the tibia and fibula of S.H.’s left leg. The x-rays further revealed multiple fractures on both sides
of S.H.’s ribs – the right posterior: third, fourth, tenth and eleventh; and the left posterior: third,
fourth, fifth, tenth and eleventh. Dr. Roberts explained that the term “posterior” meant “towards the
back.”

        According to Dr. Roberts, S.H. did not suffer from “brittle bone disease” because she had a
normal amount of calcium in her bones and there was no irregularity of the cartilage surfaces. Dr.
Roberts acknowledged that it was conceivable that the injury to S.H.’s right ankle may have been
caused by a fall if accompanied by a twisting or torsion traction of her leg upon impact. However,
Dr. Roberts asserted that a fall did not account for the fairly identical fractures on both of S.H.’s legs.
Dr. Roberts stated that most falls involving infants result in fractures of the long bone in the shaft
which were not the type of fractures S.H. had. Dr. Roberts noted that S.H.’s leg fractures were
consistent with a twisting or pulling injury. Dr. Roberts opined that S.H.’s rib fractures were caused
by a forceful squeezing motion with adult hands.


                                                   -4-
         Dr. Roberts opined that picking up S.H. by both legs or one leg would not create enough
force to cause the fractures in her legs. He further opined that it was unlikely S.H.’s leg injuries were
caused by a fall in which someone grabbed her legs to keep her from hitting her head. He explained
that the person would have to grab and twist both legs in a matter of seconds. Similarly, Dr. Roberts
did not believe that tossing S.H. into the air and catching her would create enough force to cause the
fractures. Dr. Robert’s surmised that S.H.’s fractures were likely a result of a squeezing action rather
than a shaking action.

        Dr. Roberts estimated that S.H.’s rib fractures occurred three to five weeks prior to July 24,
2003, and either occurred simultaneously or within seven to ten days of each other. Dr. Roberts
stated that his estimation was based on the healing reaction that had occurred around the fractures.
Dr. Roberts ruled out the possibility that S.H.’s rib fractures were eight weeks old. Dr. Roberts
acknowledged the possibility that these injuries may have been caused “by an individual who didn’t
realize they had caused the fracture.” Based on his review of the x-rays, Dr. Roberts concluded that
S.H.’s leg fractures occurred within 24 to 48 hours of July 13, 2003. Dr. Roberts opined that S.H.’s
fractures probably caused her pain until they stabilized and healed. Dr. Roberts described S.H.’s
fractures as a discontinuity or destruction in the connection between the cartilage and the bone. Dr.
Roberts said the fractures were not like an actual break through the bone but little breaks in the
bone.

        Dr. Carl Morris testified that he was S.H.’s pediatrician. He first saw S.H. on May 27, 2003,
when she was five days old. He described S.H. as a normal baby. On June 8 and 23, he treated S.H.
for thrush and congestion. On June 23, S.H. was brought in for her one month “well baby” check-
up. Dr. Morris described this check-up as a “head-to-toe exam.” Dr. Morris did not recall S.H.
exhibiting any signs of pain during this check-up. Dr. Morris did not see S.H. again until July 15.
At this time, Dr. Morris noted that S.H. was wearing the brace from her emergency room visit two
days ago. Her foot was swollen with patchy areas of redness around her ankle. Dr. Morris recalled
that S.H. cried vociferously when her right leg was moved a tiny bit, but she did not react to any
movement of her left leg. According to Dr. Morris, S.H.’s crying was an indicator of the extreme
pain she felt. Based on S.H.’s reaction to the leg movement, Dr. Morris believed her leg may have
been broken and ordered more x-rays.

        Dr. Morris testified that he examined S.H. again on July 24, 2003. After the examination,
he referred S.H. to Children’s Hospital for a full-body x-ray. Based on his own observations and the
reports from Children’s Hospital, Dr. Morris opined that to a reasonable medical certainty S.H. had
been abused. However, Dr. Morris acknowledged that his medical definition of child abuse included
passive neglect that causes injury to a child. Dr. Morris also explained that “reasonable medical
certainty” meant that it was “more probable than not.” Dr. Morris reiterated that during his
examination of S.H. on June 23, he did not observe any signs that S.H.’s ribs were fractured or that
she was in pain as a result. Dr. Morris stated that S.H. had a delay in rolling over in her fourth month
of development. Dr. Morris opined that S.H.’s developmental delay may have been caused by her
injuries. However, Dr. Morris noted that S.H. was doing fine now.


                                                  -5-
        Dr. Mark Turner testified that he was the orthopedic surgeon who examined S.H. on July 16,
2003. According to Dr. Turner, S.H. had a “rather swollen” right lower leg at the time. As a result,
S.H.’s leg was placed in a splint to keep it immobile. On July 29, 2003, Dr. Turner confirmed Dr.
Roberts’ reading of the full-body x-rays and diagnosed S.H. with non-accidental trauma. Dr. Turner
noted that S.H.’s fractures had started to heal by this time and her progress needed to be followed
to ensure that her injuries had no permanent effect. Dr. Turner explained that many of S.H.’s
fractures were near the growth plates; and therefore, she would have to be watched for potential bone
deformity or limb length inequality. Dr. Turner stated that he saw S.H. in October of 2004, and she
was walking by then and appeared to be fine.

        Pam Silcox, the victim’s grandmother, testified that after her daughter Amanda went back
to work, she took care of S.H. for two or three days before the defendant began caring for her. She
stated that S.H. appeared to be okay and nothing happened to S.H. while in her care. She noted that
her daughter called her when S.H. was first taken to the hospital and she was upset and crying.

        Dr. Mary Campbell testified that she specialized in pediatric emergency medicine and did
specialty consultations in child abuse cases at Children’s Hospital in Knoxville. Dr. Campbell first
saw S.H. on July 25, 2003, after she had reviewed the full-body x-rays. She noted that S.H. was in
the same physical shape the other doctors had described in the medical history. She observed that
S.H. was well-groomed but had a single bruise on her chest and marked swelling on her lower right
leg. Dr. Campbell stated that she had ruled out “brittle bone disease” after reviewing S.H.’s medical
history. She was aware that the defendant claimed he fell on the stairs with S.H.’s leg caught
between him and a stair. However, Dr. Campbell noted that the defendant’s story did not explain
the other fractures to S.H.’s legs and chest. Dr. Campbell also noted that the delay in S.H.’s care,
the dislocation of her foot, and the degree of force causing the other fractures in her legs and chest
would be unusual in a simple stair fall. She further noted that “corner” or “bucket-handle” fractures
were shown in studies to be “consistent with a twisting of the legs.” Accordingly, Dr. Campbell
determined that S.H. was the victim of inflicted trauma.

        Dr. Campbell testified that S.H.’s medical history indicated she had experienced pain to her
right leg. On July 25, Dr. Campbell used facial gradation to determine whether S.H. was suffering
any pain and felt S.H. experienced moderate pain. However, she admitted that her consult notes of
July 25 stated that S.H. was smiling frequently and only occasionally appeared uncomfortable. Dr.
Campbell acknowledged that the only area where she could confidently say S.H. was experiencing
pain was her right foot. Dr. Campbell further acknowledged that the only treatment S.H. received
for her injuries was the application of the splint. No pain medication was prescribed for S.H. Dr.
Campbell also could not totally discount the fact that the injury to S.H.’s right foot could have been
sustained in a fall. She further noted that the person responsible for S.H.’s injuries would be aware
that the force being delivered was too much and would cause injury though “any caretaker might be
unaware that there were injuries to the child.”




                                                 -6-
        S.H.’s foster mother testified that she and her husband adopted S.H. in May 2005. She
explained that S.H. was released into her care after S.H.’s stay in the hospital in July 2003. Because
of S.H.’s injuries, she had to be very careful in handling her. S.H. would cry when her right leg was
inadvertently moved during a diaper change. According to her foster mother, S.H. was two years
old and doing “as great as a two year old can be.” If S.H. was brought into the courtroom, she would
scream and run around.

        Detective Ronald Boucher of the Oak Ridge Police Department testified that he interviewed
Amanda Silcox on July 24, 2003, at the hospital and the defendant on July 25, 2003, at the police
station. The defendant told him that while carrying S.H., he fell on the stairs and landed on top of
S.H. Afterward, he put S.H. in her crib. A few hours later, he noticed that S.H. had a red mark on
her leg. Detective Boucher asked the defendant if he thought S.H.’s leg was broken and the
defendant responded that he thought it was but later indicated that he was not sure. Detective
Boucher asked the defendant about S.H.’s other injuries, but the defendant did not answer. The
defendant told Detective Boucher that he did not have any friends and none of his family would have
caused S.H.’s injuries. Detective Boucher testified that the defendant lived less than a half mile from
the Oak Ridge Methodist Medical Center. Detective Boucher asked the defendant to write down
what happened but the defendant did not do so.

        Based on the evidence presented, the jury acquitted the defendant of one count of aggravated
child abuse regarding S.H.’s rib fractures, but found the defendant guilty of aggravated child abuse
regarding S.H.’s leg fractures. Thereafter, the defendant was sentenced to fifteen years
imprisonment.

                                            ANALYSIS

                                     I. Sufficiency of the Evidence
        On appeal, the defendant contends that the evidence was insufficient to support his
conviction for aggravated child abuse. Specifically, he argues that the evidence presented at trial
failed to establish two elements of the offense of aggravated child abuse. First, the evidence was
insufficient to prove that he knowingly caused the injuries to S.H. by means other than accident.
Second, the evidence was insufficient to prove that S.H. suffered any serious bodily injury. The
defendant submits that the evidence presented in this case was purely speculative and to “uphold the
verdict of guilt returned against [him] is to impose strict liability against a child’s caretaker when
the child is injured and the testifying physicians cannot describe how the injury occurred or what a
defendant did to cause the injury.” The defendant argues that such speculation cannot be deemed
proof of guilt beyond a reasonable doubt.

        Our review begins with the well-established rule that once a jury finds a defendant guilty, his
or her presumption of innocence is removed and replaced with a presumption of guilt. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the
burden of demonstrating to this court why the evidence will not support the jury’s verdict. State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.


                                                 -7-
1982). To meet this burden, the defendant must establish that no “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); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); see Tenn. R. App. P. 13(e). In
contrast, the jury’s verdict approved by the trial judge accredits the state’s witnesses and resolves
all conflicts in favor of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of
the witnesses, conflicts in trial testimony, the weight and value to be given the evidence, and all
factual issues raised by the evidence are resolved by the trier of fact and not this court. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the
evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). Likewise, we do not replace the jury’s
inferences drawn from the circumstantial evidence with our own inferences. Id.

        The guilt of the defendant as well as any fact required to be proved may be established by
direct evidence, by circumstantial evidence, or by a combination thereof. See State v. Pendergrass,
13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In fact, circumstantial evidence alone may be
sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987).
However, the circumstantial evidence “must be so strong and cogent as to exclude every other
reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.” State
v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). “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.

        Relevant to this case, a person commits aggravated child abuse who commits the offense of
child abuse and the act of abuse results in serious bodily injury to the child. Tenn. Code Ann. §
39-15-402.3 Child abuse occurs when a person knowingly, other than by accidental means, treats
a child under eighteen years of age in such a manner as to inflict injury. Id. § 39-15-401. The statute
requires that the defendant know the abusive nature of his or her conduct though the defendant need
not know that his or her conduct will result in the child’s injury. See State v. Ducker, 27 S.W.3d
889, 896-97 (Tenn. 2000) (determining that mother must have knowingly left or abandoned her
children in the car for more than eight hours in order to be convicted). Bodily injury includes “a cut,
abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the
function of a bodily member, organ, or mental faculty.” Tenn. Code Ann. § 39-11-106(a)(2).
Serious bodily injury is defined as bodily injury which involves a substantial risk of death, protracted
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. Id. §
39-11-106(a)(34).

        After a thorough review of the record, we determine that a rational jury could not have found
the existence of each element of aggravated child abuse beyond a reasonable doubt. Clearly absent


         3
         The offense of aggravated child abuse is a Class A felony if the victim is eight years of age or less. Id. §
39-15-402(b).

                                                        -8-
from the record is evidence that the defendant knowingly, without accident, treated S.H. in a manner
to cause her injuries. Other than proof that the defendant fell on S.H. while walking on the stairs,
the state did not present evidence at trial which would have allowed the jury to find that S.H.’s
fractures were caused by the knowing conduct of the defendant. While we in no wise discount the
fact that the state presented evidence that S.H. sustained injuries consistent with abuse, absent proof
that the defendant knowingly treated S.H. in an abusive manner, the defendant’s conviction cannot
stand. The statute requires that the act of treating a child in an abusive manner must be knowing
conduct. See Ducker, 27 S.W.3d at 897. To determine otherwise is to lower the state’s burden to
prove each and every element of aggravated child abuse beyond a reasonable doubt. To reiterate,
circumstantial evidence may not be of such a nature that it merely raises a suspicion or conjecture
of guilt; instead, when circumstantial evidence is presented before a jury, i.e., proof of S.H.’s
injuries, 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.” Crawford, 470 S.W.2d at 613 (emphasis added). This
is not the case, and we cannot “speculate a defendant into the penitentiary or permit a jury to do so.”
Id.4 Accordingly, we reverse the defendant’s conviction for aggravated child abuse and remand for
the entry of a judgment of acquittal. However, in the event of further appellate review, we will
address the defendant’s remaining issues.

         The defendant also argues that the evidence was insufficient to establish that S.H. suffered
serious bodily injury as defined by statute. In the instant case, Dr. Nunley opined that S.H.
experienced pain as a result of the injury to her right leg. Dr. Nunley characterized the pain S.H.
experienced as extreme pain. However, Dr. Nunley acknowledged that a two-month-old infant
would not likely have memory of the pain suffered. Dr. Roberts testified that S.H.’s leg fractures
would have been painful for several days until the fractures stabilized and healed. However, Dr.
Roberts acknowledged that he did not personally examine S.H.. Dr. Morris, S.H.’s pediatrician,
testified that he examined S.H. two days after she was taken to the emergency room. At the time,
S.H.’s foot was swollen and she cried vociferously when her right leg was moved. Dr. Morris noted
that S.H. had a “distinct pain reaction with that leg.” However, Dr. Morris noted that S.H. did not
react to movement of her left leg. Dr. Campbell testified that S.H. experienced pain in her right leg
over a period of one to two weeks. Dr. Campbell opined that on a scale of one to ten, S.H.
experienced a pain level of seven. However, Dr. Campbell acknowledged that S.H. had not been

         4
            As the dissent correctly observes, the role of the jury “as the trier of fact” is sacrosanct. Undeniably, the
jury’s verdict of guilt entitles the state to the strongest legitimate view of the evidence and all reasonable inferences which
may be drawn from that evidence. However, equally sacrosanct is the state’s obligation to prove beyond a reasonable
doubt each and every element of the charged offense. Tennessee Code Annotated section 39-15-401 requires the state
to prove beyond a reasonable doubt that the defendant knowingly, without accident, treated a child in a manner to cause
injury. W hile the jury is free to draw all reasonable inferences from the evidence, the evidence must be sufficient to
support the inference. In this case, little, if any, evidence was presented to allow the jury to infer that the defendant acted
knowingly without accident. In fact, the evidence submitted to the jury was that the defendant caused S.H’s injuries by
accident. Absent some evidence of the defendant’s criminal mental state, the jury’s conclusion enters the realm of
speculation rather than a finding of proof beyond a reasonable doubt.




                                                             -9-
given any prescription medication for pain. Finally, S.H.’s foster mother testified that S.H. still
experienced pain after being released from the hospital.

         “Extreme physical pain” has been noted as pain severe enough “to be in the same class as an
injury which involves a substantial risk of death, protracted unconsciousness, protracted or
permanent disfigurement or the loss or impairment of the use of a bodily member, organ or mental
faculty.” State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim. App. 1995). While we note that there is a
meaningful difference or distinction between “bodily injury” and “serious bodily injury,” the
subjective nature of pain is a question of fact to be determined by the jury as the trier of fact. See
State v. Barnes, 954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997). Accordingly, we determine that
sufficient medical evidence was presented at trial for the jury to find that S.H. experienced extreme
physical pain as a result of the fractures to her legs and therefore suffered serious bodily injury. The
defendant is not entitled to relief.

                             II. Jury Instructions: “Accidental Means”
        The defendant next contends that the trial court erred by refusing to give a requested
instruction on the definition of “accidental means.” He submits that the trial court should have given
the requested instruction because the term “accidental means” is expressly mentioned in the child
abuse statute, and the jury needed guidance in how to distinguish “knowing conduct” from
“accidental means.” The defendant further submits that the term “accidental means” is no more in
common usage and understandable by persons of ordinary intelligence than the term “knowing” in
reference to conduct, yet the term “knowing” is defined at length in the jury charge and its meaning
the subject of analysis in many appellate court cases. The defendant asserts that the trial court’s
substitution of his requested instructions with its own instructions confused the jury and resulted in
an unfair trial.

         In criminal cases, a defendant has a right to a correct and complete charge of the law. State
v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). Thus, it follows that the trial court has a duty to give
a complete charge of the law applicable to the facts of a case. State v. Thompson, 519 S.W.2d 789,
792 (Tenn. 1975). The material elements of each offense should be described and defined in
connection with that offense. See Ducker, 27 S.W.3d at 899; State v. Cravens, 764 S.W.2d 754, 756
(Tenn. 1989). The failure to do so deprives the defendant of the constitutional right to a jury trial
and subjects the erroneous jury instruction to harmless error analysis. Garrison, 40 S.W.3d at
433-34. However, not all erroneous jury instruction rises to the level of constitutional error. See
State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005). A jury instruction must be reviewed in its
entirety and read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004).
A jury instruction is considered “prejudicially erroneous if it fails to fairly submit the legal issues
or if it misleads the jury as to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn.
1997).

        Before trial, the defendant filed a motion requesting that the trial court charge the jury with
the definition of “accidental means” as set forth in Brown Shoe Co. v. Reed, 350 S.W.2d 65, 69



                                                 -10-
(Tenn. 1961).5 The trial court declined to give the requested instruction. Instead, the court instructed
the jury that aggravated child abuse occurs when a person knowingly, other than by accidental
means, treats a child under six years old in such a manner as to inflict injury and the act resulted in
serious bodily injury. The court subsequently provided the following definition:

                “Accidental means” means before the defendant can be convicted of the crime
        submitted to the jury[,] [t]he state must have proven beyond a reasonable doubt that
        the injuries of the child were brought about as a result of the criminal agency of the
        defendant; that is, that the injury of the child was due to the unlawful act of the
        defendant. If the injury was caused by accidental means by the defendant other than
        by a knowing child abuse, then you would not be justified in finding the defendant
        guilty. If you find that the defendant’s acts, if any, did not unlawfully cause the
        injuries of the child or if you, the Jury, have a reasonable doubt as to this proposition,
        you must find him not guilty.

        We begin our review by noting that the term “accidental means” is not defined by the child
abuse statute or Tennessee Pattern Jury Instructions. We are also mindful that our criminal code
provisions should be “construed according to the fair import of their terms, including reference to
judicial decisions and common law interpretations, to promote justice, and effect the objectives of
the criminal code.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000) (quoting Tenn. Code Ann.
§ 39-11-104 (1997)). While a court is free to define “accidental means” in order to help a jury in its
deliberations, we note “[w]here words and terms are in common use and are such as can be
understood by persons of ordinary intelligence, it is not necessary, in the absence of anything in the
charge to obscure their meaning, for the court to define or explain them.” See State v. Summers, 692
S.W.2d 439, 445 (Tenn. Crim. App. 1985); see also State v. Adam F. Wester, No.
E2004-02429-CCA-R3-CD, 2006 WL 304700, *10 (Tenn. Crim. App., at Knoxville, Feb. 9, 2006),
perm. app. denied (Tenn. June 26, 2006) (finding that no instruction on “accidental means” was
necessary because the term could be understood by the jury). Here, a review of the jury instructions
in their entirety demonstrates that the instructions were sufficiently clear to enable the jury to
understand the applicable law. In other words, the jury instructions did not serve to mislead the jury
as to the applicable law, nor did the instructions fail to fairly submit the legal issues pertinent to the


        5
            The defendant’s requested instruction was as follows:

                  An accident is generally an unlooked for mishap, an untoward event, which is not expected
                  or designed. Generally in most such cases this Court has repeatedly said that a compensable
                  injury should be the result of something happening by accidental means though the act
                  involving the accident was intentional. Accidental means ordinarily mean an effect which was
                  not the natural or probable consequence of the means which produced it, an effect which does
                  not ordinarily follow and cannot be reasonably anticipated from the use of those means, an
                  effect which the actor did not intend to produce and which he cannot be charged with the
                  design of producing. It is produced by means which were neither designed nor calculated to
                  cause it. It cannot be reasonably anticipated, it is unexpected, it is produced by unusual
                  combinations of fortuitous circumstances and such an injury is an injury by accidental means.



                                                         -11-
facts of this case. Accordingly, we perceive no error and the defendant is not entitled to relief on this
issue.

                               III. Jury Instructions: Knowingly
        The defendant next contends that the trial court improperly refused to instruct the jury in
accordance with the defendant’s supplemental charge on the mental state of “knowing” as applicable
to the aggravated child abuse statute. The defendant submits that the Tennessee Pattern Jury
Instructions on the knowing element of child abuse are too generic and incomplete in light of State
v. Ducker, where our supreme court indicated that a defendant must know that his treatment of the
child is abusive. The defendant asserts that his supplemental charge was more accurate, more
complete, and less misleading than the instruction the trial court used.

       Prior to trial, the defendant filed a motion requesting that the trial court supplement the
standard jury instruction with the following instruction:

       A defendant must “know” that his treatment of the child is abusive, even if it need not
       be proven that he “know” that his conduct will result in bodily injury or serious bodily
       injury. The state is required to prove beyond a reasonable doubt that the defendant
       knowingly treated the alleged victim in an abusive manner and knew his conduct was
       abusive.

The trial court declined to give the requested instruction. Instead, the court instructed the jury that
in order to find the defendant guilty of aggravated child abuse, it must find that the defendant “did
knowingly, other than by accidental means (a) treat a child in such a manner as to inflict injury, and
(b) the act of abuse resulted in serious bodily injury to the child, and (c) the child was six years of
age or less.” The court further instructed the jury as follows:

        Knowingly means that a person acts knowingly with respect to the conduct or to the
        circumstances surrounding the conduct when the person is aware of the nature of the
        conduct or that certain circumstances exist. A person acts knowingly with respect
        to the result of the person’s conduct when the person is aware that the conduct is
        reasonably certain to cause the result. The requirement of knowingly is also
        established if it is shown that the defendant acted intentionally. . . .

         In the instant case, we note that the trial court’s instruction on the term knowingly essentially
mirrors the statutory definition and the pattern jury instructions for aggravated child abuse. See
Tenn. Code Ann. § 39-11-106(a)(20); T.P.I.-Crim. 21.01. We have previously noted that when the
trial judge gives instructions that correctly, fully, and fairly set forth the applicable law, it is not error
to refuse to give a special requested instruction. “We must review the entire charge and only
invalidate it if, when read as a whole, it fails to fairly submit the legal issues or misleads the jury as
to the applicable law.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995) (internal
citations omitted). In our view, the trial court’s instructions sufficiently defined “knowingly” and



                                                    -12-
did not lessen the state’s burden of proof. As such, we perceive no error and the defendant is not
entitled to relief.

                                   IV. Sequential Jury Instructions
         The defendant next contends that the trial court erred by giving sequential jury instructions,
i.e., the jury was not to consider a lesser-included offense unless it acquitted the defendant of the
greater offense first. Specifically, the defendant submits that it is the jury’s duty to determine if a
crime has been committed, and additionally, what crime has been committed. Therefore, it “is
illogical to give a defendant the right to have his jury instructed on lesser-included offenses and then
snatch that right away by telling the jury to ignore those offenses unless and until it acquits of the
charge chosen by the state.” The defendant asserts that sequential jury instructions violate his right
to trial by jury.

        The defendant acknowledges that this court has held that sequential jury instructions are
proper. See, e.g., State v. Raines, 882 S.W.2d 376, 381-82 (Tenn. Crim. App. 1994); State v.
McPherson, 882 S.W.2d 365, 375-76 (Tenn. Crim. App. 1994); State v. Rutherford, 876 S.W.2d
118, 119-20 (Tenn. Crim. App. 1993); Wester, 2006 WL 304700, at *11; State v. Joe A. Gallaher,
No. E2001-01876-CCA-R3-CD, 2003 WL 21463017, *5 (Tenn. Crim. App., at Knoxville, June 25,
2003). However, he asserts that no authoritative legal analysis is undertaken in these cases to
support the rationale underlying sequential instructions. He also complains that the Tennessee
Supreme Court has acquiesced in this court’s approval of the sequential instruction by not ruling on
the issue in State v. Mann, 959 S.W.2d 503 (Tenn. 1997) (Appendix). He further submits that other
jurisdictions have recognized constitutional problems with sequential instructions. See, e.g., Edge
v. State, 414 S.E.2d 463, 466 (Ga. 1992).

        While the defendant is free to argue policy change, the aforementioned Tennessee decisions
are presently the controlling authority on this issue. As this court in Gallaher stated:

       We are bound by published precedent. See Tenn. S. Ct. R. 4(H)(2). Moreover, we
       view the supreme court’s publication of parts of this court’s opinion in Mann as an
       appendix to mean more than the court’s acquiescence in this court’s opinion.

2003 WL 21463017, *5. Accordingly, we conclude that the trial court did not err in giving
sequential instructions as the court’s instructions in this case comply with controlling precedent in
Tennessee. The defendant is not entitled to relief on this issue.

                                          CONCLUSION

       For the aforementioned reasons, the judgment of the trial court is reversed and the case is
dismissed.




                                                 -13-
       ___________________________________
       J.C. McLIN, JUDGE




-14-
