        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 18, 2010

       STATE OF TENNESSEE v. MARCOS ACOSTA RAYMUNDO,
                a.k.a. MARCOS RAYMUNDO ACOSTA

                 Appeal from the Criminal Court for Davidson County
                    No. 2007-C-2655    Cheryl Blackburn, Judge




               No. M2009-00726-CCA-R3-CD - Filed November 10, 2010


The Defendant, Marcos Acosta Raymundo, a.k.a. Marcos Raymundo Acosta, was charged
with one count of aggravated child abuse of a child less than eight years old, a Class A
felony, one count of aggravated child neglect of a child less than eight years old, a Class A
felony, and two counts of child abuse of a child less than six years old, a Class D felony. See
Tenn. Code Ann. §§ 39-15-401(a), -402(b). Following a jury trial, he was convicted of four
offenses: one count of attempted aggravated child abuse of a child less than eight years old,
a Class B felony, and the other three offenses as charged. He was sentenced as a Range I,
standard offender to twelve years for count one, attempted aggravated child abuse, twenty-
five years for count two, aggravated child neglect, four years for count three, child abuse, and
four years for count four, child abuse. The trial court ordered that count two was to be served
concurrently with count one, and that counts three and four were to be served concurrently
with each other, but consecutively to count two. Thus, the trial court sentenced the
Defendant to a total effective sentence of twenty-nine years in the Department of Correction.
In this direct appeal, the Defendant contends that: (1) the State presented evidence
insufficient to convict him; and (2) his convictions for counts one, two, and four violated the
principles of double jeopardy. After reviewing the record, we conclude that the State
presented insufficient evidence to convict the Defendant of count two, aggravated child
neglect, and that the Defendant’s convictions for count one, attempted aggravated child
abuse, and count four, child abuse, violate the principles of double jeopardy. Thus, we
reverse the Defendant’s convictions on counts two and four, and affirm his convictions on
counts one and three. We remand to the trial court for a redetermination of concurrent and
consecutive sentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
                       Part; Reversed in Part; Remanded
D AVID H. W ELLES, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OBERT W. W EDEMEYER, JJ., joined.

Paul J. Walwyn, Madison, Tennessee, for the appellant, Marcos Acosta Raymundo, a.k.a.
Marcos Raymundo Acosta.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                                OPINION

                                          Factual Background

       This case arises out of allegations that the Defendant abused his girlfriend’s three-
year-old daughter, L.S.,1 hereinafter referred to as the victim, between May 2007 and July
5, 2007. The Defendant was indicted and charged with one count of aggravated child abuse,
one count of aggravated child neglect, and two counts of child abuse. The Defendant’s trial
was held November 3-6, 2008.

        Trina Moss testified that she started dating the Defendant in September 2006 and that
he lived with her from February 2007 to July 5, 2007. She said that her daughter, the victim,
also lived with them during that time. Both Ms. Moss and the Defendant worked, and the
victim was often cared for by various babysitters, including Mesha Russell, Ms. Moss’s
mother Pamela Sage, and Ms. Moss’s brother and sister-in-law. At the end of May 2007, Ms.
Moss stopped using Ms. Russell as the victim’s primary babysitter. She stated that Ms.
Russell brought some bruises on the victim to Ms. Moss’s attention and that after discussing
it with the Defendant, she decided not to have Ms. Russell watch the victim anymore. Ms.
Russell had pointed out that the victim had two circular bruises on her stomach, one on her
left cheek, and one on the right side of her forehead. Ms. Moss testified that the victim was
clumsy and that she believed the bruises on the victim’s face were from running into a car
door and a bedroom door. At the time, she believed that the marks on the victim’s stomach
were from running into a dog gate at Ms. Sage’s house. Ms. Moss later testified that Ms.
Russell also pointed out that the victim had a bite mark on her upper arm. Ms. Moss stated
that, while the Defendant and the victim were playing, she once saw the Defendant starting
to bite the victim, but that she told him to stop. She recalled that he said he was “just
kidding” and stopped. Ms. Moss said that was the only time she ever saw him exhibit any
type of biting behavior.

       1
           Out of respect for the privacy of the minor victim, we will identify her only by her initials.

                                                     -2-
        Ms. Moss testified that she worked on July 5, 2007, and that her mother, Ms. Sage,
watched the victim from approximately 7:15 a.m. to 1:30 p.m., while Ms. Moss was at work.
She stated that she and the victim arrived back at their apartment about 1:45 p.m., and that
they were alone until the Defendant returned home around 5:00 p.m. Ms. Moss testified that
she did not do anything during that time to cause any injury to her daughter. She recalled that
her friend, Yvonne Kirby, was going to dye Ms. Moss’s hair and that Ms. Kirby arrived at
her apartment around 5:30 p.m. so that they could go to Wal-Mart to get supplies. Ms. Moss
testified that she was going to take the victim with her but that the Defendant said, “[L]eave
[the victim] here so that I know you’ll come back.”2 Ms. Moss complied with his request and
left the victim at home with the Defendant, despite the fact that the victim was crying and did
not want to stay with the Defendant. She testified that she and Ms. Kirby were only gone
for approximately thirty minutes.

        When they got back to Ms. Moss’s apartment, the Defendant answered the door,
carrying the victim in his arms. Ms. Moss recalled that the victim had vomit on her and that
the Defendant had vomit on his chest. She also testified that the victim had vomited the
previous day. Ms. Moss stated that, when she was cleaning up the victim, she noticed that
the victim had several bruises on her body. She described that she saw three bruises on the
victim’s chest and that they looked like spaced-out fingerprints. She later explained that the
victim had been playing with three children the night before and that she thought that was
how the victim became bruised. She also stated that she saw a mark on the victim’s upper
right arm, which she later came to believe was a bite mark. Ms. Moss testified that she also
saw a long bruise on the victim’s cheek. She said that she first noticed the long bruise when
she picked the victim up from her brother’s house on July 1, 2007. She stated that she asked
her brother if he knew where the victim obtained the bruise but that he said he did not know.

        After Ms. Moss cleaned the victim, she gave her some Tylenol and let her watch a
movie with Ms. Kirby’s two children. Ms. Moss testified that the victim then fell asleep in
Ms. Moss’s room. She said that after Ms. Kirby left her apartment around 8:00 p.m., she
took a shower. Ms. Moss recalled that she heard the victim cry while she was in the shower
and, after she got out, she saw that the victim was sitting on the couch with the Defendant.
Ms. Moss testified that she then left the apartment to get something to eat. She recalled that
she asked the victim whether she wanted to come with her, but the victim said that she did
not. She testified that approximately twenty-five minutes after she left, the Defendant called
her on her cell phone and told her that she needed to get home because something was wrong
with the victim. The Defendant told her that the victim was shaking, and Ms. Moss testified
that, based on what she could hear through the phone, she could tell from a noise the victim


       2
           Ms. Moss testified that the Defendant spoke to her in Spanish and that she also spoke fluent
Spanish.

                                                  -3-
was making that the victim’s mouth was clamped shut. Ms. Moss testified that she was able
to get home within five minutes of his call.

        Ms. Moss stated that when she entered her apartment, the victim was on the couch and
the Defendant was kneeling by her, putting rubbing alcohol on her stomach. Ms. Moss
recalled that the victim’s “hands were turned in, her knees were knot kneed, and . . . her toes
were actually pointing inward and downward and her eyes were rolled back in the back of
her head and her jaw was clamped shut.” She also stated that the victim’s head was shaking
from left to right. She testified that it was immediately apparent that she needed to call 911,
so she called and told them that she thought the victim might be having a seizure. The
paramedics arrived within ten minutes, she recalled. Until just before the paramedics arrived,
the victim was unresponsive to Ms. Moss’s requests that her daughter “wake up.” However,
she said that shortly before the paramedics arrived, the victim opened her eyes, said
“Mommy,” and wrapped her arms around Ms. Moss’s neck.

       Ms. Moss testified that the paramedics put the victim in the ambulance and that she
was also allowed to ride to Vanderbilt Children’s Hospital with them. She recalled that the
Defendant “said he didn’t want to go to the hospital, but I told him he’s coming to the
hospital.” She stated that her mother and stepfather brought the Defendant to the hospital
with them. Describing what happened when Ms. Moss and the Defendant went into the
victim’s hospital room later, she testified, “[M]y little girl jumped up and screamed, no, and
jumped into my mother’s arm.”

       At the hospital, Ms. Moss spoke to Detective Sarah Bruner about her daughter’s
injuries. She testified that she told Detective Bruner that she did not know how her daughter
received her injuries and that she did not remember the Defendant doing anything
intentionally or accidentally to hurt the victim. However, when she was interviewed again
a few weeks later, Ms. Moss told the detective that, on July 2 or July 3, 2007, she saw the
Defendant “pop” the victim on her right upper thigh. She explained that a “pop” was when
you heard a popping sound on the skin. Ms. Moss testified that immediately before the
Defendant “popped” the victim on the right upper thigh, the victim was acting “fussy” and
“kept crying.”

        Ms. Moss testified that, although the Defendant was not regularly alone with the
victim, he was alone with her for two hours in May—approximately five to six days before
Ms. Russell confronted Ms. Moss about the victim’s bruises—and that, several times, he
would be alone with her when Ms. Moss would leave to buy something to eat. Ms. Moss
also testified that, on several occasions, the victim had cried when the Defendant came home
from work. She described, “[W]hen she would hear his keys in the lock, she would come
running to me and say, Marcos is home, no.” Ms. Moss testified that, while the victim was

                                              -4-
sick,3 the Defendant once said, “[L]et [the victim] die so we can have children.” However,
she said that the Defendant later said he was “just kidding.”

       When asked whether she had previously done anything to injure her daughter, Ms.
Moss testified that when she and the victim were in Blockbuster sometime between July 2
and July 4, 2007, the victim acted “real fussy” and had been screaming and crying for fifteen
or twenty minutes. Ms. Moss admitted to grabbing the victim on her lower jaw and stated
that she later saw a corresponding bruise on the victim’s face. Ms. Moss testified that she
was also charged with various offenses arising from the circumstances that led to her
daughter’s hospitalization. She stated that she pleaded guilty to child abuse and attempted
child neglect and that she was in the State’s custody at the time of the Defendant’s trial.

        Ms. Sage, the victim’s maternal grandmother, testified that she babysat the victim on
July 5, 2007, while Ms. Moss was at work. She recalled that Ms. Moss dropped the victim
off at her house at approximately 6:30 a.m. and picked her up at about 2:30 p.m. Ms. Sage
testified that she had taken care of the victim approximately five or six days per week since
the end of May 2007.

        Ms. Sage testified that, on the evening of July 5, 2007, Ms. Moss called to inform her
that the victim needed to go to the hospital and asked Ms. Sage if she could pick up the
Defendant and drive him to the hospital. Ms. Sage testified that she saw the victim at the
hospital on the evening of July 5, 2007, and described that the victim “was beat to a pulp”
and “had bruises and bite marks from the top of her head down to her feet.” She stated that
when the victim left her house on the afternoon of July 5, 2007, the victim did not have any
noticeable injuries. She also testified that she would have seen marks on the victim’s body
because she saw the victim without her shirt on that day.

       Ms. Sage recalled that she was in the victim’s hospital room when Ms. Moss and the
Defendant walked in. Ms. Sage stated that the victim screamed “and jumped out of the bed
into my arms” when she saw the Defendant. She also testified that this was not the first time
that she had witnessed the victim exhibit this type of behavior. Ms. Sage recalled that
approximately two weeks before July 5, 2007, the Defendant was in the car when Ms. Moss
came to pick up the victim from her house and that the victim did not want to get in the car.
Ms. Sage testified that she had previously seen marks on the victim. She said that she first
noticed a long bruise on the victim’s face, running from her left ear to her chin, in June 2007.
She also stated that she noticed marks on the victim’s belly and arm in mid-June 2007. She
said that she later learned that they were bite marks but that she did not realize it at the time.


       3
          The record is not clear whether Ms. Moss meant the Defendant said this while the victim was in
the hospital in July 2007, or whether he made the remark at a prior time when the victim was ill.

                                                  -5-
       Yvonne Kirby testified that she was friends with Ms. Moss and that she went over to
Ms. Moss’s apartment on July 5, 2007, to dye her hair. She said that, after she picked Ms.
Moss up, they went to Wal-Mart for about thirty minutes. Ms. Kirby testified that, when they
returned to Ms. Moss’s apartment, the Defendant was holding the victim, who was covered
in vomit, and that the victim “was crying and shaking.” She also stated that the Defendant
seemed irritated that she was there and that he did not move from the couch the whole time
she was at the apartment. Ms. Kirby testified that she dyed Ms. Moss’s hair and that by the
time she left the apartment, it was getting dark outside.

       Ms. Russell testified that she babysat the victim from the end of November 2006 to
the beginning of June 2007. Ms. Russell recalled that Ms. Moss typically worked on
weekends during that time and that she would watch the victim continuously, including
overnight, from Friday through Sunday or Monday. She stated that on the weekend of May
25, 2007, she noticed some bruises on the victim. Ms. Russell testified that she observed a
large bruise on the victim’s hairline, some small bruises on her face, a long bruise on her
upper thigh, and a large circular bruise on her stomach. She stated that she mentioned the
bruises twice to Ms. Moss, the second time expressing concern that the Defendant may have
caused them. Ms. Russell testified that Ms. Moss subsequently stopped using her day care
services.

        Ms. Russell also testified that, a few weeks before she noticed the bruises, the victim
started to act very frightened when Ms. Moss came to pick her up. She recalled that, at first,
the victim said, “[N]o, no, no, I don’t want to go home.” Ms. Russell testified that the
victim’s protests got worse over time. She recalled that the last time Ms. Moss came to pick
the victim up, the Defendant was in the car too. She stated that the victim did not want to
leave Ms. Russell’s house and even grabbed on to her house door while screaming that she
did not want to go home.

        Officer Ralph Fernandez, employed by the Metropolitan Nashville Police Department,
testified that he speaks fluent Spanish and often assists other officers by translating for
Hispanic witnesses. He stated that on the morning of July 6, 2007, he assisted Detective
Bruner in her interview with the Defendant at Vanderbilt Children’s Hospital. He said that
the interview was recorded and that he reviewed the recording before testifying at the trial.


      Regarding what transpired after Ms. Moss left the apartment to get food, Officer
Fernandez testified as follows:

             He said after a few minutes, a few short minutes, he was sitting on the
       couch. [The victim] came out of the bedroom. And he believes that she

                                              -6-
        maybe wasn’t feeling real good because she sat next to him and said her
        stomach was hurting.
               ....
               After that—he said after a few minutes, maybe about five minutes or
        ten minutes after [Ms. Moss] had left, he noticed as he looked at her that it
        looked like she was about to pass out on him.
               ....
               He said that it looked like she was trembling. She was starting to
        tremble.
               ....
               At that point he said that he had called [Ms. Moss], and he picked up
        [the victim]. At that point he went and got some rubbing alcohol and rubbed
        alcohol on her chest.4

 Officer Fernandez later clarified that the Defendant said the victim’s trembling started about
ten minutes after Ms. Moss left. Officer Fernandez testified that the Defendant was asked
about all of the injuries to the victim’s body, but the Defendant “said that he knew nothing
about it.” Officer Fernandez also stated that the Defendant did not accuse Ms. Moss of
causing the injuries at any point during the interview. However, he noted that the Defendant
did admit to seeing bruises on the victim previously but blamed them on the babysitter.

        Detective Sarah Bruner, with the Metropolitan Nashville Police Department, testified
that she was a detective in the Youth Services Division. Detective Bruner stated that she was
called to Vanderbilt Children’s Hospital at about 2:00 a.m. or 3:00 a.m. on July 6, 2007, to
investigate what happened to the victim. She testified that she observed the victim’s injuries
and began to photograph them. Detective Bruner recalled that she interviewed Ms. Moss,
Ms. Sage, and the Defendant. She also stated that, after receiving Ms. Moss’s consent, she
went to Ms. Moss’s home to look for evidence and take photographs.

       Detective Bruner recalled that she took two sets of photographs of the victim’s
injuries. She first photographed the victim at around 7:00 a.m. on July 6, 2007, and took a
second set around 4:00 p.m. because more bruises had appeared on the victim’s body. She
acknowledged that the lighting was different in the two sets of pictures because the first set
was taken in the emergency room and the second set was taken in the pediatric intensive care
unit. The photographs were introduced as evidence and viewed by the jury.




        4
            Officer Fernandez also interjected that, in his experience, “some Hispanics use alcohol as a cure-
all.”

                                                      -7-
       Detective Bruner stated that the victim remained at Vanderbilt Children’s Hospital for
four days and that after she was released, Detective Bruner arranged for a forensic dentist to
examine some of the marks on the victim’s body because she suspected they might be bite
marks. She also testified that she had subpoenaed relevant phone records for July 5, 2007,
and verified that the Defendant called Ms. Moss at 8:46 p.m. and that Ms. Moss called 911
at 8:52 p.m.

        Detective Bruner testified that she interviewed the Defendant a second time on August
27, 2007, at the police station. She stated that Detective Marvin Rivera served as a translator
for that interview.5 She testified that the Defendant first stated that the victim probably hurt
herself by playing with other children, or while she was being watched by the various
babysitters. Detective Bruner recalled that the Defendant acknowledged making the
statement that he wished the victim would die, but he claimed he was “just kidding.” During
the interview, the Defendant claimed that, when Ms. Moss was at Wal-Mart, he had thrown
the victim in the air and that was what caused her to throw up. Later in the interview, the
Defendant explained that he threw the victim in the air, let her fall, and that she fell on her
toy stroller, causing the injuries to her stomach. He also stated that he had pushed her around
in her toy stroller and that she had fallen out three or four times. At another time during the
interview, he said he threw a ball at the victim several times.6 Detective Bruner recalled that
the Defendant “also admitted that he had pinched her cheek several times, that he had bit her
on at least two occasions, and he did say that when he threw her up that that might have
caused the bruises on her chest.” Detective Bruner estimated that over the course of the
second interview, the Defendant gave her ten different stories to explain how the victim was
injured. Detective Bruner also recalled that the Defendant admitted to spanking the victim;
however, he said it was not for disciplinary reasons and could not explain why he spanked
her.

         Dr. Michael Tabor, deemed an expert in the field of forensic odontology by the trial
court, testified that he examined some of the victim’s injuries. He testified that the injuries
to her right shoulder and left arm were consistent with adult human bite injuries. He said that
it was impossible that the victim’s bite injuries were self-inflicted and that they were also
inconsistent with “biting while playing.” By examining the different colors of some of the
victim’s bruises and bite marks, Dr. Tabor concluded the bite marks were inflicted on
different days than some of the victim’s other injuries. He also opined that the two bite


        5
          She also testified that Detective Rivera was not available to testify at the Defendant’s trial because
he was sick with the flu.
        6
        It is not clear from the record whether the Defendant said he did all of these things while Ms. Moss
was at Wal-Mart, or whether he did them while she went out to get food later in the evening.

                                                      -8-
marks, to her right shoulder and left arm, were made at different times. Dr. Tabor testified
that the bite marks were consistent with non-accidental trauma.

       Dr. Tyler Berutti, an assistant professor in pediatric critical care at Vanderbilt Medical
Center, testified as an expert in the fields of pediatric medicine and pediatric critical care.
He testified that he treated the victim after she had been transferred from the emergency
department and into the pediatric intensive care unit. He stated that the victim was in critical
condition when she first arrived in the emergency department.

       Dr. Berutti testified that he observed a number of bruises on the victim’s body:

               Most notably the ones I had documented in my note were a bruise to the
       left ear, she had some bruising to the face, a couple of bruises to the right of
       her sternum, one bruise to the le[f]t of her sternum, and some bruising on the
       back of her thighs. And then she had a round circular bruise, oval kind of
       shaped bruise, on the back of her right arm and one that appeared similar in
       nature to that one that was on the left scapula, which is the back of the—your
       left shoulder.

He also testified that he typically sees bruises on the shins and forearms of young children
and that the victim’s abnormal bruising patterns made him concerned about non-accidental
trauma. Dr. Berutti recalled that, when he examined the victim, she had bruises that were not
documented on the initial exam, and that led him “to believe that at least some of these
bruises were very new.” He specifically stated that bruises on the victim’s lower back and
jaw line appeared to be “relatively new,” judging by the color of the bruises. Regarding a
bruise on the victim’s left ear, Dr. Berutti testified that he was concerned it was caused by
non-accidental trauma because it would have taken “a decent amount of force” to inflict such
an injury. He recalled that the victim had multiple bruises on her chest and that the injuries
were inflicted “[c]ertainly within the last day.”

        Dr. Berutti also stated that the victim had multiple internal injuries. He said the victim
had a bilateral pneumothoraces, that he explained was caused by a disruption to the
membrane covering the lung, which could allow air into the space between the lung and chest
wall. Dr. Berutti testified that the victim had air in her mediastinum, the space between the
lungs and heart, which is called pneumomediastinum, and that she also had air around her
heart, referred to as pneumopericardium. He testified that these types of internal “injuries
are seen in accidents that are generated by a lot of force like a motor vehicle accident.” He
stated that he might expect to see these types of injuries in other “high impact type accidents”
such as getting hit by a car, getting hit very hard playing football, falling from the second
story of a building, or getting thrown off of a bicycle. Dr. Berutti testified that he thought

                                               -9-
an adult could have inflicted the victim’s injuries by hitting her with a fist or foot. He
testified that he did not think a child could obtain such internal injuries by tripping, by falling
off a bed, or by being hit in the chest with a ball. He opined that her internal injuries were
“very recent” and that they were not consistent with trauma that happened weeks, or even
days, before her hospital admission.

        Dr. Berutti said that the victim’s condition was “very serious” and said that, with the
injuries she had, doctors were concerned that both of her lungs could collapse, causing
respiratory arrest, and that air would compress her heart, causing cardiac arrest. He testified
that the victim was admitted to the critical care unit for close observation and that it could
only take “seconds to minutes” for the victim’s condition to worsen. Dr. Berutti stated that
if the victim had not been presented to the hospital, “she certainly would have the potential
to progress to either a respiratory or cardiac arrest.” Dr. Berutti also testified that “[t]here
was concern for a duodenal hematoma,” which is a bruise to the first part of the small
intestine, and that there was evidence of injury to the victim’s liver and pancreas. He said
that, in his opinion, the victim suffered some direct trauma to her liver and spleen. Dr.
Berutti also opined that it was a separate trauma that caused injury to the victim’s lungs.

       Regarding the onset of symptoms when a child has a pneumothoraces and a
pneumopericardium, Dr. Berutti testified that the signs—such as increased respiratory rate,
potentially increased difficulty of breathing, and shortness of breath—would be visible
within minutes. He said that he would also expect to see abdominal discomfort, leading to
vomiting, with abdominal injuries. Dr. Berutti also testified that he had never seen a case
where a child had serious internal injuries from trauma but did not have any external
bruising. Dr. Berutti testified that it was “very important” for the victim to receive
immediate medical care with the type of traumatic injuries she sustained. The prosecutor
asked, “In your opinion, Doctor, did the fact that [the victim did] not get medical attention
shortly after she received these injuries cause her ultimate collapse that precipitated the 911
call?” Dr. Berutti responded, “Yes.”

       The State made the following election of offenses:

              Count One of the Indictment alleges an act of aggravated child abuse
       against [the victim], and refers to the following conduct: the [D]efendant
       caused internal trauma to [the victim] involving pneumothoraces,
       pneumopericardium and pneumomediastinum, air surrounding her internal
       organs, on July 5, 2007.

              Count Two of the Indictment alleges an act of aggravated child neglect
       against [the victim], and refers to the following conduct: the [D]efendant

                                               -10-
        delayed seeking medical treatment for [the victim] after causing internal
        injuries to her, resulting in her condition worsening to the point where she
        ultimately collapsed and had to be admitted to the pediatric intensive care unit
        in critical condition for observation and [sic] on July 5, 2007.

                Count Three of the Indictment alleges an act of child abuse against [the
        victim], and refers to the following conduct: the [D]efendant caused multiple
        bite injuries to [the victim] between May 2007 and July 4, 2007.

               Count Four of the Indictment alleges an act of child abuse against [the
        victim], and refers to the following conduct: the [D]efendant caused multiple
        bruises to [the victim] on or about July 5, 2007.

       The Defendant testified in his own defense.7 He stated that when Ms. Moss would
take the victim to a babysitter, she often would come back with bruises. He testified that
many different people would babysit the victim, including his mother, his sister-in-law, Ms.
Moss’s mother, Ms. Moss’s friends, and Ms. Moss’s ex-sister-in-law.

       When asked whether he had ever bitten the victim, he said, “I tried to but [Ms. Moss]
told me not to.” He then said that he was not trying to bite the victim, rather only pressing
down with his lips. However, on cross examination, he admitted that he had tried to bite her
and that they were not playing at the time. He testified that he gave the detectives more
information during the second interview than the first interview because they “were
pressuring me to say things.”

        The Defendant maintained that on July 5, 2007, he came home from work around 5:00
p.m. He testified that Ms. Moss and her friend were going to go to Wal-Mart and that he
asked her to leave the victim home “so that she would come back quickly.” He elaborated,
“I had just gotten back from work, and I didn’t have a car. I needed to buy something to eat.”
He testified that he did not do anything to make the victim vomit while Ms. Moss was at
Wal-Mart. He said that the victim was playing, and he was watching TV right before she
vomited.

       He testified that while Ms. Moss was gone to get them something to eat, he was
playing with the victim with a little stroller and a ball. He said that she fell out of the stroller
a couple of times while they were playing but that she would just get back in it so they could
play some more. The Defendant claimed that when they were playing with the ball, he threw


        7
         Because the Defendant was not fluent in English, interpreters simultaneously translated the court
proceedings for him. They also translated his testimony for the jury.

                                                  -11-
it softly at her. He later also said that he lifted her up in the air and suspended her but that
she never fell while he was doing this. The Defendant said that after they had been playing,
the victim sat down in the chair in which he was sitting and started to faint. He recalled,
“And then I held her to see what was wrong, and she started to shake. And then I called [Ms.
Moss]. And then I went to the bathroom with her in my arms to get some alcohol to put it
on her chest.” When asked why he did not call 911 himself, the Defendant said, “Because
I didn’t know how to explain myself of what was happening to the girl.” He claimed that he
told Ms. Moss “to hurry up so that she could see the child and to—so that she could call the
ambulance.”

        The Defendant testified that at the time he called Ms. Moss, he was worried because
the victim “was really trembling.” He said that after the ambulance arrived and Ms. Moss
prepared to go to the hospital with her daughter, Ms. Moss “asked me if I would go with her,
but her car didn’t have enough gasoline.” He claimed that because the car did not have
enough gas, he asked Ms. Moss to call Ms. Sage so she could drive him. The Defendant
testified that when he went with Ms. Moss into the victim’s hospital room, she did not jump
into anybody’s arms, like Ms. Sage had claimed, and that she had machines attached to her.

       When asked whether he wished the victim would die, he said “[n]ot really” and that
his comment to Ms. Moss was made “jokingly.” He claimed he made the comment before
summer and described the circumstances surrounding his comment as: “That day [Ms. Moss]
had said to me that—asking if we were going to have another child. And I said that with [the
victim] it was enough. I said to her jokingly the only way we would have another child is if
[the victim] died. Playing.”

       Miriam Areli Otero, the Defendant’s sister-in-law, testified that she babysat the victim
on June 25, 2007. She recalled that the victim was dirty and that her clothes smelled, so she
bathed her. While she was giving the victim a bath, Ms. Otero saw bruises on the victim’s
back, stomach, and leg. She also testified that she saw the victim on July 4, 2007, and that
the victim had bruises on her face. When shown pictures of the victim’s bruises taken when
she was in the hospital on July 6, 2007, Ms. Otero testified that the bruises she had previously
seen on the victim’s back, stomach, leg, and face were in the same places as some of the
bruises represented in the pictures. She testified that Ms. Moss was a bad mother but that the
Defendant “was normal” toward the victim.

       On November 6, 2008, the jury convicted the Defendant of one count of attempted
aggravated child abuse, a lesser included offense of aggravated child abuse, one count of
aggravated child neglect, and two counts of child abuse. On January 7, 2009, the trial court
sentenced the Defendant to twelve years for count one (attempted aggravated child abuse),
twenty-five years for count two (aggravated child neglect), four years for count three (child

                                              -12-
abuse), and four years for count four (child abuse). The trial court ordered that count two
was to be served concurrently with count one and that counts three and four were to be
served concurrently with each other, but consecutively to count two. Thus, the trial
sentenced the Defendant to a total effective sentence of twenty-nine years in the Department
of Correction. He now appeals.

                                                Analysis

I. Sufficiency of the Evidence
       The Defendant contends that the evidence was insufficient to convict him.8 Tennessee
Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal
defendant who challenges the sufficiency of the evidence on appeal bears the burden of
demonstrating why the evidence is insufficient to support the verdict, because a verdict of
guilt destroys the presumption of innocence and imposes a presumption of guilt. See State
v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516, 557-58
(Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court must reject
a convicted criminal defendant’s challenge to the sufficiency of the evidence if, after
considering the evidence in a light most favorable to the prosecution, we determine that any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599
(Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.



        8
          It is unclear whether the Defendant is challenging his conviction for all four counts or just the
aggravated child neglect conviction. His brief does give the statutory elements for all four convictions but
only discusses, in one paragraph, aggravated child neglect. However, we will address the sufficiency of the
evidence for all four of the Defendant’s convictions.

                                                   -13-
      At the time of the offense, the relevant child abuse and neglect statute stated as
follows:

               (a) Any person who knowingly, other than by accidental means, treats
       a child under eighteen (18) years of age in such a manner as to inflict injury
       commits a Class A misdemeanor; provided, however, that, if the abused child
       is six (6) years of age or less, the penalty is a Class D felony.
               (b) Any person who knowingly abuses or neglects a child under
       eighteen (18) years of age, so as to adversely affect the child’s health and
       welfare, commits a Class A misdemeanor; provided, that, if the abused or
       neglected child is six (6) years of age or less, the penalty is a Class E felony.

Tenn. Code Ann. § 39-15-401(a)-(b) (2006). The relevant aggravated child abuse and
aggravated child neglect statute stated as follows:

              (a) A person commits the offense of aggravated child abuse or
       aggravated child neglect or endangerment, who commits the offense of child
       abuse, as defined in § 39-15-401(a), or who commits the offense of child
       neglect or endangerment, as defined in § 39-15-401(b), and:
              (1) The act of abuse or neglect results in serious bodily injury to the
       child.

Tenn. Code Ann. § 39-15-402(a)(1) (2006). “‘Serious bodily injury’ means bodily injury that
involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme
physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial
impairment of a function of a bodily member, organ or mental faculty.” Tenn. Code Ann.
§ 39-11-106(a)(34).

        Our supreme court has held that child abuse is a “nature-of-conduct” offense and that,
“[a]s such, the prosecution need not prove that the defendant ‘intended’ to cause injury to the
child.” State v. Toliver, 117 S.W.3d 216, 230 (Tenn. 2003). However, the State must show
that the Defendant was “aware of the nature of the conduct” when he treated the victim “in
such a manner as to inflict injury.” Tenn. Code Ann. §§ 39-11-302(b), -15-401(a); State v.
Hanson, 279 S.W.3d 265, 277 (Tenn. 2009). Our supreme court has also instructed “that
before a conviction for child neglect may be sustained, the State must show that the
defendant’s neglect produced an actual, deleterious effect or harm upon the child’s health and
welfare.” State v. Mateyko, 53 S.W.3d 666, 671-72 (Tenn. 2001). Finally, because the
Defendant was convicted of attempted aggravated child abuse, we note that our criminal
attempt statute states as follows:



                                             -14-
               (a) A person commits criminal attempt who, acting with the kind of
       culpability otherwise required for the offense:
               (1) Intentionally engages in action or causes a result that would
       constitute an offense, if the circumstances surrounding the conduct were as the
       person believes them to be;
               (2) Acts with intent to cause a result that is an element of the offense,
       and believes the conduct will cause the result without further conduct on the
       person’s part; or
               (3) Acts with intent to complete a course of action or cause a result that
       would constitute the offense, under the circumstances surrounding the conduct
       as the person believes them to be, and the conduct constitutes a substantial step
       toward the commission of the offense.
               (b) Conduct does not constitute a substantial step under subdivision
       (a)(3), unless the person’s entire course of action is corroborative of the intent
       to commit the offense.
               (c) It is no defense to prosecution for criminal attempt that the offense
       attempted was actually committed.

Tenn. Code Ann. § 39-12-101.


       A. Attempted Aggravated Child Abuse
        The State elected that count one of the indictment, aggravated child abuse, referred
“to the following conduct: the [D]efendant caused internal trauma to [the victim] involving
pneumothoraces, pneumopericardium and pneumomediastinum, air surrounding her internal
organs, on July 5, 2007.”

       The evidence presented at trial showed that the Defendant was alone with the victim
two times on the evening of July 5, 2007—around 5:30 p.m. for about thirty minutes while
Ms. Moss went to Wal-Mart and also later in the evening, for about thirty minutes, when Ms.
Moss went to get something to eat. When Ms. Moss returned home the second time, she
immediately called 911 because the victim was lying on the couch with her head shaking
from left to right, her eyes rolled in the back of her head, and her jaw clamped shut.

       Dr. Berutti testified that when the three-year-old victim presented to Vanderbilt
Children’s Hospital on July 5, 2007, in critical condition, she was diagnosed with a bilateral
pneumothoraces (a disruption to the membrane covering the lung, which could allow air into
the space between the lung and chest wall), pneumomediastinum (air in the space between
her lungs and heart), and pneumopericardium (air around her heart). He stated that he
believed her injuries were “very recent” and that the types of internal injuries she had were

                                              -15-
generated by a lot of force. He testified that he thought an adult could have inflicted the
victim’s injuries by hitting her with a fist or foot. He classified the victim’s injuries as non-
accidental trauma. Dr. Berutti also testified that the victim’s injuries were very serious and
that he was concerned she might experience respiratory or cardiac arrest.

        The jury also heard testimony that the Defendant was interviewed twice by Detective
Bruner. The first time, conducted at the hospital on July 6, 2007, the Defendant claimed that
he did not know anything about the victim’s injuries. The second time, conducted at the
police station on August 27, 2007, the Defendant gave several different explanations for how
the victim could have been injured. Among the stories he told was that he threw the victim
in the air and that she fell onto her toy stroller, that he pushed the victim around in her toy
stroller and that she fell out three or four times, and that he threw a ball at the victim several
times. The Defendant testified at trial and acknowledged that he said to Ms. Moss “jokingly
the only way we would have another child is if [the victim] died. Playing.” After a thorough
review of the evidence, we conclude that the jury had sufficient evidence to find that the
Defendant committed attempted aggravated child abuse beyond a reasonable doubt. This
issue is without merit.

       B. Aggravated Child Neglect
       The State elected that count two of the indictment referred to the following conduct:
“[T]he [D]efendant delayed seeking medical treatment for [the victim] after causing internal
injuries to her, resulting in her condition worsening to the point where she ultimately
collapsed and had to be admitted to the pediatric intensive care unit in critical condition for
observation and [sic] on July 5, 2007.” Although the Defendant mentions the other three
convictions in his brief, he only presents an argument to support his assertion with regard to
the conviction of aggravated child neglect. He contends that the State did not present proof
that demonstrated the act of neglect caused serious bodily injury to the victim.

        The Tennessee Supreme Court has held that the “mere risk of harm” is insufficient to
prove child neglect. State v. Mateyko, 53 S.W.3d 666, 671 (Tenn. 2001). Moreover, “before
a conviction for child neglect may be sustained, the State must show that the defendant’s
neglect produced an actual, deleterious effect or harm upon the child’s health and welfare.”
Id. at 671-72. In State v. Denise Wiggins, we found sufficient evidence to support the State’s
claim that the defendant burned her five-year-old daughter with an iron and, thus, affirmed
the defendant’s conviction for aggravated child abuse. No. W2006-01516-CCA-R3-CD,
2007 WL 3254716, at *4 (Tenn. Crim. App., Jackson, Nov. 2, 2007). The State had also
charged Wiggins with aggravated child neglect because she failed to seek medical attention
for her daughter after she inflicted the burn. Id. at *5. This Court held, however, that there
was insufficient evidence to convict the defendant of aggravated child neglect because “[t]he



                                              -16-
proof at trial fail[ed] to demonstrate that it was the act of neglect, or failure to seek medical
treatment, which resulted in serious bodily injury.” Id.

        Similarly, in State v. Vernita Freeman, we upheld the defendant’s conviction for
aggravated child abuse; however, we found that insufficient evidence was presented to
support her conviction for aggravated child neglect. No. W2005-02904-CCA-R3-CD, 2007
WL 426710, at *1 (Tenn. Crim. App., Jackson, Feb. 6, 2007). We noted that a doctor
testifying at the defendant’s trial said that the victim “might have survived” if she received
prompt medical treatment. Id. at *8 n.1. However, we concluded that “the proof does not
demonstrate that it was the act of neglect which caused the serious bodily injury. Rather, the
proof established that it was the Appellant’s acts of abuse which produced the serious bodily
injury to the minor victim.” Id. at *8; see also State v. Janet Huffine Dykes, No. E2001-
01722-CCA-R3-CD, 2002 WL 1974147, at *7 (Tenn. Crim. App., Knoxville, Aug. 16, 2002)
(reversing the defendant’s conviction for aggravated child abuse through neglect because
“there [was] no proof from which a rational jury could conclude that the delay—that is, the
neglect—caused serious bodily injury as required by the statute”).

        In State v. John Barlow, No. W2008-01128-CCA-R3-CD, 2010 WL 1687772 (Tenn.
Crim. App., Jackson, Apr. 26, 2010), this Court was presented with a case similar to the
instant case. The defendant in Barlow was convicted of aggravated child abuse and
aggravated child neglect. Id. at *1. The two-year-old victim suffered a skull fracture and
severe head injury. Id. Barlow testified that he thought something was wrong with the
victim at around 2:20 a.m., when he noticed her body felt “limp.” Id. at *6. However, he did
not leave to take her to the hospital until approximately 3:30 a.m. Id. The State argued that
Barlow’s delay in obtaining medical attention for the victim worsened her brain injury
because it allowed her brain to continue to swell. Id. at *11. During Barlow’s trial, the
victim’s surgeon testified that he thought “the victim’s ‘course would have been worse’
because ‘she would have had more swelling.’” Id. at *2. This Court noted that the surgeon
“immediately added, ‘[Y]ou never know what difference it would make.’” Id. The surgeon
also testified, “I can never tell how much difference it makes how quickly [the injured child
gets medical treatment]—but the quicker the better.” Id. at *3. We upheld Barlow’s
conviction for aggravated child abuse, noting that he was the only adult present at the time
of the victim’s injuries. Id. at *9. However, we vacated Barlow’s conviction for aggravated
child neglect because we found that the State “did not establish that Barlow’s delay in
seeking medical treatment had an ‘actual, deleterious effect’ on the victim’s health. Instead,
the evidence showed that Barlow’s initial act of abuse caused serious bodily injury to the
victim.” Id. at *11.

      We must agree with the analysis set forth in the cases discussed above and will
examine the instant case in a similar fashion. Ms. Moss testified that, on the evening of July

                                              -17-
5, 2007, she left the victim at home with the Defendant while she went to out to get
something to eat. She testified that when she had been out about twenty-five minutes, the
Defendant called her and told her to come home because something was wrong with the
victim. She stated that she was able to get home within five minutes and that, when she
walked into her apartment, she saw the victim on the couch, with the Defendant kneeling by
her, putting rubbing alcohol on her stomach. Ms. Moss recalled that the victim’s “hands
were turned in, her knees were knot kneed, and . . . her toes were actually pointing inward
and downward and her eyes were rolled back in the back of her head and her jaw was
clamped shut.” She also stated that the victim’s head was shaking from left to right. She
testified that it was immediately apparent to her that she needed to call 911. Phone records
verified that the Defendant called Ms. Moss at 8:46 p.m. and that Ms. Moss called 911 at
8:52 p.m. During the trial, the Defendant testified that, when he called Ms. Moss, he was
worried about the victim because she “was really trembling.” However, the Defendant stated
that he did not call 911 “[b]ecause I didn’t know how to explain myself of what was
happening to the girl.”

        It appears that the State attempted to distinguish count one, the initial abuse causing
the victim’s internal injuries, from count two, the delay in seeking medical treatment, in its
election by referencing the victim’s “collapse,” as if it was an entirely new injury. However,
after a thorough review of the record, we cannot conclude that the evidence supports such
a factual finding. Dr. Berutti did not mention the victim’s “collapse,” besides answering only
“Yes” to the following question posed by the prosecutor: “In your opinion, Doctor, did the
fact that [the victim] not get medical attention shortly after she received these injuries cause
her ultimate collapse that precipitated the 911 call?” There is nothing else in the record that
supports the proposition that the victim “collapsed” from other causes besides the act of
abuse that caused the victim’s internal injuries. Dr. Berutti’s testimony, however, does
indicate that there was risk of further harm if the victim had not received prompt medical
attention. He stated that if the victim had not been presented to the hospital, “she certainly
would have the potential to progress to either a respiratory or cardiac arrest.” However, “a
mere risk of harm in the neglect context is . . . insufficient.” Mateyko, 53 S.W.3d at 671-72.
In our view, the State failed to show that the Defendant’s delay in obtaining medical attention
for the victim had an “actual, deleterious effect” on the victim’s health. Therefore, the
judgment of conviction for aggravated child neglect must be reversed, and that charge must
be dismissed.

       C. Child Abuse—Bite Injuries
       The State elected that count three of the indictment, child abuse, referred “to the
following conduct: the [D]efendant caused multiple bite injuries to [the victim] between May
2007 and July 4, 2007.”



                                              -18-
        Ms. Moss testified that, before she stopped using her daycare services in May 2007,
Ms. Russell pointed out that the victim had a bite mark on her upper arm. Ms. Moss testified
that she once saw the Defendant start to bite the victim while they were playing. She testified
that he said he was “just kidding” and stopped. Detective Bruner testified that, during their
second interview, the Defendant admitted to biting the victim on at least two occasions. Dr.
Tabor, an expert in the field of forensic odontology, testified that he examined the victim and
found that injuries on her left arm and right shoulder were consistent with adult human bite
injuries. He stated that the marks on the victim’s body were not self-inflicted, nor were they
consistent with “biting while playing.” Dr. Tabor testified that the bite marks were consistent
with non-accidental trauma. He further opined that the bite marks were inflicted on different
days than some of the victim’s other injuries. Finally, the Defendant gave inconsistent
testimony regarding whether he had bitten the victim. First, he testified that he “tried to but
[Ms. Moss] told me not to.” Then, he said that he was not trying to bite the victim, but rather
only pressed down with his lips. Later, he admitted that he had tried to bite her and that they
were not playing at the time. After reviewing the evidence, we conclude that the State
presented sufficient evidence for a reasonable trier of fact to conclude, beyond a reasonable
doubt, that the Defendant knowingly inflicted injury on the victim by biting her. Thus, the
Defendant’s conviction for count three, child abuse, is affirmed. This issue has no merit.

       D. Child Abuse—Multiple Bruises
       The State elected that count four of the indictment, child abuse, referred “to the
following conduct: the [D]efendant caused multiple bruises to [the victim] on or about July
5, 2007.”

         Ms. Sage testified that she babysat the victim until about 2:30 p.m. on July 5, 2007.
She recalled that she saw the victim without her shirt on that day and that the victim had no
noticeable injuries. Ms. Moss testified that when she was cleaning the victim after she came
home from Wal-Mart, at approximately 6:00 p.m., after the Defendant had been alone with
the victim for about thirty minutes, she noticed several bruises on the victim that she had not
seen before—three bruises on the victim’s chest and a mark on the victim’s upper right arm.
Ms. Moss testified that she witnessed the Defendant “pop” the victim on the upper right thigh
on July 2 or July 3, 2007. Dr. Berutti testified that he observed a number of bruises on the
victim’s body, including bruises on her left ear, face, lower back, and back of her thighs. He
testified that, when he examined the victim, she had bruises that were not documented on the
initial exam, and that led him “to believe that at least some of these bruises were very new.”
He testified that he was concerned that the bruises were a result of non-accidental trauma.
Moreover, the jury saw photographs taken by Detective Bruner that showed that the victim
also had bruises in the middle of her back, on her right side, lower right arm, and right
buttocks. After reviewing the evidence, we conclude that the State presented sufficient
evidence for a reasonable trier of fact to conclude, beyond a reasonable doubt, that the

                                             -19-
Defendant knowingly inflicted injury on the victim, causing her bruises. This issue has no
merit.

II. Double Jeopardy
        The Defendant also alleges that counts one (attempted aggravated child abuse for the
internal injuries), two (aggravated child neglect for the delay in obtaining medical
assistance), and four (child abuse for the multiple bruises) all charge him with the same
crime. He contends that his three convictions violate the principles of double jeopardy and
only one conviction should stand. Although the Defendant did not raise this issue in the trial
court, and only devotes three sentences of argument to this issue in his brief, we may address
this issue on its merits if we find plain error.

       Rule 36(b) of the Tennessee Rules of Appellate Procedure provides that “[w]hen
necessary to do substantial justice, an appellate court may consider an error that has affected
the substantial rights of a party at any time, even though the error was not raised in the
motion for a new trial or assigned as error on appeal.” We apply a five-factor test to
determine whether there is plain error:

       (a) the record must clearly establish what occurred in the trial court;
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected;
       (d) the accused did not waive the issue for tactical reasons; and
       (e) consideration of the error is ‘necessary to do substantial justice.’

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).

        In the instant case, the record clearly establishes that the Defendant was convicted of
both attempted aggravated child abuse for inflicting the victim’s internal injuries and child
abuse for inflicting multiple bruises. As to the second and third factors, we conclude that
if the Defendant’s double jeopardy protections were violated, a substantial right of the
Defendant was affected. See Adkisson, 899 S.W.2d at 639 (noting that “[a] ‘substantial
right’ is a right of ‘fundamental proportions in the indictment process, a right to the proof of
every element of the offense, and is constitutional in nature’”) (footnotes omitted); see also
State v. Epps, 989 S.W.2d 742, 745 (Tenn. Crim. App. 1998) (applying the plain error
doctrine to review whether the defendant’s convictions for both theft and attempted theft
violated the principles of double jeopardy). Regarding the fourth factor, we see no indication
that the Defendant waived the issue for tactical reasons. Finally, under the fifth factor, we
conclude that consideration of a double jeopardy violation is necessary to do substantial
justice. Accordingly, we will review this issue as plain error. Having already determined
that there was insufficient evidence to convict the Defendant of count two, aggravated child

                                              -20-
neglect, we will only examine whether convictions on both count one, attempted aggravated
child abuse, and count four, child abuse, violate the principles of double jeopardy.

         As our supreme court has explained, “three fundamental principles underlie double
jeopardy: (1) protection against a second prosecution after an acquittal; (2) protection against
a second prosecution after conviction; and (3) protection against multiple punishments for
the same offense.” State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996) (footnote omitted).
It is the third of these protections that the Defendant contends is being violated. In order for
multiple convictions to stand, “it must be clear that the offenses are wholly separate and
distinct.” State v. Goins, 705 S.W.2d 648, 650 (Tenn. 1986) (citations omitted). If we find
that multiple convictions cannot stand, the proper remedy for such situations is a merger of
the two convictions into one by vacating the conviction on the lesser offense. State v. Zirkle,
910 S.W.2d 874, 889 (Tenn. Crim. App. 1995). Initially, we note that Tennessee’s
constitutional protection against double jeopardy has been construed to be greater than that
offered by the federal Constitution. See Denton, 938 S.W.2d at 378-81; State v. Hayes, 7
S.W.3d 52, 55 (Tenn. Crim. App. 1999).

       In Denton, our supreme court stated:

       [R]esolution of a double jeopardy punishment issue under the Tennessee
       Constitution requires the following: (1) a Blockburger9 analysis of the statutory
       offenses; (2) an analysis, guided by the principles of Duchac,10 of the evidence
       used to prove the offenses; (3) a consideration of whether there were multiple
       victims or discrete acts; and (4) a comparison of the purposes of the respective
       statutes. None of these steps is determinative; rather the results of each must
       be weighed and considered in relation to each other.

938 S.W.2d at 381 (footnotes added). The subject offenses must first survive the federal
Blockburger test in order to satisfy the requirements of the federal Double Jeopardy Clause.
State v. Hayes, 7 S.W.3d 52, 55 (Tenn. Crim. App. 1999). If the offenses are the “same”
under Blockburger, the federal constitutional double jeopardy protections have been violated
and the inquiry may end. Id. Under the Blockburger test, two offenses are not the “same”
for double jeopardy purposes if each “requires proof of an additional fact which the other
does not.” Blockburger, 284 U.S. at 304.

       At the time of the offense, the child abuse statute stated as follows:


       9
            Blockburger v. United States, 284 U.S. 299 (1932).
       10
            Duchac v. State, 505 S.W.2d 237 (1973).

                                                   -21-
               (a) Any person who knowingly, other than by accidental means, treats
       a child under eighteen (18) years of age in such a manner as to inflict injury
       commits a Class A misdemeanor; provided, however, that, if the abused child
       is six (6) years of age or less, the penalty is a Class D felony.

Tenn. Code Ann. § 39-15-401(a) (2006). The aggravated child abuse statute stated: “(a) A
person commits the offense of aggravated child abuse or aggravated child neglect or
endangerment, who commits the offense of child abuse, as defined in § 39-15-401(a) . . . and:
(1) The act of abuse or neglect results in serious bodily injury to the child.” Tenn. Code Ann.
§ 39-15-402(a)(1) (2006). Thus, the aggravated child abuse statute required all of the
elements of the child abuse statute plus a result of serious bodily. The lesser included
offense of child abuse did not require any additional proof beyond that which was required
for a conviction of aggravated child abuse. “The greater offense is therefore by definition
the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” Brown v.
Ohio, 432 U.S. 161, 168 (1977) (applying the Blockburger test and determining that joyriding
was a lesser included offense of auto theft and that they were the “same” offenses for the
purposes of double jeopardy); see Hayes, 7 S.W.3d at 55-56 (“An offense encompassed in
total within another offense—what we call a ‘lesser included offense’—does not require
proof of an additional fact, and it is therefore considered the same offense and barred by
double jeopardy.”). In this case, we need not proceed further with the Denton test because
we determine that child abuse and attempted aggravated child abuse are considered the same
offense and barred by double jeopardy when the convictions refer to the same instance of
conduct.


        In our view, the dual convictions punish the Defendant twice for the same
offense—once for causing the victim’s internal injuries and then again for causing the
bruising on her chest, which would have accompanied, and been inflicted at the same time
as, the internal injuries. The State elected that the first count referred to the victim’s internal
injuries—the pneumothoraces, pneumopericardium, and pneumomediastinum—inflicted on
July 5, 2007. During his testimony, Dr. Berutti discussed the victim’s serious internal
injuries and also stated that he had never seen a case where a child had serious internal
injuries from trauma but did not have any external bruising. The State elected that the fourth
count referred to the “multiple bruises” inflicted on the victim “on or about July 5, 2007.”
As discussed above, the State presented evidence, via testimony and photographs, that the
victim had about two dozen bruises on her body. Ms. Moss testified that she saw three
bruises on the victim’s chest when she came home from Wal-Mart around 6:00 p.m. on July
5, 2007. Dr. Berutti testified that he observed a number of bruises on the victim’s body,
including bruises on her left ear, face, lower back, and back of her thighs. He also noted that
he saw bruises on her chest that were inflicted within the last day. Detective Bruner’s


                                               -22-
photographs showed that the victim also had bruises in the middle of her back, on her right
side, lower right arm, and right buttocks. Had the State specified in its election that the
“multiple bruises” did not refer to any of the bruises on the victim’s chest, we could conclude
that the jury did not convict the Defendant twice for inflicting those injuries—once under
count one and once under four. However, because the State’s election did not separate the
conduct supporting each count, we cannot ascertain that the jury convicted the Defendant for
“wholly separate and distinct” offenses. Because of double jeopardy prohibitions, we are
required to vacate the conviction in count four and to merge the two convictions into a single
conviction for attempted aggravated child abuse.


                                         Conclusion
        Based on the foregoing authorities and reasoning, we conclude that the State presented
insufficient evidence to convict the Defendant of count two, aggravated child neglect. We
also conclude that the Defendant’s convictions for both count one, attempted aggravated
child abuse, and count four, child abuse, violate the principles of double jeopardy. Thus, we
conclude that the conviction on count four must be vacated and merged into the conviction
on count one. We affirm his convictions on counts one and three. We remand to the trial
court to allow the trial court to consider whether the sentences for count one and count three
should be served concurrently or consecutively.




                                                    ___________________________________
                                                    DAVID H. WELLES, JUDGE




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