         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs April 29, 2008

                 STATE OF TENNESSEE v. ERICA LYNN WYMA

                     Appeal from the Criminal Court for Hamblen County
                       Nos. 04CR395        John F. Dugger, Jr., Judge



                  No. E2007-01999-CCA-R3-CD - Filed September 10, 2008


JOSEPH M. TIPTON , P.J., concurring.

       I concur in the result and most of the reasoning in the majority opinion. I question, though,
whether we can firmly say that the victim’s saying, “No, No,” and “Mommy hit me” was sufficiently
relevant and not too prejudicial in the context of the trial.

        The evidence primarily indicates that the victim was injured by the defendant’s shaking her.
Such was the main thrust of the expert testimony. The statements were shown to be excited
utterances, but the difficulty is relating the statements to the trauma proven in the trial. There was
no independent proof that the defendant hit the victim, as opposed to shaking her, and thereby caused
the victim’s injuries. The potential existed that the victim’s statements referred to another incident
not on trial. If such were the case, the defendant would have reason to complain.

        The record, though, is insufficient for us regarding prejudice. Although the state’s expert
witnesses focused on the injuries being consistent with the defendant’s shaking the victim, they also
indicated that the trauma could occur by other violent means. The record does not include the jury
selection or the closing arguments. We have no way of knowing whether the state focused only on
shaking as the cause of the victim’s injuries. If the case was presented in more general terms, I
believe the trial court properly allowed the statements into evidence. Under the circumstances, I
concur in affirming the defendant’s conviction.



                                                      ____________________________________
                                                      JOSEPH M. TIPTON, PRESIDING JUDGE
