         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE         FILED
                         NOVEMBER 1998 SESSION
                                                   February 10, 1999

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 01C01-9801-CC-00044
      Appellee,                    )
                                   )    LINCOLN COUNTY
VS.                                )
                                   )    HON. CHARLES LEE,
JEFFERY EARL HOLDER,               )    JUDGE
                                   )
      Appellant.                   )    (Aggravated Child Abuse)



FOR THE APPELLANT:                      FOR THE APPELLEE:

N. ANDY MYRICK, JR.                     JOHN KNOX WALKUP
116 W. Market Street                    Attorney General and Reporter
Fayetteville, TN 37334
                                        DARYL J. BRAND
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        W. MICHAEL McCOWN
                                        District Attorney General

                                        WEAKLEY E. BARNARD
                                        Assistant District Attorney General
                                        Marshall County Courthouse
                                        Room 407
                                        Lewisburg, TN 37091




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The defendant, Jeffery Earl Holder, appeals as of right his conviction by a

Lincoln County jury of aggravated abuse of a child six years of age or less. He

was sentenced as a Range I, standard offender to twenty-five years

incarceration for this Class A felony. On appeal, the defendant raises the

following issues:

       1.     Whether the trial court erred in failing to suppress his
              sworn statement to the police;

       2.     Whether the trial court erred in admitting photographs
              of the victim's injuries;

       3.     Whether the evidence is sufficient to support the verdict; and

       4.     Whether his sentence is excessive.


Upon our review of the record, the judgment of the trial court is AFFIRMED.



                                      FACTS

       At approximately 8:00 on Saturday evening, November 2, 1996, the

defendant staged a one car “accident” to account for serious head injuries which

had been inflicted on his five-month-old daughter (hereinafter referred to as

“victim”). The defendant drove his car off the road and into a ditch with the victim

strapped into a car seat in the back. There were no other passengers in the

defendant’s car. The “accident” occurred in Hazel Green, Alabama, not far from

defendant’s residence in Lincoln County, Tennessee.

       Paramedic Jerry Burgess arrived at the scene. He saw no skid marks but

found the victim in the car. He described her condition as “blue and [she] didn't

appear to be breathing” and appeared to have suffered head trauma. Because

of the seriousness of her condition, she was flown by helicopter from the scene

of the accident to the hospital in Huntsville, Alabama. The defendant was taken

to the hospital by ambulance.



       At the scene, defendant told Thomas Glenn Taylor, Jr., an Alabama state

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trooper, that he had fallen asleep at the wheel and run off the road. Like

Burgess, Taylor saw no skid marks.

              Rony Najjar, a trauma surgeon, treated the victim upon her arrival

at the hospital. Her condition was critical, and her injuries life-threatening. His

“examination of the child revealed what appeared to be a severe trauma to the

head, with multiple bruises in the head region and the face area and the bridge

of the nose, the front of the head, the side of the head, especially the right side.”

It was “unlikely” that these injuries had been caused by a single drop.

       Mark Weeks, a family practice physician, treated the victim nine times

from December 1996 through April 1997. He testified that the head injuries had

caused damage to the left arm and hand. He further testified that her speech

and vision would be affected in the future, that there was a possibility that her

ability to walk would be affected, that retardation was possible, and that her

ability to ever hold a permanent job was “[v]ery unlikely.”

       Tennessee Bureau of Investigation (“TBI”) Special Agent, Donna Pence,

testified that she arrived at the hospital at approximately 2:30 a.m. on the night of

the accident. She observed the child and then met with the defendant and

advised him of his rights. He signed a rights waiver form and told her that he

was sleepy and groggy while driving and had the accident. Shortly thereafter,

Agent Pence overheard the defendant tell his wife, Sheila Holder, that he had

gotten dizzy at home and accidentally dropped the baby on the floor. In the

course of their discussions, defendant agreed to participate in later questioning

at TBI headquarters.

       Defendant’s car was impounded after the wreck, so the Holders did not

have a way home. Officer Joyce McConnell had driven to the hospital with

Agent Pence. The officers offered the Holders a ride which they accepted. They

arrived home at approximately 6:30 a.m. Pence and McConnell returned to the

Holder residence at 8:45 a.m. the same morning to take them to TBI

headquarters for additional questioning. When no one responded to their

knocks, they left. They returned twice at about 9:30 and at 11:30 a.m. before the



                                          3
Holders answered the door. Defendant indicated he was still willing to

cooperate.

       The four drove to TBI headquarters in Nashville and arrived at about 2:00

p.m. Sunday afternoon, November 3, 1996. Defendant was again advised of his

rights. He signed a second rights waiver and gave a sworn statement to Agent

Pence at 5:30 p.m. on November 3, 1996, in which he admitted his guilt and

described hitting his daughter several times with his fist. In the statement,

defendant explained that he “freaked” when he saw her head swelling and

worried about how to explain her injuries. He put her in the car and went to pick

up his wife when he decided to stage the accident.

       Court transportation officer, Jeff Miller, testified that while driving the

defendant, defendant said he had taken “acid” and saw “bugs and monsters on

the child” and began beating them off of her. Defendant gave the same

explanation to Sheila Holder on one occasion and in two letters he wrote: one to

her and one to her lawyer.

       The defendant did not testify at trial but put on two neighbors who testified

that they never saw defendant abuse the baby. He also introduced two letters

written by Sheila Holder in which she took responsibility for the victim’s injuries.

Holder testified she wrote the letters only to help the defendant. She denied at

trial that she inflicted the injuries.



                                MOTION TO SUPPRESS

       In his first issue the defendant contends that his written statement should

have been suppressed because he had been deprived of sleep, was in a state of

shock, and had just failed a polygraph test.1 In other words, he complains that

his physical state was such that he did not knowingly and voluntarily waive his

rights before confessing. At the suppression hearing, Agents Pence and Smith

both testified as well as Officer McConnell. According to all three of these



           1
           Testimony regarding the polygraph test was admitted in the course of the
   suppression hearing but not at trial.

                                           4
witnesses, the defendant did not appear to be in shock, did not complain about

his alleged lack of sleep, and did not appear to be under the influence of drugs

or alcohol. Sheila Holder testified at the suppression hearing that, on their way

home from TBI headquarters after the polygraph, the defendant was conversant

and she had no problems talking with him. The trial court denied the defendant's

motion to suppress, finding as follows:

       Those persons who had direct observations of the Defendant
       testified that he did not appear to be sleepy or inattentive.
       Probably the person who could testify most accurately about any
       abnormalities to be observed in the Defendant, being his wife,
       testified that she had no difficulties communicating with him.

       The atmosphere that the Defendant was placed in is not one of a
       coercive nature. There's no evidence that he was locked away.
       He went to the [TBI headquarters] voluntarily. The proof is just not
       there.

       “[A] trial court's findings of fact in a suppression hearing will be upheld [on

appeal] unless the evidence preponderates otherwise.” State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996). Questions regarding the witnesses' credibility, the

weight and value of the evidence, and resolution of conflicts in the evidence are

all matters entrusted to the trial court. Id. The party prevailing on the

suppression motion is entitled to the strongest legitimate view of the evidence as

well as all reasonable and legitimate inferences which may be drawn therefrom.

Id.

       While the record supports the inference that the defendant did not have

much sleep during the twenty-four hours preceding his sworn statement, this

alone is not determinative. See Monts v. State, 214 Tenn. 171, 379 S.W.2d 34,

38 (1964). At issue is whether the confession was voluntary, and the

circumstances of each case must be examined. State v. Smith, 933 S.W.2d

450, 455 (Tenn. 1996). The evidence does not preponderate against the

findings of the trial court relating to the voluntariness of the confession.

       This issue is without merit.



                                  PHOTOGRAPHS

       The defendant next contends that the trial court erred in admitting into

                                          5
evidence three photographs of the victim taken on the Monday morning following

her admission to the hospital. Each of the photographs depicts the injuries to the

child's head. Upon the defendant's objection to their admission, the trial court

acknowledged that the photographs were “potentially inflammatory,” but

continued, “[h]owever, there is no other way to get an accurate description other

than the picture or photographic depiction of the bruises to the front of the child.”

The court then specifically ruled that the probative value of the photographs

outweighed their prejudicial effect, while requiring the state to choose one of two

particular photographs which showed essentially the same view.

       The defendant argues that the trial court erred because “the probative

value of the [admitted] photographs is slight compared to the extremely

prejudicial effect [they] would have on the jury.” He claims the photographs were

unnecessary in light of Dr. Najjar's testimony about the injuries.

       Under our rules of evidence, relevant proof may be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice . . .

or by considerations of . . . needless presentation of cumulative evidence.”

Tenn. R. Evid. 403. The determination of admissibility is left to the sound

discretion of the trial court and this Court will not disturb that determination

absent a clear showing of abuse of discretion. State v. Banks, 564 S.W.2d 947,

949 (Tenn. 1978). The mere fact that the subject of the photographs could be

described in words does not render them inadmissible. See Collins v. State, 506

S.W.2d 179, 185 (Tenn. Crim. App. 1973).

       This Court has reviewed the photographs admitted at trial and agrees with

the trial court's ruling. There is no clear abuse of discretion. This issue is

without merit.



                        SUFFICIENCY OF THE EVIDENCE

       The defendant also contends that the evidence is insufficient to support

his conviction. A defendant challenging the sufficiency of the proof has the

burden of illustrating why the evidence is insufficient. State v. Tuggle, 639



                                          6
S.W.2d 913, 914 (Tenn. 1982). When a defendant challenges the sufficiency of

the convicting evidence, we review the evidence in the light most favorable to the

prosecution to determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). We do not reweigh or re-evaluate the

evidence and are required to afford the state the strongest legitimate view of the

proof contained in the record as well as all reasonable and legitimate inferences

which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).

         Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are

resolved by the trier of fact, not this Court. Id. A guilty verdict rendered by the

jury and approved by the trial judge accredits the testimony of the witnesses for

the state, and a presumption of guilt replaces the presumption of innocence.

State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

         The defendant was convicted of aggravated abuse of a child six years of

age or less. That offense is committed when a person “knowingly, other than by

accidental means, treats a child [six years of age or less] in such a manner as to

inflict injury” and the “abuse results in serious bodily injury to the child.” Tenn.

Code Ann. §§ 39-15-401(a); 402(a)(1) (Supp. 1996). The evidence in this case

is more than sufficient to support the jury's verdict.

         While the defendant argues that Sheila Holder confessed to the crime, the

jury chose to believe the defendant's confession. The jury was entitled to do so,

and we will not disturb its decision. This issue has no merit.



                                   SENTENCING

         Finally, the defendant complains that his sentence is excessive. The

defendant was convicted of a Class A felony. See Tenn. Code Ann. § 39-15-

402(b) (Supp. 1996). As a standard offender, defendant was subject to a Range

I sentence of fifteen to twenty-five years. See Tenn. Code Ann. § 40-35-112(a).



                                           7
The trial court imposed the maximum sentence of twenty-five years. Because

the defendant committed the offense of aggravated child abuse, he must serve

one hundred percent of his sentence, less sentence credits earned and retained.

See Tenn. Code Ann. § 40-35-501(i).

       In imposing sentence, the trial court found no applicable mitigating factors

and six applicable enhancement factors. The defendant argues that the trial

court incorrectly applied one of the enhancement factors and should have

mitigated his sentence based on his background.

       When a defendant complains of his or her sentence, we must conduct a

de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). This presumption, however, “is conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). The appealing party bears the burden of showing that the sentence is

improper. Id.

       The presumptive sentence for a Class A felony is the midpoint of the

range. Tenn. Code Ann. § 40-35-210(c). If there are enhancing and mitigating

factors, the court must start at the presumptive sentence in the range and

enhance the sentence as appropriate for the enhancement factors and then

reduce the sentence within the range as appropriate for the mitigating factors.

Tenn. Code Ann. § 40-35-210(e). If there are no mitigating factors, the court

may set the sentence above the presumptive sentence but still within the range.

Tenn. Code Ann. § 40-35-210(d). The weight to be given each factor is left to

the sound discretion of the trial judge. State v. Shelton, 854 S.W.2d 116, 123

(Tenn. Crim. App. 1992).

       The defendant testified at his sentencing hearing that he was abused as a

child; lived in foster homes; and eventually lived on the street. Contrary to the

defendant's argument, the trial court did consider this testimony and specifically

found that it did not “rise to the level of a mitigating factor.” W e agree. This

issue has no merit.



                                          8
       As to enhancement factors, the trial court applied the following:

                (1) The defendant has a previous history of criminal
                convictions in addition to those necessary to establish
                the appropriate range;

                (4) The victim was particularly vulnerable because of
                her age;

                (6) The personal injuries inflicted upon the victim
                were particularly great;

                (8) The defendant has a previous history of
                unwillingness to comply with the conditions of a
                sentence involving release in the community;

                (15) The defendant abused a position of private trust;
                and

                (18) The victim suffered permanent impairment of
                either physical or mental functions as a result of the
                abuse.

See Tenn. Code Ann. § 40-35-114. The defendant only contends that the trial

court erred in finding that the victim was particularly vulnerable because of her

age, arguing that this factor is an essential element of the offense.2

       When defendant made this same argument at the sentencing hearing, the

trial court responded:

       Age is an element of the offense, but it's not the age that one must
       look at, but whether, because of the age, the [victim] was
       particularly vulnerable.

       In this case, the testimony was that this child was a five-month-old
       child; could not escape her attacker; could not even tell anyone
       about the abuse that she had been subjected to. And because of
       her age, she was particularly vulnerable in her inability to
       communicate to those around her that she was the subject of this
       abuse. . . .

We agree with the trial court that, under the circumstances of this case, the

enhancement factor applies. See State v. Walton, 958 S.W.2d 724, 729 (Tenn.

1997) (even where the child's age is an essential element of the offense, the

“particularly vulnerable” factor may be applied where, because of the child's age,

he or she was incapable of resisting, summoning help, or testifying against the

perpetrator).


          2
           Because the victim was less than six years old, the offense is elevated from a
   Class B felony to a Class A felony. See Tenn. Code Ann. § 39-15-402(b) (Supp.
   1996).

                                            9
      The defendant has failed to demonstrate that his sentence is improper.

This issue has no merit.



                               CONCLUSION

      Based upon the foregoing, the judgment of the trial court is AFFIRMED.




                                           __________________________
                                           JOE G. RILEY, JUDGE


CONCUR:



(Not Participating)
PAUL G. SUMMERS, JUDGE




_____________________________
L. T. LAFFERTY, SENIOR JUDGE




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