       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE           FILED
                        FEBRUARY SESS ION, 1997    December 11, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk

STATE OF TENNESSEE,               )   C.C.A. NO. 03C01-9608-CC-00310
                                  )
          Appellee,               )
                                  )   BLEDSOE COUNTY
                                  )
V.                                )
                                  )   HON. J. CURTIS SMITH, JUDGE
TRACEY PENDERGRASS,               )
                                  )
          Appe llant.             )   (AGGRAVATED CHILD ABUSE)




FOR THE APPELLANT:                     FOR THE APPELLEE:

L. THO MAS AU STIN                     JOHN KNOX WALKUP
Attorney at Law                        Attorney General & Reporter
P.O. Box 666
Dunlap, TN 37327                       SANDY R. COPOUS
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       2nd Floor, Cordell Hull Building
                                       Nashville, TN 37243

                                       JAMES MICHAEL TAYLOR
                                       District Attorney General

                                       WILL DUNN
                                       Assistant District Attorney General
                                       265 Third Avenue, Suite 300
                                       Dayton, TN 37321




OPINION FILED ________________________

REMANDED

THOMAS T. WOODALL, JUDGE
                                  OPINION

       The Defendant, Tracey Pendergrass, appeals as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. The Defendant was convicted

of aggravated child abuse following a jury trial in the Circuit Court of Bledsoe

County. She was sentenced to ten years as a Range I offender. The Defendant

argues the following five issues in her appeal: (1) Whether the trial court abused

its discretion when it allowed family members to testify as to statements made by

the minor child several hours after he was injured; (2) whethe r the trial court

abused its discretion when it allowed th e attend ing nurse to testify as to

statem ents made by the child which identified the Defendant as the cause of the

injury; (3) whether the trial court erred when it neglected to include a lesser

included offens e in its ch arge to the jury; (4) whether the trial c ourt abu sed its

discretion when it refused to grant the Defendant’s motion for a mistrial after four

jurors were allowed to use the telephon e after the c ase wa s subm itted to the jury;

and (5) whether the trial court erred when it imposed a se ntence of ten (1 0) years

upon the Defendant. For the reasons stated below, we remand this case to the

trial court for a hearing on the iss ue of jury se paration .



       The victim in the case sub judice was the Defendant’s three year-old step-

son. He wa s broug ht to the Bled soe Co unty General Hospital with severe burns

from his waist down to his toes. The burns were consistent with an “immersion

burn,” which is where a person is held down in a substance which results in a

burn. In the case sub judice, the ch ild was burne d by sc alding hot w ater in a

bathtub. The Defendant contended that the child fell into the water on his own,



                                          -2-
while she was not in the room . There was proof at trial that the burn was not

consistent with this explanation as there was a definite line aro und th e child ’s

waist that was the demarcation for the burn. There were no splatter-type burns

as would be expected if he had fallen into the tub.



       After being broug ht to the Bleds oe Co unty G enera l Hosp ital, the child was

then taken to T.C. Thompson Children’s Hospital in Chattanooga by helicopter.

He was treated for his burns at the hospital and had to be kept for twenty-one

(21) days. He was given whirlpool treatments after which the boy’s sk in wou ld

peel and blee d. His trea tment w as very pa inful. He has permanent scarring from

his waist down a s a result o f the burn s. After b eing re lease d from the ho spital,

physical custody of the ch ild was grante d to his paternal grandparents. He was

unde rgoing therap y at the tim e of trial.



                                              I.



       The Defe ndan t’s first issue is that the trial court abused its discretion when

it allowed the State’s witnesses to testify as to statements made by the minor

child severa l hours after he was in jured. A t trial, the victim’s grandmother, Carol

Pendergrass, testified that while they were at the hospital in Chattanooga several

peop le were in the victim’s roo m. She was stan ding ne xt to her son, Bruce

Pendergrass, who is also the victim’s father. When he asked the victim how he

got in the bathtub, the victim replied, “Mommy put me in the water.”              Brad

Pendergrass, the victim’s uncle also testified that he was in the hospita l room.

He heard the victim re ply to B ruce P ende rgrass ’s question as to how the accident

occurred. He also heard the victim respond that his mother had put him in the

                                              -3-
water.     There was pro of at trial that the victim called his step-m other, the

Defen dant, “Mo mm y.”



         The Defendant argues that the trial c ourt er red in overruling his objections

to the admission of these statements. The trial court allow ed thes e statem ents

into evidenc e unde r the excited utteranc e excep tion to the hearsay rule pursuant

to Rule 803(2) of the Tennessee Rules of Evidenc e. Rule 803(2) states that an

excited utterance is, “[a] statement relating to a startling event or condition made

while the declarant was under the stress of excitement caused by the event or

condition .” The Defendant argues that these statements should not have been

allowed into evidence because the statements were too remote in time from the

incident. Several hours had passed since the child was initially burned. He had

been taken to th e Bleds oe Co unty General Hospital and treated and then airlifted

to Chattan ooga fo r treatm ent. The Defendant also argues that the child was

given pain medication, Tylenol with codeine and three (3) milligrams of morphine,

and this medication would preclude the statements from being made

spontaneously or when the child was in an excited state.



         The decision to apply the exception is left to the discretion of the trial judge.

State v. Payton, 782 S.W.2d 490, 494 (Ten n. Crim. App . 1989). “[T]he primary

consideration [is] whethe r the com ments are, bec ause o f the circumstances,

reliable.” Payton, 782 S.W.2d at 494 (citing McCormick’s Law of Evidence, § 297

at 854-55 ; Shelton v. State, 460 S.W.2d 869 (T enn. Crim. App. 1970)). Our

supreme court has addressed what is necessary for a statement to meet the

excited utterance exc eption. In State v. S mith, 857 S.W .2d 1 (T enn.), cert.

denied, 510 U.S. 996 (1993), the Tennessee Supreme Court stated:

                                            -4-
      The ultimate test is spontaneity and lo gical re lation to the m ain
      event and where an act or declaration springs out of the transaction
      while the parties are still laboring under the excitement and strain of
      the circumstances and at a time so near it as to preclude the idea of
      deliberation and fabrication . See Garrision v. State, 163 Tenn. 108,
      116, 40 S.W .2d 100 9, 1011 (1931); P aine, Tennessee Law of
      Evidence, (1974), Part F. Excited utterance, § 69.


Smith , 857 S.W.2d at 9. Also, a statement, even if it is elicited by ano ther, is

admis sible as a n excited u tterance declaratio n. Smith , 857 S.W.2d at 9.



      In his ruling in response to the Defendant’s objection to the entry of these

statements as excited utterances, the trial court stated:

      I believe in the situation before the Court now there has been some
      several hours between the event the child was treated at the
      Bledsoe County Nursing Home [sic] and then transported by
      helicopter [to] T.C. Thompson’s Children’s Hospital in Chattanooga.
      So we have a s everal hours time lapse, but the circumstances which
      shou ld be considered are the nature and the seriousness of the
      event or condition, the appearance of the declarant, the behavior of
      the declarant, the outlook of the declarant, and other circumstances.
      What we have here is a th ree year o ld child adm ittedly severely
      burned over the lower portion of the child’s bo dy. W e wou ld
      obviou sly have pain associated with what’s been said to be first and
      second degree burns over the lower portion of the body. We have
      an attemp ted catheterization apparently unsuccessful at the Bledsoe
      County Hospital. We have an IV started at the Bled soe Co unty
      Hosp ital. We have a child, a young child, wrapped in bandages.
      W e have a young child in a strange and probably frightening
      environment at the Bledsoe County ER room, e merge ncy room . W e
      have a child transported by helicopter to another hospital, which
      would be a new series of strangers.             I think under these
      circumstances that this child still was under the stress of excitem ent.
      I think the offered evidence is an excited utterance under the
      hearsay exception and I’m going to allow Mrs . Pende rgrass to testify
      in the matter as offered.

The trial court also stated tha t this ruling applied to Brad Pendergrass, the

victim’s uncle.




                                        -5-
       W e do not find that the trial court ab used its discre tion. Th e child would

obviou sly have been under a great deal of stress from the time he was burned

in the bathtub throu ghout his treatment by many strangers at two different

hospitals. The re is als o little da nger o f fabrica tion by a child so young in so much

pain and distress.      We do not find that the fact the child was given p ain

medication precludes the trauma and distress of the event for the child. We find

that the ruling of the trial court is correct under the circumstances in the case sub

judice.



       Even if error, we feel it would be harmless beyond a reaso nable d oubt. W e

note from th e record that several witnesses, who were called to testify by the

Defen dant, testified that the child stated that he had fallen into the bathtub, and

not that his “Mommy” had put him into the tub.                In addition, there was

overwhelming proof that the child had been forcibly placed into the scalding hot

water, and that Defendant was the only adult in the house at the time of the

incident.



       There fore, this issu e is withou t merit.




                                           II.



       In Defendant’s second issue, she contends that the trial court erred by

allowing testimony of the flight nurse regarding statements made by th e victim

                                           -6-
that, “My Mo mm y did it,” when inquiry was made by the nu rse as to, “W ho did this

to you?” The trial court admitted the tes timony under Rule 803(2), excited

utterance, and Rule 803(4), statements for purposes of medical diagnosis and

treatme nt. The life flight nurse, K athleen Corne tt, testified at trial that before they

lifted off she repeatedly asked the ch ild wha t had h appe ned to him. S he fina lly

asked him who had done th at to him, a nd he s tated that h is mom my had done it.

She testified that the child had been given Tylenol with codeine about an hour

prior to their arrival, bu t it had no a ffect on the child. He w as unre spons ive to

their ques tions. The victim was given three (3) milligrams of morphine, and

subsequently became responsive.



       The trial court stated these reasons for allowing Ms. Cornett’s testimony

of the child ’s statem ents into e vidence :


               This statement of the child was actually made prior in time to
       the statement that was made in the presence of the grandmother
       later on at T.C . Tho mps on’s H ospita l. I think that the statement of
       the child is proper under the excited utterances exception for the
       same reasons that I’ve already outlined as relates to, I believe Mrs.
       Carol Pendergrass’ testimon y. I think under the three criteria set out
       in the Ruc ker case that it is also an excep tion to th e hea rsay ru le
       based on the medical diagn osis an d treatm ent in that the statement
       was made for the p urpos e of m edica l diagn osis an d treatm ent, tha t’s
       the first criteria.
               Number two, the med ical history of the declarant past or
       present symptoms, pain sensation and the general character of the
       cause or source there of, and it was reason ably pertine nt to
       diagn osis and trea tment. T he State ’s arguing that as part of the
       diagn osis and treatment essentially the identification of child abuse
       is part of the d iagnos is and trea tment, a nd that is in fact wh at this
       witness has testified to.


       Using the law set out above, we conclude that the trial court did not abuse

its discre tion in allowin g Ms. C ornett to testify to th e child ’s statement under the




                                           -7-
excited utterance exception to the hearsay rule. The trial court’s response to the

Defendant’s objection is correct concerning the excited utterance exception.



       W e now turn to whether the statement should have be en allowe d into

evidence under the exception for statements made for medical diagnosis and

treatme nt. The Defendant argues that the trial court abused its discretion by

allowing this statement in under the medical diagnosis and treatment exception

because of the child’s young age, the persistent questioning by Ms. Cornett and

the influence of narco tics. The p roper issu e is wheth er the state ment m eets the

criteria set out in Rule 803(4), “[s]tatements made for purposes of medical

diagnosis and treatment de scribing med ical history; past or present symptoms,

pain, or sensations; or the inception or general character of the cause or external

source thereof inso far as rea sonab ly pertinent to diagno sis and tre atmen t.”

Tenn. R . Evid. 803(4).



       Trial courts have broad discretion in determining the admissibility of

evidence, and their rulings will not be reversed absent an abuse of discretion.

State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989). In State v.

Rucker, 847 S.W.2d 512 (Tenn. Crim. App. 1992 ), this court stated, “[t]his Court

is of the opinion that ‘[s]tatements made by a child abuse victim to a physician

during an examination that the abuser is a membe r of the victim ’s imme diate

hous ehold are reasona bly pertinent to treatm ent.’” Rucker, 847 S.W.2d at 519-20

(quoting United States v. Ren ville, 779 F .2d 43 0, 436 (8th C ir. 1985 )). It is

thought that the nam e or ide ntity of a p erpetr ator is pertinent in the diagnosis and

treatment of a ch ild abus e victim because “‘there is a direct correlation between




                                          -8-
identity and rec urrence ’” which ofte n reveals a pattern of abuse . Rucker, 847

S.W.2d at 519 (quoting State v. Maldonado, 536 A.2d 60 0, 603 (Con n. 1988)).



      Our supreme court recen tly addr esse d the is sue o f child abuse cases and

the admis sibility of statem ents made by children which are allowed into evidence

through Tennessee Rules of Evidence Rule 803(4) in State v. McLeod, 937

S.W.2d 867 (Tenn. 1996). In McLeod our supreme court stated:


      In making the determination under Rule 803(4), trial courts must
      consider criteria such as the circumstances surrounding the making
      of the statem ent, which would inc lude the tim ing of the s tatement
      and its contents. If the trial court finds that the statement was
      inapp ropria tely influen ced b y anoth er, the c ourt sh ould exclude it as
      not having been made for the purpose of diagno sis and tre atmen t.
      The inquiry, however, will vary depending on the facts of each case.
      To illustrate : (1) the trial cou rt may cons ider wh ether th e child ’s
      statement was in response to suggestive or leading questions;
      and/or (2) the trial court may consider any other factor that may
      affect trustworthiness, such as a bitter custody battle or family feud.


McLeod, 937 S.W.2d at 871.



      In the case sub judice, the trial court held a jury out hearing on the

admis sibility of the statement. The trial judge decided to allow the statement

because, “the identification of child abuse is part of the diagnosis and treatme nt,

and that is in fact what this witness has testified to.” We do not find that the trial

judge abused h is discr etion. H e had a jury ou t hearin g, and his rea sonin g is

based on the same principles on which Rucker and McLeod are based.



      This statem ent was admis sible und er both th e excited utterance and

medical diagno sis and tre atmen t exception s to the he arsay rule . See State v.

Mau rice Gordon, ___ S.W.2d ___ (Tenn. Sept. 29, 1997) (three-year-old sex

                                          -9-
abuse victim’s complaint of pain and statement of who caused the pain w ere

adm issible as both excited utterance and statement for the purpose of medical

diagno sis and tre atmen t).



       There fore, this issu e has n o merit.



                                            III.



       The Defendant’s next issue is whether the trial c ourt er red wh en it

neglected to include the lesser included offense of child abuse in its charge to the

jury. The jury was given an instruction for the charge of aggravated child abuse.

The Defendant argues that the crime of child abuse is a lesser included offense

of aggra vated ch ild abuse and sh ould ha ve been charge d in this cas e.



       W e agree that ch ild abu se is a lesser included offense of agg ravate d child

abuse. The Defendant re lies upon State v. Howa rd, 926 S.W.2d 579 (Tenn.

Crim. App. 1996), in support of her argument that the trial court committed

revers ible error by failing to charge the jury on the les ser inc luded offens e of ch ild

abuse. However, in Howard , this court recognized the established law that when

the proof shows that either the indicted offense occurred or no offense occurred,

then the trial cour t is not requ ired to charge the lesse r included offense. Howard ,

926 S.W.2d at 586.



       At the time of the offense, aggravated child abus e was define d in

Tennessee Code Annotated section 39-15-402 as follows: “(a) A perso n is guilty

of the offense of aggravated child abuse who commits the offense of child abuse

                                           -10-
as defined in § 39-15-401 and: (1) the act of abuse res ults in serious bod ily injury

to the child ;. . . .”



        Also at the time of the offense, Tennessee Code Annotated section 39-15-

401 defines child abuse as, “(a) Any person who knowingly, other than by

accidental means , treats a c hild under eighteen (18) years of age in such a

manner as to inflict injury or n eglects s uch a ch ild so as to a dversely a ffect the

child’s hea lth and we lfare is guilty of a Class A misde mean or.”



        The indictment in Defendant’s case charged that she did “. . .unlawfully,

knowingly, and other than by ac cidental mea ns, inflict injury upon [victim], a child

under eighte en (18 ) years of age , such act res ulting in seriou s bod ily injury, in

violation of T.C.A. § 3 9-15-402. . . .”



        It is clear from both th e alleg ations in the ind ictme nt, and the pro of at trial,

that wh at ma de this particular offense aggravated child abuse, was the serious

bodily injury in flicted upo n the victim .



        Tennessee Code Annotated section 39-11-106(a)(33) defines serious

bodily injury as follows:




                                              -11-
       (33) “Serious bodily injury” means bodily injury which involves:

              (A)    A substantial risk of death;
              (B)    Protracte d unco nscious ness;
              (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 facu lty;


       The Defendant’s theory at trial, including her testimony, was that the

injuries suffered by the victim were as a result of th e victim ac cidentally fa lling into

the scalding water. As observed in the statute defining aggravated child abuse,

which incorporates the definition of child abuse, an accidental injury is a defense

to the criminal cha rge. There was uncontradicted and uncontested proof at trial

that the victim had a protracted and obvious disfigurement as a result of scarring

from his waist down, that he suffered extreme physical pain, and that the injury

posed a substantial risk of death. While Defendant offered proof to contradict

evidence of how well the victim had recovered, this proof did not contradict the

proof of serious b odily injury.



       The Defendant a rgues that proof of bruises on the victim’s chest, back,

face, and whip m arks across h is buttocks requ ired the trial court to charg e the

lesse r includ ed offe nse o f child abuse. She bases this argument on the theory

that the jury c ould b elieve th e burn s were caus ed by a ccide ntal m eans , but co uld

still convict the Defen dant on the lesser included offense of child abuse based

upon the proof of the bruises.




                                           -12-
      Howeve r, our rev iew of th e reco rd requ ires us to rejec t Defe ndan t’s

argum ent. Dr. William Belknap, a pediatrician who examined the victim at the

Chattanooga hospital on the night of the incident testified that bruising on the

child was consistent with the restraining type of h old that the medical personnel

thought had o ccurre d durin g the vic tim’s im mers ion into the scalding water.

Specifically, the doctor testified:


       An imme rsion injury a ppeara nce taken together with bruising and
       also in addition noting that the knees were flexed, the legs were
       flexed at the knees indicated to us that an individually clearly had
       held the child som ewhere about the trunk and actually had dipped
       the child in the scalding water to achieve this kind of an inju ry and
       we felt most compelled to make that conclusion based on the
       observation of the bruising.



Also, Dr. Belknap noted that the bruising about the victim’s face was most

consistent with a restraining type of hold necessary to immerse som eone in to

scalding water. The sm aller bruises were approxim ately the siz e of fingertip s.



       W hile it is not clear from the record how the whip marks across the victim’s

buttocks would have been caused by the immersion of the victim into the bathtub,

we note there was no proof in the record by circumstantial or direct evidence that

Defendant had caused the whip mark bruising on the victim’s buttoc ks. Th e only

proof in the re cord re gardin g the c ause of the w hip mark bruising on the buttocks,

including the Defend ant’s testimony, was that her husband had whipped the child

with a belt a day or tw o before the child w as burn ed in the w ater. The Defendant

also offered proof that the other bruisin g on th e child was a s a res ult of the child

accid entally falling in the bathroom on an earlier occasion and from the child

poss ibly being struck by ano ther ch ild at an ove rnight chu rch related “lock-in.”



                                          -13-
The Defendant concluded her direct testimon y by stating the entire incident was

an acc ident, and she wo uld do no thing to hu rt any of he r children.



      In her argument on this issue, the Defendant wants to focus on some

injuries, the bruises, and separate them for consideration from the burn injuries.

The State’s proof was that all the bruises, except for the whip marks on the

buttocks, were consistent with a restraining hold by the perpetrator who

immersed the child into the hot water. There is no proof that the Defendant

herse lf inflicted the whip marks on the buttocks area. The Defendant’s proof was

that bruising on the buttocks was caus ed by th e Def enda nt’s husband, and other

bruises w ere not c aused by the De fendan t, but by acc idental m eans.



      In the case sub judice under the proof presented at trial, the Defendant

could be guilty of the greater offense of aggravated child abuse, or no offense at

all. In such s ituations, it is no t error for the trial court to refuse to charge the

lesser offense. Wh itwell v. State, 520 S.W .2d 338 , 344 (T enn. 19 75); State v.

Atkins, 681 S.W.2d 571, 577 (T enn. C rim. App . 1984), cert. denied, 470 U.S.

1028 (1 985).



      Accord ingly, this issu e is withou t merit.




                                          IV.




                                         -14-
      The Defe ndan t’s fourth issue is whether the trial court abused its discretion

when it refused to grant D efendant’s m otion for a mistrial after four jurors w ere

allowed to use the telephone during the course of the jury’s deliberations. The

jury began deliberations at approximately 3:30 p.m. During the supper break, at

around 7:50 p.m., a few of the jurors w anted to make calls to m ake arra ngem ents

for staying over another night. The jury was sequestered.



      In Gonz ales v. Sta te, 593 S.W.2d 288 (Tenn. 1980), our supreme court

stated:


            In Hines v. State, 27 Tenn. 597 (1848), the “settled law”
      applicable to jury separations was stated as follows:
            “The princip les laid down in these cases are, 1st, that
            the fact of separation having been established by the
            prisoner, the possibility that the juror has been
            tampered with, and has received other impressions
            than those derived from the testimony in court, exists,
            and prima facie the ver dict is vic ious; but, 2d , this
            separation may be explained by the prosecution,
            showing that the juror ha d no co mm unication with other
            persons, or that such communication was upon
            subjects foreign to the trial, and that, in fact, no
            impressions other than those drawn from the
            testimony, were made upon his mind. But, 3d, in the
            absence of such explanation, the mere fact of
            separation is sufficient ground for a new trial.” 27
            Tenn. at 602.


Gonzales, 593 S.W .2d at 291 . This passag e of Gonzales was also cited with

approval in State v. Furlough, 797 S.W.2 d 631, 645 (Tenn. Crim . App. 1990 ).

After the State meets its affirmative burden that no pre judice oc curred, a

harmless error ana lysis is perm itted. Furlough, 797 S.W .2d at 645 ; Gonzales,

593 S.W.2d at 293.




                                        -15-
      The Defenda nt orally moved for a mistrial imm ediately after the jury

returned with the ver dict, at about 8:10 p.m., and a hearing on the matter was

held immediately. The officers who had taken the jurors to make their phone

calls testified. Deputy Sheriff Mel Matthe ws testified that the juro rs wante d to

make phon e calls to make arrangements for the night. He was in the room while

they were calling, but did not hear any portions of the conversations. One of the

court officers, Tammy Turner, also testified at the hearing. The phone the jurors

used was at her desk. On direct examination by the Defendant, she stated that

two women and two men made the calls. During cross-examination by the State,

she testified that she heard the whole conversations, and “Everyone said I need

you to bring clothes, put ‘em in my car, I don’t know when I’ll be home, bye.” On

redirect, the officer stated that she did not know what was b eing s aid on the other

end of the te lepho ne co nvers ations . Sheila Johnson, another court officer, stated

that what the previous two witnesses had testified to was the same as her

recollection of the events. On cross-examination by the State, she stated that the

conversations were very short, and she did n ot see the jurors arg uing with

anyone. The trial court ruled, “I do not find that there’s been anything impro per.

I don’t find any prejudice to the defendant as far as th e activitie s of the jury. I’ll

overrule th e motio n.”



       In making its ruling, the trial court use d an erro neous test to consider the

Defe ndan t’s motio n for mistrial. As stated above in Gonzales, once there has

been a jury separation during sequestration, and in this case during the jury’s

deliberations, the possibility that the juror has been tampered with and received

impressions other than those derived from the testimony exists and the verdict

is prima facie “vicious.”     However, the prosecution should be allowed the

                                          -16-
opportu nity to show that all of the communications to each juror were upon

subjects not involving the trial and that no impressions other than those drawn

from the tes timon y were mad e upo n the ju ror’s mind. If there is an absence of

such explanation, the mere fact of the separation is sufficient grounds for granting

the motion for a new trial. Gonzales, 593 S.W.2d at 291 (quoting Hines v. State,

27 Te nn. 597 , 602 (18 48)).



       In this case the jury separation occurred only a few moments before the

jury returned with its verdict. After the jury reported its verd ict, the trial court

dismissed the jury. Defendant’s counsel prom ptly ma de the motio n for m istrial,

indicating that he had brough t the poss ibility of jury separation to the attention of

the court a few moments before and had intended to have a hearing on the

record p rior to the jury re turning its ve rdict.



       The trial court, as stated above, issued its ruling after the Defendant had

put on her proof showing a separation of the jury, but based its ruling upon an

improper standard. The State is entitled to offer whatever proof which may be

availab le to show that an y comm unications m ade to the jurors during the phone

conversations were u pon m atters n ot perta ining to the trial, a nd tha t the juro rs did

not obtain any im pressions oth er than those d rawn from the testimony. Even if

we suspe ct that thos e peop le who sp oke with the jurors did not speak of matters

pertaining to the trial, or make any impressions upon the jurors which affected the

verdict, we are unable to make such an assumption under the mandates of

Gonzales.




                                            -17-
      Therefore, it is necessary for the judgment to be vacated and this matter

remanded to the tria l court s olely for an evidentiary hearing and decision by the

trial court on the issue of jury separation in a manner consistent with this opinion.

If the trial court finds that all of the jurors’ communications were on su bjects

foreign or upon subjects not pertaining to the trial and that no impressions were

made upon the jurors in reaching the verdict other than the proof heard at trial,

and after making this determination that no prejudice occurred to the Defen dant,

the judgment shall be reinstated. Absent such a finding by the trial court, the trial

court shall gran t the Defe ndant a new trial. The Defendant can appeal from an

adverse decision on this issu e.



                                         V.



      The Defe ndan t’s final issue is whether the trial court erred by imposing a

senten ce of ten (1 0) years. When an accused challenges the length, range, or

the manner of service of a sentence, this court has a duty to conduct a de novo

review of the sentence with a presumption that the determinations made by the

trial court are corre ct. Ten n. Co de An n. § 40 -35-4 01(d) . This p resum ption is

"conditioned upon the affirm ative showing in the record that the trial court

considered the sente ncing princip les an d all relevant fac ts and circ umsta nces."

State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



      In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the princip les of sen tencing a nd argu ments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

                                        -18-
involved; (e) any statu tory mitigatin g or enh ancem ent factors ; (f) any statement

that the defenda nt made o n his own be half; and (g) the pote ntial or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



                                          A.



       The Defendant first argues that the trial court erred when it used essential

eleme nts of the crime as enhancing factors.           The Defendant argues that

enhancement factor (4 ), the victim was p articula rly vulnerable because of age or

physical or mental disability, factor (5), the defendant treated or allow ed the victim

to be treated with exceptional cruelty, and factor (6), personal injuries inflicted

upon the victim were p articula rly great, are all inherent in the offense, and cannot

be used to enhance the Defendant’s sentence. Tenn. Code Ann. § 40-35-114

(4), (5) & (6) .



       The statute under which the Defendant was convicted provides that, “[a]

person is guilty of the offense of aggravated child abuse who commits the offense

of child abuse as defined in § 39 -15-4 01 an d :(1) T he ac t of abu se res ults in

                                         -19-
serious bodily injury to the child.” T enn. C ode Ann. § 39-15-402. Tennessee

Code Annotated section 39-15-401 states that child abuse is “[a]ny person who

knowingly, other than by accidental means, treats a child under eighteen (18)

years of age in such a manner as to in flict injury or neglects such a child so as

to advers ely affect the child’s hea lth and we lfare.”



       W e first add ress e nhan cem ent fac tor (4), th e victim was p articula rly

vulner able because of age or physical or mental disab ility. Our supreme c ourt

has stated that this enhancement factor, “relate[s] more to the natural physical

and men tal limita tions o f the victim than merely to the victim’s age.” State v.

Adams, 864 S.W.2d 31, 35 (Tenn. 1993 ). The refore , factor (4 ) is not in heren t in

an offense based on the age of a victim. In State v. A ndrew J ohnso n, III, No.

02C01-9304-CR-00050, Shelby County (Tenn. Crim. App, Jackson, filed April,

20, 1994), perm. to appeal denied, (Tenn. 1994), the defendant was convicted

of the ag grava ted rap e of his four-year-o ld daug hter. This court held that factor

(4) applied because the four-year-old was home alone and in the sole care of the

defendant when the crime occurred. The court went on to say, “[i]t would be

ludicrous to say that she was capable of res isting the assault of he r adult father.

There was no one in the house or oth erwise available to h elp her.” Johnson, slip.

op. at 4. Th e victim did testify in Johnson, but this cou rt stated tha t it was with

extreme difficulty.



      The Supr eme Cour t of Te nnes see re cently a ddres sed th is issue a gain in

State v. Poole , 945 S.W .2d 93 (Ten n 1997). The court reiterated the requirement

that the State has the burde n of pro ving a v ictim’s lim itations caus ing the victim

to be particu larly vulnerable and cited Adams in support thereof. The supreme

                                         -20-
court also held the trial court m ust make factual findings whe ther the evidence

with regard to the victim’s age demonstrated an ability to resist the crime,

summ on help , or testify at a late r date. Poole , 945 S.W .2d at 96.



      In Defendant’s case, the trial court noted that the victim was three (3 ) years

old at the time of the offense and discussed case law in Tennessee which speaks

in terms of youthful age precluding a victim from resisting or calling for help or

being capa ble of testifying. The trial court specifically referred to Adams among

other cases in determ ining that this enhan cemen t factor applied. The record

reflects that the victim was left alone with the Defendant, his step-mother, and

that the offense occurred during a time period when the victim’s father was away

from the home at work. There was no one present to help the victim and the

victim was u nable to resis t the ab use in flicted u pon h im by the Defen dant. W e

find that this enhancement factor was appropriately applied by the trial court and

that the trial court made sufficient findings in the record to support application of

this enha ncem ent factor.



      Regarding factor (5), that the Defendant treated or allowed the victim to be

treated with exc eption al cruelty during the commission of the offense, the trial

court relied upon the fact that the victim was forcibly held in extremely hot water

to suppo rt application of this enh ancem ent factor. On appeal, the State relies

upon evidence of bruises on the victim’s face and bottom, and well as the burn

injuries in support of application of this enhancement factor. However, when the

very facts which caused the crime to be aggravated under the law are also used

to supp ort the fin ding of “exceptional cruelty,” our court has held that the

enhancement factor cou ld not be a pplied. Mann ing v. State, 883 S.W.2d 635,

                                        -21-
639 (Tenn. Crim. App. 1994).         Therefore, we agree with Defendant that

enhancement factor (5) is not applicable. Likew ise, proof of serious b odily injury

also constitutes proof of particularly great injury and enhancement factor (6)

shou ld not have been applied. State v. Jones, 883 S.W.2d 597, 602 (Tenn.

1994); State v. Crowe, 914 S.W .2d 933 , 939-40 (Tenn . Crim. A pp. 199 5).



      The State arg ues tha t application of enha ncem ent factor (10), that the

Defendant had no hesitation about committing a crime when the risk to human

life was high, is applicable in this case. We respectfully disagree. There was

proof in the record from a physician who treated the child that extensive burns on

the victim’s body were potentially fatal. However, “a substantial risk of death ” is

one of the definitions of “serious bodily injury.” Tenn. Code Ann. § 39-11-

106(a)(33). A fair review of the record clearly shows that proof of “a substantial

risk of death” was one of the factors relied upon by the State in proving “serious

bodily injury” to sustain a conviction of aggravated child abuse. We therefore

conclude that factor (10) is an essential element of the offense as charged in the

indictment and should not be included as an enhancement factor. We find that

only enh ancem ent factor (4 ) applies to the Defe ndant’s s entenc e.



                                        B.



      Defendant argues that the trial court erred by failing to apply the following

mitigating factors from Tennessee Code Annotated section 40-35-113:


      (3)    Substantial grounds exist tending to excuse or justify
             the defendant’s criminal cond uct, thoug h failing to
             establish a defen se.



                                        -22-
       (8)    The defendant was suffering from a mental or physical
              condition that significantly reduced his culpability for
              the offense; however, the voluntary us e of intoxica nts
              does not fall within the p urview of this factor;

       (11)   The defendant, although guilty of the crime, committed
              the offense unde r such unus ual circ ums tance s that it is
              unlike ly that a sustained intent to violate the law
              motivate d his con duct;

       (12)   The defendant acted under duress or under the
              domination of another person, even though the duress
              or the domination of another person is not sufficien t to
              constitute a defense to the crime;

       (13)   Any other fa ctor co nsiste nt with th e purp oses of this
              chapte r.
              [Defendant urges her lack of a prior criminal record,
              attendance at church, and other “good character
              evidence” subm itted at th e sen tencin g hea ring wo uld
              make this mitigatin g factor ap plicable.]



       W e agree with the State and the trial court that factors (3), (8), (11), and

(12) do not apply in this case.       Actually, the record is devoid of any proof

whatsoever to support any of these mitigating factors. The trial court heard the

testimony of all of the witnesses and found that the only “catch-all” mitigating

factor under (13) which might be applic able w ould be the fact that the Defendant

does not have a prior criminal record. How ever, in this particular case, the trial

court h eld tha t this fac tor sho uld be given little weight in senten cing De fendan t,

and we agree.



       The trial court specifically found that any one of the enhan cemen t factors

it believe d were applic able would support a sentence above the minimum

presum ptive sentence of eight (8) years, in light of the fact that the one mitigating

factor wh ich was a pplicable should b e given ve ry little weight.




                                          -23-
       Having found that one (1) enhancement factor is applicable, and that one

(1) mitigating factor is ap plicable, bu t that the mitigating factor should be given

very little weight, and being in agreement with the trial court that any one of the

enhancement factors found by that court shou ld be a fforded great w eight in this

particular case, we conclude that the record supports the sentence imposed by

the trial cou rt. Therefo re, this issue is without m erit.



                                    CONCLUSION



       W e vacate the judgment and remand this case to the trial court solely for

an evidentiary hearing and decision by th e trial court on the issue of jury

separation in accordance with this opinion.          All other issues raised by the

Defen dant are overruled .



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




                                          -24-
