            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                           Assigned on Briefs September 28, 2010

                    STATE OF TENNESSEE v. JAMAR McFIELD

              Direct Appeal from the Criminal Court for Hamilton County
                          No. 266423    Don W. Poole, Judge


                    No. E2009-02472-CCA-R3-CD - Filed June 27, 2011


The Defendant-Appellant, Jamar McField, was convicted by a Hamilton County jury of first
degree felony murder and aggravated child abuse. He received a life sentence with the
possibility of parole for felony murder and a concurrent sentence of twenty years for
aggravated child abuse.1 On appeal, McField claims: (1) the trial court erred in denying his
motion to suppress; (2) the insufficiency of the evidence; (3) the trial court improperly ruled
that an autopsy photograph was admissible; and (4) the trial court misapplied an
enhancement factor during sentencing. Upon review, we affirm the judgments of the trial
court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Hilary Hodgkins, Chattanooga, Tennessee, for the Defendant-Appellant, Jamar McField.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Leslie Longshore, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                               OPINION

        This case involves the death of four-year-old Keanon Beamon, the victim, who died
as a result of multiple blunt force injuries to his head, chest, and abdomen. It is undisputed
that on the day the victim died, McField, the boyfriend of the victim’s mother, was the


        1
          The judgment form for aggravated child abuse does not state that the sentence is concurrent to the
life sentence for felony murder. The trial court made this finding at the sentencing hearing. The judgment
form should be corrected to reflect the imposition of concurrent sentencing.
victim’s sole caretaker. In an effort to explain what happened to the victim, McField
provided two statements to the police, which he later moved to suppress.

       Suppression Hearing. As an initial matter, the motion to suppress is not included in
the record. The following testimony was presented at the suppression hearing.

        Detective Josh Meyer of the Chattanooga Police Department testified that he was
assigned to the Major Investigations, Child Abuse Unit. On the day of the offense, he
received a phone call regarding the victim, Keanon Beamon,2 age four. The victim had
reportedly stopped breathing and was receiving cardiopulmonary resuscitation (CPR).
Detective Meyer immediately contacted Detective Mike Tilley of the Major Crimes,
Homicide Unit. Detective Tilley requested that Detective Meyer have the victim’s parents
brought to the police service center. Detective Meyer explained that the parents were needed
as part of the “fact-finding investigation.”

       Detective Meyer testified that the victim’s mother, Karen Railey, and her boyfriend,
McField, were brought to the police service center. McField is not the victim’s biological
father. Detective Meyer said he interviewed McField and Railey together in a conference
room. He described the conference room as follows: “It is downstairs in the Major
Investigations office but it’s to the rear of the building. It’s just a big conference room, big
conference table, chairs, TV.” During the interview, Detective Meyer was “just asking
questions, you know, what time did you go to work, tell me what you did today and trying
to determine who was where and who all was present.” Detective Meyer stopped the
interview and told McField and Railey that they could watch television. He stated that during
the interview, he was able to obtain consent to search the home. Detective Meyer
acknowledged that he never informed McField and Railey of their Miranda rights. He
explained, “I had no reason to. I was just there to try to determine what was going on, what
happened to the child.” Detective Meyer could not recall how long the interview lasted. At
the time of the interview, he did not know whether the victim was dead or whether a crime
had been committed. Detective Meyer was the only officer present during the interview, and
he was unarmed. Detective Meyer had McField and Railey brought to the police service
center by a patrol unit. The interview was recorded and introduced as an exhibit at the
suppression hearing and at trial.

       On cross-examination, Detective Meyer could not recall when the interview began.
McField and Railey were not told that they were free to go to the hospital to check on the
victim. Detective Meyer stated that “if they had asked, I would have let them.” Detective
Meyer was unsure if McField stayed at the police service center after the interview. McField

        2
          For purposes of clarity, we will refer to Keanon Beamon as the victim. His sisters will be referred
to by their first names. No disrespect is intended to these individuals.

                                                    -2-
was interviewed later that evening by Detective Tilley. Detective Meyer testified that during
the initial interview with McField, he learned that McField had been left alone to care for the
victim. Detective Meyer was also told that McField had disciplined the victim by “whopping
him on the behind.”

        Detective Mike Tilley of the Chattanooga Police Department testified that he was
assigned to the Homicide Unit. At around 5:30 p.m. on the day of the offense, he received
a phone call and was informed that the victim had been transported to a hospital. Detective
Tilley said he went to the hospital to check on the victim’s condition. The victim was
pronounced dead at 5:58 p.m. Detective Tilley testified that he made several phone calls
while at the hospital. He had Detective Meyer obtain a signed consent form from McField
and Railey. Additionally, Detective Tilley had Detective Meyer question them about what
might have caused the victim’s death. Detective Tilley stated that at that time, “There was
nothing external that they saw that would indicate any type of cause of death. They didn’t
have time to do any X-rays or scans or anything because they . . . just concentrated their
efforts on resuscitation at that time.” Detective Tilley said it was determined that an autopsy
was needed. Detective Tilley left the hospital at 6:50 p.m., and went to the scene of the
offense. He stayed there for less than thirty minutes before going to the police service center
to begin the interviews.

        Detective Tilley testified that he interviewed McField after returning to the police
service center. Detective Meyer was also present for this interview. At the outset, Detective
Tilley advised McField of his Miranda rights orally and in writing. The written waiver was
introduced as an exhibit. Detective Tilley testified that the interview was recorded and lasted
around forty-five minutes. Detective Tilley said he tried to ascertain the cause of the victim’s
death. At the time of the interview, he knew that the victim was dead, but he was unsure if
the case was a homicide. Detective Tilley “[v]aguely” recalled McField asking to leave. He
stated, “I believe I responded that he could leave.” Detective Tilley said McField was
allowed to leave after the interview. McField was arrested two days later.

        On cross-examination, Detective Tilley estimated that he interviewed McField three
hours after the initial interview with Detective Meyer. McField remained at the police
service center during the intervening period. By the time of the second interview, McField
was aware that the victim had died. Detective Tilley said he did not tell McField that he was
free to leave the police service center. McField was not given anything to eat. Detective
Tilley recalled McField stating that he was literate and had an eighth-grade education. He
was unsure if McField had prior dealings with law enforcement.

       McField testified that he felt obligated to go with the officers to the police service
center. He also thought he was required to stay at the police service center during the


                                              -3-
interview process. On cross-examination, McField acknowledged that he never made a
request to leave the police service center to go to the hospital.

        The trial court denied the motion to suppress. Its written order is not included in the
record. However, the transcript from the suppression hearing contains a detailed account of
the trial court’s findings. The trial court determined that McField’s initial statement to
Detective Meyer was admissible despite the absence of Miranda warnings. It reasoned that
the initial interview was a non-custodial interrogation. The trial court stated:

       A reasonable person in the position of Mr. McField, I find, would be free to
       leave. Certainly, based upon everything that was heard, the audio, the
       testimony, he was free to leave, it simply was a statement to find out what had
       happened to this child, who was with the child.

              Several factors in the Anderson case are important. This is not
       inclusive. Time and location of interrogation; it was in a conference room, it
       was not a regular detective office or interview room. Conference room.

              The duration and care to the questioning; as indicated, it was a give-
       and-take, it was not accusatory, it was of short duration, approximately eight
       and a half minutes.

              The tone of voice, general demeanor; I think it was even admitted by
       the defendant that this officer is a friendly officer, and that was the way the
       interview was carried on. It was a friendly conversation, as best it could be
       with the facts and circumstances, but certainly . . . it was not accusatory in any
       way.

               He was transported by an officer to a place of questioning. There was
       one officer present, he was not armed. There was no limitation on movement
       that the Court finds, based upon the testimony that I’ve heard.

               The interactions between Mr. McField and the one officer were good.
       There was, as indicated, nothing accusatory. The officer basically indicated
       what happened [that] day, who was with the child, these were the words
       spoken. The suspect, Mr. McField in this situation, his verbal responses were
       good as to what was going on, he was not confronted as [to] whether there was
       any suspicion he had harmed this child in any way. And I find, based upon all
       the circumstances, that this was a non-custodial statement.




                                              -4-
       The trial court then addressed McField’s later statement to Detective Tilley. It found
that McField freely and voluntarily waived his Miranda rights before making this statement.
The trial court stated:

              Even though this defendant had an eighth grade education, very clear
       from the answers that he gave to Officer Tilley that he very much understood
       what was going on and he voluntarily and freely talked to this detective about
       what had gone on with he and the child all through the day. All the facts and
       circumstances would indicate that this was a free and voluntary act. There was
       no indication he was deprived of food, there was no indication that there was
       any drug or alcohol problems which would render the statement nonvoluntary.
       There’s no indication at all he requested an attorney, requested to leave.

       Trial. Nine-year-old Karimyaha Railey, the victim’s sister, testified that on the day
that her brother died she gave him a hug and left for school. When she returned home, the
victim was lying naked on her mother’s bed under the covers. Karimyaha stated that “he
wasn’t breathing, he wasn’t moving, he was just still.” She also described the victim as being
cold. Karimyaha testified that McField was at the home, and he told her that the victim was
dead. According to Karimyaha, McField gave the following explanation for what had
happened:

              Well, he said Keanon had peed in the bed, he woke up, he gave him a
       spanking with his hand and he ran him some bath water and he told him to go
       ahead and take a bath and Keanon was just splashing water on himself and so
       he asked him was he done, he said yes or yes, sir, and when he went to get out
       the tub, he said he flipped over the tub, he either hit his face or his stomach
       and he asked him if he was okay and he said yes.

        Chris Gaynor, with the Hamilton County 911 District, testified that his office received
an emergency phone call from McField on the day of the offense. This phone call was
recorded, entered as an exhibit, and played for the jury. During the phone call, McField
states that the victim is dead and had stopped breathing thirty minutes before the 911 call.
McField added that the victim was breathing at some point, but then stopped.

        Officer Zach Fuller of the Chattanooga Police Department testified that he responded
to an emergency call from the victim’s home. When he arrived at the scene, the medical unit
was already performing CPR on the victim. Officer Fuller stated, “[McField] told me that
around 4:30 to 4:45 on that same day, that the child was taking a bath and had fallen out of
the tub and stopped breathing right after falling out of the tub.” McField also said the victim
had stopped breathing fifteen to thirty minutes before McField called for help.


                                              -5-
        Dr. Bernard Patrick Connell, a pediatric physician at a children’s hospital, testified
that the victim was brought to the emergency room, and they unsuccessfully attempted to
resuscitate him.

        Leeh Butcher, a paramedic for the Hamilton County Emergency Medical Services,
testified that she went to the victim’s home in response to a 911 call. She said the fire
department personnel had already arrived and were performing CPR on the victim. The
victim’s heart was not beating, and there were no obvious signs of trauma. Butcher
approximated that the 911 call was made at 5:00.

        Karen Railey, the victim’s mother, testified that at the time of the offense, she was in
a relationship with McField. They were living together in an apartment. Railey said she had
three children: the victim, age four, Karimyaha, age seven, and Ka’Reysha, age one.

        Railey testified that, on the date of the offense, she left for work between 6:30 and
6:42 a.m. Her children remained at the apartment with McField and McField’s sister,
Laquita Chambers. Railey said she interacted with the victim before she left for work.
Railey worked a full day and returned home at around 5:00 p.m. She was told by Karimyaha
that the victim was dead. The victim was lying naked on her bed. His body was cold, his
eyes were halfway open, and “liquid stuff fell out his nose.” Railey then told McField to call
911.

        Railey testified that the victim and Ka’Reysha typically went to a daycare on
weekdays. They stayed at home on the day of the offense because the victim’s eyes were
irritated. Railey said “the daycare wasn’t sure if it was pinkeye, so I couldn’t take him back
until I got him checked.” McField was responsible for taking care of the victim and
Ka’Reysha during the day. She stated, “When I worked, he kept them, made sure they went
to daycare and to school. My oldest daughter goes to school and he would make sure she
would get off to school and my two little ones, he would make sure they get to daycare.”
Railey said the victim struggled with potty-training, and he frequently wet himself.

       Railey testified that an ambulance took the victim to the hospital. She did not go to
the hospital and explained, “They made us stay on site at the house until the police officers
took us to the station.” An hour later, she was told that the victim was dead. Railey never
asked McField what had happened to the victim. She stated, “I was more or less in shock.”
Railey said the victim did not have medical or behavioral problems. She stated that the
victim had been punished in the past for intentionally peeing on himself. His punishment
was a spanking. Railey testified that McField left a voice message on her phone after the
victim’s death. This message was played for jury. In the message, McField repeatedly
apologized for what had occurred. He told Railey that he loved the victim.


                                              -6-
       On cross-examination, Railey testified that she was in a relationship with McField for
around one year. She never saw McField lose his temper with her children. Additionally,
Railey never saw McField physically harm her children. Railey denied telling the police that
she arrived home from work at 4:00 p.m. She also denied testifying at the preliminary
hearing that she arrived home at 4:50 to 4:55 p.m. Railey stated that in the past, McField had
taken care of her children while she was at work. Although her daughter suffered from a
seizure disorder, Railey said the victim did not. Railey testified that McField’s sister, Laquita
Chambers, also stayed at the apartment.

        Detective Josh Meyer of the Chattanooga Police Department testified that he was
assigned to the Child Abuse Unit. On the day of the offense at approximately 5:30 p.m., he
received a phone call regarding the victim, who was receiving CPR. Detective Meyer
ordered the victim’s parents to be brought to the police service center for purposes of his
fact-finding investigation. He interviewed McField and Railey in a conference room. This
interview was recorded, and the recording was played for the jury. During the interview,
McField said he cared for the victim and Ka’Reysha on the day of the offense. His sister,
Laquita Chambers, left the house at about 7:00 a.m. and did not return. McField said he was
alone with the children all day, and no one else came to the apartment. Railey was at work
throughout the day. She did not return to the apartment “until a little after 4 or a little bit
after 4:30.” Detective Meyer asked McField how the victim was injured. McField
responded:

       [Keanon] got problems about pee’ing on hisself. He don’t go to the bathroom.

                  ....

              And he get punished for it so I was whopping him so when I’s
       whopping him he..3 he had struggled, like well you know I can’t even really
       hold him all that good. He’ll run around the house and stuff so I can.. I caught
       him. I’m whopping him. I had took him throwed him on his bed but first I had
       him on my lap.

                  ....

                  He twisted his whole body down here.

                  ....




       3
           The transcript designated pauses by putting two consecutive periods with no spaces.

                                                    -7-
             Can’t get ahold like that so I just took off, . . . I put him on the bed,
      folded his legs back and I was whopping him.

             ....

             And when I got.. when I got through whopping him he was struggling
      when I was doing that. I got through whopping him it was like I let his legs
      go, he was like.. his eyes was like rolling back.

             ....

             So you know what I’m saying, I’m like Keanon, I slapped him, I’m like
      Keanon wake up. He looked at me, woke up. He just got on up. I said come
      one, take a bath now cause he had pee’d all over hisself.

             ....

              So [I] wanted him to take his bath so I said come on let’s walk. He
      started walking, he like fell so I pick him up. I took him upstairs. I put him
      in cold water.

             ....

             And so he.. he in the bathtub I’m like Keanon wake up, wake up and he
      woke up. I had the shower on first and I ran.. then I ran the bath water. He
      woke up and I said take a bath, okay. He said okay. Then I be.. I looked at
      him and he’s taking a bath. He just laying in the water and he start messing
      with the water splashing it on his body so I got out and went downstairs to next
      door neighbor’s house. I’s talking to her for a minute and I came right back.
      Came back, asked Keanon you done, he was like yes sir so I was walking up
      the steps. I’s coming up the steps, he stood up, you know, he was like, got
      ready to get out he just fell over the ..uh.. the tub part.

             ....

             But I don’t know if he hit his head or not.

Near the conclusion of the interview, Detective Meyer asked McField how long he spoke to
the neighbor, and McField replied, “not for very long.”




                                            -8-
        Cynthia Jones, the victim’s neighbor, testified that she was at home on the date of the
offense. At around 9:30 a.m., Jones saw McField outside with his dog. They talked for
between thirty minutes and an hour. Jones spoke with McField again at around 1:30 p.m.
She said McField mentioned that the victim peed on the floor. McField also stated that “he
whipped [the victim] and put him in the bathtub.” Jones said McField claimed to have
punished the victim by filling the bath tube with cold water. She did not see the victim on
the day of the offense. On cross-examination, however, Jones said she spoke with McField
from about 9:30 a.m. to 1:00 p.m. Jones stated, “I even sent him to the store for me.” Jones
testified that McField was not angry that day. She described him as being “fussy,” which
was not unusual.

       Detective Mike Tilley of the Chattanooga Police Department testified that he was
assigned to the Homicide Unit. At approximately 5:30 p.m. on the day of the offense, he was
informed that the victim had been taken to the hospital. Detective Tilley went to the hospital
to check on the victim’s condition; however, the victim was pronounced dead at 5:58 p.m.
Later that evening, Detective Tilley interviewed both McField and Railey. The interview
with McField was recorded, and the recording was played for the jury.

       The following is a summary of Detective Tilley’s interview with McField. McField
said he was left alone to care for the victim and his sister shortly after 7:00 a.m. During the
day, he noticed that the victim’s sister had urinated on herself. McField stated, “She know
how to go to the bathroom so I whipped her.” McField later determined that the victim had
also urinated on himself, and the victim was whipped. When the victim tried to run away,
McField hit him. McField stated:

       [H]e was like across . . . my legs, I tried to whop him but he like . . . turned his
       waist and turned sideways so I can’t get to his butt so I put him on the bed. I
       folded his legs back and put weight on ‘em and I started whopping his butt.
       He started struggling like he always do then when I got through . . . his eyes
       like rolled back in the back of his head.

McField placed the victim into the bathtub and ran cold water. The victim was active while
in the bathtub. McField then left the apartment, spoke to the neighbor, and later returned to
the apartment to check on the victim. He asked the victim if he was done with his bath, and
the victim said yes. McField said the victim fell while trying to get out of the bathtub.
McField was not sure if the victim had hit his head. The victim’s eyes rolled back in his
head. McField tried to wake the victim by shaking and slapping him. McField placed the
victim on the bed and, because the victim squeezed his hand, McField thought the victim
would be okay. McField left the room and later returned to discover that the victim was not
breathing. McField attempted to perform CPR. He said Railey returned to the apartment and
told him to call 911.

                                               -9-
       During the interview, McField described in detail the victim’s fall out of the bathtub:

       I’m going up the steps as he getting out I just see him fall over the . . . tub part
       . . . and he fell hard like he blacked out. I done blacked out before. He fell
       hard.

McField said that the victim’s stomach area hit the top of the tub. He thought the victim also
hit his head because his head went forward. McField picked up the victim and placed him
on the bed. The victim was still breathing and McField checked on him every fifteen
minutes. At some point, McField checked on the victim and discovered that he was not
breathing. McField performed CPR for several minutes. He acknowledged that he did not
immediately call 911 because he knew that the victim was dead. McField was also
concerned about going to jail. McField said he was worried about jail because he was
present when the victim died. McField stated that the victim was dead for about thirty
minutes before Railey came home. Near the end of the interview, Detective Tilley asked
McField why he did not call 911 after he first noticed that the victim was having problems.
McField responded that he did not think that the problems were fatal.

       On cross-examination, Detective Tilley acknowledged that he never interviewed
Laquita Chambers or Jones. He did not investigate where the victim had been forty-eight
hours prior to the offense. Detective Tilley said he did not investigate whether the victim hit
his head on anything when he fell out of the tub.

        Dr. James Metcalfe, a forensic pathologist for the Hamilton County Medical
Examiner’s Office and an expert in forensic pathology, testified that he performed the
autopsy of the victim. Dr. Metcalfe determined that the cause of death was multiple blunt
force injuries. He stated, “The pattern of injury is consistent with inflicted blunt force
trauma.” Dr. Metcalfe said the term “inflicted” means that the injury was caused by someone
other than the victim and was not accidental. He testified that the victim suffered blunt force
injuries to the chest, abdomen, and head. The victim had lacerations to his liver, lesser
omentum, and spleen. The victim also had excessive blood around his abdomen, colon, and
kidney. There was additional bruising to the back of the victim’s abdomen, pancreas, small
intestine, mesentery, kidney, lungs, mediastinum, pericardium, diaphragm, chest, back,
thighs, and left upper arm. Dr. Metcalfe testified that the victim also suffered injuries to his
head. There were contusions to the victim’s scalp and brain, and blood had collected under
the covering of his brain.

        Dr. Metcalfe opined that the victim’s bruises may have been caused by being struck
with something with sharp edges, like a belt. Dr. Metcalfe did not think that the bruises on
the victim’s back and chest were accidental. Dr. Metcalfe did find some evidence of bruising
on the victim’s buttocks; however, he said the overall pattern of the bruising was not

                                              -10-
consistent with spanking. He testified that the bruises to the abdomen and chest did not
result from falling out of a bathtub.

        Dr. Metcalfe explained that the victim’s death was caused by internal injuries. The
victim’s liver had split and 500 milliliters of blood collected around the abdominal organs.
Dr. Metcalfe said the liver injury was inflicted, and not accidental. He believed that the
injuries to the abdominal area resulted from more than one blow. Dr. Metcalfe testified that
the injury to the liver required “severe force” and was not consistent with spanking or falling
over the side of a tub. He explained that the injuries to the victim’s chest, lungs, and spleen
were not caused by CPRV. Dr. Metcalfe said the injuries to the victim’s brain resulted from
at least two blows of “substantial force” which were potentially fatal. He believed that the
victim bled to death over a period of thirty minutes to one hour. The victim would have been
in a “good bit of pain” and was “[p]robably screaming and crying.” Dr. Metcalfe did not
think that the victim could have caused these injuries to himself. He estimated that the victim
endured eighteen blows. Dr. Metcalfe concluded that the manner of death was a homicide.

       On cross-examination, Dr. Metcalfe testified that he did not believe that the victim’s
injuries were caused by CPR, even if the CPR was performed by someone who was
untrained. He said there was evidence of a prior hemorrhage in the lung area. Dr. Metcalfe
believed that the victim would have died even if 911 had been called immediately after the
injury was incurred.

      After the State rested, the defense did not put on any additional proof. The jury
convicted McField of first degree felony murder and aggravated child abuse.

        Sentencing. The trial court began the sentencing hearing by addressing the sentence
for first degree felony murder. It stated that McField would serve a life sentence with the
possibility of parole. The remainder of the hearing dealt with the sentence for aggravated
child abuse.

       Officer James Rox testified that he prepared the presentence investigation report for
the Tennessee Board of Probation and Parole. The report shows McField, age twenty-two,
had prior convictions for unlawful possession of a weapon and violating the driver’s license
law. Officer Rox said he interviewed McField about his background. McField reported
having a history of substance abuse, beginning at the age of eight. He claimed that as a child,
he was beaten by his alcoholic mother. Officer Rox said McField had an eighth-grade
education and was never employed. He received disability payments from 2003 to 2006
because of a mental disorder. McField reportedly had explosive anger disorder. He visited
a hospital two days before the offense occurred, and he was prescribed Lithium.




                                             -11-
        Railey testified that she and her family were deeply affected by the victim’s death.
She was not aware that McField had a mental health disorder. Railey knew McField went
to the hospital shortly before the offense and received medication.

       Shirley Ann Wade, McField’s mother, testified that McField had mental problems
growing up. At the age of fourteen, McField was taken into the State’s custody after a
physical altercation. Wade regained custody when McField was seventeen. She said
McField still suffered from explosive behavior disorder. He began taking medication for that
disorder as a teenager.

        Following the proof at the sentencing hearing, the trial court determined that McField
was a Range I offender. The applicable sentencing range for aggravated child abuse, a Class
A felony, was fifteen to twenty-five years. The trial court found that one mitigating factor
was present under Tennessee Code Annotate section 40-35-113. It considered McField’s
tough childhood under mitigating factor (13), which serves as a catch-all provision. The trial
court found that three enhancement factors were applicable under section 40-35-114. It
considered McField’s prior convictions, though it noted that he had no prior felonies. The
trial court also determined, under enhancement factor (4), that the victim was particularly
vulnerable because of his age. It stated:

       [Defense counsel] makes the argument that the offense itself requires someone
       to be under the age of eight, so that’s considered, but I think the case law does
       point out that based upon the age, that this vulnerability factor can be
       considered, and I do find that to be true.

        There’s no specific proof presented of that, but the child was four years of age, he was
there, he was too young to call for help, to make phone calls, he was under the care and
control of Mr. McField, so I do find that he was particularly vulnerable because of his age
and I find that’s an enhancement factor.

        Lastly, the trial court found that enhancement factor (14) was met because McField
abused a position of private trust. It reasoned that McField was entrusted with the care of
the four-year-old victim on multiple occasions. The trial court imposed a sentence of twenty
years. McField filed a motion for new trial which was denied by the trial court. McField
filed a timely notice of appeal.

                                         ANALYSIS




                                              -12-
        I. Motion to Suppress. McField claims the trial court erred in denying his motion
to suppress. He argues that his first statement4 to Detective Meyer must be suppressed
because it was made during a custodial interrogation without Miranda warnings. McField
contends his second statement to Detective Tilley must also be suppressed because it was
tainted by the first statement to Detective Meyer. He claims he did not voluntarily waive his
Miranda rights before his interview with Detective Tilley. In response, the State argues that
the trial court properly denied the motion to suppress. It contends the initial interview with
Detective Meyer was a non-custodial interrogation, and therefore Miranda warnings were not
required. It claims McField was not restrained of his liberty and that he gave the first
statement on his own volition. The State argues that the second statement to Detective Tilley
was properly admitted because it was given after McField knowingly and voluntarily waived
his Miranda rights.

       The courts of this state have concluded that “a trial court’s determination at a
suppression hearing is presumptively correct on appeal.” State v. Saylor, 117 S.W.3d 239,
244 (Tenn. 2003) (citing State v. Harbison, 704 S.W.2d 314, 318 (Tenn. 1986)). However,
if the record on appeal preponderates against the trial court’s determination, then the
presumption of correctness may be overcome. Harbison, 704 S.W.2d at 318 (citing Mitchell
v. State, 458 S.W.2d 630, 632 (Tenn. Crim. App. 1970)). The Tennessee Supreme Court
explained this standard in State v. Odom:

                Questions of credibility of the witnesses, the weight and value of the
        evidence, and resolution of conflicts in the evidence are matters entrusted to
        the trial judge as the trier of fact. The party prevailing in the trial court is
        entitled to the strongest legitimate view of the evidence adduced at the
        suppression hearing as well as all reasonable and legitimate inferences that
        may be drawn from that evidence. So long as the greater weight of the
        evidence supports the trial court’s findings, those findings shall be upheld.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

        A. First Statement to Detective Meyer. We will first address whether the trial court
erred by admitting McField’s first statement to Detective Meyer. At the suppression hearing,
Detective Meyer acknowledged that he did not inform McField of his Miranda rights during
their interview. A police officer is required to warn a suspect of his Miranda rights prior to
a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966); State v.
Riels, 216 S.W.3d 737, 754 (Tenn. 2007). The Tennessee Supreme Court has stated, “The
warnings and waiver mandated by Miranda ‘are, in the absence of a fully effective

        4
           For purposes of clarity, we will refer to McField’s initial interview with Detective Meyer as the
first statement. McField’s later interview with Detective Tilley will be referred to as the second statement.

                                                    -13-
equivalent, prerequisites to the admissibility of any statement made by a defendant’ during
custodial interrogation, whether inculpatory or exculpatory.” State v. Northern, 262 S.W.3d
741, 749 (Tenn. 2008) (quoting Miranda, 384 U.S. at 476). Therefore, the admissibility of
McField’s first statement is dependant on whether the interview with Detective Meyer was
a custodial interrogation.

        The Tennessee Supreme Court has set forth the following standard for determining
whether a suspect is in custody: “whether, under the totality of the circumstances, a
reasonable person in the suspect’s position would consider himself or herself deprived of
freedom of movement to a degree associated with a formal arrest.” State v. Anderson, 937
S.W.2d 851, 855 (Tenn. 1996); see also Riels, 216 S.W.3d at 754; State v. Payne, 149
S.W.3d 20, 32 (Tenn. 2004). In Anderson, the court made clear that “courts must consider
the totality of the objective circumstances surrounding the interrogation, ‘not the subjective
views harbored by either the interrogating officers or the person being questioned.’”
Anderson, 937 S.W.2d at 854 (quoting Stansbury v. California, 511 U.S. 318, 323 (1994)).
The court emphasized the following passage from the United States Supreme Court’s
decision in Stansbury:

              [A]n officer’s views concerning the nature of an interrogation,
              or beliefs concerning the potential culpability of the individual
              being questioned may be one among many factors that bear
              upon the assessment whether that individual was in custody, but
              only if the officer’s views or beliefs were somehow manifested
              to the individual under interrogation and would have affected
              how a reasonable person in that position would perceive his or
              her freedom to leave.

Id. (quoting Stansbury, 511 U.S. at 325).

      In Anderson, the court provided the following, non-exclusive list of factors to
consider when deciding whether a person is in custody:

       [T]he time and location of the interrogation; the duration and character of the
       questioning; the officer’s tone of voice and general demeanor; the suspect’s
       method of transportation to the place of questioning; the number of police
       officers present; any limitation on movement or other form of restraint
       imposed on the suspect during the interrogation; any interactions between the
       officer and the suspect, including the words spoken by the officer to the
       suspect, and the suspect’s verbal or nonverbal responses; the extent to which
       the suspect is confronted with the law enforcement officer’s suspicions of guilt
       or evidence of guilt; and finally, the extent to which the suspect is made aware

                                             -14-
       that he or she is free to refrain from answering questions or to end the
       interview at will.

Id. at 855 (internal citations omitted). The court described the evaluation of the relevant
factors as “a very fact specific inquiry.” Id. It added, “Application of the appropriate,
relevant factors to the facts is a task for which the trial court is especially suited.” Id.

       In this case, the trial court determined that the initial interview between McField and
Detective Meyer was a non-custodial interrogation. It found that a reasonable person in
McField’s position would believe that he or she was free to leave the interview. The trial
court stressed that Detective Meyer’s questions were not accusatory in nature and merely
sought to discern what happened to the victim. The trial court emphasized that McField was
forthcoming with his responses. It stated, “McField freely talked about what he had done
that day.” The trial court also referred to the short duration of the interview, the friendly
interaction between Detective Meyer and McField, and the fact that the interview took place
in a conference room, rather than a regular detective office.

        Before reviewing the trial court’s findings, we again note that the record does not
contain the motion to suppress or the trial court’s written order. McField was responsible for
providing a record that conveys a fair, accurate, and complete account of what transpired
with regard to his motion. See T.R.A.P. 24(b); State v. Taylor, 992 S.W.2d 941, 944 (Tenn.
1999). Ordinarily, McField’s failure to present a complete record on appeal would result in
a waiver of this issue. See State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993).
However, the transcript contains a detailed account of the trial court’s findings, which
permits our review of this issue. Although a motion to suppress is required to be filed
pretrial, see Tenn. R. Crim. P 12(b)(2)(c), it is apparent from the record that such a motion
was filed.

       In viewing the transcript of the suppression hearing, several factors support the trial
court’s decision. The duration of the interview was less than nine minutes. Detective Meyer
was the only officer present, and he was not armed. McField was not handcuffed or shackled
during the interview. Detective Meyer was cordial in dealing with McField and Railey.
Detective Meyer explained the purpose of the interview, and stated, “Look, we don’t know
what’s going on and what happened but, you know, we have to find out and that’s why I
asked them to bring you out here, okay.” In questioning McField, Detective Meyer tried to
ascertain how the victim was injured. The primary purpose of the interrogation was not to
obtain an incriminating statement from McField. Detective Meyer did not ask specific
questions about the critical aspects of McField’s testimony; namely, his use of corporal
punishment or the victim’s fall in the bathtub. Detective Meyer simply allowed McField to
provide his explanation for how the victim was injured. In listening to the recording of the
interview, McField was not hesitant in providing his account of what transpired.

                                             -15-
        However, in our view, more of the factors support a finding that the interview was a
custodial interrogation. The interview occurred soon after an ambulance took the victim to
the hospital. McField and Railey were not permitted to go to the hospital; rather, they were
brought directly to the Major Investigations office by a patrol unit. Detective Meyer testified
that at the time of the interview, McField and Railey did not know whether the victim had
been pronounced dead. Detective Meyer acknowledged that he never informed McField that
he could refuse to answer questions or that he could end the interview. Additionally, when
Detective Meyer stopped the interview, he did not tell McField that he was free to leave.
McField was told that he could wait in the conference room and watch television. At the
suppression hearing, McField said he felt obligated to go to the police service center. He also
thought he was required to stay at the police service center.

       In weighing the foregoing factors, we conclude that the evidence preponderates
against the trial court’s determination. In our view, McField’s initial interview with
Detective Meyer amounted to a custodial interrogation. Our primary consideration is the
extreme circumstances under which the interview was conducted. McField and Railey were
brought to the police service center by a patrol unit shortly after Railey’s four-year-old child
was transported to the hospital. They were not informed that they could refuse to answer
questions or end the interview. Detective Meyer never informed McField and Railey that
they could go to the hospital to find out whether the victim was alive. Under these
circumstances, a reasonable person would have considered “himself or herself deprived of
freedom of movement to a degree associated with a formal arrest.” Anderson, 937 S.W.2d
at 855. We see particular significance in the fact that after Detective Meyer stopped the
interview, he told McField and Railey that they could watch television while they waited in
the conference room. This statement conveys an expectation that they would stay at the
police service center rather than go to the hospital to check on the victim’s condition. We
recognize the factors supporting the trial court’s decision that are outlined above. In
particular, we acknowledge that McField never made a request to leave the police service
center or go to the hospital. We hold, however, that McField’s first statement to Detective
Meyer was made during a custodial interrogation. Because he was not informed of his
Miranda rights, his first statement should have been ruled inadmissible. We will address
whether the admission of this statement constituted harmless error after analyzing McField’s
second statement to Detective Tilley.

         B. Statement to Detective Tilley. McField claims the trial court also should have
suppressed his statement to Detective Tilley. This statement was made after McField
executed a written waiver of his Miranda rights. McField contends that despite the waiver,
his second statement was not knowingly and voluntarily given because it was tainted by his
first statement to Detective Meyer.




                                              -16-
        The Tennessee Supreme Court has stated, “When Miranda warnings are given and a
waiver obtained, the prosecution has ‘a virtual ticket of admissibility’ for any resulting
custodial statement of the defendant.” Northern, 262 S.W.3d at 749 (quoting Missouri v.
Seibert, 542 U.S. 600, 608-09 (2004)). In State v. Smith, the court recognized an exception
to this general principle for situations in which a custodial statement is preceded by an
illegally-obtained confession. State v. Smith, 834 S.W.2d 915, 919 (Tenn. 1992). The court
created a rebuttable presumption that an illegally-obtained confession tainted a subsequent
confession, even if the subsequent confession was preceded by proper Miranda warnings.
Id.; see also Northern, 262 S.W.3d at 763 (applying Smith). In order to overcome this
presumption, the State must show “‘that the taint is so attenuated as to justify admission of
the subsequent confession.’” Smith, 834 S.W.2d at 919 (quoting Oregon v. Elstad, 470 U.S.
298, 335 (1985) (Brennan, J., dissenting)).

       In Smith, the court defined the “critical inquiry” as:

       [W]hether the events and circumstances surrounding and following the initial,
       illegal conduct of the law enforcement officers prevented the accused from
       subsequently (1) making a free and informed choice to waive the State
       constitutional right not to provide evidence against one’s self, and (2)
       voluntarily confessing his involvement in the crime.

Id. The court provided a non-exclusive list of factors to consider in making this
determination:

       1. The use of coercive tactics to obtain the initial, illegal confession and the
       causal connection between the illegal conduct and the challenged, subsequent
       confession;

       2. The temporal proximity of the prior and subsequent confessions;

       3. The reading and explanation of Miranda rights to the defendant before the
       subsequent confession;

       4. The circumstances occurring after the arrest and continuing up until the
       making of the subsequent confession including, but not limited to, the length
       of the detention and the deprivation of food, rest, and bathroom facilities;

       5. The coerciveness of the atmosphere in which any questioning took place
       including, but not limited to, the place where the questioning occurred, the
       identity of the interrogators, the form of the questions, and the repeated or
       prolonged nature of the questioning;

                                             -17-
       6. The presence of intervening factors including, but not limited to,
       consultations with counsel or family members, or the opportunity to consult
       with counsel, if desired;

       7. The psychological effect of having already confessed, and whether the
       defendant was advised that the prior confession may not be admissible at trial;

       8. Whether the defendant initiated the conversation that led to the subsequent
       confession; and

       9. The defendant’s sobriety, education, intelligence level, and experience with
       the law, as such factors relate to the defendant’s ability to understand the
       administered Miranda rights.

Id. at 919-20.

        At the outset, we acknowledge the factors that weigh in favor of finding that the
statement to Detective Tilley was involuntary. Specifically, in considering factor four, the
circumstances preceding McField’s second statement, we note that McField was brought
directly to the Major Investigations office where he remained for several hours. He stayed
at the office in the period between interviews. During this time, McField learned that the
victim was officially pronounced dead. McField was not provided food while at the police
service center. Additionally, under factor eight, McField did not initiate the conversation that
led to his second statement.

        However, in our view, the following factors outweigh the above factors and support
a finding that McField’s second statement to Detective Tilley was given knowingly and
voluntarily. Under factor one, neither of the detectives were coercive in dealing with
McField. Although the first statement was obtained illegally, Detective Meyer was not
accusatory in dealing with McField. McField concedes in his brief that Detective Meyer
“was cordial to him.” Regarding factor two, Detective Tilley estimated that he interviewed
McField three hours after the initial interview with Detective Meyer. For factor three,
Detective Tilley informed McField of his Miranda rights at the start of the interview.
McField acknowledged that he understood these rights. The record includes the “Rights
Waiver Form,” which was signed by McField. McField marked that he could read and write,
and he wrote his initials next to each of his constitutional rights. Under factor five, the
atmosphere of the interview was not coercive. The detectives were professional, and
McField was forthcoming with his explanation of what happened to the victim. After
listening to the forty-two (42) minute tape-recording of the interview, it is clear that McField
wanted to explain what happened to the victim to the officers. Regarding factor six, there

                                              -18-
was no evidence that McField was denied the opportunity to consult with counsel or family
members. For factor seven, there was no indication that McField was affected
psychologically by his first statement to Detective Meyer. The effect of the first statement
is certainly depreciated by the fact that McField arguably did not admit to committing an
offense. Regarding factor nine, the evidence failed to show that McField lacked the ability
to understand the administered Miranda rights. McField was literate and had an eighth-grade
education. He also had some experience with the law based on two prior convictions and six
other dismissed or withheld charges.

       In considering the foregoing factors, the trial court did not err by admitting McField’s
statement to Detective Tilley. Nearly all of the factors support the conclusion that McField
made a free and informed choice to waive his Miranda rights. The evidence rebuts the
presumption that the second statement to Detective Tilley was tainted by the first statement
to Detective Meyer.

        Because we previously held that the trial court erred by admitting the first statement
to Detective Meyer, we must review whether the error was harmless beyond reasonable
doubt. The harmless error doctrine applies to the admission of involuntary confessions.
Arizona v. Fulminante, 499 U.S. 279, 310 (1991); State v. Koffman, 207 S.W.3d 309, 320
(Tenn. Crim. App. 2006). In applying this doctrine, the Tennessee Supreme Court has stated
that “the crucial consideration is what impact the error may reasonably be taken to have had
on the jury’s decision-making.” State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008). The
court added, “Where an error more probably than not had a substantial and injurious impact
on the jury’s decision-making, it is not harmless.” Id. (citing Kotteakos v. U.S., 328 U.S.
750, 776 (1946)). Here, the admission of the initial statement was harmless for two reasons.
First, McField does not admit in the statement that he committed an offense. McField
acknowledged that he was alone with the victim throughout the day, and that he used
corporeal punishment. He did not state, however, that he committed acts that would have
caused the injuries described by the medical examiner, Dr. Metcalfe. McField provided an
exculpatory explanation for the injuries to the victim’s head and abdominal area by stating
the victim fell in the bathtub. Second, the error was harmless because any incriminating
aspects of the first statement were addressed in significantly greater detail in the second
statement to Detective Tilley. Based on these two reasons, the admission of the initial
statement to Detective Meyer was harmless beyond a reasonable doubt. McField is not
entitled to relief on this issue.

      II. Sufficiency of the Evidence. McField does not address the felony murder
conviction and limits his insufficiency of the evidence claim to his aggravated child abuse
conviction. He argues that the State failed to prove that the victim’s injures were not caused
by accidental means. McField contends the evidence merely showed that he used an
acceptable level of corporeal punishment. In response, the State argues that a rational juror

                                             -19-
could have found that the elements of the offense were met. The State claims the testimony
of Dr. Metcalfe established that McField knowingly injured the victim. We agree with the
State.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
this court must consider “whether, after reviewing the evidence in the light most favorable
to the prosecution, 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). Similarly,
Rule 13(e) of the Tennessee Rules of Appellate Procedure states, “Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support a finding by the trier of fact of guilt beyond a reasonable doubt.” The
requirement that guilt be found beyond a reasonable doubt is applicable in a case where there
is direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977) and Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). Recently, the
Tennessee Supreme Court adopted the United States Supreme Court standard that direct and
circumstantial evidence should be treated the same when reviewing the sufficiency of the
evidence. See State v. Genaro Dorantes, No. M2007-01918-SC-R11-CD, 2011 WL 208306,
at *12 (Tenn. 2011). Finally, the trier of fact must evaluate the credibility of the witnesses,
determine the weight given to witnesses’ testimony, and must reconcile all conflicts in the
evidence. Odom, 928 S.W.2d at 23.

        When reviewing issues regarding the sufficiency of the evidence, this court shall not
“reweigh or reevaluate the evidence.” State v. Philpott, 882 S.W.2d 394, 398 (Tenn. Crim.
App. 1994) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978), superseded by
statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993)).
This court has often stated that “[a] guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the
theory of the State.” Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict also
“removes the presumption of innocence and replaces it with a presumption of guilt, and the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id. (citation omitted).

        McField was convicted of aggravated child abuse, the Class A felony. Child abuse
requires proving that the defendant “knowingly, other than by accidental means, treats a child
under eighteen (18) years of age in such a manner as to inflict injury.” T.C.A. §
39-15-401(a) (2009). The child abuse is aggravated if it “results in serious bodily injury to
the child.” Id. § 39-15-402(a)(1). The aggravated child abuse qualifies as a Class A felony
if the victim is eight years of age or less. Id. § 39-15-402(b).

                                              -20-
        Here, McField argues that the victim’s fatal injuries were accidental and a result of
corporal punishment. However, the record shows that at the time of the four-year-old
victim’s death, McField “whopp[ed]” the victim until the victim’s “eyes rolled back into [the
victim’s] head.” Although McField may not have intended to kill the victim, there was
overwhelming proof from the medical examiner that McField’s actions caused the victim’s
death. The medical examiner repeatedly testified that the victim’s injuries were “inflicted”
and not accidental. The victim suffered multiple blunt force injuries to his chest, abdomen,
and head. Significantly, the victim’s liver had been split as a result of multiple blows. The
medical examiner estimated that the victim bled to death over a period of thirty-minutes to
an hour. Finally, the victim’s brain was also impacted by “two blows” of “substantial force”
which were potentially fatal. In total, the four-year-old victim endured eighteen “blows” to
his body. The jury heard McField’s account of what happened to the victim and rejected it.
We will not second-guess or override their decision. Based on this evidence, we conclude
that a reasonable jury could have found McField guilty of aggravated child abuse beyond a
reasonable doubt. He is not entitled to relief on this issue.

       III. Photograph. McField claims the trial court erred by admitting a photograph of
the victim’s cranium. He contends the photograph lacked probative value because the
medical examiner testified that the injuries to the victim’s head were not the cause of death.
McField also argues that the photograph was overly prejudicial. He asserts, “The testimony
of [the medical examiner] was descriptive enough to convey this information to the jury
without enflaming [sic] and prejudicing them with this photograph. Moreover, the picture
is gruesome in nature and any probative value it might have is substantially outweighed by
the prejudicial effects.” In response, the State argues that the photograph was relevant
because it supplemented the medical examiner’s testimony about the injuries to the victim’s
head. The State contends that the photograph was not gruesome or prejudicial. Upon
review, we hold that the trial court did not err by admitting the photograph.

        The trial court has discretion regarding the admissibility of photographs, and a ruling
on this issue “will not be overturned on appeal except upon a clear showing of abuse of
discretion.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). First, a photograph must
be “verified and authenticated by a witness with knowledge of the facts” before it can be
admitted into evidence. Id. Second, a photograph must be relevant to an issue that the jury
must determine before it may be admitted. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998)
(citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Banks, 564 S.W.2d at 951).
However, if the photograph’s “prejudicial effect outweighs its probative value,” it should not
be admitted. See Tenn. R. Evid. 401 and 403; Banks, 564 S.W.2d at 951. A relevant
photograph “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” See Banks,
564 S.W.2d at 951. Unfair prejudice has been defined by the Tennessee Supreme Court as

                                             -21-
“an undue tendency to suggest decision on an improper basis, commonly, though not
necessarily an emotional one.” Id. Photographs must never be used “solely to inflame the
jury and prejudice them against the defendant.” Id.

        Here, prior to the medical examiner’s testimony, the trial court held a bench
conference and determined that the photograph was admissible. The photograph showed the
back of the victim’s scalp after his skin was removed. Two areas of the victim’s head were
covered with blood. The trial court determined that the photograph was relevant because it
revealed the location and degree of the victim’s injuries. It found that the photograph was
not unduly prejudicial. The trial court reasoned that the photograph was not overly graphic
for an autopsy photograph. The photograph, an exhibit during the medical examiner’s
testimony, was part of a slide showing the victim’s internal injuries. The medical examiner
testified at length about the injuries to the victim’s head. The medical examiner stated that
the injuries to the victim’s head were inflicted and were not caused by a fall.

       Upon review, the trial court properly found that the photograph was admissible. It
was adequately verified and authenticated. Under Rule 401 of the Tennessee Rules of
Evidence, the photograph was relevant to whether the victim suffered serious bodily injury.
See T.C.A. § 39-15-402(a)(1). The photograph showed the accumulation of blood at two
points on the back of the victim’s head. Under Rule 403, the probative value of the
photograph was high considering the importance of the medical examiner’s testimony. The
photograph corroborated the medical examiner’s testimony that the victim suffered
significant internal injuries to his head. The photograph was of particular importance
because the medical examiner explained that the location of the head injuries suggested that
the head injuries were not caused by a fall. We note that the value of the photograph was not
dependent on whether the head injuries caused the victim’s death. The charge of felony
murder required proving the elements of aggravated child abuse. In considering the danger
of unfair prejudice, we recognize that the photograph was graphic. We cannot conclude,
however, that the graphic nature of the photograph substantially outweighed its high
probative value.

       McField claims this case is analogous to Gladson v. State, 577 S.W.2d 686 (Tenn.
Crim. App. 1978), in which this court found that the admission of two autopsy photographs
warranted a new trial. Id. at 687. One of the photographs in Gladson showed the deceased’s
cranial bones after the removal of his hair. Id. The present case is distinguishable from
Gladson because McField did not concede the cause of the victim’s injuries. Id. The
defendant in Gladson offered to stipulate that the victim died as a result of injuries suffered
during an altercation with the defendant. Id. In the instant case, the cause of the victim’s
injuries was a contested issue at trial. McField’s claim is without merit.




                                             -22-
       IV. Sentencing. McField claims his sentence for aggravated child abuse was
excessive because the trial court misapplied enhancement factor (4), which addresses the
vulnerability of the victim based on age or disability. T.C.A. § 40-35-114(4) (2007).
McField contends the vulnerability of the victim is included within the elements of
aggravated child abuse. He asserts that the victim’s ability to seek help is addressed by the
requirement that the victim suffered serious bodily injury. The State contends the trial court
properly found that enhancement factor (4) was applicable because the victim’s vulnerability
was not an element of aggravated child abuse.


        On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2006). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action 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). Our review is de novo, without a presumption
of correctness, if the trial court applied inappropriate mitigating or enhancement factors or
otherwise failed to follow the principles of the Sentencing Act. State v. Carter, 254 S.W.3d
335, 345 (Tenn. 2008). The defendant, not the State, has the burden of showing the
impropriety of the sentence. T.C.A. § 40-35-401(d) (2006), Sentencing Commission
Comments.

       Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (1) the evidence adduced at the trial and the sentencing hearing; (2) the pre-
sentence report; (3) the principles of sentencing and arguments as to sentencing alternatives;
(4) the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on the enhancement and mitigating factors set forth in
Tennessee Code Annotated sections 40-35-113 and 40-35-114; (6) any statistical information
provided by the administrative office of the courts as to Tennessee sentencing practices for
similar offenses; and (7) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. See T.C.A. § 40-35-210(b); see also State v. Imfeld, 70 S.W.3d
698, 704 (Tenn. 2002); State v. Osborne, 251 S.W.3d 1, 24 (Tenn. Crim. App. 2007).

        The Tennessee Supreme Court has stated that the 2005 Amendments to the Sentencing
Act “deleted as grounds for appeal a claim that the trial court did not weigh properly the
enhancement and mitigating factors.” Carter, 254 S.W.3d at 344. In sentencing a defendant,
the trial court must consider the sentencing guideline that suggests an adjustment to the
defendant’s sentence when enhancement or mitigating factors are present; however, these
factors under the guideline are merely advisory rather than binding upon a trial court’s
sentencing decision. Id.; see also T.C.A. § 40-35-210 (2006). The weight given to each
enhancement or mitigating factor is left to the sound discretion of the trial court. Id. Thus,

                                              -23-
this court is “bound by a trial court’s decision as to the length of the sentence imposed so
long as it is imposed in a manner consistent with the purposes and principles set out in
sections -102 and -103 of the Sentencing Act.” Id. at 346.

       Here, the trial court imposed a twenty-year sentence for aggravated child abuse. As
a Range I offender, the applicable sentencing range was fifteen to twenty-five years. T.C.A.
§§ 39-15-402(b), 40-35-112(a)(1). The trial court found that one mitigating factor was
present under Tennessee Code Annotate section 40-35-113. It considered McField’s tough
childhood under the catch-all provision of mitigating factor (13). The trial court determined
that three enhancement factors were applicable under section 40-35-114. It found that
enhancement factor (1) applied because McField had prior convictions for unlawful
possession of a weapon and violating a driver’s license law. The trial court also determined
that enhancement factor (14) was met because McField abused a position of private trust.

        At issue is the trial court’s determination that enhancement factor (4) was applicable.
This enhancement factor is whether: “A victim of the offense was particularly vulnerable
because of age or physical or mental disability.” T.C.A. § 40-35-114(4). The trial court
acknowledged that the convicted offense already accounted for the age of the victim.
Nonetheless, it stated, “I think the case law does point out that based upon the age, that this
vulnerability factor can be considered, and I do find that to be true.” The trial court found
that the victim was particularly vulnerable because he was under McField’s care and control
and was too young to call for help.

       This court has found that even though the victim’s age is an element of aggravated
child abuse, the trial court can apply enhancement factor (4) under certain circumstances.
See State v. Eric Cathey, No. W2008-01446-CCA-R3-CD, 2010 WL 2836632, at *20 (Tenn.
Crim. App., at Jackson, July 20, 2010); State v. Blake Delaney Tallant, No.
E2006-02273-CCA-R3-CD, 2008 WL 115818, at *32 (Tenn. Crim. App., at Knoxville, Jan.
14, 2008). The trial court has to “consider whether evidence in the record with regard to the
victim’s age or physical and mental attributes demonstrated an inability to resist the crime,
summon help, or testify at a later date.” State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997); see
also State v. Adams, 864 S.W.2d 31, 35 (Tenn.1993). The victim’s vulnerability must have
“some bearing on, or some logical connection to, ‘an inability to resist the crime, summon
help, or testify at a later date.’” State v. Lewis, 44 S.W.3d 501, 505 (Tenn. 2001) (quoting
Poole, 945 S.W.2d at 96). The State is required to present evidence of the victim’s
vulnerability, in addition to the victim’s age; however, this evidence “‘need not be
extensive.’” Id. (quoting Poole, 945 S.W.2d at 97). The State is not required to prove that
the defendant “actually evaluated the vulnerabilities of his victims and then acted to
capitalize on those perceived vulnerabilities.” Id.




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       Here, the record shows that McField folded the four-year-old victim’s legs back and
put his weight on him to prevent the victim from getting away. McField “whopped” the
victim and the victim’s eyes “rolled back in the back of [the victim’s] head.” At this point,
McField was concerned about the victim’s condition, but chose to leave the victim
unattended and did not render any aid. As noted by the trial court, the victim was essentially
alone with McField and under McField’s control. The victim clearly lacked the physical
maturity to defend himself and the means to summon help. Under these circumstances, we
conclude that the trial court properly applied enhancement factor (4) in sentencing McField.
McField is not entitled to relief on this issue.

                                      CONCLUSION

       Based on the foregoing, the judgments of the trial court are affirmed.




                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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